Kanta Bhatnagar, J.
1. This appeal is directed against the judgment passed by the learned Sessions Judge, Sri Ganganagar dated January 19, 1979 by which appellant Rameshwar Lal was convicted for the effences under Sections 302 IPC and Section 27 of the Arms Act and was sentenced to imprisonment for life on the first count and two years R.I. on the second count. Appellants Pokar Ram and Manoharlal were convicted for the offences under Sections 302/34/149 IPC and sentenced' to imprisonment for life.
2. Briefly stated the prosecution case giving rise to this appeal are as under: Rameshwar Lal appellant happens to the husband of. deceased Smt. Imanti and Pokar Ram was her father-in-law. Appellant Manoharlal was the nephew (Bhanja) of appellant Pokar Ram. Relations between Smt. Imanti and her husband Rameshwar had become strained since long. She was frequently residing with her brother Balveer Singh (PW 3) at Sadul Shahar. She was occasionally coming to her 'dhani' near village-Dulpura and was getting the fields cultivated. Her son Sandeep Kumar (PW 1) was staying with Balveer Singh (PW 3) and was studying there. While she was staying at her 'dhani' Sandeep Kumar (PW 1) used to visit her sometimes on Siturday and staying there on Sunday. On February 26, 1978 Mst. Imanti along with Sandeep Kumar left Sadul Shahar in the morning and went to Ganganagar. She purchased medicines for her. Both of them went to Banwali Station by train and got down there. They then went to their 'dhani' near village Dulpura. At about 7.00 P.M. Smt. Imanti came out of the 'dhani' to attend the call of nature. Pokhar Ram and Manohar Lal surrounded her. Manoher Lal raised a cry that she should be caught hold of. Mst. Imanti ran away from there but was chased by the aforsaid two appellants. Manohar Lal and Pokhar Ram inflicted lathi blows on her. Rameshwar Lal appellant, husband of Smt. Imanti also came out of his father's'dhani'Pokhar Ram instigated biro to fire the shot towards Smt. Imanti. When these persons had reached near the field where wheat crop was standing Manohar Lal and Pokhar Ram caused lathi blows to her. Rarneshwar Lal fired a shot towards her. He then fired the second shot which hit her. Mean while Sandeep Kumar (PW 1) had also come out of the 'dhani' and saw her monther being chased and Manoharlal and Pokhar Ram inflicting lathi blows and Rarneshwar Lal fifing the shot. Sandeep Kumar got frightened and ran away from the site. He went to the house of Sohan Lal Khichad and informed him about what had happened. Sohanlal Khichad asked him to tell the facts to his uncle (Tau) Govindji. Sandeep Kumar did so. Both of them asked Sandeep Kumar to call his maternal uncle in the morning but he refused to go anywhere in the night because of fear of being killed. Sandeep Kumar stayed at the house of Sohanlal Khichad in the night and left for Sardar Shahar by morning train. He informed Balveer Singh (PW 3) about the murder of his mother. Balveer Singh went to village-Sito to bring his elder brother Jagmohansingh. Balveer Singh, Jagmohansingh and their mother along with Sandeep Kumar went to the the 'dhani' of Smt. Imanti at village-Dulpura.
3. At about 5.30 A.M. on February 27, 1978 a report was lodged by Ramehwar lal appellant before the Station House Officer Hanumaqdas, (PW 6) of Police Station Sadar Ganganagar. Case under Section 302 IPC was registered. The SHO telephonically informed the Circle Officer and accompanied him to the site with Rarneshwar Lal. At about 6.00 A.M. at the instance of Rameshwar Lal the SHO prepared the site plan (Ex. P/10) and site inspection memo (Ex. P/10A). He prepared the inquest report (Ex. P/3). One 'danda' about 1-1/2 feet in length stained with blood was lying near the dead body of Smt. Imanti. One 'Chunni' was lying at the site which was taken in possession vide memo Ex. P/5 and was sealed then and there. Five broken 'teeth', two empty cartridges of 12 bore gun and two other cartridges were found at the site Pieces of bangles and wads found at the site were also taken in possession vide memo Ex P/6. The SHO interrogated some persons at the site. He took witnesses to the Police Station for recording their statements. The dead body of Smt. Imanti was sent to the Medical Jurist, Ganga Nagar Hospital for post mortem examination. Rarneshwar Lal appellant was taken to Police Station where he was arrested vide memo Ex. P/11. The statements of the witnesses were recorded at the Police Station.
4. Dr. Rajendra Prasad Gupta (PW 5), Medical Jurist, Government Hospital, Ganganagar conducted the autopsy over the dead body of Smt. Imanti on February 28, 1978 and observed as under:
The deceased was of normal built, rigor mortis was present in the lower extrimity and both the hands, hands were clenched, hair were present in the left hand, cogulated blood was present on the scalp, face and extremities. Post mortem staining was present on the back of the neck, chest, head and extremities. Under the brassery of the left side one handkerchief, one five rupee note, one rupee coin, two tickets and five shots were recovered. Eyes were do or pupilswere dilated.
Brain and membranes were pale and healthy. Fracture of the spine of the dorsa vertebrae of the left side of the 4th, 5th, 6th and 7th present
There was blood in the thoracic cavity, ribs of the left side were fractured from No. 1 to 7. Ribs of the right side were fractured from No. 4 to 8. There was a lacerted wound of 1' x 1/2' size in the right diapharaom.
Pleurae of both the sides was lacerated antero posteriorly on the right side in the area of 3' x 2' x through and through on the left side 4' x 2 1/2' x through and through.
Right lung pale color, lacerated wound of 4' x 2-1/2' in size x through and through in both the lobes. Left lung was pale and was lacerated through and through. There was a lacerated wound of 2' x 1/2' size in the pericardium. There was a lacerated wound of 3'x 1/2' size x through and through, antero - posteriory in the heart. Blood vessels were ruptured at their site origin from the heart.
Abdominal walls were healthy. There was a lacerated wound 1' x 1/2' size on the peritoneum covering right lobe of the liver. There was liquid in the stomach. Small and large intestines were empty and healthy.
There was a lacerated wound of 1-1/2' x 1/4 x 1' size on the supro anterior surface of the right lobe of the liver. Spleen and kidney were pale, bladder was empty and external genital organs were healthy
There was fracture of right unla bone aid left mendible.
5. Following external injuries were present on her body:
Wounds of entry:
1. An oval shape wound of 3/4' x 3/4' x thoracic cavity deep in the right 6th intercostal space
2. An oval shape wound of 3/4' x 1/4' thoracic cavity deep in the left second intercostal space
3. An oval shape wound of 1-1/4' x 3/4' x thoracic cavity deep in the third intercostal space just below and medical to wound No. 2
4. An oval shape wound of 1-1/4 x 3/4' x muscle deep on the postero lateral aspect of the left thigh in the middle
5. Six oval shape wounds of 1/4' x 1/4' size each was present in the medial surface of the left thigh in the upper one third. All the wounds are present in the area of 1/2' x I 1/2'
6. Four oval shape wounds of 1/4' x 1/4' size each present on the postero lateral surface of the left upper arm in the upper one third in the area of i-1/2' x 3'
7. Wound of re-entry: There were four oval shape wounds of 1/4' x 1/4' x muscle deep each in size on the medial surface of the right thigh in the upper half. Margins were inverted, no blackening or scorching were present. All the four wounds were present in the area of 2' x 1 1/4'
8. Lacerated wound 1/2' x 1/4' x bone deep on the posterior surface of the right forearm in the lower one third.
9. Lacerated wound of 3/8' x 1/8' x bone deep on the palmer surface of the middle phalyx of the left little finger (middle phalyx fractured).
10. Lacerated wound 3/8' x 1/8' x muscle deep on the posterior surface of the left upper arm above elbow joint.
11. Bruise 2' x 1/2' size on the posterior surface of the left forearm
12. Bruise 2' x 1/2' on the posterior surface of the right arm in the lower half
13. Lacerated wound 1-1/2' x 1/4' x scalp deep above right eyebrow on the lateral side
14. Lacerated wound 3' x 1/4' x scalp deep on the right partietal region-lateral to mid line
15. Lacerated wound 4-1/2 'x 3' x scalp deep oh the right fronto parieto temporal region (irregular in shape)
16. Lacerated wound 1-1/2' x 1/8' x scalp deep on the right occipital region
17. Lacerated wound 1-1/2' x 1/8'x scalp deep on the left occipital region
18. Lacerated wound 1' x 1/8' x bone deep on left mastoid region
19. Lacerated wound 3/4' 1/8' x bone deep on the left cheek
20. Bruise 3' x 2' on the left side of the face
21. Lower lobule of the left ear was crushed
5. All the injuries were antemortem in nature. The type of the weapon used were fire arm and blunt object
6. The following pellets and plastic corks and articles were recovered from the deceased:
1. Kurta, Salwar, Handkerchief brassery handed over to the police
2. 12 pellets and cork were recovered from the right thoracic cavity which were embeded in the lung and muscles
3. Two shots and two plastic corks were recovered from the left upper arm and the thoracic cavity of the left side respectively
4. Two shots were recovered from the medial surface of the right thigh
5. One plastic cork was recovered from the left thigh
6. All the pellets, shots and two tickets their number being 26084 and 26085, one rupee coin, five rupee note were sealed
7. There were two holes in Kurta on the front aspect and hole in the Garara on the left side and multiple holes on the handkerchief left sleeve of the Kurta and inner surface of the Salwar.
7. In the opinion of the doctor, the cause of death was shock and syncope as a result of injury of heart and liver as a result of fire arm injury. Injuries No. 1, 2 and 3 were considered to be sufficient in the ordinary course of nature to cause instantaneous death of Smt. Imanti. The postmortem examination report is Ex. P/8. The hair of the deceased and the bunch of hair found in the grip of her hand were taken and sealed and given to police on request. The clothes of the deceased were taken in possession from the hospital vide memo Ex. P/7.
8. On March 12, 1978 Pokhar Ram was arrested vide memo Ex. P/12. Appellant Manohar Lal was arrested on March 16, 1978 vide memo Ex. P/13. During the course of investigation while under custody Pokhar Ram appellant furnished information Ex. P/14 on March 18, 1978 to the SHO Hanuman Das (PW 6) for getting recovered his 12 Bore licenced gun along with the bag containing cartridges and two empty cartridges from his house lying in an old iron water reservior. In pursuance of that information Pokhar Ram got necovered a single barrel 12 Bore gun, two empty cartridges and licence of the gun from the empty water reservoir which were taken in possession vide memo Ex P/2, and sealed. The gun and the cartridges said to have been recovered from Pokhar Ram appellant and those recovered from the site were sent to the Ballastic Expert for examination The report of the Ballistic Expert is Ex. P/15. The blood stained clothes of Smt. Imanti, seized during the course of investigation, were sent for chemical examination. The report of the Chemical Examiner is Ex. P/16 and that of the Serologist is Ex. P/17.
9. Upon completion of necessary investigation, charge sheet against the three appellants was filed in the Court of Munsif & Judicial Magistrate, First Class, Shri Ganganagar The learned Magistrate finding a case exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions Judge, Shri Ganganagar to stand their trial there. The learned Sessions Judge charge sheeted Rameshwar Lal for the offence under Section 302 IPC and Section 27 of the Arms Act, Pokhar Ram for the offence under Section 202 IPC read with 34 and 114 IPC and Manohar Lal for the offence under Section 302 read with Section 34 IPC and recorded their pleas. All the appellants denied the indictments and claimed to be tried. To substantiate its case, prosecution examined six witnesses in all. All the appellants denied the allegations levelled against them in their statements under Section 113 of the Code of Criminal Procedure. Rameshwar Lal admitted to have lodged report Ex. P/9. He state that belveer wanted to grab his agricultural land and for that reason, ma his son Sandeep to state against him though Sindeep was not at all there at the 'dhari' on the relevant date. Pokhar Ram denied to have got recovered gun or any other articles. He stated that Sandeep was giving incorrect 'statement at the instance of his maternal uncle and, maternal grand mother. That, DIG of Police was related to Balveer., That, Dharma (PW 2) was giving the statement under the pressure of police, and Hetram (PW 4) is drunkard and is in the hands of the Police. Manoharlal has stated that Sandeep have given the statement at the instance of his maternal uncle and maternal grand mother and that he (appellant) was hot at all there on the relevant day. Two defence witnesses were examined The learned Sessions Judge relied on the prosecution witnesses and held the appellants guilty for the charges and sentenced them as stated above.
10. Feeling dissatisfied by their conviction and sentence, the appellants have preferred this appeal.
11. During the pendency of appeal Pokhar Ram expired and the appeal against him has abated.
10. We heard Mr. M.L. Garg, learned Counsel for the appellant and Mr. Niyazuddin Khan, learned Public Prosecutor for the State and carefully examined the record of the case.
13. The prosecution has led direct as well as circumstantial evidence against the appellants.
14. The direct evidence is that of Sandeep Kumar (PW 1). The circumstances brought on record against appellants are:
1. Strained relations between Smt. Imanti and her husband Rameshwar;
2. Recovery of the gun at the instance of Pokhar Ram appellant which according to Sandeep Kumar was used by his father Rameshwar Lal to commit the crime.
15. Sandeep Kumar has stated that he was staying with his, maternal uncle Balveer Singh (PW 3) at Sadul Shahar and was studying there. On Saturday evening he used to go to Dulpura to her mother and used to return to Sadul Shahar on Monday morning. The witness stated about his mother not having cordial relation with his father According to him on the date of occurrence he came with his mother to her 'dhani' via Ganganagar where from medicines were purchased by his mother. Dharma (PW 2) was asked to bring a cot and on his doing so his daughter Budhli brought the beddings. He gave a detailed description of his mother going out to attend the call of nature and Manohar Lal's raising a cry that she should be caught hold of and be killed and Pokhar Ram's coming out and then both of them inflicting lathi blows on her person. He further stated that Pokhar Ram instigated Rameshwar Lal to fire the shot at his mother and Rameshwar Lal did so. Then he went to Sohanlal Khichad and narrated the story to him and at his instance to Govindji. He his stated about his going to Balveer Singh next morning and narrating the incident to him and then coming to village Dulpura to the 'dhani' where the incident had taken place in the wheat field.
16. The learned Counsel for the appellants has challenged the veracity of the statement of this witness on a number of grounds. It has been stated by the learned Counsel that prosecution has failed to establish that Sandeep Kumar had come to the 'dhani' on the relevant date. Sandeep Kumar has of course stated that he used to come to the 'dhani' at the week end but he did not say that be was doing so without fail. When the post mortem examination was conducted by the Doctor, the Doctor found in the brassery one handkerchief, one five rupee note, one rupee coin and two tickets. These two tickets have been taken help of by the prosecution to establish that Mst. Imanti and Sandeep Kumar had come from Ganganagar to Banwali Station on February 26, 1978.
17. The learned trial Judge has taken into consideration the recovery of two tickets from the possession of the dead body at the time of postmortem examination and believed Sardeep Kumar's accompanying his mother. It is relevant to observe that the learned trial Jydge in, his judgment has mentioned the tickets numbers to be 26084 and 26085. He has also discussed the argument of the learned Counsel for the accused appellant at the trial that both the tickets were for the adults and the half ticket (ticket for the child) not being there, it cannot be said that any ticket was purchased for Sandeep Kumar on the relevant date. The argument did not find favour with the learned Judge. We may observe that tickets Ex. P/8 present on the file were seen by us. They bear numbers 64234 and 19068 and not the numbers finding place in the judgment of the trial Court. As evident from the; discussion in the judgment, there was no half ticket available and therefore, the learned Counsel advanced the argument to that effect and the, learned trial Judge considered the same. In one of the tickets, i.e No. J.9068, there is a seal of half ticket. We have carefully examined the whole record but could nor make out wherefrom the learned trial Judge got numbers 260 x 4 and 260 x 5 of the, tickets recovered from the possession of the deceased. The learned Public Prosecutor and the learned Counsel for the appellant could not throw any light on, the point. The two tickets Ex/8 cannot therefore, be said to positively establish that Sandeep Kumar had accompained his mother on February 26, 1978, specially when there is no date on any of these two tickets. Sandeep Kumar has stated that at Ganganagar he stayed at the 'aadhat shop' of Seth Roshan Lai. That Seth has not been examined by the prosecution to substantiate its case that mother and his son had gone to Ganganagar that day and mother purchased the medicine. Though Sandeep Kumar Ins stated that the medicines were in the bag and taken to the 'dhani' no such bag has been, recovered or taken in possession by the Police.
18. There is no corroboration to the testimony of Sandeep Kumar regarding his presence at the at site as the relevant time. Dharma (PW 2) has been declared hostile, by the prosecution. He has stated about Sandeep Kumar not being there at the time. The learned trial Judge has placed reliance on some portion of the statement of Dharma (PW 2)which we would discuss at proper stage. Suffice it to say for the present that even if any value may be attached to Dharma's statement still he has not statement about Sandeep Kumar being there at the site.
19. Mr. Garg vehemently argued that Sandeep Kumar was living with his maternal uncle Balveer Singh and therefore, possibility of his turning by Balveer Singh to narrate against his father, grand-father and uncle cannot be ruled out The reason pointed out by the learned Counsel is that there was litigation between Balveer Singh and the appellants for the land subsequent to the death of Smt. lmant.
20. There is always danger of child witness stating at the instance of others what they have not actually seen or that they very often live in imaginary world and believe what others Say to be true. Sandeep Kumar of course is not a child of that age group who may wander in an imaginary world. He is a student of 12-13 years of age. His living with his maternal uncle Balveer Singh may raise a doubt about his statement being at his instance or influence. Children are generally innocent and there is justification in believing what they say but at the same time the risk of their being easily influenced requires the Court to be cautious to consider their statements after careful scrutiny. It is for this reason that Court seek corroboration to the testimony of a child witness either by way of direct evidence or circumstances available on record. If the circumstances are not consistent with the deposition of the child witness, it is not safe to place utmost faith in the evidence of the child witness and to base conviction on it. For this reason evidence of Sandeep Kumar a child witness, will have to be looked into carefully to find out whether he came with a consistent version throughout or has improved upon what he has stated before the police. In his statement at the trial Sandeep Kumar has stated that when they had reached their 'dhani' cot was brought by Dharma (PW 2) and bedding by his daughter Budhli. They sat on the cot. Thereafter his mother went to make water. Then Manoharlal appellant give a 'lalkarn' that she may be caught hlod of and killed. At this his grand-father had come out of the 'dhani'. Manoharlal chased his mother and caught hold of her hand and he and his grant father belaboured her with lathis. Then his father also reached there and being instigated by his grand-father fired gun at his mother. Attention of the witness was drawn to his police statement Ex D/1 where at portion A to B he had given a different version regarding his father coming to the 'dhani' and reaching the site. He has stated there that when dark had set in his father came and went inside the 'dhani' of his grandfather. After putting on the sweater and taking the torch he went to irrigate the field where Mans la was irrigating the field. Dharma had also gone there to irrigate the field and was assisting Mansla. After irrigating two or three beds his father returned back to his father's 'dhani'. The witness denied to have given such statement before the police. The two versions are altogether different. Whether it was a sudden attack or Rameshwar Lal had the occasion to see his wife sitting on the cot. If the version given before the police is taken to be true, it does not show that Rameshwar Lal had abused the lady or expressed annoyance towards her. Regarding the strained relations between his father and mother, the witness had not stated anything before the police and his attention being drawn to that omission, he simply stated that he had told so but could not say why it does not find place in his police statement. In his deposition at the trial Sandeep Kumar has stated that he on his own accord came out of 'dhani' and saw the incident whereas at portion C to D of his police statement Ex. D/1, he has stated about his hearing the cries of his running mother and then coming out of the dhani'. The witness disowned the version given before the police Regarding the omission in the police state ment about his uncle and grand-father inflicting lathi blows on the hands of his mother the witness had no explaination. So is the position regarding the omission in Ex. D/1 about his uncle Manoharlal inflicting lathi blow on the Lead of his mother The witnesses did not state before the police that his mother was given a beating in the wheat field and could not explain the reason Regarding the place where from the witness claim? to have seen the occurrence also there is discrepancy. In the police statement at portion E to F he stated that on coming out of the 'dhani' he remained standing there and began to weep out of fear. Whereas in the Court he has stated that he had reached up to a distance of 5 or 7 paces from his mother and started weeping there. This fact of his going near his mother is not there in the police statement and the witness could not tell the reason. In his police statement the witness has not stated about two gun shots whereas it has been so stated at the trial and the argument advanced is that because in the post mortem examination two injuries by the gun shots were noted, the child at somebody's instance, might have improved upon his statement. He has not stated before the police that his mother was crying that she may not be beaten. He could not say about the omission in the police statement about his mother sustaining gun shot injuries in the chest. Refering to the inconsistencies in these two statements Mr. Garg strengthened his argument that Sandeep Kumar has improved upon his statement before the police.
21. While considering the statement of a child, the Court should not forget that sometimes, a witness may forget a thing while stating before the police and may recollect the same while standing in the witness box For this reason minor discrepancies and inconsistencies in various statements given by a child witness should not be attached much importance. However, if there is material omission in the police statement or there inconsistency between the police statement, the earliest version of the child, and his subsequent deposition in the Court after lapse of some time since the occurrence, it may be inferred that the witness was under some influence or he was coached to improve upon his statement so that it may fit in with the prosecution story coming forth from the statements of other witnesses, circumstances available on the record
22. Keeping this principle in mind when we read the statement of Sandeep Kumar we find that on some important points he has improved upon his previous statement.
23. Conduct of Sandeep Kumar taken together with that of his maternal uncle Balveer Singh also raises some doubt regarding his presense at the place of occurrence on the relevant day. Sandeep Kumar states that he had gone to Sohanlal Khichad and Govindji, his maternal grand-father in relation and Tau (uncle) respectively. It is pertinent to note that Sahanlal Khichad and Govindji have not been examined by the prosecution, the implications of which we would discuss later on. Suffice it to say for the present that Sandeep Kumar should have asked those persons to accompany him to police or his maternal uncle. Assuming for the sake of argument that the boy could not have that much of intelligence so as to persuade the elders to do a particular thing in a particular way still if he had reached Sadul Shahar on the next morning at about 9.00 AM. there was no reason for Balveer Singh and Sandeep Kumar not to rush immediately to the Police Station to lodge the repot with the police. It is note-worthy that Balveer Singh could not have known by that time that Rameshwar Lal had already gone to the police station and lodged the leport which had set the police machinery into motion. BaKeer Sin&h; taking time to call his brother Jagmohan Siogh from village Sito and not caring either to go to the police station or to the 'dhani' of his sister may not be taken to adversely affect the evidence of Sandeep Kumar but it gives force to the argument of the learned Counsel for the appellants that Sandeep Kumar might not have gone to Sadul Shahar from Dulpura, rather was already there and he and Balveer bingh received the information about the murder of Smt. Imanti from somebody else and as such they thought it proper to go direct to 'dhani' instead of going to the police station so that they may find out at the site as to what might have actually happened. In this connection the time of Sandeep Kumar along with Balveer Singh and two others reaching the site is of considerable importance. It is also impotant because of the delay in recording the statement of Sandeep Kumar by the police and the police not inspecting the site in his presence and at his instance despite his being the only eye witness to the occurrence according to the prosecution.
24. According to Sandeep Kumar he reached the site at about 12.00 noon and at that very time he showed the site of occurrence to the police and at about 12.00 or 1.00 P.M. the Police wrote something though he could not say what it was. He then stated that at about 12.00 1.00 P.M when they reached at the 'dhani'. his father Hari Ram, Dhokal, Sohanlal, Govind and one or two other persons were there. This Sohanlal is of course not Sohanlal Khichad but is some other Sohanlal, who according to the prosecution was a witness to the extra-judicial confession along with Het Ram but has not been examined at the trial. There was no reason for Govindji not to tell the Police that ID the night Sandeep Kumar had gone to him and narrated what had happened. AccoHing to Balveer Singh he, along with Sandeep Kumar and others, reached the site of occurrence at about 11.30 A.M and he had told the Sub Inspector at that very time that he may give an ear to what Sandeep Kumar was stating because he was telling about the murder and was asked to accompany the police to the police station and thereafter they immediately left for the police station. He has further stated that it was 10 or 15 minutes after their reaching the site that the Sub-Inspector left in the jeep for the Police Station they also left for the police station in their own jeep That, at about 1.30 P.M. all of them reached the police station leaving the dead body in the hospital in the way. According to Balveer Singh statement of the witness Sandeep Kumar was recorded at 5 or 5.30 P.M, at the police station and thereafter he himself was examined. According to Sandeep Kumar, after 15 minutes of he and his maternal uncle reaching the site, the Sub-Inspector left the place with his father and he and his two maternal uncles and grand-mother his younger brother accompanied them in another jeep to Sadar Thana. That, his statement was recorded by the police at the police station at 6-7 p.M. Het Ram has stated about the police reaching the site at about 9.00 P.M. Hanumanprasad, SHO Police Station Sadar and Investigating Officer has stated that he along with appellant Rameswar Lal the informant reached the site at about 6.00 A.M. and had stayed there up to 4.00 PM. According to the SHO when he was about to leave the site, Sandeep Kumar, his two maternal uncles and two or three other persons had also reached there. That he interrogated Sandeep at the time but recorded his statement on reaching the police station. The time siated by use SHO for reaching me village was 6.00 A.M. whereas it was 9.00 A.M. according to Het Ram. This difference is to be taken note of for knowing the time of Sandeep Kumar and Balveer Singh reaching the site. If the version of the Section is taken to be true that he stayed at the site up to 4.00 P.M and when he was about to leave the place Sandeep Kumuir and Balveer Singh and others reached there is the jeep If sandeep Kumar and Balveer Singh had reached the site at about 12.00-1.00 P.M. the version about the police staying there only for about is minutes after their reaching there cannot be believed Sandeep Kumar and Balveer Singh have admitted that police had not stayed much alter their reaching the site.
25. This type of evidence strengthens the argument of the learned Counsel for the appellants that Sandeep Kumar and Balveer Singh might not have reached the site at the time they claim to and the information of death of Smt. Imanti might have reached them late after the investigation had started and that is why they went direct to the site in the afternoon when police was about to leave the site for the police station. In case Sandeep Kumar and Balveer Singh are to be believed that they had informed the police that Sandeep Kumar was knovnog about the murder and that Sandeep Kumar had pointed out the place of occurrence to the police, the prosecution case becomes still weaker for the reason that the S.I. should have immediately recorded the statement of Sandeep Kumar or least should have inspected the site at his instance and prepared the site plan accordingly instead of believing what Rameshwar Lal had stated. ON the point of repetition we may mention that if Govindji was at all there Sandeep Kumar or Balveer Singh should have told the police that Govindji was the person to whom Sandeep Kumar had approached in the night and police could have verified it from Govindji.
26. The importance of material witnesses being examined at the earliest need not be over emphasized, specially in a case where there is only one eye witness. According to the SHO Hanumandas, within two or three hours of his reaching the site, he had known that the accused had murdered Smt. Imanti but he has not tilled the case in the memos as State v. Rameshwar Lal, etc because till that time case was not registered against them. According to the witness it was at about 5 or 5.45 p m. that he became sure about the appellant's committing the murder of Smt. Imanti and just thereafter he arrested Rameshwar The witness does not state that it was from the stat ment of Sandeep Kumar that he became sure about the appellants being the assailants Even if 'he statement of SHO is taken to be true that Sandeep Kumar had reached the site only when he was about to leave for the police station, still if anything had come out from the statement of Sandeep Kumar throwing light on the murder, it was expected of the S.I. to take him back to the site and inspect the site at his instance. Pokhar Ram was arrested as late as en March 12, 1978 and Manohar Lal on March 16, 1978 and no reason has been given for the police not taking action against them earlier. We have discussed ail these points for the reason that if Sandeep Kumar had reached the site at about 12.00-1.00 p.m. and police had stayed there till 3.00 p.m. there was no reason to record his statement then and there. If the version that Sandeep Kumer had reached the site prior to police leaving the site is true, then there was no reason for the police not interrogating him and recording his statement there. It is in such circumstances shat delay of a few hours even in recording the statement of Sandeep Kumar be the police and that too not at the site but at the police station has assumed importance. This fact is to be taken into consideration along with improvements made by the witness in his deposition at the trial. As observed above Sandeep Kumar was not able to explain these inconsistencies on material points affecting the case In the case of Karnail Singh v. State of Rajasthan 1980 Cr.L.R. Raj. 84 the testimony of a child witness of eleven years of age was not believed for the reason that he did not stick to his previous statement, nor could explain the inconsistencies and contradictions about the place wherefrom he saw the incident. It is also worth consideration that Balveer Singh has stated that he was examined on that very day after Sandeep Kumar's statement was recorded by the police, whereas Haouman Prasad has stated that he had recorded the statement of Balveer Singh on the next day because on that day he had told that as the dead body of his sister was lying he wanted to go and would come for the statement on the next day.
27. The statement of Sandeep Kumar as discussed above suffers from grave infirmities and therefore, we are inclined to look for corroboration of his evidence.
28. There may be cases in which the uncorroborated testimony of a child witness may impress the court about its truthfulness and may be made basis of conviction, if the Court is satisfied that the witness has understood the implications of what he states and is not under any body's influence. However, if there are circums ances raising slightest doubt about the testimony of the child witness to be, Courts seek corroboration in other evidence or circumstances, before making the statement of the child witness the basis of conviction of the accused. Keeping in view this principle, we would now discuss the material brought on record by the prosecution.
29. Sandeep Kumar (PW 1) has stated that he had gone to Dulpura village at a distance of two murrabas from his 'dhani' and informed Sohan Lal Khichad about the incident. According to the witness, he had also narrated the fact to Govindji his uncle (Tau) at the instance of Sohanlal Khichad who happens to be his maternal grandfather in relation. It is important to consider that neither Sohanlal Khichad nor Govindji have been examined by the prosecution to corroborate the testimony of Sandeep Kumar that immediately after the incident he had narrated the facts to the persons available to him. The learned Public Prosecutor contended that there was no reason for examining these two persons because they were not the eye witnesses. The learned Public Prosecutor stressed that on the next date Sandeep Kumar has informed Balveer Singh (PW 3) of what had happened and he has deposed before the Court about the same and as such failure of the prosecution to examine Sohanlal Khichad and Govindji would not in any way effect the prosecution case. From the statement of Hanuman Das (PW 6) it is clear that these two persons were not examined even by the police. They might not be witnesses of the occurrence but if Sandeep Kumar had gone to them immediately after the occurrence, they assume importance for the reason that they would have disclosed what the exact version of the child was after the incident, he claims to have seen. The learned Public Prosecutor has contended that because of Sohonlal Khichad and Govindji had not gone to inform the police and asked the boy to go in the morning to his maternal uncle, Sandeep Kumar had not claimed to have gone near his mother after the shot and therefore, could not have been sure about her death. Had he gone to the aforesaid persons their natural conduct, specially when they were near relatives of the deceased, would have been to find out if she was still alive or not and whether her life could be saved by medical aid. Omission on the part of the prosecution to examine important witness, need not necessarily be fatal in all cases. Similarly each and every witness who can be attributed some knowledge direct or through some body regarding the occurrence does not become the material witness for the case. However, if a witness can throw any light on a particular event or its narration to him immediately after the incident, such as in the present case, he becomes an important witness specially so when Sandeep Kumar happens to be a boy of 12-13 years of age aad was staying with his maternal uncle and was prone to any coaching by him. If Sohanlal Khichad and Govindji would have been examined by the prosecution, they could have stated as to whether Sandeep Kumar had at all gone to them on that night or not and whether they had kept quite out of fear it also appears strange that the relatives would have not cared to inform the police and would have asked the boy to go alone to inform his maternal uncle. It is not the prosecution case that the two witnesses were not available to the police or had denied to have any knowledge about the matter. Sandeep Kumar has stated about Govindji being there at the site when the investigation was going on. Hanuman Das (PW 6) has denied to have examined Sohan Lal Khichad and Govindji. The learned Public Prosecutor agrees that these two witnesses would have thrown light on the matter and could have supplied corroboration to the testimonv of Sandeep Kumar, but his contention is that they were not indispensable to the prosecution and Hanuman Das (PW 6) SHO being relative of Pokhar Ram appellant was not carefully investigating the case. Pertinent it is to note that it was not only Hanuman Das who was incharge of the case Circle Officer is also said to have been with him. Apart from it, if Investigating Officer according to the prosecution was not conducting the investigation carefully fairly the legitimate regiment be advanced on behalf of the appellant that their case stands prejudiced because of Investigating Officer not being fair or impartial. The prosecution case is that SHO Hanuman Das happens to be the son-in law of Rimeshwar Lal brother of Pokhar Ram. Rameshwar Lal as the record shows is not the real brother of Pokhar Ram rather was related to him in two or three degrees. Be it as it may, no complaint was made by the complainant or any one else that Hanuman Das was not conducting the investigation fairly and for that reason investigation should be entrusted to some other officer. Hanuman Das (PW 6) has stated that he had informed the Circle Officer who had gone to the site with him. If Circle Officer was there in the investigation, it was expected of him to properly supervise the investigation and give proper guidance to the concerned SHO. We are, therefore, of the opinion that prosecution has not cared to examine Sohan Lal Khichad and Govindji who were important witnesses in the case and in the absence of their testimony, there is no corroboration to the version given by Sandeep Kumar that he was there at the site and had gone to Dulpura and informed to those persons and at their instance stayed there and could not go to Balveer Singh till next day
30. Another witness examined by the prosecution about the actual occurrence is Dharma (PW 2). As stated earlier, he has not supported the prosecution and was therefore cross-examined by the Public Prosecutor with the permission of the Court The learned trial Judge has placed reliance on the part of this version such as strained relation between Smt.Imanti and her husband, appellant Rameshwar Lai, Smt. Imanti being there at the 'dhani' on the relevant date and the witness hearing her voice and that of the three appoints. The learned Judge has referred to the part of the statement of this witness that he had heard from a distance of about three or four kilometers the cries of the deceased and the three accused persons 'OH MAR DIYA' and thereafter he heard the report of the gun fire. If the prosecution case as coming forth from the statement of Sandeep Kumar is taken to be true, there was no reason for the three accused to raise a cry 'OH MAR DIYA'. The learned trial Judge has believed the presence of Dbarma (FW 2) there on the basis of Ex. P/9, the information lodged by Rameshwer Lai. It may be observed that Ex. P/9 should have been made use of regarding the presence of Dharma at the site. The learned trial Judge has placed reliance on the contents of Ex P/9 regarding the strained relations between the husband and wife also. FIR is not a substantive piece of evidence and cannot be made use of but for the corroborating and confronting the maker of the same. If the information is by the accused, the use is still limited. If the information on the accused is in the nature of confession and that confession leads to any recovery incriminating the accused in the crime then that fact of recovery is admissible in evidence. To put it in other words the contents of the information other than those leading to any discovery of incriminating fact article would not be admissible in evidence and cannot be taken help of by either side. This being the position of law, no corroboration from the FIR should have been sougtit regarding the presence of Dharma (Pw 2) or any version given by him or any other witness. If prosecution wanted to seek corroboration to the statement of Sandeep Kumar regarding the cot being brought by Dharma and the beddings by his daughter Budhli and Dharma his turned hostile, Budhli could not be examined by the prosecution. Otherwise also Budhli if examined could have stated whether Sandeep Kumar was there on the relevant date or not.
31. The statement of Balveer Singh (PW 3) has also been used by the trial Judge for corroboration to the statement of Sandeep Kumar (PW 1) The learned trial Judge observed that Sandeep Kumar has narrated the incident to Balveer Singh on the next morning and therefore, what he had stated in the Court should be taken as a version of Sandeep Kumar. It is not immediately after the incident or in the same night that Sandeep Kumar claimed to have gone to Balveer Singh and narrated the incident to him. The whole night had passed in between. We are not inclined to agree with the learned trial Judge that the version given by Balveer Singh can be pressed into service by virtue of Section 157 of the Evidence Act. Section 157 is an exception to the general rule of hearsay evidence. In order to press this Section into service prosecution has to establish that the version given by the eye witness was at or about the time when the fact took place. If the version given by the eye witness is at the time of the occurence, there is on difficulty in applying Section 57 of the Evidence Act. However, if it is not at the time of the incident or the fact taking place, rather some gap then a careful examination is required. The words 'about the time' no doubt postulate interval, but a shorten between the actual occurrence and the narration of the facts by the person who professes to have seen the incident or a fact taking place. It would always depend upon the facts and circumstances of the case as to what value is to be attached to any narration by the eyewitness to any other person regarding what the former claims to have seen. The spirit behind this provision is that if a person on seeing a particular fact taking place immediately utters something in that regard without taking time or reaches to some other persons and narrates before him what has happened, the version of the person so narrating would assume importance. In other words, if a person without coaching or tutoring by someone or having much time to ponder over the matter gives a version before another the statement of that other person may be taken into consideration as a piece of corroboration to what the maker of the statement has stated.
32. Applying this principle in the present, case, we feel reluctant to consider the statement of Balveer Singh to be a corroboration of the testimony of Sandeep Kumar. The reason is that it is not Balveer Singh to whom Sandeep Kumar had met first of all. His immediate narration even according to his version was to Sohan Lal Khichad and Govindji. They have not come before the Court to state what Sandeep Kumar might have told them. The whole night passed and it was on the next morning at about 9.00 A.M. that Sandeep Kumar claims to have gone to Balveer Singh. In these circumstances, the facts regarding the actual occurrence narrated by Balveer Singh known through Sandeep Kumar do not carry any weight and in our opinion his version should not have been considered to be a corroboration to the statement of Sandeep Kumar.
33. Prosecution has sought corroboration to the statement of Sandeep Kumar from the recovery of gun from Pokhar Ram appellant in pursuance of the information furnished by him. Sandeep Kumar has stated that the gun of his grand father was used by his father for committing the crime. According to the ballistic expert, it was not possible to give definite opinion on four 12 bore cartridge cases (marked C/1, C/2, C/5, C/6) and one 12 bore misfied cartridge ('marked C/3) in order to link with the gun under reference due to lack of sufficient data available on them.
34. The learned Public Prosecutor emphasized that the gun was serviceable and had been fired according to the report and therefore, it should be taken for granted that it was used for the crime. The argument appears to be strange. Simply because a particular gun is serviceable and has been fired, in the absence of any specific evidence that it was fired at a particular time and the empty cartridges recovered from the site or from the possession of the owner of the gun were fired from the same gun, the weapon cannot be connected with the commission of the crime.
35. In this view of the matter, even if the gun with the licence might have been recovered from the possession of Pokhir Ram, it cannot be said to be a piece of evidence against Rameshwar Lal to connect him with the commission of the crime. It it also relevant to note that on February 27, 1978 itself 'dhani' of Pokhar Ram was searched but the gun was not recovered Pokhar Ram was arrested on Much 12, 1978. The information for the recovery of the gun was furnished after about a week i.e. on March 18, 1978. This fact taken together with the opinion of the expert cannot be said to lend any support to the prosecution case for corroboration to the testimony of Sandeep Kumar or the charge against Rameshwor Lal under Section 27 of the Arms Act.
36. Prosecution has brought the circumstances of the extra judicial confession of Rameshwarlal before Het Ram (PW 4) and Sohanlal to corroborate the testimony of Sandeep Kumar. Sohanlal has not been examined by the prosecution. Het Ram's statement inspires no confidence. According to Het Ram he had gone with the police. He took Rameshwar appellant aside and on interrogation Rameshwar told him that He along with his father and Manohar Lal hid killed his wife and that a mistake has been commuted by them. Had Het Ram known from Rameshwar Lal about his involvement in the crime along with his father and cousin, there was no reason for Hetram not to disclose this fact to the police officer then and there. The police had reached the site at about 6.00 A.M According to Hetram policehad reach had the site at 9. 10 AM and stayed therefor two and half hours. If that was so, there was no occasion for Hetram accompanying the police to the site The witness stated that his statement was recorded by the police after sun set at the police station. If Het Ram was such an important witness, police should have recorded the statement earlier. This is important to consider that if Het Ram had informed the police about Rameshwar Lal telling him about his involvement in the case along with his father and cousin, ihere was no reason for the police not to arrest Rameshwar Lal, Pokhar Ram and Manohar Lal then and there. Not only that police had not cared to arrest Manoharlal and Pokhar Ram for a number of days. The learned Counsel for the appellant has therefore, argued that Rameshwar Lal must have been arrested on the basis of suspicion and police was not having any subscantial ground for believing that he was the culprit. It has been argued by the learned Counsel that this story of extra judicial confession has been innovated to lend support of the statement of Sandeep Kumar Het Ram has admitted that he did not tell the police about the extra judicial confession a the site and for the first time disclosed it when his statement was recorded in the evening. According to the witness he had told this fact to Hari Ram at the site itself. It is not the case of the prosecution that Hari Kam had informed the police about Het Ram having some knowledge regarding the commission of the crime. It is relevant to observe that Het Ram has impiovcd upon his statement before the police. At the trial he has stated about Rameshwar Lal telling about Pokhar Ram and Manohar Lal also to be the assailants whereas, Manoharlal's name is not there in his police state ment Ex. D/3. The only explanation the witness could give was, that he had stated so and cannot say why was it missing in the police statement. The learned Counsel for the appellants submitted that Het ram is a strong witness of the police. Questions to that effect had been put to the witness in cross-examination. He has admitted that he has appeared as a prosecution witness in connection with the recovery of a watch from the accused in the case of State v. Mitnkela etc. He also admitted that case under Section 34 of the Police Act was pending against him though he further added that police has concocted a false case against him He has also admitted to have given evidence in proceeding under Section 145 between Rameshwar Lal and Balveer Singh relating to the land. The learned Counsel contended that Het Ram being involved in a case under Section 34 of the Police Act would have naturally tried to police and for that reason might have become the witness to the extra-judicial confession. Be it as it may the statement of Het Ram taken a whole does not impress that he is a witness of crecence. On careful scrutiny of the circumstantial evidence discussed above, we are inclined to hold that prosecution could not establish any circumstance which might have lent support to the testimony of the child witness Sandeep Kumar. Had Sandeep Kumar's statemei.t been straight forward and unimpeachable, failure of the prosecution, to establish other circumstances, would not have come in the way of accepting the evidence of Sandeep Kumar. But as observed above Sandeep Kumar's evidence in itself does not inspire confidence and therefore, in the absence of corroboration, cannot be made the basis of conviction of the appellants.
37. We therefore, find ourselves unable to agree with the learned Irial Judge that prosecution has proved beyond reasonable doubt the charges levelled against the appellants.
38. Consequently, the appeal filed by Pokhar Ram abates on account of his dath during the pendency of the appeal.
39. The appeal of Rameshwar Lal and Manohar Lal appellant is allowed. The judgment of the trial Court is set aside. The conviction and sentences awarded to the appellants Rameshwar Lal and Manohar Lal are set aside and they are acquitted of the charges levelled against them. Appellant Manohar Lal is on bail. His bail bonds stand discharged. Appellant Rameshwar Lal is in jail, he shall be sei forth to liberty atonce, if not required in any other case.