N.N.MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 16.5.1980 passed by the Addl. Sessions Judge, Bhilwara convicting the appellant Sharvan Singh of offence u/s 302 I.P.C. and sentenced to imprisonment for life and to pay a find of Rs. 200/ - in default of payment to further undergo two months rigorous imprisonment. He has also been convicted for the offence u/s 201 I.P.C.
(2.) THE prosecution case as set out during the trial is that the accused Sharwan Singh (herein after referred to as the appellant) lodged a first information report at P.S. Mandal on 01.12.1979 at 9.00 A.M. stating inter alia that he was a second driver on truck No. PUI 8992 alongwith first driver deceased Avtar Singh. At about 3:15 A.M. on a call of a girl the first driver of the truck Avtar Singh got down from the truck and proceeded towards her. He did not return for about 20 minutes inspite of horn given by him. Suspecting some foul, he awaked Mukhtiar Singh, Khalasi of the truck. In the morning he alongwith Mukhtiar Singh went in search of him. They found the dead body of Avtar Singh near a bamboo tree in the field. He was killed by strangulation. On this information, police registered a case for offence u/s 302 I.P.C. and proceeded with the investigation. During investigation on 2.12.1979 PW/1 Mukhtiar Singh gave a statement before the police that Avtar Singh was killed by none else but the second driver Sharwan Singh. On the basis of statement of Mukhtiar Singh, the accused Sharwan Singh was arrested on 6.12.1979. After usual investigation, police laid a charge sheet against the accused appellant for offences under Sections 302 and 201 I.P.C. The accused appellant denied the charge and claimed trial. During the trial, prosecution examined as many as 9 witnesses. In the statement u/s 313 of Code of Criminal Procedure, the appellant repeated the story as given by him in F.I.R. In addition he stated that after the postmortem of the dead body of Avtar Singh, police wanted to bury the body but he collected a sum of Rs. 2000/ - from other drivers and made arrangement to send the dead body to Punjab. He also informed the owner of the truck. He was not allowed to go to Punjab by the police. He further stated that the police had given severe beating to him and the Khalasi. The trial court relying on the testimony of PW/1 Mukhtiar Singh and other circumstantial evidence held him guilty of murder of Avtar Singh. Accordingly, the learned Judge convicted him for the offence u/s 302 I.P.C. and sentenced as mentioned above.
(3.) ASSAILING the judgment of conviction, it is argued by Mr. Kamlesh Sharma, learned Counsel for the appellant that the statement of PW/1 Mukhtiar Singh is not trustworthy. It is submitted that the omission on the part of Mukhtiar Singh, not to disclose the name of the accused at the earliest is fatal to the prosecution. He has also submitted that the statement of Mukhtiar Singh was not recorded on 02.12.1979 as alleged by the prosecution but in fact it was recorded on 6.12.1979. Learned counsel has also pointed out serious infirmities in the statement of PW/1 Mukhtiar Singh. Mr. Sharma has also criticised the recovery of the currency note of Rs. 450/ - and bank passbook on the ground that before the recovery, the truck was already given in possession to PW/7 Gulshan, the owner of the truck. On the other hand, learned Public Prosecutor has supported the judgment of the trial court.;