GOVINDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) CHALLENGE in these appeals is to the judgment dated July 2, 2002 of the learned Additional Sessions Judge Dausa whereby Govinda, Meetha Lal and Manphool, the appellants before us, were convicted under section 302/34 IPC to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer three months rigorous imprisonment.

(2.) IT is the prosecution case that on July 8, 1997 at 11 AM a written report (Ex. P-8) was handed over by Moolya (Pw. 6) at the Police Station Nangal Rajawatan District Dausa wherein it was stated that dead body of Kanhaiya was lying near Jansi's Thadi (small shop ). On that report a case under section 302 IPC was registered and investigation commenced. Dead body of Kanhaiya was subjected to autopsy, statements of witnesses under section 161 Crpc were recorded, necessary memos were drawn, the appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Dausa. Charges under sections 302/34 and 201 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 26 witnesses and exhibited 23 documents. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. On hearing final submissions learned trial Judge convicted and sentenced the appellants as indicated herein above.

(3.) LAW in regard to appreciation of evidence of chance witnesses is well settled in Ismail vs. Momin (AIR 1941 Privi Council 11) it was held that though the chance witness is not necessarily a false witness, is proverbially rash to act upon such evidence. In the case of a chance witness, if that witness gives sufficient reasons for his presence, that evidence can be accepted. In Baldev Singh vs. State of MP (2003)9 SCC 45, where chance witness failed to assign any convincing reason for being at the place of incident at that abnormal hour of the day in full summer the Apex Court held that testimony of such witnesses could not be relied upon. The expression `chance witness' is borrowed from the countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. In the instant case since the prosecution witnesses have failed to assign any convincing reason about their presence at the place of incident, we find their testimony highly unbelievable. As already noticed some of the witnesses recognised the appellants from their voices and some gave parrot like narration of the incident that the appellants were giving beating to the deceased. It is difficult to believe that in the dark night they possibly could see the incident.