@ HIGH COURT OF CHHATTISGARH, BILASPUR D.B: Hon’ble Shri Rajeev Gupta, C.J. 85 Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 671 of 2003 Mohan Soni @ Akalu Soni S/o Shyamlal Soni, aged 22 years, resident of Village Kushmuli, P.S. Talghatpur, District Bilaspur (CG) ‘ Versus RESPONDENT £ (Appeal u‘nder Sec The State of Chhattisgarh Through the District Magistrate, Bilaspur (CG) tion 374 (2) of The Code of Criminal Procedure} Shri Prabhakar Singh Chandel, Counsel for the appellant. Shri U.N.S. Deo, Govt. Advocate, for the State. JUDGMENT (19 .o9.2oos) Followin judgment of the Court was delivered by g . (1) Appellant— Mohan Soni @ Akalu Soni stands convicted under Section 302 85 201 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.300/ —, in default of payment of flne to further undergo S.I. for 1 month; R.I. for 2 yegt‘sand to pay a fine of Rs.300/—, in default of payment of fine to further undergo S.I. for 1 month With a further direction to run the sentences concurrently, by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 8r the Additional Sessions Judge, Bilaspur in Sessions Trial No. 402/2001 on 13.2.2003. APPELLANT . Appearance: Sunil Kumar Sinha, J s 2 Criminal Appeal No. 671 of 2003 (2) The brief facts are that on 26.5.2001, Lallu, a boy aged about 3 years, had gone to Dewarhah tank, situated in the locality of village Kushmuli, for taking his bath. Other children including Santosh (PW-4) and Bhola Naie (PW-5) were also there. Appellant was also washing his cattle in the tank. The appellant scolded the children, on which,»~they ran away. The allegations are that when he found Lallu all alone, he took him towards a nearby Kaner plant and pressed his nose and throat leading to his death. When Lallu died, the appellant brought his dead body in the tank and pressed it deep into mud inside the tan‘k. The occurrence was witnessed by above 2 eye witnesses. When Lallu did net return to his house, a searéh was made and when the dead body was found in the tank, a merg intima‘tion (Ex.—P/5) was given to police station, Takhatpur on 26§5.2001 at about 16.50 hours. (3) The Investigating Officer reached to Village Kushmuh on 27 52001 gave notice (EX P/6) to the Panchas and prepared 'inquest (Ex.—P/8) on the body of the deceased. The dead body of the deceased was sent for its postmortem to Community Health Center, Takhatpur, where the postmortem examination was conducted by Dr. V.K. Soni (PW—8). The Autopsy Surgeon found that though the abdomen was swollen but there were no external injuries. The tongue was protruding out. i3alms etc. were yellowish. On internal examination, he found that brain membrane, intestinal fmembrane, stomach membrane, liver 85 spleen were congested. Lungs, large intestine 85 kidney were extremely congested and ‘there was some blood in right chamber of heart and left chamber lwas empty. He prepared his report Ex.-P/ 10 and opined that the Ecause of death was asphyxia which was not due to drowning. After Jreceiving l this report, a query was made by the Investigating Officer lthrough Ex.-P/11 dated 12.6.2001, on which, the Autopsy §Surgeon further opined that the cause of asphyxia in this' particular case may be due to one of the following reasons: G i) Strangulation; ii) Throatling; iii) Pressure to close mouth and nose 8a Heavy chest compression so as 'to hamper respiration. 3 Criminal Appeal No. 671 of 2003 The query report is Ex.-P/ 11-A dated 12.6.2001. Even after this query, the First Information Report was not registered and ultimately on 27.6.2001 police statements of above 2 Witnesses w W ere recorded and then, the First Information Report (Ex.-P/ 13) as registered. (4) After completon of usual investigation, the charge—sheet was fed in the Court of Judicial Magistrate First Class, Bilasur, who i turn committed the matter to the Court of ssions, from Where, it c a J il p n Se was received on transfer by‘vthe oncerned Specil udge, who conducted the trial and convicted and sentenced the apellant as afo‘rdmentioned. ‘x (5) {The coviction of th appellant is based uon the testimony of 2 child witnesses namely Santosh (PW-4) and Bhola (PW-5). () Mr. Prabhakar Singh Chandel, learne counsel for the appelat argued that the estimonies of 2 child witnesses are not reliable as they disclosed the story for the fist time to the police on 27.6.2001 i.e. almos after l month. There are many contradictions in their evidence and their such belated disclosure, for whch no reason has been assigned, make them unreliable. H7) On the other hand, learned counsel for the State opposed ithese i arguments and supported the judgment passed by the i Sessions Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) PW—4, Santosh, was aged about 13 years on the date of his Court evidence, which was recorded on 8.3.2002. He deposed that on the fateful day at about 10.30 a.rn., he was taking his bath in the tank along with Bhola, Ankalu, Satanand, Punararn, Leela, Radhe and .KriShna. Appellant- Akalu Soni was also washing his cattle. Since they were trying to catch fishes and the tank water was getting muddy, the appellant scolded them, due to which they i p n e p 6 d ln t r t i 1 Cn'minal Appeal No. 67 1 of 2003 left the tank. At that time, Lallu was sitting on the upper stair (Pachen) of the tank. He along with Bhola (PW—5) went near a Kethi tree, which was just by the side of tank, and climbed over the tree. He saw that the appellant slapped the deceased and pressed his nose 85 neck. Thereafter, he brought Lallu in the tank and drowned him into the water. and pressed his body from his legs. They became frightened and ran away from the place of occurrence. He also added that at that time, nobody has come to the tank except Akalu. ‘ r (10) PW—S, Bhola, was aged about 7 years when his Court evi‘dénce was recorded on 8.3.2002. He deposed that on the fateful day, he along with Santosh, Punaram, Golu. 85 Lallu had gone to the tank. Lallu was sitting on the stair made on the side of the tank. Appellant was also there, who was washing his cattle. Appellant drove them away from the tank, on which, they went to the other side of the tank and they climbed on-‘a Kethi tree. He saw that the appellant slapped the deceased and thereafter, he pressed his nose and neck and threw the deceased in the tank. After throwing him inside the tank, he pressed the deceased from his legs. l H11) Admitted1y, 161 Cr.P.c. statements of these 2 child l l witnesses were recorded on 27.6.2001. Statement of Santosh has l l been marked as Ex.—D/3 and statement of Bhola has been marked ,as Ex.—D/4. There are few contradictions in their statements, which have been shown to them and they have offered explanation for them but the fact remains that they did not disclose this incident to anybody for about 1 month. In cross examination though they have asserted that their police statements were recorded after 15 days of the incident but in fact, it was recorded on 27.6.2001 and no explanation has been offered as to why they had not disclosed these facts to any one for such a long period. l This delayed disclosure by 2 child witnesses, creates a doubt on their testimonies and the same was fatal to the prosecution. 5 Criminal Apgeal N0. 671 of 2003 (12) Moreover, there is material contradictions ih the evidence of these 2 Witnesses. PW—4, Satosh, says that after throatling, Lallu was brought by the appellant in the tank and the appellant entered into tank to waist height and put the body of the deceased inside the tank and pressed it into mud by his legs, Whereas, PW-5, Bhola, deposed that the body was thrown inside the tank and thereafter, it was pressed deep into mud by the appellant. Besides the above, if we look into the Map (Ex.—P/ 18), it would appear that the Kethi tree is just on the opposite side of the tank and the distance from the tree to ‘the place of occurrence has been shown as 650 ft. The distance is reasonably long and the depositions u made by these 2 eye witnesses do not appear to be true that they had seen the occurrence from such a distance. Another unusual circumstance which has been deposed by these Witnesses is that a a at the time of incident, none else except the appellant and the deceased was near the tank. This also does not appear to be correct. It was a public tank situated in~a dense locality of the village and at about 10.30-11.00 a.m. normally the village people go to the tank for taking their bath and cloth washing etc. (13) No doubt, a child witness is a competent witness and basic innocence and truthfulness of a child is also to be takeninto consideration but in abundant caution, prudence requires the Court to look for corroboration as possibility of tutoring is present. (14) In appreciation of evidence of the 2 child witnesses, we afraid to place our reliance on their testimonies. Therefore, the conviction based upon the testimonies of these child Witnesses, who disclosed the story at a belated stage i.e. after about 1 month, in our opinion, cannot be sustained. (15) Another factor which is alarming to us is conduct of the appellant. It comes in the evidence of PW—l, Krishna Kumar Dubey, that when the search of the deceased was being made, the appellant was through out present and when the dead body was found by PW—l in the tank, it was the appellant who received the ’3\" 6 Criminal Appeal No. 671 of 2003 body of the deceased in his hands and took it to the house of the deceased. (16) For the foregoing discussions, in our considered opinion, the learned Special Judge erred in law in convicting the appellant on the said testimonies of 2 child witnesses and conviction of the appellant deserves to be set aside. (17) Accordingly, the appeal is allowed. The conviction and sentence awarded to the appellant are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appeflant is in jail since 28.6.2001. He be set at liberty, forthwith, iflnot required in any other case. Q Sd/-‘ Sdl- Sunil Kumar Sinha Chief Justice Judge vatti