ii£.i*|s •<te-^' ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Suni! Kumar Sinha & Hon'ble Shri Radhe Shvam Sharma. JJ. Criminal Appeal No. 619/1995 APPELLANT Madan Kumar Son of Braj Nandan Jha, aged about 32 years, R/o. Sirva, P.S. Banderi, Distt. Darbhanga, Bihar, at present R/o. Godam Naka, .jagdalpur, P.S. Jagdalpur, District Bastar vs. , Respondent State of Madhya Pradesh (Now at Chhattisgarh) AND Crimina! Appeal No. 824/1996 APPELLANT : Madan Kumar Son of Braj Nandan Jha, aged about 32 years, R/o. Sirva, P.S. Banderi, Distt. Darbhanga, Bihar, at present R/o. Godam Naka, Jagdaipur, P.S. .Jagdalpur, '•District Bastar Vs. Respondent State of Madhya Pradesh (Now at Chhattisgarh) rcrimina! Appeals under Section 374(2) of the Cr.P.C.) Present: Smt. Kiran Jain, counsel for the appeiiant. Shri Ashish Shuk!a, Govt. Advocate for the State. ORAL JUDGMENT (17.06.2011) The followjng judgment of the Gourt was passsd by Sunll Kumar Sinha, J. / These appeals are.directed again&t the judgment dated 14 of March, •'«»- • 1995 passsd in Sessions Tria! No.205/94 by the First Additiona! Sessions Judae. Jaadatour fBastart. In fact the two aDDeais were fi'ed by the appellant against same judgment. One appeal, i.e. 619/95 was fi'ed by ths counsel forthe aDDellant on his instructio" and the other aDDea!. i.e. 824/95 ~'-y • • •/• '—'^" - • ".... was sent by the appeilant frorp. di^rict jai!, Jagdalpur. This C-ourt after receiving the jai! appea!, passed an order dated 24.01.96 that ground raised in the jai! appsa! shai! be treated as addltionai ground i" C-rimina! Appeal No.619/95, thsrefore, both the appea'.s are being disposed Qf by this common judgment. By the iffipugned judgment, the appeilant has been conyicted under Section 302 of Indian Pena! C-ode and sentenced to undergo imprisonment for llfe. 2. The facts, brisfly stated, are as under:- Deceased Ku. Geeta was aged about 5 years. She was rea! daughter of Basanti Bai (PW-8). Sapan was husband of Basanti Bai. Saoan hss dsssrtsd Bsssntl Bsi. thsrsfcrs. Bss^nt! Bs was FGSldlnQ sswifs to ths soDsHsnt. Hsr dsuQhtsr wss siso rssidlHQ with hsr. Thsv wsrs residing in a rental premises i" viilage IV.stguda. Or. 13.03.94 at about 10-11 s.m.. ths SDDslSsnt snd Basanti Bsi iPW-S) had oons for tak'HQ rattQH fro?p. s n63rbv ratiQH shoD. Dscsassd Gssts rsmaiHQd In ths hQisss. Ths allegations are thst the appellarst returned to the house after somstime Esavinc! Bsssntl Bsl fPW-S^ in the shQD. and thsrsaltsr hs ssssuitsd ths bv hsnds and fists. dus to which shs disd. Furthsr al'SQstlop.s at'© that a^6f hsr dsath. ths aDos!!ant IQQR th8 desd bodv to thQ bsthroQm snd out it"thsrs anci wsnt swsv from his houss. Shrsskant Dubsv^PW-1) wss nsiQh'OQur of thSF'sodsllQnt. Hs clslnis to bs ths av©witnsss ofths csss. IP. •• / ' fact he was the soie eye witness produced 'oy the prosecution. The case of th9 ;DrQS6CUttQn !S thst Shfll0rit DubSV (PW-1} SSW thst th@ Qlrl hss dlsd on accQunt of beatin^given by the appeiiant, hue and cry "yas mads and many viliaQ6rs Q2thgrsd ther^. thsv wsnt to ths hous6 of ons Sstlsh Kunisr Tiwsn (PW-5) an Advocate residing !n the iocaiity, who telephonicaHy informed the r police. Sub Inspector B.R. Sinha (PW-4 - Investigating Officer) reached to the piace of occurrence at about 12-12.30p.m. and recorded dehati merg (Ex-P/3). This dehati merg was lodged by Basanti Bai (PW-8). investigating Officer gave notice (Ex-P/4) to the Panchas, and prepared inquest (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. Vinay Kumar (PW-7). He noticed many external and internal injuries on the body of the deceased. There were many fractures on the ribs and the deceased alSQ sustained injuries "n lung and lever. The autopsy surgeon opined that the cause of death was hemprrhage and shock on account of injuries to the iever an.d iung and the death was homtoidal in nature. The post mortem report is Ex.P/10. Based on this informatiQn, reguiar merg intlmation (Ex- P/7) as aiso First Information Report (Ex-P/8) were recorded. 3. After completing investigatiQ", charge sheet was fited in the Court "T C-hief Judlcial Magistrate, First -Class, Jagdalpur, who in turn, committed the matter to the concemed Sessions CQurt, from where it was received on transfer by First Additiona! Se^ions Judge Jagdalpur, who conducted the i.riai and convicted and sentenced'the appeltant as aforementiQned. 4. The CQnYiction of the appellant is based on the so!e testimoRy of h- / eye'witness Shrikant Dubey (PW-1). si»«- • 5. Smt. KJran Jain,Iearned CQunsel appearing on behalf ofthe appellant, argued that the testimQp.y of Shrikant Dubey (PW-1) was not reliable, therefore, cop.viction based on his soie testirp.Qny was not justified. She argued thai though he c'aimsto havs witnessed the incident Q" 13.3.94 and vvss orsssnt vvlth ths DQlics thfQUCih out thsit dsv. hs did Hot dlscEoss ths incldsrit to th6 ooiics on thst dsv. En fsct. hs dlscEossd ths incldQp.t IQ ths oois08 cn 15.3.94. i.s. on ths third dsv. thsrsfors. his bsistsd disclosur8 rfsdk8s isls svidsnce hiah!v SUSD'CJQUS. Shs sSso tQok us IQ vsrious CQntradictions and Qrp.lssions !R the evidence of Shrikant Dubey (PW-1), VvhQ ip. f80t OSV6 P.GW dimsnslQHs to his v©rs!QrEIn hls cQurt svEdsncs, 6. Qn tha othsr hsnd. Shrl Ashlsh Shukls. Issrnsd CQUHSBI soDSsrlHQ on behalf of the State opposed these arguments and supported the im^pEL p&ssad bv th6 ^sslop.s CQisrt }-""-5» VVs hsvs h8srd isarnsd counss! for ths osrtlss st IsnGth snd hsvs d&o c'^Eussd th8 rscords of ths ss^slons csss. 8. Adrnittediv. Shrikant Dubsv fPW-1) mads disc'osurs about the Inc-Idsnt on 15.03.94 whan hls 1S1 ststeHnsnt {Ex-D/D wss r8CQrciQd bv tho DOilcs?. It ooni8s in ths ©vidsncsQf Shriksnt Dubsv (PW-1) that when DQlics csrns in ths vlllSQs QH 13.3.94 aftsr rscsivlncs tsisDhonic EnfQrmstlQn of iadi;ocats Satish Tiwari (PW-4), hs was a'ono with ths DQ'ICS. But the fact th^t hs dld not discloss sbout ths incldsnt to ths DQ'ICS on 13.3.94 wss not ."iU ^Vi-lLL/.;in&2.r^ i^v ^rm i ."> Sstaki'ushna Sw~3in —Vs-The StatQ of Orissa. A!R f971 SC 804, "•s, ,/• th^; Ao6X CQU^. Ksid that unlustlflsd snd unsxDlalnsd lQnQ dsisv Qn csrt of Hwesiicisl.lno officsr in rQOQrdinci^^tsiTssnt Qfmatarisi svs-wltness. u/s 161 Cr.P.C-.. durinc; invsstiastion of niurdsr CSSQ wiil rsndsr svldsncs Qf such Xt-kdt II i^ 11 f li^W^I^Ult.lWI U 1 II i t-Il W-VC WM.'W TIB ;I1 ^ v^itnsss LitiicHsbie. BBCSUSS ths dslav would Qivs sn Qooortunitv IQ CQncoct & diff^i'8iit vsrsion th&n what sctusiiv IQQR Discs. \—... '.. • . .' ', 1!.^ . .' . -••V ";' " - H -7 ^ '-: £S_ ;• i -^S^-iSs^ Wantfa. AiR 197S SC ^f^^ 8y8"wltn8ss did not dlsclQss th6 nsnis of ssssilsnt for s dsy snd 3 Ths A>.De'x CQurt hsld th^t whsrs In s murd8r csss ths sntira Qrossouuon c&ss dsosndsd QH th8 syidsncs of s oeFson clslmlHQ IQ bs svs- witiiSss ^nd thls wltnsss did not dlsciQss ths nsms ofths sssslisnt fbr 3 dsv aHu & h^if afl©rths Incldsnt snd th6 ©xbisnatlQnQff©r8dRsr HGH-dlsciQsurs Vif&S Unb& ISVab 8. SUCh HQH-d SOlQSUI'6- W^S s ssrlous nflrmitv whlch I'te^tTQV^d ^'.^~ f?r^^ihisitv of ths pvirJ^nr:^ rif thpL witH^^s ^nfs th<s uinh r^outt •^•Wfit U-J^-'^S ^IEIUT WS-Wwl-^I.il.J •l^E i.I.ET.T ^/-i..^^tlvt-T •l/I l.;:.^ TUII.l t-^\.,^l aAEEU. ^il-^ t;.:jg:f •u-^^l-.iu \=i&s ^orroGt In rBlsctina !t ss untrustwQfthy snd BCQUlttirEQ the'^ccussd, ; i't BaCishii N3f3!n Sin'sh —Vs-Naresh Yadsv 3S~sd Qtkers. AIR 2004 for over periQd^o?' one hour whi'e 'nvestigating Of^cer was fi '~s-i~t--ic ^^"i "-^: ;cu6st rsDort. HQ QH© CQminci b8^3FB him cl^Iinino to bs SVQ- nc! to ^oc!Q@ rsDort BbQiit ocourr^nc^ thoucih th$f8 wsrs s.li^cisd to »^|h:93g@9 Thg FSDOI't WSS !odQ6d 8ft9f ET1QF6 th8H OHB hQUF 8Hd V V --^: t'v'^r^.-W-.-. S ; :V 1 •u-ju--^: w S C -fcA^- ;VW^tuf'-i terl.'UTI ILlVE-arf <.I.U11: u-i l.U- i I-^l.-il 1^.; :•-! ^^ iHVA^finstl'nn Offlc^r Qfi?T^^ to ^Isce3 of Qccurrsnc^ Th^ An?iX J lti3.t ths Dres£nc@ of In'TonTisnt and aiisQsd sv^-witnsss 3t th8 ^OUrTfcHC©&DD6SFS IQ b©doubtiui. ThBF^ WSS SQFlQUS dQUbt 3bOUt of th^ BV^-witnsss st tli8 tm8 of QCCurrencQ. Ws hsys no uoubl to sav thst no strsiQht-iscRst fbrmuia can be ^ -^ ^ ^—- * ^ — ^ -V. -- —--^^ - - ^ ^ '-%. / i ln ^il fedsos of Ists disoiQsur6 bv ^ys-witnssses snd th9 cr8cilbliitv of '/ ''-'» ••—"-s"•• iS6^. sirs to b& ludo^^~in''ths Df8V3luHQ ^ots aud cirGUHistancss ^} c^ss. Hov:8v©rth3t iudcimsnt ©houldbfi BrnvQd st kssolHQ In iTiind th-3 M& hufflan conduct and the pi-obabis circumstances inciuding the explanatiQn otfered regarding non-disclosure of the facts retating to commissiQn os' such a hsinous offence. 13. in tne preseni case.as we have already ^ated, Shrikant Dubey (PW- 1) was throuahout presant withthe police. He met the investigating officer wnen he reached tne piace of occurrence and he was also present at the time of prepanng inquest on the same day. Even some preliminary invessigation was aone on 1 3.3.94 and Shrikant Dubey (PW-1 ) was present tnere thrQuahout. He never disclosed the police that in fact the appeliant was ine author os tne crime and he had seen the appellant assaulting the deceased when he was present in the house. Even he did not disclose this stQry to anybody on 14.3.94 and ultimately on 15.3.94, he disclosed this story to the poiice wnen his 161 statement (Ex-D/1) was recorded. We find i:riat even whiie his ci'oss-examination, he did not give any satisfactory feXDianatiQn i-eaardina nis be!ated disslosure. In the above facts and cii cumaances of the case, we are "f the view that such delay in disclosure w inciGenl by ShriKant Dubey (PW-1) makes his evidence highly suspicious isFid thS iBBfHSd S8^iOHS JudQ8 SFFSd '" ISW 1" rS'VlHQ QR thS tSStlmOHV Of soie eyewiiness, 3hili<ani Dubey (PW-1) fbr corwicting the appeliant under ^^Q[jQfi ^u^, i?°°*L? "14; Ws. iUit.h8f nol.8 thst In ths court svidspcs. Shfi!<ant Dubsv fPW-1 •ueposed tnat wn^n the appa!!ant came to his house, he heard the noise !ike dhuin''dnufn. n^ OSDOS6d ttist ItS^'WSS undsr 'mDrssslor1 thst ths sDDsl'snt wds ssssuluiia his dsu^htsr ss th6 aoDsHsnt wss in hsbit of ssssu'tlrsQ h9r. He luniier c;aimed tt'iat Iheraafter he saw+he appellant carrying his daughter Qn hls ShQUlusi' Whd tOuk her tO the bathroom. He saw some vomitina '/ -'»,\ substance coming out r'rom the mouth of his daughter. We find that this was not his version in his 161 statement (Ex-D/1), in which he simply stated that he had seen the appellant assaulting the deceased by hands, and not that he heard the noise. Even he stated the number of assaults given by the appeilant to the deceased. These contradictions in his two statements were materia! and on thls account aiso his testimony was not reliable. 15. After going throug.h the entire evidence of Shrikant Dubey (PW-1), we are of the vlew that he was n.ot a reliab!e witness and conviction based on his sole testimony cannot be sustained. 1S. There is yet another reason to disbelieve the testimony of this witness. If we look snto th.e fcontents of dehati merg intimation lodged by Basanti Bai (PW-8), we find that after giving description regarding the ration shop, she mentioned In the merg that ^ajesh Kumar, maternal grand son of her iandlord came to the shop and told her that Geeta was lying in the bathroom and she is not taiking. !t is on this informatiQn, she rushed to the house and found that Geeta was !ying dead-'in the bathrQom. She very clearly mentioned that she cannot tel! as to how her daughtsr died. Sim'lar is the situation relating to the contents of inquest report. There is no '.'yh.ispgr in the inquest reporj: regarding commission of myrder of the decease.d by the appeiiant. According to the evldence of advQcate Satish "Tiuuarj (PW-5)," who gave teiephonic information to the po'ice, the vi'lagers 'lQid him that ths dsc6ss6d wss murd©rsdbv ths sDDsEisnt. Whsn this wss W6li sor8sd in ths VHISGB that It wss ths SDDG'Esnt who hsd committsd iTilli'd8r of th6 d8CS8S©d. 3Hd svsry on@ IncEudinQ ths so!0 svswitnsss Shrikdnt Dubsv (PW-1) vv3S,l<HQw!nci3»lIthls. thess fscts should hsye b©sn MtBtUEi msnt QH6d p. th8 dahsu rp.srci ntmat on iodasd bv Bsssnt Bsi fPY/V-S^. who Is non8 els6 but th8 n^oth©rof th8 dscssssd. OrnIsslQr! Qf 2li thsss fscts In the merg intimatio" furt'ner creatss a doubt i" the entire prosecution case, 'hic.h was based on the testimony of so!9 eyswitness Shrikant Dubey Whl^h f r^v ?•-{ A.\ , c~'yu-. i i \ /' 17. CQp.vlotiQH and s^ntsncs swsrdsd IQ ths sQQSilsnt undsr SsctlQH 3G2 iPC. th©refQr6.3r8 s©tssd©and ths sDDsHant Is scQuittsd to ths chsrQss fr^m^d SQBinst hirn. It is ststsd thst ths SDDsHsnt was tsksn into custodv on Lw 'rr' 1S.Q3.94 and h.e v'vas {hrouah out in iai! tit! 14.02.2002. Present'v he Is on baii. His baii bonds are cancelied and surety ^ands discharged. 3oth ths SDDS&IS 3F8 d SDQSSd of in ths abovs msHHsr. Sd/- Sunil Kiimar Sinha Judge sini R.S. Sitarma Judge •• / 'tt-