HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'bleShri Justice Sunil KymarSjnha and Hon'ble Shri Justjce Radhe Shyam Sharma CnmmaLApBeal No.612 of 1995 Appeljants 1.. 2. versus Respondent Sitaram, son of Bisahu Yadav, aged 40 years, resident of Dhourabhata, P.S. Hirri, Distt. Bilaspur Vishambhar, son of Jharihar Rawat, aged 45 years, r/o Dhourabhata, P.S. Mirri, Distt. Bilaspur State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri Malay Shrivastava, couins^l for the appellants. Shri Ashish Shukla, Governfflent Advocate for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedjjre ORAL JUDGIVlgNT (Deliveredon6thJuly,2011) Per Sunil Kumar Sinha, J.: This appeal is directed againstthe judgment dated 31-3-1995 passed by the 7 Additional Judge to the Court of Sessions Judge, Bilaspur in Sessions Trial No.191/90. By the impugned judgment, the appellants have been convicted under Sections 302/34 of the Indian PetiarCode and sentenced to undergo imprisonment for life. r- ••*«>.. '^ 2. The facts, briefly stated, are as under: Deceased Kartikram was a milk vendor. He was resident of Vitlage Dhourabhata. On 15-9-1989, at about 6-7 A.M., he left his house on a bicycle for selling milk. The allegations are that these -\ y- two appellants came on the way in the outer area of the village and assaulted the deceased by Lathis. The incident was allegedly witnessed by Ramlal (PW-14). The prosecution came with a case that the appellants and four other accused persons entered into a criminal conspiracy to commit murder of the deceased, and thereafter the two appellants attacked over the deceased as above on 15-9-1989 at about 7:30 A.M. Th& case of the prosecution was based on sole testimony of Ramlal (PW-14). The learned Sessions Judge relied on the testimony of Ramlal (PW-14) and held that the two appellants attacked over the deceased by Lathis, who received multiple serious injuries and succumbed to those injuries. The appellants, therefore, were cpcvicted under Sections 302/34 of the J ..-K Indian Penal Code and were sentenced as aforementioned. However, the remaining accused persons, i.e., accused No.1 to 4 were acquitte.d of the chargesframed againstthem. 3. Shri Malay Shrivastava, learned counsel appearing on behalf of the appellants, has not disputed the, homicidal death of the deceased. Moreover, it comes in the evidence of Dr. N.K.Soni (PW- 15) that the deceased had sustained multiple serious injuries and tfrere were fractures on the frontat, parietal and occipital bones, and the death vf'as ftomicidal in nature. Hehas proved the post mortem \ / • Ffiport (Ex.P-14), in which also he opined that the cause of death %.- : ; was injurie? on the vital organs and it was a homicidal death. Therefore, it was established that deceased Kartikram died homicidaldeath on 15-9-1989. ^. 3 4. Shri Shrivastava mainly argued that the sole eye-witness, i.e., Ramlal (PW-14) was not reliable; though he claims to see the inddent on 15-9-1989 but he did not disclose the incident or the names of the assailants till 18-9-1989 when his statement under Section 161 of the Code of Criminal Procedure (Ex.D-2) was recorded. His submission is that inordinate delay in disclosure by the single eye-witness, who was alsp the resident of same village, creates a doubt on his testimoriy. 5. On the otherJ^and, Shri Ashish Shukla, learned Government Advocate for the State/respondent opposed these arguments and supported the judgment passed by the Sessions Court. 6. We have heard learned cbunsel for the parties at length and have also perused the record ofthe sessions case. Ramlal (PW-14) deposed that'on the fateful day, at about 6-7 A.M., he was sitting on a bench in front of Panthela (Betel Shop) of Jhaduram. Some truck came from Raipur side and-the occupant of the truck told them that two persons are beating one person. On this, he went towards the place of occurrence and saw that the appellants were assaulting the deceased by Lathis. He further deposed that at that time one Jularam was also sitting with them in the Panfhela. After seeing the incident^ tbi'ey went to their houses. He deposed that he did not till ^- about the incident to anyB&dy in the village. After 1-2 hours, many 'villagers gathered at the place of occurrence. He again went to th'e place of occurrence after 1 hour aricl saw that Kartikram had died by that time,. According to the prosecution, the wife of the deceased "^""'3i;.., .;;!:.;isi^"t;<;:& .,? 1 " % 'tS %£SS^ 1 '<»... i1 "sl -l^ and his son,namely, Pyarelal (PW-9) immediately reached to the place of occurrence and saw the deceased in dead condition. Thereafter, Visheshwar (real brother of the deceased) also came there and.the First Information Report (Ex.P-22) was lodged by him. In the First Information Report, he expressed suspicion against appellant Sitaram. It is on this report, the investigating officer reached to the place of occurrencp, gave notice (Ex.P-2) to the Panchas and prepared inquest (Ex. P-3) on the dead body of the deceased. The dead body of the deceased was then sent to Government Hospital, Bilaspur, where the post mortem examination was conducted and the post mortem report was received. All these formalities werecompletedon 15-9-1989. Till then, Ramlal (PW-14) did not disclose to the" police or to the family members of the deceased that he had seen the appellants assaulting the deceased. Not only this, various other formalities were also completed by the investigating officer in between 15-9-1989 and 18-9-1989 and the police was through out present in the village, but no disclosure at any point of time was made by Ramlal (RW-14). According to the investigating officer, his case diary statement was recorded on 18-9-1989. This shows that there was.delay of 4 days in recording tfie statement of Ramlal (PW-14), who did not disclose anything about the incident either to the police or to the villagers in between -.,/ ~ this period'. '«»- 7: In Balakrushna Swain vs. The State of Orissa, AIR 1971 SC 804, the Supreme Court held that unjustified andunexplained long delay on parf of investigating officer in recording statement of %"-°..,'y (^ material eye-witness, under Section 161 of the Code of Criminal Procedure, during investigation of murder case will render evidence of such witness unreliable because the delay would give an opportunity to concoct a different version than what actually took place. 8. In State of Orissa vs. IVtr Brahmananda Nanda, AIR 1976 SC 2488, eye-witness did not disclose the name of assailant for a day and a half. The Supreme Court held that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for hon-disclosure was unbelievable, such non-' disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness ai?d the High Court was correct in rejecting it as untrustworthy and acquitting the accused. 9. In Bachhu Narain Singh vs. Naresh Yadav and others, AIR 2004 SC 3055, for over period of one hourwhile Investigating Officer was preparing inquest report, no one coming before him claiming to be eye-witness and to lodge report about occurrence though there were alleged _to be ten eye-witnesses. The report was lodged after morethiin one and half hour after Investigating Officer came to y- place of occurrence. Th^Supreme Court said that the presence of informant and alleged eye-witness at the time of occurrence appears to be doubtful. There was serious doubt about presence of the eye- witness atthe time of occurrence. ''^\ u 10. In light of the above judgments, we have no doubt to say that no straight-jacket formula can be applied in all cases of late disclosure by eye-witnesses and the credibility of the witnesses are to be judged in the prevailing facts and circumstances of each case. However, that judgment'should be arrived at keeping in mind the normal human conduct and the probable circumstances includihg the explanation offered regarding non-disclosureof the facts relating to commission ofsuch a heinous offence. 11. In case on hand, we find no explanation atall forsuch a delay in the disclosure by Ramlal (PW-14). We are of the view that this inordinate delay in disclqsure by Ramlal (PW-14), who was the sole eye-witness, was fatal jo the prosecution and the learned Sessions Judge erred in law in relying upon the sole testimony of Ramlal (PW- 14). . 12. Apart from theabove, the other set of evidence is the seizure of Lathis on the memorandum statements, under Section 27 ofthe Evidence Act, of the appellants. On memorandum statement of appellantVishambhar on 30-9-1989 (Ex.P-14), a Lathiwas seized at -h1s instance by seizure memo Ex.P-15. Likewise, on memorandum statement.bf Sttaram (Ex.P-16), another Lathi was seized at his - / ~ ihstance yide seizure memo Ex.P-17. Though these articles were '•». sent for chemical examination to the Forensic Science Laboratory (F.S.L.), but no report has been filed by the prosecution. /' 7 13. For the foregoing reasons, we are unable to sustain the conviction of the appellants on the above set of evidence. We are of the view that the conviction and sentences awarded to the appellants deserve to be set aside. Gopal 14. In the result, the' appeal is allowed. The conviction and sentences awarded to the appellants under Sections 302/34 of the Indian Penal Code are set gside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Siinil Ksimar Sinha Judge ; '" .^'. Sd/- R.S.Sharma Judge ». / ."'^,