STATE OF RAJASTHAN Vs. POONAM SINGH & ANR.

JUDGEMENT

(1.) The Appellant Poonam Singh in the latter Appeal stands convicted to life imprisonment under Section 302 I.P.C. with fine of Rs. 2,000/-, in the event of failure to pay which he was required to undergo six months further rigorous imprisonment while seven other accused including one Anoop Singh S/o Takhat Singh have been acquitted by the same judgment of the Additional Sessions judge No. 1, Jodhpur (Camp Jaisalmer) in Sessions Trial No. 3/1984 by judgment dated 24.8.1984. The acquittal is questioned by the State in the former appeal. During the pendency of the appeal, with the exception of Anoop Singh the six other accused have all expired. The appeal therefore stands abated against them.

(2.) The prosecution story is that in the intervening night of 29.7.1983/30.7.1983 the deceased - Padam Singh was sleeping in the house of his uncle Peerdan Singh when Poonam Singh, Anoop Singh, Gordhan Singh and Tar Singh are alleged to have entered about 2:00 - 3:00 am and assaulted him fatally causing immediate death. Gordhan Singh and Tar Singh are said to have returned the next morning and taken away the body of the deceased and burnt it, because of which no post-mortem could be held. PW-1 Dungar Singh, a co-villager lodged the F.I.R , Exhibit P 1 on basis of hearsay as the Police Station was 40kms away. Charges were framed against all the eight accused under Sections 120-B, 302/120 B and 201 I.P.C.

(3.) Learned Counsel appearing for Poonam Singh and Anoop Singh submitted that the occurrence took place at the dead of night in complete darkness. No prosecution witness has stated regarding any source of light. PW-5 Smt. Puri, wife of the deceased is said to have witnessed the occurrence from a distanced of approximately 22 feet. PW-4 Smt. Sita, aunt of the deceased, in cross-examination spoke of a dust storm at night. Visibility obviously would have been impaired because of blowing sand. Identification therefore was not possible with certainty from such distance in the facts. The area where the assault took place was separated by 6 feet wall from where the two witnesses were sleeping, Vision above that height was not possible. No specific statement has been made by the two eye-witnesses which of the accused assaulted on what part of the body of the deceased causing which injury. The conduct of PW-5, Smt. Puri wife of the deceased in not having rushed to the aid of her husband to prevent assault or protect him is highly unnatural affecting the credibility of her evidence. The natural reaction should have been to rush to the deceased in order to save him and not go back inside the house to wake up and call PW-4, Smt. Sita. Reliance has been placed on JT 2009 (14) SC 156 State of Rajasthan v. Mohan Lal aril Ors. The witness was not reliable as in her police statement she spoke of the presence of Tar Singh but denied having said so in her Court statement.