Balwan Singh vs The State Of Chhattisgarh

2. The case of the prosecution is that on account of previous enmity with Pitambar Singh (since deceased), the Accused No. 1 – Balwan Singh (appellant in Criminal Appeal No. 727 of 2015), on 22nd January, 2007, at evening time, was talking with the other accused regarding preparation to kill Pitambar Singh. Their conversation was heard by Sunderlal Rathore @ Sunder Singh Rathore (PW­11) and Shatrughan Singh (PW­12), who were passing through the same place. Further, it was the case of the prosecution that all the accused, armed with deadly weapons, went towards the field of one Bhagwat Seth and committed the murder of Pitambar Singh. PW­9 and PW­16, who were near the scene of the occurrence, rushed to the spot after hearing the cries of the injured, and saw all the accused assaulting the deceased 2 with lathis and tabbal (an agriculture implement made up of iron). It is stated by PW­9 and PW­16 that the tabbal was held by the Accused No. 4, namely, Ashok Singh. The injured died instantaneously and the accused fled away.

The dead body was seen by one Drupad Singh (PW­1) at 7 o’clock the next morning, who in turn informed Nar Singh Rajput (PW­17), the informant. Thereafter, Drupad Singh and Nar Singh Rajput together went to the place where the dead body was lying, and saw that Pitambar Singh was murdered. The deceased was the uncle of the informant.

6. We find from the records that though the incident took place on 22nd January, 2007, the statements of the alleged eye witnesses, namely, PW­9 and PW­16, were recorded after eight days of the incident. The prosecution has tried to explain the 4 delay in recording the statement of the eye witnesses by contending that they were scared of the accused, particularly Balwan Singh who was the village Sarpanch (Panchayat Chairman); the accused Balwan Singh was stated to be powerful and influential; only after some of the accused were arrested, these witnesses came to the village and gave their statements to the police during the course of investigation; till such time, the eye witnesses PW­9 and PW­16 did not come to the village at all and were staying in different villages in their relatives’ houses.

We are conscious of the fact that mere delay in recording of the statement of the eye witness by the investigating officer cannot ipso facto raise suspicion in the mind of the Court about the veracity of the prosecution case, more particularly, about the veracity of the eye witnesses. In the normal course, this Court would have accepted the explanation offered by the witnesses or the prosecution for not recording the statements at an earlier point in time, but the facts in this case are different inasmuch as it is admitted by the prosecution witnesses, more particularly by the investigating officer, that PW­9 was very much present in the village. PW­2 and the investigating officer, during the course of 5 the investigation, had seen PW­9, being the Patel (Patwari) of the village. PW­2 had admitted in the cross­examination that he had seen PW­9 at the place of the incident when the police had come to the village after the registration of the First Information Report. PW­2 is none else but the younger brother of PW­9, and they were residing separately in one house. Thus, the evidence of PW­ 2 cannot be disbelieved insofar as it relates to the presence of PW­9 in the village, and on the spot when the police had started investigation. Furthermore, the investigating officer also testified that immediately after reaching the village Semaria, where the incident took place, he had called the Patel (PW­9). He categorically admitted that he called PW­9 to the place of the occurrence and that he (PW­9) was present during the course of the investigation. PW­9, being the Patel of the village, could not have kept the fact about the incident or about the complicity of the accused from the investigating officer at the first instance, had he really been an eye witness to the incident. The investigating officer had proceeded to depose that, on his own, he had recorded the statement of PW­9 on 30.01.2007, which means that PW­9 had not informed the investigating officer that he was an eye witness to the incident. The investigating officer, on his 6 own accord, had recorded the statement of PW­9. It is thus clear that the investigating officer knew very well, on the first day itself, that PW­9 was an eye witness. There was no reason as to why the investigating officer did not record the statement of the so­called eye witness at the earliest point of time, more particularly when, at that point in time, the investigating officer did not have any clue about the murderers.

Accordingly, the appeals are allowed. The impugned judgments of the Trial Court and the High Court are set aside. The appellants are directed to be released forthwith, if not required in any other case.

We find that the appellants in these appeals are Accused 1, Accused 2 and Accused 7. Other accused in S.T. No. 57 of 2010 have not preferred an appeal. Since in respect of the appellants herein we find that the prosecution has not proved the charges beyond reasonable doubt, the benefit of this judgment should also enure to the other accused who were convicted in S.T. No. 17 57 of 2010. Accordingly, the other accused in S.T. No. 57 of 2010, who have not preferred appeals before this Court, shall also be released forthwith, if not required in any other case.