Man Singh vs State of Madhya Pradesh

G.D. Saxena, J.—This appeal u/s 374 of the Code of Criminal Procedure 1973 has been preferred by the sole accused-appellant against his impugned conviction and sentence recorded in Sessions Trial No. 10/1998 vide judgment dated 18/2/03 by the Second Additional Sessions Judge (Fast Track) Datia (M.P.), convicting the appellant for commission of murder of one Rameshwar, which is an offence punishable u/s 302 of I.P.C. and sentenced him to suffer imprisonment for life. The accused was further held guilty for possessing firearm belonging to deceased without any valid reason, which is an offence punishable u/s 25(1)(1-B) (a) of the Arms Act and punished him to suffer one year''s rigorous imprisonment. Both the sentences were directed to run concurrently. It is the case of the prosecution that on 29th October 1997 Rameshwar, accompanying accused Man Singh, Mathura, Hari carpenter (Badai) and Hari Ram went to Bhander. At that time, he worn golden chain and ring and was also keeping his licensed gun with him. After leaving the place alongwith the said companions, it was alleged that he did not return back. On 30th October 1997, at about 5 p.m., when brother of Rameshwar alongwith his nephew Heera Singh, as usual, went to lit a candle on the platform (Emory place of his father), he saw from just ten steps distance, dead body of his brother Rameshwar. On reaching he found that Rameshwar died of gunshot injury. The ornaments i.e., golden chain and ring including the gun which his brother were having were missing. Then he returned back and informed about the incident to Karan Singh, Mohan Singh, Net Singh and Chandrabhan Singh. At about 7 p.m., he lodged the F.I.R. (Ex.P/6) at the police Station Bhander. Police reached the spot and started investigation, The dead-body was sent for postmortem. After arrest of accused Man Singh, the gun belonged to deceased, which was looted after commission of crime, was seized from him. The gun and cartridges were examined by the Firearm Expert in the Forensic Science Laboratory Sagar. After investigation, the charge sheet was filed before the criminal court having jurisdiction. On committal, the Sessions Trial was put in motion. After recording the prosecution and defence evidence, accused-appellant Man Singh was convicted for the alleged offences. Accused Mathura was not arrested and during trial he was declared absconded. However, other accused Harisingh and Hariram were acquitted by the trial court of the same charges. Being aggrieved by his conviction and sentence, the appellant Man Singh has preferred the instant appeal.

The contention of the appellant/accused is that the judgment of the trial judge is against law and facts on record, hence, same is liable to be set aside. It is submitted that the trial Judge on the basis of recovery of the gun belonging to deceased made from appellant convicted him for the offence under the Arms Act whereas the prosecution utterly failed to prove the theory of committing loot of the said licensed gun from Rameshwar and subsequently his murder by gunshot injury using the same weapon. Moreover, the evidence of solitary eye-witness Atmaram does not inspire confidence. Rest circumstantial evidence led by the prosecution is also not reliable for resting conviction. It is further argued that Komal Singh, a witness to recovery did not prove the fact by evidence that the alleged gun was seized from accused Man Singh on the basis of sole discloser statement of the accused himself. Thus, the prosecution evidence did not establish the guilt against accused/appellant. On the basis of above arguments, it is prayed that the accused/appellant be acquitted of the charges framed against him.

Per contra, the learned Panel Lawyer appearing on behalf of the respondent/State contended that the prosecution succeeded to prove the guilt against the accused by statement of eye-witness Atmaram (PW-7) before whom, the accused killed the deceased by gunshot injury as well as medical and recovery of the alleged weapon. Complainant Hakim Singh (PW-6), Jagat Singh (PW-3), Karan Singh (PW-8), Mahendra Singh (PW-10), Mohan Singh (PW-12) and Jagdish Singh (PW-16) deposed that on 29th October 1997, deceased Rameshwar having his 12 bore gun alongwith accused Man Singh, Hariram and Hari carpenter (Badai) left his village Madhopur for Bhander and on next day on 30th October 1997, his dead body was seen at nearby platform of Raghavlal, his father. Thus, deceased Rameshwar was last seen with accused Man Singh and others named above. The gun belonged to deceased Rameshwar (weapon of crime) was recovered from the possession of accused. Other incriminating articles seized from the spot and gun with empty and four live cartridges were sent to Regional Forensic Science Laboratory for their chemical examination. The report of the Senior Scientific Officer-cum-Ballistic Expert confirmed vide his report dated 5th May 1997 that 12 Bore gun seized from accused Man Singh, which was marked as Article A-2 was in a workable condition and there was a sign of firing present in the said gun. The hole found in Baniyan also confirmed the gunshot firing caused by 12 bore gun as per the report of the Chemical Examiner/Forensic Science Officer. It is, thus, argued that the prosecution by adducing such evidence successfully proved the guilt of the accused and as such the learned trial Judge rightly convicted and sentenced him. Hence, it is prayed that by dismissing the appeal, the conviction and sentence of the accused be maintained.

The question for consideration in this appeal is whether the ingredients of offence of murder are proved by the testimonies of chance/eye-witness, medical evidence and recovery of weapon used in crime including the motive behind the incident and/or whether the learned trial Judge has committed any illegality in placing reliance on the said materials before reaching at the conclusion.

Heard the learned counsel appearing for the appellant and the learned Panel Lawyer for the respondent/State. Also perused the record of the trial court and the law applicable to the present case.

To prove the guilt against the accused, the prosecution examined Atmaram (PW-7) sole eye-witness of the incident. In his evidence, he deposed that on 29th October 1997 he went to Bhander market for purchasing. At the toll-house at Lahar road, all four accused alongwith deceased Rameshwar were seen present and accused Man Singh was having gun. At about 3-30 p.m., he left Bhander to village Chandrol. When he was going to village Gopikhiria via Chanchpur he saw just before sunset Rameshwar proceeding ahead and behind him accused Man Singh, Mathura, Hari carpenter (badai), and Hariram were going towards the side of agricultural field of Sukhai Yadav. All of a sudden, accused shot fired at Rameshwar and thereafter Rameshwer fell down on earth and died on the spot. Being afraid, he left the spot and went to Gopikhiria and joined festival of Hanuman Jayanti in village Godan. In night, he informed the incident to Sarpunch Jagdish.

Hakim Singh (PW-6) deposed that Rameshwar was his elder brother. On 29th October 1997 at about 10-11 a.m., his brother having his licensed 12 bore gun, alongwith Man Singh, Hari Ram and Hari Badai left his village Madhopura to Bhander and after that his brother did not return back to his village. At Bhander, he was last seen with Man Singh, Hariram and Hari Badai by Mahendra and Mohan. On next day, in the evening, he with his nephew Hari Singh went to lit the candle on the platform (Emory place of his father) when he saw at the distance of 10 steps in the field of Sukhai Yadav, the dead-body of his brother Rameshwar. On reaching he found an entry gunshot wound on back and exit wound on chest of the deceased. He also saw the red coloured plastic chapples belonging to accused Man Singh, which were lying on the spot. The gold chain and ring which his brother was, at last time, wearing and gun which his brother was possessing were missing. He returned back to village and informed the incident to Karan Singh, Net Singh, and Chandrapal Singh. Thereafter, he went to Police Station and lodged the F.I.R. Police reached the spot. The investigation was set in motion on next day. The memo of dead body (Ex.P/7) and spot map (Ex.P/2) were prepared. The police seized blood stained and simple soil, one pair of plastic Chappals and one black pent in his presence vide Ex.P/3. He also produced the license of the said missing gun issued to his brother which was seized by police vide seizure memo (Ex.P/8). Jagat Singh (PW-3), Karan Singh (PW-8), Mahendra Singh (PW-10), Mohan Singh (PW-12) deposed that on 29th October 1997 at about 10-10 a.m., Rameshwar alongwith Man Singh, Hari Ram and Hari Badai left his village Madhopura to Bhander. At Bhander he was last seen with Man Singh, Hariram and Hari Badai by Mahendra and Mohan. On next day in evening in the field of Sukhai Yadav, the dead-body of Rameshwar was found lying. Thus, these witnesses fully supported the evidence of complainant Hakim Singh.

Jagdish (PW-16) stated that near about three years ago, Rameshwar was killed. Prior to three-four days, he and Rameshwar came to Gwalior for repairing his (Rameshwar''s) 12 bore gun, which was repaired at Dabra. Thereafter, they returned back to Bhander and spent throughout night at Bhander. In the morning, they left village Rampura. At Rampura, they took meals. Thereafter Rameshwar came to his farm house and left that place for Moth (UP) keeping his gun at his farm house. On next day, deceased Rameshwar took his gun from his farm house and left for Madhopur. He also went to village Gonthan to participate in the Fair held on the occasion of Hanuman Jayanti. Second day morning witness Atmaram informed that accused Mansingh, Mathura, Hariram Hari Badai killed Rameshwar and after that looted his 12 bore gun, which incident was seen by he himself. Then, he went to village Madhopur to visit house of Rameshwar and also the spot. He saw that police was present on the spot but by that time dead-body was sent to Bhander. Narayan Das (PW-17) brother of Jagdish (PW-16) in his deposition fully supported the statement of Jagdish.

Dr. R.S. Dhengula (PW-9) deposed that on 31st October 1997 at about 8-30 a.m. in the Primary Health Centre, Bhander he conducted autopsy on the body of Rameshwar, son of Radhalal Yadav, resident of village Madhopur which was brought by constable No. 591 Ram Prakash of Police Station Bhander. He found following external injuries:-

(a) Wound of Entry on the back left side 1" ft. below right shoulder in between 9th and 10th rib at size of 2" x 2" cm, oval pose. Both the ribs injured and left lung liver an adjoining fracture.

(b) Wound of Exit on the chest right side 4" below right nipple front 2 1/2 x 2 1/2 pose. Externally. All fractures ribs due to injury. Injury is antemortem.

He opined that the cause of death was excessive haemorrhage from gunshot wound. Mode of death was homicidal within 48 hours since postmortem. Viscera and clothes after removing from the body were preserved and sealed and thereafter were handed over to concerned Police Constable. He admitted that no sign of consuming liquor appeared during postmortem. Postmortem report (Ex.P/9) is written and signed by him.

Yogesh Gupta (PW-18) SHO and Investigating Officer deposed that on 30th October 1997, he wrote the F.I.R. (Ex.P/6) at the oral instruction of Hakim Singh and registered crime against accused and in compliance of the provision u/s 157 Cr.P.C. sent copy of the FIR to concerning Magistrate through Constable Asharam. Thereafter he proceeded to spot and on next day morning he prepared the spot map (Ex.P/2) in presence and under direction of Hakim Singh, the complainant and Jagat Singh and seized vide seizure memo (Ex.P/3) the simple and blood soaked soil with other incriminating articles from the spot. He also inspected with witnesses the dead body and prepared the memo of dead-body (Ex.P/7) and sent the dead body by memo (Ex.P/9) to hospital for postmortem. On 2nd November 1997, he seized the licence issued in favour of the deceased of the alleged gun which the deceased kept with him at the time of incident and was found missing after incident by seizure memo (Ex.P/8). On 9th November 1997, he arrested the absconded accused Man Singh and Mathura by arrest memo (Ex.P/11) and seized the gun single barrel with four live cartridges and one fired cartridge by seizure memo (Ex.P/12). During investigation, he recorded the case diary statements of material witnesses. He arrested accused Hari Singh and Hariram on 2nd November 1997 by arrest memo (Ex.P/15). He sent all incriminating articles through S.P. Datia for examination to the State Forensic Science Laboratory Sagar and after examination he received Report (Ex.P/17) from the concerned Laboratory.

R.B. Agrawal (PW-1) Arms clerk posted in the office of the collector at Gwalior deposed that on 27th December 1997 on production of case diary of Crime No. 222/1997 alongwith sealed arm (one 12 bore single barrel gun), and after perusal and examination of the same, Shri M.B. Ojha A.D.M. Gwalior accorded the sanction to prosecute accused Mansingh u/s 39 of the Arms Act.

Now, coming back to the facts of the present case, Atmaram (PW-7) is said to be the only eye-witness to the occurrence. So, the fate of the case mainly rests on his evidence. Learned counsel appearing for the appellant submitted that the trial Court ought not to have convicted the appellant basing on the solitary evidence of Atmaram (PW-7). This contention has no force. In such cases, the evidence of such witness is to be weighed and not counted. Conviction can be based on the evidence of a solitary witness, if it is found to be reliable, clinching and beyond reproach.

At this stage, it would be useful to make a reference to the decision of the Hon. Apex court in the case of Takdir Samsuddin Sheikh Vs. State of Gujarat and Another, wherein it has been held:-

It is settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions/improvements/embellishments, etc. had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution should not be made (sic make) the court to reject the evidence in its entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses and the appellate court in natural course would not be justified in reviewing the same again without justifiable reasons. (Vide Kartik Malhar Vs. State of Bihar, .)

The complainant Shri Bharat Rajendraprasad Trivedi (PW 1) is the sole eyewitness. It has been submitted on behalf of the appellants that being a sole and an interested witness, his evidence cannot be relied upon without corroboration. The submissions advanced in this respect had been that Shri Bharat Rajendraprasad Trivedi (PW 1) being a partner in the firm would be the beneficiary in the transaction of land involved herein in case one partner had been eliminated and the other partner landed in jail. Such an argument is not acceptable for two reasons:

(i) While appreciating the evidence of witness considering him as the interested witness, the court must bear in mind that the term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason. (Vide Kartik Malhar v. State of Bihar 3 and Rakesh and Another Vs. State of Madhya Pradesh, ).

(ii) This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. [See Vadivelu Thevar Vs. The State of Madras, , Sunil Kumar Vs. The State Govt of NCT of Delhi, , Namdeo Vs. State of Maharashtra, and Bipin Kumar Mondal Vs. State of West Bengal, ].

In view of the above, the evidence of Atmaram (PW-7) has to be scrutinized carefully to know whether the same satisfies those tests. It transpires from the evidence of Atmaram (PW-7) that at the relevant time deceased Rameshwar with accused Man Singh and acquitted accused Hari Singh, Hari (Badai) and absconded accused Mathura was going in agricultural field of Sukhai Yadav in village Madhopura and accused Man Singh by firing a gunshot injury caused death of Rameshwar, who died on the spot. Hakim Singh (PW-6) and others as stated above saw the deceased Rameshwar having his 12 bore gun alongwith accused and acquitted accused leaving from village Madhopura to Bhander. The deceased was also seen alive at Bhander toll post with accused Man Singh and acquitted accused by witness Atmaram (PW-7). The evidence of sole witness Atmaram (PW-7) got support from other last seen witnesses. So, in our considered opinion his evidence is reliable, clinching and beyond reproach. Ocular testimony of solitary witness Atmaram (PW-7) has also been corroborated by the evidence of the doctor, who conducted autopsy over the dead body of the deceased and report of the Firearm Expert. So, it is established beyond all reasonable doubt that the deceased died because of gunshot injury fired by the appellant.

Hence, after carefully scrutinizing and appreciating the evidence of Atmaram (PW-7), we hold that there is no rhyme or reason to discard testimony of this witness and the learned trial court in this manner has not committed any mistake in relying upon his evidence to convict the appellant/accused. Resultantly, we confirm the conviction and sentence of accused-appellant Man Singh and dismiss his appeal.