[mi HIGH COURT OF CHHATTISGARH BILASPUR CORAM: HON’BLE SHRI RAJEEV GUPTA, C.J. 8a HON’BLE SHRI SUNIL KUMAR SINHA, J. Criminal Appeal No. 238 of 2003 APPELLANT Pradeep Kumar Jaiswal, so Ghanshyam Jaiswal, aged about 20 years, R/o Bageechapara, RS. Narayanpur, Distt. Bastar (CG). Versus RESPONDENT State of Chhattisgarh, through P. S, Narayanpur, Distt. Bastar (0G). Criminal Appeal No.470 of 2003 APPELLANT Satish David, ’S/VO Miakal David, aged about 23 years, Driver, R/o Bagichapara, Narayanpur, PS. Narayanpur, Dist. Bastar (CG). Versus State of Chhattisgarh, through P. S. Narayanpur, Distt. Bastar (C.G . ). RESPONDENT And Criminal Appeal No.784 of 2003 a / 6 APPELLANT Rajendra Kumar Dugga, s/o Jaitram Dugga, aged 22 years, Occupation Driver, R/o Nayapara, Narayanpur,‘ RS. Narayanpur, Distt. Bastar (CG). Versus RESPONDENT State of Chhattisgarh, through Station House Officer, Narayanpur, Distt. Bastar (C'.G). Ms, Sudha Agrawal, co'unsel for th 238/2003 e appellant in Cr.A,No. Smt FouZIa Mirza counsel for the appellant in Cr A No 470 2003 Shri SK. Mishra counsel for the ap 2003 ‘ Shri Ashish Shukla Criminal Appeals. 2 Followmg Judgment of the Court was dehvered b Suml Kumar Smha, J1 I [1) These appeals have been direeted against the judgment Vand order dated 3.2.2003 passed in Sessions Trial No. 422/2002 by the Special Judge under the Scheduled Castes and Scheduled ”lrlbes (Preventlon of Atrocmes) Act 1989 Bastar at Jagdalpur whereby, the appellants have been conv1cted and sentenced 1n the following manner Wlth a I concurrently:~ Conviction u/s 302/34 Ipc u/s 376 (2) (g) Ipc ah l Sentence Imprisonment for life and f1ne of R32 OOO/ 1n default of payment of f1ne to further undergo R l for l year RI. for 10 years and default of payment of f1ne to further undergo RI for l year Criminal ADpeal Nos. 238 of 2003. 470/2003 & 784/200 JUDGMENT (20.08.2009) ld/ drther direction to run the sentences fine of Rs.1,000/—, in . pellant in Cr.A.No.7a34/ . X/a ) Govt. Advocate, for the State in allvihe y 3 h Qriminal Appeal Nos” 238 of2003. 470/2003 &"784/2003 u/s 377/34 IPC RI. for 5 years and fine of Rs.l,OOO/-, in default of payment of fine to further undergo R.I. for 9 months u/s 201 IPC RJ. for 3 years and fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 6 months. (2} The facts, briefly stated, are as under:— . Deceased Jana Usendi was the daughter of Ghasiy (PW—1). She was a member of Scheduled Tribe (Gond). Sh was working as a teacher in Primary School, Paralbhat. 31.12.2001 at about 10.00 a.m., she went to the school o her bicycle from village Duggabegaon,’ where she was residing with her father. When she did not return back till the morning of 2. i .2002, her father went to Village Paralkot.. Iii It was told to him that his daughter had returned from the school on 31.12.2001. When he was returning to his Village, H he saw the bicycle of his daughter on the way. On a search, \ 1 “ : he found the dead body of his daughter in a pit. He "gave H information to P.S,'Narayanpur, on which, a Merg intimation . (Ex.-P/ 16) was lodged on 2.1.2002, based on which the First Information Report was lodged under EXP/23. The Investigating Officer, reached to the scene of occurrence on .1 3.1.2002 and recorded a Dehatinalishi (Ex.-P/17). After i gi‘ving notice (Ex.—P/ 18) to the Panchas, inquest (Ex.-P/3) on the bodyof the deceased was prepared and the dead body o the deceased was sent for its post—mortem to Primary Healt Centre, Narayanpur under Ex.-P/2l. Blood stained soil, plain soil and 2 pieces of blood stained stones were seized from the place of occurrence under Ex.—P/1. One bicycle, a rubber tyres of 4 wheeler vehicle were also seized from the ‘ a pair of Hawai Chappel and soil containing the impression 'of a e O ‘ ‘ ., f h" 4 Cl‘inmgLAppgLl_I‘\bs,. 238 (£3003. 470/2003 & 784/2003 place of occurrence under Ex.—P/2. Site plan was prepared . under EXwP/22. The post—mortem examination 'was a conducted by a team of two Doctors including. Dr. Kamal Kant Sori (PW—14). They prepared their report ‘EX.—P/23 (again marked as EX.—P/23) The Autopsy Surgeons fo'un many scratches (nall marks) on varlous parts of the body of the deceased They also notlceo. mult1p1e abrasmns over the back There was a lacerated wound over the nose s1ze 3 cm - Ix 4 cm There was another lacerated wound of 4 cm over th left ear Another lacerated wound was present over left zygomatrlc reglon s1ze 2 5 cm X o cm and another lacerate wound was present on rlght occ1p1tal reglon s12e 3 crn’x cm On mternal examlnauon they found that there wer tractures of zygomatnc bone left parletal bone and nght. occ1p1tal bone. Hymen was old. ruptured and anus wa dilated. Slides from vaginal and anul swab were prepared and handed over ior their further exammatlon The Autopsy Surgeon oplned that the cause of death was syncope due to excesswe bleeding from the external and internal injuries o the head and 1t was hom1c1dal 1n nature During the course of further 1nvest1gation on 9 l $002 statements of 2 Witnesses namely Mangal (PW 2) an Mankuram (PW 3) were recorded They disclosed that o 31 12 2001 at about 4430 pm they had seen the appellants forc1bly dragging the deceased towards the fores It 1s on this disclosure the appellants were taken into custody and memorandum statements of appellants Pradee Kumar Jaiswai and .Satish David (Ex-P/s a p/e) w’er recorded u/s 27 of the Ev1dence Act on 9 l 2002 and som Cloths were seized at their instance under EX P/lO 86 P/9 Some othei cloths of appellant Satish DaVid were also seize under Ex P/ ll Cloths of appellant Rajendra Kumar Dugg \Aere seized under Ex P/i3, Sealed bottles contaming Sample of semen of the appellants and the slides prepare y d': e : : d 3 e ;V s ~ f d n: t -‘ p,‘ d a" d l Criminal ADDeal Nos.. 238 of 2003. 470/2003 & 784/2003 V_ from semen were also seized under EX.—P/14 86 P_/15.. Appellant Rajendra Kumar Dugga was put' for identification by Mangal (PW—2) and Mankurarn (PW—3). The identification parade was condLicted by the Executive Magistrate SOni ‘Meriya (PW—11), in which, the said Witnesses had rightly identified appellant Rajendra Kumar Dugga through identification memo Ex.~P/4. The sei’zed articles were sent' for their chemical examination to ‘ Forensic Science Laboratory, Raipur; from where, a report Ex.—P/42 was‘ received. According to the F.S.L. report, blood stains were found on stained earth, stones and cloths of the deceased as: also on the fulpainz‘s of appellants Satish and Pradeep Human sperms were found. on cloths of the deceased, on underwears of appellants Satish.& Pradeep and in the slides prepared from the vaginal and anus swab of the deceased. However the origin and the group of blood stains couldinot be ascertained, After completion of usual investigation, the char-ge- sheet was filed in the Court of Judicial Magistrate, Firstr Class, Narayanpur, who in turn committed the matter tor~the Special Judge, Bastar at Jagdalpur, who conducted the trial and convicted and sentenced the accused/appellants as aforementioned. However the appellants were acquitted» of I the charges framed u/ss 3 (1) (xii) and 3 (2) (v) of (the Scheduled Castes and Scheduled Tribes (Preventioniof At‘rocities) Act, 1989. (3) The conviction of the appellants is based on the testimonies of Mangal (PW—2) and Mankuram (PW—3). One had seen the appellants forcibly dragging the deceased towards the forest and the other met them while they Were coming out from the forest. 4! - ‘ t: : ? ? tin ‘) f‘ ‘ ‘ if r i = 6 Criminal AppegiNos.. 238 of2om 470mm X, 7RA/7nm (4) Learned counsel for the appellants argued that the incident took place on 31.12.2001 at about 4.00 p.m. and the dead body o the deceased was found at about 6.00 p.m. on 2.1.2002. The statements of these witnesses were recorded on 9.1.2002. The Witnesses have not assigned any reason for their late disclos after about 9 days. Therefore, their conduct was unnatural: an :'\ highly suspicious, they'were untrustworthy and the cont/:iftio based upon their such testimonies cannot be sustained. (5} On the other hand, Mr. Ashish Shukla, learned Go Advocate appearing on behalf of the State, opposed th arguments and supported the judgment and order passed by the Special Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) Ghasiya (PW—1) deposed that his daughter Jano Usendi used ‘ to go to village Paralbhat in the morning on her bicycle and/{ashe used to return back in the evening. When she did not return for‘2 days, he went in search of her. He found her bicycle in the I'vvay When‘he made further search, her dead body was found in apit In thecross examination, he admitted that when the police pa came for Panchnama at the place of occurrence, Mankuram 3} was present there. The police could not know as to how, incident took place. Police ,was saying that a girl has b molested, therefore, somebody has to be arrested. b f u d n e vt 5 ; . r ( / Criminal Appeal Nos.. 238 ofQQQQL47O/2OO3 & 784/2003 that “The appellants and the (8) (PW—2) depos€d deceased were known to him. On the fateful day, he had gone to Village Narayanpur for selling wood. When he was returning to his village, at about 4‘00 p.m., he saw that appellant Satish David was dragging the deceased. Satish threatened him that if‘he would disclose this to anybody, he will be killed. They were 3 persons. All \ the 3 persons are present in the Court. He had also seen the bicycle at the place of occurrence. The bicycle was of the deceased. When he was going to his house, Mankurarn (PW—3) met him on 1V1 an gal lo the way. He narrated the story to Marikuram and he also told him 3 ‘ about the threatening given to him by accused persons”. ln the cross examination, he admitted that he had seen the occurrence . by hiding himself behind the tree. He also admitted that he had ‘ H ; 'i police He had seen that ‘ i i Gone to see the dead body along With the 3 persons were dragging the lady and they had dragged her to the place where her dead body was found. Satish and Pradeep ha t aucht the hands of the deceased and Rajendra had caught he legs. He had told the police that the lady had been taken in th above manner and if Lsame is not mentioned in his case diar statement (Ex,—D/ l), he cannot tell the reasons for the same. H fuitner deposed that he had not disclosed this to the police on earlier occasion on account of threatening given by the accused persons. However, he disclosed all this to the police after i a He further admitted that the police had recorded his state for S times. He also admitted in the last para of his examination that when Ghasiya (FW~1) was searchi C) a fi v‘ d r e y e c dvl m ' i ng I 8 Criminal AppeaL’NiQi' 23$£137002 470/2003 & 784/2003 daughter, he had met with him but he did not disclose all this t. him, He also admitted that he was not knowing the names of the accused persons prior to the incident but he came to know about their names when the villagers told him. i- (9) Mankuram (PW—3) deposed that “On 3l.12.2001, hewas going to Narayanpur. The appellants crossed him by a motorcycle. % l, i, Appellants Satish David: and Pradeep were known to him. hlg‘was ‘ ’ I knowing Rajendra Dugga by face. He returned back to his house for taking money and when he again started going towards Narayanpur, Mangal (PW—Z2) met him in the way. Mangal (PW— stated that 3 persons are taking the madam (deceased) towards ‘ the forest. Satish has threatened him that he should not tell this fact to anybody, otherwise he would be kil‘led. He saw a bicyc lying on the road. When he reached near the bicycle, he saw th the appellants are coming out from the forest side. Appella Satish came to him and threatened him”. ./ ‘x', / (10) Admittedly, 161 statements of these 2 witnesses‘iiiW— Mangal & PW—3, Mankuram) were recorded on 9.1.2002. This shows that they had not disclosed the alleged facts for about 9' days.‘ The evidence oi PW-l, Ghasiya, shows that PW—3,‘ Mankuram, was present at the time of inquest which was prepared on 3.1.2002. Likewise it also comes in the evidenc Mangal (PW—2) that he had met Ghasiya when Ghasiya searching his daughter but he did not disclose the fact of incid to him. If these witnesses had in fact seen the appellants draggin gm o .’ 2 . i 1‘ i l at: n‘ Z; u e» e g Xi? ‘ Criminal Appeal NQS ’HR ni‘700? 470/700? XI. 784/?003 the deceased towards the forest, why they did not disclose this facts to the police at the earlier occasions. PW~2, Mangal, even did not disclose this facts to the father of the deceased who was searching the girl and PWe3, Mankuram, who was present at th time of inquest, had also not disclosed all this. They have stat J that they were threatened by the accused persons. We are unabl to accept the above explanation of these witnesses. If PW-2,” Mangal, was threatened, as he has alleged in his evidence, why he disclosed these facts to Mankuram (PW~3) on the same day. (11) 1n Baldkrushna Swain -Vs- The State of Orissa, AIR J 1971 SC 804, the Apex Court held that unjustified and unexplained long delay on part of investigatingofficer in recording statement of material eye—witness, u/S 161 Cr.P.C., during investigation of murder case will render evidence of such witness unreliable. Because the delay would give an opportunity to ,j concoct a different version than what actually took place. €12) In State 0{ Orissa —Vs- Mr Brahmananda Nanda, AIR ‘ 1976 SC 2488, eye—witness did not disclose the name of assailant ‘ [or a day and a half. The Apex Court held that where in a murder . ‘ case the entire prosecution case depended on the evidence of person claiming to be eye—witness and this witness did no disclose the name of the assailant for a day and a half after the incident and the explanation offered for non—disclosure was unbelievable; such nondisclosure was a serious infirmity which destroyed the credibility of the evidence of the Witness and the z» a q t” e e! . 10 Qriminal Apgggil Nos.. 238pf 2003. 470/2003 & 784/2003 High Court was correct in rejecting it as untrustworthy an acquitting the accused. (13) In Bachhu Narain Singh -Vs- Naresh Yadav and other AIR 2004 SC 3055) for over period of one hour while Investigating Officer was preparing inquest report, no one coming before him claiming to be eye—witness and to lodge report abou \\ . occurrence though there were alieged to be ten eye—witnesgies. Th report was lodged after more than one and half hour” after Investigating Officer came to place of occurrence. The Apex Cour said that the presence of informant and alleged eye—witness atthe time of occurrence appears to be doubtful. There was seriou s}; doubt about presence of the eye—witness at the time of occurrencef (14) We have no doubt to say that no straight—jacket formula can be applied in all cases of late disclosure by eye—witnesses and the credibility of the witnesses are to be judged in the prevailing facts and circumstances of each case. However that judgment should be arrived at keeping in mind the normal human conduct‘an‘a‘, the probable i circumstances including the explanation offered regarding non—disclosure of the facts relating to commission o such a heinous offence. In the present case, the witnesses had frequently met with the police and the father of the deceased Wh o was in search of his daughter. They did not disclose about the incident to them. The only reason which they have assigned a the threatening given by the accused persons. If in fact this Was - the reason, why PW—2, Mangal, immediately disclosed this fac" ‘ \\ to d .. s, ‘ t e _ t , ‘ i f " s ’11 (11111111511 Appeal 05 738 of MO: 470/9003 & 784/7001 PW~3, Mankuram as is claimed by him and which also was the case of the prosecution. The police was throughout with them. How~the fear of threatening vanished after 9 days when thy suddenly disclosed the alleged incident to the police. We are unable to accept such explanion given by these Witnesses as the explanation offered for nondisclosure was unbelievable, such non—disclosure was a serious infirmity which destroyed the' credibility of the evidence of these itnesses and we do not rely on their testimonies on account of their such conduct. (15) For the foregomg reon we are of the cons1dered Vlew that the learned Spec1al Judge s not Justiied 1n conv1ct1ng the appellants or cm1ss10n the aforesad offences. (16) In the resul, the appes are allowed. Th conviction and sentences awarded to the ap lants u/ss 302/34 376 (2) (g 377/34 85 201 of the IPC are set aside. The appellants ar acquitted of the charges framed against them. lt is stated that th appellants are continuosly in jail since 10.1.2002. They be set at liberty, forthw1th 1f not required in a case. y e Wk ) ‘ ._ 3m. Sdl- _ \ jlChief Jtice Suml Kumar S ' mha - r e’ Judge vatti e at w ass wa f f om ol i t al e p l ) e u ny onier us { r \ L l"