HONNIAH, C. J. - (1.) AN armed robbery was committed at the house of one Ramchandra, resident of village Dulmehara on the night intervening 20th and 21st of April, 1970. Chunni (P. W. 8), wife of Ramchandra, who was in the house, worke up in the mid-night in order to give water to her cow. Then she saw three persons standing in the 'bada'. She climbed on a ladder and asked those three persons, who they were ? One of them, who was wearing a black pant, and a white shirt aimed with a gun, came near the ladder, caught hold of her and dragged her down and threatened her saying that if she raised hue and cry she would be done to death. Soon thereafter the other two persons, one of whom was wearing a 'khakhi' shirt and having a 'khakhi' 'chaddar', and the other wearing a 'dhoti' and a 'kurta' of 'kismisi' colour, entered the house. One of them dragged her inside the house and assaulted her, as a result of which she sustained an injury on the head. She was threatened not to shout. Then the three persons surrounded Ramchandra and asked him to show them the ornaments, money etc , upon which he replied that the was a poor man and he had none. A? those persons threatened her husband with dire consequences, he pointed out silver ornaments kept under the pillow. Not being satisfied, one of them fired the gun at Ramchandra, as a result of which he sustained an injury and died instantaneously. Then the three persons went away from the house. Thereafter, chunni raised hue and cry, hearing which one Gulam Nabi, Chhote Khan, Allah Rakha, Chhabila Ram (not examined), Rukamdeen (P W. 5) and the other people of the village came running to the house of Ramchandra. Chunni (P W. 8) told these persons that three persons after committing murder of her husband took silver ornaments and ran away crossing the railway track. Rukamdeen (P. W. 5) along with some others went to the railway station at Dulmera, met Assistant Station Master Baldev singh (P. W. 15) at about 1 A. M. and told him that there was robbery in the house of Ramchandra and that a message should be sent to the Police Station. He asked Rukamdeen to give in writing. In the meanwhile five or six person? of the village came there, Rukam Deen handed over the report (Ex, P. 32), to the Station House Officer, Loon-karansar. Jainarain Singh (P. W. 17) received the message at about 1. 30 A. M. He made an entry in the Police Roznamcha. After making the entry, he along with Somdutt (P. W. 16), Head Constable, and four constables left the Police S ation and reached Dulmera by 4 A. M. He found Ramchandra lying dead in his house. He recorded the statement Ex. P. 12 of Chunni. He sent telephonic messages to the Station House Officer, Police Station, Mahajan and to the Station House Officer, G. R. P. Bikaner about the robbery. He then recorded the statement of Rukamdeen (P. W 5 ). He sent intimation to the Circle Inspector of Police, Bikaner also and requested him to come to the place with some tracker Then he held inquest over the dead body. He recovered from the spot two knives, 6 empty cartridges. He noticed the foot-prints of three persons, out of which one was of a bare footed person. The other two foot prints were of persons wearing shoes. He handed over the statement of Chunni (P. W. 8) to Somdutt (P W. 16) and instructed him to go to the Police Station and register a case.
(2.) HE left the village following the foot-prints along with Rukamdeen (P. W. 5 ) and two constables, Dallaram and Bhanwar Singh. HE saw the foot-prints not on any regular way (path), but across the country. HE and his party passed through number of villages and ultimately reached the village Gusainsar at about 6. 45 P. M. covering a distance of about 30 miles. In the village Gusainsar he saw a man wearing black paint. Rukamdeen (P. W. 5) identified that person as one of those persons, who committed the robbery on the previous night in the house of Ramchandra. HE ascertained his name as Khemchand HE arrested him and recovered from his person a pair of silver 'pa jab' (Ex. 10 ). HE recorded his statement and came to know that he had given one silvr 'fad' and two silver 'pattas' to one Sukhveer Singh and that he had also given one 12 bore double barrel gun with a licence belonging to one Jagmal Singh. HE left that village and proceeded towards Doongargarh in jeep with his companions, and reached Doo-rgargarh Railway Station at about 8 P M. Rukamdeen (P. W 5) pointed out Sukhveer Singh and Puran Singh. They were arrested. HE recovered a gun with a licence from Sukhveer Singh and on search found on his person two silver 'pat-tis' (Ex 12) and one silver 'tad' (Ex. 13) vide Ex. P. 17, HE also searched the person of Puran Singh and found on his person a pair of silver 'paijab' with 'ghoongru' (Ex, 11) vide Ex. P. 16. The three accused with their faces covered were taken to the Police Station on 22-4-1970. P. C. Singhvi (P. W. 9), Magistrate held the identification parade in which Chunni (P. W. 8), Chunnilal (P. W 6), Gani khan (P W. 12) and Dalla Ram (not examined) idetified the accused person as the persons, who committed the robbery on the night intervening 20th and 21st April, 1970. The empty cartridges recovered at the spot along with the gun and live cartridge were sent to the Ballistic Expert, who opened that the empty cartridges, recovered from the place of incident, could have been fired by the gun recovered from Sukhveer Singh. As a result of the investigation, Khemchand, Suknveer Singh, Puran Singh and Jagmal Singh were prosecuted for committing robbery and in doing so for committing the murder of Ramachandra. The defence of the accused was one of total denial They contended that they were falsely implicated, According to them they were shown to the witnesses before the identification parade was held. It could be seen from the history of the case, given above, that the evidence against the accused consists of the evedence of identification and recovery of silver ornaments, and gun The learned trial Judge accepted this evidence against the three appellants, but rejented it in the case of Jagmal Singh He, therefore, convicted Khamchand under secs. 302, 460, 394 Indian Penal Code, and under section 25 of the Arms Act, and convicted Sukhveer Singh and Puransingh under section 302 read with sections 34, 460 and 394, Indian Penal Code and sentenced each one of them to undergo imprisonment for life for the offence of murder and awarded them imprisonment of various terms for the remaining offences and directed all the sentences to run concurrently.
(3.) THE real question in this case turns upon the credibility of the evidence of Jainarain Singh (P. W. 17), Gani Khan (P. W. 2), Roshanlal (P. W. 4) Rukam-deen (P W 5), Chunnilal (P. W. 6) and Chunni (PW. 8 ). Before dealing with the evidence of the above witnesses, it is necessary to point out how the law was set in motion. Rukamdeen (P. W 5) and 5 or 6 others went to Baldev Singh, Assistant Station Master of Dulmera Railway Station, soon after the robbery and informed him what they know about the incident. Gani Khan (P. W 2) and Rukmadeen (P. W. 5) and four others signed Ex P. 32 and give it to Baldev Singh (P. W. 15) stating that they heard three or four gun shots and that the wife of Ramchandra had run away to the house of Gani Khan (P. W 2 ). But Gani Khan (P. W. 2), Rukamdeen (P. W. 5) and Chunni (P. W. 8) given an improved version in the Court. According the Chunni (PW. 8) she saw the accused when they were nearer. She was pulled down by accuse i Khemchand, when she was on the ladder, and thereafter Khemchand shot at her husband, and thereafter all the three accused took away the silver ornaments which wers under the pillow of her husband Then she raised an alarm and went to the house of Gani Khan running By then Rukamdeen (P. VV. 5), Chunnilal (P. W. 6) and Gani Khan (PW2) came running to whom she told as to what had happened in her house giving the description of the miscreants with reference to their clothes. Gani Khan (P. W 2) and Rukamdeen (P. W. 5) have stated that they came to know from Chunni (P. W 8) as to the details of the incident and the description given by her of the culprits This story obviously is an after though. If really Rukam-deen (P W 5) went along with Gani Khan (P. W. 2) and four others to the railway station to give the details of the incident to Baldev Singh (P W 15), he would not have failed to mention atleast that Ramchandra was shot dead and silver ornaments were stolen from his house. It is clear from Ex. P. 32 that when the inform-ation was given to Baldev Singh (P W. 15) no one including Gani Khan (P W 2) Rukamdeen (P. W 5), Chunnilal (P. W. 6) and Chunni (PW8) know who the culprits were and more so knew about their description and theft of the Silver articles. However, the Public Prosserutor contended that Ex. P. 1 which was recor-bed on the early morning of 21st April, 1970 gives some description of the culprits with reference to their cloths and also the missing silver articles from the house of Ramchandra, therefore, he contended that although at the point of time when Ex. P. 32 was given the details were not given; from the recitals contained in Ex. P. 1, it is clear that these witnesses knew to some extent the identity of the culprits and the articles that were stolen There is no substance in this contention. The case, according to the prosecution, was registered on the basis of Ex P 1 on 21. 4. 1970 or at the latest on 22. 4. 1970. The first information report in this case was reached the court on 29th April, 1970 No explanation has been offered for this inordinate delay. From this circumstance it is legitimate to draw an inference that the statement Ex. P. l was not made before the Police on the early morning of 21st April, 1970 but might have been made very much latter Having regard therefore to the evidence on record we feel that the possibility of the first information report having come into being any time before 29th April, 1970 cannot be excluded and this circumstance is sufficient to throw doubt on the prosecution case. ;