SINGH, J. - (1.) THIS appeal has been filed u/sec. 374 Cr. P. C. by accused appellant Jagdish alias Tempu against the he judgment dated 13. 7. 1998 passed by Additional Sessions Judge No. 1, Hanumangarh in Sessions Case No. 21/97 (15/97) by which he has been convicted u/s. 302 IPC and sentenced to life imprisonment with a fine of Rs. 1000/- and in default to further undergo six months' rigorous imprisonment.
(2.) CHARGES against the accused appellant were that at about half past 3. 00 P. M. on 23. 9. 1996 in village Rampuria under police station Tibi District Hanumangarh in his own residential house accused appellant Jagdish alias Tempu murdered his wife Sayara, his five years' old son Salim and him 2-1/2 years' old daughter Bala by burning them through kerosene oil. Accused appellant pleaded not guilty and claimed trial, therefore, prosecution examined 10 witnesses and exhibited 28 documents in support thereof. Accused appellant in statement given u/sec. 313 Cr. P. C. denied all the incriminating evidence appearing against him and made a specific plea that on the day of occurrence he was not available at his house and has been roped in falsely. In defense Daya Kishan, Dharampal, Brijlal and Balram were examined. Thereafter the learned trial court convicted and sentenced the accused appellant as stated above by mainly relying upon PW-1 Jalaluddin and PW-2 Sharif who are allegedly eye witnesses of the occurrence whose presence on the site was found proved by the trial court. Mr. Kharlia, learned counsel for the appellant assailed the impugned judgment mainly on the ground that PW-1 Jalaluddin and PW-2 Sharif were the brothers of deceased and were residents of Burwali situated at a distance of about 19 kms. from the place of occurrence. Their presence at the time of occurrence at the site was not possible and that one Daya Kishan informed police station Tibi on phone about the occurrence at 4. 20 P. M. and a wireless message was sent from there to police station Nohar where village Rampuria is situated and the latter informed Jalaluddin and Sharif about the occurrence and lodged written FIR Ex. P/1 at 6. 30 P. M. Learned counsel also submitted before us that there were extensive and material contradictions between the testimony of PW-1 jalaluddin and PW-2 Sharif. Similarly, was the case with PW- 3 Ranjit and PW-8 Bismilla. Had they been the eye witnesses of the occurrence their names should have appeared in the FIR. On the contrary, learned Public Prosecutor has supported the impugned judgment. We have carefully considered the rival contentions.
(3.) IT is an admitted fact that PW-1 jalaluddin, PW-2 Sharif and PW-3 Ranjit are the brothers of the deceased and PW-8 Bismilla is sister of deceased. PW-8 Bismilla was resident of Rampuria. Had she been present on the site atleast her name should have appeared in FIR Ex. P/1. Similarly, had PW-1 Jalaluddin and PW-2 Sharif were on the site at 3. 30 P. M. , when the occurrence took place the FIR should have been lodged immediately thereafter, why should they wait on the site for the police to come there and thereafter lodged the report Ex. P/1. Even assuming that Ex. P/1 was handed over to the Station House Officer at site at 6. 30 P. M. the same should have reached to police station Tibi at the earliest opportunity for registering the FIR. But the perusal of FIR Ex. P/1 indicates that it reached at 8. 00 P. M. in the police station. No cause for the delay worth the name was mentioned either by the prosecution witnesses or in the FIR Ex. P/1 itself. Similarly, if the FIR was registered on 23. 9. 1996 at 8. 00 P. M. its copy should have been immediately sent to the Magistrate whose residence was in Tibi itself and within a radius of one kilometer. The copy of FIR was sent to the Magistrate on 24. 9. 1996 at 12. 30 P. M. No reasonable explanation of this delay has come from the prosecution witnesses. Inspite of above infirmities the trial court has not dealt with this important aspect of the matter even the slightest. Even assuming that because of the above delay prosecution case cannot be thrown over board, we have proceeded to analyse, assess, scan and scrutinise the prosecution evidence with regard to its credibility. The Apex Court in a catina of judgments had held that norms how the testimony of a witness is to be tested. Wen a witness is interested being relative witness of inimical towards defense or a chance witness the evidence of such a witness has to be scrutinised carefully and keeping in view the surrounding circumstances and human probabilities. In Bahal Singh vs. State of Haryana (1), which was subsequently followed by a number of decisions the Apex Court held that if by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness and if such a person happens to be a relative or friend of the victim or inimical disposed towards accused, then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does requires cautions and close scrutiny. Keeping in view the above norms in mind we are proceeding to assess and analyse the credibility of PW-1 Jalaluddin and PW-2 Sharif alongwith PW-3 Ranjit and PW-8 Bismilla. Pw-3 Ranjit and Pw-8 Bismilla has not been named in the FIR Ex. P/1. Had they been present on the place of occurrence at the time it took place, their names should have been incorporated in it. Pw-8 Bismilla was resident of Rampuria, the place where occurrence took place, yet she could not reach on the site and, therefore, was not named in the FIR. However, in the ocular testimony she claimed to be eye witness. Even assuming that her name may not have been inadvertantly mentioned in the FIR she Ex. D/4 as there were material omissions which she for the first time deposed in the court. Pw-8 Bismilla deposed in cross examination that accused appellant Tempu used to harass his wife on the plea of dowry. The above facts was missing in Ex. D/4. She again deposed in the court that about 20-22 days prior to occurrence deceased came to Barwali and also complained against ill- treatment meed out to her by her husband. That fact was also missing in Ex. D/4. She has appellant gave beating to his wife and threw her out of the house. That fact was also missing in Ex. D/4. She has further deposed that parents of the deceased also expressed their anguish o the accused appellant for the ill- treatment given by him to his wife. That fact was also missing Ex. D/4. She has again deposed that deceased came to her house in Rampuria and told her about ill-treatment given to her by her husband, yet that fact was also missing in Ex. D/4. She has again deposed in the court that Ranjit Pw-3 came to her house and disclosed that deceased has told him that let Ranjit take her alongwith him to her maternal house else her husband will kill her. That fact was also missing in Ex. D/4 and only response of this witness was that she narrated all these facts to the police but she does not how it is no mentioned in Ex. D/4. She has again deposed in portion "a" to "b" in Ex. D/4 that thereafter Daya Kishan informed the police station Tibi on phone and police came on the spot. This fact was also denied by this witnesses as having been not told to the Investigating Officer. Pw-9 Sadhu Singh who recorded the police statement has deposed that whatever was stated by Pw-8 Bismilla was written in Ex. D/4 and nothing was withheld from it. He has further deposed that Bismilla was not present at the site. Therefore, keeping in view the afore stated extensive exaggerations made by this witness in the court amounting to contradictions. The credibility of this witness is shaken and she has rightly been disbelieved by the trial court. ;