HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: HON’BLE SHRI RAJEEV GUPTA, C.J. 85 HON’BLE SHRI SUNIL KUMAR SINHA, J. Criminal Appeal No. 238 of 2003 Criminal Appeal No.470 of 2003 APPELLANT Satish David, s/o‘Miakal David, aged about 23 years, Driver, R/o Bagichapara, Narayanpur, P.S. Narayanpur, Dist. Bastar (C.G). Versus State of Chhattisgarh, through RS. Narayanpur, Distt. Bastar Jaitram Dugga, aged 22 years, Occupation Driver, R/o Nayapara, Narayanpur, RS. arayanpur, Distt. Bastar (C.G). Versus ESPONDENT State of Chhattisgarh, through Station House Officer, Narayanpur, Distt. Bastar (C.G). d N R APPELLANT Pradeep Kumar Jaiswal, s/o Ghanshyam Jaiswal, aged about .20 years, R/o Bageéchapara, P.S. Narayanpur, Distt. Bastar (C.G). Versus RESPONDENT State of Chhattisgarh, through RS. Narayanpur, Distt. Bastar (C.G). (C.G.). And I Criminal Appeal No.784 of 2003 APPELLANT Rajendra Kumar Dugga, s/o 2 @ Criminal Appeal Nos.. 238 of 2003, 470/2003 & 784/2003 (APPEALS U/S 374 (2) OF THE CODE OF CRIMINAL PROCEDURE) Appearance: “Ms. Sudha Agrawal, counsel for the appellant in Cr.A.No. 238/2003. Smt. ‘Fouzia Mirza, counsel for the appellant in Cr’A.No.470/ 2003. Shri S.K. Mishra counsel for the appellant in Cr.A.No.784/ 2003 Shri Ashish Shukla, Govt. Advocate, for the State in all the Criminal Appeals. JUDGMENT (10.08.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J, (1) These appeals have been directed against;the judgment and order dated 3.2.2003 passed in Sessions Trial No. 422/2002 by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bastar at Jagdalpur, whereby, the appellants have been convicted and sentenced in the following manner with a further direction to run the sentences concurrently: — Conviction Sentence ufs 302/34 IPC Imprisonment for life and fine of Rs.2,000/—, in default of payment of fine t0 further undergo R.I. for l year u/s 376 (2) (g) IPC R.I. for 10 years and fine of Rs.l,OOO/-, in default of payment of fine to further undergo R.I. for 1 year Criminal Appeal Nos.. 238 0f2003~ 470/2003 & 784/2003 u/s 377/64 IPC R.I. for 5 years and fine of Rs.1,000/-, in default of payment of fine to further undergo RI. for 9 months u/s 201 IPC RI. 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 Jano Usendi was the daughter of Ghasiya (PW—1). She was a member of Scheduled Tribe (Gond). She was working as a teacher in Primary School, Paralbhat. On 31.12.2001 at about 10.00 a.m., she went to the school on her bicycle from Village Duggabegaon, where she was residing with her father. When she did not return back till the morning of 2.1.2002, her father went to Village Paralkot. It was told to him that his daughter had returned from the school on 31.12.2001. When he was returning to his Village, he saw the bicycle of his daughter on the way. On a search, he found the dead body of his daughter in a pit. He gave information to RS. 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 3.1.2002 and recorded a Dehatinalishi (Ex.—P/ 17). After giving notice (Ex.-P/ 18) to the Panchas, inquest (EX.—P/3) on the body of the deceased was prepared and the dead body of the deceased was sent for its post-mortem to Primary Health Centre, Narayanpur under Ex.—P/21. 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 pair of Hawai Chappel and soil containing the impression of \\ rubber tyres of 4 wheeler vehicle were also seized from the \ \ \ \ @ Criminal Appeal Nos.. 238 of 2003, 470/2003 & 784/2003 place of‘occurrence under EX.—P/2. Site plan was prepared under EX.—P/22. The post—mortem examination was conducted by a team of two Doctors including Dr. Kamal “Kant Sori (PW—l4). They prepared their report Ex.—P/23 (again marked as EX.—P/23). The Autopsy Surgeons found many scratches (nail marks) on various parts of the body of the deceased. They also noticed multiple abrasions over the back. There was a lacerated wound over the nose, size 3 cm X 4 cm. There was another lacerated wound of 4 cm. over the left ear. Another lacerated wound was present over left zygomatric region, size 2.5 cm x 3 cm and another lacerated wound was present on right occipital region, size 3 cm X 3 cm. On internal examination, they found that there were fractures of zygomatric bone, left parietal bone and right occipital bone. Hymen was old ruptured and anLis was dilated. Slides from vaginal and anul swab were prepared and handed over for their further examination. The Autopsy Surgeon opined that the cause of death was syncope due to excessive bleeding from the external and internal injuries of the head and it was homicidal in nature. During the course of further investigation on 9.1.2002, statements of 2 witnesses namely Mangal (PW-2) and Mankuram (PW—3) were recorded. They disclosed that on 31.12.2001 at about 4-4.30 p.m., they had seen the appellants forcibly dragging the deceased towards the forest. It is on this disclosure, the appellants were taken into custody and memorandum statements of appellants Pradeep Kumar Jaiswal and Satish David (EX.—P/5 8L P/6) were recorded u/s 27 of the Evidence Act on 9.1.2002 and some cloths were seized at their instance under Ex.-P/ 10 85 P/9. Some other cloths of appellant Satish David were also seized under Ex.—P/ 1 1. Cloths of appellant Rajendra Kumar Dugga were seized under EX.—P/13. Sealed bottles containing sample of semen of the appellants and the slides prepared \\ \ \ vi x \ \ \ 5 éa‘ Criminal ADDeal Nos.. 238 of 2003. 470/2003 & 784/2003 from sem§n were also seized under EX.—P/14 85 P/15. Appellant Rajendra Kumar‘Dugga was put' for identification by Mangal (PW—2) and Mankuram (PW—3). The identification parade was conducted by the Executive Magistrate Sonit Meriya (PW—11), in which, the said Witnesses had rightly identified appellant Rajendra Kumar Dugga through identification memo EX.—P/4. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur, fro’m 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 fulpaints of appellants Satish and Pradeep. Human sperms were found on cloths of the deceased, on underwears of appellants Satish 8:; Pradeep and in the slides prepared from the vaginal and anus swab of the deceased. However the origin and the group of blood stains could not be ascertained. wmawwa m:ma A After completion of usual investigation, the charge— sheet was filed in the Court of Judicial Magistrate, First Class, Narayanpur, who in turn committed the matter to 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 the charges framed u/ss 3 (1) (xii) and 3 (2) (V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atroci‘ties) 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. i 6 é/ Criminal ADpeal Nos.. 238 of 2003a 470/2003 & 784/2003 incident took place. Police was. saying that a girl has been molested, therefore, somebody has to be arrested. (4) Learned gounsel for the appellants argued that the incident took place 31.12.2001 at about 4.00 and place on p.m. and the dead body of 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 disclosure after about 9 days. Therefore, their conduct was unnatural and highly suspicious, they were untrustworthy and the conviction based upon their such testimonies cannot be sustained. (5) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these 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 7 to go to village Paralbhat in the morning on her bicycle and she i used to return back in the evening. When she did not return for 2 5 I? days, he went in search of her. He found her bicycle in the way. Q When he made further search, her dead found in I body was a pit. In the cross examination, he admitted that when the police party came for Panchnama at the place of occurrence, Mankuram (PW— 3) was present there. The police could not know as to how the 7 éQ\ @minal ADDeal Nos.. 238 0f2003. 470/2003 & 784/2003 (8) Mangal ‘(PW—2) deposed that “The appellants and the 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, Mankuram (PW—3) met him on the way. He narrated the story to Mankuram and he also told him about the threatening given to him by accused persons”. In the cross examination, he admitted that he had seen the occurrence by hiding himself behind the tree. He also admitted that he had gone to see the dead body along with the police. He had seen that 3 persons were dragging the lady and they had dragged her to the place where her dead body was found. Satish and Pradeep had caught the hands of the deceased and Rajendra had caught her legs. He had told the police that the lady had been taken in the above manner and if same is not mentioned in his case diary statement (EX.—D/ l), he cannot tell the reasons for the same. He £ further 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 7 days. He further admitted that the police had recorded his statements for 3 times. He also admitted'in the last para of his cross .\\\ examination that when Ghasiaa y lPW~1 l was searchjng his ilam a 8 Criminal A eal Nos” 238 of2003 470/2003 & 784/2003 @ A (9) Mankuram (PW—3) deposed that “On 31.12.2001, he was going to Narayanpur. The appellants crossed him‘ by a motorcycle met him in the way. Mangal (PW~2J stated that 3 persons are taking the madam the forest. Satish has threatened him that he should no otherwise he would be killed. He saw a bicycle (deceased) towards t tell this fact to anybody, lying on the road. When he reached near the bicycle, he saw that the appellants are coming out from the forest side. Appellant Satish came to him and threatened him”. (10) Admittedly, 161 statements of these 2 witnesses (PW—2, Mangal 81; PW-3, Mankuram) were recorded on 9.1.2002. This shows tha‘t they had not disclosed the alleged facts for about 9 days. The evidence of PW~1, Ghasiya, shows that PW—3, Criminal Appeal N0s.. 238 of 2003, 470/2003 & 784/2003 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 PW—3, Mankuram, Who was present at the time of inquest, had also not disclosed all this. They have stated that they were threatened by the accused persons. We are unable 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) In Balakrushna Swain —Vs- The State of Orissa, AIR 1971 SC 804, the Apex Court held that unjustified and unexplained long delay on part of investigating officer 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 concoct a different version than what actually took place; (12) In State of Orissa —Vs- Mr Brahmananda Nanda, AIR 1976 SC 2488, eye—witness did not disclose the narne of assailant for a day‘and a half. The Apex Court held that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye—witness and this witness did not 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 non—disclosure was a serious infirmity which KR destroyed the credibility of the evidence of the witness and the 10 @ Criminal Appeal Nos.. 238 of 2003, 470/2003 & 784/2003 High Court was correct in rejecting it as untrustworthy and acquitting the accused. (13) ‘In Bachhu Narain Singh —Vs- Naresh Yadav and others, 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 about occurrence though there were alleged to be ten eye—witnesses. The report was lodged after more than one and half hour after Investigating Officer came to place of occurrence. The Apex Court said that the presence of informant and alleged eye—witness at the time of occurrence appears to be doubtful. There was serious doubt about presence of the eye-witness at the time of occurrence. (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 and the probable circumstances including the explanation offered regarding‘non-disclosure of the facts relating to commission of such a heinous offence. In the present case, the witnesses had frequently met with the police and the father of the deceased who was in search of his daughter. They did not disclose about the incident to them. The only reason which they have assigned was the threatening given by the accused persons. If in fact this was the reason, Why PW—2, Mangal, immediately disclosed this fact to MA;W \\};. ¥k‘\> 11 Criminal Appeal Nos.. 238 of 2003 470/2003 & 784/2003 PW—S, Mankgram 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 they suddenly disclosed the alleged incident to the police. We are unable to accept such explanation given by these Witnesses as the explanation offered for non—disclosure was unbelievable, such non—disclosure was a serious infirmity which destroyed the credibility of the evidence of these witnesses and we do not rely on their testimonies on account of their such conduct. (15) For the foregoing reasons, we are of the considered View that the iearned Special Judge was not justified in convicting the appellants for commission of the aforesaid offences. (16) In the result, the appeals are allowed. The conviction and sentences awarded to the appellants u/ss 302/34, 376 (2) (g), 377/34 8a 201 of the IPC are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are continuously in jail since 10.1.2002. They be set at liberty, forthwith, if not required in any other case. Sdl l Sdl— “Chief Justice Sunil Kumar Sinha r Judge l