SAXENA, J. - (1.) THESE appeals have been directed against the judgment dated 15. 9. 87 passed by learned Additional Sessions Judge No. 1, Hanumangarh, whereby, he found appellants Gora Singh and his wife Smt. Manjeet Kaur Alias Mummy guilty of the offences under Sections 302/34 & 404 I. P. C. and sentenced each of them to life imprisonment and a fine of Rs. 100/- in default to further undergo simple imprisonment for 15 days under the first count and to three years rigorous imprisonment and a fine of Rs. 100/- in default to further undergo 15 days simple imprisonment for the second offence and also directed that both the substantiate sentences shall run concurrently.
(2.) SINCE aforesaid appeals arise out of a common judgment, these are being together by this common judgment. The facts necessary for the disposal of these appeals are short and simple and can be recapitulated within a narrow compass. The prosecution story is that appellants Smt. Manjeet Kaur Alias Mummy along with her husband appellant Gora Singh was staying in the house of her maternal-uncle deceased Chimmanlal in Sadulshahar about 10 days prior to alleged incident, which occurred on the night intervening 11th & 12th August 1982. It is the case of the prosecution that on that fateful night Chimmanlal was sleeping on a cot along with his son P. W. 7, Kala Singh aged about 7-8 years and daughter Rani alias Guddi aged about 3 years in the court yard @ Bakhal) of his house. Appellants were also sleeping on different cots nearly. At about 4. 00-4. 30 A. M. , P. W.-3, Suchha Singh, who is the brother of deceased. Chimman Lal and was sleeping in his house situated on the northern side of the road at a distance of 30 Ft, heard the screams of Kala Singh and Guddi. Shortly thereafter Kala Singh also came to Suchha Singh and informed him that blood was oozing out from head of his father Chimmanlal and that the latter was not speaking. Thereupon, Suchha Singh rushed towards the house of Chimmanlal. It is alleged that at that time, he saw appellants Gora Singh and Manjeet Kaur going on a cycle along with their daughter. Suchha Singh asked them to slop, but they went away. Suchha Singh went to the house of Chimmanlal and found that letters dead-body was lying in a pool of blood due to injuries sustained on his head. It is alleged that at that point of time, Kala Singh told Suchha Singh that appellants Gora Singh and Manjeet Kaur Alias Mummy had inflicted injuries to his father. On a search of articles made by Suchha Singh, it transpired that one tape-recorder, one wrist watch and a shirt of the deceased were missing. Suchha Singh lodged an oral report on 12. 8. 82 at 6. 00 A. M. , at Police Station Sadul Shahar. P. W.-3, Abdul Aziz, S. H. O. , reduced the same in writing vide FIR Ex. P/4. Shri Abdul Aziz inspected the site and prepared site plan Ex. P. 6 and its memos Ex. P. 2a. He did not find any foot-prints at the place of occurrence. However one black leather boot and one pair of Sandles of a child were found lying near the cot of the deceased. One blood- stained 'ghota' (a wooden stick)' about 2 1/2 feet in length was also found lying near that cot. Shri Abdul Aziz seized and sealed that wooden Ghota, leather-boot and pair of sandles view seizure memos Ex. P/7 and Ex. P/8 respectively. One pair of shoes of the deceased was also seized vide seizure memo Ex. P/9. The Investigation Officer also seized and sealed a sample of the blood stained soil and the control sample vide seizure memo Ex. P/10. The blood stained Dari was also seized by the Investigation Officer vide seizure memo Ex. P/12. P. W.-l, Dr. S. N. Goyal, conducted the post mortem examination of the dead body of Chimmanlal on 12. 8. 82 at 9. 45 A. M. He found two incised wounds causing fractures to right parietal and right frontal bones, severely damaging meanings and brain tissues. He also noticed two lacerated wounds on the right eye-brow severely damaging the right eye and right side of face, one contusion on the right maxillary region causing fractures. The doctor opined that cause of death was due to brain injury and that death had occurred within 24 hours of post-mortem examination. Appellants could not be apprehended and as such the Investigation Officer submitted a charge-sheet on 31. 12. 1982 against them under section 299 Cr. P. C. in the court of Munsif & Judicial Magistrate, Shri Ganganagar, who committed the case. The learned Addl. Sessions Judge, Sri Ganganagar, recorded the statements of prosecution witnesses under Sec. 299 Cr. P. C. In April, 1986 appellants were arrested under Sec. 109 Cr. P. C. and when they were released on bail, they were arrested in this case on 17. 4. 86 vide arrest memos P/2 & P/3. However, no recovery was made at their instance and after further investigation an supplementary charge-sheet was filed against them. The learned trial Judge framed charges for the offences under Sections 302/34 & 404 IPC against the appellants, who pleaded not guilty and claimed trial. During trial the Public Prosecutor submitted an application for examining Kala Singh, the alleged sole eye witness, who was previously not cited as a prosecution witness in the charge sheets. The trial Judge allowed that application and examined Kala Singh as P. W.-7. The prosecution examined 7 witnesses. The appellants in their plea recorded under section 313 Cr. P. C. denied all the circumstances appearing against them. However they did not examine any witness in defence. The learned trial Judge relied on the testimony of P. W. 7, Kala Singh, a child witness and held that his testimony was duly corroborated by the testimony of P. W.-6 Suchha Singh. He accordingly by his impugned judgment found appellants guilty and sentenced them in the manner detailed ad ultra. Hence this appeal. We have heard Shri H. S. Kharlia, the learned counsel for the appellant and Shri Vishal Raj Mehta, learned Public Prosecutor at length and carefully perused the record of the lower court in extenso.
(3.) SHRI Kharlia has strenuously contended that the Investigation Officer had neither examined Kala Singh, the alleged sole- eye-witness under Sec. 161 Cr. P. C, nor his name was included as a prosecution witnesses in the calendar of witness. Even in the supplementary charge-sheet, Kala Singh was not listed as a prosecution witness. At the time of alleged incident, the age of Kala Singh was hardly 6-7 years and that was examined by the court on 19. 5. 87 i. e. after 4 years and 9 months of the first time. According to him, since Kala Singh was not examined under sec. 161 Cr. P. C. a valuable right of the appellants to test his veracity by cross-examining and confronting him with his previous statement has been snatched away, which has caused great prejudice to them. On the other hand Kala Singh has stated that he had gone to the Police Station immediately after the incident and that he was examined by the police and that his thumb impressions were also taken. He has submitted that as per statement of Kala Singh the latter was sleeping along with his sister Guddi by the side of his father deceased Chimmanlal on the same court, but surprisingly no stains of blood were found on his clothes. He has further submitted that as per testimony of Kala Singh at the time of alleged incident, it was a dark-night and, therefore, it was not at all possible for him to have seen the appellants inflicting injuries to the deceased. On the cries raised by Kala Singh, neighbors Krishan & Ram Krishan had come on the shot, but Ram Krishan has not been produced by the prosecution and P. W. 4 Kishan Lal, has not corroborated the testimony of Kala Singh on this count. SHRI Kharalia has argued that due to darkness, it was also not possible for P. W.-6, Suchha Singh, to have seen and identified the appellants going on a cycle at a distance above 30 feet. SHRI Kharalia has also asserted that FIR Ex. P/4 is a post investigation document, which was scribed later on and sent to the Magistrate as late as on 13. 8. 82, after completion of the investigation. According to him the learned trial Judge has mis-read the evidence and committed an illegality in convicting the appellants on the basis of surmises and conjectures and, as such their conviction cannot be sustained. On the other hand, Shri V. R. Mehta, the learned Public Prosecutor has reiterated the reasoning given by the learned Trial Judge and supported the impugned judgment. We have bestowed our anxious and careful consideration to the rival contentions. The whole case hinges on the testimony of alleged eye-witness Kala Singh. As per observations made by the learned trial Judge, on the date of his examination i. e. 19. 5. 87, the age of P. W. 7 Kala Singh was above 13-14 years. Thus at the time of alleged incident his age was above 8-9 years. However P. W.-6, Suchha Singh, in his statement dated 1. 11. 1985 recorded by the learned Addl. Sessions Judge, Sri Ganganagar under sec. 299 Cr. P. C. had deposed that at the time of alleged incident the age of Kala Singh was 5 years. Be that as it may, the age of Kala Singh at the time of alleged incident was above 8-9 years only. It is true that his name finds mention in the FIR Ex. P/4, but it is surprising to note that PW-3, Abdul Aziz, Investigation Officer, did neither care to examine this witness under Sec. 161 Cr. P. C. nor got his statements recorded by a Magistrate under section 164 Cr. P. C. Since Kala Singh was the sole alleged eye- witness, he was the most material witness. It was the bounden duty of the Investigation Officer to have recorded his statement under sec. 161 Cr. P. C. or produced him before a Magistrate for recording his statement under Sec. 164 Cr. P. C. This is also an admitted fact that the Investigation Officer did not cite him as a prosecution witness either in the charge-sheet filed under Sec. 299 Cr. P. C. or in the supplementary charge-sheet filed on 30. 4. 86 after the arrest of the appellant. ;