HIGH COURT OF CHHATTIS‘RH BILASPUR \ GA lxir ~ CORAM: Hon’ble Shri Raieev Gypta, C.J. & Hon’ble Shri Sunil Kumar Sinha J. Criminal ApILeal No. 659 of 1994 Lalan Prasad Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration 5‘ _ Sd/- SUNIL KUMAR’SINHA —”1 ‘ Juge _ HON’BLE SHRI JUSTICE RAJEEV GUPTA W’ Chief Justice POSt for Judgment ;‘g//o3/2011 sax. SunitKumar Sinha Judge r d J 1 km? @ \ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha J. Criminal Appeal No. 659 of 1994 Lalan Prasad, son of Bulluram Dewangan, aged 31 years, Cultivator of Village Misda, Police Station Sheorinarayan, District Bilaspur APPELLANT Versus RESPONDENT The State of Madhya Pradesh (Now State of Chhattisgarh), (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1 973) Appearance: Mr. Vishnu Koshta, Advocate for the appellant. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (og .o3.2o11) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directedagainst the judgment dated 29.6.94 passed in Sessions Trial No. 128/90 by the First Additional Sessions Judge, Bilaspur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. 2 Criminal Appeal No. 659 of 1994 deIiVered a male child. When she was asked by the in-laws, she admitted that the child delivered was that of Lakhan Koshta. On this, in-Iaws called her father Ramdayal (PW-6) and handed over the child and Tija Bai to him. Ramdayal (PW—6) then organized a village Panchayat in village Misda. Many persons including the prosecution witnesses, Lakhan, accused No.1 — Bulluram and accused No. 5 - Dhanauram (died during the proceedings of committai proceedings) gathered in Panchayat. Lakhan admitted thathe had illicit relations with Tija Bai and the child born out of their illicit relations. The accused persons admitted to keep Tija Bai and child with them in their family and they took the child and Tija Bai with them. Out of 5 accused persons, A-1 Bulluram is father of Lakhan Prasad, A-2 Lalan Prasad and A-4 Shobharam are the real - brothers of Lakhan PraSad and A-3 Darasram is uncle of Lakhan Prasad. On 27.8.85, the accused persons were taking Tija Bai (PW-1) and her child to Korba for‘their treatment. They were accompanied by Smt. Panch Kunwar @ Pancho (PW—2 — mother of , Tija Bai), Narottamlai (PW-4 — brother of Tija Bai) and Ramcharan (PW-3). The allegations are that at about 4.00 a.m..when they reached near Bhatelighat, which is at distance of 14 Kms from their village, Lalan Prasad (A-2, appeliant herein) snatched the child from Panch Kunwar (PW—2). Thereafter the accused persons went to the river side and Lalan Prasad (A-2) threw the child in Hasdeo river. When Tija Bai (PW-1), Smt. Panch Kunwar (PW-2), Ramcharan (PW-3) and Narottamlal (PW-4) tried to go to the river side, they were stopped by other accused persons. Thereafter the accused persons threat\ened them and all disbursed from the bank of river. Tija Bai (PW-1) went to the house of her brother namely Purusottam (PW-5), who was residing in Balco and was taking operator training. No body disclosed the matter for a very long time. However on 22.10.85 a written report (Ex.-P/1) was submitted by Tija Bai (PW-1) before Superintendent of Policeg Bilaspur, who directed the inqUiry. During the course of inquiry, 161 Cr.P.C. statements of Tija Bai (PW-1), Smt. Panch Kunwar (PW-2), . Ramcharan (PW-3) and Narottamlal (PW-4) were recorded on / 3 {x Criminal Apgal No. 659 of 1994 15.12.85. They supported the story mentioned in the written report iodged. Tija Bai (PW-1) was medically examined and ’the Doctor opined that she had delivered recently. The dead body of the child could not be traced. After completion of usual investigation, the charge-sheet-was filed in the Court of Judicial Magistrate First Class, Bilaspur. Dhanauram (A-5) died during the committal proceedings. The learned Magistrate committed the matter to the concerned Sessions Court, from where, it was received on transfer by the First Additional Sessions Judge, Bilaspur, who conducted the trial and convicted & sentenced the appellant (A—2) as aforementioned. However the other co-accused persons were acquitted of the charges framed against them u/s 302/34 IPC. % (3) - the other 3 accused persons shared common intention for commission of murder of the deceased (child). Relying on the testimonies of Tija Bai (PW-1), Smt. Panch Kunwar (PW-2), Ramcharan (PW-3) and ‘Narottamial (PW-4), the Sessions Judge held that the appellant (A—2) snatched the child from Panch Kunwar and committed his murder by throwing him in Hasdeo river. Mr. Vishnu Koshta, learned counsel appearing on behalf of the (4) appellant, argued that there is inordinate delay in lodging the F.l.R. (Ex.- P/1); there is also long delay in recording 161 Cr.P.C. statements of prosecution witnesses; the dead body of the child has not been traced by the police; even the above eye-witnesses did not disclose the above fact for a long time to any other person in the village; and according Tija Bai (PW-1), she had disclosed all this’ to her brother Purusottam (PW-5) on the same day i.e. on 27.8.85, but Purusottam (PW-5) also did not lodge The learned Sessions Judge held that it was not established that 4 Criminal Appeal No. 659 of 1994 any report. He did not disclose lall this to any other person in the village, though it comes in his evidence that he had visited his village after meeting Tija Bai (PW-1). Mr. Koshta has cited various decisions on the above points, which we shall discuss later on. (5) Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on J behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) In Ramii Surjya and another —Vs- $tate of Maharashtra, AIR 1983 SC 810, there was extra-ordinary delay in lodging the F.l.R. and there Was also failure of the prosecution to explain the delay. The reason given by the prosecUtion for inordinate delay in reporting the incident to the police outpost was hardly convincing. The Supreme Court held that in ‘ 1: J such circumstances, the F.l.R. should be viewed with suspicion. (8) ln Dilawar Singh —Vs- State of Delhi, AIR 2007 SC 3234, it was held that in ert‘minal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented beforethe‘ Court at the earliest instance. That is why if there is delay in either coming before the police or befo‘re the Court, the Courts always view the allegations with suspicion 5 Criminal Appeal No. 659 of 1994 and Iook for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. (9) ln Mahtab SLrLqh & Anr. —Vs- State of U.P., AIR 2009 SC £298, the incident took place few yards away from Police Station but eye- witness, informant did not repon the matter to Police Station immediately. They got a written repOIt prepared from one person and then went to Police Station with written report. The Supreme Court held the delay in reporting incident at police station creates doubt about truthfulness of prosecution case. (10) If case on hand is examined on the above principles, we find that r the alleged incident took place on 27.8.85 at about 4.30 — 5.30 am. and a written report (Ex.-P/1) was submitted to the Superintendent of Police on 22.1‘O.85’; that means the matter was reported to the_ police by Tija Bai (PW-1) after a Iong time of about 2 months. This written report contains, in the last 4-5 lines, that complainant— Tija Bai (PW—1) had also repoted the matter to police station Sheorinarayan. If we appreciate the contents. of tt}e written report on the face of evidence of S.N. Pandey (PW-10), the then Station House Officer Sheorinarayan, it comes in his evidence, Para-5, that before receiving the report (Ex.-P/1), he did not receive any report from Tija Bai (PW-1) or any other member of the complainant family. Therefore, the version contained in the written report that the matter was firstly reported to the police station is false. Tija Bai (PW—1) deposed that she was threatened for lodging thetreport However when she reached to the house of her brother- Purusottam (PW-5), she immediately disclosed all this to him, but even Purusottam (PW-5) did not c 6 Criminal Appgal No. 659 of 1994 lodge any report. Purusottam was residing in Baico. He was taking there some operator training. This shows that he was an educated person. Purusottam, after the disclosure by Tija Bai on 27.8.85, had visited his village andhad met with the family members, but he did not disclose all this to any body and on that occasion also he did not lodge a report. Apart from the above, eye-witnesses namely Smt. Panch Kunwar (PW—2), Ramcharan (PW—3) and Narottamlai (PW-4) also did not lodge any report to the police. The explanation given by Tija Bai, on the face of the contents of the evidence of S.N. Pandey (PW-10) as also on her own conduct and conduct of all the family members and the eye witnesses, was not at all convincing and satisfactory. Therefore, we are of the view that un-explained inordinate delay in lodging the F.l.R., in light of the above judgments of the Supreme Court, was fatal to the prosecution. w rx,“ g (11) We further note that even after lodging the ’F.l.R. (,Ex.-P/1) on 22.10.85 of the incident of 27.8.85, 161 Cr.P.C. statements of the above eye-witnesses i.e. Tija Bai (PW—1), Smt. Panch Kunwar (PW-2), Ramcharan (PW-3). and Narottamlal (PW-4) were recoreded on 15.12.85. \ Before that, even they did not disclose these facts to anyone to the village. (12) ln Balakrushna Swain —Vs- The State of Orissa, AIR 1971 SC 804, it was held that unjustined and unexplained long delay on part of investigating officer in recording statement of material eye witness during ‘ investigation of murder case will render evidence of such witness l *lunreliable. 7 Criminal Appeal N0. 659 of 1994 (13) Further in Prem .Narain and Another —Vs- State of MadhKa Pradesh, (2007)! 15 SCC 485, the Supreme Court held that non- mentioning of the name of the eye-witness in the F.l.R. is not a significant omission bot What is material is the content of statement of eye-witness. in the said case, the eye—witness was constantiy in touch with investigation officer but his statement was recorded after one—and-half months. The Supreme Court held that if his statement was not recorded on the date Of incident or within reasonable time therefrom, it has to be viewed with caution. a f \‘i (14) In case on hand, we find no reason as to why the Investigating Officer caused such delay in recording statements of above witnesses which were recorded after more than 3 & 1/2 months of the date of the incident. If, in fact, such incident had taken place, in normal human nature, the eye-witnesses would have disclosed all this to the police or' even to the villagers on some earlier occasion which they did not do and 7 , ultimately everything was disclosed after such a long period. The unexplained inordinate delay in disclosure of the inCident by the above witnesses 'creates doubt on the testimonies of these witnesses making their evidence unreliable and untrustworthy. (15) Mr. Koshta has also argued that the dead body of the child was not recovered in this matter, therefore, it was not safe to convict the appellant for commission of murder of the above child. This argument relates to the proof of -"corpus delicti". Principally the recovery of dead body is not an ' essential ingredient of an offence of murder. In Mani Kumar Thapa —Vs- ll State of Sikkim AIR 2002 SC 2920, it was held that “In a trial for l/ _—‘———I—-————— 8 Criminal Appeal No. 659 of 1994 murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in‘some cases may not be possible to‘be' traced or recovered. There are a number of possibilities where a'dead body could be disposed of without trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any / v other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced”. r‘ A «’4‘ (16) Therefore, in a given case, if the dead body was not recovered, that by itself would not be ground to reject the entire case of the prosecution or to hold that the offence of murder was not established. What is required in law is that an offence of murder was committed and it was proved beyond all reasonable doubts by direct or circumstantial evidence. In the present case, as we have already held, the witnesses to the. effect of commission of murder of the deceased (child) by the appellant were not reliable on account of their conduct and further. on account of inordinate delay in disclosure on their part. Therefore, non-recovery ofthe dead body would not be of much importance in the facts and circumstances of the present case. m 9 Criminal Appeal No. 659 of 1994 (17) On appreciation of the entire evidence available on record, we are of the View that it was not estabiished beyond ail reasonable doubts that the appellant committed murder of the deceased (child) in the manner indicated above by the prosecution and the story set forth by the prosecution appears to be doubtful. (18) For the foregoing reasons, we allow this appeal and set-aside the conviction and sentence awarded to the appellant u/s 302 IPC. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- - , i Sd/. Chief Justice vatti was ‘