B. Prasad, J.@mdashThe present appeal arises out of a decision of the Court of Addl. Sessions Judge, Sri Karanpur dated 28.9.1999 in Sessions case No.22/1997.
2. The two present appellants, namely Richpal Singh and Gurdeep Singh are out of four accused persons who were sent for trial to the trial Court. The third accused Amreek Kaur was acquitted of the charges by the judgment under appeal. The fourth accused Smt. Surjeet Kaur died during the course of trial and therefore proceedings were dropped against her.
3. The trial emanates from the First Information Report being FIR No. 122/94 lodged at Police Station, Gajsinghpur against five accused persons. Out of the five named in FIR. two are the accused appellants; one Amreek Kaur is acquitted. Fourth accused Surjeet Kaur died during trial. Fifth accused Kala Singh alias Surendra Singh, being a juvenile, was sent to the Juvenile Court for being proceeded against.
4. According to the prosecution story as contained in the FIR which was lodged at 8.15 A.M. at Police Station, Gajsinghpur on 6.11.1994, informant Prahalad Singh had come to the Police Station alongwith his mother Rajendra Kaur and brother Balkar Singh. The oral report lodged by the complainant contained the allegation that his father Jamail Singh, deceased and uncle Richpal Singh and Gurdeep Singh had a dispute regarding partition of land. On the fateful day, Jarnail Singh, father of complainant, Mahendra Singh, Baltej Singh and Nayab Singh had gone for condolence to Ganganagar. The complainant, his mother and brother had gone to the field for picking cotton. At about 6.30 P.M. in the evening, they came from the field. When they arrived at home, cries were heard from the side of Bus Stand, Near the culvert on the canal, his father Jarnail Singh was being beaten by accused Richpal Singh, Gurdeep Singh Surjeet Kaur, Amreek Kaur and Kala Singh alias Surendra Singh of Barchhi, Lathi and Kulhari. The complainant assigns Richpal Singh with Barchhaand other accused with lathi. He tried to intervene, at that time, Surjeet Kaur, grand mother of the first informant inflicted a kulhari blow on his head. She also exhorted that enemy Jarnail Singh should not escape live. He should be killed. At that time, mother of this witness and brother also arrived at the. scene of occurrence. They also tried to intervene. He snatched lathi from the hands of accused Gurdeep Singh and in intervention, hit Richpal Singh by lathi and also hit Gurdeep Singh. At that time, his grand mother exhorted that he should also be killed. At that time'', accused Richpal Singh hit him by Barchhi from reverse side on his shoulder Kalasingh gave a hand blow on his face. By this, his lathi fell down from his hand. He ran away after getting scared. Accused, his Aunti and Kala Singh followed him for giving beating to him. Richpal Singh and his grand mother Surjeet Kaur followed his mother. These complainants then took their way to their house. Their mother went to the house of Pritam Singh for pleading that Jarnail Singh was being given beating. He stated that you also get away, otherwise, you will also be killed. After this, the complainant and his mother again went to rescue father. At that time, they saw that Richpal Singh etc. were taking father of this complainant to their house in a cart. They tried to intervene and rescue him. But by force, father of complainant was taken by the accused to their house. They closed the door of house after taking their father inside and gave beating. They heard cries and nobody came to rescue him. The father was killed at the house of the accused. After that, the complainant and his mother went to their uncle Chaddh Singh and narrated him whole story. They reached to the police station alongwith Chaddh Singh. The FIR was lodged against the accused for the offences under Sec. 302, 307, 364, 323, 341, 147, 148 and 149 IPC.
5. On this FIR, investigation was conducted and challan was presented against the four accused persons, namely two appellants, one Surjeet Kaur deceased, one acquitted accused and fifty accused sent for trial to the Juvenile Court. During the course of proceedings, accused Surjeet Kaur having died, proceedings were dropped against her on 6.11.1997. After charge-sheet being filed, the accused were sent for trial to the trial Court. Charges were framed against the accused persons under Sec. 147, 148-341/, 149-364/149-323/149-307/149-302/149 IPC.
6. In support of prosecution case, 12 witnesses were examined and documents and articles were exhibited. The accused were examined under Sec. 313 Cr.P.C. wherein accused alleged that they have been falsely implicated due to land dispute. No defence evidence was produced by the accused persons. The trial Court after considering the case of prosecution came to the conclusion that though challan has been filed against four accused persons but participation of accused Amreek Kaur is not properly made out. The trial Court held that Amreek Kaur''s case of participation in the incident is not clearly made out. Thus, Amreek Kaur was acquitted by the trial Court.
7. The trial Court has critically examined the evidence of Prahalad Singh, P.W. I and came to the conclusion that though he has stated that he was also assaulted by the accused persons but his injury report has not been produced in evidence. Regarding weapon, the trial Court has found that this witness has said that Barchha and Bhala are one and same weapon. In FIR, he has stated that the accused had a Barchhi. After discussing the evidence of this witness, the trial Court stated that according to witness, his mother, brother Kala Singh, Pritam Singh, had seen the incident. The trial Court has discussed the evidence of Pritam Singh in the light of some earlier instituted case. Trial Court was of the opinion that Pritam Singh can be relied. The other witnesses have been relied by the trial Court. But it has been found that accused Amreek Kaur though has been deposed to be present at the scene of occurrence but she has not effectively participated in the actual beating. No particular weapon has been said to have been with this accused. The trial Court has noticed that witness Rajendra Kaur in her police statement (Ex.D/2) has not stated that Amreek Kaur had any stick with her. Though Rajendra Kaur in her statement has stated that Amreek Kaur participated in the assault, yet other eye witnesses have not effectively spoken about her participation. The witnesses have spoken about the deceased Jarnail Singh being taken in cart, at that time, accused Amreek Singh is alleged to have been with other accused persons but witness Prahalad Singh, Balkar Singh and Rajendra Kaur had not attributed any beating by accused Amreek Kaur in their statement. Thus, the trial Court has found that she was not an actual participant in the incident of causing injury. Therefore, she has been held entitled to be acquitted of the charges levelled against her.
8. Discarding the testimony of all the eye-witnesses qua accused Amreek Kaur, the trial Court has found that their evidence was reliable for participation in the incident and causing injury to the deceased but this was not pursuant to any common object and therefore trial Court was of the opinion that offence as described under Sec. 147 and 149 IPC is not made out. All the accused persons have been acquitted of the charges under Sec. 147, 148 and 149 IPC. Forming of a common object to kill deceased and to execute such a common object, any unlawful assembly was constituted, has not been found to be established.
9. The trial Court has further found that witness Prahalad Singh was given beating by accused Surjeet Kaur, Richpal Singh and accused Kala Singh. Prahalad Singh was admitted in hospital and medically examined. Prahalad Singh stated in his statement that he was medically examined but no record of examination has been filed in Court. No medical evidence has been produced. How witness Balkar Singh and Rajendra Kaur were given beating, were not described in the statement of these witnesses and therefore offence under Sec. 307 and 323 IPC has not been found to have been established against accused persons.
10. Witnesses, Prahalad Singh, Balkar Singh and Rajendra Kaur are sons and wife of deceased Jarnail Singh and Pritam Singh is only independent witness of the occurrence. According to the trial Court, in the testimony of witnesses, participation of accused Richpal Singh, Gurdeep Singh, Kala Singh alias Surendra Singh and deceased Surendra Kaur in beating the accused Jarnail Singh is found because Richpal had Barchha (Gandasi) and another accused persons alleged to have been lathi with them. The accused had given beating to the deceased first at the bus stand of 31 BB of which site inspection memo is Ex.P/5. These witnesses had stated that neighbours had not come to rescue the deceased. Witness Prahalad Singh had stated that accused had taken the deceased to their house. Thus, from the evidence of these witnesses, the trial Court has found that after giving beating at bus stand of 31 BB, deceased was taken to the house of accused persons where deceased was killed. The trial Court after discussing the evidence has come to the conclusion that from the testimony of eye witnesses and the recoveries, there remains no doubt to believe the testimony qua the participation of appellant. Regarding cart, it has been said that though prosecution has not explained as to how cart arrived at the scene of occurrence but then defence has also not led any evidence in this regard that how the cart came there. The accused under Sec. 313 Cr.P.C. statement has also not explained that from where cart came. In prosecution evidence, accused Richpal Singh is alleged to have been in possession of Gandasi (Barchha) which has been described as Barchhi, Barchha, Bhala or Gandasi but the trial Court has found that since deceased has sustained various injuries from various kinds of weapons including sharp edged weapon, therefore, it can be said that accused used both kind of weapons i.e. sharp and blunt. Recoveries have been pressed into service because recovered articles were found to be stained with blood group ''B'' of human origin which was the blood group of deceased. Thus, the prosecution story has been found to have been corroborated in material particulars. The trial Court has found that charges against the accused appellants under Sec. 302/34 IPC and 364/34 have been proved. Under Sec. 302/ 34 IPC, the appellants have been convicted and sentenced to undergo life imprisonment with a fine of Rs.5000/- each and under Sec. 364/34 IPC, the appellants have been convicted and sentenced to seven years rigorous imprisonment with a fine of Rs.2000/- each.
11. Learned counsel for the appellants has assailed the order of conviction and has submitted that it is not possible to believe the prosecution story as has been given out in the evidence of the prosecution witnesses. According to the learned counsel for the appellants, origin of fight is said to be at the point when the deceased got down from the bus. At that time, accused appellants were also said to be there. It was suggested in the Cross-examination that accused Gurdeep Singh had alighted from the bus and he was given beating by the deceased, therefore, the dispute ensued. If the accused and the deceased were travelling in the same bus, then the fight could have ensued earlier in the bus or at the point, when both the parties were together in he bus but such had not occurred. Therefore, it cannot be said that fight was the result of some old dispute, may be that something untoward happened, either during the journey or at the bus-stand which persuaded the parties to get engaged in fight but such is not the story given out by the prosecution. The prosecution has not come with the true version.
12. According to the defence counsel, if the prosecution is not coming out with true version about beginning of the story, then its stand is subjected to a strict scrutiny. The story developed by the Prosetution, when given such a treatment, no implicit reliance can be placed on it.
13. Learned counsel for the defence has further stated that being guilty of not stating correctly about the origin of fight, the prosecution case has to be found to be discredited. The story qua the participation of Smt. Amreek Kaur has been held by the trial Court to be not trustworthy. Hence, she was acquitted. At the time, when incident occurred, Amreek Kaur was pregnant and running in her eight month term. In such a state of pregnancy, it cannot be legitimately accepted that a lady will participate in a beating to a single person, where four other members of he family were allegedly present. Thus, the trial Court has disbelieved her participation.
14. Learned counsel for the appellants has further stressed that if the story of the participation of Amreek Kaur is subject to doubt as has been held by the trial Court. Her participation in omnibus terms have not been accepted. In this background, the case of other accused persons cannot be distinguished from that of this accused. If she has, been held to be entitled to be acquitted as has been done by the trial Court, other accused persons also deserve the same treatment.
15. Learned counsel for the appellant has further stressed that there is a positive attempt on the part of the prosecution to implicate an invalid in a gruesome incident. The accused Gurdeep Singh is an invalid person and few of the prosecution witnesses have accepted this proposition. But then, they have tried to explain further. In fact, Gurdeep Singh is physically invalid and shows a tendency of retarded mental behaviour. Such a man can hardly be of any consequence, where lethal weapons are used in fight. Thus, not only the prosecution was guilty of alleging falsely against an eight months term pregnant woman, they have alleged offence against a mentally retarded and physically in-valid accused Gurdeep Singh. Thus, they have taken opportunity to allege such allegations which would not stand scrutiny in the court of law.
16. According to the learned counsel for the appellants, Smt. Surjeet Kaur was an aged woman and Kala Singh, a juvenile delinquent. In its efforts to get the whole family condemned, the prosecution has not left a senior citizen and a children from being falsely implicated. Learned counsel for the appellants has further stated that house of the accused is more than 200 yards away from the bus stand of 21 BB. According to the prosecution version, while the incident happened at the bus-stand, near their residence they were de-loading the cotton crop which the complainants had plucked during the day. They heard the cries from a distance of 4-5 Murabbas as alleged by the prosecution. It is not possible to hear the cries of an incident of a beating by the witnesses, if they were really engaged in some de-loading work. Because, their attention would then be towards the work and the distance is good enough to dilute the intensity of sound.
17. Learned counsel for the appellants has further assailed the prosecution by saying that allegation of the witnesses is that the deceased was taken in the cart of the accused. The cart was not deposed to have been initially present at the scene of occurrence and there is no event deposed by the prosecution witnesses which indicates that the cart was brought by either of the parties at the scene of occurrence. When such an important event is not deposed, then the necessary corollary is that they had not seen the commission of crime as has been alleged by the prosecution witnesses. The cart story comes as a very important gap in the prosecution story. If this is not explained, this condemns the prosecution case because this would naturally mean that at the time of alleged incident, witnesses had not seen the actual commission of crime.
18. It has further been alleged by the defence counsel that the witnesses are not one on the point of use of weapons by individual accused persons. Not only that they did not describe the individual participation to a convincing level, but they do not speak uniformly about he use of weapon by individual accused. Criticizing he individual witnesses, the learned counsel for the accused appellants has stressed that witness PW/1 Prahlad Singh is the most important witness of the prosecution. He is alleged to have witnessed every part of the incident but his evidence is not convincing for the reasons stated hereinabove. The words and the cries which are alleged to have been heard by him at the time when his father was given beating do not tally with the words described by other witnesses. Thus, the argument of the defence stands fortified because this part of the prosecution falls to ground that the cries were heard by the witnesses. To establish the presence of this witness, prosecution has tried to plant his ''chappal'' at the scene of occurrence but ultimately it had no guts to establish the ''chappal'' to be of this witness. The ''chappal'' was neither sealed nor put to any identification to establish that the ''chappal'' got left at the scene of occurrence belongs to this witness.
19. Learned counsel for the appellants has further stressed that this speaks for the unfairness of the investigation also, wherein, an attempt has been made to plant in a circumstantial piece of evidence to establish the presence of this witness.
20. Learned counsel for the appellants has further assailed the evidence of PW/ 3 Pritam Singh who has falsely tried to become the witness of the occurrence. He was at his place, when the first part of incident had occurred. It is alleged that the mother of PW/1 Prahlad Singh, PW/4 Snu. Rajendra Kaur went to his place and pleaded for the rescue of her. husband. This witness is alleged to have said that "You also get away, otherwise, you would be killed". He is a man of 75 years of age. He accepts that, it was dark and his eye sight is weak. He generally spoke about the accused persons having some weapons, This witness has accepted that he had not given the names of the two accused out of five accused persons in Ex.D/1, his police statement. He had only given the name of rest of the accused persons in the statement. He accepts that Gurdeep Singh has weak legs and there were other houses nearby but no person had come to rescue the deceased.. He has also not. stated that he was wearing spects. He has admitted that without spects he cannot see at a distance. He alleges that he saw the incident from a distance, Thus: the witness PW/3 Pritam Singh also tried to become an eye-witness. which he was not.
21. Regarding PW/2 Balkar Singh, learned counsel has stated that he has prevaricated about the cries he had heard'' at his house. He has not used the same words which have been used by PW/1 Prahlad Singh. He fails to assign any weapon to a particular accused. He alleged that the deceased gave, a Kulhari blow on the head of Prahlad Singh but ho such injury has been established by the prosecution. Prahlad Singh has been assigned a ''Barcha'' blow but his participation has not been established by this witness in a convincing manner. Regarding the cart, this witness gives no explanation. This witness has failed to describe. as to which accused had hit which particular injured and how many injuries were inflicted. He also fails to say that what was the duration of the heating. He is one with all the witnesses that they did. not try to miscue the. father from the house of the accused. The narration by this witness is so imperfect that for every suggestion, his reaction is that he cannot describe it to near exactness.
22. Learned counsel further stresses that PW/4 Smt. Rajendra Kaurhas not been able to describe the various steps of the incident in a convincing manner. Thus, the investigation has been unfair and therefore, the whole story of the prosecution deserves to be discarded. The prosecution is guilty of withholding the medical report of PW/1 Prahlad Singh which was prepared as he Was hit in the incident. It may be with a design because if Prahlad Singh was hit in the incident, his presence could be said to be there. This leads to a situation that if Prahlad'' Singh was injured, why not other witnesses. They all belonged, to the same family. This speaks of presence of one witness Prahlad Singh and excludes the presence of other witnesses.'' In this background learned counsel for the defence slates that if other witnesses were not present and Prahlad Singh alone was present, then if he speaks about the presence of other witnesses, he stands condemned. Further, withholding of his medical report shows that there had been an attempt on the part of the prosecution, story to not to tell the whole truth to the court. The prosecution has tried to conceal the real happenings. Thus, if the story as narrated by the prosecution, is untruthful, then, it is not possible to re-construct any other story from that narration ahd to see the incident from any other point of view.
23. Learned counsel for the accused has further stressed that the trial Court has acquitted the accused persons of offence u/s 147, 148, 149 I.P.C. Thus, the cause of common object as stated by the prosecution has not been believed by the trial Court. This stands to discard the prosecution story as told by witnesses. Learned trial Judge has also not believed the prosecution witnesses for offence u/s 307 & 323 I.P.C. If the prosecution.-story qua inflicting blows to the prosecution witnesses is not believed; then it is hard to: believe the prosecution story for injuries to the'' deceased. Thus, having not believed the prosecution story, the trial Court has acquitted the accused persons of offence u/s 147,148,149,323 & 307 I.P.C. The prosecution witnesses being liable: to'' be'' discarded on this count, rest of the story cannot be relied. It is not possible to support only; the: story of killing of deceased. In this light, the offence of Section 302 I.P.C: read with 34 I.P.C. could not have found to be proved by the prosecution, so also, the offence u/s 304 read with 34 I.P.C.
24. Per contra, learned counsel for the State submits that may be that the witnesses have not been able to depose about the infliction of injuries by the individual accused persons, but then they have spoken about the participation of all the accused persons. A nearest kin has been killed. There is no reason as to why the witnesses will scan the real accused person. Their attempt would be to implicate those who were responsible for eliminating Jamail Singh. The witnesses have given natural version. All the witnesses have named all the accused persons. The weapons recovered from the accused have been found to be blood stained. Thus, there is sufficient corroboration available, and therefore, the prosecution story is correct. The trial Court findings as recorded have been supported by the eye-witnesses and they establish the prosecution case. It is pleaded that the judgment of the trial court is not liable to be interfered with. It is a case of direct evidence supported by circumstantial evidence and nothing more is required. Thus the offence alleged against the accused persons stands proved. The conviction and sentence passed are liable to be sustained.
25. During the course of hearing, an application was filed on behalf of the Public Prosecutor to summon the record and the doctor in evidence who conducted the medical examination of PW/1 Prahlad Singh. This application was moved by the Public Prosecutor when this fact came to his knowledge that the medical report of Prahlad Singh was on record, yet it was not produced. The application contained no reasons as to why the same was not produced at the time when the trial was conducted. Further, when the medical report of PW/1 Prahlad Singh was required to be produced, as to why the prosecution has not chosen to produce the evidence regarding the injuries to the accused. In this background, this court feels that no permission can be granted to the production to reopen the case to till up the gap which the prosecution feels should be filled up this stage because merely, production of injury report of Prahlad Singh would not serve the objective of the justice. If at all the medical reports were to be brought on record, then, the prosecution should have considered the aspect of bringing the medical evidence of other accused also. Thus, the application filed by the prosecution to produce the additional evidence is rejected.
26. During the course of hearing, the controversy, regarding the inability and invalidity of accused Our deep Singh was the bone of contention. He was summoned from jail and he was examined and it was found that he is a physically invalid and mentally retarded person. In the aforesaid background and findings of he trial Court, we have to judge as to whether the findings can be sustained on the1 basis of the evidence available on record. We have carefully read the evidence recorded at the trial and examined the value of the prosecution and the defence version.
27. What stands out prominently in the instant case is that the learned trial Court has not believed the prosecution version qua the accused Amreek Kaur. The trial Judge has not further believed the prosecution story about the common object being formed by all the accused persons. Therefore, the offences u/s 147 & 148 I.P.C. was not held to be proved, so also the conviction u/s 302 I.P.C. was not done with the aid of 149 I.P.C. The trial Judge has also not believed the prosecution case qua the injuries to the other persons and therefore, the charges u/s 307 I.P.C. and 322 I.P.C. have not been also proved. The trial Court has also not recorded any finding regarding sharing of common intention by the convicted accused persons. It has been considered appropriate by the learned Trial Judge to convict the accused appellants with the aid of Section 34 I.P.C. If the narration of the prosecution witnesses is considered, then what stands prominently is that there is no witness who has deposed correctly about the weapons being possessed by the accused persons. The witnesses have prevaricated on this count. An eye-witness is expected to tell correctly as to what weapon was possessed by a particular accused. May be that it is not humanly possible to count the actual number of injuries inflicted by a particular accused to the exactness but then, what weapon was used by a particular accused, which particular injury if not all. inflicted by an individual accused. Except injury on the person of Prahlad Singh by axe, there is generally no particularization of injuries. Qua the injury of Prahlad Singh, the prosecution case has been disbelieved by the trial Judge. In absence of particularization of the weapons, infliction of injuries by the accused persons becomes a subject matter which requires a close scrutiny.
28. The trial Judge has himself discarded the story of a common object. Arriving at a common intention has not been categorically found by the trial Judge. In this background, it is to be seen whether individual acts of assault can be traced to the individual accused qua the deceased. The witnesses are unanimous that part of the beating which resulted into death of the deceased took place inside the four walls of the house of the accused. Thus, there was no witness who had seen the infliction of injuries by any of the accused on any particular portion of the deceased. This leaves us to consider the story of the prosecution which gives narration about the infliction of injuries at the bus-stand.
29. The prosecution witnesses have staled that while they came home after picking the cotton at the field and they were deloading the harvest from the cart, they heard the cries of their father. The cries are alleged to have been heard from a distance of 4-5 Murabbas. Ordinarily, at a distance of 4-5 Murabbas, which is at a distance more than 500 feet, one would not expect a person to identify the voice of a person being beaten, when the person claiming to identify the voice alleges that he was engaged in his agricultural job. When the job alleged to have been performed by the witnesses is considered, sufficient detraction of concentration of the witnesses was there. Witnesses claim to have identified the voice of the deceased. This is to be examined observing the words spoken by the individual witnesses. There is no similarity in the expressions made by them of their perception of sound heard by them. If we look at the statement of different witnesses, it will show as to what they have stated; PW/I Prahlad Singh states that he heard his father saying "Mardiya Mardiya, Chhudao". PW/2 Balkar Singh states "Hai Marta, Hai Marta. PW/3 Pritam Singh states that the deceased was crying "Mujhe Chudao, Muje Chhudao". PW/4 Smt. Rajendra Kaur has stated that she heard hear husband saying "Mar raha boon. Mar raha Hoon. Mujhe Chhudao".
30. There is the variance in the statement of witnesses about the cries of the deceased as narrated by four eye-witnesses. If we try to find out some similarities, then they are not available. This variance leaves us to disbelieve the testimony of the eye-witnesses. Four persons of a family are there and they are allegedly faced with five accused persons, one of them being pregnant of eight months old, other one being a physically invalid persons, other one being a juvenile and not to mention an old lady, leaving behind only one formidable opponent Richpal Singh. If he was the only one then. PW/''l, PW/2 & PW/4 would certainly have been in a position to rescue of deceased. But converse has been deposed by the prosecution witnesses. PW/1 Prahlad Singh had sustained injuries during the course of fight. His injuries have not been proved. May be with a design that if his injuries during the course of fight. His injuries have not been proved. May be with a design that if his injuries are proved, then scope is always available for a question to be raised that if one witness could be caused harm, why were other witnesses spared. Naturally, animosity was not only with Jarnail Singh, this was with whole family. Thus, a grey area prominently surfaces in the prosecution case.
31. The dead body was recovered in the house of the accused persons. From the bus-stand the deceased was alleged to have been carried in a cart. Admittedly, in the beginning, no cart was shown to have been present at the scene of occurrence. There is no explanation in the prosecution story as-to how the cart appeared. Learned Trial Judge has tried to nullify this proposition by saying that the defence has also not stated anything about the cart and no explanation have come in the statement u/s 313 Cr. P C. The approach of the trial court appears to be mistaken. The initial burden is on the prosecution. The prosecution has failed to discharge its burden. It has not been established that the cart was handy to the accused person. Therefore, if the accused persons are asked for explanation regarding cart, then it is against the criminal jurisprudence in this country. After a fact is established, may the accused is required to explain certain circumstances, that too not always. Therefore, the trial Court was not correct when it brushed aside this non-explanation of use of cart by the prosecution. Because the accused have failed to give any explanation. Nothing can be made out against the accused.
32. One of the accused persons have been found to be not involved by the trial Judge. The physical condition of the accused Gurdeep Singh was assessed by the Court by summoning him in the court in the presence of the parties. His mental ability was judged by asking questions. He was found to be mentally retarded and physically invalid. A person who has been admitted by the prosecution witnesses to be an invalid but not accepted his position in right earnestness, an attempt was made by the court by calling him in the court to judge his capacity. The trial Court has also found that Gurdeep Singh was invalid. In this background, we are persuaded to hold that participation of Gurdeep Singh have also not been correctly found by the trial Court. Hey/as incapable of taking part in commission of crime. Thus, one accused person has been left by the trial Court and other is found by us of small assistance for causing physical violence to anybody and sharing common intention. He is one of the appellants. This leaves us with three accused persons, as one has during the trial, one is being dealt with by the Juvenile court and we are left to decide the fate of only one accused Richpal Singh in this appeal.
33. PW/I Prahlad Singh in his statement has stated that when he reached at the bus-stand, after hearing the cries of his father, he saw the accused persons with various weapons in which Richpal Singh had a Barchi and other had lathi. He has stated that "Barchi"'' is also called "Barcha'' and ''Bhala''. This witness has alleged that Richpal Singh had given a Barchi blow on his shoulder for which Richpal Singh has been acquitted. In his entire statement, there is no narration which speaks of a particular injury being inflicted by Richpal Singh to the deceased. If Section 34 I.P.C. cannot be invoked for which there is no finding of the trial Court, there is no fatal injury attributed to accused Richpal Singh by any witnesses.
34. Another witness PW/2 Balkar Singh also speaks of an injury by Richpal Singh to Prahlad Singh. On this count, the story of prosecution has not been relied by the trial Court. No particular injury to the deceased has been attributed by this witness to Richhpal Singh.
35. PW/3 Pritam Singh makes omnibus statement and he is 75 years old infirm person. As far as his eye sight is concerned, he has claimed that he was not wearing spects at he time when the incident occurred and without spects, he is incapable of seeking at a distance of 500 feet.
36. PW/4.Rajendra Kaur also speaks to participation of accused persons but particularization is not there. Thus, about beginning of the story, the statements as narrated by the prosecution witnesses show a shaky character. None of the witnesses have been shown the courage of describing the actual participation of any of the accused persons. The common object has not been found to have formed. No finding of common intention, was attributable to the accused persons. About common intention, sufficient evidence e is not available on record. Thus, the conviction with aid of Section 35 I.P.C. does not appear to be a probable proposition where, any accused have already been acquitted on the same kind of evidence by the trial Court. Participation of other accused person Gurdeep Singh is found to be improbable by us. In this background, we do not think that conviction can be sustained with the aid of Section 34 I.P.C. If Section 34 I.P.C. is not pressed into service, individual participation of none of the accused has been deposed by any of the prosecution witnesses. In this background it is not possible to attribute any particular injury, much less fatal injury to any of the accused persons. In absence of such evidence, it is not safe to convict the accused persons for an offence of murder simplicitor.
37. That being the position, the prosecution evidence is not sufficient to give an, indication that any one of the accused persons can be held guilty for murdering the deceased and in absence of such material on record, it would be difficult for us to sustain the conviction and sentence recorded by the trial Court because the story of causing any injury which proved fatal is not available on record. The story of cart has not been sufficiently established by the prosecution. Therefore, conviction of the accused persons u/s 302 I.P.C. and 364 I.P.C. with the aid of Section 34 I.P.C. cannot be held to be proved beyond reasonable doubt. The shadow looms large on the prosecution case because the prosecution case is full of improbabilities and there is no convincing picture emerging out of the prosecution narration. In this view of the matter, we feel that would not been safe to convict the accused persons.
38. In the result, the appeal is accepted. We set aside the conviction and sentence recorded against the accused appellants and hold that they cannot be held guilty in the light of the evidence adduced by the prosecution. They are entitled to be given the benefit of doubt. Consequently, their appeal is allowed. Their conviction and sentence are set aside. They are acquitted of the charges levelled against them. They are not required to serve out the sentence awarded to them. If not required in any other case, they may be released forthwith.
