\‘5 Gr, A. N0353/2007/ 1111mm 111 200 3mm (W) WWW i '5' .# ‘gé dig“ amimm Hon’ble Shri L C Bhadoo & non’bie shri shg'ii Kumgr sir‘ha, .iJ 26-9-2007 Shri S.L. Bajaj, counsel r the appellants. o Shri Ashish Shukla, Add . Public Prosecutor for the State. Oral judgment dichted n dies. Sunil Kumar Sinha: J This appeal is directed gainst the judgment of conviction and order of sentence dated 20-2-2002 p ssed by the Third Additional sessions Judge, Bastar, Jagdalpur, in Sessi ns Trial No.13/2001 whereby the aecusedl appellants were held guilty of he offence punishable under Sections 302 read with 6ectio’n 34 & 201 of lndian Penal Code and sentenced w to undergo imprisonment for life & to undergo R.l. for two years. The sentence t APPELLANTS 1. Beko Pandroo aiias Pandu, Son of Bhima (ln Jail) ‘aliaS Bhadroo, aged 50 years, tesident of illage Paneda, at present Bhairamgarh, P.S. hairamgarh, District Dantewada. Bastar. 2. oyami Bandi, aged 37 yeats, son of Poyami 4angdu, :esident cf vinage Meng§a, P.s. hairamgarh, District Dantewada, Bastar CG). -Versus- RESPONDENT he State of Chhattisgarh, Through P.S. hairamgarh, Distt. Dantewada. (Appeal und Section 374(2) of the Cr.P.C.) Division Bench: XI-HC—78 WW,W,W @ WW an 200 3mm (Wm WWW WWW . 4 Panchnama on the dead b was sent for postmortem Centre, Bhairamgarh. Site pursuance of which one iron knife was seized Poyami Bandi under Ex.P/1 6. Memorandum of Iso recorded on 1-12-2000 under Ex.P/7. ln WWW WWifsétm taifcmm we?» awarded under Section 201 the Indian Penal Code has been directed to be adjusted in the life imprisonm nt awarded to the accused persons. 2) Case of the prosecution, in brief, is that on 25-11-2000 at about 12.30 p.m., Sonaru (PW-2) saw tha the dead body of an unknown person is iying in 'Bandiapal Gaii. He saw injur on the body; therefore. he went to school and told about the same to one andal Guruji, who directed him to go to Police Station to lodge report. On this, he went to Police Station & lodged First Information Report under Ex . On the said report, investigation commenced. was prepared under EXP/19. The dead body mination under Ex.P/24 to Community Health plan was prepared under EXP/17. During investigation memorandum f accused Poyami Bandi was recorded on 10-12-2000 under EXP/15. from the possession of accu accused Beko Pandroo was pursuance of which a wood n piece (katole) & various other articles were seized under EXP/2. Postmo m on the body of deceased was conducted by Dr. A.S. Sendrom (PW-7), wh prepared his report EXP/9. He noticed following injuries on the dead body : 1) Contusi n in the right side of face in the size o x 4". 2) lncised wound in the right side just below t e right ear pinna in the size of ‘ 1"”? i o e s l " WW,W,W V/ ’ ' XI-HC—78 Wm (W) WWW $11 W WWW WmR WWW %a‘mm 3) Stab nd on the right side of chin in the x %u x gl/zn. 4) Stab w und on the midd‘e of chin in the size of “ x W x 34“. 5) Contusi n on the right side of neck in the J size of x 3". 6) Contusi n on the leh side of upper chest inthes eof3”x2 11$“. In the internal examination, it found that there was a compound fracture in the right mandible bone lower aw and there was tearing of great vessel of neck with vascular supply to brain. cording to the Doctor injuries No.1, 5 8. 6 may have been caused by hard & blunt object and injuries No.2, 3 & 4 may have been caused by hard & sharp ointed object. The injuries were ante momm in nature. Duration of injuries is in between 38 to 4O hours prior to the autopsy. He opined that cause of dea was coma due to injuries No.1 & 5. Death was homicidal in nature. 3) After usual investigati charge sheet was ftied in the Court of Chief Judicial Magistrate, Dantewad , who in tum committed the case to the Court of Sessions Judge, Bastar, Jag alpur, from where the matter was received on transfer by the Third Additional Sessions Judge, who conducted the trial. 4) The conviction of the ppellants is based upon the sole testimony of eyewitness namely, Nandee M so (PW-4). 5) 4 Shri Bajaj, learned sou sel for the appellants, argued that the evidence , Nandee Maso (PW-4) is not reiiable for the reason that he had disclosed e story on 1—1 2-2000 whereas the incident took of the sole eyewitness name Wm w 200 w u u z " s c o , X1-HC—78 place on 25-1 1.2000. No p‘ausible reason has been laid down for late disclosure by the said witness. He was not normally residing in the house of Pandroc; therefore, his presen :e on the date of incident is doubtful. 6) On the other hand, Shri Shukla, iearned counsel for the State, supported ' the judgment of conviction and order of sentence passed by the trial Court. counsel for the appellans as also learned d 8) According to the prosec tion, the incident had taken place in the night of 24-1 1-2000 in the house of a used Pandroo i.e. appellant No.1 and then the dead body was taken by b th the appellants towards gali where it was ultimately seen by sonaru ( 2), who lodged the First information Report to the Police Station. 9) Nandee Maso (PW-4) been examined in this case. was knowing the deceased nd the deceased was murdered by accused persons namely, Beko Pandr o & Poyami Bandi. He has stated that some quarrel took place on accoun of demanding Beedi and in that quarrel Bandi assaulted the deceased with nife & Pandroo assaulted the deceased with a Katola (a piece of wood). The had assaulted hlm in the house of Pandroo. in the fateful night, he was pres nt in the house of Pandroo. He had seen that both the acoused persons had assaulted the deceased. He had also asked the accused persons not to assau t. ln para 2 of his statement he has stated that ‘ from Katola the deceased wa assaulted on the head and from knife he was the onlv evewitness to the incident, who has e para 1 of his statement he has stated that he P — d W W E‘L 200 mm (W) mwfw’m ammm WWW WWWIWW %3if%m3n%¥1 XI~HC———78 WW,W,W Wm w 209 WW (W) mmwa‘étm $3im3nés1 WWW ammm assaulted on the neck portio accused Pandroo has told h He has further deposed that aRer the assault that he should not disclose this fact to anybody else and thereafter both the ccused persons took the dead body from the house of Pandroo towards dlapal Gali. ln the cross-examinatlon, he has admitted that the house of P ndroo is simated in Koshtapara, Bhairamgarh, house of Bandi is situated in haramongiya and his house is also situated in Jharamongiya. He has also dmitted that accused Pandroo is his maternal uncle. He has stated that h had gone for splitting wood in the house of Pandroo because they used to sale wood. 10) Learned counsel for th appellants argued that statement of Nandee der Section 161 of the Cr.P.C. on 1-12-2000 Is whereas the incidenKsaid to ha ve been taken place on 24-1 1-2000. Therefore, there is a delay of about 7 days in recording the statement of this witness under Section 161 of the Cr.P.C. Admittedly, after the report on 25-1 1-2000 the Police party has come to the village a 1d during the course of investigation, inquest on the body of deceased was prep ared on 28-1 1—2000. At that time villagers were Maso (PW-4) was recoged hat h/ called and there is nothing on record to show that this witness wasLpresent in the said viilage on the said date. The dead body was sent for postmortem examination to the Community Heatth Centre. After postmortem examination, the dead body was handed over to the family members, but on these occasions, nothing was disc ed by this witness to anybody else and ultimately on 1-12-2000, for th first time, his statement was recorded by the Police. What was the reasonf r remaining silent for a period of about 7 days? ln this regard, there is no exp nation by the lnvestigatino Officer. However, the oniy explanation which co es in the evidence of this witness i.e. Nandee i n n ’ XI-HC—78 mW,m7W WW E 200 mm (W) amW m WWW mimifgém ’éssifx-msnaa Maso (PW-4) is that he had persons had said to him th him. Whether on such expl relied on. J11) ln the matter of State l under : i v o not reported the matter because the accused if he will report the matter, they will assault nation only, the version of this witness can be 3f U.P. vs. Satish‘ the Supreme Court held as estigating oflicer is categorically why there was delay in y advantage therefrom. It cannot be laid down as a rule of universal application particular w'ness the prosecution version becomes su pect. it would depend upon several facto . lf the explanation offered for the delayed examination is plausible and acceptabie a d the court accepts the same as plausible, the e is no reason to interfere with the conciusi n. 0n the other hand, if the explanation is found to be implausible, certainly the court ca consider it to be one of the factors to aff ‘ (2005) 3 sec 114 “Unlessthe asked as examination of the witnesses the defence cannot gain any delay in examination of a credibility of the witnesses who belatedly. it may not have any credibility of the prosecution’s red bv the other witnesses.” as Investigating Ofticer is concemed, he has the delayed examination of the witness. lt is has been asked to the investigating Otticer’in that if there were examin effect on the evidence ten 12) in the present case, so not given any explanation abo correct that no specitic questio ‘ this gegard, but if we examine e evidence of Nandee Maso (PW-4) itself, he e e d f r XI-HC—78 WW,W,W mm (W) WWW ?{9Tfmm maféaaném mm#wm ahifawm has offered explanation by s ‘ ing that accused persons had threatened him that if he will disclose the matter, they will assault him. Whether such explanation given by the witn ss for making discloser after about 7 days is plausible. In our considered o inion, such explanation does not appear to be plausible. lt appears that no ue was received by the Police for a very long period. After about 7 days, tatement of this witness was recorded and ultimately a general plausible lanation has been offered by this witness in a casual manner, which does n t appear to be acceptable to us and for this reason, the version of this itness appears to be doubtful and not fully dependable. We are not inclin d to accept the version of this witness because he laid a very late disclosure and the explanation offered by him does not appear to be plausible. Th conviction of the accused/appellants cannot be susmined on the basis o testimony of this witness i.e. Nandee Maso (PW-4). 13) On examination of the ecord, we find that thete are seizure of the weapons and the same were ent for chemical examination, but no chemical examination report has been received and has been produced by the no W prosecution. Except this evid nce, there appears to beLany incriminating circumstance against the accus d persons. 14) ln view of the above dis ussion, we do not find that the conviction was possible on the sole testimo y of Nandee Maso (PW-4) and seizure of weapons of offence about whic no chemical examination report was received. Thaconviction is not based up n the cogent, legal & clinching evidence, which deserves to be set aside. l I WW In 200 upon the accused/appeliants un‘ the Indian Pena! Code are set The appellans are in jail. They other case. SUN'IL KUMAR SINHA Judge Lg der Sections 302 read with Section 34 & 201 of aside. They are acquitted of the said charges. be set at liberty forthwith, if not required in any 311%” m (13W) 15) In the result, the appeJxl succeeds. Conviction & sentences