HIGH COURT OF CHHATTISGARH ATBILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri JustjceRadheShvam Sharma Criminal Appeal No.1004of 1995 Appellant versus Respondent Bindra Prasad Yadav, son of Mahadeo Yadav, aged about 50 years, resident of N.M.D.C. Electrician, Type 2 Quarter No.113, Bacheli, Police Station Bacheli, Bastar (M.P.) (Now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri R.K.Jain, counsel for the appellant. Shri U.K.S. Chandel, Panel Lawyer for the State/respondent. Crimjnal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on _S*_ August, 2011) Per Radhe Shvam Sharma. J.: This appeal is directed against the judgment dated 24-2-1995 passed by 1stAdditional Session Judge, Jagdalpur (Bastar) in Session Trial No.21/1994. By the impugned judgment, appellant Bindra Prasad Yadav has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: Phoolmati (PW-1)and her husband were residing together at Bacheli and they were working as labourer at a shop. Younger sister of Phoolmati (PW-1), namely, Sonmati (deceased) was also residing with her husband/the appellant at Bacheli near the houseof i' .it.:;.l^.-)ILij Phoolmati (PW-1). On 24-10-1993, the appellant had gone to Phoolmati (PW-1) and said that his wife Sonmati has called her. On this, she said that she will come after closure of the shop. At about 8:30 P.M., Phoolmati (PW-1) and her husband had gone to the house of the appellant. They saw that a quarrel was going on between the appellant and deceased Sonmati. On this, Phoolmati (PW-1) had gone to her maternal uncle and narrated him the incident. Then, her maternal aunt Tangmani had gone to the deceased's house along with Phoolmati (PW-1), They saw that the quarrel was going on between the appellant and the deceased. Thereafter, they had gone to their houses and slept at night. On 25- 10-1993, Phoolmati (PW-1 ) again went to the house of the appellant. She saw that the house of the appellant was locked from outside. When she saw inside the house through.the space of the locked door, she found that Sonmati was lying dead inside the room. Mer bangles were broken there andthere were injuries on her person. Phoolmati (PW-1) lodged First Information Report (Ex.P-1). Merg Intimation (Ex.P-15) was also recorded. Investigating Officer reached the place of occurrence, gave notice (Ex.P-2) to the Panchas and prepared inquest (Ex.P-3) on the body of the deceased. Dead body of the deceased was sent for post mortem to Primary Health Centre, Bacheli vide Ex.P-16, where post mortem examination was conducted by Dr. A.K.Singh (PW-10), who prepared a report (Ex.P-19). The doctor noticed several contusions on the cheek, chestand skull of the body ot.the deceased and he also found that excessive blood was present on both sides of genital. There were crushed injuries on internal wall 6f vaginal '/ " :---y canal. Cause of death was coma on account of above injuries leading to profused bleeding and shock and the death was homicidal in nature. In further investigation, memorandum statement (Ex.P-5) of the appellantwas recorded on 29-10-1993. At his instance, an iron rod (pipe) was seized vide Ex.P-6. Patwari Raghav Verma (PW-5) prepared Site-Map (Ex.P-7). The seized iron rod (pipe) was sent for examination to Dr. A.K.Singh (PW-10). The doctor gave report (Ex.P-21) that a female may die if such iron rod (pipe) is inserted forcefully in genital organs, i.e., vaginal canal. Iron rod, bangles, petticoat and full-pant were sent for examination to Dr. A.K.Singh (PW-10). The doctor found that the full-pant and the petticoat were stained with blood like substance. After completion of the investigation, a charge-sheet was filed in the Court of Judicial Magistrate First Class, Dantewada, who, in turn, committed the case to the Court of Session, from where itwas received on transfer by the 1 Additional Session Judge, Jagdalpur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri R.KJain, learned counsel for the appellant argued that the finding of guilt recorded on the basis of evidence of Phoolmati (PW-1) and J. Tangraj (PW-4) is unsustainable. The First Information Report (Ex.P-1) was lodged by Phoolmati (PW-1), but the name of J. Tangraj (PW-4) was not mentioned therein. Statement of J. Tangraj (PW-4) was recorded after a delay of four days of the occurrence. There were many material contradictions ; LU:i;; :ii..:; i l.l,.ii;:jtu.;^^.^^.., ^- ^ and omissions in the evidence of Phoolmati (PW-1) and J. Tangraj (PW-4). One Malti wasa materialwitness, but the prosecution did not examine her, which is fatal to its case. Therefore, the finding of guilt recorded by the trial Court is unsustainable. 4. On the other hand, Shri U.K.S.Chandel, learned Panel Lawyer for the Stafe/respondent opposed the arguments and supported the impugned judgment passed by the learned Additional Session Judge. 5. We have heard learned counsel for the parties at length and have also perused the record of the session case. Conviction of the appellant is based on the testimonies of Phoolmati (PW-1) and J. Tangraj(PW-4). 6. Shri R.K.Jain, learned counsel for.the appellant contended that non-mention of name of J. Tangraj (PW-4) in the First Information Report (Ex.P-1) is fatal to the case of the prosecution. The contention of Shri Jain is unacceptable. The mere fact that the name of the witness is not mentioned in the First Information Report, though of some relevance, would not be sufficient by itself to entail rejection of the testimony of the witness. 7. In Narpal and others vs. State of Haryana, AIR 1977 SC 1066, the Hon'ble Supreme Court has held thus: "10. ...... "The fact that his name was not recorded in the First Information Report in a way shows that it was not a case of planned First Inforrnation Report otherwise his name would have been mentioned therein. After going through the statement of Rattan P.W. 21, l feel inclined to hold that it also inspires confidence and is true. ....... Secondly, the mere fact that his name was not given in the F.I.R., though of some relevance, would not be sufficient by itself to entail rejection of the testimony of this witness. ......" 8. In the instant case, the First Information Report was lodged by Phoolmati (PW-1) and she mentioned in the First Information Report that she had gone to old market and told her maternal aunt and maternal uncle J. Tangraj that Sonmati was killed by Bindra Prasad. From perusal of the First Information Report, it is apparent that the name of J. Tangraj (PW-4) was mentioned therein. ( 9. Shri R.K.Jain, learned counsel for the appellant further contended that the statement of J. Tangraj (PW-4) was recorded after four days of the occurrence, which is fatal to the case of the prosecution. The above contention of Shri Jain is also not acceptable. 10. In State of Uttar Pradesh vs. Satish, (2005) 3 SCC 114, the Hon'ble Supreme Court has held thus: "18. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It --^•^- would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. 20. It is to be noted that the explanation when offered by the 10 on being questioned on the aspect of delayed examination by the accused has to be tested by the court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the court can cxinsider it to be one of the factors to affect credibility of the witnesses who were examined belatedly. It may not have any effect on the credibility of the prosecution's eVidence tendered by the other witnesses." 11. In Bodhraj alias Bodha and others vs. State of Jammu and Kashmir, 2002 AIR SCW 3655, the Hon'ble Supreme Court has held thus: "34. ....... It cannot be laid down as a rule of universal application that if there is any delay in examination of a pari:icular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the condusion." 12. In Sidhartha Vashishth alias Mannu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1, the Hon'ble Supreme Court has held thus: "303. Summary of our conclusions: 7 xxxxx xxxxx xxxxx (4) Delay in recording the statement of the witnesses do not necessarily discredit their testimonies. The court may rely on such testimonies if they are cogent and credible." 13. In the light of the above principles laid down by the Hon'ble Supreme Court, now we shall examine whether the evidence of J. Tangraj (PW-4) is unreliable merely because it was recorded belatedly. J. Tangraj (PW-4) has deposed in paragraph 2 that Phoolmati (PW-1) had come to him in the next morning and told that a quarrel had taken place in the night and she had asked him to go to see the incident. He has further stated that after taking bath, he had gone to the police station and narrated about the incident, which took place in the night. The police officials told him that some police personnel had already gone to the placeof occurrence. From the evidence of this witness, it is clear that he had gone to the police station to inform them about the incident, which took place in the night. 14. J.R.Tumreki (PW-8), the investigating officer deposed in paragraph 5 that he had recorded the statements of Phoolmati (PW- 1), J. Tangraj (PW-4) and J. Tangmani (PW-2) as was stated by them. In cross-examination, not a single question was put to the investigating officer about the delay in rwording of statement of J. Tangraj (PW-4). Merely because the statement ofJ. Tangraj (PW-4) was recorded belatedly, his evidence cannot be held to be unreliable. His evidence is duly corroborated by the evidence of 8 Phoolmati (PW-1) and the First Information Report (Ex.P-1). We find that the evidence of J. Tangraj (PW-4) is cogent and credible. 15. Phoolmati (PW-1) deposed in paragraph 1 that her sister Sonmati (the deceased) was wife of the appellant. On the day of last Dushehra festival, a quarrel had taken place between the appellant and the deceased. She had gone to the house of the appellant along with her husband and after seeing the quarrel between the appellant and the deceased, they had gone to see Dushehra festival. In paragraph 2, she has deposed that in the next morning, when she along with her husband had gone to the house of the appellant, they saw that a lock was put on the door of the house. Through the empty space of the locked door, they saw inside the room. They saw that dead body of Sonmati was lying inside the room. She further deposed that she had gone to the police station along with her husband and reported the occurrence vide Ex. P-1. 16. J.R. Tumreki (PW-8), the investigating officer has stated in paragraph 1 that Phoolmati (PW-1) had lodged the First Information Report (Ex.P-1) on 25-10-1993. On the basis of the report of Phoolmati (PW-1), he had recorded Merg Intimation (Ex.P-15). Phoolmati (PW-1) has deposed in paragraph 3 that after reporting the occurrence, the police reached the house of the appellant and had broken the lock put on the door. They had found dead body of Sonmati inside the house. She had seen the dead body of Sonmati. She had also seen injury on the private part of the deceased. Blood was oozing out therefrom. The evidence of Phoolmati (PW-1) is duly corroborated bythe First Information Report (Ex.P-1). 17. J. Tangraj (PW-4) has deposed in paragraph 1 that Phoolmati (PW-1) came to him and told that the appellant was assaulting Sonmati (the deceased). After 15-20 minutespf hearing the incident from Phoolmati (PW-1), he had gone to the house ofthe appellant. He saw there that the appellant and the deceased were quarreling. He also saw that the appellant had assaulted the deceased with an iron pipe. He had requested the appellant not to assault the deceased, then the appellant had shown him a knife and threatened him. Thereafter, he ran away from the house of the appellant. In cross-examination, in paragraph 5, he has stated that he had not gone to the house of the appellant with Phoolmati (PW-1). He had gone there alone. When he had reached the house ofthe appellant, he saw that the appellant was assaulting the deceased. 18. Phoolmati (PW-1) has also stated that she had gone to the house of the appellant along with her husband and saw that the appellant and the deceased were quarreling. From the evidence of Phoolmati (PW-1) and J. Tangraj (PW-4), it is evident that when Phoolmati (PW-1) had gone to the house of the appellant, she saw that the appellant and the deceased were quarreling. Then, Phoolmati (PW-1) had told about the incident to J. Tangraj (PW-4). After 15-20 minutes of hearing the incident from Phoolmati (PW-1), J. Tangraj (PW-4) had also gone to the house of the appellant. He saw there that the appellant and the deceased were quarreling. He 10 had also seen the appellant assaulting the deceased with an iron pipe. Thereafter, he ran away from the house of the appellant. If J. Tangraj (PW-4) would have intended to make false statement against the appellant, he could also have stated about the memorandum statement and recovery, but in paragraph 3, J. Tangraj (PW-4) has deposed that nothing was recovered or seized from the appellant before him. From this, it is evident that J. Tangraj (PW-4) did not intend to implicate the appellant falsely and accordingly, evidence ofj. Tangraj (PW-4) is fully reliable. 19. Phoolmati (PW-1) deposed that she had seen the dead body of Sonmati inside the house of the appellant. She had seen injury on the private part of the deceased. Blood was oozing out therefrom. J. Tangraj (PW-4) also deposed that blood had oozed out of lower part of the body of Sonmati (the deceased). Dr. A.K. Singh (PW-10) has deposed that excessive blood had oozed out of the private pari: of the deceased. From the above, it is evident that statements of Phoolmati (PW-1) and J. Tangraj (PW-4) are duly corroborated by the medical evidence. 20. Shri R.K. Jain, learned counsel for the appellant has contended that Malti was a material witness for the prosecution, but she was not examined, which is fatal to thecase of the prosecution. This contention is also unacceptable. 21. Non-examining a witness, who would have narrated only the consequential part of the story, is not fatal, particularly, when the other prosecution witness was there to depose it. :^n ^ 11 22. In State of WI.P. vs. Dharkole alias Govind Singh and others, 2005 SCC (Criminal) 225, the Hon'ble Supreme Court has held thus: "14. It is not necessary for the prosecution to examine somebody as a witness even though the witness was not likely to support the prosecution version. Non- examination of some persons per se does not corrode vitality of prosecution version, particularly when the witnesses examined have withstood incisive cross- examination and pointed to the respondents as the perpetrators of the crime." 23. In the instant case, the prosecution has examined eye- witnesses Phoolmati (PW-1) and J. Tangraj (PW-4). They are natural witnesses, therefore, non-examination of Malti by the prosecution in the above circumstances is not fatal to its case. 24. Shri Jain, learned counsel has further contended that the appellant was not present in the house at the time of occurrence. He was residing at some other place, i.e., Jagdalpur along with her first wife. When the appellant was examined under Section 313 of the Code of Criminal Procedure, he answered to question No.5 that he was at Jagdalpur on the date of occurrence. From the above, the appellant has taken plea of alibi. 25. So far as the plea of alibi is concerned, burden lies very heavily on the person who wishes the Court to believe in its existence. Alibi is not an exception or a special law. It is only a rute of evidence recognized in Section 11 of the Evidence Act. Where 12 there is ample time for the accused to reach the place of occurrence, he is to prove that he did not reach the place of occurrence or he was present elsewhere. 26. Now, we have to examine whether the plea of alibi has been proved by the appellant. The appellant has not examined any witness to prove that he was not present at the place of occurrence, but was at Jagdalpur on the date of occurrence. J. Tangraj (PW-4) has deposed in paragraph 3 that the appellant had run away from the place of occurrence and he had caught him at Jagdalpur thereafter. J.R. Tumreki (PW-8) has stated in cross-examination in paragraph 7 that he knew that the appellant had gone to his first wife after the occurrence. The first wife of the appellant was a material witness for the appellant to prove that on the date and time of the occurrence the appellant was present with her at Jagdalpur, but the appellant did not examine her. Thus, the appellant has not been able to prove the plea of alibi taken by him. The above plea is further falsified by the evidence of Phoolmati (PW-1) and J. Tangraj (PW-4), who had seen the appellant quarreling and assaulting the deceased in the night. 27. The place of occurrence is at Bacheli. Jagdalpur is not far away from this place that a person cannot go from Bacheli to Jagdalpur in the night after committing a crime at Bacheli. There was ample time available with the appellant to leave Bacheli and reach Jagdalpur in the night itself after committing the crime at Bacheli. 13 28. J.R. Tumreki (PW-8) deposed in paragraph 4 that on 29-10- 1993, he had seized an iron pipe from the appellant vide Ex.P-6. Sukhnath (PW-9) has deposed in paragraph 2 that memorandum statement of the appellant was recorded vide Ex. P-5 and at the instance of the appellant, the iron rod was seized by J.R.Tumreki (PW-8). J. Tangraj (PW-4) has deposed in paragraph 3 that the appellant had hidden the iron rod (pipe) and the knife at his house, which the police seized at the instance of the appellant. 29. Ex. P-6 is seizure memo of the iron pipe. From perusal of the seizure memo (Ex.P-6), it is evident that the iron pipe was hidden on the electric board of the house of the appellant, which was in exclusive possession of the appellant and it was locked from outside. 30. From the evidence of Phoolmati (PW-1), J. Tangraj (PW-4), J.R.Tumreki (PW-8) and Sukhnath (PW-9), it is obvious that the place where the dead body of Sonmati (the deceased) was lying and the iron pipe was hidden, was the house of the appellant, which was locked from outside and it could not be opened without any key. The house was in exclusive possession of the appellant. Therefore, in this situation, it was not possible for anybody to enter the locked house and commit murder of the deceased. The appellant has not at all given any explanation as to how the deceased died homicidal death in his home. 14 31. We have carefully perused the evidence of Phoolmati (PW-1) and J. Tangraj (PW-4). These witnesses have spedfically deposed that a quarrel had taken place between the appellant and the deceased in the night. J. Tangraj (PW-4) has specifically deposed that the appellant had assaulted the deGeased with an iron pipe. The evidence of these witnesses are wholly reliable and can be based for conviction of the appellant. 32. Dr. A.K.Singh (PW-10), who conducted post mortem examination on the body of the deceased, has noticed several contusion injuries on the cheek, chest and skull of the body of the deceased and he also found that excessive blood was present on both sides of vagina. He has opined that cause of death was coma due to injuries sustained by the deceased, particularly, the injuries present on internal genital parts leading to profused bleeding and shock and the nature of death was homicidal. Therefore, we do not find any infirmity in the finding recorded by the trial Court that it was the appellant who caused injuries on the deceased with the iron pipe and the deceased died on account of the injuries caused by the appellant. 33. For the foregoing reasons, we do not find any substance in the appeal, which deserves to be and is accordingly dismissed. Sd/- Sunil Kumar Sinha Judge Gopai Sd/- Radhe Shyam Sharma Judge