HIGH COURT OF CHHATTISGARH,...

HIGH COURT OF CHHATTISGARH, BILASPUR

Division Bench: Hon’ble Shri Sunil Kumar Sinha & Hon’ble Shri Inder Singh Uboweja, J J

Criminal Appeal No. 422 of 2012

APPELLANT Ku. T. Tejasvani D/o T. ShivPrasad, Age 21 years, R/o A.T.C.Cross Road, Chikarpalli,Hydarabad, Andhrapradesh, Atpresent Address – BhilaiHospital, Sector 12/A, Street 16,District Durg (C.G.)

Versus

RESPONDENT State of Chhattisgarh, Through:Police Chowki – Rampur, P.S.Kotwali, Korba, District Korba(C.G.)

And


APPELLANT Shivshankar Shukla S/o SatishShukla, aged 22 years, R/oRumgarha, Nand Baag, PoliceStation- Balco, District Korba(C.G.)

Versus

RESPONDENT State of Chhattisgarh, Through:Out Post – Rampur, PoliceStation- Kotwali Korba, DistrictKorba (C.G.)

(Criminal Appeals under Section 374 (2) of The Code of CriminalProcedure, 1973)

Criminal Appeal Nos. 422 & 470 of 2012

-------------------------------------------------------------------------------------------Appearance:

Mr. Surendra Singh, Sr. Advocate with Ms. Madhu NishaSingh, Advocate for the appellant in Cr.A. No. 422/2012.

Mr. P.K. Verma, Sr. Advocate with Mr. Sumit Verma,Advocate for the appellant in Cr.A. No. 470/2012.

Mr. A.S. Kachhawaha, Dy. Advocate General for the State. -------------------------------------------------------------------------------------------

JUDGMENT(07.05.2014)

Following judgment of the Court was delivered by

Sunil Kumar Sinha, J.

(1) These appeals are directed against the judgment dated 23rd of

April, 2012 passed in Sessions Trial No. 49/2008 by the Sessions

Judge, Korba, District Korba (C.G.). By the impugned judgment, the

appellants have been convicted and sentenced in following manner,

with a direction to run the sentences concurrently:-

Conviction Sentence

u/S 450 IPC R.I. for 5 years and fine ofRs.3000/- with defaultsentence of R.I. for 1 year

u/S 394 r/w 397 IPC R.I. for 7 years and fine ofRs.3000/- with defaultsentence of R.I. for 1 year

u/S 302 IPC Life imprisonment andfine of Rs.5,000/- withdefault sentence of R.I.for 1 year

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(2) The facts, briefly stated, are as under:-

2.1 Keshav Prasad Gupta (PW-1) was a Sub-Engineer in

Municipal Corporation, Korba. He was residing with his

family in Qr. No. G/25, SADA Colony, Niharika, Korba.

Deceased- Sadhana Gupta was wife of Keshav Prasad (PW-1).

Rohit Gupta (PW-2) is son of Keshav Prasad (PW-1). On

17.1.2008, Keshav Prasad (PW-1), as usual, left his quarter at

9.30 a.m. Rohit Gupta (PW-2) had also left for school at 7.15

a.m. Keshav Prasad (PW-1) returned his quarter at 3.45 p.m.

He found that the door of the quarter was closed from inside.

When he tried to open the door, it could not be opened. He,

then, entered into the quarter from the back side. He saw that

his wife (deceased) was lying in pool of blood on a chair in the

bed-room. She had sustained multiple serious injuries. Rohit

(PW-2) was also tied with a chair in the bed-room. His mouth

and eyes were covered by cloths. Keshav Prasad (PW-1)

immediately took his wife (deceased) to the District Hospital,

where she was declared dead. Rohit Gupta (PW-2) was also

taken to the hospital. He was frightened. Later on, he narrated

the incident to his father, Keshav Prasad (PW-1), that at about

1.00 p.m., when he returned from the school, a girl who was

wearing salwar-suit and a fair coloured boy, who was wearing

fullpant and white-yellow strap shirt, had caught him, his eyes

were covered and he was tied by rope on the chair. He also

told that the said 2 persons had committed murdered of his

mother (deceased) and they had also looted certain property.

2.2 Merg intimation (Ex.-P/4) was recorded. Inquest (Ex.-

P/23) was prepared and the dead body was sent for

postmortem. The postmortem examination was conducted by

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Dr. R.K. Divya (PW-10). He found following injuries on the

dead body of the deceased:-

(i) Incised wound of 2 x ½ x 1 cm, horizontally placed

on the left portion of neck;

(ii) Incised wound of 1 x ½ x ½ cm horizontally placed

on the right portion of the neck;

(iii) Incised wound of 2 x ½ x ½ cm on the right portion

of the neck;

(iv) Two incised wounds of 6 x ½ cm and 8 x ½ cm,

horizontally placed, reddish in colour, on the

cheek;

(v) Two incised wounds of 6 x 2 ½ cm and 3 x 1 cm

both skin deep on the right forearm;

(vi) Three incised wounds of 2 ½ x 1 ½ cm, 4 x 1 ½ cm

and 2 x 1 cm, all horizontally placed on right

forearm;

(vii) Two incised wounds of 2 ½ x 1 cm and 1 x ½ cm,

both bone deep on the left portion of chest;

(viii) Incised wound of 1 x ½ x ½ cm, horizontally

placed on the right portion of chest;

(ix) Three incised wounds of 3 x 1 cm, 3 x 1 cm and 2 x

1 cm on the left scapular bone;

(x) Three incised wounds of 3 x 1 cm, 3 x 1 ½ cm and 3

x 1 cm all parallel to each other on the back of the

chest, the injuries were placed between both

scapula bone;

(xi) Incised wound of 2 x 1 cm on the right iliac fossa;

&

(xii) Incised wound of 5 x 3 cm horizontally placed on

the anterior aspect of the right leg.

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All the injuries were ante-mortem caused by hard and

sharp object and the cause of death was haemorrhagic shock

on account of above injuries and it was homicidal in nature.

The postmortem report is Ex.-P/18.

2.3 Dehatinalishi (Ex.-P/1) was lodged by Keshav Prasad

Gupta (PW-1) at 7.30 p.m. on 17.1.2008, based on which F.I.R.

was registered against two unknown persons (one boy and

one girl). In dehatinalishi, details of property stolen were also

mentioned. According to dehainalishi, one mobile-set, one

Fixed Deposit Receipt (FDR), cash Rs.10,000/- and cloths etc.

were stolen by the assailants.

2.4 On the telephonic information, GRP-Champa

apprehended the appellants in Champa railway station and

information was sent to out-post Rampur, Korba, where the

offence was already registered. The Investigating Officer came

to Champa railway station and seized various articles from the

possession of the appellants. The seizure memo relating to

Shivshankar Shukla (A-1) is Ex.-P/8 and seizure memo

relating to Ku. T. Tejasvani (A-2) is Ex.-P/10. After the seizure,

they were arrested at railway station Champa.

2.5 The appellants were put for identification by Rohit

Gupta (PW-2) on 12.2.2008. The Test Identification Parade

(TIP) was conducted in District Jail, Korba. It was conducted

by Executive Magistrate, Paras Nath Saha (PW-19). According

to TIP memo, (Ex.-P/2), Rohit Gupta (PW-2) had rightly

identified both the appellants. The TIP memo is Ex.-P/2.

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2.6 Prior to this, the appellants were put for identification

by Manoj Mishra (PW-5) and Imtiyaz Ali (PW-6). These TIPs

(Ex.-P/6 & P/7) were conducted by Executive Magistrate,

Sudhir Khalko (PW-27). According to the TIP memos (Ex.-P/6

& P/7), these witnesses had also rightly identified the

appellants. Perhaps these identifications were on the pretext

that they had seen the appellants roaming in the locality of the

house of the deceased at the relevant time.

2.7 Seized articles were sent for their chemical examination

to Forensic Science Laboratory (FSL), Raipur, from where, a

report (Ex.-P/34) was received. According to the FSL report,

blood stains were found on the knife and cloths seized from

the possession of the appellants. These articles were sent for

further examination to Serologist Laboratory. The Serologist

Report is Ex.-P/38. According to the Serologist Report, human

blood was found over the pieces of farsh seized from the place

of occurrence and T-shirt of the appellant (A-1). However the

origin and blood group of the blood stains found over the

other articles including knife, dastana etc. could not be

determined on account of their disintegration.

2.8 The learned Sessions Judge mainly relied on the

evidence of Rohit Gupta (PW-2). It was held that Rohit Gupta

(PW-2) had seen the faces of the appellants at the time of the

incident and he also identified them on the ‘dock’ which was

duly corroborated by TIP (Ex.-P/2), therefore, it was proved

beyond all reasonable doubts that the appellants had

committed murder of the deceased. The Sessions Judge also

relied on the seizure of FDR of the deceased from the

possession of one of the appellant (A-2) taking that the stolen

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property belonging to the deceased was seized from her

possession while both were apprehended which also proves

their involvement. The appellants, thus, were convicted and

sentenced as above.

Hence these appeals.

(3) Learned counsel for the appellants have firstly contended that

omission of name of Shivshankar Shukla (A-1) in dehatinalishi and

dairy statement of Rohit (PW-2) was fatal to the prosecution. They

also contended that omission of names of the appellants in the FIR

was also fatal and for these reasons evidence of Rohit (PW-2)

becomes unreliable.

(4) The incident took place in between 1-1.30 p.m. to 3.45 p.m. On

the date of incident, Rohit (PW-2), son of the deceased, had gone to

the school. He was student of 9th standard. He came from school at

about 12.45 – 1.00 p.m. When he knocked the door, one young boy

(one of the assailants) opened the door. His face was covered by

handkerchief. According to the Rohit (PW-2), he could not identify

him. He was taken to the bed-room, where he saw a girl (other

assailant) who had also covered her face by handkerchief. In bed-

room his mother (deceased) was sitting on a chair. Her hands and

legs were tied and tape was affixed on the mouth. Eyes were also

closed by patti. Thereafter he (PW-2) was also tied with a chair.

According to him, assailants had closed his mouth by a tape and a

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patti was tied over his eyes. Thus, he was unable to see anyone.

Rohit (PW-2) in the second Para of his examination-in-chief has

clearly deposed that he had not seen the faces of the assailants at

that time. According to him, thereafter the assailants were asking for

keys of almirah and they were demanding jewelry etc. from his

mother. They were also threatening his mother. Then the assailants

took out the jewelry and money from the almirah. The money was

counted by the girl who said that it was 4,000/-. The assailants were

asking about more money from his mother. The assailants then got

the locker opened and they took out the paper relating to a joint

account from the locker. Rohit (PW-2) very specifically mentioned in

Para-3 that the boy wanted to keep the jewelry, but the girl was

saying not to keep them. However he could not see as to whether

the jewelry was kept by the girl or not. According to Rohit (PW-2),

he could see all these activities from the lower side of the patti when

he kept his head upward. Rohit (PW-2) then witnessed that his

mother (deceased) was assaulted by knife by the assailants. In Para-

5 of the examination-in-chief, he deposed that his father, Keshav

Prasad (PW-1) came to the house just after the assailants had gone.

His father came from the back side because the front door was

closed from inside and they were not in a position to open it. His

father removed the tape from his mouth and he also removed the

patti from his eyes. He immediately narrated the incident to his

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father saying that one girl and Chotu (A-1) had come there. He had

seen their faces while they were taking meals after removing the

cloths by which they had covered their faces. This is what Rohit

(PW-2) broadly deposed before the court in his examination-in-

chief.

(5) Rohit (PW-2) in his cross-examination, in first paragraph,

clearly admitted that Shivshankar (A-1), who was also known as

Chotu, was well known to him since his childhood. Members of

both their families are visiting to the house of each other and he was

calling Shivshankar (A-1) as bhaiya. A note has been mentioned in

Para-11 of the cross-examination that the defence counsel wanted to

show some photographs of A-1 and Rohit (PW-2) to show previous

acquaintancy, but the same was not permitted. Rohit (PW-2) further

deposed that he had identified Shivshankar (A-1) in TIP because he

had seen his face at the time of the incident. Rohit (PW-2) has

further admitted that when his father came to the house and untied

his hands, legs and removed his patti and tape, he narrated the

entire incident to his father (PW-1) saying that Shivshankar (A-1)

had come with a girl and had assaulted his mother. He very clearly

stated that after knowing all this, his father took his mother to the

hospital. Not only this he denied the suggestion of the defence that

he had not told the name of Shivshankar @ Chotu (A-1) to his father

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when he reached to the house and he also denied the suggestion

that at that time, he had only told one boy and one girl had come to

his house.

(6) The above version of Rohit (PW-2) would show that he had

identified Shivshankar @ Chotu (A-1) during the course of the

incident and as soon as his father came to the house, he had

immediately narrated the incident to him taking the name of

Shivshankar @ Chotu (A-1).

(7) Rohit (PW-2) further deposed in Para-12 that he had narrated

some part of incident to his father (PW-1) in the hospital and

thereafter he again narrated the entire incident to him when he was

taken to the house of Akhilesh Shukla. He very clearly deposed in

last line of Para-12 that he had told the name of Shivshankar @

Chotu (A-1) to his father in the hospital as also in the house of

Akhilesh Shukla.

(8) Diary statement (Ex.-D/2) of Rohit (PW-2) u/S 161 Cr.P.C.

was recorded on 18.1.2008. In diary statement, Rohit (PW-2) had not

taken the name of Shivshankar @ Chotu (A-1) and it was an

omission. It was also not mentioned in the diary statement that he

could see the faces of the assailants from the lower portion of the

patti by putting his head upward while the assailants were taking

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food. Rohit (PW-2) asserted to give these statements to the police

and he could not give any reasonable explanation for the omissions

of the above facts in his diary statement.

(9) Rohit (PW-2) was examined before the Magistrate u/S 164

Cr.P.C. on 21.1.2008. His statement recorded before the Magistrate

as Ex.-P/3. In the said statement also, he had not mentioned the

name of Shivshankar @ Chotu (A-1) and that he had seen the faces

of the assailants. It is in this background, we have to examine effect

of omission of the name of Shivshankar (A-1) in dehatinalishi (Ex.-

P/1) and in the FIR. If Rohit (PW-2), in fact, had seen the faces of the

assailants and could have identified Shivshankar (A-1) and had told

his name to his father (PW-1), his father must have mentioned the

name of Shivshankar (A-1) in dehatinalishi, Ex.-P/1, which was

recorded at 7.30 p.m. on the same day. Para-25 of the evidence of his

father, Keshav Prasad (PW-1), is very important in this regard, in

which he deposed in clear words that Rohit had stated the name of

the assailant to him and if the name of the assailant is not mentioned

in dehatinalishi (Ex.-P/1) and his diary statement (Ex.-D/1), he

cannot tell reason for that. That is to say that according to Rohit

(PW-2) and Keshav Prasad (PW-1), both the witnesses, Rohit had

identified one of the assailants namely Shivshankar (A-1) and he

had also seen the other assailant (girl) and had narrated the name of

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Shivshankar (A-1) to his father (PW-1), but we find from

dehatinalishi and FIR that even the name of Shivshankar (A-1) was

not mentioned in these documents and the dehatinalishi & FIR both

were registered against 2 unknown persons.

(10) We are of the view that if Shivshankar (A-1) was identified by

Rohit (PW-2), and Rohit (PW-2) had stated about him to his father,

in normal circumstances, his name must have been mentioned in the

above documents. Thus, in the above facts and circumstances of the

case, omission of name of Shivshankar @ Chotu (A-1) in dehatinalishi

and FIR was fatal to the prosecution.

(11) Learned counsel for the appellants have next contended that

the seizure(s) made from the possession of the appellants were false

and fabricated. This was vehemently opposed by the State counsel.

Now we appreciate the said argument on facts. According to the

prosecution, the appellants were caught in railway station Champa

and Rampur police was informed. Thereafter the Investigating

Officer, Maqbul Khan (PW-26) went from Rampur, Korba to

Champa and seized different properties from the possession of the

appellants. According to seizure memo, Ex.-P/8, certain cloths, 2

mobile-sets, knife, book and Rs.7,000/- were seized from the

possession of Shivshankar (A-1). Likewise cloths, knife, mobile-set

and Rs.3,830/- were seized from the possession of T. Tejasvani (A-2)

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vide seizure memo Ex.-P/10. These seizure memo(s) were prepared

at 5.50 – 6.00 p.m.

(12) S.N. Tiwari (PW-24) was Sub-Inspector in GRP, Champa.

According to him, he had received information from Rampur-

chowki on 17.1.2008 at 5.30 p.m. when Maqbul Khan (PW-26) told

him that a boy and girl, after committing murder, had fled away by

Vishakhapattnam Link Express. Thereafter the appellants, on

suspicion, were taken into custody in railway station Champa and

were kept in GRP Thana and information was sent to Rampur-

chowki.. The manner in which the appellants were searched after

watching their activities (See evidence of PW-24) and detained in

Champa railway station, would show that it must have taken at

least 30 to 45 minutes and information must have sent thereafter. It

is after all this, Maqbul Khan (PW-26) reached to GRP Thana,

Champa and prepared the 2 seizure memo(s) of the articles

allegedly seized from the possessions of the appellants. It is an

admitted position that Champa is at distance of about 50 Km from

Rampur, Korba and looking to the road condition, the police party

must have taken 1-1.30 hours for reaching to Champa and in that

situation, they could have reached Champa at about 7-7.30 p.m.

Thereafter, some time must have been consumed for completion of

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seizure and in these circumstances seizure(s) at 5.30 & 6.00 p.m. was

not possible.

(13) Learned State counsel has contended that the message

received from I..O. (PW-26) was recorded in Roznamchasana of the

GRP Champa vide Ex.-P/29 which would show that the said

message was received at 4.50 p.m. Even if we take that the message

was received at 4.50 p.m., it will not make much difference because

the entire evidence of S.N. Tiwari (PW-24) would show that much

time had elapsed in taking the appellants into custody. Therefore, in

all possibility seizure(s) at 5.30 & 6.00 p.m., being much closer in

proximity, was not possible.

(14) So far as the merits of the seizure(s) are concerned, the 2

witnesses of seizure(s) are Manoj Mishra (PW-5) and Imtiyaz Ali

(PW-6). Both these witnesses were residents of SADA Colony, out-

post Rampur, Korba. According to the prosecution these witnesses

had accompanied the police party from Korba to Champa. However

their evidence is totally contrary to it. According to the prosecution

they were with the police at Korba while the preliminary

investigation was going on, but these witnesses have denied all

these facts and have also denied the factum of seizure of various

articles from the possession of the appellants in GRP Champa. It is

for all these reasons, they were declared hostile and were allowed to

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be cross-examined by the Public Prosecutor. These witnesses were

also the witnesses of 2 TIPs (Ex.-P/6 & P/7). Their evidence on that

account and the effect thereof, we would discuss later on. Manoj

Mishra (PW-5) has deposed that on the fateful day at 6.00 p.m., he

came to know about commission of murder of the deceased. The

police called him in Chowki and took his signature on few

documents. Some documents were blank and some were written.

Though he admitted his signatures on the seizure memo(s), but the

outcome of his evidence remains that his signatures were taken in

out-post Rampur and not in GRP Champa.

(15) Imtiyaz Ali (PW-6) has also deposed in similar fashion.

According to him, he also knew about the incident in the evening.

He had gone to the place of occurrence, where he met Manoj Mishra

(PW-5), Sarfraj Ali (PW-25) and Chhedilal Sahu (PW-11) etc. At that

time, the deceased was already taken to the hospital. Later on K.P.

Gupta (PW-1) met him in the locality and asked him to go to

Rampur out-post saying that his wife has been murdered. There the

police people took his signatures on few blank documents.

Thereafter he returned to his house. He has also deposed about

TIPs. Thus, he neither deposed about seizure of the articles from the

possession of the appellants nor about the alleged seizure memo(s)

(Ex.-P/8 & P/10) in that behalf. These 2 witnesses (PW-5 & PW-6)

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were put to lengthy cross-examinations by the Public Prosecutor,

but nothing material could be elicited in favour of the prosecution.

(16) In appreciation of evidence of these 2 witnesses (PW-5 & PW-

6) it would appear that they had never gone to Champa along with

the police party, therefore, there was no question of any seizure

before them, which according to prosecution had taken place in

GRP Champa.

(17) I.O. (PW-26) has deposed about seizure of the properties from

the possession of the appellants vide seizure memo(s) Ex.-P/8 &

P/10. According to him, he had taken 3 private persons, including

the 2 witnesses (PW-5 & PW-6), in his Jeep from Korba to Champa,

whereas these persons had denied to go to Champa. That apart in

cross-examination, I.O. (PW-26) deposed in Para-23 that when he

reached to GRP Champa, the in-charge officer told him that 2

suspects have been detained in GRP Thana and articles were also

kept in Thana. In-charge told that those articles were seized from

the possession of the appellants. It is after this, the seizure memo(s)

(Ex.-P/8 & P/10) were prepared by him in GRP Thana itself. Thus

from the evidence of I.O. (PW-26), in Para-23, it is clear that he

himself had not seized the articles from the possession of the

appellants as has been shown in seizure memo(s). According to his

own evidence, the said articles were seized by GRP and it was

16


already kept at a place in police station. It is important to note that

except the alleged seizure memo(s), Ex.-P/8 & P/10, no other

seizure memo has been filed by the prosecution. Thus in the instant

case, the alleged articles were seized by I.O. (PW-26) which were

already lying in GRP Champa and not that he seized them from

actual physical possession of the appellants.

(18) S.N. Tiwari (PW-24) has clearly mentioned in the last para of

his cross-examination that Maqbul Khan (PW-26) had never

prepared any seizure memo in Champa GRP and he simply took the

properties and the suspects with him. Thus, the seizure(s) said to be

made from the possession of the appellants in GRP Champa are

doubtful.

(19) Learned counsel for the appellants have contended that there

is no evidence to show that the alleged articles were sealed after the

seizure. The contention appears to be correct as it is not mentioned

in the seizure memo(s) that the articles allegedly seized from the

appellants were sealed after the seizure. Even the I.O. (PW-26) did

not depose about sealing of the articles after the seizure.

(20) In Amarjit Singh Alias Babbu –Vs- State of Punjab, 1995 Supp

(3) SCC 217, the appellants was found in possession of a revolver

with two cartridges. The seizure was made on 27.6.1990 and the

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weapon was tested by expert on 28.8.1990. The police officer who

seized the weapon did not seal it on the spot, but handed over it to

another person. It was held that the non-sealing of the revolver on

the spot was a serious infirmity as the possibility of tampering could

not be ruled out. In the instant case, certain weapons were seized on

which blood stains were also found, therefore, to rule-out a

possibility of tampering it was necessary for the police to seal those

articles and to send them for expert examination with intact seal.

But nothing like that was done. Mr. Singh has drawn our attention

that these articles were sent for FSL examination after about 2

months. There is no evidence on record to show as to where these

articles were kept in between this period. That apart Constable,

Jawahar Singh, who took the articles to the FSL was not examined.

This was also an infirmity in the prosecution case.

(21) Learned counsel for the appellants have argued that why the

appellants would take FDR belonging to the deceased. According to

them, it was planted by the police to falsely implicate the appellants.

The evidence on record would show that the 2 appellants were

regular students of IInd Year Engineering Course in Bhilai Institute

of Technology (BIT), Durg. Thus, it was not a case in which it can be

said that they were not aware of the fact that the FDR on the name

of other person can never be encashed by them without taking her

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signature and without putting it to the Bank. Why an accused of

murder would take a risk of putting FDR of the deceased before the

Bank. This does not appear to be logical at all. Evidence of Rohit

(PW-2) would show that the assailants were very clever. It comes in

his evidence that cash and jewelry both had been taken out by the

boy from the almirah and the boy had given cash to the girl for

counting which came as Rs.4,000/-. The cash was taken and the

jewelry was left by them. That is to say that the assailants were

choosy and clever and even were not taking risk of taking jewelry.

How it can be held to be true that such assailants, who were not

taking the valuable articles which could have been identified, would

take the receipt of Fixed Deposit (FDR) belonging to the deceased. It

is difficult to believe that the appellants would take the FDR as has

been claimed by the prosecution. Moreover, we have disbelieved the

seizure of the articles from the possession of the appellants.

(22) The Sessions Judge has believed the ‘dock’ identification and

TIPs. State counsel has contended that even if the seizure of articles

from the possession of the appellants was not established, it would

make no difference because the appellants were duly identified on

‘dock’ by Rohit (PW-2) who had also identified them in TIP.

(23) In the instant case, the appellants were taken into custody on

17.1.2008 and the 2 TIPs (Ex.-P/6 & P/7) were conducted on

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22.1.2008. In the above TIPs, the appellants were put for

identification by Manoj Mishra (PW-5) and Imtiyaz Ali (PW-6).

According to the TIP memo(s) both these witnesses had identified

the appellants in District Jail, Korba. This TIP was conducted on the

pretext that the I.O. (PW-26) had information that these 2 witnesses

had seen the appellants roaming in the locality of the house of the

deceased at the relevant time. We note that these 2 witnesses (PW-5

& PW-6) were also the witnesses of seizure(s) (Ex.-P/8 & P/10).

That is to say that even according to the prosecution, they had seen

the appellants on 17.1.2008 when the seizure memo(s) were

allegedly prepared in GRP Champa. Thus even if we take all this to

be correct, the TIPs held on 22.1.2008 by same witnesses who were

the witnesses of seizure(s) was meaningless. We would not go into

further details regarding the TIPs and their effect because the above

2 witnesses (PW-5 & PW-6) have completely turned hostile. As we

have already said, they have neither supported the seizure(s) nor

the identification of the appellants in TIPs. Even they have not

identified the appellants on ‘dock’. According to their evidence,

these witnesses had seen the appellants for the first time while

examination before the Court. Thus the alleged evidence of

identification of the appellants by these 2 witnesses was neither

meaningful not favourable to the prosecution.

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(24) About the identification by Rohit (PW-2), learned counsel for

the appellants have argued that there was inordinate delay in

conducting the TIP. The contention is factually correct. The

appellants were taken into custody on 17.1.2008 and this TIP (Ex.-

P/2) was conducted on 12.2.2008. Thus there was a delay of 25 days

in conducting the TIP. The prosecution has not offered any

explanation regarding such inordinate delay.

(25) In State of Andhra Pradesh –Vs- Dr. M.V. Ramana Reddy and

others, AIR 1991 SC 1938, it was held that if delay in holding

identification parade was not explained, evidence of prosecution

regarding identity of accused was not absolutely reliable. In Rajesh

Govind Jagesha –Vs- State of Maharashtra & connected matters,

AIR 2000 SC 160, the identification parade was conducted after

about 5 weeks from the arrest of the accused and the explanation for

delay was not found trustworthy. It was held that in such situation,

a possibility of witnesses having seen the accused between date of

arrest and TIP could not be fully ruled out. The law has always

insisted on the quick identification so that a possibility of seeing the

accused by the witnesses is not there.

(26) It is a known law that after the arrest, the accused are sent on

remand for 15 days and they are produced before the Court for

further remand. If they are not brought ba-parda, everyone gets an

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opportunity to see their faces and a possibility that they were seen

by the person who ultimately identified them always remains. In the

instant case, there is time gap of 25 days between arrest and TIP,

and thus, a possibility of the accused being seen by the witness (PW-

2) cannot be fully ruled out.

(27) We have carefully seen TIP memo (Ex.-P/2). The contents of

the TIP memo would show that for Shivshankar (A-1) who was

aged about 20 years, the persons of age group of 24-33 years were

mixed. Likewise, for Ku. T. Tejasvani (A-2), who was aged about 19

years, women of the age group of 22 to 46 years were mixed. These

women were aged about 22, 33, 34, 35 & 46 years. All these women

were married women. Why not an educated boy reading in Class 9th

would identify one unmarried girl of 19 years among the 5 married

women, who in this locality normally put sindoor etc. on their head.

(28) Rohit (PW-2), though has deposed that he had seen the faces

of the assailants in which one was Shivshankar @ Chotu (A-1), but

we have found his this version to be suspicious, because the name of

Shivshankar (A-1) was not mentioned in dehatinalishi lodged by his

father (PW-1) to whom he allegedly stated his name. Name of

Shivshankar (A-1) was also not in the diary statement (Ex.-D/2) of

Rohit (PW-2). In his statement before the Magistrate (Ex.-/P/3),

Rohit has clearly deposed that he could not identify the girl because

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she had covered her face by a cloth. If Rohit (PW-2) did not mention

in his police statement that he had identified the assailants and he

also did not mention in his statement before the Magistrate that he

had identified Ku. T. Tejasvani (A-2), then how his TIP would

assume importance. According to Rohit (PW-2) his eyes were

covered by patti and the assailants had also covered their faces by

cloths. Though he claims that he had seen the assailants from the

lower portion of patti after keeping his head upward, but these facts

are omission in his statement recorded u/S 161 Cr.P.C. These are the

infirmities in the evidence of Rohit (PW-2), who had identified the

appellants in TIP and on ‘dock’.

(29) The case of the prosecution is mainly based upon the eye-

witness account of Rohit (PW-2). On appreciation of his evidence,

we find many omissions in his diary statement as also statement

made before the Magistrate. Two important omissions in the diary

statement are that he was able to see the assailants from the lower

portion of the patti after keeping his head upward and the assailants

had removed the cloths from their faces while they were taking food

and that he had identified that the boy was Shivshankar @ Chotu

(A-1) who was well known to him.

(30) In Subhash –Vs- State of Haryana, (2011) 2 SCC 715, it was

held that if a significant omission is made in statement of a witness

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recorded under S. 161 Cr.P.C., same may amount to a contradiction

and whether it so amounts is a question of fact in each case. The

above principle is based on the explanation to Section 162 Cr.P.C.

which says that an omission to state a fact or circumstance in the

statement referred to in sub-section (1) may amount to contradiction

if the same appears to be significant and otherwise relevant having

regard to the context in which such omission occurs and whether

any omission amounts to a contradiction in the particular context

shall be a question of fact.

(31) In Sampath Kumar –Vs- Inspector of Police, Krishnagiri, AIR

2012 SC 1249, it was held in Para-9 as follows:-

9. In Narayan Chetanram Chaudhary & Anr. –Vs-

State of Maharashtra, AIR 2000 SC 3352, this Court held that

while discrepancies in the testimony of a witness which may

be caused by memory lapses were acceptable, contradictions

in the testimony were not. This Court observed:

“Only such omissions which amount to

contradiction in material particulars can be used to

discredit the testimony of the witness. The omission in

the police statement by itself would not necessarily

render the testimony of witness unreliable. When the

version given by the witness in the Court is different in

material particulars from that disclosed in his earlier

statements, the case of the prosecution become doubtful

and not otherwise. Minor contradictions are bound to

appear in the statements of truthful witnesses as

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memory sometimes plays false and the sense of

observation differ from person to person”.

(32) In the instant case, as we have already held, Rohit (PW-2) has

made the above significant omissions in his diary statement (Ex.-

D/2) and statement before the Magistrate (Ex.-P/3). There is no

explanation of the above omissions. In appreciation of his entire

evidence, it does not appear that he, in fact, had seen the faces of the

assailants. Even if we ignore the omissions for the sake of argument

and take that he was able to see the faces of the assailants in the

manner he tried to depose before the Court and had identified one

of them (A-1), who was in visiting terms with his family being son

of old family friend of Keshav Prasad (PW-1), at least he should

have told his (A-1) name to his father who must have mentioned it

in the dehatinalishi. There are also significant omissions in the diary

statement (Ex.-D/1) of PW-1. Therefore, neither the evidence of

Rohit (PW-2) nor his father (PW-1) were wholly reliable so as to rest

the conviction of the appellants on the evidence of ‘dock’

identification by Rohit (PW-2).

(33) We are of the opinion that in the above facts and

circumstances of the case, the identification of the appellants being

assailants was not established beyond all reasonable doubts so as to

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hold them guilty of the offences punishable u/Ss 450, 394 r/w 397

and 302 IPC.

(34) For the foregoing reasons, we allow these appeals and set-

aside the conviction and sentences imposed against the appellants

u/Ss. 450, 394/397 & 302 IPC. The appellants are acquitted of the

charges framed against them. The appellants are continuously in jail

since 18.1.2008. They shall be released forthwith, if not required in

any other offence.

JUDGE JUDGE

vatti

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HEADLINES

1. Section 161 Cr.P.C. – Significant omission in the statement of a

witness recorded u/S 161 Cr.P.C., may amount to

contradiction and whether it so amounts is a question of fact

in each case.

1- /kkjk 161 n.M izfdz;k lafgrk & lk{kh ds /kkjk 161 n.M izfdz;k lafgrk ds

c;ku esa egRoiw.kZ yksi fojks/kkHkk”k dh Js.kh esa vkrk gS] ;g izR;sd izdj.k esa

rF; dk iz’u gS A

2. Delay in holding T.I.P. – Not explained – Evidence of

prosecution regarding identity of accused was not absolutely

reliable.

2- f’kuk[rh dk;Zokgh esa foyac & Li”Vhdj.k ugha & vfHk;qDr ds igpku lac/kh

vkfHk;kstu dk lk{; iwjh rjg fo’oluh; ugha gS A

B.O.

(R.K. Vatti) Private Secretary

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HIGH COURT OF CHHATTISGARH, BILASPUR

Division Bench: Hon’ble Shri Sunil Kumar Sinha & Hon’ble Shri Inder Singh Uboweja, J J


Ku. T. Tejasvani

Vs.

State of Chhattisgarh&

(Connected Cr.A. No. 470 of 2012)

JUDGMENT

For consideration

Judge /05/2014

HON’BLE SHRI JUSTICE INDER SINGH UBOWEJA

Judge /05/2014

Post for Judgment : /05/2014

Judge /05/2014

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