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2012 Supreme(Chh) 133
HIGH COURT OF CHHATTISGARH, BILASPUR
Rajeev Gupta & Sunil Kumar Sinha, J.
SHAMBHOO SINGH & ANOTHER
Vs.
STATE OF M.P. (NOW C.G.)
Criminal Appeal No. 1753 of 1996
Decided on 20-6-2012.
Advocate Appeared:
Mr. Neeraj Mehta, Advocate, for the Appellant.
Mr. Arvind Dubey, Panel Lawyer, for the State.
The credibility of witness testimonies should be judged based on the prevailing facts and circumstances of each case, and late disclosure of the incident without a plausible explanation can raise suspicion about the evidence.
Headnote:
Late Disclosure - Criminal Law - IPC 302/34 - 161 Cr.P.C., 164 Cr.P.C., Evidence Act 27 - The court discussed the late disclosure of the incident by the child witnesses, the lack of explanation for the delay, and the threats made by the police, which led to the suspicion of their evidence. The court cited the Supreme Court's stance on late disclosure and emphasized the importance of judging the credibility of witnesses based on the prevailing facts and circumstances of each case.
Fact of the Case:
The deceased went missing and was later found dead with multiple serious injuries. Two child witnesses initially did not make allegations against the appellants but later disclosed the incident, claiming that the appellants assaulted the deceased.
Finding of the Court:
The court found the evidence of the child witnesses suspicious due to the late disclosure of the incident, lack of explanation for the delay, and their admission of being threatened by the police. The court concluded that the conviction based on their testimonies cannot be sustained.
Issues: Late disclosure of the incident by the child witnesses, lack of explanation for the delay, and the credibility of their evidence.
Ratio Decidendi: The court emphasized the importance of judging the credibility of witnesses based on the prevailing facts and circumstances of each case, citing the Supreme Court's stance on late disclosure and the impact of threats on witness testimonies.
Final Decision: The appeal was allowed, the conviction and sentence of appellant No.1 were set aside, and he was acquitted of the charges.
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. 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 witnes
