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Judgment
These appeals revolve around the murder of Virendra Singh @ Montu Verma which took place on 14.12.2006 in which in Criminal Appeal No.970/2013, it is a case of circumstantial evidence whereas in Criminal Appeal No.1225/2013, it is a case of eye-witness account. Both these criminal appeals are being disposed of by a common judgment, as they arise out of the judgment dated 9.4.2013 passed by the learned 8th Additional Sessions Judge, Jabalpur in ST No.144/2007.
Criminal Appeal No.970/2013 has been preferred by appellants Deepak Tiwari and Sukhendra Tiwari, whereas Criminal Appeal No.1225/2013 has been preferred by appellants Vikas Sethi and Ganesh Ram Choudhary. They are convicted and sentenced as under:
Name of accused Conviction u/s Sentence Fine (Rs.) Default clause
Deepak Tiwari 302 r/w 120-B of RI for life 50,000/- RI for six months
Sukhendra Tiwari 302 r/w 120-B of IPC B of IPC RI for life 50,000/- RI for six months
Vikas Sethi 302 of IPC 25(1-B)(a) of the Arms Act RI for life RI for two years 50,000/- 500/- RI for six months RI for one month
Ganesh Choudhary 302 r/w 120-B of IPC RI for life 50,000/- RI for six months
The prosecution case in short is that prior to 4 to 6 days from 14.12.2006, deceased Virendra Singh @ Montu Verma was looking depressed as he was not sleeping well and there was blackening around his eyes and he was restless also. On 14.12.2006 at around 2:30 PM when the deceased Virendra Singh started to leave for his shop ???Panchali Garments??? from his home, his father Ram Singh Verma (PW-1) asked him regarding his problem, the deceased Virendra Singh told his father that he is disturbed because he is receiving phone calls since last 4 to 6 days from some persons demanding a sum of Rs.10 lakhs with a threat that if the said demand is not met, they would kill him. When Ramsingh Verma (PW-1) asked him about the identity of these persons, then the deceased Virendra Singh @ Montu Verma told him that these persons are Sukhendra Tiwari, who was in jail and his cousin brother Deepak Tiwari, both of whom are residing at Ganga Nagar. After hearing this, Ramsingh Verma told his son Montu that they would lodge a report in the police station. Thereafter, before the FIR could be lodged or any action could be taken, when the deceased Virendra @ Montu went to his shop and Ramsingh Verma was busy in Pooja at Home, at that time, Ramsingh Verma received a call from his shop and was informed that at about 2:40 PM somebody has shot Virendra Singh and by the time Ramsingh Verma reached the shop, Virendra Singh was already taken to the hospital, and that is where he came to know that his son Virendra Singh died.
Thereafter, Marg Intimation (Ex.P-42) was recorded at the instance of PW/23 David Massey who was an employee in the shop. In the marg it is mentioned that on 14.12.2006 at around 2:30 PM when deceased Montu @ Virendra Singh was sitting in his shop, a man aged around 25-30 years came to his shop and shot him by a revolver and thereafter he ran away from the spot with co-accused, who was already standing outside the shop with a motorcycle. Thereafter, an FIR (Ex.P-52) was lodged at Police Station Omti, Jabalpur and after completing the investigation, the charge sheet was filed against as many as 17 accused persons, namely, Vikas Sethi, Ganesh Ram Choudhary, Deepak Tiwari, Sandeep @ Bantu Rajput, Sachin Koshta, Amit @ Bunti Rajput, Ratan Yadav, Manikant Kuril @ Rana, Amit Kumar Sonkar, Rajendra Pille, Akash @ Prakash Singh, Sukhendra Tiwari, Sushil Yadav, Vijay Yadav, Sumit Sethi @ Kake, Naveen Shukla and Hemant Singh, except the aforesaid four appellants/accused persons, namely, Vikas Sethi, Ganesh Ram Choudhary, Deepak Tiwari and Sukhendra Tiwari, all of them have been acquitted.
The learned VIII Additional Sessions Judge, Jabalpur after recording the evidence of the witnesses and appreciating the same, convicted and sentenced the appellants as mentioned in para 2 of this judgment.
Being aggrieved by the impugned judgment, finding and sentence, the instant appeals have been preferred by the present appellants.
Shri Mrigendra Singh, learned senior counsel for the appellants in Criminal Appeal No.970/2013 filed on behalf of accused Deepak Tiwari and Sukhendra Tiwari, has submitted that it is a case of circumstantial evidence so far as the these two appellants are concerned and although the allegation is of committing of murder of the deceased Virendra Singh, for his not yielding to the illegal demand of Rs.10 lakhs made by the appellants, still there is no evidence on record against the appellants to connect them with the alleged offence.
It is also submitted by the learned counsel for the appellants that the names of the present appellants did not find place in the FIR dated 14.12.2006 and though the father of the deceased has indeed named the present appellants and an effort has been made to corroborate the same with the testimony of Constable Bachanlal Yadav (PW/21) and PW/3 Ramesh Chandra Sharma, the Head Constable but the same are not reliable. In the statement recorded on 15.12.2006 under Section 161 of Cr.P.C. of Constable Bachcha Lal Yadav (PW-21), he has stated that from 7.12.2006 to 22.12.2006 he was on the Court duty when he saw accused Sukhendra Tiwari, accused Sushil Yadav and accused Vikas Sethi before the CJM Court. So far as the case of appellant Dipak Tiwari is concerned, learned counsel for the appellants has submitted that the testimony of Head Constable Ramesh Kumar Sharma (PW-3) assume importance because according to the prosecution case, this witness over heard conversation between appellant Sukhendra Tiwari and co-accused Akash Kariya. They also heard that the appellant Sukhendra Tiwari was shouting in the Court premises that ???Deepak ko bata diya hai wo sab kam mere bataye anusar karega???. Our attention is also drawn to the testimony of Sub Inspector Asif Iqbal (PW-29), who has stated that on 13.12.2006 he was entrusted with the duty of producing under-trial prisoners before the District Court, but the evidence of this witness has not been relied upon by the learned trial Court and has been disbelieved. Under these circumstances, it is submitted by the learned counsel for the appellants that the learned trial Judge has committed a manifest error in holding that the appellants were the persons, who conspired with other accused persons to murder Virendra Singh, the deceased, as their illegal demand was not met by him, despite the fact that the identity of the persons making the telephone calls have not been established by the prosecution.
So far as the appellants Vikas Sethi and Ganesh Choudhary in Criminal Appeal No.1225/2013 are concerned, a written argument has been submitted on behalf of the appellants, as none appeared for the appellants during the course of hearing. In this appeal, it is inter alia submitted that the appellants have been falsely implicated in the matter, as they were not properly identified by the witnesses. In this regard, the testimony of witness Sonu Sahu (PW-26) is important because he is the person who was present on the spot at the time when the incident took place. According to this witness PW-26, on 14.12.2006 when he was in the shop, a person came to his shop to purchase a cap and he recognizes this man as Vikas Sethi, who returned back within 15 minutes and fired at the deceased. The contention of these appellants is that the trial Court has erred in relying upon the testimony of this witness despite the fact that Sonu Sahu (PW-26) was not a witness to any test identification parade and he has identified the accused persons in the court only. It is also submitted that witnesses to the seizure of the weapon of offence, i.e. a country made pistol and motorcycle have been declared hostile hence no recovery can be proved against the accused Vikas Sethi and also that there are material discrepancies in the statements of the witnesses which give rise to a strong suspicion regarding the prosecution story and the involvement of the present appellant. Therefore, it is prayed that the appellants be acquitted from the charges leveled against them.
On the other hand, Shri Prakash Gupta, learned Panel Lawyer appearing on behalf of the respondent/State supported the impugned judgment mainly contending that the prosecution has established the guilt of the accused persons/appellants beyond reasonable doubt, hence the impugned judgment does not call for any interference.
We have heard the learned counsel for the parties and perused the record.
So far as death of the deceased Virendra Singh is concerned it was homicidal in nature as is proved by the PW/11 Dr.D.K. Sakalle, who has conducted the postmortem and has opined vide Ex.P/16 that the death was due to a gunshot injury to the heart, there was no exit wound, and the bullet was also recovered from the body.
Ramsingh Verma (PW-1), who is the father of the deceased and is a retired Assistant Engineer has deposed that on 14.12.2006 his son Virendra was looking distressed and when he asked about his problem, then the deceased told him that he is being threatened by Sukhendra Tiwari and Deepak Tiwari, who are demanding a sum of Rs.10 lakhs from him and are also threatening that if their demand is not fulfilled, they would kill him. It is further mentioned that at around 12 to 1 in the noon a call was also received by him from his son Montu on 14.12.2006 that the accused persons again made such demand and after sometime he was informed that his son Montu has been murdered. The prosecution could have corroborated this statement by adducing the evidence in the form of telephonic record of all the persons involved but no such attempt has been made to verify the statement of PW-1.
Ramesh Kumar Sharma (PW-3), who is a policeman has deposed that on 7.12.2006 he was on the Court duty when appellant Sukhendra Tiwari was brought in custody to attend the trial and he was talking to 4-5 persons and was also saying that ???Deepak ko bol diya hai kam ho jayega???. This witness has stated that he was posted at the Police Chowki on road, outside the court premises and after hearing the commotion he went inside but he says that he heard the aforesaid conversation at his Chowki. Apart from that, there is a clear omission of this statement from his statement made under Section 161 of Cr.P.C. with which he has been confronted. In the circumstances, the reliability of this witness is highly doubtful and cannot be trusted.
Similarly, PW/21 Bachhalal Yadav, Constable has been examined to prove the presence of accused Sushil Yadav, Vikas Sethi and Sukhendra Tiwari in the court premises. On examination of the court statement of this witness, we find that firstly, the presence of these three accused persons cannot lead to any presumption regarding the conspiracy and secondly, this witness says that prior to 07.12.2006, he had never seen accused Vikas Sethi and Sukhendra Tiwari, and after 07.12.2006, he is seeing these two accused persons for the first time in court itself, in this way it is difficult to believe that this witness remembers a very brief conversation which took place in a outside a court room between two strangers. In such circumstances, the testimony of this witness is highly unreliable and cannot be based to convict the appellants/accused persons.
In the case appellants Deepak Tiwari and Sukhendra Tiwari, the testimony of PW-1 Ram Singh Verma, PW-3 Ramesh Kumar Sharma and PW-21 Bachchalal Yadav is relevant if the evidence of these witnesses is examined minutely, then it cannot be said that the conspiracy theory as developed by the prosecution can be relied upon. In fact, from perusal of the evidence of these witnesses viz. PW/1, PW/3 and PW/21, it cannot be inferred that appellants Deepak Tiwari and Sukhendra Tiwari were also involved in the case as many threads which could connect these two appellants with the alleged offence are missing in the evidence and their involvement in the present case cannot be said to be positively established.
A bare perusal of the Dehati Nalishi (Ex.P-41) lodged by witness David Massey (PW-23), who is the employee of the deceased does not name of appellants Deepak Tiwari and Sukhendra Tiwari, whereas Ramsingh Verma (PW-1), father of the deceased has stated that his son Montu informed him that appellants Deepak Tiwari and Sukhendra Tiwari were demanding a sum of Rs.10 lakhs from him and this demand is being made by them through phone calls. In his Court statement PW-1 has stated that on the date of incident i.e. on 14.12.20106 at around 12 to 1 PM in the noon his son again received a phone call from the accused Deepak Tiwari and Sukhendra Tiwari, but this is clear omission from his statement recorded under Section 161 of Cr.P.C.
Apart from above, if the deceased was continuously being threatened by these two appellants on phone, then nothing had stopped the prosecution to produce the phone record of the deceased as well as the accused/appellants Deepak Tiwari and Sukhendra Tiwari, which could have connected the accused persons with the alleged offence.
So far as the police witnesses i.e. Ramesh Kumar Sharma (PW-3), Bachchalal Yadav (PW-21) and Asif Iqbal (PW-29) are concerned, their testimony does not inspire confidence, because all these witnesses, who are policemen have stated that after hearing pandemonium in the Court, they went to the place and heard Deepak Tiwari saying ???Kam ho gaya hai???. Considering this statement objectively, first of all, it is not possible that in such a state of confusion in the court premises, they heard such thing that the work has been completed, even otherwise, the statement ???Kam ho gaya hai??? cannot be interpreted to mean that a murder has been committed. As stated above, the police could easily have ascertained the connection of the appellants with other accused persons, and the deceased as well by verifying their phone record, but the same has not been done in the present case. In these circumstances, the appellants are entitled to the benefit of doubt and we have no hesitation to record a finding that the prosecution has failed to connect the appellants Deepak Tiwari and Sukhendra Tiwari with the alleged offence beyond reasonable doubt and the benefit of doubt has to be given to them. Therefore, they are entitled to acquittal.
So far as appellants Vikas Sethi and Ganesh Ram Choudhary in Criminal Appeal No.1225/2013 are concerned, they have been positively identified by the witnesses Mukesh Patel (PW-6) and Kishan Patel (PW-8), and as such the involvement of these two appellants in the present case is positively established. In the written arguments, it has been submitted that there was serious infirmity/irregularity committed while conducting the test identification parade, but in the cross examination of both these witnesses nothing substantial could be extracted to doubt their testimony. In this regard, the testimony of PW-4 D.K. Sharma, is important who was Tahsildar at the relevant time and before whom the test identification parade (TIP) took place and which is proved as Ex.P/8, where the appellants/accused persons Vikas Sethi and Ganesh Choudhary were identified by Mukesh Patel (PW-6) and Kishan Patel (PW-8). In his long cross examination, PW/4 D.K. Sharma has only substantiated the procedure adopted by him in the test identification parade.
Witnesses Mukesh Patel (PW-6) and Kishan Patel (PW-8) are independent witnesses and have witnessed the incident from outside the shop as they had come there to make purchase. These two witnesses have stated that they saw one man running out from the shop of the deceased and sat on a motorcycle which was being driven by another person and both of them ran away from the spot. These two witnesses have identified the appellant Vikas Sethi and Ganesh Choudhary in the test identification parade vide Ex.P/8. These witnesses have also been examined extensively by both the appellants Vikas and Ganesh in the Court and their testimony has remained unrebutted regarding the test identification.
David Massey (PW-23), who is also an eye-witness, has been declared hostile, but he has confirmed the murder of Montu Verma alias Virendra Singh and he has also admitted that he was on the counter of the shop when the incident took place. Even if he has been declared as hostile, it cannot be said that the other evidence adduced by the prosecution is rendered unreliable in the light of his statement. Otherwise also, this witness has supported the prosecution story as narrated by other witnesses that a man came in the shop, asked for a cap and at that time the other employees namely Sonu Panchali, Sachin, Ganesh and Surendra Tiwari were also in the shop. He has admitted that when the cap was being shown to the customer- accused Vikas Sethi who was posing as a customer, Virendra Singh Patel was also sitting with deceased Montu and by time Montu was shot, PW/5 Virendra Singh Patel had already left the shop which is a material corroboration of the prosecution story.
In the light of the deposition of PW/23 David Massey if we consider the statements of PW/5 Virendra Singh Patel, the presence of appellant Vikas Sethi on the spot becomes positively established. PW/5 Virendra Sigh Patel has also identified the appellant Vikas Sethi first time in the court. What is important is that this witness was not present on the spot i.e. the shop when the incident took place but was there just before the incident and saw the appellant coming into the shop which fact is also established by his statement u/s.161 of Cr.P.C. which is proved by the appellants in the crossexamination of this witness as Ex.D/3. The presence of this witness is also established in the shop and is corroborated by PW/23 David Massey in his deposition.
Sonu Sahu (PW-26) was also in the shop when the incident took place, according to this witness, on 14.12.2006 when he was in the shop, a person came to the shop to purchase a cap and he recognizes this man as Vikas Sethi, who returned back within 15 minutes and fired at the deceased. The trial Court has relied upon the testimony of this witness although an objection was raised that Sonu Sahu (PW-26) was not a witness to any test identification parade and he did not identify the accused persons, but, when the entire evidence is considered collectively, the testimony of this witness and the dock identification of appellant Vikas Sethi in court cannot be said to be doubtful. So far as the dock identification is concerned, the Hon''ble Apex Court in a recent judgment in the case of State of Rajasthan vs. Daud Khan, (2016) 2 SCC 607 has observed thus:
???42. It was contended by Daud Khan that the three chance witnesses, PW 7 Mahabir Singh, PW 23 Narender Singh and PW 24 Rishi Raj Shekhawat were all from out of town. As such, they could not have identified Daud Khan or Javed. It was further contended that no test identification parade (for short ???TIP???) was conducted and reliance could not have been placed only on their dock identification.
No such argument was raised by Daud Khan either in the trial court or in the High Court and we see no reason to permit such an argument being raised at this stage.
That apart, it was recently held in Ashok Debbarma v. State of Tripura that while the evidence of identification of an accused at a trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series of decisions. Earlier, a similar view was expressed in Manu Sharma v. State (NCT of Delhi).
In any event, there were two other witnesses to the shooting, namely, PW 11 Narendra Kumawat and PW 19 Suraj Mal who were local residents and knew Nand Singh and Daud Khan and could easily identify them.
Five witnesses have testified to the events that took place at Bathra Telecom on the night of 19-6-2004. We see no reason to disbelieve any of them, particularly since they have all given a consistent statement of the events. There are some minor discrepancies, which are bound to be there, such as the distance between the gun and Nand Singh but these do not take away from the substance of the case of the prosecution nor do they impinge on the credibility of the witnesses.
Conclusion
If the facts of the case are looked at individually and randomly, they might create a doubt. However, if they are considered collectively, there is no room for doubt. The facts collectively are:
(i) Nand Singh was shot with a gun.
(ii) The bullet extracted from the body of Nand Singh could have been fired from that gun, or to put it negatively, it cannot be said that the extracted bullet could not have been fired from the recovered gun. Nobody questioned this.
(iii) The gunshot was fired from a close distance, but there was no blackening of Nand Singh???s skin possibly due to his apparel. Nobody questioned this.
(iv) Nand Singh???s death was not immediate and he could have traversed a distance of about 70 (seventy) feet despite being shot. Nobody questioned this.
(v) The medical experts testified that spillage of blood from the entry wound is not inevitable and so it is possible that Nand Singh???s blood was not found between the place of the incident and the place where he collapsed. The blood was, however, found where Nand Singh collapsed.
(vi) There were five eyewitnesses to the incident of shooting and they gave consistent statements and identified Daud Khan as the person who shot Nand Singh. None of these findings and conclusions are perverse. On the contrary, they have been accepted by the trial court and the High Court. We see no reason to take a different view.???
(emphasis supplied)
In the facts and circumstances of the case, we see no reason to doubt the testimony of these witnesses when they identified the accused persons for the first time in court.
So far as the question of recovery of the gun and motorcycle used in the offence is concerned, the same is not duly corroborated by the documents on record. The seizure witnesses PW/15 Ravindra Yadav and PW/27 Surendra Tiwari have been declared hostile and have only accepted their signatures on the memos but not the recovery of articles but in this regard the testimony of PW/30 N.R. Gunawat, the I.O. assumes importance as he has duly proved the procedure adopted for recovery of articles and the memorandum of seizures. In this connection, it would be apt to refer to the Apex Court decision rendered in the case of Surendra Singh vs State of Haryana (2006) 9 SCC 247, para 6 and 7 of the same read as under:-
???6. So far the minor discrepancy, which has been pointed to us, we are of the view that it is not of such a nature, which creates infirmity in the prosecution???s case. It is a wellestablished principle of law that every discrepancy in the witness statement cannot be treated as fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity.
With regard to PWs 3 and 4 panch witnesses being turned hostile, this contention was also well considered by the trial court and the High Court. And both the courts held that their statements do not affect materially the prosecution story. PW 3 stated that pistol or cartridges or currency notes mentioned in Ext. PC were not recovered in his presence. He, however, admitted his signatures over Ext. PC and Ext. PD. PW 4 also stated that the pistol, cartridges or currency notes mentioned in Ext. PC were not recovered in his presence. He also admitted that Ext. PC and Ext. PD bear his signatures. Therefore, both the courts correctly held that Ext. PC and Ext. PD were recovered in the presence of PWs 3 and 4 who were panch witnesses.???
(emphasis supplied)
In the present case also the conduct of the witnesses is identical to that of the aforesaid judgement and can be applied to hold that these discrepancies as noted above cannot be treated as fatal to the case of prosecution.
Apart from that, the empty cartridge shell, which was found from the spot, was seized as Ex.P/19 and the same was sent for examination, as also the bullet found by Dr. D.K.Sakalle (PW-11) in the body of the deceased proved as Ex.P/17 during the post-mortem was also sent to the Forensic Science Laboratory, and the report of which (Ex.P-12) has been proved by Harnam Singh (PW-7). This aspect of the matter has also been cross examined from Investigation Officer N.R. Gundawat (PW-30), who in para 51 and 52 of his deposition has substantiated the recovery of gun/bullet/empty shell.
Thus, the presence of the present appellants on the spot has been positively established beyond reasonable doubt, not only by the eye-witness account but also from the corroborative evidence regarding the weapon of offence i.e. the country made pistol, empty shell recovered from the shop and the bullet seized from the body of the deceased.
In the result, the Cr.A. No.1225/2013 filed by the appellants Vikas Sethi and Ganesh Choudhary being devoid of merits is liable to be dismissed and accordingly it is dismissed, whereas Criminal Appeal No.970/2013 filed by appellants Deepak Tiwari and Sukhendra Tiwari is allowed, the impugned judgment, so far as it relates to the appellants Deepak Tiwari and Sukhendra Tiwari is set aside and the appellants are acquitted.
At present the appellants Deepak Tiwari and Sukhendra Tiwari of Cr.A. No.970/2013 are in jail, therefore they be released forthwith by issuing a release warrant without any delay, whereas appellant No.2 Ganesh Ram Choudhary of Cr.A. No.1225/2013 who is on bail, is directed to surrender before the trial Court without any delay within 4 weeks from today.