IMPORTANT POINTS
Mere presence in an unlawful assembly cannot render a person liable unless there was a common object.
FIR forwarded to the Magistrate after a delay of 4 days becomes significant in view of inconsistency in evidence of witnesses.

JUDGMENT

N.V. Ramana, J.

This appeal is directed against judgment dated 26.04.2010, passed by the Division Bench of the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 604 of 1993, whereby the appeal preferred by the appellant was dismissed, and the judgment and order dated 11.06.1993 passed by the Additional Sessions Judge, Bilaspur, convicting the appellant was confirmed. The appellant was convicted under Section 302 read with Section 149; and Section 147 of the IPC, and sentenced to imprisonment for life and one-year rigorous imprisonment respectively.

2. The case of the prosecution in brief is that on the morning of 12.08.1989, the deceased, Kapil, was taking his cattle for grazing, at which time his cattle jumped on the door of the appellant's house, which led to the appellant abusing the deceased. Thereafter, on his way back, the deceased questioned the appellant as to why she abused him earlier in the morning. At this, the appellant, on the pretext of touching the feet of the deceased, caught hold of him. Then, the other accused, armed with deadly weapons, came to the spot and beat the deceased to death. Pursuant to this an FIR was registered against the accused on 12.08.1989 and charge-sheet was filed.

3. Originally, 14 individuals were made accused in the present case and out of them 10 were convicted by the trial court. During the pendency of their appeal before the High Court, accused no.3 Jhangul died, abating his appeal, and accused nos. 1, 5, 6, 7 and 10 were released on special reprieve granted to them. With respect to the remaining accused including the present appellant, the appeal was dismissed by the High Court. The present appeal before us concerns only accused no. 13, Amrika Bai, who has sustained conviction as aforementioned.

4. Heard learned counsel for both the parties.

5. Learned counsel for the appellant contended that the impugned judgment convicts the appellant without any credible and clinching evidence, and is thereby illegal. The counsel further submitted that Section 157 Cr.P.C. was not complied with and the counterfoil of the FIR was forwarded to the Magistrate after a delay of 4 days from its registration. He also submitted that the statements of prosecution witnesses are unnatural and contradictory, made with the intention to falsely implicate the appellant.

6. On the other hand, the learned counsel for the respondent-State submitted that the impugned judgment is well reasoned and does not suffer from any infirmity which merits interference.

7. The prosecution has relied on the testimonies of Dharmu (P.W. 7, father of the deceased), Bhagwat Bai (P.W. 8, sister of the deceased) and Babulal (P.W. 9, brother-in-law of the deceased) to secure the conviction of the appellant. It is to be noted that these prosecution witnesses are close relatives of the deceased and in view of the same, this Court has to scrutinize their testimony with great care and caution.

8. In the facts of the present case, the appellant who was unarmed is implicated in the incident by virtue of the testimonies of the aforementioned witnesses stating her role in allegedly catching hold of the deceased to facilitate his murder. On a close scrutiny of the testimonies of the aforesaid witnesses, the role of the appellant in the incident is extremely doubtful.

9. The testimonies of Dharmu (P.W. 7), Bhagwat Bai (P.W. 8) and Babulal (P.W. 9), on the basis of which the appellant was implicated in the offence, are highly inconsistent with respect to the role of the appellant. While P.W. 8 deposed in line with the prosecution version that the appellant merely held the deceased as he was being assaulted, P.W. 9, went on to depose in his cross-examination that the appellant in fact assaulted the deceased with a lathi. Further, P.W. 7, in his cross-examination, deposed that the appellant brought the tangia from inside the house and handed it over to Chandra (accused no. 11, husband of the appellant) while admitting that his earlier s