GORA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE appeals have been directed against the judgment dated 15. 9. 87 passed by learned Additional Sessions Judge No. 1, Hanumangarh, whereby, he found appellants Gora Singh and his wife Smt. Manjeet Kaur Alias Mummy guilty of the offences under Sections 302/34 & 404 I. P. C. and sentenced each of them to life imprisonment and a fine of Rs. 100/- in default to further undergo simple imprisonment for 15 days under the first count and to three years rigorous imprisonment and a fine of Rs. 100/- in default to further undergo 15 days simple imprisonment for the second offence and also directed that both the substantiate sentences shall run concurrently.

(2.) SINCE aforesaid appeals arise out of a common judgment, these are being together by this common judgment.

(3.) SHRI Kharlia has strenuously contended that the Investigation Officer had neither examined Kala Singh, the alleged sole- eye-witness under Sec. 161 Cr. P. C, nor his name was included as a prosecution witnesses in the calendar of witness. Even in the supplementary charge-sheet, Kala Singh was not listed as a prosecution witness. At the time of alleged incident, the age of Kala Singh was hardly 6-7 years and that was examined by the court on 19. 5. 87 i. e. after 4 years and 9 months of the first time. According to him, since Kala Singh was not examined under sec. 161 Cr. P. C. a valuable right of the appellants to test his veracity by cross-examining and confronting him with his previous statement has been snatched away, which has caused great prejudice to them. On the other hand Kala Singh has stated that he had gone to the Police Station immediately after the incident and that he was examined by the police and that his thumb impressions were also taken. He has submitted that as per statement of Kala Singh the latter was sleeping along with his sister Guddi by the side of his father deceased Chimmanlal on the same court, but surprisingly no stains of blood were found on his clothes. He has further submitted that as per testimony of Kala Singh at the time of alleged incident, it was a dark-night and, therefore, it was not at all possible for him to have seen the appellants inflicting injuries to the deceased. On the cries raised by Kala Singh, neighbors Krishan & Ram Krishan had come on the shot, but Ram Krishan has not been produced by the prosecution and P. W. 4 Kishan Lal, has not corroborated the testimony of Kala Singh on this count. SHRI Kharalia has argued that due to darkness, it was also not possible for P. W.-6, Suchha Singh, to have seen and identified the appellants going on a cycle at a distance above 30 feet. SHRI Kharalia has also asserted that FIR Ex. P/4 is a post investigation document, which was scribed later on and sent to the Magistrate as late as on 13. 8. 82, after completion of the investigation. According to him the learned trial Judge has mis-read the evidence and committed an illegality in convicting the appellants on the basis of surmises and conjectures and, as such their conviction cannot be sustained.