•.a -^ HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench:- Coram: HON'BLE MR.T.P.SHARMA & HON'BLE Mft.R.N.CHANDRAKAR, JJ. Appeilants Respondent Criminai Appeal No.188 of 2001 1. Chamar Singh S/o Ran Sal, Gasta: Kanwar aged about 47 years, R/o Vi!l: Chainpur, P.S. Kartala, Dist: Korba, Chhattisgarft. , 2. Teejram @ Munda S/o Chamar Sai, Caste:Kanwar, aged about 40 years, R/o. Vill: Dwari, P.S. Kartala, Disfe Kort>a, Chhatti^arh. 3. Ramayan Singh S/o Bhurri, Ca^e: Rawaf, aged about 34 years, R/o \flllage: Fatt^anj, P.S. Kartala, Dist:Korba, ChhattSsgarh. . Versus State of Chhattisgarh through P.S. Kartaia, Dist:Korba, Chhattisgarh. (Criminal Appeat under Section 374 (2) oftte Gr.P.C.) Mr-Abhijit Sarkar,counsel forthe appellants. r.Neeraj Mehta, Panel Lawyer for the respondent/State. 1. JUDGMENT (Passed on 10t"' August, 2011} PerT.P.Sharma,J.:- Challenge in this appeat is to the judgment of convteCon & order of sentence dated 8.1.2051 passed by the Addttional Sessions Judge, Korba, jn Se^ions Trial No.50/2000, whereby & whereuneler teamed Addltional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Amar Slngh in sharing common interition convicted them under Sectlon 30/2 read with Section 34 of the i.P.C. and sentenced to undergo imprisonment for life and fine of Rs.SCXX)/-, in default of payment of fine to further undergo R.l. for SK months. '\. .S'.A ^y •<a> .@» z 2. Conviction is impugned on the ground that without there being any tota of evidence, the trial Gourt has convicted and sentenced the appeilants as aforementioned and thereby committed iilegaiity. 3. As per case of the prosecution, on 8.10.1999 at aboirt 8 a.m. Amar Singh went along with.appeliant Teejram to viliage Ghoribhata and consumed liquor, thereafter they went towards hill where the appellants assaulted Amar Singh by stick and fists and caused his (teath. Thereafter, they have thrpwn.dead body in ditch firil crf waS.e'c. Dead body of the deceased was found ftoating in ditch (dabra). Mehatar (PW-2) went to Police Station and iodged merg vide Ex.P/1. Investigating (rfficer proceeded for scene of occurrence and after summoning the wltnesses vide Ex.P/15 prepared inquest over dead body of the deceased vide Ex.P/9. Dead body was sent for autopsy to Primary H^lth Centre, Kartala v;de Ex.P/16, where Dr.B.S.Narbadiya (FW-7) conducted autopsy vide Ex.P/5 and found following injuries:- (i) BruiseoverrlghtkneeoT2.5"x8" (ii) Bruise over thumb of right leg of %" x %". (iii) Flve abrasions over right thigh of %" x Vf, Vf x 1/12', 3° x %°, '/4" x 1/12" x %" x 1/12". (iv) Lacerated wound over 3rd, 4th and ^" vertebra column of the back. . 4. Cause of death was syncope. Spot map was preparKJ by investigating officer vide Exs.P/3 and P/7. On 15.11.1999 F.I.R. was recorded against unknown pereons vide Ex.P/14. Panchnama was prepared by investigating officer vide Ex.P/2. During the couise of investigation appeliant Chamar Singh made disciosure statement of stick vUe Ex.P/10 on 17.11.1999 and same has been recovered at his instance vide Ex.P/12. AppeSant Ramayan Singh also made disclosure statement of stick vide Ex.P/11 and same has been recovered at his instance vide Ex.P/13. Viscera and clothes ofthe deceased were seized vide Ex.P/17. Seized articles were sent for chehitcal examination. 5. Statement of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation charge sheet was ffled in the Court of Judicial Magistrate First Ciass, Korba, who in tum, committed the case to the Court of Sessions, Bilaspur, from where k-i'i^%5£^iuriutil"! 'iiaNh'i'^®SS^A<mfci^-;-^^I^KBfeS^ ^ ~ /1 - ieamed Adcfitional Sessions Judge, Korba received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellants, the prosecutksn has examined as many as twenty one witnesses. The accused/appellants were examined under Section 313 of the Cr.P.C., in which they denied the cireumstances appearing against them and ctaimad innocence aid false implication in crime in question. 7. After providing an opportunity 'of hearing to the parties, tearned trial Court has convicted and sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the Judgment impugned and record of the trial Court. 9. Learned counsel for the appellants vehemently argued that conviction is based on the evidence of alleged eyewitnesses Milapsingh (FW-1), Dhasiya (PW-8) and Pratap Singh (PW-12)whose statements under Section 161 of the Cr.P.C. have been recorded on 2.12.19^ after more than one month and twenty six days of the incident. They have not offered any explanation about delay in recording ajch statements or informing the police. Investigating offlcer has also not offered any explanation about such delay. Statements of a^eged eyewitnesses recorded after more than one month and twenty six days wthout eiqslanation is fatal to the prosecution and oonviction cannot be based on aforesaid wltnesses. 10. On the other hand, learned Panel Lawyer for the State/respondertt supported the judgment impugned and argued that evidence of Milapslngh (PW-1), Dhasiya (PW-8) and Pratap Slngh (PW-12) inspires confidence and trustworthy and only on the ground that they have not offered any exptanation their evklence cannot be discarded. 11. !n order to appreciate the arguments advanced on b^ialf of the farties, we have examlned the evidence adduced on behalfofthe prosecution. 12. in the present case, homicidal dejath as a result of fatal injuri^ found over the bpdy of deceased Amar Singh has not been substanftally disputed on behatf of the appellants, even otherwise, it is establtehed by the evidence of Dr.B.S.Narbadiya (RW-7) and autqasy report Ex.P/5. Death ofthe deceased was homicidai in nature. it\ •K: 'S -4- 13. As regards the compllcity of the appellants in crlme in question, conviction is substantially based on the ev'id®v»of aU^ed eyew'rtnesses Milapsingh (PW-1), Dhasiya (PW-8) and Pratap Slngh •(PW-12), who have categorically deposed that at the time of incident they were collecting fuel wood and were present on hill side, they heard sound, then they went towSrds the place from where sound was coming they saw that Amar Singh was shoutlng and the appdlants were assauiting him by stick and flsts, he fell down on the floor ahd they fted from the spot. On second day dead body of Amar Singh was found floating on the wrater. 14. DeTence has cross-examlned these witnesses at iength. in their cross-examination they have deposed Biatthey have seen the incident. They have admitted that they have not stated about the incident to any person. As per para 10 of evidence of Ganpat Singh (PW-11),he is the person who produced the aforesaid wltnesses to Pollce Station on 2.12.99. All alleged eyewritnesses are residents of same wllage, they were not disclosed the inddent of8.10.1^till 2.12.1999. tnvestigating officer S.P. Bhagat (PW-17) has recorded their stetements who has admitted in para 10 of his evidence that he has recorded statements of aforesaid eyewitnesses on 2.12.1999. Delay in recording statements under Section 161 of the Cr.P.C. by itself is not sufftoient for discarding/rejectlng the evidence of eyewitnesses untess it is ®(p!ain»J properiy. 15. Whiie dealing with the question of ewdentiary value of eyewitnesaes whose statement recorded under Seclion 161 of the Cr.P.C. after considerabie delay the Supreme Court in the matter of Bantl alias Guddu v. State of Madhya Pradesh1 has held that delay in recording statement of witness under Section 161 of the CrPC by ttself is not sufficient to suspect prosecution version if the e)q3lanation offered for the deiayedexamination is plauslbte and acceptable and the court accepts the same as plausible, there fe no reason to interfere with the conclusion. AIR 2004 SC 261 16. While deaiing with same question, the Suprane Court In the matter of LalU alias Chiranjib BhownucR son of Annada Chandra Bhawmiek v. State of West Bengal2 has held that delay in recordir^ statement of witness under Section 161 pf the CrPC of 56 days can be reBed upon on ciear, cc^ent and satisfactory explanation for the delay given by the prosecution. 17. While dealing with same question the Supreme Court in the matter of Dukhmochan Pandey and others v. State of Bihar3 has held that deiay in recording statements oTw<itnesses is not fatal only on the ground of detay in recording statement if it is properly explained. 18. While dealing with same question, the Supreme Court in the matter of Prithvi (Minor) v. Mam Raj and others4 has hetd that the ^itemeritof injured witn^s not in a position to talk recorded after considerable tlme is not fatai to the prosecution. 19. As held by the Supreme Court in the matters of Banti, LaHi, Dukhmochan, & Prithvi (supra), delay in recordingthe statement of sole eye witness or eyewitness if explained properly and delay in recording statement of witnesses by itself is not fatal to the prosecution. 20. In Rupchand Chindu Kathewar v. Stale of Maharashtra, the Suprwie Court has held that iodging of FIR after consider^ie deiay and statement of eyewitness recorded after a delay of about 36 hours by itself is not fatal to the prosecution, but there is a proviso to this broad principle, that the evidence read as a whole must inspire confidence. The Supreme Court has observed in para 9 of fts judgment as foliows: - "It is also significant that the FIR vias accordingiy todged after an inordinate delay at 4.00 p.m. on 14-5-19^. We are ci^nizant to the fact that a mere delay in lodging the FIR would not be fatal to the prosecution story, but there is a proviso to this.board principie, that the evklence read as a whole must inspire confldence. As atready indicated above, PW 2 was the only eyewitness and his statement under Section 151 was recorded after a delay of about 36 hours. Moreover, we find his conduct to be wholty unnaturat. Hjs evidence must, therefore, be looked at with suspicion. We have, therefore, gone through the medical evidence to see if the prosecution stwy was in 2 (1986) 2 SCC 409 3(1997)8SCC405 4A!R 2004 SC 2729 .<0 any manner corroborated as it is the case of the » appellant's counsel that the murder was a btfnd one and the entlre story had been concocted after the dead body had been recovered." g 21. In the present case, Milapsingh (PW-1),Dhasiya (PW-8) and Pratep Singh (PW-12) have not offered any exptanation relating to recordng of statements after more than one month and twenty six days. Even evidence of the prtreecution witnesses does not reveal that how tMs fact that these witnesses have >seen the incident came into knowledge of investigating offlcer. In the absence^of aforesaidexplanation, ^atements ofthe wltnesses recordedafter considerable time is notsufficient to rely upon. > 22. While placing reliance upon the evidence of aforesaid witnesses, the trisrf Court has committed illegality. We are ofthe opinion that conwctionand sentence of the appetlante are not based on clinching, credibte and reliabie evtdence. 23. Consequentiy, the appeal is allowed. Conviction and sentence of the appellants under Section 302 read with Section 34 of the I.P.C. are hereby set aside. The appellants are on bail, they need not surrender before the Court. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge T'