Jogi Sahu Vs. State - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 4) clearly stated that the death of the deceased was due to asphyxia as a result of strangulation of her neck resulting in the fracture of the larynx. the learned sessions judge after putting some questions to her was satisfied that she was in a position to understand the questions and answers. before the learned sessions judge she clearly supported the prosecution story that the appellant strangulated the deceased by standing on the bamboo funkanala on both sides after placing it on the throat of the deceased. she clearly stated that her father did not kill her mother and that krushna bhanja and dina padhan killed her. the law on the point is now well settled. if the court is satisfied that the evidence before the sessions court implicating the accused is true, that statement can be preferred to the state-men made before the committing court subsequently resiled and vice versa. but generally when two conflicting versions are given and on the evidence the witness stands as a condemned liar the court needs corroboration in support of the statement on which the conviction is to be sustained.g.k. misra, j.1. the appellant has been convicted under section 302 i.p.c. and sentenced to imprisonment for life. the prosecution case in short is that on 15-4-1965 sometime in the afternoon the appellant put a bamboo 'funkanala' on the throat of his wife (deceased), stood on either side of the funkanala with his two legs by holding a khunta (big wooden pole fixed to the ground) and as a result of this she died of strangulation. the defence is one of denial.2. the doctor (p.w. 4) clearly stated that the death of the deceased was due to asphyxia as a result of strangulation of her neck resulting in the fracture of the larynx. his evidence has not been dislodged in cross-examination and no attempt has been made before us to establish that the finding of the doctor is not warranted by the post-mortem report and examination. the learned sessions judge correctly held that the death was homicidal as a result of strangulation.3. the only question for consideration is whether the appellant is responsible for the death of the deceased. p.w. 7, the daughter of the appellant and the deceased, is the only eyewitness. she is 11 to 12 years old. the learned sessions judge after putting some questions to her was satisfied that she was in a position to understand the questions and answers. before the learned sessions judge she clearly supported the prosecution story that the appellant strangulated the deceased by standing on the bamboo funkanala on both sides after placing it on the throat of the deceased. before the committing court she however gave a completely different story. she clearly stated that her father did not kill her mother and that krushna bhanja and dina padhan killed her. it is to be noted that the admitted prosecution case is that a few days before this incident this krushna bhanja severely assaulted the deceased whereafter she was bed-ridden. the prosecution story is that as she continued ill for a fairly long time the appellant who is a beggar by profession wanted to get rid of her. in the committing court p.w. 7 also stated that her father did not kill her mother by placing a bamboo funkanala on her neck and standing over the same. in the sessions court she stated that her version in the committing court was untrue and that she made such a statement as a result of tutoring by krushna bhanja.4. we are thus confronted with a very difficult situation that a child witness who at one stage was the victim of tutoring has given two different versions, one before the learned sessions judge and another before the committing court which has been treated as evidence under section 288 cr. p. c. the law on the point is now well settled. though two different versions have been given it is open to a court of fact to examine both the versions. if the court is satisfied that the evidence before the sessions court implicating the accused is true, that statement can be preferred to the state-men made before the committing court subsequently resiled and vice versa. but generally when two conflicting versions are given and on the evidence the witness stands as a condemned liar the court needs corroboration in support of the statement on which the conviction is to be sustained. in this case we do not find any corroborating evidence to connect the appellant with the murder. we are not prepared to place reliance on her evidence in the sessions court without corroboration. not only she is a child witness, but on her own statement she was tutored at the earlier stage when she stated that her father was not the author of the murder. for the aforesaid reasons we place no reliance on the evidence of p.w. 7. there being no other evidence, the conviction cannot be maintained.5. in the result, the order of conviction and sentence passed by the learned sessions judge is set aside and the criminal appeal is allowed. the appellant be set at liberty forthwith.b.k. patra, j.6. i agree.