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2012 DIGILAW 152 (CHH)

SHAMBHOO SINGH v. STATE OF M. P.

2012-06-20

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. -1. This appeal is directed against the judgment dated 24th of July 1996 passed in Session Trial No. 632/93 by the First Additional Session Judge, Bastar at Jagdalpur. By the impugned judgment, the appellants were convicted u/ss 302/34 IPC and sentenced to undergo imprisonment for life. 2. Appellant No.2- Sunder Singh died during the pendency of the appeal on 18.11.2011. The appeal filed by appellant No.2, therefore, has abated. 3. The facts, briefly stated, are as under : Deceased- Aayturam was missing since 18.9.93. His dead body was found on the bank of river on 21.9.93. A First Infonnation Report (F.I.R.Ex.P/1) was lodged. The Investigation Officer reached to the place of occurrence gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. P.S. Komre (PW-8) who found multiple serious injuries on the dead body of the deceased. The deceased had sustained multiple fractures. The Autopsy Surgeon opined that the deceased died homicidal death on account of various injuries including fracture of spinal cord and pi & 2nd cervical vertebrae. During the course of investigation, on 23.9.93 151-161 Cr.P.c. statements of two child witnesses namely Lakhmi (PW-1) and Laxman (PW-2) were recqrded. They did not make allegations in these statements. However, on 4.10.93 again their statements were recorded in which they made allegations against the appellants. Their 164 Cr.P.C. statements were also recorded on 12.10.93. In further investigation, memorandum statements (Ex.-P/4 & P/5) of the appellants were recorded U/S 27 of the Evidence Act on 4.10.93 and danda & patwar (rudder) were seized at the instance of the appellants vide seizure memos Ex.-P/6 & P/7. The seized articles were sent for their chemical examination to the Forensic Science Laboratory (F.S.L.), Raipur. According to the F.S.L. report, blood stains were not found either on the danda or on the patwar. The learned Session Judge relied on the testimonies of the above eye-witnesses and convicted and sentenced the appellants as aforementioned. 3. Mr. The seized articles were sent for their chemical examination to the Forensic Science Laboratory (F.S.L.), Raipur. According to the F.S.L. report, blood stains were not found either on the danda or on the patwar. The learned Session Judge relied on the testimonies of the above eye-witnesses and convicted and sentenced the appellants as aforementioned. 3. Mr. N.K. Mehta, learned counsel appearing on behalf of the appellant, argued that 161 Cr.P.C. statements of the above two child witnesses were firstly recorded on 23.9.93 in which they did not make allegations against the appellants; their subsequent statements u/s 161 & 164 Cr.P.C. were recorded on 4.10.93 and 12.10.93 in these statements only they made allegations against the appellants; even in the Court evidence, they admitted that they were threatened; therefore, late disclosure made by them was fatal to the prosecution and conviction based on their such testimonies cannot be sustained. 4. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed of the Session Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 6. Lakhmi (PW -1) was aged about 14 years. She deposed that on the fateful day, in the evening, she was grazing her cattle near the river area. Deceased- Aayturam was sitting on the boat. The accused persons were also sitting on the boat. She saw that accused• Shambhoo Singh assaulted the deceased by patwar (rudder). Accused- Sunder Singh also assaulted the deceased by lathi. The other child witness- Laxman (PW-2). was also aged about 14 years. He also deposed that deceased- Aayturam was assaulted by accused- Shambhoo & Sunder and added that Sunder had assaulted the deceased by patwar (rudder) and Shambhoo had assaulted him by danda. 7. The incident took place on 18.9.93. The dead body was found on 21.9.93. The first 161 Cr.P.C. statements of these child witnesses were recorded on 23.9.93. In those statements, they did not make any allegations against the appellants. It is on 4.10.93, these witnesses disclosed the above facts to the police and their subsequent statements u/s 161 Cr.P.C. were recorded and later on, their 164 Cr.P.C. statements were recorded on 12.10.93. 8. The first 161 Cr.P.C. statements of these child witnesses were recorded on 23.9.93. In those statements, they did not make any allegations against the appellants. It is on 4.10.93, these witnesses disclosed the above facts to the police and their subsequent statements u/s 161 Cr.P.C. were recorded and later on, their 164 Cr.P.C. statements were recorded on 12.10.93. 8. The Supreme Court has held in many cases that unjustified and unexplained long delay in disclosure of the names of assailants by the persons claiming to be eye-witnesses becomes fatal to the prosecution. Such disclosure is a serious infirmity which destroys the credibility of the evidence of the eye-witnesses because the delay gives an opportunity to concoct a different version than what actually took place. We have also held in many cases that no straightjacket 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 including the explanation offered regarding non-disclosure of the facts relating to commission of such a heinous offence. 9. In the instant case the eye-witnesses did not disclose the incident when their first police statements were recorded. No explanation has been offered as to why they did not disclose the above facts at that time. Therefore, on the one hand, there is inordinate delay in disclosure of the incident by the two child witnesses and on the other hand, there is complete omission about the incident in their earliest statements recorded on the 6th day of the incident. 10. Lakhim (PW-1) deposed, in Para-6 of her evidence, that police party had come to the village on the 5th day of the incident and on that day she was interrogated and had told the names of the assailants. But, we do not find the names of the assailants in her 161 statement recorded on 23.9.93. Moreover, she admitted in clear words that she could not identify the person who was sitting on the boat because the boat was at some distance from their location. In Para-7 of her evidence, she categorically admitted that the police persons had threatened her then only she took the names of the accused persons. 11. Moreover, she admitted in clear words that she could not identify the person who was sitting on the boat because the boat was at some distance from their location. In Para-7 of her evidence, she categorically admitted that the police persons had threatened her then only she took the names of the accused persons. 11. The two eye-witnesses are the child witnesses and their above late disclosure without any plausible explanation and non-disclosure at the first instance and categorical admission that police persons had threatened them, then, they took the names of the accused persons make their evidence suspicious. We have carefully gone through the evidence of the above child witnesses. Their evidence do not inspire our confidence. We are of the view that the learned Session Judge was not justified in convicting the appellants u/s 302 IPC on the above evidence of the two child witnesses. 12. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant (appellant No.1 - Shambhoo Singh) u/s 302 IPC are set-aside. He is acquitted of the charges framed against him. It is stated that Shambhoo Singh (appellant No.1) is on bail. His bail bonds are cancelled and surety stands discharged. Appeal Allowed.