Judgment

SARKARIA, J.:- Nachhittar Singh, aged 40 years and his son Jagjit Singh, aged 21 years residents of Rurke Khurd were tried by the Additional Sessions Judge Barnala for the murder of their co-villager Dan Singh. Nachhittar Singh was convicted under S. 302, Penal Code and sentenced to death while Jagjit Singh was convicted under Section 302 read with S. 34, Penal Code and sentenced to imprisonment for life. On appeal, the High Court of Punjab and Haryana acquitted Jagjit Singh but upheld the conviction of Nachhittar Singh and confirmed the sentence of death inflicted on him.

2. Nachhittar Singh appeals after obtaining special leave, to this Court. The prosecution story was as under :

About four months before the occurrence in question the police arrested on the basis of secret information given by Dan Singh deceased, Isher Singh, the brother of the appellant for being in possession of illicit opium. For that reason, Nachhittar Singh was nursing a grudge against the deceased.

3. The deceased was being prosecuted in the Court of Judicial Magistrate at Barnala in respect of an offence under Section 307, Penal Code for causing gun-shot injuries to his brothers, Pritam Singh (P. W. 3) and Nidhan Singh. December 18, 1971 was the date of hearing fixed in that case. On that day, at about 7 a. m., the deceased had just stepped out of his house for going to Barnala, when the appellant and his son Jagjit Singh whose house adjoins that of the deceased, confronted him. Appellant was armed with his licensed 12 bore double-barrel gun. Jagjit Singh proclaimed that they would avenge the implication of his uncle in the opium case. Thereupon, the appellant fired his gun felling Dan Singh to the ground. Bhagwan Kaur, the mother-in-law of the deceased and Pritam Singh (P.W. 3) came out on hearing the noise. Bhagwan Kaur laid herself on the body of the deceased in order to save him from further injuries. Jagjit Singh pulled her aside, while the appellant fired two more shots at Dan Singh from very close range. Dan Singh died on the spot. The appellant then ran away taking the gun with him. Zora Singh, the father, and Nidhan Singh another brother of the deceased, had also witnessed the assault. Soon after the incident, Zora Singh went to Kartar Singh, Sarpanch and informed him about the occurrence. Zora Singh went to Police Station, Dhanaula, 13 miles away, and on reaching there at 11 a.m., lodged the First Information Report.

4. Assistant Sub Inspector, Shiv Kumar commenced the investigation and reached the spot at 1 p.m. He found three empties of 12 bore gun at the scene of murder, two near the dead body and the third on the doorway of the appellant. He took these empties into possession and prepared two seizure memos Exhts. PD/1 and P. K. which were attested by Kartar Singh. Sarpanch (P.W. 4) and Bhagwan Singh, Panch. The investigating officer prepared the inquest report. He recorded the statements of the witnesses. He also seized and sealed into a parcel the blood-stained chadar of Bhagwan Kaur. In due course, this parcel was sent to the Chemical Examiner and the Serologist who found human blood on the chadar. The parcels containing the empties were carried to and delivered in the Forensic Scientific Laboratory, Chandigarh on the 21st December, 1971 by Constable Gurdev Singh. The appellant was arrested by the Assistant Sub-Inspector Shiv Kumar at the bus-stand of the village on December 24, 1971 in the presence of Karnail Singh and Lal Gir of village Kahneke. Appellant was then carrying his licensed gun which was seized and sealed into a parcel. Memo Exh. PE was prepared in this connection. Subsequently, the gun was sent to the Forensic Laboratory at Chandigarh. Mr. J. K. Sinha, Ballistic Expert examined the gun and the empties, received earlier, and opined that the empties had been fired through the barrel of this gun.

5. The defence set up by the appellant was that the deceased had been murdered by his own brothers, Pritam Singh (PW 3) and N