HIGH OOURI‘ OF CHHATTISGARH BILASPUR Criminal Appga’l No. 26 of 2006 Shankar @ ’I‘tmu s/o Sukdcv, aged about 25 years, midcnt of village Kumhanas Kukanar, RS. Kukanar, Distt. South Bastar, Dantswam (C.G) Vs. 1w RE$POIDEIIT State of Chhat1isgarh through P.S. Kukanar, Distt. Danfcwara (South Bastaxj Distt, Basmr (C.G) Appellant annual Amnl no.27/2006 Santu @' Motu s/o Sukdeo, aged about 22 years, msidmt of village Kumharms Mararpara, Kukanar, P.S. Knkanar, Distt. South Bastar, Dantewaxa(C.G) Vs. State of Chhattisgarh through P.S. Kukanar, Distt. Dantcwara‘ (South Bastalj Distt. Bastar (C.G) Criminal Appeal No.28I2006 Sukdhv @ Gonga, s/o Sudu, r/o 7 village Kumhanas Mararpara, Kukanar, P.S. Kukanar, Distt South Bastar, Dantewaré (C.G) Vs. State of Chhattisgarh thmough RS. Kukanar, Distt. Dantewara (South Bastar) (C.G) DB: Hon’ble 5hr! L.C. Bhhdoo. Hon’ble' shti Snnil Kumat Sinha, JJ, Aypemunce: Ku. Shannila Singhai, counsel for the appellants. Shri Akhil Mishra, Panel Lawyer, for the State. ‘ Z _ Cr. A. No. '26 of 2006 DB: nén’ble shri L.c. nhadoo‘ Hon’ble Shri Sunil Emu Sinhg, JJ‘ ORAL-WENT ‘ u4.9.2oo7) v The following judgnent of the Court was delivered by un§1 Kama: Sinhu. J, ' (1) Criminal Appeal, No.26/2600 led by accused appellant simkar @ Tunnu, Cr.A.No.27/ 2006 med by Santa @ Mom and Cr.A,No.28/2006 $611 by Sukdeo @ Gonga are arising out of the samt‘. judgnent passed in Sessionsl’l‘rial No.303/2005, fherefom, they are being disposed oEby thié common judynent. (2) ‘ These appeals ‘are dimcted against the judgment of convicn‘on and Older of sentence dated é‘l December, 2005 passed by the Sessmons Judge Jagdalpur (Bastar) in ST No 303/2005 whez :by ‘hm said Court 30a holdmg the appellants gwlty for the onenbe pnmshable u/s 302 lead With secuon 34 & sectlon 201 I P C sentenced them to undergo nnpnsonment for hfe and RI for l yeaxs Wlth a further snpulanon that the sentence awaxded u/ s 2.01 IPC shall be deemed to be adjusted 1n the sentence of hfe imprisonment. (3) The ease of the prosecution is that on 18.5.2005 at about 2.40 p.m., the mother’of‘the deeeased namely Setobah' lodged a men’ intimation (Ex.P.16) in the police stan'on that on 16.5.2005, the deceased namely Fooldas had gone to Badhai-Tikaraparax along-with his wife to attend a mai‘riage. .On 17.5.2005 in the aften noon, ‘he mturned back and afterrtaking his meals, he again Went to the place of mamage saymg that he ls gomg to bung back his wife. He dld not Ieturn 1n the night On 18 5 2005 at about 8 /' a m one Durbal Badhm came to her house and told that deceased i : Fooldas has committed smc1de by hangng himself {mm a Mahua tree near the house of hls father-m-law On Iecexvmg such mfonnatlon, she went to the sa1d place and saw the dead body of her ~on In the merg mnmatlon, it has been mentioned that wlnle i lodging. such mhmahon she was accompamed by the w1fe of th ' deceased'namely Foolmati (P.W.2), Navi Singh 85 Fool Chand. Aiter waiving such information, the Station House ,OfEcer leit for the - place of occunence, gave notice to the Ponchos under EX.P.17, S ‘ ‘ I e . me1‘“ int'mau'on, the mt informafio mport EXP- was registered b e ’ 4 mt compeon o he vsa, cre eet as ed () A ln f t metighon hag sh w 1 n our of Jul M'am, FstCss, aglpur, who urni m cae of es Jud li t s d led ssi le i ci t e as mon W oolat s ”t if oeoa (5) earned counsel for the appells argues that oolmau' (RWQ) eing the wife f deceased is n intexested Witness. She aso algued that apt fmm this, otheise also he evidence is t ieliable as here are mny materi discrepancies in her evidee as also in hr cnduct. 6? O the other han earned State Counsel opposes these amniments and supports the judgment of conwcuon and order o sentence passed by the tnal Comt. (7E We have heard learned counsel for the parties at length and ha" i? also perused the records ofthe Sessions Case. 3i Admittedly the learned mal Court has relied on the sole e mony of P W 2 Foolmah (Wife of deceased) She has deposed hat her husband Fooldas was murdered by Dhunu, Motu & otrga (all the appellants) She has deposed that she had gone to parents place alongwrth her husband and when they were rex timing horn her parents place, on the way, they had stayed 1n thz house of Dhunu for some time, ’where her husband had asked Say? (an mtoxrcant juice extracted hum a tree) n‘om Dunu on w ooh Dhunu started abusrng him and therealter, Dhunu presset the neck of her hushand and he also kicked on his testlcles, due to which, her husband fell down on the ground. She has further deposed that her husband was ‘heaten by Shankar @ Dhunu, Santn @ Motu and Sukdev @ Gonga and all the three had assaulted him. She has further stated that after seeing the aseault, she ran away horn the place of occurrence. In para 2 of I her examination-imchief, shehas. deposed that she hidd herself behind a Banyantree and eawvth'atall the accused persons took-I i me ct dma agsu ‘lrIa Jda 1n t‘ comitted the s to the Court Sssion ge, Jagdalpur were the rial wa conduete. The arne esons Judge after comption of the tral ’onvcfed and senenced th. appellnt as ye nvi of th aan b e :afomenu'oned. The ooch'on e ppellts is ased upon th sole tesh‘y of P..2 Fmi, who i he we fdesed. (RA No. 26 of 2006 -a n 9 y I h S H O L ant F b o a l ar ewn' iw r I “m t a al 1 nc e o 1‘ n d l f ( t t G Qr,A. No. 26 of 2006 @ plepamd inquest on the body of deceased under EXP. 18 and sent the body for Postmortom examination under Ex P 19 to Primaly Heaith Center Tongpal One palr of shppers, one md shut and one ted colouled Topy, were sewed nom the place of occunence under Ex.P.20. The s1te plan was pmpared under Ex.P.22. The posmiortem was conducted ‘by Dr.L.L. Dhankar (P.W.5), who pxepaxed his report under Ex.P.7. Accoxding to the postmortem mport, both the eyes of the deceased, were closed, face was congested, tongue was pronuded out {mm the mouth, water mixed blood (Md blood) was coming hum the nostrils, foul smell was ' coming nom the body as thevdecomposin'on has started, abdomen was swollen, both the hands were smeared with dark coloured dried ‘vblood, Penis was swollen and congested with redness of plepuce and glans. Groin wasvred and congested. There was a liga1u1e mark situated above the thyroid cartilage between the larynx and chin There was a smgle knot 1n the loop The llgature mark on the neck was 1’ in breadth He noticed the following Injuries on the body e (1) l (2) An‘abrasion on the right forearm admeasuring 2" x V4” An abrasion on the right fore arm admeasuring 1 ‘/2’ x 3,2- An abrasion on the right thigh admeasuring l V2” x V2” An abrasion on the led lmee admeasuring 1" x 1" Another abrasion on the right knee admeasunng l V2 x V2 A contusion over the scrotum anterior aspect in size of 2 V2’ x 2 Y2”. The outer portions of the injury i.e., the adjacent regions were congested 85 blacldsh in cobur. (7) A contusion on the right side of pubic region above the I root of Penis admeasunng 2 V2 x 2 V2 Another oontusmn on the vennal porhon of Pems admeasurmg 1’ x 1" All the mjunes were antemortem in nature lnJurres No 1 to 5 were caused by hard and rough oblect. InJury no.6 to 8 were caused by blunt weapon. According to him, all the injuries were caused within the durah‘on of 35 to 37 hours from the time of postmortem. According to his opinion, cause of death was shock ovving to kicks on the testicles. Atter receiving the postmortem report based on (3) (4) (5) (6) (8) -: j , ' J Cut, No. 26 of 2006 @ the body of her husband to the agricultural land of her father and they hanged the body mym a tree with the help of a Gamcha. She mrthet deposed that due to fear, she did not disclose this stoxy to anybody and she returned back to her house; In para 3 of her examination, she has deposed that aher two days of the said incident she had gone to the Police Sfah'on and had disclosed the stoiy them. She has also deposed that Kotwar namely Balsingh, Mim, Chaim and others had also gone to the Police Station and the police had prepared some papers, on which, her signature was taken. In Para 5 of her cross examinah‘on, she has admitted that there are many houses situated near the house of accused persons. She has also admitted that when the accused persons were beating her husband, she did not raise alarm. She has further admitted that when she Ian' away towards Banyan tree, she saw that her husband was being taken by the accused persons and at that time also she did not raise alarm She has admitted that the river, near which the tree is situated, is at a distance of 3 furlongs n‘om the place of occurrence“ In Para 6 of her cross examination, sheghas admitted that on the next day her mother-in- law Saito Bai has gone to lodge the report in the police station but she lhad not disclosed the story to her. In addin'on to this, she specineally stated that she herself had gone to police stan'on where she had disclosed the story. In a suggestion that she disclosed the story after 5 days of the incident, she denied this fact and has asserted that she has disclosed the story alter two days of the incident. i (9) Learned counsel for the appellants, vehemently argued that the contents of the merg intimation, Ex.P. 16, would show that in the 9th column which is for recording description, it has been mentioned that the maker of the merg intimation was accompanied by Foolmati (P.W.2), Navi Singh, and Fool Chand who was the village Kotwar'. This intimation was lodged on 18.5.2005, therefore she argued that if P.W.2 was in mot an eye witness to this incident, she would have disclosed the story to the Police at the earliest opportunity or atleast she would have disclosed the story to her mother-in-Iaw so that her mother—in—law would have stated all these things in the mer intimatio. g n Cr.A. No. 26 of 2006 (1m ' We have caxefully considexed these arguments advanced by lwrned counsel for the appellanm. In deed, in the column of dwen'ptio, it has been mentioned that Fooli'nan' had also mpam'ed the mothe’r4i1i-Iawio the Police station while she had e o lode the merg mhmahon Vlde Ex P 16 If she was present t e and she had accompamed the mother m law to the Pohce Stn, ould have been a natural conduct of thls mmess that elmer t she would have dlsclose the stoxy to Pohce or she would have old to the mother-m-law so that a report to tlns extent would he re been lodged 1n the pollce stahon Not makmg any dlsclosure at e e of lodgmg of the merg mhmahon, wluch was the first oory to this w1tuess, mates a doubt on the credibxhty of t mms he es Not only thls, lfwe look mto the nohce (Ex P 17) u] s ‘ 1 r., wh1ch, the mvestlgahng omcer has written the nae of family membels of the deceased and has taken, their “‘sfignat‘mes on the hotice, the name of wife of deceased i.e., Fooinati 2) is also mentioned at Sen'al No 3 in the list of fy meexs of the deceased and there 1s a thumb unpxessmn als sws that she was plesent at the tune of Issuance of No‘e (.P.l7), Whlch was pmpamd on 18 5 2005 ’l‘hls was the second opportunity for Foohnati (P.W.2) to disclose to the Police ocert she knows about the incident, but she did not disclose the idt to the Police OEcer at'th'at time also. Apart fm‘m that, v ok i 8 05 m t st n idedhn e Ivetigtin n o anchas and other persons piesent there, did not come i to a i conclusmn and all decxded to send the body for’r postortem for‘ further investiéa'tion. This was another oppmtiunit o p.w.2 to disclose the incident, but at this time aiso she had not disclosed the incident to the police omcer during the inquet. (11; Besides the absve‘,‘ if we look into the evidence of m ‘ogating mcoriA.s.i., Shivouam oubey (p.w.7),‘ it wouid appe vide arap5 of his evidence, that he had recorded the statement of Flmati' on 22.5.2005 u/s 161 Cr.P.C. and on that if lo nto the contents-of the inquest "(Ex P— 18y piepared on ~a— r 1 20 his also, the presence ofPW 2 is recorded In tL; "s ' la colum of the inquest, 1t has been menhoned that after hcaon tc and aher completion of formahnes, the nsag OEcer, accoxdmg to his own opinion and on the opn do f P fnal m y t n acro gcn t g he r mm It w th tun potumt 7o CP.C. m ms ! (PW amtl mh o Thls ho nc Ex m‘tha incen s y s o ar p oo 7 @oy CLA. No. 26 nf 70M day, for the &st time she disclosed that she had witnessed the incidént on 18 5 2005 that her husband was assaulted by the 3 appellants Thls late dlsclosme makes two thmgs very clear hrstly, she had not disclosed the fact for a penod of about 5 days and secondly she gave false statement that on the 2nd/3'd day of the mcldent she had gone to the pohce stauon and had dlsclosed all the facts to the pohce and at that time she was accompamed by Kotwar Balslngh Meetu and Chaltu etc If she would have disclosed all these thmgs alter two days of the meldent as deposed by her there was no mason w1th the pohce omcer not to mooni her such statement and to go on Inveshganon on the sald hne. More over, the investigah‘ng omcer has also not deposed that alter two days of the occurrence this wimess P W 2 had disclosed about the meldent m the pohce stanon AdmJttedly, tlns w1tness 1s the Wlfe of the deceased and her ev1dence 1s to be scrutunzed w1th great cam and cucumspectlon If we look Into her entlre ev1dence and appreciate the same in light of the other evidence available on record We hnd that in fact there are many discrepanc1es 1n her ev1dence and for the reasons smted 1n the foregomg paragraphs her sole testimony cannot be rehed on to warrant the conwcnon of the appellants (12) ln our considered opinion, the trial Colirt committed an error of lawin relying on the sole testimony of this witness While convicting the appellants u/s 302/34 and section 201 ofl.P.C. (13) For the foregoing reasons the conviction and sentence j awarded by the trial Court deserve to be set a51de and the appeals c i' I I forthwrth 1f not reqmred 1n any other case f: deserve to be allowed Accordmgly the appeals are allowed The onv1ctron and sentence Imposed agamst the appellants are set asrde The appellants are acquitted of the charges named against them The appellants are reported to be m Jail They be released M... sd I. 'r Suni! Kumnr Sinha t_ Judge Sd/v .L.C.l}had 00 dg ; .. V w Jue §/Rao/ a v 1