JUDGMENT

NANAVATI, J. :—This appeal is filed under Section 14 of the Terrorist Affected Areas (Special Courts ) Act, 1984 against the order of conviction and sentence passed by the Special Court, Hoshiarpur, in Case FIR No. 103 of 1984.

2. Appellant No. 1 Smt. Jaswinder Kaur is the wife of appellant No. 2 Shri Jaswinder Singh, Appellant No.2 has been convicted under Section 302, and appellant No.1 under Sections 302/34, I.P.C., for causing death of Surjit Singh, brother of appellant No.2.

3. The prosecution case was that Surjit Singh (deceased), Jaswinder Singh (accused) and Kewal Singh were living together along with their parents, Surjit Singh alone used to manage the family affairs, This was not liked by Jaswinder Singh and therefore there used to be quarrels between them. The last quarrel was on 24-5-84. On 25-5-84 Surjit Singh after taking food at about 12.00 noon slept on a cot in dalan of their house. Since some time prior to 2.30 P.M. Raj Rani, wife of Surjit Singh and his two sisters Kewal Kaur and Jaswinder Kaur were sitting together on a cot in the dalan and were talking with each other. The appellants were sitting on a separate cot and they were also talking with each other. At about 3.30 P.M. appellant No.1 Jaswinder Kaur brought some clothes, gave them to appellant No. 2 and told him as to what he was waiting for. Appellant No. 2 took those clothes and got up from the cot. He then picked up an axe lying in one corner of the dalan and gave two blows on the neck of Surjit Singh. He gave one more blow near his right shoulder. On cries being raised by Raj Rani. Kewal Kaur and Jaswinder Kaur the accused ran away from the place. Raj Rani then approached Tarsem Singh, a member of the Panchayat and along, with him went to Dasuya Police Station at a distance of 8 K.M. There she lodged the FIR at 3.30 P.M.

4. Appellant No.1 was tried for commission of an offence punishable under Sections 302/34 I.P.C. and appellant No.2 under Section 302, I.P.C. Before the trial Court, the prosecution mainly relied upon the evidence of three eye witnesses PW-4, Raj Rani, PW-5 Kewal Kaur and PW-7 Jaswinder Kaur. The prosecution also relied upon an extra judicial confession alleged to have been made before PW-6, Sarwan Singh, a member of the Panchayat who was approached by the appellants for producing them before police. The prosecution also relied upon recovery of an axe from appellant No.2. The learned Addl. Judge did not rely upon the alleged extra judicial confession and the recovery as the evidence in that behalf was not found satisfactory. The learned Addl. Judge did not believe the two defence witnesses, DW-2 Mangal Singh, father of the appellant No.2 and DW-2 Jarnail Singh, brother of appellant No.2 examined to prove that the appellants were in their field at the relevant time. Relying upon evidence of the eye witnesses and the medical evidence the learned Addl. Judge convicted both the accused as stated above.

5. What is contended by the learned counsel for the appellants is that the learned Addl. Judge ought not to have discarded the evidence of the defence witnesses as being equally related to appellant No.2 and the deceased they had no reason to tell what was not true. It was further submitted that their evidence establishes that both the appellants were not present in the house at the time of the incident but were in the field belonging to the family. Both the defence witnesses deposed that at about 2.30 P.M. Raj Rani came to the field and informed them that Surjit Singh was lying dead in the house. They also stated that she was having illicit relationship with Kewal Singh, elder Brother of the deceased and appellant No.2; and as that was not liked by the appellants, she was on inimical terms with them. They also stated that Kewal Kaur was with them in the field thereby indicating that she was not present in the house when the incidence took place. They further stated that PW-7 Jaswinder Kaur was at the relevant time at her in-laws