JUDGMENT

Sirpurkar, J. —

1. This appeal is filed by the State of Punjab challenging the judgment dated 17.10.1997 in Criminal Appeal No. 319 of 1995 whereby the High Court, while partly allowing the appeal, altered the conviction and sentence of the appellants-accused from Section 302/34 IPC to Section 304 Part-I read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for five years each and to pay a fine of Rs. 1,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year.

2. The prosecution case, in short, is as under:-

Desa Singh, Jessa Singh and Gurnam Singh were three brothers. On the night of 15.5.1993, Gurnam Singh, resident of village Pakan, Police Station Sadar Fazlika, District Ferozpur was sleeping in the threshing floor of his wheat field for guarding the wheat. According to the prosecution, the accused persons came there at about 10 p.m. in a drunken condition and took Gurnam Singh with them on the pretext of serving him liquor. This was allegedly seen by Santa Singh (PW5). Next day i.e. on 16.5.1993, in the morning at 6 a.m., Desa Singh (PW4), brother of deceased Gurnam Singh reached in the field to serve him tea. He did not find Gurnam Singh there. On enquiry, he was told by Santa Singh (PW5) of the adjoining field that last night at about 10 p.m., the accused persons had taken him away. The prosecution further alleges that on being told by Santa Singh (PW5) that the accused persons had taken him away, Desa Singh along with Santa Singh went to the residence of accused Nishan Singh where they came to know that the accused persons had killed Gurnam Singh and their sister Paramjit Kaur by strangulation because Paramjit Kaur had sexual relations with Gurnam Singh. Thereafter, Desa Singh along with Santa Singh went for lodging the report of murder of Gurnam Singh and Parmajit Kaur. SI Talwinderjit Singh met them on bus stand to whom they reported the matter. That is how the FIR came to be recorded on 16.3.1993 at about 9.15 a.m. It is significant to note that a copy of this FIR reached the area Magistrate only on 16.3.1993 at 10.30 p.m.

3. Upon lodging of FIR, SI Talwinderjit Singh (PW7) went to the house of accused at “Dhani Gowarewali” in village Pakkan and found the dead bodies of Gurnam Singh and Paramjit Kaur lying in the courtyard of house of accused. It is on that basis that the investigation started. During investigation, the prosecution claims to have found an eye-witness Mohan Singh (PW6) who, on the night of 15.5.1993 is alleged to have seen the murder of Gurnam Singh and Paramjit Kaur by strangulation by putting a rope around their neck by all the accused persons but had never bothered to report the matter to any of the family members of the deceased Gurnam Singh though admittedly he himself was the first cousin of the deceased Gurnam Singh. He ultimately became available for recording the statement only on the third day. He has been disbelieved by both the courts below.

4. Trial court accepted the evidence of Santa Singh (PW5) to the effect that he had last seen the deceased Gurnam Singh with all the four accused when Gurnam Singh was taken away by them on the pretext of serving him liquor. The trial court also accepted the fact that thereafter the dead bodies of Gurnam Singh and Paramjit Kaur were found in the courtyard of house of accused. It did not accept the defence suggestion that accused Nishan Singh was living separately from his other three brothers. The trial court also believed the Chemical Analyser’s report showing semen was found on the private parts of Paramjit Kaur.

5. The defence at the trial was novel. In his statement under Section 313 Cr.P.C., accused Nishan Singh stated that on the night of 15.5.1993, he heard some muffled sound from the court yard when he was sleeping on the roof of his house. He then corrected himself and said that the sound was coming from the room. When he went there, he saw Gurnam Singh strangulating his s