_ ~ Awmgc 74% @ A \ HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri RaieevGupta, C.J. & Hon’ble Shri Sunil Kumar Sinha Jy Criminal Appeal No. 268 of 1992 Darbar Singh Vs. nThe State of MP. (Now State of Chhattisgarh) JUDGMENT For considration Sd/— Sunil Kumar Sinha Judge HO’BLE SHRI JUSTICE RAJEEV GUPTA Sdl— Chief Justice j W4; M $70720 1’0’ Post for Judgmeggmgl‘2m‘zlzom , Sd/J aunil Kuma Sinha } Judge L-f/o7/2010 ’’.’. 7 e N r HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha J. Cri‘minal Appeal No. 268 of 1992 APPELLANT Darbar Singh son of Ramji, aged about 34 years, occupation agriculturist, resident of village Simbhoia, P.S. Daundi, District Durg (M.P.) (Now Chhattisgarh) Versus p The State of MP. (Now State of Chhattisgarh) RESPONDENT (Criihinai App‘éai under Section 374 (2) of The Code of Criminal ‘ Procedure, 1973) Appearance: None for the appellant= Mr. Akhii Mishra, Dy. Govt. Advocate for the State. JUDGMENT (27.07.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant—Darbar Singh stands convicted u/ss 302 & 201 IPC and sentenced to undergo imprisonment for life and R5 for 5 years with a direction to run the sentences concurrently. The Judgment and Orderl'ias; been passed by the Additional Sessions Judge, Kanker in Sessions Trial No. 162/91 on 20"“ February, 1992. 1(2) The facts, briefly stated, are as under:- Deceased Ramla Bai was the wife of the appellant. On 2.2.91 her dead body was found at an open place in forest nursery \\Sirsida; The body was in highly decomposed condition. Merry \ / .\ Criminal Appeal N0. 268 of 1992 intimation (Ex.-P/17) was lodged on 2.2.91. After preliminary investigatio, it was determined that the death was homicidal in nature. investigating Agency could not find out any clue tili 14.2.91. However, on the said date 161 Cr.P.C. statement of nursery chowkidar— Suer (PW-7) was recorded. He stated that on 28.1.91, he had seen the appellant committing murder of thn deceased by assaulting her by stone. The case of the prosecution was based on the eye-witneat; account f solitary eye-Witness Sunder (PW—7). The leari'wecl Sessions Judge belieyed the sole testimony of PW—7 and convicted ‘* and sentenced the appellant as aforementioned. (3) Mr. Akhil lVljshra, learned Dy. Govt. Advocate appearing on behall of the State, supported the judgment and argued that the sole testimony of under (PW-7) as fully reliable, therefore, the conviction of the S w appellant canot be interfered. n 1: . (4) We have heard Mr. Akhil Mishra at length and have also perused the records of the sessions case. (5) Sunder (PW-7) was the chowkidar of the forest nursery in which the dead body of the deceased was found. He deposed'that on the fateful a day, when he was passing through nursery, he saw two persons. One was male and the other was female. The female was lying of the ground and the male was sitting near her. A bicycle was also standing there. While his c‘ourt evidence, he identify the appellant as the person whom he had seen in th’e forest nursery. He deposed that thereafter he went towards Panchvan and when he was returning from Panchvan, he saw that the appellant got the lady sited on his bicycle and he took his bicycle ""~\««.-.Kin\side forest nursery. Seeing this, he suspected some ill-will, and after *«x \ n nd o sometime he also went in nursery and saw that the ldy was lying near a a trench (nal) in nurse and the appellant was also present there. The a ry appllant was putting something in trench. Treafter the appellant lied e he awa on his bicycle. Heurther deposed that then he went to the lady and y -f foun that she was bad iud. He became frightened and started d ly njre weeing. In the latter paragraph of hi examination—in-chief, he further p s depsed that he had seen the appllant assaulting the lady by stone. This o e ha e 1 he d seen from a distanc of 00-150 feet. It was the incident of 2.30- 3.0 [Tm deposed'that since he was busy in kriya-kram of his father. whohad recently died, therefore, did not disclose this to anyone. ‘ he .- (6) ln cross examinatiOn, he deposed that the appellant and the deceased were unknown to him. He admitted that he could not see the face of the person who was takin the lady on his bicycle. He also g admitted that he culd not see the face of perso even at the time when o ns he was taking the lady towards the trench (na/a) and he could see from a distance of 150 yards that a man was killing the lady and he was wearing white full-paint and white-shirt. He further admitted that assailant had lell the place of occurrence before he reached there to see the dead body. a After admitting the above facts in the cross-examinatidn, he added in one line that he had seen the face of the appellant when he was standing by the side of the bicycle. At that time. the lady (deceased) was alive. He disclosed a new thing in his cross-examination that he was called in tho police station for id‘entificatien of the accused. Firstly he deposed that: 115 persons were shown to him. However, he added that 1042 persons wem shown to him and he could not identify the assailant because 3 persons 0 He ‘ Criminal Appeal N0. 268 of 1992 were Of similar faces. However, he claimed that it was the appellant whu was seen with the iady for the first time in forest nursery. € (7) On appreciation of his evidence, wefind that it was not the case 0i the prosecution that this witness had identified the assailant in the above: manner. Even in his 161 statement (Ex.-D/2), he had not claimed that ho had identified the assailant. On the contrary, he stated that he could not ; clearly see the face of the person who was assaulting the lady. 161 statement of Sunder (PW-7) was recorded on 14.2.91 j.e. almost after 17 days of the‘ incident.‘PW—7 was a forest chowkidar. The incident took place inside the forest nursery of which he was holding the keys. It can be: presumed that the other superior forest officers must have been in .contact with this witness. if he had seen such a serious incident in the forest nursery and was knowing that the dead body was lying in his nursery, in normal circumstances, it was his duty to inform it to the higher authorities which he did not do. Even he did not disclose this fact to the policy prior to 14.2.91 and kept quite for such a long time. Even he did not disclose all these facts at the time of inquest on 2.2.91 which took place in the forest nursery of which he was a chowkidar. The delay in disclosure by this witness and a new theory of identification of the assailant put forth ‘ by him makes his evidence unreliable. He was a chance-witness. Even ii we take that he had seen the incident, it was his own version in both the stages (in 161 statement and ‘ceurt evidence) that he could not see the J face of the person who assaulted the lady. in the above facts and circumstances of the case, we are of the opinion that the learned Sessions Judge was not justified in fully relying on the testimony ot' this witness. His evidence was uncertain and version was unreliable. Tho Criminal Appeal No. 268 of 1992 conviction based on the sole testimony of such witness cannot be; sustained and the same has to be set-aside. § > (8) In the result, the appeal is allowed. The conviction and' sentences awarded to the appellant are set—aside. The appeilant is acquitted of the ,\ i . Aiétti /"- / / charges framed against him. The appellant is on bail. His bail bonds are cancelled and the surety stands discharged. a i e w t u " Sd/— Sdl- Chief Justice i i sunil Kumar Sinha‘ ‘Judge