Jaswinder Singh & Anr. vs The State of Madhya Pradesh

The appellants have filed this appeal under Section 374 (2) of the CrPC calling in question the legality and correctness of the judgment and

order dated 3/9/2004 passed by the Sessions Judge, Sessions Division Gwalior in Sessions Trial No. 109/2004, whereby each of the appellants

has been convicted under Section 302 read with 34 of the IPC and sentenced thereunder to suffer rigorous imprisonment for life with a fine of

Rs.1,000/- (One Thousand) in default of which to further suffer simple imprisonment for a period of three months.

The prosecution case as emerged out during the trial of the case, in brief, is as under:-

(2.1) On 16/12/2003 at about 2:30 pm, complainant Kulvinder Kaur (PW-9) accompanied by Balwinder Singh (PW-6) made an oral FIR to

Vedvrat (PW-10), the Station Incharge, at Police Station Mohna district Gwalior, to the effect that there were property and monetary disputes

between her mother Swarn Kaur (since deceased) and her brother/appellant Jaswinder Singh. In the noon time of the same day, her mother

convened a Panchayat (meeting) of members of their caste in the native village Baraipura to resolve the disputes. In the Panchayat, appellant

Jaswinder Singh took a strong objection that the disputes are between the mother and the son. Therefore, the panchayat had no role to play in

settling the disputes. Thereupon, the Panchayat dispersed. Thereafter, her mother was going on foot to Police Station Mohna to lodge a report

against appellant Jaswinder Singh. On the way, when she was on the other end of a culvert across the river Kanhar close to village Baraipura,

appellant Jaswinder Singh intentionally knocked her mother down with his speeding tractor bearing Registration No. MP07 HA 4223 (for short

the tractor"") with intention to murder her. At that time, his wife/appellant Lakhwinder Kaur was sitting on one of the mudguards of the tractor. No

sooner did her mother fall down on the ground, appellant Lakhwinder Kaur got down the tractor and dragged her onto the side of the road.

Thereafter, appellant Jaswinder Singh reversed the tractor and ran over her mother as a result she was crushed to death on the place of

occurrence. Sukhwinder Singh (not examined), Balwinder Singh (PW-6), Bhupendra Singh (not examined), Ranjeet Singh (PW-5) and Harbans

Singh (PW-6) witnessed the incident. Seeing them coming to the place of occurrence, both the appellants fled away on the tractor. Vedvrat

reduced her oral FIR into writing being Ex.P-20 and registered a case at Crime No. 194/2003 against the appellants under Section 302 read with

34 IPC.

(2.2) After recording the FIR, Vedvrat immediately reached the place of crime. There, he prepared Spot Map Ex.P-14 at the instance of the

complainant, Inquest Report of the deceased Ex.P-3 and seized articles as mentioned in Seizure Memo Ex.P-15 from the place of occurrence in

the presence of the witnesses. He also got the photographs, being Ex.P-1 to P-9, of the deceased''s dead body and scene of the crime clicked by

Photographer Prakash Sahu (PW-1). Meanwhile, Dr. Dinesh Sharma (PW-8), the Senior Scientific Officer of FSL mobile unit Gwalior, arrived at

the place of occurrence, and he prepared rough sketch of the spot Ex.P-18. Later, he gave a detailed report Ex.P-19 giving instructions in respect

of the investigation to be done in the case.

(2.3) Having completed all the procedural requirements at the scene of crime, Vedvrat sent the dead body of the deceased for postmortem

examination with an application Ex.P-11A to J.A. Hospital Gwalior, where Dr. Puranlal Gupta (PW-3) held the postmortem examination on the

dead body of the deceased, and he gave PM report Ex.P-11. He opined in the PM report that the deceased was crushed to death by a speeding

vehicle because of the visibility of marks of the tyres all over her dead body and her skull was broken into pieces.

(2.4) Vedvrat took up the investigation in the case. On 16/12/2003, he recorded the case diary statements of the complainant,and witnesses

namely Sukhwinder Singh and Bhupendra Singh and as per the record later, their statements were also got recorded under Section 164 CrPC. On

the same day, he arrested appellant Jaswinder Singh vide arrest memo Ex.P-23. On 17/12/2003, he interrogated appellant Jaswinder Singh in

respect of the tractor in the presence of the witnesses namely Balwinder Singh and Sukhwinder Singh and upon the information disclosed by him

with regard to the tractor, he recorded his disclosure statement Ex.P-17. At the time of seizure of the tractor, he and the aforestated witnesses

noticed blood stains on the driver side of a tyre of the tractor. Thereupon, he scratched blood stains portions of the tyre. He seized the tractor and

blood stains portions of the tyre vide Seizure Memo Ex.P-16 in their presence. After his transfer, his successor Jitendra Nagaich (PW-11) took

over the investigation. He recorded the case diary statements of some of the witnesses and sent the articles collected in the course of investigation

to the Regional Forensic Laboratory Gwalior vide letter Ex.P-24 for their forensic examination. The laboratory gave its report Ex.P-26.

(2.5) On 17/12/2003, Constable Badan Singh (PW-12) delivered a copy of the FIR to the court of Jurisdictional Magistrate and got the receipt

thereof, being Ex.P-25.

(2.6) Upon the completion of investigation, the police filed a charge-sheet against appellant Jaswinder Singh under Section 302 read with 34 IPC

declaring appellant Lakhwinder Kaur absconding in the court of Jurisdictional Magistrate who, in turn, committed the case against him to the court

of Sessions Judge Gwalior vide committal order dated 5/4/2004. On 14/4/2004, appellant Lakhwinder Kaur was arrested in the case. Thereafter,

a supplementary charge-sheet was filed against her before the Court of Jurisdictional Magistrate. Vide committal order dated 3/8/2004, her case

was also committed to the court of Sessions Judge Gwalior.

The learned Sessions Judge framed the charges against the appellants for the offence punishable under Section 302 read with 34 IPC. Each of

them denied the charge and opted for trial. Thereafter, the trial commenced. The prosecution examined in all twelve witnesses and exhibited in all

twenty six documents. Upon the conclusion of the prosecution evidence, the learned Sessions Judge put incriminating evidence and circumstances

appearing on record to the appellants for eliciting their explanation thereto as per the procedural mandate under Section 313 CrPC. They have

admitted the following facts that the deceased was the mother and the mother-in-law of appellants Jaswinder Singh and Lakhwinder Kaur

respectively and on 16/12/2003 she was crushed to death by a vehicle on a road by the side of the river Kanhar close to their native village

Baraipura. They took the defence that the deceased was run over by an unknown vehicle. They also took the defence that appellant Jaswinder

Singh had inherited a big holding of the agricultural lands following the death of his father being his only son. Prosecution witnesses namely Ranjeet

Singh (PW-5), Harbans Singh (PW-6) and Balwinder Singh (PW-7) are their close relatives. They want to usurp his agricultural lands, therefore,

they gave totally false evidence against them in the court. The appellants examined in their defence four witnesses namely Gurvachan Singh (DW-

1), Angrez Singh (DW-2), Baldev Singh (DW-3) and Gurpal Singh (DW-4) and exhibited nine documents Ex.D-1 to Ex.D-9.

The learned Sessions Judge, having examined critically and meticulously the oral as well as documentary evidence on record, has accepted the

prosecution evidence rejecting the defence evidence, and he held the appellants guilty for committing murder of the deceased by running a tractor

over her at the place of occurrence on 16/12/2003. Thereupon, the learned Sessions Judge convicted the appellants under Section 302 with the

aid of Section 34 IPC and sentenced them thereunder as noted in para 1 of this judgment.

Feeling aggrieved by the verdict handed down by the learned Sessions Judge, the appellants are before us in this appeal.

We have heard arguments exchanged by learned counsel for the parties at length. Gravamen of their arguments are given in the coming paras of

this judgment.

At the beginning of the arguments, learned counsel for the appellants fairly submitted that he does not want to challenge the finding of the learned

Sessions Judge on the point that the deceased was crushed to death by a vehicle. However, he contended that complainant Kulvinder Kaur turned

completely hostile and Manjeet Kaur (PW-4), the deceased''s daughter, has not supported the prosecution case on the point that there were

serious disputes between the appellants and the deceased over the properties. He further contended that Ranjeet Singh (PW-5) and Balwinder

Singh (PW-7) are the nephews of the deceased, and Harbans Singh (PW-6) is the brother of the deceased. They are concocted witnesses to the

alleged incident, and they have given the evidence with an ulterior motive to usurp appellant Jaswinder Singh''s agricultural lands. He further

contended that there are material discrepancies in their evidence. He further contended that the learned Sessions Judge has not appreciated the

evidence given by the defence witnesses in right perspective and disbelieved their evidence on flimsy grounds. After referring to para 48 of the

impugned judgment, he further contended that the learned Sessions Judge has held that appellant Lakhwinder Kaur had formed common intention

with appellant Jaswinder Singh in committing the murder of the deceased because she remained in abscondence in the case until she was granted

anticipatory bail by the High Court. Whereas, it is a well settled in law that mere abscondence of an accused is not a ground for conviction. On the

basis of the aforestated contentions, he submitted that the impugned judgment is based upon erroneous appreciation and misreading of evidence on

record, therefore, it be set aside acquitting the appellants of the charge under Section 302 read with 34 IPC.

In reply, learned counsel for the respondent/State submitted that in the course of investigation, the statement of the complainant was also got

recorded under Section 164 CrPC. After referring to the FIR lodged by the complainant Ex.P-20, her statements Ex.P-21 and Ex.P-22 recorded

under Sections 161 and 164 CrPC respectively, he submitted that she has categorically stated in the statement that the appellants had murdered

her mother/the deceased by running the tractor over her. Vedvrat (PW-10) has emphatically stated in his evidence that he truly recorded FIR

Ex.P-20 upon the dictation of the complainant. He submitted that the complainant is the real sister of appellant Jaswinder Singh, therefore, she

turned hostile with an ulterior motive to save the appellants from being punished for committing the murder of the deceased. Thus, the prosecution

case is not affected even a bit upon the complainant having turned hostile. He submitted that the deceased''s daughter Manjeet Kaur (PW-4) has

supported the prosecution case to the extent that there were disputes between her mother and her brother/appellant Jaswinder Singh with regard

to the payment of maintenance allowances by him to the deceased and her. He submitted that Chain Singh (PW-2) has stated in his evidence that

before the death of the deceased in the vehicular accident, on the self same day the deceased convened a panchayat in which she had complained

against the appellants that they are not giving her maintenance allowances as per the earlier decision of the panchayat, and he has also stated that

both the appellants were present in the panchayat being held on the day of incident. He submitted that prosecution witnesses namely Ranjeet Singh,

Harbans Singh and Balvant Singh have testified that they saw appellant Jaswinder Singh crushing the deceased to death by his tractor with the

active role of appellant Lakhwinder. He submitted that there is no material discrepancies in their cross-examination to disbelieve their evidence. He

submitted that there is documentary evidence on record that appellant Jaswinder Singh is the registered owner of the tractor which was involved in

the crime. He further submitted that Investigating Officer Vedvrat has deposed in his evidence that he noticed blood stains on the tyre of the tractor

which he had seized at the instance of appellant Jaswinder Singh. Thereupon, he scratched the blood stained portions of the tyre of the tractor,

which were sent by him for forensic examination. As per the FSL report Ex.P-26, on the scratches of tyre (D) stains of blood were found. He

submitted that said findings of the FSL report proves that the tractor owned by appellant Jaswinder Singh was involved in the crime. He submitted

that the learned Sessions Judge has disbelieved the defence evidence giving the convincing reasons therefor. He submitted that it is wrongly argued

by learned counsel for the appellant that the learned Sessions Judge has convicted appellant Lakhwinder Kaur only on the ground that she

remained absconded during the investigation. On the other hand, he has convicted her upon the hard evidence available on record against her.

Upon the aforestated submissions, he stated that the learned Sessions Judge has considered the evidence from all aspects in the impugned

judgment, therefore, no interference by this Court therewith is called for. The appeal being meritless and devoid of substance be dismissed

upholding the impugned judgment.

We have given our full consideration to the arguments raised before us and perused the impugned judgment and entire material available on

record.

As stated, learned counsel for the appellants had not challenged the finding recorded by the learned Sessions Judge on the point that the

deceased was run over by a vehicle as a result she suffered a instantaneous death. Nevertheless, for our own satisfaction, we shall proceed to

examine the correctness of the finding. Upon the perusal of the evidence of the eye-witnesses, medical evidence of Dr. Puranlal Gupta (PW-3),

who conducted the autopsy on the dead body of the deceased and gave Postmortem Report Ex.P-11, evidence of Investigating Officer Vedvrat,

Inquest Report Ex.P-13, photographs Ex.P-1 to P-9 of deceased''s dead body and the place of occurrence and admissions made by the

appellants in the examinations under Section 313 CrPC, we hold that the learned Sessions Judge has correctly recorded the finding.

Upon the perusal of the impugned judgment, we find that the learned Sessions Judge has held that the appellants committed the murder of the

deceased by running a tractor over her having formed the common intention, which is defined under Section 34 IPC. Before entering into the

merits of the case, we will refer to few illuminating case laws as to how the common intention can be drawn on the basis of the evidence available

on record.

(11.1) Long back in Mahbub Sah Vs. Emperor, AIR (32) 1945 Privy Council 118, the Privy Council has enunciated the concept and meaning of

common intention"" in the following words:-

Common intention within the meaning of Section 34 implies a prearranged plan. To convict the accused of an offence applying Section 34 it

should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure

direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case.

Care must be taken not to confuse same or similar intention with common intention; the partition which divides ""their bounds"" is often very thin;

nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within

the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.

The aforesaid enunciation has been followed by the Supreme Court in the cases of Mohan Singh and another Vs. State of Punjab, AIR 1963 SC

174, Ramashish Yadav and others Vs. State of Bihar, (1999) 8 SCC 555.

(11.2) In Girjashankar Vs. State of U.P., AIR 2004 SC 1808, the Supreme Court in paras 9 and 10 has interpreted common intention as follows.

9"". Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not

create a substantive offence. The distinctive feature of the Section is the element of participation in Action. The liability of one person for an offence

committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance

of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such

intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring

home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting

of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur

of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally

do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of

Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this

Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically

similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the

provision.

10"". The Section does not say ""the common intention of all"", nor does it say ""and intention common to all"". Under the provisions of Section 34 the

essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in

furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302

read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done

by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who

act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy

and others v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused

himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

11.3. In Krishna Govind Patil Vs. State of Maharashtra, AIR 1963 SC 1413, the Supreme Court has held that common intention may develop at

spot, but it must precede the offence.

11.4. In the cases Rajesh Govind Vs. State of Maharashtra, 1999 SCC Criminal 1452 and Sheoram Singh and another Vs. State of U.P., AIR

1972 SC 2555, the common intention can develop even during the course of an occurrence.

Now, we shall proceed to examine the evidence of the present case on record in the light of aforestated authorities.

At this stage, it is pertinent to mention that the trial against appellant Lakhwinder Kaur begun in the case when the trial was at the defence stage

in respect of appellant Jaswinder Singh. In this fact situation of the case, the prosecution witnesses, except Dinesh Sharma (PW-8), were examined

and cross-examined twice on behalf of the appellants before the trial Court.

Manjeet Kaur (PW-4) has deposed that the deceased was his mother and appellant Jaswinder Singh and Lakhwinder Kaur are her brother

and bhabhi. In the year 1997, her father expired. Some two to three months after his death, the appellants ousted them out of the dwelling house

wherein they lived jointly. Thereafter, the deceased and she lived in another house owned by her father in village Baraipura. Appellant Jaswinder

Singh had not taken care of their maintenance. Thereupon, her maternal uncle Harbans Singh, who is the resident of village Baraipura, would

sustain them. In the circumstances, her mother/the deceased convened the panchayat of members of their community. The panchayat gave a diktat

to appellant Jaswinder Singh to give Rs.5,000/- (Five Thousand) and two bags of wheat in every six months for the sustenance of her mother and

that of her. At the time of harvest of wheat crop, appellant Jaswinder Singh refused to comply with the diktat. Thereupon, her mother told him that

if he does not comply with the decree of the panchayat, then he should give her the agricultural lands of her share. At this, he threatened her mother

to kill, wielding a gun at her. She has also deposed that appellant Jaswinder Singh was against her education. Then, again her mother called for the

panchayat in which she apprised the members of panchayat about the noncompliance of the panchayat diktat by appellant Jaswinder Singh.

Thereupon, the panchayat directed him to give them Rs.27,000/- (Twenty Seven Thousand) every year and Rs.1,30,000/- (One lakh Thirty

Thousand) for her marriage. In 2003, her mother married her off. On the day of incident i.e. 16/12/2003, she was in her matrimonial home.

Kuldeep Kaur, the daughter of her maternal uncle, informed her on phone that both the appellants ran over her mother to death by a tractor. We

find that the defence had subjected her to gruelling and lengthy cross-examination, but there is nothing in her cross-examination to disbelieve her

evidence. Thus, we place implicit reliance upon her evidence. From her evidence, we hold that prior to the death of the deceased, there were

extremely strained relations between the appellants and the deceased over the non-payment of living expenses to her by the appellants.

Chain Singh (PW-2) has testified that he lives in village Heerapura which is two to three kilometres away from village Baraipura. He belongs to

the community of the deceased. On the day before the deceased suffered untimely death, she convened the panchayat of the members of their

caste in which eight to nine members were present. They were Sheetal Singh, Satnam Singh, Anokh Singh, Gurmeet Singh, Nirmal Singh, some

other persons and he himself. Both the appellants were also present. Before the panchayat, the deceased complained that the appellants are not

giving her maintenance allowances as per the earlier diktat of the panchayat, and she pleaded the panchayat to make an arrangement so that she

would upkeep herself. Having heard so, appellant Jaswinder Singh told the panchayat that the dispute is between the mother and the son and the

panchayat has no authority to meddle in their disputes. Thereupon, the members of the panchayat in one voice told the deceased that they are with

her and if she takes any legal action against the appellants, they would give evidence in her favour. They also asked her to lodge a police report in

this respect. In this regard, the members of the panchayat executed a document being Ex.P-10 which bears his signature from A to A. On the day

of incident, he was in Gwalior. The next day, when he reached his native village, he came to know that the deceased was run over by appellant

Jaswinder Singh with his tractor. At that time, appellant Lakhwinder Kaur was with him. We have meticulously perused the crossexamination of

this witness and we find that this witness has stood by his statement in all material particulars. His evidence is also corroborated in material

particulars by the evidence of Ranjeet Singh (PW-5), who was also present in the panchayat meeting with him. There is nothing in their cross-

examinations to disbelieve their evidence. We, therefore, hold their evidence wholly reliable.

From the evidence of Chain Singh and Ranjeet Singh, we hold that on the day of incident before the deceased was run over, there was a

meeting of the panchayat in which the appellants were also present.

Ranjeet Singh (PW-5) has also deposed that the deceased was his Bua. In village Baraipura, his dwelling house is just opposite to the present

residence of the deceased. After the meeting of the panchayat being held on the day of incident, he saw the deceased going to Police Station

Mohna on foot to lodge a report against the appellants for not giving her maintenance. The police station is removed by two to three kilometres

from village Baraipura. When the deceased was two to three hundred steps away from her house and on the other end of a culvert over river

Kanhar, he saw the appellants going on their tractor bearing Registration No. MP07 HA 4223 behind her. Appellant Jaswinder Singh was driving

the tractor and appellant Lakhwinder Kaur was sitting on the mudguard of the tractor. Appellant Jaswinder Singh dashed the tractor against the

deceased from behind as a result she fell to the ground. Thereafter, appellant Lakhwinder Kaur got down the tractor and dragged her aside.

Moments later, appellant Jaswinder Singh reversed the tractor and moved the big wheels of the tractor over her body in the prone position. This

entire incident was also seen by Harbans Singh (PW-6), Balwinder Singh (PW-7), Kulwinder Kaur (PW-9), Bhupendra Singh and Sukhwinder

Singh. Let it be noted that the last two witnesses are not examined by the prosecution. Thereupon, they all reached the place of occurrence

running. Seeing them coming, both the appellants ran away on the tractor in full speed. Harbans Singh (PW-6), who is the brother of the deceased,

and Balwinder Singh (PW-7), who is the son of the deceased''s sister, have in their examination-in-chief corroborated the evidence in material

particulars given by Ranjeet Singh.

The defence has challenged the truthfulness of the evidence of the aforestated three witnesses on the ground that they are relative witnesses and

the prosecution has not examined any independent witness in support of its case. It is well settled in law that relative witnesses will never shield a

real offender and implicate an innocent person. It is also settled law that if the evidence of a relative witness is cogent, credible and trustworthy,

evidence of such witness cannot be rejected merely on the ground of the relationship with the deceased. But, the only requirement is that the Court

should scrutinize the evidence of such witness with care as a rule of prudence and not a rule of law. Keeping in view the aforestated settled

positions of law, we have meticulously and critically examined the crossexaminations of all the aforestated three witnesses. We find that there are

some discrepancies and inconsistencies in their evidence here and there, which, in our considered opinion, had occurred due to lapses of memories

and observations of the incident by them from the distance of near about two to three hundred steps. Therefore, they do not affect the truthfulness

of their evidence. We have not found any evidence in their crossexaminations that any of them has an axe to grind by giving evidence against the

appellants. The appellants are also their close relatives, therefore, there is no possibility of their false implication by them. Harbans Singh (PW-6)

has stated in para 9 of his crossexamination that in village Baraipura the families of his three brothers, two cousins, the family of the appellants and

the deceased were residing at the time of incident. In view of the factual position of village Baraipura, no question of witnessing the incident by an

independent witness arises. In view of the aforesaid analysis of the evidence of all the three witnesses, we hold that their evidence is reliable and

trustworthy on the point how the deceased succumbed to death.

Kulwinder Kaur (PW-9) has stated in her evidence that the deceased was her mother. At the relevant time, she came to village Baraipura to

meet her from her matrimonial home. She had lodged FIR Ex.P-20 but she has not supported the prosecution case as recorded in the F.I.R. in her

examination-in-chief. On the other hand, she has stated that on the day of incident, her mother and she were going on foot to village Mohna for

getting the medicine for her mother. On the way, an unknown driver ran a tractor over her mother, as a result, she died on the spot. She went back

running to village Baraipura and reported the incident to Harbans Singh, Balwinder Singh, Bhupendra Singh and other persons. They informed the

police of Police Station Mohna. Thereupon, policemen come to the place of occurrence, and they got her to sign on Ex.P-20, the F.I.R. As such,

she had not lodged the F.I.R. Upon her said statement, the prosecution has declared her hostile and subjected her to gruelling and searching cross-

examination. She has admitted that a magisterial court at Gwalior recorded her statement under Section 164 CrPC. She has also admitted that she

gave the statement Ex.P-22 in which she had stated that appellant Jaswinder Singh knocked her mother down with his tractor, and when she fell

down to the ground, appellant Lakhwinder Kaur got down the tractor and dragged her body on the side of the road. Thereafter, appellant

Jaswinder Singh reversed the tractor and ran over the deceased. She has stated that she gave the aforesaid statements under the fear of the police.

However, she has not given any evidence to substantiate her said claims. Thus, she had made a bald statement in this respect. As per FIR Ex.P-20

and the statement of Balwinder Singh (PW-7), he was present with her at the time of lodgment of the FIR. He has specifically stated in para 3 of

his evidence that the police recorded FIR Ex.P-20 in his presence upon her oral statement. Vedvrat (PW-20) has recorded the FIR. He has stated

that he had truly recorded the FIR. As per the oral statement of Kulwinder Kaur, which she had made before him at Police Station Mohna. Upon

the careful reading of the evidence of Balvinder Singh and Vedvrat, we hold that their testimonies are wholly reliable. We also hold that Kulwinder

Kaur gave the complete lie that she had not lodged the F.I.R. Ex.P-20 and the police only got her to sign thereon and she made her statement

Ex.P-22 before the court under the fear of police. We have no hesitation to say that she lied through her teeth before the court.

Now, we will consider to what extent the prosecution case is affected because of the denial of Kulwinder Kaur in her evidence that she had

not lodged F.I.R. Ex.P-20. It is well settled in law that an FIR in a given case is not a substantive piece of evidence and it may be used for

omissions and contradictions purpose against the author of the FIR. Reference may be made in this respect to the decision reported in Dharma

Rama Bhagare Vs. The State of Maharashtra, (1973) 1 SCC 537 and Shiv Singh and another Vs. State of M.P., 2009 (4) MPHT 140 MP. We

have already held that Ranjeet Singh (PW-5), Harbans Singh (PW-6) and Balwinder Singh (PW-7) witnessed the incident and their evidence is

fully reliable. Therefore, in our confirmed opinion the complete hostility of Kulwinder Kaur does not affect the prosecution case even a bit.

Vedvrat (PW-10) had done substantive investigation in the case, and we have already mentioned in para sub paras of para 2 of this judgment

what steps he had taken in the course of investigation. In this para, we will discuss his evidence having material bearing on the case. He has stated

that upon the disclosure statement Ex.P-17 of appellant Jaswinder Singh, he seized a tractor bearing Registration No. MP07 HA 4223, which he

has found registered in his name. At the time of seizure of the tractor, he noticed that on the driver side of the tyre of the tractor, blood stains were

present. Thereupon, he scratched the blood stained portions of the tyre, which he seized along with the tractor vide Seizure Memo Ex.P-16 in the

presence of witnesses Balwinder Singh (PW-7) and Sukhwinder Singh (not examined). Balwinder Singh has completely corroborated his said

statement in para 4 of his evidence. There is nothing in their cross-examination to disbelieve their evidence. As per the evidence of Jitendra

Nagaich (PW-11), the successor Investigating Officer of the case, he sent the aforesaid articles with other articles for forensic examinations to the

Regional Forensic Science Laboratory Gwalior, which sent its report Ex.P-24. As per the report, the blood stains were found on the scratches of

the tyre. Although the report is silent on the point whether the blood stains belong to human blood, we may use the FSL report as a piece of

supporting evidence connecting the appellants with the death of the deceased as they have not explained in the examination under Section 313

CrPC as to how the blood stains were found on the tyre of their tractor.

Before arriving at the ultimate conclusion, we shall now proceed to scrutinize the defence evidence.

Gurvachan Singh (DW-1) has stated that appellant Jaswinder Singh is his neighbour in village Baraipura. He has also stated that in the noon

time of the day of incident, Kulwinder Kaur came to him weeping when he was taking his buffaloes to the village river for providing them water.

She told him that an unknown tractor driver ran her mother over and fled away. She had died. Thereupon, he went with her to the place of

occurrence. This witness has admitted in his cross-examination that in the evening of the day of incident, the police had arrested appellant

Jaswinder Singh before him in village Baraipura, at that time he had not stated to the police that the deceased was run over by an unknown tractor

driver and later he had not made a complaint to the Higher Police Officers that appellant Jaswinder Singh was falsely implicated in the case. For

the said reason, his statement is not believable at the first instance. We have held the evidence of prosecution witnesses namely Ranjeet Singh

(PW-5), Harbans Singh (PW-6) and Balwinder Singh (PW-7) fully trustworthy and reliable. Therefore, the evidence of this witness cannot be

relied upon.

Angrez Singh (DW-2) has stated that he ran a garage for repairs of vehicles in Gwalior at the relevant time. One day, appellant Jaswinder

Singh brought his tractor to his garage for repairs at about 11:30 am. On the same day, at about 3:00 pm, one unknown person of sikh community

came to his garage and told appellant Jaswinder Singh in his presence that someone has expired in his family. Thereupon, he had gone from his

garage. We find the said evidence of this witness is very vague and infirm, therefore, his evidence is totally unreliable.

Baldev Singh (DW-3) is the real brother of appellant Lakhwinder Kaur. He has stated in his evidence that he resides with his family in village

Banshkhedi which is 60 to 70 kilometres away from village Baraipura. On the day of incident, appellant Lakhwinder Kaur was in village

Banshkhedi with his family members. They heard that her mother-in-law/the deceased had died in an accident. Thereupon, she and he went to

village Baraipura. On the day of incident, he came back to his village in the evening. Chain Singh (PW-2) has stated that appellant Lakhwinder

Kaur was also present in the meeting of the panchayat, which was held on the day of incident for a short while before the death of the deceased.

We have held that his evidence is fully reliable. Ranjeet Singh (PW-5), Harbans Singh (PW-6) and Balwinder Singh (PW-7) are the eye-witnesses

to the incident and we have held their evidence trustworthy. Therefore, the evidence of this witness is wholly unreliable. We may say that he has

given the evidence just to save her sister/appellant Lakhwinder Kaur from being punished for the murder of her motherin- law/the deceased.

Gurpal Singh (DW-4) has stated that in his presence the deceased had executed a Will Ex.D-3 in favour of the sons of the appellants one year

before her death, whereby she had given the agricultural lands of her share to them. He has stated that the Will was executed in Collectorate

Gwalior. Learned Sessions Judge has analyzed in deep the evidence of this witness in para 47 of the impugned judgment, and he has held his

evidence wholly unreliable and Will Ex.D-3 as a forged document. The reasons given by him therefor are convincing. For the sake of arguments, if

his evidence is accepted, despite that his evidence has no bearing even remotely as to the cause of death of the deceased because a Will, as per

law, becomes effective after the death of testator/testatrix.

From the foregoing critical and close analysis of the evidence on record, we reach to the ultimate conclusion that it is proved by the

prosecution beyond all reasonable doubts that on the day of incident, appellant Jaswinder Singh knocked the deceased down with his tractor

intentionally, and when the deceased fell down to the ground, appellant Lakhwinder Kaur dragged her on the side of the road. Thereafter,

appellant Jaswinder Singh reversed the tractor and ran it over her thereby he murdered her. The said act of appellant Lakhwinder Kaur proves that

she had formed common intention with her husband/appellant-Jaswinder Singh before causing the death of the deceased by him by means of the

tractor running over her. Therefore, we hold that the learned Sessions Judge has rightly convicted and sentenced the appellants for the offence

punishable under Section 302 read with 34 IPC. Consequently, we dismiss this appeal being devoid of merits and substance upholding the

impugned judgment.

Vide the order dated 25/4/2012, this Court has suspended the jail sentence of appellant Lakhwinder Kaur. We cancel her bail-bonds and

direct her to surrender before the Sessions Court Gwalior within two months from the date of this judgment, failing which the Sessions Judge shall

take all necessary steps to secure her arrest and to send her to jail for undergoing the jail sentence and in case of her abscondence, he shall

proceed against her surety in accordance with law.