Judgment:
Singh, J.
1. This appeal has been filed Under Section 374 Cr.P.C. by accused appellant Jagdish alias Tempo against the he judgment dated 13.7.1998 passed by Additional Sessions Judge No. l, Hanumangarh in Sessions Case No. 21/97(15/97)by which he has been convicted Under Section 302 1PC 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.
3. 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 Under Section 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.
4. Mr. Kharlia, learned counsel for the appellant assailed the impugned judgment mainly on the ground that PW-T 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 Ranjil and PW-8 Bismilla. Had they been the eye witnesses of the occurrence their names should have appeared in the FIR.
5. On the contrary, learned Public Prosecutor has supported the impugned judgment.
6. We have carefully considered the rival contentions.
7. 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 at least her name should have appeared in FIR Ex.P/l. 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 wail 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.
8. 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 cantina of judgments had held that norms how the testimony of a witness is to be tested. When 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.
9. 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 facis 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.
10. PW-3 Ranjit is not an eye witness of the occurrence. He reached on the sport after the occurrence where he was told that accused appellant Tempu killed his wife and children burnt by fire. This witness was introduced in order to prove that three days prior to the occurrence he went to Barwali to meet Sayara. There she told this witness that her husband and mother-in-law were ill-treating her and she was suspecting to be killed by them. The above fact was allegedly disclosed by this witness to Jalaluddin PW-1 who next day alongwith PW-2 Sharif came to Rampuria and saw that smile and emitting out of the house of the accused appellant when from the neighboring house Jalaluddin over looked. He saw accused appellant standing in court yard and ran away upon the query of Jalaluddin. Had PW-3 Ranjit been told about ill-treatment meted out to Sayara by her husband three or four gave prior to occurrence, atleast some complaint should have been made immediately thereafter either to the police or to the elderly members of the accuses appellant. Even assuming that the brothers of the deceased may not have taken it so seriously, atleast they should have taken to task the accused appellant immediately thereafter. PW-3 Ranjit has also been contradicted by his police statement Ex. D/3 as in court statement he has made material exaggerations which were not found in Ex.D/3. In the court PW-3 Ranjit deposed that immediately after the occurrence PW-2 Sharif came to Barwali and told him that Sayara and her children has been burnt to death by accused appellant, but this fact was missing in Ex.D/3. Similarly, in court deposition this witness stated that three or four days prior to the occurrence when he went to Sayara's house, she complained that her husband was ill-treating her and that she insisted to come with him to maternal house. This fact was also missing in Ex.D/3 resulting which it can be safely said that PW-3 resulting which it can be safely said that PW-3 resulting which it can be safely said that PW-3 Ranjit is making exaggerated statement in court and cannot be held to be wholly reliable witness. PW-3 Ranjit has admitted in cross examination that upon getting information from Sayara about the occurrence at Barwali he reached to the place of occurrence at about 6-7 P.M. till then police was not present at the site. The above fact also is indicative that either this witness had not reached the site on the day of occurrence or else the prosecution version of getting the FIR Ex.P/1 at 6.30 P.M. is incorrect. Whatever be the position PW-3 Ranjit does not help the prosecution and the trial court has rightly not based the impugned judgment on his testimony.
11. PW-1 Jalaluddin is the star witness of the prosecution who lodged the FIR Ex.P/1. Though as stated above he is not only the real brother of deceased Sayara but also a chance witness because he was resident of Barwali situated in Tehsil Nohar whereas the place of occurrence is situated in Tehsil Tibi distantly situated. PW-1 Jalaluddin has stated that he alongwith PW-2 Sharif came on foot from Barwali alongwith PW-2 Sharif came on foot from Barwali to Rampuria. They started from Barwali at half past 10 and reached the site at half past 3 and straightway went to the house of the accused appellant and saw the occurrence with their own eyes. Whereas PW-2 Sharif has deposed that from their village Barwali they went to Ramgarh, from there they boarded a jeep upto Rampuria. This is a material contradiction between the testimony of both these witnesses who are not only he chance witnesses but are relative witnesses and whose testimony has to be scrutinised with much care and caution.
12. The evidenciary value of a witness has to be tested on the touch stone of their cross examination. If the testimony of a witness is consistent throughout without any exaggerations and embellishments or material omissions and contradictions he can be held to be of sterling worth even if was a relative witness or inimical witness or a chance witness. In the matter of PW-1 Jalaluddin he has been contradicted extensively by his police statement Ex.D/1 rendering him unworthy of credence. In the court PW-1 Jalaluddin deposed that 10-11 days prior to occurrence Sayara was at Rampuria in the maternal house. There accused appellant Tempu came to take her and promised that henceforth he will not subject Sayara and the children to cruelty and upon that assurance Sayara and children were sent by this witness alongwith the accused appellant. This fact was not neither mentioned in Ex.P/1 nor Ex.d/1 that henceforth accused appellant will not ill- treat the deceased person. Similarly in the court statement PW-1 Jalaluddin deposed that at the place of occurrence when he saw smoke emitting from the house of accused he climbed the will of Brijlal, neighbour, and saw the accused appellant standing in the court yard. But this fact was also missing in Ex.P/1 and Ex.D/1. In the court PW-1 Jalaluddin has again deposed that when he saw smoke emitting from the house of accused appellant he called out Tempu and raised hue and cry. Even that fact was also not mentioned in Ex.P/1 and Ex.D/1. In the court PW-1 Jalaluddin has further deposed that the main gate of the house of the accused appellant was locked from inside. This fact was also missing in Ex.P/1 and Ex.D/1. Similarly, in court he deposed that the door of the room from smoke was emitted was opened by villagers who came on the site and threw water inside. This fact was also missing in Ex.P/1 and Ex.D/1. The solitary explanation of this witness was that he was staled all these things to the police. He does not know how it is not mentioned in Ex.P/1 and Ex.D/1. On the contrary, PW-9 Sadhu Singh, Station House Officer, has deposed the whatever was staled by Jalaluddin was got written by him in Ex.D/1. Nothing was withheld nor anything was exceeded. Similarly Ex.P/1 written report was handed over to him by Jalaluddin. In such a situation it can safely be said that Jalaluddin had made large and extensive material exaggerations in the court statement, therefore, cannot be said to be a wholly reliable witness. His testimony is not of sterling worth.
13 The case of PW-2 Sharif is not better. He too has made many embellishments and exaggerations in the court statement which goes to the root of the case and damages his credibility beyond repair. In the court Sharif has deposed that portion 'A' to 'B' of Ex.D/2 has been wrongly written by the police. In above portion it is written that he alongwith Jalaluddin peeped though the door and saw accused appellant Tempu standing in the Court yard whereas in the court he has stated to the contrary that from the house of Brijlal they over looked the boundary wall of house of Tempu and saw him standing in the court yard. When they asked him how so much smoke is emitting out of house, accused appellant Tempu scaled the Similarly, in the court this witness has deposed that Sayara was subjected to cruelty by accused appellant on the plea of less dowry in the marriage. This fact was also found missing in Ex.D/2. Again this witness has deposed in the court that he alongwith Jalaluddin advised accused appellant not to ill-treat Sayara and come to terms. That fact was also missing in Ex.D/2. In the court his witness has deposed that Ranjit went to Hanumangarh and from thee went to Rampuria and met Sayara. That fact was also missing in Ex.D/2. The fact that the accused appellant scaled the southern wall of his court yard and fled away was though deposed in the court statement yet the same was missing in Ex.D/2, Even this fact was also missing in Ex.D/2 that this witness alongwith PW-1 Jalaluddin asked accused appellant Tempu how the smoke was emitting out of his house. Similarly, in the court he has deposed that the room in which occurrence look place was bolted from outside but the same fact was missing in Ex.D/2. The above contradictions and omission were in material particular and has damaged the testimonial value of this witness. Yet the trial court has over looked all these glaring infirmities and have held both these witnesses of sterling worth.
14. PW-1 Jalaluddin and PW-2 Sharif were admittedly residents of Barwali which was situated in different Tehsil and was quite a distance away. The possibility of their reaching on the site at he time of occurrence is not possible remotely. The possibility of immediate neighbours reaching on the spot at the time of occurrence was natural.
15. PW-3 Ranjil has admitted in cross examination that many residents of he village were present at the site before the police came there. It has also been mentioned in FIR Ex.P/1 as also staled by PW-1 Jalaluddin and PW-2 Sharif that many villagers assembled on the site and threw water in he room from where smoke was emitting. Thereafter roof of the room was broken open and from the hole water was thrown inside the room. Meaning thereby that many immediate neighbours and other villagers reached at the site and they should have been interrogated by the Investigation Officer and put up as witnesses of the occurrence. PW-8 Bismilla has also Brijlal, Daya Kishan, Ranjit etc. residents of the village were present at the site. Similarly, PW-9 Sadhu Singh, Slalion House Officer and Investigating Officer has admitted that when he reached the site there were about 30-40 villagers present. Brijlal, Manphool, Kashiram neighbours shown attached to the place of occurrence in Ex.P/2 site plan map. It is not stated how far the house of Kashiram was from the site, who was the person who climbed the roof and made a hole in it and threw water from there. It should have been better had the Investigating Officer recorded the statement of some of the close neighbours of the occurrence to inspire confidence in the prosecution version. The Station House Officer has not given a lame excuse for not recording the same.
16 In defence DW-1 Daya Kishan was examined who was the person who gave a telephonic call to the Station House Officer, Tibi intimating that a lady and two children were burnt to death at Rampuria, yet he was neither examined by the police during investigation nor put up as a witness in the trial court. Similarly, DW-2 Dharampal, DW-3 Brijlal and DW-4 Balram were the immediate neighbours of the place of occurrence. All witnesses witnesses have stated that after seeming smoke emitting from the house of the accused appellant they reached there. But accused appellant Tempu was not seen near about the house. They have again stated that they threw water in the room to extinguish the fire but of no avail. Then they climbed up the roof, made a hole in it and threw some water from there. Thereafter peeped from the above hole inside the room and saw Sayara and her two children were burnt to death. Thereafter police was informed. According to these witnesses occurrence took place at about 3.00 P.M. and police came at the site at about 6.00 P.M. Though these defence witnesses have been cross examined much yet their testimony cannot be brushed aside simply because they have been examined from the defence side. When the testimony of PW-1 Jalaluddin and PW-2 Sharif has been found replete with many embellishments and exaggerations tantamount to material contradictions and when both these witnesses are relative witnesses being brothers of deceased Sayara and were also residents of Rampuria the place far away from the place of occurrence and were chance witnesses and their presence at the site at the time of occurrence were a remote possibility and when there was no motive proved for commission of the crime, the trial court should have kept in mind the above deficiencies and infirmities in mind while analysing and assessing the prosecution evidence. Though hair splitting on the evidence ought not to be undertaken yet totality of the situation keeping in view the material omission and contradictions as also interestedness of the witness and their presence at the site at the time of occurrence should have been approached by the trial court rationally. After scanning and shifting the evidence should have been weighed logically and thereafter their testimonial value should have been assessed and analysed. It seems that the trial court was misled by the fact that there murders have been committed in the house of the accused appellant and, therefore, inspite of above glaring discrepancies and embellishments the trial court has not appreciated in proper perspective and adopted an unrealistic standard with unsustainable approach and the logic and reasoning adopted by it is also perverse causing miscarriage of justice.
17. When there are two views possible the one favourable to the accused shall be adopted. The possibility of Sayara committing suicide alongwith her two children cannot be ruled out. Such suggestion in cross examination was made to PW-1 Jalaluddin though denied by him yet the report of viscera Ex.P/27 on the dead bodies indicated that in was positive for the presence of Aluminum Phosphide. Meaning thereby that prior to the burning some poisonous material was also taken by he deceased persons.
18. For the reappreciation and reassessment of the prosecution evidence made by us in our considered opinion the benefit of reasonable doubt should have been extended to the accused appellant.
19. Consequently, we do not find any merit in the impugned judgment, set aside the same, accept this appeal and acquit accused appellant jagdish alias Tempu of the charge. He is in jail if not required in any other case, he be set at liberty forthwith.