HIGH COURT OF CHHATTISGARH AT BILASPUR B Hon’ble Shrl Sunul Kumar Smha & _ on'ble Shn Radhe Shyam Sharma, JJ Crlmlnal A_pLal No. 61 911 995 ‘ u Madan Kumar Son of Braj Nandan Jha, aged about 32 years, Rlo. Sirva, P.S. Banderi, Distt. Darbhanga. Bihar, at present R/o. Godam Naka, Jagdalpur, P.S. Jagdalpur, ' District Bastar Vs. v w g J k ‘ \ R fgogdent State of Madhya Pradesh ‘ APIDELLANT (Now at Chhaiiisgarh) AND Criminal Apgl No. 824/1 995 ‘ ‘ ‘ ARPELLANT Madan Kumar S,on of Braj Nandan Jha aged about 32 years R/o Slrva PS Banden Drstt Darbhanga Blhar at present Rlo. Godam Naka Jagdalpur, P.S. Jagdalpur, District Bastar State of Madhya Pradesh -(N9w at Chhattisgarh) Vs. Respondent 1' (Criminal Appeals under Section 374(2) of the Cr P C } Presentt Smt Kiran Jam counsel for the appellant 8hr! Ashish Shukla Govt Advocate for the State e‘k B, ORAL JUDGMENT (17.06.2011) The followmg judgment of the Court was passed by Suml Kumar Sinha, J These appeals are directed against the judgment dated 14‘“ of March 179g5 passed In $eesrons TnaLNo.205/94 by the First Additional SesSions Judge} Jagdalpur (Bastar). In fact the two appeais were filed by th appellant against same judgment. One‘appeal, i.e. 619/95 was tiled by the counsel for the appetlant on his instruction and the other appeal, i.e. 824/95 kwn D e ,z '1 was sent by the appellant from diwict }ail, Jagdalpur. This Court after receiv§ng the jail appeal, passed an order dated 24.01 .96 that ground raised I in theijail appeal shall be treated as additional ground in Criminal Appeal No;619/95, therefore, both the appeals are being disposed of by this com on judgment. By the impugned judgment, the appellant has been convi ted under Section 302 of lndian Penal Code and sentenced to “,1 undergo imprisonment for life. , cg 2. Thé facts, briefly stated, are as under:- l Deceased Ku. Geeta was aged about 5 years. She was real daughter of Basanti Bai (PW-8). Sapan was husband of Basanti Bai. Sapan has deserted Basanti Bai, therefore, Basanti Baiyvas residing as wife to the appellant. Her daughter was also residing with her. They were residipg in a rental premises in village Metguda. On 13.03.94 at about 10 -1Jl a.m., the'appellant and Basanti Bai (PW-8) had gone fortaking ration from a nearby ration shop. Deceased Geeta remained in the house. The allegations are that the appellant returned to the house after sometime leavi g Basanti Bai (PW-8) in the shop, and thereatter he assaulted the/f deceased by hands and fists,‘due to which she died. Ftjrther allegations are that alfter her death, the appellant took the dead body‘to the bathroom and put it there and went away from his house. Shreekant Dubey (PW-1) was neighbour of the appellant. He claims to be the eye witness of the case. In fact, he was the sole eye witness produced by the prosecution. The case of tbs prosecutionlisthat Shrilé‘a‘ht Dubey (PW—1) saw that the girl has died on accopnt‘of beatingfi‘g‘iven by the appellant, hue and cry was made and many ,villag‘iers gathered there; they went to the house of one Satish Kumar ‘l‘lwari i (PW-i5) an Advocate residing in the locality, who telephonicaliy informed the l l k l ,1 ”N . l W > SN _ :ft policeE Sub Inspector B.R. Sinha (PW-4 — mvestigating omcer) reached to the place of occurrence at about 1242.30 p.m. and recorded dehati merg r(Ex-P/13). This dehati merg was lodged .by Basanti ‘Bai (PW-8). Investrgating Orfflcer gave notice (Ex-Pl4) to the Panchas, and prepared inque t (Ex-P/5) on the dead body of the deceased. Dead body of the deceased was sent for post mortem to Maharani Hospital, Jagdalpur’ vide requisition Ex-P/6. Post mortem examination was conducted by Dr. Wnay a > 1 Kuma £P‘W-7). He noticed m‘any external and intemal injuries on the body‘ of the:deceased. There were many fractures on the ribs and the deceased also sustained injuries on lung and lever. The autopsy surgeon opined that the c use of death was hemorrhage and shock on account of injuries to the lever nd lung, and the death was homicidal in nature. The post mortem‘ report is EXP/10. Based onthis information, regular merg intimation (Ex- P/7) s also First information Report (Ex—'P/B) were recorded. l 3. .‘After completing investigationrcharge sheet was tiled in the Court‘of Chief Judicial Magistrate, First Class, Jagdalpur, who in turn, committed. the matte to the concerned Sessions Court, from where it was received on transfer by First Additional Sessions Judge Jagdalpur,.who conducted the . #\ trial and convicted and sentenced the appellant as aforementioned. .4. eyewitness Shrikant Dubey (PW-1). .The conviction of the appellant is based on the sole testimony of ‘ i an Jain, learned\counsel appearing on behalf ofthe appellant, V argueid tha therefore, convtction based on his sole testimony was not justified. She i argue‘d that though he claims to have witnessed the incident on 13.3.94 and stimony of Shrikant Dubey (PW-1) wassnot reliable, l i l l l i ‘r t was priesent with the police through out that day, he, did not disclose the incideni‘t to the pblice on that day. ln fact, he disclosed the incident to the i ’poiice ion 15.3.94, i.e. on the third day, therefore, his belated disclosure , makes his evidence highly suspicious. She also took us to various contra ictions and omissions in the evidence of Shrikant Dubey (PW-1), who in fact gave new dimensions to his version in his court evidence. \J 6. , n the other hand, Shri’Ashish Shukla, learned counsel appearing 4 i on be alf of the State opposed these arguments and supported the judgment gassed by the sessions Court. 7. We have heard learned counsel for the parties gt length and have also perused the records of the sessions case. , 8. dmittedly, Shrikant Dubey (PW-1) made disclosure about the incident on 15.03.94 when his 161 statement (Ex-D/1) was recorded by the police} it comes in the evidence of Shrikant Dubey (PW-1‘) that when police came in the village on 43.3.94 after receiving telephonic infon'natlc‘m of advocpte Satish Tiwari (PW-4), he was along with the police. But the fact: w / that hie did not disclose aboutthe incident to the policeJon 13.3.94 was not ‘ i at all explained by him. 9. iln Waiakmshna Swain ~Vs- The State of Orissa, AIR 1971 SC 804, the Apetl‘ Court held that unjustified and unexplained long delay on part of ingestigagng ' l officer in recoi'ding statement of material eye—witness, u/s 164 Cr.P.€:. K t ’uring investigation of murder case will render evidence of such ‘ i l witnesis Linreliable. Because the delay would give an opportunity to concoct a diffeirentyersion than what actually took place. ,iW . J 10. l Siam of Orissa —Vs- Mr Brahmananda Nanda‘ AIR 1976 SC ,2¢88, yeiwitness did not disclose the name of assailant for a gay and a haif; TheiApex Court héld that where in a murder case the entire prosec tion case depended 0n the evidence of a person claiming to be eye- wiines and this witness did not disclose the name of the assailant for a day and a alf after the moldent and the explanation offered for non-disclosure .Ias b levable such non-disclosure was a serious Infrmlty which' ‘c destr d he credibility of the evtdence of the Witness and the High Court t ” correct in rejecting it as untrustworthy and acquitting the accused. 1t. ll Bachhu Narain Sinqh ~l./s- Maresh Yadav aniothers, AIR 2004 ' 36 3 55, for over period of one hour While investigating Officer was preparng inquest report, no one ooming before him claiming to be eye- witne and to lodge report about occurrence though there were alleged to g be ten eye-Witnesses The report was lodged after more than one hour and y haif h Court said that the presence of. informant'and alieged eye-Witness at the . time f occurrence appears to/‘be doubtful. There was seerious doubt about ‘presence of the eye-witness atthe time of occurrence é‘ 1.:a Hr atter investigatmg Offcer came to place of occurrence The Apex I I l 1 . ;We have no doubt to say that no straight-jacket formula can be I)» applied in all cases of late disclosure by eye-witnesses and the credibility of l the - a witnesses are to be judged in the prevailing facts and circumstances of each case. However that iUdgment shouid be arrived atkeeping in mind the normal human conduct and the probable circumstances including the i r—Wserzwaw v ‘ ‘ explanation offered regarding no’n-disclosulfe of the facts relating to com iss‘ion of such a heinous offence. 9 13. In the present case. as we have already stated, Shrikant Dubey (PW- 1) was throughout present with the police. He met the investigating ofhcer when he reached the place of occurrence and he was also present at the time of preparing inquest on the same day Even some ‘prei?%nary3‘ invesilgation was done on 136 94 and Shrikant Dubey (PW-1) was preserhr u - there throughout He never disclosed the police that In fact the appellant ‘ was t e author of the crime and he had seen the appellant assaulting the“ dece sed when he was present in the house. Even he did not disclose this? story to anybody on 14.3.94 and ultimately on 15 3 9'4 he disclosed this story o the police when his 161 statement (Ex-D/1) was recorded We fnd; that ven while his cross-examination he did not give any satisfactory: explanation regarding his belated disclosure In the above facts and; circumstances of the case we are of the View that such delay in discl ure of lnCident by Shrikant Dubey (PW-1) makes his eVIdence highly suspicious l and t e learned sesswns Judgeerred in law in relying on the testimony 0&s V‘ sole eyewltness, Shrikant Dubey (PW-1) for convicting'the appellant under Section 302 IPC ( 14. -We further note that in the court evidence Shrikant Dubey (PW-1) deposed that when the appellant came to his house he heard the n0ise like: sdgunJ-dhum He deposed that he was under impressmn that the appellant V was assaulting his daughter as the appellant was in habit of assaulting her. i. He further claimed that thereafter he saw the appellant carrying his daughter on his shoutder who took her to the bathroom. He saw some vomiting substanAe cioming out from the mouth of his daughter. We Md that this was 1 not his v rsion in his 161 statement (Ex-DH) in Which he simply stated that i he had seen the appellant assaultlng the debeased by hands and not that 3 he heard the nOIse Even he stated the number of assaults given by the ‘ appellant to;the deceased. These contradictions In his two statements were , material and on this account also his testimony was not reliable. ’t 15. After going through the entire evidence of Shrikant Dubey (PW-1), we g are oft ewtew that he was not a reliable Witness and conviction-based on *his sole estimony cannot be sustained. o 16. T ere is yet another reason to disbelieve the testimony of this . witness. lf'we look into the contents of dehati merg intimation lodged by ‘Basanti ai (PW-8), we find that aiter giving description regarding the ration shop, s e mentioned in the merg that Rajesh Kumar, maternal grand son of y her landlord came to the shop and told her that Geeta was lying in the bathroom and she Is not talkmg It is on this Information she rushed to the house nd’found that Geeta was lying dead in the bathroom. She very clearly mentioned that she cannot tell as to how her daughter died. Similar l » a is the situation relating to the contents of inquest report. There is no 'whisperg in the‘ inquest report regarding commission of murder of the deceased by the appellant According to the eVidence of advocate Satish Tiwari (PW-5) who gave telephonic information to the police the Villagers told hint that the deceased wasmurdered by the appellant When this was ' well sgread in the Village that it was the appellant who had committed murder of the deceased and every one including the sole eyeWitness Shrikant Dubey (PW-1) was knowmg all this, these facts should have been —\l mentioned in the dehati merg intimation lodged by Basanti Bai (PW-8), who is nooe else but the mother of the deceased. Omission of all these facts in the merg intimation further creates a doubt in the entire prosecution case, which was based on the testimony of sole eyewitness Shrikant Dubey (PW-1). 17. Conwctlan and sentence awarded to the appellant under Section 30’? j a IPC [ therefore are set astde and the appellant ls acquitted to the%arges lW t irameg against him it is stated that the appellant was taken into custody‘an 16.q3.94 and he was through out in jail till 14.02.2002. Presently he Is on i bail.‘ His bail bonds are cancelled and surety gands discharged. 18. Both the appeals are disposed of in the above manner. ,r/ ' t ”Tc /7 ‘ l 5di- Sd/— n a ‘ i R.S. Sharma i vSuniI Kumar Sinha i JUdge a V ' r 3"“ l I 1 Judge * A;..7.. AL