The delay in recording the statement of a material eyewitness during a murder case renders the evidence unreliable.

Sunil Kumar Sinha, J

1. These appeals are directed against the judgment dated 9th of January, 2006, passed in Sessions Trial No. 64/2005 by the Sessions Judge, Jashpur, District Jashpur (CG). By the impugned judgment, the appellants have been convicted under Sections 302, 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1000/- with default sentence of R.I. for 6 months.

2. The facts, briefly stated, are as under: –

Deceased- Firdos and his mother Smt. T. Chouhan (PW-5) were jointly residing in village Marol, Tehsil-Bagicha, District Jashpur. On 27.3.2005, at about 7.00-7.30 am, dead body of the deceased was found at an open place behind his house. The villagers firstly informed his mother Smt. T. Chouhan (PW-5) and thereafter, village Chowkidar - Padumnath was called. Padumnath (PW-l) lodged Merg intimation (Ex. P/l). The Investigating Officer reached to the place of occurrence, gave notice (Ex.P/10) to the Panchas and prepared inquest (Ex. P/2) on the dead body of the deceased. A rope was found around the neck of the deceased. The dead body of the deceased was sent for postmortem to Community Health Centre, Kansabel. The postmortem examination was conducted by Dr. Y.K. Toppo (PW-3). Though he noticed multiple injuries on the dead body of the deceased, but he did not find any ligature mark around the neck. The Autopsy Surgeon opined that the cause of death was asphyxia on account of throttling and it was homicidal in nature. In further investigation, on 3.4.2005, statement of Nanhuram (PW-2) was recorded under Section 161 Cr.P.C. Nanhuram (PW-2) stated that in the intervening night of 26.3.2005 and 27.3.2005, the appellants committed murder of the deceased in village Kerakachar and thereafter, his dead body was brought to village Marol and was thrown in the back portion of the house of the deceased. The case of the prosecution was entirely based on the eye-witness account of the sole eyewitness Nanhuram (PW-2). The learned Sessions Judge relied on the testimony of Nanhuram (PW-2) and held that it was proved beyond all reasonable doubts that the appellants committed murder of the deceased in the intervening night of 26.3.2005 and 27.3.2005 and thus, they were liable for punishment under the aforesaid Sections of the IPC.

3. Mr. Shrawan Agrawal, learned counsel appearing on behalf of the appellants, argued that the incident took place in the intervening night of 26.3.2005 and 27.3.2005 and 161 Cr.P.C. statement of the sole eye-witness Nanhuram (PW-2) was recorded on 3.4.2005, therefore, there was a long delay in disclosure by Nanhuram (PW-2), which makes his evidence unreliable. He also argued that Nanhuram (PW-2) was taken by the Police on 28.3.2005 and he was kept in custody up to 2.4.2005 and thereafter, his above statement was recorded. According to him, Nanhuram (PW-2) was available with the Police from 27.3.2005 itself. Therefore, there was no reason as to why he did not disclose the above facts to the Police up to 3.4.2005. He assailed the testimony of sole eye-witness Nanhuram (PW-2) on the above facts and circumstances of the case.

4. On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

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

6. Unjustified and unexplained long delay on part of Investigating Officer in recording statement of material eye witness, under Section 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. It was held by the Supreme Court 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 long time