Allowed

Chamarin Bai v. State

Chhattisgarh HC14 Jun 2012CRA/1730/1996

Case brief

AI extract

What is this about?

Three appellants appealed against life imprisonment for murder based on sole eyewitness testimony. The High Court found the witness's delayed disclosure unreliable, inconsistent with his testimony of fear and police custody, and fatal further the acquittal when the forensic report could not identify blood origin on a seized sword.

What did the court decide?

The conviction and sentences under Sections 302, 201 read with Section 34 IPC were set aside; the appellants were acquitted; their bail was restored; and bond sureties were discharged.

Chamarin Bai Vs State — Murder and Culpable Homicide | Chhattisgarh HC (2012)

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HIGH COURT OF CHHAmSGARH. BILASPUR

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CQRAM: Hon'ble ShrLRajeev Guota, C.J, ^B Hon'ble Shri SynU Kama,rSin.ba,,J.

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Criminal Appeal No. 1729 of 1996

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j;^ijiH.:Ba^

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APPELLAN T

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Uma Bai W/o Shri Ghanshyam Das, aged 50 years, OccupationLabour, R/o VUlage Limtara, P.S. Masturi, District Bilaspur, M.P. (Now C.G.)

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Versiis .

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RESPONDENT

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State of Madhya Pradesh (Now State of Chhattisgarh), Through P.S. Sarkanda, BUaspur

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Criminal Apneal No. 1730 of 1996

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APPELLAN T

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Chainrin Bai Wd/o Late Shri Balukdas,aged 60 years, OccupationLabour, R/o Village Pakariya, P.S. Masturi, District Bilaspur, M.P, (Now C.G.)

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Versns

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RESPONDBNT

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State of Madhya Pradesh (Now State of Chhattisgarh), Through P.S. Sarkanda, Bilaspru-

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And

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Criminal Aopeal No. 2122 of 1996

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APPELLAN T

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. /

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RESPONDENT

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Rajkumar S/o'Shri Nankidas, aged 30 years, Occupation- Agricz.ilture, -- R/o Chantidih, P.S. Sarkanda, District BUaspur, M.P. (Now C.G.).

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*»^

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Versus

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State of Madhya Pradesh (Now State ofChhattisgarh), Through P.S. Sarkanda, BUaspur

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(Criminal Appeals under Section 374 (21 ofThe Code of Cruninal Procedurel

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Cr.A. Nos. 1729; 1730 & 2122 of 1996

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<--«S:St.

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Appearance: Mr. R.K. Jain 85 Mrs. Kiran Jain, Advocates for the appellants in Cr.A. Nos. 1729 8s 1730 of 1996.

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Mr. Yogeshwar Sharma, Advocate for the appellant in Cr.A. No.2122ofl996.

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Mr. Kishore Bhaduri, Additional Advocate General for the State.

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JUDGMENT ()4- .06.2012)

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Following judgment of the Court was delivered by

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SunU Kuniar Sinha, J.

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(1) These appeals are directed against the judgment dated 23rd of September, 1996 passed in Session Trial No. 280/92 by the First Additional Session Judge, Bilaspiir. By the impugned judgment,^{theappellantshavebeencbnvictedu/ss3028s201} and read with Sectiori 34 IPC and sentenced to undergo imprisonment for life and R.I. for 2 years with fine sentences in each count.

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(2) The facts, briefly stated, are as under:-

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1.1

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Appellants were residing in a portion of the house of deceasedJagdeo. AppellantUma Bai was kept as concubine by the deceased. Appellant- Chamrin Bai is sister of appellant- Uma Bai and appellant- Rajkumar is son of -appellantUma Bai. On 13.12.91 at about 8^00 a.m. appellant' Rajkumar lodged a report against Purusottam, Makhaff and Ram Bahadur.making allegations that they have committed murder of the deceased in fhe night of 12.12.91 at about -10.00 p.m. On investigation, the above report, Ibdged against the said persons, was found false. During the course of investigation, on 17.1.92 161 .Cr.P.C. statement (Ex.-D/l) of Raghunath (PW-5) was recorded. His '

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Cr.A. Nos. 1729: 1730 & 2122 of 1996

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164 Cr.P.C. statement (Ex.-D/2) was also recorded on the same day. In these statements, he disclosed that the deceased was murdered by the appellants. On the above statements, the appeUants were taken into custody and memorandum statement of appellant- Rajkumar (Ex.-P/4) was recorded u/s 27. of the Evidence Act on 17.1.92 and blood stained sword was seized at his instance vide seizure memo Ex.-P/S. Various other articles were also seized. The seized articles were sent fpr their chemical examination and Serologist report (Ex.-P/12) was filed. In the said report origin of the blood stains found on the sword could not be ascertained. The case of the prosecution was based on eyewitness account of Raghimath (PW-5). He was the sole eyewitness to the incident. The leamed Session Judge relied on the testimony of Raghunath (PW-5) and held that the appellants were liable for ..commission of miirder of fhe deceased and were also liable for disappearance of evidence of murder, thus, fhey were liable for punishment u/ss 302 8s 201 read with Section 34 IPC.

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^'StiilRISSf .3'^':^^

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(3) Leamed counsel for the appeUants have raised common arguments. They have argued that the sole testimony of Raghimath (PW-5) was wholly unreliable; Raghunath (PW-5) disclosed about the incident aftep more than one monfh; he was throughout present with the pbUce, but he did not disclose the incident to fhe ,police earlier to 17.1.92 when the above frivo k- / statements (Ex.-D/1 & D/2) ^ansre recorded. There were other infirmities in his evidence,' therefore, the conviction based on solitary evidence of this witness cannot'be sustained.

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Cr.A._Nps. 172911730 & 2122 of 1996

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(4) On the other hand, learned Additional Advocate General appearing on behalf of the State opposed these arguments and supported the judgment passed by the Sessions Court.

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(5) We have heard leamed counsel for the parties at length and have also perused the records of the sessions case.

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}!!S

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i!St

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In Balakrushna Swain -Vs- The State of Orissa, S£R

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In Balakrushna Swain -Vs- The State of Orissa, S£R (6) 1971 SC 804, the Supreme Court held that unjustified and unexplained long delay on part of investigating Officer in recording staterrient 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 versipn than what actually took place.

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(7) In State of Orissa -Vs- Mr. Brahmananda Nanda, AIR "»1976 SC 2488, eye-witness did not disclose the name of assailant A for a day and a half. The Supreme Court held that where ii murder case the entire prosecution case depended on the evidence of a persons 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 non-disclosure was a serious infirmity which '. / destroyed -the credibility ^gf the evidence of the witness and the High CoUrt was correct in rejecting it as untrustworthy and acquitting the accused.

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Cr.A. Nos. 1729: 1730 & 2122 of 1996

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In Bachhu Narain Sinah -Vs- Naresh Yadav and others. ATR 2004 SC 3055, for over of one hoi.lr while period Investigating Officer was preparing inquest report, no one coming before hiin claiming to be eye-witness and to lodge report about occun-ence though there were aUeged to be ten eye-witnesses. The report was lodged after more than one and half hour after Investigating Officer came to place of occurrence. The 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 tmie of occurrence.

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(9) In raany cases, this Court bas also taken the view that no straight-jacket formula can be appUed in all cases of lacs disclosure by eye-witnesses and the credibility of the witnesses are to be judged in the prevaiUng facts and circumstances of each case. However that judgment should be arrived at keeping in mind the normal huraan conduct and the probable circumstances including the explanation offered regarding non-disclosure of fhe facts relating to commission of such a heinous offence.

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(10) Now we shaU. groceed to examine the evidence of Raghunath (PW-5) on the Aove principles.

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(11) Raghunath (PW-5) wa.s also residing in a portion of house of fhe deceased. He is son-in-law of appellantChamrin Ba». According to hrm, appeUant- Uma Bai was kept as a concubine by tiie deceased. On the fateful night i.e. on 12.12.91 all the

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CrA.Mos^L729; 1730 & 2122 of 1996

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appellants and fhe deceased were present in the house of the deceased in village Chantidih. 'AppeUant- Uraa Bai asked the deceased that now she wiU go to some different place after performing chudi inarriage. This was opposed by the deceased, on which, Uma Bai and Chamrin Bai caught the deceased and took him inside the room from verandah. Uma Bai caught the chest of fhe deceased and Chamrin Bai caught his hands and thereafte^, Uma Bai assaulted the deceased by sword. Appellant- Rajkifinar also came there and took fhe sword from Uma Bai and he also assaulted fhe deceased by sword. The deceased had received multiple serious injuries and had succumbed to those injuries. Raghunath (PW-5) deposed,in Para-8 that thereafter appellantRajkumar went to police station and lodged report against Purusottam, Ram Bahadur and Makhan. He categorically admitted that after retuming from the police station, appeUantRajkumar told him that he has lodged the false report against fhe above persons.

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(12) In appreciation of evidence of Raghunath (PW-5), we find 'v that he did not disclose the incident to the police or to any other person for more than one month. as the incident took place on 12.12.91 and his_161 85 164 Cr.P.C. statements were recorded on 17.1.92. Thfough he has offered explanation that he was ''i-6.. frightened, but we find from the contents of Para-32 of his crossexamination, in which he admitted, that he had no fear after the police party had reached to the village. The police party had reached to the vmage on.13.12.91. The fact that Raghunath (PW-

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Cr.A. Nos. 1729: 1730 & 2122 of 1996

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met fhe police party in fhe vUlage is clear from his version in Para-32 of his evidence. When fhe police party was present in the village on 13.12.92 and he had met the police party, why he did not disclose all these facts to the police on fhe said date ? Though he claims that his statement was recorded by the police iminediately, but no such statement has been filed on record. Thus, it is clear that Raghunath (PW-5) did not disclose fhese facts to the police or to anyone else for raore than one month.

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(13) In Para-34, he deposed that he was kept in police station for about 16-17 days. First day he was beaten by fhe poUce offlcer to disclose the incident. He admitted in clear words that even after that he did not disclose the incident to the police and was left by the police after 17 days.

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(14)^{TheevidenceofRaghunath} (PW-5),^{inPara-8,wouldshow} that he had full knowledge about the false report lodged by appeUantRajkumar against three innocent persons namely F'urusottam, Makhan and Ram Bahadur, which fact he also concealed for a very long time even after remaining in poUce custody for 16-17 days during wfiich period he was beaten by the police.

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(15) The above conduct of fhis witness makes his evidence '^. doubtful. The explanation for the delay offered by him also appears to be doubtfi-d and unacceptable. It is iinacceptable that a person knowing all fhis, even after remaining in poUce custody fot' about 16-17 days and saying that he was not frightened after the

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~ 'X-l^..— \£.S.iiw.

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CrA_Nps. 1729: 1730 & 2122 of 1996

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police party had reached to the village, would not disclose all this to the police for such a long period. This goes against the normal human conduct. We are of the view that in the above facts and circumstances of the ?ase, the learned Session Judge erred in law in relying upon the solitary evidence of Raghunath (PW-5) who clain'ied to be an eye-witness.

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(16) We further note that in Para-15 of the judgment, the Session Judge has recorded the finding that human blood was found on the sword seized at the instance of appellant- Rajkumar. The above finding is based on the contents of Serologist report (Ex.P/12). We have perused the Serologist report (Ex.-P/12). In the Serologist report (Ex.:-P/12), it has been clearly mentioned thL.t the blood stains found on the sword had disintegrated and their origin could not be determined. Therefore, the learned Session Judge has raisread the evidence and has recorded a perverse finding which also cannot be sustained.

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(17) For the foregoing reasons, the appeals are allowed. TKe 9 conviction and sentences awarded to the appellants u/ss 302 SE 201 read with Section 34 IPC are set-aside. 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

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sfand discharged.

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. Sd/Scl/Sunil Kumar Sinha Rajeev Gupta CliiefJustice Judge

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vatti

Chamarin Bai v. State

Case brief

What is this about?

What did the court decide?

Chamarin Bai v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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