GANPAT SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The three appellants before us were tried by the Additional Sessions judge, Udaipur for the murder of one Satya Prakash on 12/12/1990 in furtherance of their common intention. The trial court convicted and sentenced them for the above offence and the High court affirmed the same in their appeal. Hence this appeal at the instance of the appellants.

(2.) Though the prosecution examined as many as six eyewitnesses to prove the accusation levelled against the appellants all of them except one, namely, Girdhar Gopal (Public witness 1, turned hostile. Relying upon the evidence of pw 1 and the medical evidence which corroborated him the learned courts below recorded their respective findings against the appellants.

(3.) Having carefully gone through the record we are unable to sustain the above concurrent findings in view of the fact that the evidence of Mohal Lal (PW 10, which materially impinges on the evidence of the sole eyewitness, namely, Public Witness 1 was not considered by the learned courts below from a proper perspective. Admittedly, Public Witness 1 did not know the three appellants from before and, therefore, to corroborate his identification in court of the three appellants as the miscreants, the prosecution relied upon his identification of them in a test identification parade held by a Magistrate during investigation. However, the evidence of Public Witness 1 regarding his identification of the appellants in the identification parade loses all its importance and value in view of the evidence of Public Witness 10, the driver of the tempo in which the prosecution claimed the appellants ran away after committing the murder. While supporting the case of the prosecution to the extent that he carried three persons in his tempo from the place where the murder was committed on that fateful night, he stated that he could not identify them due to darkness. In the cross- examination he stated that he, along with Girdhar Gopal (Public witness 1 and two others, were taken to the police station where three persons were kept detained and that they were asked by the police officers to identify them in jail. It is not in dispute that those three persons were the appellants; and when they were shown to Public Witness 1 who later identified them in the parade no reliance can be placed on such identification and consequently the evidence of Public Witness 1 regarding identification of the appellants in court after one year cannot also be safely relied upon. Incidentally it may be mentioned that the prosecution did not treat Public Witness 10 as hostile. In view of the evidence of Public Witness 10 the appellants are entitled to the benefit of reasonable doubt.