’/ i h ‘ I 2 Criminal Apgeal No. 1224 of 1992 not return, séarch Was made at various places by his brother Baidhnath Vishwas (PW-1) who lodged a report. in out—post Durgkondal on 19.11.89’ On 2.12.89, statement of Shivram (PW— 5) was recorded, Who disclosed that on 9.11.89, he was present on Michgaon turning along with Raju and Lalu. The appellant also came there. They saw that the deceased and co-accused Leela Sahu got down from a bus coming from Durgkondal and they went towards village Odahur by a forest road. The appellant said him to follow them. They followed them in the forest. When they reached near teak-plantation, the appellant said him to catch the deceased. The appellant had a talked with co—accused Leela Sahu, who made allegations of molestation against the deceased, on which, the appellant took out. a bicycle—chain from his bag and started assaulting the deceased. Co—accused Leel Shau also assaulted the deceased by hands 85 fists. Thereafter they took the deceased in deep forest and he (Shivram) was asked to bring a rope. He returned to the Village and met the Villagers, however, he, did not return to the forest. In the evening, the appellant came to his house and made extra—judicial confession. -The appellant also threatened him. Since he was frightened, he did not disclose the story earlier. On this statement, the appellant was taken into custody and his memorandum statement (EX.—P/8) u/s 27 of the Evidence VAct was recorded on 3.12.89 and the dead body, two bags of the deceased and bicycle—chain were seized at his instance from the forest. The seizure memo of dead body is EX.—P/ l4; panchnama of the dead body is EX.—P/ l5; the seizure memo of two bags is EX.— P/ ll; the seizure memo of rope is EX.—P/ 10 85 the seizure memo of bicycle—chain is EX.—P/9. The learned Sessions Judge believed the testimony of Shivrarn (PW—5) and held that the deceased was assaulted by .the bicycle—chain by the appellant in the forest before this witness, and later on, an extra-judicial confession Was rr‘iade before him. The dead body was recovered at the instance of the appellant and the other articles were also recovered at his instance from the forest, therefore, the appellant was liable for punishment u/s 802 a 3 Criminal Appeal No. 1224 of 1992 IPC However the co accused was acqultted as no 1ncr1m1nat1ng ev1dence could be brought on record agalnst her (3) Mr. Sandeep Shrivastava, learned counsel appearing on behalf of the appellant, argued that the dead body was not identified; the evidence of ‘Shivrarn (PW—5) was not reliable as he made late disclosure; and the other circumstantial evidence were not sufficient to hold the appellant guilty of the offence. (4) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these argurnents and supported the judgment passed by the Sessions Court. / Wehave heard the learned counsel for the parties at length and have also perused the records of the sessions case. (5) '(6) t ’So far as identification Of the dead body is concerned, no doubt, it was in highly [decomposed condition as the incident took place on 9.11.89 an‘d the body was recovered on 3.12.89, but, the brother of the {k deceased Baidhnath Vishwas (PW-l) identified the dead body on the basis of cloths, watch and the two medical bags containing stethoscope etc., all belonging to the deceased. He deposed that he could identify the body to be that of his brother on the basis of hairs and remaining portion of his face. The photographs of the dead body have been so proved show1ng cloths and other artlcles which this Witness clalms to be that of his brother Dr A K Pas1ne (PW 14), to Whom the body was sent for post—mortem examination, also found various articles on the highly decomposed body which was almost skeleton and‘had sent the for further examination. Those articles were underwear, towel, pa nt, ,\ \ a \ shirt, slipper and wrist—watch. Since ) usual post—mortem report could \g r al m 4 Criminal Apgeal No. 1224 of 1992 not be submitted, therefore, opinion was sought from Drr T.N. Mahrotra (PW—15), who was the Head of Department of Anatomy Medical College, Raipur. On the basis of skeleton, he opined that the skeleton and the remains were that of a male of the age group of 25—35 years. It is on this evidence,.the Sessions Judge held that the body was of that‘of the deceased who was missing sinee 9.11.89. When the brother of the deceased himself identified the articles to be that of the deceased which were found intact on the body and which were also found by the Autopsy Surgeon, it cannot be said that the remains of the body so recovered Were not of the deceased and the identity thereof was not established. / (7) So far‘as testimony of Shivram (PW-5) is concerned, he deposed that in the forest, he saw the appellant assaulting the deceased by a bicycle—chain. He became frightened and ran away from that place. Thereafter he went to the house of one Sattu where he met with Pancham and narrated the story to Pancham. ln the night, the appellant came to his house and stated that he has committed murder of the deceased and has tied his dead body with a tree. The appellant threatened him .that he should not disclose. this fact to anybody, otherwise it will not be good for him. On the next day, he disclosed the story to Rainu (PW—7). It was argued that Shivram (PW—5) kept quit for about one month and thereafter his 161 statement (Ex.—D/5) was recorded on 212.89, therefore, his testimony should not be relied on. Though this witness disclosed the facts to the police on 2.12.89 but 'before this he had also disclosed it to one Pancham on the same day and-Rainu (PW—’7) on the next-day. Rainu (PW-7) has supported the prosecution case to the extent that Shivram (PW—5) disclosed him that t 5 Criminal Apgeal No. 1224 of 1992 the appellant has committed murder of 'a person. However, he could not tell the name of that person. PW—S has stated that he was threatened by the appellant. It appears that on account of threat given by the appellant, he could not dare to disclose the story to the police prior to 2.12.89. It is not a case in which he had occasions to meet with the police and then, the disclosure was not made. He has disclosed the fact to the Villagers and then it was also disclosed to the police. Since PW—S has witnessed the incident of marpit in the forest, therefore, the appellant had a reason to come to him and threat/instruct him not to disclose these facts to anybody. The explanation of threat offered for the delay in disclosure appears to be reasonable. It appears that for all these reasons, in the evening, the appellant came to this Witness and made extra—judicial confession that he has committed murder of the deceased. On the above pretext, the evidence of extra—judicial confession also appears to be reliable and these evidence cannot be washed—aside only on the ground that there was late disclosure, particularly when he has disclosed the facts to the villagers immediately and has assigned the reasons for non-disclosure to the police before his 161 statement was recorded. The delay in diSClosure is always not fatal as a matter of rule. The explanation for the delay has to be considered in light of the facts and circumstances of each case. If the explanation offered for the delay appears to be acceptable and the conduct of the witness appears to be normal, his testimony cannot be discarded on s, this account alone. (8) So far as circumstance of recovery of the dead body and other articles séized at the instance of the appellant are concerned, we find that the appellant gave his memorandum statement (Ex.—P/ 8) u/s 27 of he Evidence Act on 3.12.89 at about 11.10 a.m. in village Michgaon t 6 Criminal Appeal No. 1224 of 1992 which led to discovery of the dead body, vtwo bags belonging to the deceased and the bicycle—chain belonging to the appellant. There is no reason to disbelieve the discovery made through EX‘—P/8. Natwarlal Bhatia (PW-4) deposed that when the appellant was asked, he stated that the dead body of Dr. Vishwas and chain etc. is in the forest and he can show that place. This statement was reduced into writing by the Investigating Officer. He also signed the document and thereafter the appellant took them to the forest and showed the dead body. The neck of the body was tied with a towel and it was also tied with a tree. There was a watch in the hand of the deceased. Both hands of the deceased were tied at the back. Two bags were also there. Investigating Officer has also deposed in similar fashion which hardly leaves any room to doubt about the discovery led through memorandum given by the appellant to the police While he was in custody. This shows that the appellant had exclusive knowledge of the dead body and the articles and after disclosure he took the police deep into forest and got the body as also the articles recovered. On consideration of the entire evidence on record, we find that defence has not been able to destroy the above circumstantial evidence proved against the appellant. These circumstances were fully established. They were consistent only with the hypothesis of the guilt ‘of the appellant and were not explainable. The circumstances so established exclude every possible hypothesis except that the appellant was the author of the crime. There was a complete chain of circumstances of conclusive nature leading to the l guilt of the appellant. (9) Even if the evidence of .Shivram (PW—5) is kept out of consideration on account of late disclosure, the above circumstantial evidence leading to discovery of the dead body and recovery of various Criminal Appeal No. 1224 of 1992 J, articles belonging to the deceased as also recovery of the bicycle—chain from deep forest at the instance of the appellant were sufficient to hold that the appellant was the author of the crime in question. (10) For the foregoing reasons, we do not find any substance in the appeal. The appeal is liable to be dismissed and is hereby dismissed. r (11) It is stated that the appellant is on bail. He is directed to surrender immediately to serve the remaining sentence. .II— Suni. Kumar Sinha Judge SG ‘1 l