Judgment

GUPTA. J.:- This is an appeal from a Judgment of the Rajasthan High Court affirming on appeal the order of conviction and the sentences passed on the appellants before us by the Additional Sessions Judge No. 2, Shri Ganganagar. Of the four appellants Milkiyat Singh and Chhotu Singh were convicted under Section 302 and Section 307 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life under the first count and rigorous imprisonment for five years under the second : Hansa Singh and Genda Singh were convicted under Section 302/34 and Sections 307/34 of the Indian Penal Code and were also awarded the same sentences.

2. On March, 13, 1970, Surjit Singh (P. W. 3) lodged the F. I. R. in this case containing the following story. At 12.30 P. M. on that day Surjit Singh along with his brother Balbir Singh and Jagir Singh (P. W. 11) and Jagroop Singh (P. W. 4) had started from Surjit Singhs house for village Jandwala Sikhan to see the ailing wife of one Jiwan Singh and when they had reached a point near the house of one Ram Singh, they found Dal Singh. Chhotu Singh, Genda Singh, Hansa Singh and Milkiyat Singh sitting in a pit. As the complainants party approached, Dal Singh and others stood up and Dal Singh shouted : "the enemies had come. murder them." Milkiyat Singh then fired from his gun hitting Balbir Singh in the chest and he fell dead, Chhotu Singh fired a shot at Jagroop Singh (P. W. 4) which hit him in the leg. The assailants then left firing shots in the air from the guns they carried to scare people away. It is stated that Balbir Singh was also armed with a 12 bore gun. It is further stated that Dal Singh and his companions had formed a "goonda party" in the village and that on a report made by Balbir Singh the Police had recovered illegal arms from the possession of Chhotu Singh, Genda Singh, Hansa Singh and Milkiyat Singh which turned them hostile toward Balbir Singh.

3. It would appear from the F. I. R. that Dal Singh was the leader of the group and that at his call the shots killing Balbir Singh and injuring Jagroop Singh had been fired. Surprisingly Dal Singh is not named as an accused in this case. It is said a private complaint alleging an offence punishable under S. 302 of the Indian Penal Code has been filed against him. In their evidence before the Court Surjit Singh (P. W. 3) and Jagroop Singh (P. W. 4) repeated what was stated in the F. I. R. concerning the role played by Dal Singh. However in a supplementary statement to police (exhibit D-3) Surjit Singh said : "I have stated by mistake that he (Dal Singh) was in the pit ................." In a similar supplementary statement (exhibit D-4) Jagroop Singh also said that Dal Singh was not present along with other accused in the pit and that he had mentioned Dal Singhs name in his earlier statement to the police because Dal Singhs name was mentioned by Surjit Singh. Both Surjit Singh (P. W. 3) and Jagroop Singh (P. W. 4) denied in their depositions that they had stated to the police that Dal Singh was not present at the time of the occurrence. P. W. 8 Girdhari Singh who was S. H. O. of the concerned police station however said in his deposition : "On 13-4-70 I recorded the statements of Surjit Singh and Jagroop Singh P. Ws. Exhibit D-3 and Exhibit, D-4 respectively, as they deposed to, correctly. These bear my signature, The Deputy S. P. also interrogated and verified Surjit Singh and Jagroop Singh regarding Ex. D-3 and Ex. D-4." The prosecution story as stated in the F. I. R. and as narrated in court by the eye-witness P. W. 3 Surjit Singh, P. W. 4 Jagroop Singh and P. W. 11 Jangir Singh is one integrated account which gives a leading role to Dal Singh in the occurrence. It is true that if part of the story is found doubtful, it would not necessarily falsify the whole account, but in that case the rest of the story told by the alleged eye-witnesses must then be examined carefully before it is relied on. Here, in view of Exhibits D-