Judgment

BAHARUL ISLAM, J.:- This appeal by special leave by the State of Haryana is directed against the judgment and order of the Punjab and Haryana High Court setting aside the conviction and sentence passed by the Sessions Judge, Karnal. Respondents Balkar Singh and Dalel Singh are the sons of respondent Sher Singh. The Sessions Judge convicted all the three under S. 302/34 of the Penal Code, and sentenced Sher Singh to death and the other two to imprisonment for life. On a reference by the Sessions Judge for the confirmation of the sentence of death inflicted on Sher Singh and appeal filed by the respondents, the High Court set aside the order of conviction and sentence and acquitted the respondents.

2. The material facts may be stated thus: On 17th of Oct, 1973 at about 12 A. M. Mst. Narman, widow of Danna (deceased) submitted the first information report to A. S. I. Ram Sarup (P. W. 12) at village Pai. Her material allegations in the first information report were that the previous day, respondent Sher Singh and two younger half brothers, namely, Danna, her husband, and Hukmi, had effected a family partition amongst themselves and they started living separately. That day, namely 17th of October at about 6.00 A. M., her husband Danna, along with his brothers Hukmi and respondents Sher Singh came to their bagichi nearby from the house in order to milk cattle. She followed them in order to fetch milk. Respondent Sher Singh, then along with his sons Dalel, Balkar, Keni, Prem and Parwana surrendered her husband and her husbands younger brother, Hukmi, in the court-yard. Sher Singh had a Gandasi in his hand, Dalel a lathi shod with iron blade, the other three had lathis in their hands. Sher Singh dealt a Gandasa blow on the head of her husband, Danna, who immediately fell down on the ground. Dalel then dealt a blow with iron shoded lathi on the head of Hukmi who also fell down on the ground. The other accused then inflicted blows with lathis on the persons after they had already fallen down. Respondent Sher Singh dealt another Gandasi blow on her husband. She has further stated in the first information report that Mst. Danni, sister of respondent Sher Singh, was also with her and witnessed the occurrence. They screamed seeing the assaults, whereupon they were directed on pain of death to sit in the corner of the court-yard. Out of fear they obliged. Thereafter, it has further been alleged, the accused persons dragged the dead bodies to their nearby heap of cow-dung cakes. Sher Singh spread kerosene on the heap of the cakes and Dalel set fire to it lighting a match stick. As a result, the two bodies were charred.

3. P. W. 12 sent the F. I. R. to the police station where a case was registered. Police, after investigation, submitted charge-sheet and arrested the accused persons. Eventually, the accused persons were charged under Section 302/34 of the Penal Code, and tried in the Court of Session. The accused persons pleaded not guilty to the charges. According to them the three brothers were joint in residence, mess and cultivation till the date of the occurrence. The defence of respondent, Sher Singh, was that his two sons, Dalel and Balkar, and the deceased brothers Danna and Hukmi, used to sleep in the Bagichi during the night to keep watch over their cattle tethered there. On October 16, 1973 he and his two deceased brothers were in their fields during the day and in the evening he went to their field where cotton was ripe and he remained there to keep watch over the cotton till next morning. That field was at a distance of about 1-1/2 miles from their Bagichi. About 11/2 hours after sun rise on October 17, 1973, he returned to the Bagichi where he found the heap of cow-dung cakes in the enclosure of Bagichi burning. Police then arrested him. The defence of respondent Dalel was that two days before the date of occurrence he went to his maternal uncle, Lalji, at Narwana to borrow a tractor. He returned home on the 17th of October