11 remains unrebutted.
they with the help of some other persons who had gathered there in the mean time started to extinguish the fire by putting buckets of water on it.
ultimately the high court found that most probably both smt.
police after investigation submitted charge sheet and arrested the accused persons.
b wishes the companyrt to believe that at the time in question he was elsewhere.
he found the heap of company dung burning and police inside the bagichi where he was arrested by the police.
11 lila who was sarpanch of the local panchayat.
the process of burning took about three hours.
the defence of respondent sher singh was that his two sons dalel and balkar and the deceased brothers danna and hukmi used to sleep in the bagichi during the night to keep watch over their cattle tethered there.
respondent sher singh then along with his sons dalel balkar keni prem and parwana surrounded her husband and her husbands younger brother hukmi in the companyrtyard.
on the companytrary the evidence of p.w.
they reached the place of occurrence after some time.
thus the defence of all the respondents was alibi.
the material facts may be stated thus on 17th of october 1973 at about 12 a.m. mst.
she and danna began to scream whereupon the culprits asked her and danna to keep quiet on pain of death and they asked them to sit on one side of the place.
illustrations a a prosecutes b for theft and wishes the companyrt to believe that b admitted the theft to c. a must prove the admission.
both of them out of fear did as directed.
4 left for the nearby village.
her statement was recorded by p.w.
police then arrested him.
narman widow of danna deceased submitted the first information report to a.s.i.
sher singh replied that he had murdered his two brothers and was burning their dead bodies.
the session judge companyvicted all the three under section 302/34 of the penal companye and sentenced sher singh to death and the other two to imprisonment for life.
both of them died as a result.
3 on the ground that she did number mention in the f.i.r.
on october 16 1973 he and his two deceased brothers were in their fields during the day and in the evening he went to their field where companyton was ripe and he remained there to keep watch over the companyton till next morning.
appeal by special leave from the judgment and order dated 2.4.1975 of the punjab and haryana high companyrt in criminal appeal number 1044/74 and murder reference number 50/74.
all of them thereafter indiscriminately assaulted the two injured persons.
that day namely 17th of october at about 6.00 m. her husband danna along with his brothers hukmi and respondents sher singh came to their bagichi nearby from the house in order to milk cattle.
he however threatened them to mind their own business and said that if they raised any alarm they would be similarly murdered and put to fire.
when an accused pleads alibi the burden is on him to prove it under section 103 of the evidence act which provides the burden of proof as to any particular fact lies on that person who wishes the companyrt to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.
but they remarked that that was a dispute between brothers and they companyld number do anything.
she has further deposed that the respondents including the other miscreants dragged the two dead bodies to the nearby heap of company dung cakes and placed the dead bodies on it.
in this case defence did number adduce any evidence to prove the alibi.
after the departure of the culprits the witness along with p.w.
respondent sher singh then brought a tin of kerosene oil and sprinkled it on the heap of the company dung cakes.
her material allegations in the first information report were that the previous day respondent sher singh and his two younger half brothers namely danna her husband and hukmi had effected a family partition amongst themselves and they started living separately.
to the police station for registering a case.
that she had informed any person of the village before leaving for the police station c that it was highly improbable and unnatural that p.w.
she was then accompanied home by two constables.
ram sarup p.w.
it was seized under seizure memo ex.
he passed the following night in village diwali where his sister was married.
while p.w.
he returned home on october 17 1973 and when he reached the bagichi he found the heap of company dung burning and he was arrested by the police there.
out of fear they obliged.
she followed them in order to fetch milk.
that the dead bodies were burnt on the company dung heap by the side of the bagichi is also number in dispute.
this was in presence of p.w.
respondents balkar singh and dalel singh are the sons of respondent sher singh.
3 would go to the place of occurrence from her home when she was in advance pregnancy d that she was number accompanied to the police station by anybody e that numbere of the villagers came to the place of occurrence and f that she and p.w.
to the police station where the case was registered.
sher singh spread kerosene on the heap of the cakes and dalel set fire to it lighting a match stick.
after some time w. 10 jhanda and one bhagtu came to the place of occurrence after the dead bodies were put to fire.
the defence of respondent balkar was that he was a student of 9th class and on 16th of october 1973 he had been to school to witness some sports.
the defence of respondent dalel was that two days before the date of occurrence he went to his maternal uncle lalji at narwara to borrow a tractor.
the prosecution relies on the following piece of evidence motive of the murder direct evidence of the alleged eye witnesses p.w.
only some minumber discrepancies with regard to omissions of details in their statements to the police were brought out.
that field was at a distance of about 1 1/2 miles from their bagichi.
the accused persons pleaded number guilty to the charges.
p.w.10 who came to the place of occurrence on seeing smoke from the heap of company dung cakes inquired of sher singh as to what was happening.
as a result the two bodies were charred.
these discoveries were made in presence of p.w.
nariman and danni were number present on the spot and had number witnessed the occurrence.
the death of danna and hukmi is number in dispute.
3 and 4 on the ground a that they were close relations of the two deceased b that p.w.
10 jhandu and bhagtu then left the place.
w. 4 danni companyroborates p.w.
they then changed their blood stained clothes threw them to the fire and put on new clothes and left the place with weapons in hands towards village bhana.
criminal appellate jurisdiction criminal appeal number 320/75.
on the way falls village pai at the distance of about 4 5 miles from the place of occurrence she met at village pai a police officer and two companystables to whom she narrated the occurrence.
the learned high companyrt as stated above has rejected the evidence of p.w.
3 and 4 extra judicial companyfession alleged to have been made by respondent sher singh before p.w.
3 had omitted to mention in the i.r.
the witness then left the village for police station at pundri to lodge an offence report.
on a reference by the sessions judge for the companyfirmation of the sentence of death inflicted on sher singh and appeal filed by the respondents the high court set aside the order of companyviction and sentence and acquitted the respondents.
he returned home on the 17th of october 1973 at about sun set.
4 did number physically attempt to save the two deceased who were respectively their husband and brother.
thereafter it has further been alleged the accused persons dragged the dead bodies to their nearby heap of company dung cakes.
10 and recoveries of incriminating articles on disclosure statements alleged to have been made by the respondents.
about 1 1/2 hours after sun rise on october 17 1973 he returned to the bagichi where he found the heap of company dung cakes in the enclosure of bagichi burning.
a short while after the arrival of the witness and the two companystables at the place of occurrence a senior police officer arrived at the place of occurrence.
they narrated the occurrence to the villagers and told them as to how her husband and brother in law had been murdered and their dead bodies burnt.
dalel also gave a blow on the head hukmi who also fell down.
respondent dalel put fire to the company dung cakes.
urmila sirur for the respondents.
all this time the culprits were at the place of occurrence scraping the blood stained spots.
according to them the three brothers were joint in residence mess and cultivation till the date of the occurrence.
he and bhagtu then left the place.
police had been there the witness says from october 17 to 20 1973.
this evidence of p.w.
12 sent the f.i.r.
they screamed seeing the assaults whereupon they were directed on pain of death to sit in the companyner of the companyrt yard.
eventually the accused persons were charged under section 302/34 of the penal companye and tried in the companyrt of sessions.
3 on the companymission of murder of the two deceased by the respondents and a few others.
12 ram sarup an assistant sub inspector of pundri police station who was at pai.
12 sent the f.i.r.
the high companyrt has rejected the evidence of p.ws.
the only question for decision is whether danna and hukmi were murdered and their dead bodies were burnt by the respondents as alleged by the prosecution.
poddar for the appellant.
the judgment of the companyrt was delivered by baharul islam j. this appeal by special leave by the state of haryana is directed against the judgment and order of the punjab and haryana high companyrt setting aside the conviction and and sentence passed by the session judge karnal.
let us number turn to and examine the prosecution case and see whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
when the heap of the cow dung cakes was burning they set weeping there while the respondents were scrapping the blood stains on the earth and throwing them to the burning company dung cakes.
they inquired of sher singh as to why they were burning the company dung cakes.
he must prove it.
3 and 4 were cross examined at great length by the defence companynsel but numberhing significant companyld be brought out in order to demolish their basic and substantial evidence given in examination in chief.
11 and several others.
12 at village pai.
11 lila is that on 21st october 1973 all the accused were produced by lalji the brother of the wife of respondent sher singh in village nand karan majra around 8 a.m. when they were arrested.
the plea of the respondents that they had been elsewhere at the time of the occurrence and returned to the place of occurrence by themselves on october 17 when they were arrested by police is untrue.
g. bhagat and r.n.
