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2012 DIGILAW 299 (CHH)

MATI RATRE v. STATE OF C. G.

2012-11-07

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 10-4-2009 passed by Additional Sessions Judge, Sakti in Sessions Trial No. 139/2008. By the impugned judgment, accused persons/appellants Mati Ratre and Sanjay have been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence Under Section 460 IPC Imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months Under Section 302/34 IPC Imprisonment for life and to pay fine of Rs. 500/-, (For deceased Tijram) in default of payment of fine, to further undergo rigorous imprisonment for 6 months Under Section 302/34 IPC Imprisonment for life and to pay fine of Rs. 500/-, (For deceased Nanbai) in default of payment of fine, to further undergo rigorous imprisonment for 6 months 2. Case of the prosecution, in brief, is as under: On 22-5-2008, between 1:00 A.M. to 4:00 A.M., deceased persons Tijram and Nanbai were sleeping in the courtyard of their house situated at Village Chhote Sipat. In the morning, at about 5:00 AM., dead bodies of deceased Tijram and Nanbai were found in the courtyard smeared with blood. Blood was oozing out from the neck and mouth of deceased Tijram and it appeared that the injuries were caused by sharp cutting weapon. Blood was oozing out from right side of the neck of deceased Nanbai and it appeared that the injury was caused by sharp cutting weapon. Merg intimations (Ex.P-1 and P-2) informed by Baratram were recorded in Police Station Malkharauda, on which, First Information Report (Ex.P-3) was also registered on the same day. The Investigating Officer reached the place of occurrence, gave notices (Ex.P-41 and P-43) to Panchas and prepared inquests (Ex.P-42 and P-44) on the dead bodies of the deceased Tijram and Nanbai, respectively. The dead bodies of deceased Tijram and Nanbai were sent to Community Health Centre, Malkharauda for post mortem examination vide Exs.P-4 and P-6, respectively. Dr. R.P. Kurre (PW-5) conducted post mortem on the dead bodies of the deceased and gave his reports (Ex.P-5 and P-7). He found multiple incised wounds on both the dead bodies. He opined that cause and mode of deaths of the deceased persons were syncope due to excessive hemorrhage and their deaths were homicidal in nature. Dr. R.P. Kurre (PW-5) conducted post mortem on the dead bodies of the deceased and gave his reports (Ex.P-5 and P-7). He found multiple incised wounds on both the dead bodies. He opined that cause and mode of deaths of the deceased persons were syncope due to excessive hemorrhage and their deaths were homicidal in nature. In further investigation, the appellants were taken into custody and memorandum statement (Ex.P:18) of appellant Mati Ratre was recorded under Section 27 of the Evidence Act and at his instance, blood stained Rumal, Kantop, white Rumal, blue plastic chappal, black pant and iron Gandasa were seized vide Ex.P-21. Memorandum statement (Ex.P-19) of appellant Sanjay was recorded under Section 27 of the Evidence Act and at his instance, blood stained iron weapon, burnt clothes of appellant Sanjay and burnt chappal were seized vide Ex.P-22 and P-23. Memorandum statement (Ex.P-20) of Vinay Nirala was recorded and at his instance, blood stained blue pant and blue T-shirt were seized vide Ex.P-24. Clothes of the deceased persons were seized vide Ex.P-30. Nails of appellants Mati Ratre and Sanjay and Vinay Nirala were seized vide Ex.P-31. Blood stained soil, plain soil and broken pieces of bangles were seized from the place of occurrence vide Ex.P-40. Spot map (Ex.P-38) was prepared by Patwari Dhandas Nirala (PW-13). The seized articles were sent to the Forensic Science Laboratory, Raipur for chemical examination vide Ex.P-49. After completion of the investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Sakti, who, in turn, committed the case to the court of Session, Janjgir-Champa, from where it was received on transfer by Additional Sessions Judge, Sakti, who conducted the trial and convicted and sentenced the appellants as mentioned above. Charge sheet was also filed against the co-accused Vinay Nirala in Juvenile Court. 3. Shri Amit Sharma and Ms. Sangeeta Mishra, learned counsel for the appellants argued that the incident took place on 22-5-2008 between 1:00 A.M. to 4:00 A.M. and the statement of Nandkunwar (PW-3) was recorded on 255-2008. Nandkunwar (PW-3) did not assign any reason for her late disclosure after about 3 days of the incident. Therefore, her conduct is unnatural and highly suspicious. Her testimony is untrustworthy and the conviction based upon her testimony cannot be sustained. 4. Nandkunwar (PW-3) did not assign any reason for her late disclosure after about 3 days of the incident. Therefore, her conduct is unnatural and highly suspicious. Her testimony is untrustworthy and the conviction based upon her testimony cannot be sustained. 4. Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 139/2008. The conviction of the appellants is based on the testimony of Nandkunwar (PW-3). 6. It is well known principle of law that reliance can be placed on the solitary statement of a witness if the Court comes to the conclusion that the said statement is true and correct version of the case of the prosecution. The Courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. Rule of appreciating evidence is that it has to be weighed and not counted. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, where the Court finds that the testimony of a solitary witness is neither wholly reliable nor wholly unreliable, it may, in given set of facts, seek corroboration. 7. In Ranjit Singh and others Vs. State of Madhya Pradesh AIR 2011 SC 255 , the Hon'ble Supreme Court held as follows: “17............ “.........under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. 18. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. 18. In Muthu Naicker and ors. vs. State of Tamil Nadu, AIR 1978 SC 1647 , this Court explained the aforesaid judgment by stating that in a situation where a witness has been attacked by the members of an unlawful assembly composed of a large number of persons, the Court should carefully consider the question of the credibility of such a witness. Where the Court is of the view that the testimony of such a witness is in the facts and circumstances of the case not reliable, it should insist that such testimony be corroborated by one or more other witness before it can be accepted by the Court. 19........... “There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same when the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident. ..........” 8. Now, we shall examine whether the evidence of Nandkunwar (PW3) is cogent, reliable and can be based for conviction? 9. Nandkunwar (PW-3) deposed that deceased Tijram was her son, deceased Nanbai was her daughter-in-law (wife of deceased Tijram) and Ku. Lakshmi (PW-2) is daughter of both the deceased. She further deposed that deceased Tijram was employed in Colliery. Appellant Mati Ratre said the deceased Tijram for solemnizing his marriage with Ku. Lakshmi (PW-2), but deceased Tijram denied the proposal of appellant Mati Ratre. She further deposed that on the date of incident, deceased Tijram and Nanbai were sleeping in the courtyard. At about 3:00 A.M. (in the night), the appellants entered the courtyard of the house of deceased Tijram and assaulted both the deceased with axe and they killed them. Lakshmi (PW-2), but deceased Tijram denied the proposal of appellant Mati Ratre. She further deposed that on the date of incident, deceased Tijram and Nanbai were sleeping in the courtyard. At about 3:00 A.M. (in the night), the appellants entered the courtyard of the house of deceased Tijram and assaulted both the deceased with axe and they killed them. She further deposed that she had gone to Dhanesh Ram (PW-14) to call him, Dhanesh Ram (PW-14) had come to her house and she had narrated the incident to him. Dhanesh Ram (PW-14) deposed that on 22-5-2008, he was sleeping in his house. At about 4:10 A.M, Nandkunwar (PW3) came to his house and told him that her daughter-in-law Nanbai was ill and was wriggling. Then, he went to the house of Nandkunwar (PW-3). He saw that the neck of Tijram and Nanbai were cut and Nanbai was groaning. He called Baratram (PW-1), Sakhi Ram (PW-16). He further deposed that he informed the incident in Police Station Malkharauda. 10. Baratram (PW-1) deposed that at about 4:00 A.M., Dhanesh Ram (PW-14) had come to his house and told him that someone killed Tijram and Nanbai and they were smeared with blood. He went to the house of Tijram and saw that Tijram was lying smeared with blood on a cot and Nanbai was groaning. Nanbai had sustained injuries on her neck, head and hand and blood was oozing out from there. He further deposed that he lodged Merg Intimations (Ex.P-1 and P-2) in Police Station Malkharauda and the First Information Report (Ex.P-3) was also recorded in Police Station Malkharauda. 11. In the instant case, according to the prosecution, Nandkunwar (PW3) is sole eye-witness to the incident. Her case diary statement was recorded on 25-5-2008. Nandkunwar (PW-3) did not disclose the names of the appellants as assailants to Dhanesh Ram (PW-14) and Baratram (PW-1). Dhanesh Ram (PW-14) and Baratram (PW-1) deposed that they did not know that who killed deceased Tijram and Nanbai. They further deposed that Nandkunwar (PW-3) did not disclose the names of the appellants as assailants to them. Baratram (PW-1) deposed that it is true that he lodged the FIR (Ex.P-3) against unknown persons. It appears that Baratram (PW-1) and Dhanesh Ram (PW-14) came to the house of deceased Tijram and at that time, Nandkunwar (PW-3) did not disclose the names of the appellants as assailants to them. Baratram (PW-1) deposed that it is true that he lodged the FIR (Ex.P-3) against unknown persons. It appears that Baratram (PW-1) and Dhanesh Ram (PW-14) came to the house of deceased Tijram and at that time, Nandkunwar (PW-3) did not disclose the names of the appellants as assailants to them. Had Nandkunwar (PW-3) identified the assailants, she would have stated their identity or names to Baratram (PW-1) and Dhanesh Ram (PW-14), and Baratram (PW-1) would have mentioned the names of the appellants while lodging First Information Report (Ex.P-3). It appears that Nandkunwar (PW-3) did not disclose the names of the appellants to Baratram (PW-1), therefore, names of the appellants were not mentioned as assailants in the FIR (Ex.P-3). In the FIR (Ex.P-3), it is mentioned as follows: 12. The statement of Nandkunwar (PW-3) under Section 161 of the Code of Criminal Procedure was recorded after 3 days of the incident. It is true that the Criminal Court would expect the statement of the eye-witness to be recorded immediately or with least possible delay. Early recording of the statement gives credibility to the evidence of such witness. But then it is not an absolute rule of appreciation that where the statement is recorded late, the witness is a false witness or trumped up witness that will depend upon the quality of the evidence of the witness. 13. In Balakrushna Swain Vs. The State of Orissa AIR 1971 SC 804 , the Hon'ble Supreme Court held that unjustified and unexplained long delay on the part of the Investigating Officer in recording statement of material eye-witness u/s 161 Cr.P.C. 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. 14. In State of Orissa Vs. Mr. Brahmananda Nanda AIR 1976 SC 2488 , the eye-witness did not disclose the name of assailant for a day and a half. 14. In State of Orissa Vs. Mr. Brahmananda Nanda AIR 1976 SC 2488 , the eye-witness did not disclose the name of assailant for a day and a half. The Hon'ble 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 non-disclosure was unbelievable, such nondisclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and the High Court was correct in rejecting it as untrustworthy and acquitting the accused. 15. In Bachhu Narain Singh Vs. Naresh Yadav and others AIR 2004 SC 3055 , for over period of one hour while the Investigating Officer was preparing inquest report, no one came before him claiming to be eye-witness and to lodge report about occurrence though there were alleged to be ten eye-witness. The report was lodged after more than one and half hour after the Investigating Officer came to the place of occurrence. The Hon'ble 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 at the time of occurrence. 16. We have no doubt to say 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 nondisclosure of the facts relating to commission of such a heinous offence. 17. In the present case, Baratram (PW-1), Dhanesh Ram (PW-14) and other villagers came to the house of Nandkuriwar (PW-3), but Nandkunwar (PW-3) did not disclose the names of the appellants as assailants to anybody. Nandkunwar (PW-3) had met with the police also but did not disclose about the incident to them. The names of the appellants as assailants were not disclosed immediately and no reason was given by Nandkunwar (PW-3) there for. 18. Sakhi Ram (PW-16) deposed that it is true that name of the daughter of Tijram is Lakshmi (PW-2). Nandkunwar (PW-3) had met with the police also but did not disclose about the incident to them. The names of the appellants as assailants were not disclosed immediately and no reason was given by Nandkunwar (PW-3) there for. 18. Sakhi Ram (PW-16) deposed that it is true that name of the daughter of Tijram is Lakshmi (PW-2). He further deposed that he did not know that Lakshmi (PW-2) had love affair with appellant Mati Ratre. He did not know that Lakshmi (PW-2) had wished to marry with appellant Mati Ratre. He further deposed that he did not know that Tijram and Nanbai had opposed for marriage of Lakshmi (PW-2) with appellant Mati Ratre. He also did not know that relation between appellant Mati Ratre and deceased Tijram was strained and inimical. He further deposed that it is true that Tijram had no dispute with anybody in the village. He further deposed that it is true that he was under suspicion that on account of said marriage dispute, appellant Mati Ratre would have killed Tijram and Nanbai. 19. Nandkunwar (PW-3) deposed that it is true that light was turned off while committing marpeet with her son and daughter-in-law. She further deposed that it is false that she could not see who committed marpeet with her son and daughter-in-law due to darkness. She herself deposed that appellant Mati Ratre was beating Tijram and appellant Sanjay was giving blow on the neck of Tijram with a sharp cutting weapon. She further deposed that she had told the incident of giving blow on the neck of Tijram by appellant Sanjay with the sharp cutting weapon to the police but if it was not written in Ex.P-3, she did not know the reason for it. She further deposed that on 22-5-2008, she met with the police and gave her statement to them. She further deposed that after two days of the incident, she had gone to police station and gave statement on that day too. She further deposed that it is false that she had not given any statement to the police on the date of incident. She further deposed that after giving statement, she returned her home at Village Chhote Sipat on 24-5-2008. She further deposed that when she went to the police station, she did not meet appellants Mati Ratre and Sanjay. She further deposed that it is false that she had not given any statement to the police on the date of incident. She further deposed that after giving statement, she returned her home at Village Chhote Sipat on 24-5-2008. She further deposed that when she went to the police station, she did not meet appellants Mati Ratre and Sanjay. She further deposed that due to old age, her eye site has become little weak. She further deposed that she could not see anything after the evening. She further deposed that it is true that the incident took place at 3:00 A.M. in the night. She further deposed that she deposed as was told to her by Advocate Shri Dhritlahare. 20. Looking to the evidence of Nandkunwar (PW-3), it appears that she did not witness the incident. That apart no explanation was offered for non-disclosure of the names of the appellants as assailants. Such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of Nandkunwar (PW-3) and we do not rely on her testimony on account of her such conduct. 21. For the foregoing reasons, we are of the considered view that the learned Additional Sessions Judge was not justified in convicting the appellants for commission of the aforesaid offences on the sole testimony of Nandkunwar (PW-3). Her evidence is not clinching, cogent and credible and cannot be based for conviction. 22. In the result, the appeal is allowed. The conviction and sentences under Sections 460, 302/34 and 302/34 of the Indian Penal Code awarded to the appellants are set-aside. They are acquitted of the charges framed against them. It is stated that the appellants are continuously in jail since 22-5-2008. They be set at liberty forthwith, if not required in any other case. Appeal Allowed.