Judgment

AHMADI, J.:- Harnam Singh, Sarpanch of village Naushera, was murdered on the night between 6th and 7th June, 1976 while he was sleeping at his tubewell to guard the wheat bags stacked in his field. P.W. 1 Dr. Malhotra who conducted the autopsy at about 4.15 p.m. on 7th June, 1976 found four injuries on the person of the deceased, namely, (i) a lacerated penetrating circular wound, 1/4" in diameter, with black margins inverted on right middle back, 3" from midline and 9" from iliac crest, (ii) a verticle bruise 6" x 1/2 " on the front of right forearm running downwards and outwards, (iii) bruises in the area of 5" x 1 " on the front and inner aspect of right upper-arm above the elbow joint, running forwards, outwards and downwards and (iv) an abrasion 5 x 1 "on the right side of the chest, 5" from mid-line and 3" from the clavicle running downward and inward. On opening the first wound it was found that the 8th and 9th ribs were fractured posteriorly; the diaphram and superior surface on the left lobe of the liver were lacerated; the heart was lacerated into pieces and the third, fourth, fifth, sixth and seventh ribs of the left side were broken anteriorly. The exit wound was 8 x 4" on the left upper chest just above the nipple. Death was on account of shock and haemorrhage resulting from the bullet injury. This injury No. 1 was stated to be sufficient in the ordinary course of nature to cause death. The other injuries were possible by a hard and blunt weapon and were simple in nature. Death was instantaneous. Both the Courts below, therefore, rightly concluded that death was homicidal.

2. The prosecution case, briefly stated, was that the appellants and the deceased who were neighbours in the village and quarrelled over the passage of sullage water a few Months before the incident. The appellants had diverted their sullage water towards the house of the deceased and the latter had protested and frustrated their effort. On account of this obstruction the sullage water collected in a pool near the house of the appellants which infuriated them. On account of this incident as well as past election rivalries the relations between the appellants and the deceased were so soured that on the night of the incident the three appellants went armed with weapons to the tubewell of the deceased where the latter was sleeping to guard his wheat stacked in bags. Gurmej Singh was armed with a rifle, Gian Singh was armed with Gandasi and Bur Singh carried a Dang. The prosecution alleged that Gurmej Singh had concealed the rifle in the Chadar wrapped around him and on reaching the place where the deceased was sleeping on a cot he threw off the chadar and shot the deceased at point blank range. The incident was witnessed by three persons. P.W. 2 . Swaran Singh, nephew of the deceased, P.W. 3 Fauja Singh, a close relative of the deceased and one Narain Singh (not examined) who too were sleeping in the field. Actually Narain Singh was sleeping near the deceased whereas P.Ws. 2 and 3 were sleeping at distance of approximately 10/ 15 karams therefrom. The prosecution did not examine Narain Singh on the plea that he was won over. The evidence of P.Ws. 2 and 3 shows that they got up on hearing some movement in the field and they saw the three appellants near the cot of the deceased. They were able to identify them because of the existence of an electric light at the tubewell. According to them on reaching near the cot of the deceased Gurmej Singh fired a shot from close range at the deceased who was still sleeping in his cot. Thereafter Gian Singh struck a Gandasi blow on the chest of the deceased followed by a Dang blow on the right arm by.Bur Singh. Gurmej Singh is stated to have warned others not to get up unless they wanted to be killed. On account of this warning P.Ws. 2 and 3 did not run to the rescue of the deceased for fear of being killed. After making sure that their victim was dead, the appellants fled away. P.W. 2 Swaran Singh then we