1995 Supreme(MP) 645

R.D. Shukla and A.R. Tiwari, JJ.
Chhagan v. State of M.P.
Cr. A. No. 740 of 1987 (I); Decided on 19.7.1995.

Headnote:(1) Penal Code, 1860 -- Ss. 302 and 201 -- eye witness keeping mum for one month -- cannot be believed to convict the accused.

        (2) Criminal P.C., 1973 -- S. 164 -- statement got recorded by the Magistrate under -- goes to show that prosecution itself doubted the verasity of the witness.

       ¼1½ naM lafgrk] 1860 & /kkjk 302 rFkk 201 & izR;{kn‘khZ lk{kh ,d ekl rd ekSu & vfHk;qDr dks naMkfn"V djus ds fy, ml ij fo‘okl ugha fd;k tk ldrkA

        ¼2½ naM Áfdz;k lafgrk] 1973 & /kkjk 164 & ds v/khu eftLVªsV }kjk vfHkfyf[kr dFku & nf‘kZr gksrk gS fd lk{kh dh lR;rk ij Lo;a vfHk;kstu i{k dks lansg FkkA

        The prosecution story as disclosed is that Bondar (deceased) had gone to the house of Madan on 10.10.86. Madan resides in village Laltalayi. Bondar had promised to treat his ailing son and charged Rs. 200/-. It appears Bondar was practicing witch-craft. Bondar treated the child and put some thread around the neck of sick child and demanded Rs. 200/-. Accused persons did not pay the amount. Bondar therefore gave threat that he will take-out the thread put around the neck of child and he went inside the house. It is further alleged that this action of Bondar caused annoyance to accused persons. Madan took-out a Deng (heavy stick) and chhagan took-out a Falia. Both of them caused injuries to Bondar. Bondar died on the spot. Thereafter they removed the body of Bondar and threw it in the well of Shakir.

        Held : The witness who ceases and watches a crime of murder or such other ghastly crime being committed and fails to disclose the incident to the persons who otherwise are entitled to know about it or to the police will normally be deemed to be an unreliable witness. He may not be treated to be an accompli but his statement cannot be acted upon unless a satisfactory explanation of non-disclosure is given. The explanation given by this witness does not inspire confidence. He kept mum for about a month. He failed to disclose the incident not only to the police officer but to the persons of the village and the family members of Bondar. He came out as a witness during investigation by Shri S.R. Patidar. This goes to show that he is a got up witness and his evidence cannot be acted upon for basing the conviction.

        There is yet another fact for doubting the credibility of this witness i.e. his statement was got recorded by Magistrate during investigation. This itself goes to show that the prosecution itself doubted the verasity of this witness and were apprehensive of the fact as to whether he will remain firm on his stand.

        According to this witness the incident happened in the house of Madan but the spot map prepared by the Head Constable Damodar (PW. 10) shows that the incident happened in Chornishana Pahadi. He found one blood-stained stick and blood-stains on the earth also. Some clothes were also found. The blood-stains on these articles were confirmed by the Chemical Analysor. This goes to show that the incident happened in that Chornishana Pahadi and not in the house of Madan. It appears the line of investigation taken by Head Constable Damodar was put in reverse gear and the witness Sardar @ Sikdar was procured for making out a case against the two persons i.e. Chhagan and Madan.

        Once P.W. 3 Sardar @ Sikdar is disbelieved there is no outer link to connect the accused with the crime.

        Thus, in our opinion the accusedd`respondent Madansingh @ Madan has rightly been acquitted. The conviction of accused Chhagan cannot also be maintained on the evidence adduced by the prosecution.

        As a result appeal filed by Chhagan (Cr. A. No. 740/87) is accepted. He is acquitted of all the charges; while the appeal filed by the State (Cri. Appeal No. 105/88) is dismissed.