DAYAL SINGH AND ANR. Vs. STATE

JUDGEMENT

(1.) This is an appeal by Dayal Singh (33) and Mohar Singh (55) who have been convicted by the learned Sessions Judge of Hamirpur under Sec. 302 I.P.C. and have been sentenced to death. There is before us the usual reference by the learned Sessions Judge for the confirmation of the sentence of death passed against them.

(2.) The charge against the two Appellants was that on the 16th February, 1954, at abom two Gharis before sunset (equivalent to about 5 or 5.15 p.m.) they committed the murder of Raghubar Dayal Patwari by shooting him deal with a gun and a pistol respectively when Raghubar Dayal was at a distance of about two furlongs from village Gahrauli. The Appellants had denied the charge and had contended that they had been falsely implicated at the instance of one Jham Singh who bore them ill -will.

(3.) A written report of the occurrence was lodged at police station Muskara by Mool Chand the nephew of Raghubar Dayal deceased on the 16th Feb., 1954, at 12 in the night, the police station having been at a distance of about six miles from the place of occurrence. The report was made over to Head Constable Ganga Din (P.W. 8) when the Station Officer Mohammad Mehdi (P.W. 9) was said to have been absent from the thana. In that report it was mentioned that Rahubar Dayal was going in the evening from village Punnia to "village Gahrauli (a distance of three miles) to the house of one Khem Chand accompanied by Basdeo the cousin of Mool Chand and also by Noor Mohammad. At about one Ghari before sunset when they were at a distance of two furlongs from village Gahrauli, Dayal Singh Appellant who was armed with a pistol and Mohar Singh Appellant who was armed with a gun, both of whom were residents of village Punnia where the complainant also resided, suddenly came out from a field and fired shots at Raghubar Dayal. Raghubar Dayal was hit on the back and he fell down on the road and died instantaneously. It was mentioned in the first information report that there existed long standing enmity between Raghubar Dayal and the two Appellants arising out of dispute regarding cultivation and flowing out of certain criminal cases which had taken place between them. It was further mentioned in the first information report that Basdeo. Noor Mohammad and Mahrajwa, residents of village Punnia, and other persons who were in the neighbouring fields of village Gahrauli had seen the occurrence and had also seen the two Appellants firing shots and running away. It was contended in the first information report that from the scene of occurrence Mahrajwa went to Mool Chand in village Punnia and narrated the incident whereupon Mool Chand came to the scene of occurrence and found Raghubar Dayal lying dead on the road with marks of gun -shot and he also found Basdeo and Noor Mohammad and the Chowkidars of Gahrauli at that spot. It is therefore evident that the first information report was not based upon any direct knowledge of the occurrence but was based upon information that had been gathered by Mool Chand from Mahrajwa or from the two witnesses Basdeo and Noor Mohd. who were alleged to be the eye -witnesses. Head Constable Ganga Din (P.W. 8) in the absence of the Station Officer from the thana proceeded to the scene of occurrence and reached there at about 3 a.m. He prepared the inquest report and sent the dead body to Hamirpur for post -mortem examination. The Station Officer Mohammad Mehdi (P.W. 9) reached the scene of occurrence at about 8 or 9 in the morning. He found two wads of cartridges marked "S.G. Eley" and five wads of cardboard near the place of occurrence. He took them in possession under a recovery list prepared by him. The clothes of the deceased and blood stained earth from the place had also been taken.