Chattisgarh High Court
Chandrashekher Alias Shakher vs State Of M.P on 17 November, 2016
Bench: Deepak Gupta, Sanjay Agrawal
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.2688 of 2000
1. Chandrashekher alias Shakher, S/o Bhagi Ram, aged 30 years,
2. Dev Singh, S/o Bhagiram, aged 23 years,
3. Bhagi Ram, S/o Kanwal Singh, aged 52 years,
All R/o Village Jhurha Tola, P.S. Dondi, District Durg, M.P. (now
Chhattisgarh)
---- Appellants
versus
State of M.P. (now Chhattisgarh) through P.S. Dondi, District Durg,
M.P. (now Chhattisgarh)
---- Respondent
For Appellants : Shri Adil Minhaj, Advocate
For Respondent/State : Ms. Madhunisha Singh, Panel Lawyer
Hon'ble Shri Deepak Gupta, Chief Justice
Hon'ble Shri Justice Sanjay Agrawal
Judgment on Board
Per Deepak Gupta, Chief Justice
17.11.2016
1. This appeal by the three Appellants is directed against the judgment dated 31.12.1999 delivered by the Additional Sessions Judge, Balod, District Durg in Sessions Trial No.120 of 1999, whereby he convicted the accused/Appellants for having committed offences punishable under Sections 302 read with Sections 34 and 120-B of the Indian Penal Code and sentenced them with imprisonment for life.
2. The prosecution story, briefly stated, is that the Appellants entered into a conspiracy to kill deceased Shankarlal and in furtherance of their common object they on 31.8.1998 attacked Shankarlal at the small culvert (Puliya) near Anganbadi in Village Jhurhatola, Police Station Dondi, District Durg. The first information with regard to this occurrence was given by Chhagan Lal (PW-1) to the police. He accompanied by Devluram (PW-2), Kacharu Ram (PW-3), Jagram (PW-5) and Sukhram (PW-8) went to police station and lodged a report (Ex.P-1) at 9:45 p.m., which was termed as Merg Intimation 2 (information of death). All that is stated in this information given to the police is that Balaram (PW-13) came and told Chhagan Lal (PW-1) that body of Shankarlal is lying near Anganbadi culvert and he has been murdered by somebody. Then all the villagers went to the spot and saw that Shankarlal was lying dead. His throat had been cut with some sharp edged weapon. One axe, one sabbal (a sharp edged iron rod) and a bunch of rope were lying next to the body.
3. Thereafter, the police officials went to the Village Jhurhatola. It is the admitted case that the police officials reached the village soon thereafter. However, because it was dark the police did not carry investigation and inquest (Ex.P-3) was carried out next day on 1.9.1998. In the inquest report, it is mentioned that as per the statements of the relatives and the witnesses, it is revealed that the accused persons had assaulted the deceased. However, no specific eyewitness was named. Dehati Nalishi (Ex.P-25) was recorded on 1.9.1998 at 10:00 a.m. and in this eyewitness Kuleshwar (PW-11) was named. It is stated that he had witnessed the murder of the deceased. On the basis of this Dehati Nalishi, First Information Report (Ex.P-26) was recorded at 6:30 p.m. on the same day. Thereafter, the body of the deceased was subjected to post mortem. Further investigation was carried out and the accused were charged with offence of having committed murder of deceased Shankarlal. They have been convicted and sentenced by the Learned Trial Court basically relying upon the statement of Kuleshwar (PW-11), who is stated to be the eyewitness to the occurrence. It was held that the statement of the eyewitness is corroborated by the recovery of the blood stained clothes of the accused persons. Aggrieved by the aforesaid judgment of the Learned Trial Court, the Appellants have filed the instant appeal.
4. Shri Adil Minhaj, Learned Counsel appearing for the Appellants 3 submits that Kuleshwar (PW-11) is a child witness and, therefore, implicit reliance cannot be placed on his testimony. He further submits that the testimony of the child witness must be scrutinised carefully and in view of the contradictions in the statement of the child witness, his testimony cannot be accepted. His further submission is that the police has been building up the case step by step. In the Merg Intimation, no person has been named. The police admittedly reached the spot at night, but the inquest was carried out next day and in that inquest first time the accused were named. He urges that even though the accused were named, no eyewitness was named. The eyewitness was named for the first time in the Dehati Nalishi. He further submits that there is unexplained delay of 24 hours in lodging the FIR and this gave enough time to the police to fabricate a false case and to falsely implicate the accused in the crime. The last submission is that neither Kuleshwar (PW-11), the eyewitness nor his father Anandiram (PW-12) has given any valid explanation for the delay in informing the police and the co-villagers about the fact that Kuleshwar (PW-11) had seen the occurrence.
5. Before dealing with the merits of the case, we are constrained to again observe that the police in the State of Chhattisgarh are time and again violating the law by not recording the FIR even when the information given to them clearly discloses the commission of a cognizable offence. In this regard, we may make reference to the observations made by us in Criminal Appeal No.1387 of 1998 decided on 24.10.2016, wherein this Court observed as follows:
"7. One of us (the Chief Justice) has been observing since last 5 months that the practice in the State of Chhattisgarh is not to lodge the FIR at the first instance. There are various ways how the police avoids lodging of the FIR. One system being followed is to lodge merg intimation 4 (intimation of death) and thereafter the FIR is lodged. Another system is to lodge Dehati Nalishi (unnumbered report). This is like a zero number FIR being recorded at the spot. Once the allegations are clear and a cognizable offence is made out then there is no question of lodging a merg intimation or Dehati Nalishi at the first instance. Once the commission of a cognizable offence is made out, it is the duty of the police official to lodge the report. Zero FIR may be lodged in those rare cases where either the complaint has been lodged in the jurisdiction of a police station not having jurisdiction or when, from the facts stated no clearcut offence is made out and it cannot be said with certainty that a cognizable offence is made out.
8. We may go through the scheme of the Code of Criminal Procedure. Under Section 154 Cr.P.C., every information given to an officerincharge of a police station has to be recorded in writing and if such information is given in writing, it must be signed by the person giving the information and the substance of the information has to be entered into a book to be kept by such officer. Therefore, there is no discretion with the police officer. He is bound to lodge an FIR as soon as the commission of cognizable offence is made out.
9. Section 154 Cr.P.C. reads as follows:
"154. Information in cognizable cases (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer;
Provided further that--5
(a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be video graphed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of subsection (5A) of section 164 as soon as possible.
2. A copy of the information as recorded under Sub Section (1) shall be given forthwith, free of cost, to the informant.
3. Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in SubSection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
10. A bare reading of the aforesaid provision clearly stipulates that when an information relating to the commission of a cognizable offence is given to the Police Officer orally, he shall reduce the same in writing and when the information is given in writing, the substance thereof has to be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Under subsection (2), a copy of the information recorded under subsection (1) shall be given forthwith free of cost to the informant. Subsection (3) provides that if any person is aggrieved by refusal on the part of the officer to record the information, he may send the substance of such complaint in writing and by post to the Superintendent of Police concerned, who, on being satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him. This 6 virtually means that the Investigating Officer shall be an officer other than the officer who refused to lodge the FIR.
11. Section 157 Cr.P.C. reads as follows:
"157. Procedure for investigation.(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that-
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case:
[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents for guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and
(b) of the proviso to sub section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."
This Section clearly postulates that FIR has to be sent forthwith to the Magistrate. The Magistrate is empowered to take cognizance of such offence and investigation has to be started.
12. Section 154 Cr.P.C. has been the subject matter of discussion in a number of judgments of the Apex Court and when the Apex Court has already given directions in this 7 regard, this Court is not required to add anything further. Reference may be made to Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, wherein the Apex Court held as follows:
"40. In addition, Mr. Shekhar Naphade, learned senior counsel contended that insertion of Section 166A in IPC indicates that registration of FIR is not compulsory for all offences other than what is specified in the said Section. By Criminal Law (Amendment) Act 2013, Section 166A was inserted in Indian Penal Code which reads as under: "Section 166A--Whoever, being a public servant.--
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under subsection (1) of Section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under Section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, Section 509 shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to fine."
xxx xxx xxx
42. Although, the argument is as persuasive as it appears, yet, we doubt whether such a presumption can be drawn in contravention to the unambiguous words employed in the said provision. Hence, insertion of Section 166A in the IPC vide Criminal Law (Amendment) Act 2013, must be read in consonance with the provision and not contrary to it. The insertion of Section 166A was in the light of recent unfortunate occurrence of offences against women.
The intention of the legislature in putting forth this amendment was to tighten the already existing provisions to provide enhanced safeguards to women. Therefore, the legislature, after noticing the increasing crimes against women in our country, thought it appropriate to expressly punish the police officers for their failure to register FIRs in these cases. No other meaning than this can be assigned to for the insertion of the same.
43. With this background, let us discuss the submissions in the light of various decisions both in favour and against the referred issue.
Interpretation of Section 154:
44. It may be mentioned in this connection that the 8 first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. All that we have to see at the very outset is what does the provision say? As a result, the language employed in Section 154 is the determinative factor of the legislative intent. A plain reading of Section 154(1) of the Code provides that any information relating to the commission of a cognizable offence if given orally to an officerincharge of a police station shall be reduced into writing by him or under his direction. There is no ambiguity in the language of Section 154(1) of the Code.
45. At this juncture, it is apposite to refer to the following observations of this Court in M/s Hiralal Rattanlal14 which are as under: (SCC p. 224, para 22) "22...In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that we have to see at the very outset is what does that provision say? If the provision is unambiguous and if from that provision, the legislative intent is clear, we need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear..."
46. The above decision was followed by this Court in B. Premanand13 and after referring the abovesaid observations in the case of Hiralal Rattanlal14 this Court observed as under:
"9. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB v. SEBI 43.
110. This can also be seen from the fact that Section 151 of the Code allows a police officer to arrest a person, even before the commission of a cognizable offence, in order to prevent the commission of that offence, if it cannot be prevented otherwise. Such preventive arrests can be valid for 24 hours. However, a Maharashtra State amendment to Section 151 allows the custody of a person in that State even for up to a period of 30 days (with the order of the Judicial Magistrate) even before a cognizable offence is committed in order to prevent commission of such offence. Thus, the arrest of a person and registration of FIR are not directly and/or irreversibly linked and they are entirely different concepts operating under entirely different parameters. On the other hand, if a police officer misuses his power of arrest, he can be tried and punished under Section 166.
111. Besides, the Code gives power to the police to 9 close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The Section itself states that a police officer can start investigation when he has a 'reason to suspect the commission of an offence'. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence."
13. All these directions have already been ordered to be circulated by the Apex Court. These have been circulated to the police officials of the State of Chhattisgarh already and even at the cost of repetition, if needed, they shall be circulated all over again.
14. Another important aspect of the matter is that if the information given by a person is not recorded by the officer incharge of the police station then that person in terms of Section 154(3) Cr.P.C. can approach the Superintendent of Police concerned and if the Superintendent of Police is satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by the Cr.P.C. and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. Therefore if the officer in charge does not record an FIR where the information discloses, commission of a cognizable offence some other police official must investigate the case. This is a very important provision to ensure that people feel that they shall get justice at the hands of the police and if the officer does not record FIR though the information discloses the cognizable offence then he is debarred from later investigating the matter.
15. Reference may be made to Section 156 Cr.P.C. which permits a police officer to start investigation in a case relating to a cognizable offence without obtaining any 10 orders of the Magistrate concerned. Thereafter, reference may be made to Section 157 Cr.P.C., which provides that if the information given relates to the commission of a cognizable offence for which the police officer will be empowered to investigate in terms of Section 157 Cr.P.C. then he has to "forthwith" send the report to the concerned Magistrate empowered to take cognizance of such offence. Therefore, a duty is cast on the police officer recording the information to ensure that the concerned Magistrate is immediately apprised of the lodging of the FIR in a case relating to cognizable offence. The FIR has to be sent to the Magistrate forthwith. The police cannot be permitted to circumvent the provision of Section 157 Cr.P.C. by not lodging an FIR and lodging a Dehati Nalishi or a merg intimation or G.D. entry etc. If the information discloses commission of a cognizable offence then the police is duty bound to lodge an FIR and forthwith send a copy of the FIR to the Magistrate concerned. Purpose of Section 157 Cr.P.C. is to ensure that false cases are not made out at a later stage because once an FIR is lodged and countersigned by the Magistrate then no changes can be made in the FIR. This salient provision of the Cr.P.C. cannot be circumvent by the practice which is being followed in the State of Chhattisgarh by not recording FIR straightway and first recording merg intimation, Dehati Nalishi etc.
16. Another important aspect of the matter is that once the Magistrate is seized of the matter then he can direct how the investigation is to be carried out in terms of Section 159 Cr.P.C."
6. In the present case, the information given by Kuleshwar (PW-11) to the police, which has been recorded as Merg Intimation itself clearly discloses commission of a cognizable offence. In this information, it is clearly stated that the dead body of the deceased Shankar Lal was lying on the culvert and there was a wound caused by a sharp edged weapon on the throat and also that an axe was lying next to the body. Nothing more was required to lodge an FIR against an unknown 11 person. The information disclosed commission of an offence but did not disclose who was the person who had committed the offence. Since commission of an offence had been disclosed, the FIR should have been recorded immediately at this stage.
7. The purpose of Section 157 CrPC is that the information regarding the FIR is to be given forthwith to the Magistrate. Therefore, it is the duty of the police to immediately inform the Magistrate. The reason is that once the Magistrate counter-signs the FIR, no change can be made in the same. Unfortunately, in this case, the Merg Intimation was lodged first. The inquest was conducted next day. It appears to us that the inquest was conducted prior to lodging of the Dehati Nalishi. We say this because in the inquest no eye witness has been named but in the Dehati Nalishi, the eyewitness has been named. We do not understand why a Dehati Nalishi should have been recorded. Even if we assume that the FIR had to be lodged in the police station, then also immediately a report should have been recorded may be in the form of Dehati Nalishi and sent to the police station through one of the constables and FIR should have been lodged immediately. Thereafter, investigation should have been started and the Magistrate should also have been informed forthwith.
8. As far as the present case is concerned, the prosecution story is mainly based on the statements of Kuleshwar (PW-11) and his father Anandiram (PW-12). Kuleshwar (PW-11) is a young boy aged about 12 years meaning thereby that he was little more than 11 years when he allegedly saw the occurrence. It is the statement of both Kuleshwar (PW-11) and Anandiram (PW-12) that soon after Kuleshwar (PW-11) saw the occurrence his father Anandiram (PW-12) came home and Kuleshwar (PW-11) informed his father that he had witnessed the murder of deceased Shankarlal. No doubt, Kuleshwar 12 (PW-11) is a competent witness under Section 118 of the Evidence Act. From his evidence, it is apparent that he could understand the questions put to him. He is, however, a child witness and the law is well settled that if the witness is a child then his evidence, as a matter of prudence, should be scrutinised closely. It is not the law that if testimony of the child witness is reliable then also it must be rejected. The law is only that the statement of a child witness should be evaluated more carefully and with great circumspection. The reason for this is that a child witness is susceptible and amenable to be influenced by his family members and others under whose care and guidance he lives. At the same time, we must remember that children are honest. They are not dishonest. A child would normally tell the truth unless he is influenced or forced by others to tell lies. The reason why the evidence of a child witness has to be scrutinised closely is that a child cannot live independently and is dependent on the others. He can be easily influenced by others who have control over him to make a statement in a particular fashion. Therefore, it is a rule of prudence and caution and not a rule of evidence that the statement of a child witness should be scrutinised carefully.
9. In this case, we find two major infirmities in the statement of the child witness. It has come in his evidence as well as in the evidence of Jhagaruram (PW-21) that the grandmother of one of the accused Chandrashekhar had died a week earlier and all the members of the family of grandmother had got their hair tonsured on this occasion. True it is that there is no specific suggestion that Chandrashekhar also got his hair removed on this occasion, but Jhagaruram (PW-21) in his statement has stated that when he saw Chandrashekhar near the culvert on the date of occurrence itself, he had no hair on his head. On the other hand, the child witness in his statement has stated that all the accused had long hair (Bade Bade Bal). This is a major 13 contradiction in the statement of the child witness. The other reason why we are disinclined to accept the testimony of the child witness is that admittedly the child witness told his father that he had witnessed the murder soon after the murder had taken place. It may be true that Chhagan Lal (PW-1) may not have been aware of the name of the eyewitness when he went to first report to the police and if names of the accused were missing only in the Merg Intimation (Ex.P-1) then we would not have been inclined to give them any benefit of doubt. However, what we find that even in the inquest report, which was prepared next day, it is only mentioned that the villagers and relatives informed the police that the accused had committed the murder. No eyewitness has been named. It has also come in evidence that the police reached the spot late in the night on 31.8.1998. Since it was night, it may not have been possible for them to go to the spot and investigate, but in a murder case, it is expected that there should be no delay in questioning the witnesses or other persons who may have some knowledge of the case. The police cannot wait till the next morning to question the witnesses. They reached there at night and they should have questioned the villagers immediately. It has also come in the testimony of the witnesses that the police asked Anandiram (PW-12), father of Kuleshwar (PW-11) to guard the dead body. Therefore, at this time, Anandiram (PW-12) should himself have voluntarily informed the police that his son had witnessed the murder. The only explanation given by Anandiram (PW-12) for not informing the police is that he was scared of the accused. In this regard, we may mention that the accused are not alleged to be some Gundas, but are co-villagers. Not a word has been stated as to why he was scared of the accused persons. Even if at the outset he may have been scared of the accused persons, once the police arrived at the scene, he should have informed the police that his minor son had witnessed 14 the occurrence. This has not been done.
10. In this regard, we may make reference to the judgment of the Apex Court in AIR 1976 SC 2488 (State of Orissa v. Mr. Brahmananda Nanda), wherein the Apex Court has held as follows:
"2. ..... Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of 13 th June, 1969 and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on 14 th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the morning of 15th June, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case."
11. We may also make reference to the judgment of the Apex Court in (2016) 4 SCC 96 (Shahid Khan v. State of Rajasthan), wherein the Apex Court has held as follows:
"20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they were not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses to the occurrence. It may suggest that the investigating officer 15 was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and reappreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt."
12. Reference may also be made to the judgment of a Division Bench of this Court in 2010 Cri.L.J. 545 (Pradeep Kumar Jaiswal v. State of Chhattisgarh), wherein it was held as follows:
"14. We have no doubt to say that no straitjacket 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. However, that judgment should be arrived at keeping in mind the normal human conduct and the probable circumstances including the explanation offered regarding nondisclosure of the facts relating to commission of such a heinous offence. In the present case, the witnesses had frequently met with the police and the father of the deceased who was in search of his daughter. They did not disclose about the incident to them. The only reason which they have assigned was the threatening given by the accused persons. If in fact this was the reason, why PW2, Mangal, immediately disclosed this fact to PW3, Mankuram as is claimed by him and which also was the case of the prosecution. The police was throughout with them. How the fear of threatening vanished after 9 days when they suddenly disclosed the alleged incident to the police. We are unable to accept such explanation given by these witnesses as the explanation offered for nondisclosure was unbelievable, such non disclosure was a serious infirmity which destroyed the credibility of the evidence of these witnesses and we do not rely on their testimonies on account of their such conduct."
13. We are of the view that in the present case also explanation given by Anandiram (PW-12) for not informing the police cannot be accepted and casts doubt on his testimony.
16
14. As far as the child witness Kuleshwar (PW-11) is concerned, he may or may not have informed the police because he is a minor boy. He has done his duty by informing his father. But, normal human conduct would have required that the father should have informed the co- villagers, kotwar of the village and especially the police when they came to the spot.
15. In view of the aforesaid discussion, three facts emerge, (i) there is an unexplained delay in lodging the FIR which gives a chance to the police to tamper with the evidence and the possibility of the accused being wrongly roped in cannot be brushed aside, (ii) there is material contradiction in the statement of the child witness with regard to the identity of the accused because according to the child witness all the accused had long hair, but he has admitted that all the family members of the accused family had removed their hair on the death of their grandmother and Jhagaruram (PW-21) has stated that accused Chandrashekhar had no hair (iii) there is no explanation why Anandiram (PW-12), father of the minor child did not inform the police or his co-villagers soon after the occurrence that his child had seen the occurrence.
16. As far as corroborative evidence is concerned, the same is only related to recovery of some clothes belonging to the accused. The report of the FSL is only in respect of accused Chandrashekhar that his clothes contained blood but it is also not stated to be human blood. Furthermore, the seizure witnesses have not supported the case of the prosecution in this regard.
17. In view of the above discussion, it cannot be said that the case has been proved against the accused beyond reasonable doubt. Their appeal is accordingly allowed. The impugned judgment of conviction and sentence is set aside. The accused/Appellants are acquitted of 17 the charges framed against them. The bail bonds of the Appellants shall remain operative for a period of six months in terms of Section 437A Cr.P.C.
Sd/- Sd/-
(Deepak Gupta) (Sanjay Agrawal)
CHIEF JUSTICE JUDGE
Subbu