Allowed

Shambhoo Singh and Ors. v. State

Chhattisgarh HC20 Jun 2012CRA/1753/1996

Case brief

AI extract

What is this about?

In a criminal appeal against a life sentence for murder, the High Court of Chhattisgarh acquitted the appellant. The Court held that evidence from two child eye-witnesses, who disclosed names of accused only after a delay and admitted to police threats, could not inspire confidence and was fatal to the prosecution.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside; appellant acquitted; bail bonds cancelled; surety discharged.

Shambhoo Singh and Ors. Vs State — Murder and Culpable Homicide | Chhattisgarh HC (2012)

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HIGH COURT OF CHHATTISGARH. BILASPUR

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CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J.

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Crim i nalAppeal No. 1753 of1996

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Shambhoo Singh & Another (dead)

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Vs.

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The State of Madhya Pradesh (Now State of Chhattisgarh)

JUDGMENT

For consideration

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Sd/-

Sunil Kumar Sinha

Judge

HON^BLESHRI JUSTICE RAJEEV GUPTA

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Judge /<^/06/2012

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HIGH COURT OF CHHATTISGARH. BILASPUR

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CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hpn^ble^hrLSunil Kumar Sinha, J.

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Criminal ADpeal No. 1753 of 1996

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APPELLAN TS 1 Shambhoo Singh, son of Dharmuram Telga, aged 40 years, resident of village Muchnar Patel Para, Police Station Barsoor, District Bastar 2 Sunder Singh, son of Lakhandar Halva, aged 45 years, resident of village Muchnar Patel Para, Police Station Barsoor, District Bastar (Dead - Name deleted vide C.O. dated 10.4.2012)

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Versus

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RESPONDENT The State of Madhya Pradesh (Now State of Ghhattisgarh),

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(Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure)

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Appearance:

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Mr. Neeraj Mehta, Advocate for the appellant.

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Mr. Arvind Dubey, Panel Lawyer for the State.

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JUDGMENT

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(20.06.2012)

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Following judgment of the Court was delivered by SyniLKjjmaLSmha, J.

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(1) This appeal is directed against the judgment dated 24 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.

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Cr.A. No. 1753 of 1996

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(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.

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

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Deceased- Aayturam was missing since 18.9.93. hlis dead body was found on the bank of river on 21.9.93. A First Information 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 ofvarious injuries including fracture ofspinal cord and 1st & 2 cervical vertebrae. During the course of investigatioii, on 23.9.93 1st 161 Cr.P.C. statements of two child witnesses namely Lakhmi (PW-1) and Laxman (PW-2) were recorded. They did not make aflegations in these statements. hlowever, 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 hot found either on the

Cr.A.No.l753_of1996

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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.

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(3) Mr. N.K. Mehta, learned counsel appearing on behalf of the appellant, argued that 161 Cr.P.C. statements ofthe 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 againsf 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.

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(4) On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported thejudgment passed ofthe Session Court.

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

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(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

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Cr.A..No_. 1753 ot 1996

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er). 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.

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(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 ori 12.10.93.

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(8) The Supreme Court has held in many cases that unjustified and unexplained long delay in disdosure 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 straight-jacket 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.

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Cr.A.No. 1753 of 1996

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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.

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(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 disdose the above facts at that time. Therefore, on the one hand, there fs 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 6 day of the incident.

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(10) Lakhim (PW-1) deposed, in Para-6 of her evidence, that police party had come to the village on the 5 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.

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Cr.A.No. 1753 of 1996

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The two eye-witnesses are the child witnesses and their above (11) late disclosure without any plausible explanation and non-disclosure at the first instance and categorical admission that police persoris 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 ofthe two child witnesses.

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ISS*'

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(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.

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SA'-
Chief Justice Sd/-
SunU Kumar Siaha
Judge

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vatti

Shambhoo Singh and Ors. v. State

Case brief

What is this about?

What did the court decide?

Shambhoo Singh and Ors. v. State

Case brief

What is this about?

What did the court decide?

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