JUDGMENT

AHMADI, J . :— The appellant, Buta Singh, has been convicted by both the Courts below for causing the death of one Balbir Singh. The facts leading to this appeal, briefly stated, are as under:

2. The incident in question occurred on 22nd June, 1975 at about 1 30 p. m. in the field at a short distance from the field of the appellant. On that date the deceased, his father PW 7 - Surjan Singh, and his brother PW 8 - Buta Singh had gone to the-field with a tractor driven by DW 1 - Dileep Singh for tilling the land. The dera of the appellant Buta Singh was near a tubewell belonging to one Dileep Singh from which the appellant was also drawing water as and when required. It is the prosecution case that when the deceased and his companions went to the land in question that afternoon the appellant, his wife Gurbachan Kaur and his minor son Gurdev Singh came to the site. They raised a lalkaranot to spare Balbir Singh as he was trying to establish his possession over the land. So saying the appellant Buta Singh launched an attack by inflicting two blows with his spear on the chest of Balbir Singh whereupon the victim fell down. Even thereafter, the appellant and his companions inflicted injuries on different parts of his body while he was on the aground. PW 7 - Surjan Singh and PW 8 - Buta Singh tried to intervene but they too were belaboured by the appellant and his companions. The two prosecution witnesses who were armed with a kirpan and a sota, respectively, inflicted injuries on the three assailants with a view to protecting their persons. After the appellant went away from the scene of occurrence the injured Balbir Singh was removed in a cart but he died on his way to Subhanpur. PW 7 then went to Kapurthala and lodged the First Information Report which was recorded by PW 9 -Sub-Inspector Balmukund at about 5.00 p.m. The investigation was then taken up, the alleged assailants were arrested on 22nd June, 1975, they were sent for medical examination and thereafter they were tried and convicted under Sections 302, 324 and 323 read with Section 34, I.P.C.

3. The trial Court accepted the prosecution evidence and convicted the appellant under Section 302, I.P.C. and sentenced him to suffer rigorous imprisonment for life. He was also convicted under Sections 342 and 323 read with Section 34, I.P.C. and was sentenced to suffer rigorous imprisonment for 9 months and 6 months respectively. The substantive sentences were ordered to run concurrently. The other two accused were convicted under Sections 324 and 323 read with Section 34, I.P.C. but were released on probation on their executing a bond in - the sum of Rs. 2,000/ -. The appellant Buta Singh alone preferred an appeal, being Criminal Appeal No. 134/76, to the High Court. The High Court on reappreciation of the evidence of the prosecution witnesses affirmed the conviction and sentence awarded to him by the trial Court and consequently dismissed his appeal. It is against this concurrent order of conviction and sentence that Buta Singh has preferred this appeal under Article 136 of the Constitution.

4. The prosecution case centers round the testimony of PWs 7 and 8. Before we proceed to consider their testimony it is necessary to state that both the Courts below came to the conclusion that the First Information Report could not have been lodged at 5.00 p.m. and that the time has been deliberately advanced. They came to the conclusion that there was no explanation for the delay in the lodging of the First Information Report and in sending a copy thereof to the Judicial Magistrate, Kapurthala. They found that the Special Report reached the Judicial. Magistrate at about 6.00 p.m. on the next day, that is, 23rd Juue, 1975. The High Court concluded in the following words:

"From all these undisputed facts,, the trial Court was quite right in drawing the inference that the First Information Report had not come into existence at the time shown by the prosecution and obviously the time must