T.N.SINGH, J. - (1.)Each of the two appellants has filed separately appeal from Jail challenging his conviction and sentence. They are uterine brothers and are convicted for the murder of their step-brother Rajaram, under Ss.302/34, I.P.C. and sentenced to R.I. for life.
(2.)The occurrence took place, as per F.I.R., on the mid-night of 20th/21st December, 1982 in the field at a distance of 10 K.Ms. from the Police Station. However, the F.I.R. came to be lodged next day at around 11.30 a.m. by P.W. 2, Raghuweer, brother to the deceased and step-brother to the accused/appellants. Besides the informant Raghuweer and deceased Rajram's son (P.W. 1), their common father Mannu (P.W. 7) was I examined and his son P.W. 3, Hajrat, another uterine brother to the deceased and P.W. 2 was also examined. However, the star witness in the case is the child Ramkumar, examined as P.W. 1 who would be about five years of age at the time of occurrence. It is prosecution's case that he was sleeping in the fields with his father, the deceased, when the occurrence took place and that he ran home and informed others of the occurrence. It is also prosecution's case that the dying man made oral declarations before some of the witnesses examined at the trial. However admittedly, despite the appellants, being named in the F.I.R., they were arrested by the I.O. (P.W. 14), according to his evidence, six days after the occurrence. He also proved some recoveries, but those have been discarded and disbelieved by the trial Court.
(3.)Obviously, appellants' conviction was based on the oral dying declarations and the evidence of the child witness, but what did not weigh with the trial Court, while that is of signal relevance according to us, is the fact that the prosecution did not examine Phulia (alias Phundia), wife of P.W. Mannu, though she was a charge-sheeted witness. Indeed, no explanation also appears in the evidence of I.O. for that serious lapse. That she was an important and pivotal witness is established on the evidence of other witnesses inasmuch on the evidence of the child (P.W. 1), it was she to whom the, child first reported the occurrence and she could have accordingly unfolded truly and faithfully the prosecution story. Indeed, without her evidence, the defence was deprived of the opportunity to test the veracity of P.W. 1. This important and crucial lapse apart, the other serious lapse which has impaired the fairness of the prosecution is lack of any explanation for belated arrest of the appellants.