Suraj Singh & Anr vs State Of Madhya Pradesh

S.K. Awasthi, J

The appellants have preferred the present appeal against the judgment dated 6.12.2005 passed by Sixth Additional Sessions Judge (Fast Track Court),

Bhind in Sessions Trial No. 218/2004, by which the appellant Dhapai Singh @ Inder Singh @ Dalbeer Singh has been convicted of offence under

Section 302 of IPC and appellants Suraj Singh, Chhiddu Singh @ Bhupendra Singh and Rai Singh @ Dharmendra Singh have been convicted of the

offence under Section 302 read with Section 34 of IPC and sentenced to life imprisonment.

It is not disputed that the deceased Kok Singh and complainant Rasaal Singh were the accused in connection with murder of Prahlad Singh, who

was the relative of appellants Suraj Singh, Dhapai @ Inder Singh @ Dalbeer Singh. Kok Singh and Rasaal Singh were acquitted from the aforesaid

charge and there was enmity between both the parties.

The prosecution case, in short, is that on 12.12.2003 Rasaal Singh was going from Gwalior to Amayan by Bus No. MKH 7851. His nephew

Ranvijay Singh also accompanied him. When the bus reached Mau, complainant's elder brother Kok Singh also boarded the bus to go to Amayan. Kok

Singh was sitting on the last seat of the bus, whereas Rasaal Singh and Ranvijay Singh were sitting on the front seats. At about 4-30 PM, the bus

stopped at Lalpura for dropping the passengers, at that time Dhapai Singh @ Dalbeer equipped with 12 bore double barrel gun, Rai Singh, Chhiddu @

Bhupendra Singh having katta and Suraj Singh having stick entered inside the bus. Rai Singh, Chhiddu and Suraj Singh dragged out Kok Singh. When

Kok Singh objected then Suraj Singh told Dhapai to fire on him, at that point Dhapai fired on Kok Singh by 12 bore double barrel gun which hit on his

head and he fell down on the surface of the bus. Seeing this Rasaal Singh and Ranvijay Singh jumped off the bus and ran away towards the field.

After that accused persons fled away from the spot. Thereafter, Rasaal Singh and Ranvijay Singh came to the bus and they found that Kok Singh had

expired. At the time of incident, Tilak Singh was also present on the spot and he witnessed the incident. Complainant Rasaal Singh lodged the FIR

(ExP-9) at Police Station Amayan.

Investigating Officer Dashrath Singh, ASI (PW-16) went to the spot and prepared the lash panchanama (ExP-5) of deceased Kok Singh. He also

prepared the spot map (ExP-6) and sent the dead body of the deceased for postmortem. Blood stained and plain piece of clothes were recovered from

the bus. He also separately recovered the blood-stained clothe which was worn by the deceased and prepared recovery memo (ExP-10). Sub

Inspector Anar Singh Sikarwar arrested the accused persons and on the basis of disclosure statement of accused Chhiddu one 12 bore single barrel

katta with live cartridges was recovered from his house and one stick was recovered from the house of appellant Suraj Singh vide recovery memo

Ex.P-19. The seized properties were sent to the Forensic Science Laboratory for examination. After due investigation, the charge-sheet was filed

before the Judicial Magistrate First Class, Mehgaon, who committed the case to the Court of Sessions which is ultimately transferred to the Sixth

Additional Sessions Judge (Fast Track Court), Bhind.

The appellants abjured their guilt and took a plea that they are innocent and have been falsely implicated in the matter due to previous enmity. In

defence appellants have examined Ramkesh (Dw-1), Santram (DW-2), Baburam (DW-3), Jagat Singh (DW-4) and Harcharan (DW-5).

The trial Court after considering the evidence adduced by both the parties convicted and sentenced the appellants as mentioned above.

In order to bring home the guilt, the prosecution had examined as many as 18 witnesses, out of which Amar Singh (PW-6), Gajendra (PW-8),

Badshah (PW-11) and Kapoor Singh (PW-15) did not support the prosecution story and they have turned hostile.

We have heard the learned counsel for the parties at length and perused the impugned judgment and record.

First of all, it is to be considered as to whether death of deceased Kok Singh was homicidal in nature or not. In this connection, evidence of

Dr.R.K.Taneja  (PW-10) may be considered, who performed the postmortem on the body of deceased Kok Singh and gave the report (ExP-11).

According to Dr. R.K.Taneja, following injuries were found on the body of the deceased:-

(i) lacerated wound nearly 3 inch in diametre zigzag over right parietal area with broken parietal and frontal bone. Brain matter lacerated and 13

pellets of gram size were found from the wound. Skin over area lacerated.

(ii) One hole size ½ inch in diametre with inverted margin and blackening around wound were present on back of neck, direction of hole was upward

and right side.

It would be apparent from the postmortem report prepared by Dr. R.K.Taneja (PW-10) that two gun shot injuries were caused on the right

parietal region and neck of the deceased and the deceased Kok Singh had died due to the aforesaid injuries. Looking to the opinion of Dr. Taneja,

there is no reason to disbelieve that the death of the deceased Kok Singh was homicidal in nature and caused by fire arm.

In the present case, mainly the eye witnesses Rasaal Singh (PW-9), Ranvijay Singh (PW-13) and Tilak Singh (PW-17) were examined, who have

stated about the incident. According to them, on 12.12.2003 they were travelling by bus No. MKH 7851 towards Amayan. The deceased Kok Singh

was also sitting in theaforesaid bus. When the bus stopped at village Lalapura for dropping the passengers, accused Dhapai Singh @ Inder Singh @

Dalabeer brought his tractor in front of the bus and afterwards Suraj Singh, Rai Singh @ Dharmendra Singh, Dhapai @ Inder Singh @ Dalbeer Singh

and Chhiddu Singh @ Bhupendra Singh entered inside the bus. Suraj Singh was having a stick, whereas Rai Singh @ Dharmendra Singh, Chhiddu

Singh @ Bhupendra Singh and Dhapai @ Inder Singh @ Dalbeer Singh were equipped with 12 bore guns. They caught hold Kok Singh and then Rai

Singh and Suraj told Dhapai to fire on him. Thereafter, Dhapai fired on Kok Singh causing gun shot injuries on the right side of his skull. Seeing this,

they got afraid and ran away towards the field. In the cross-examination, they have given this explanation that the accused persons were equipped

with weapons while they were barehanded so they did not try to save Kok Singh. Accused Rai Singh and Chhiddu also fired on them, but none of the

fires hit them.

Bus Driver Amar Singh (PW-6) and Conductor Gajendra (PW-8) although accepted that one passenger died in their bus but they are unaware of

the fact that how did that passenger die. In the cross-examination conducted by Public Prosecutor, Amar Singh (PW-6) accepted that he was the

driver of bus No. MKH 7851 in which one person has been killed by gun shot. He also admitted that after the incident he went to the Police Station

and informed the police that one person is killed in the bus. Gajendra (PW-8) also accepted in para 7 of his cross-examination that one person has died

in the shootout in the bus. However, he could not see the person who fired on the deceased.

Dashrath Singh (PW-16) deposed that the dead body of Kok Singh Rajpoot was found in bus No. MKH 7851 from where he had collected the

blood stains. His statement also corroborated the statement of eye witnesses Rasaal Singh (PW-9), Ranvijay Singh (PW-13) and Tilak Singh (PW-17)

that Kok Singh was travelling in bus No. MKH 7851 and when the bus reached near village Lalapura shot was fired on him due to which he

succumbed.

The incident had taken place at about 16-30 hours on 12.12.2003 and the First Information Report was lodged at 17-25 hours. The distance of the

Police Station from the spot is about five kms. The FIR has been lodged by Rasaal Singh in which he narrated as to how the incident has taken place.

There are no much discrepancies in the testimony of Rasaal Singh and in the contents of FIR, which is lodged promptly.

Learned counsel for the appellants submitted that the so-called eye witnesses Rasaal Singh (PW-9), Ranvijay Singh (PW-13) and Tilak Singh

(PW-17) were not present at the time of incident and they are got up witnesses.

From the perusal of lash panchnama of deceased Kok Singh which was prepared at 18-20 hours on 12.12.2003, it appears that Rasaal Singh and

Ranvijay Singh were present when the said Panchanama was made and they also signed on it. Their statements under Section 161 of Cr.P.C. were

also recorded on the same day in which they clearly stated the date, place and manner of occurrence and by whom the occurrence is alleged to have

been committed. The motive of commission of offence has also been stated. Both of them have also witnessed the seizure memo (ExP-10) by which

the blood stains were recovered from the place of incident. Therefore, it cannot be accepted that these witnesses were not present at the time of

occurrence and they have reached on the spot after receiving the information about the incident and they are got up witnesses.

Learned defence counsel has also submitted that above eye witnesses are close relatives of deceased, therefore, they are interested witnesses, so

it would be unsafe to rely on them. In support of his contention, he placed reliance on the judgment passed by the Hon. Apex Court in the case of

Noushad @ Noushad Pasha and Others Vs. State of Karnataka (2015 (1) Crimes 32 (SC), wherein it was found that there were many

inconsistencies relating to the factum of occurrence, the presence of witnesses and the overact alleged against some of the accused, the Apex Court

was of the view that it will be highly unsafe to place reliance upon the version of witnesses who are close relatives of the deceased.

It is settled law that merely because the witnesses are relatives of the victim, their testimony may not be rejected only on this count. In this regard,

Hon. Apex Court in the case of Seeman Vs. State [(2005) 11 SCC 142] has held in the following manner:-

“4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or

both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case,

it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is

found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the

witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested sole witness. The prosecution's

non- production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of

the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence

which is required to be judged by the court to place credence on the statement.

In the context of above cited judgment, if the contention of learned counsel for the appellants is examined, then we have no hesitation to conclude

that the statements of Rasaal Singh (PW-9) and Ranvijay Singh (PW-13) have proved the prosecution version of the story. These witnesses clearly

narrated the incident and the role played by the appellants which found support from the postmortem report (ExP-11). Therefore, because these

witnesses are relatives of deceased Kok Singh, their testimony cannot be discarded.

Learned counsel for the appellants also submitted that the prosecution has not complied with the provisions of Section 157 of Cr.P.C. However, in

the case of State of UP Vs. Gokaran and others (AIR 1985 SC 131), the Hon. Apex Court has held that if the investigation is initiated soon after

lodging of the FIR, then non-compliance of Section 157 of Cr.P.C. is not fatal and the FIR cannot be said to be ante-timed.

Although there are some discrepancies appearing in the statements of Rasaal Singh and Ranvijay Singh regarding the sitting of Kok Singh in the

bus at the time of incident, but these discrepancies are natural and trivial in nature, on which no much importance could be given. It is also to be kept

in mind that these witnesses have been examined in the Court after five years of the incident. Moreso, when the murder of deceased Kok Sing, who

was elder brother of Rasaal Singh and father of Ranvijay Singh, has been committed in front of them then the possibility of their being emotional

cannot be ruled out and no inference can be drawn while appreciating their evidence. There is complete coherence with respect to the identity of the

accused-appellants who have committed the offence of murder of deceased Kok Singh. Therefore, we find that the statements of Rasaal Singh (PW-

9) and Ranvijay Singh (PW-13) are wholly reliable and their testimonies are credible and trustworthy. There is no legal impediment in placing reliance

upon the testimony of these witnesses even if they are close relatives of the deceased Kok Singh.

From the statement of the aforesaid eye witnesses, it is borne out that three accused persons namely, Suraj Singh, Rai Singh and Chhiddu caught

hold the deceased Kok Singh and one accused Dhapai @ Inder Singh @ Dalbeer Singh fired on him due to which he sustained injuries and

succumbed on the spot. Although Bus Driver and Conductor have not supported the prosecution story, however looking to their conduct this possibility

cannot be ruled out that they were won over by the accused persons, therefore, they have not supported the prosecution story. But this cannot be a

ground for disbelieving the statements of eye witnesses namely, Rasaal Singh (PW-9) and Ranvijay Singh (PW-13).

Tilak Singh (PW-17) also claims that he was present at the time of incident and in the FIR also his presence on the spot at the time of occurrence

is shown. However, despite being the brother-in-law (niece) of the deceased, neither he was present at the time of preparing lash Panchanama, nor he

came with the police on the spot after lodging the FIR. His statement was recorded on 24.12.2003 after twelve days of the incident and no explanation

has been offered by the prosecution regarding delay in recording his statement. He deposed in para 9 of his cross-examination that after the incident

he was sitting in the bus, whereas in his case diary statement it is mentioned that after the incident he went to his village. In these circumstances, it

cannot be accepted that Tilak Singh was present at the time of occurrence and he witnessed the incident.

The appellant Suraj Singh has taken a plea that at the time of incident he was at village Jarha situated in District Datia where he was reaping the

crop of jwar in his field. In this regard he has examined Ramkesh (DW-1), Santram (DW-2) and Baburam (DW-3). They specifically mentioned the

date when Suraj Singh was reaping crop. However, they could not know their date of birth, date of marriage or date of birth of their children. They do

not seem to be acquainted about the date of incident. Although Rasal Singh (PW-9) accepted in his cross-examination that Suraj Singh is having

agricultural land at village Jarha, District Datia, however, Suraj Singh has not filed any document to establish that in the year 2003 he bowed the crop

of jwar in his field. In these circumstances, the plea of alibi taken by the appellant Suraj Singh cannot be accepted.

Learned counsel for the appellant submitted that Rasaal Singh and Ranvijay Singh stated that at the time of incident three accused persons, Suraj

Singh, Rai Singh and Dhapai @ Inder Singh @ Dalbeer Singh were equipped with fire arm. However, the accused persons except Dhapai @ Inder

Singh @ Dalbeer Singh did not choose to shot any fire on the deceased which indicates that they were having no intention to participate in the

occurrence much less any common intention to murder the deceased Kok Singh. Therefore, these circumstances create doubt on the prosecution

story. It is also found proved that accused Suraj Singh, Rai Singh and Chhiddu Singh @ Bhupendra Singh were also present on the spot equipped with

arms and they caught hold the deceased Kok Singh, therefore, it is clear that all the appellants had participated in the offence and their common

intention is proved that they wanted to kill Kok Singh. Therefore, all the three appellants Suraj Singh, Rai Singh @ Dharmendra Singh and Chhiddu

Singh @ Bhupendra Singh are liable for offence of murder of Kok Singh under Section 34 of IPC.

Learned counsel for the appellants further submitted that Rasaal Singh (PW-9) deposed that accused Suraj Singh and Rai Singh uttered the words

â€Isko Sale Ko Goli Maarâ€, whereas Ranvijay Singh (PW-13) stated that Rai Singh, Suraj Singh and Chhiddu exhorted Dhapai “Sale Ko Goli

Maar†However, in the FIR, it is not specifically mentioned that the accused Rai Singh and Chhiddu exhorted the accused Dhapai and on exhortation

Dhapai fired from his gun on the deceased Kok Singh. Therefore, this exhortation is not enough proof of common intention on the part of Rai Singh

and Chhiddu. In this regard, he placed reliance on the judgment of Hon. Apex Court in the case of Mohd. Anwar Vs. State of Delhi (AIR 2000 SC

465), Idrish Bhai Daudbhai Vs. State of Gujarat (2005 SCC (Cri) 700.

Reverting the aforesaid argument, learned Public Prosecutor contended that eye witnesses Rasaal Singh (PW-9) and Ranvijay Singh (PW-13)

clearly deposed that co-accused Suraj Singh, Rai Singh and Chhiddu Singh caught hold Kok Singh and after exhortation the co-accused Dhapai @

Inder Singh @ Dalbeer Singh fired on Kok Singh and this fact also finds place in the FIR (Ex.P/9) which is lodged immediately after the incident.

Therefore, it cannot be said that only overtact is attributed to the appellants Rai Singh, Suraj Singh and Chhiddu when they only exhorted the co-

accused Dhapai @ Inder Singh @ Dalbeer Singh.

Now come to the motive. The prosecution has alleged that there was personal enmity of appellants with Kok Singh. Kok Singh committed murder

of Prahlad Singh, who was the brother-in-law of Suraj Singh and case was registered against Kok Singh. However, he was acquitted by the Court

from the aforesaid charge, due to this reason there was enmity between accused persons with the deceased Kok Singh.

We have given due consideration to the submissions made by learned counsel for the parties and from the perusal of the statements of Rasaal

Singh (PW-9) and Ranvijay Singh (PW-13), we found that they clearly justified that accused Suraj Singh, Rai Singh and Chhiddu were present on the

spot equipped with arms and they caught hold the deceased Kok Singh and Dhapai fired on him, due to which he died on the spot.

On the basis of aforesaid discussion, this Court is of the view that the trial Court has rightly convicted the appellants-accused for the offence under

Section 302 read with Section 34 of IPC. There is no reason to interfere in the judgment passed by the trial Court. Consequently, the appeal filed by

the appellants is hereby dismissed.

Appellant No.4-Dhapai @ Inder Singh @ Dalbeer Singh is in jail. Registry is directed to provide a copy of this judgment to the aforesaid appellant

through concerned jail authorities.

Appellant No.1-Suraj Singh, No.2-Chhiddu Singh @ Bhupendra Singh and appellant No.3-Rai Singh @ Dharmendra Singh are on bail after

suspension of their sentence by this Court. They are directed to immediately surrender before the trial Court to serve out their remaining jail sentence.

A copy of this judgment be sent to the trial Court for information and compliance.