Judgment

KHANNA, J. :- Harchand Singh, Jaswant Singh, Jaswinder Singh, Sadhu Singh, Gajjan Singh and Labh Singh were tried in the court of Additional Sessions Judge Ludhiana in connection with an occurrence which resulted in the death of Ajaib Singh. The trail court acquitted Sadhu Singh, Gajjan Singh and Labh Singh. Harchand Singh and Jaswant Singh were convicted by the trial court under Section 304 Part II read with S. 34 Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for a period of seven years. Jaswinder Singh was convicted under Section 323 Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year. Two cross appeals were thereafter filed in the Punjab & Haryana High Court. One of the appeals was by Harchand Singh, Jaswant Singh and Jaswinder Singh, challenging their conviction. The other appeal was by the State of Punjab wherein it was prayed that the conviction of Harchand Singh, Jaswant Singh and Jaswinder Singh should be under Section 302 read with Section 34 Indian Penal Code. The High Court acquitted Jaswinder Singh. The appeal by the State against Harchand Singh and Jaswant Singh was accepted and those two accused were convicted under Section 302 read with Section 34 Indian Penal Code and each of them was sentenced to undergo imprisonment for life. Harchand Singh and Jaswant Singh thereafter came up in appeal to this Court by special leave.

2. The prosecution case is that Gulab Kaur widow of Jwala Singh made a will of land measuring about fifty bighas in favour of Ajaib Singh deceased and his brother Teja Singh. Gulab Kaur died about two years before the present occurrence. After her death, the land of Gulab Kaur was under the cultivating possession of Ajaib Singh and Teja Singh. The accused are collaterals of Jwala Singh, husband of Gulab Kaur and felt aggrieved because of the execution of the will by Gulab Kaur in favour of Ajaib Singh and Teja Singh. On June 12, 1966 at about 10 or 11 a. m., it is stated, Ajaib Singh went to work his well known as "nawa Khu" in the area of village Jaipura. The six accused, who were present at their well close to the well of Ajaib Singh, then came there. Sadhu Singh and Harchand Singh at that time were armed with barchhas. Jaswinder Singh, Gajjan Singh and Labh Singh had gandasas, while Jaswant Singh had takwa. On arrival there, the accused stated that they would not allow Ajaib Singh to take water from the well. The accused also started inflicting injuries upon Ajaib Singh with their respective weapons. The occurrence, it is stated, was witnessed by Ajaib Singh s two sons Amarjit Singh and Mal Singh as well as by his brother Teja Singh. Amarjit Singh, Mal Singh and Teja Singh were stated to be present in a nearby field at that time. They rushed to the spot where Ajaib Singh was being assaulted. The accused then ran away. Ajaib Singh was put on a cart and was taken first to "Duraha and thereafter to Payal. As the doctor was not available either in the Duraha hospital or Payal hospital, Ajaib Singh was taken in a taxi to Khanna. The party arrived at Khanna hospital at about 6.30 p. m. Dr. Shamsher Singh incharge of the hospital then sent an intimation to police station Khanna stating that Ajaib Singh s condition was serious and his statement might be recorded. ASI Harbhajan Singh then went to the hospital and recorded statement PK of Ajaib Singh at 7.30 p. m. In the said statement, Ajaib Singh gave the version of the occurrence as given above. Ajaib Singh died in the hospital soon thereafter at 8.45 p. m.

3. Intimation about the recording of the dying declaration of Ajaib Singh was sent to police station Payal. A case was thereupon registered at that police station and a formal first information report was prepared on the basis of the dying declaration of Ajaib Singh.

4. Sub Inspector Hoshiar Singh took over the investigation of this case. He arrested the accused on June 16, 1966 when they were found to be hiding at Dur