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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: UDAI SINGH

DATE OF JUDGMENT:       01/12/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                 THE 1ST DAY OF DECEMBER 1997 Present:                Hon’ble Mr.Justice M.M.Punchhi                Hon’ble Mr.Justice M.Srinivasan Anoop G.Choudhary,  Prashant Kumar, Uma Nath Singh, Adv. for the appellant S.K. Bhattacharya,  Pradeep Kumar,  P.K.Jain, Advs.  for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: Srinivasan, J.      The state  of Madhya  Pradesh has preferred this appeal against the  judgment  of  the  High  Court  acquitting  the respondent by  reversing the  judgment of the III Additional Sessions Judge,   Behind  whereby  he  was  convicted  under Section 302  I.P.C. for committing a string of three murders and Section  307 I.P.C.  for attempting  to commit  a fourth murder.   Even here,  we are constrained to observe that the High Court has chosen to reject the natural evidence of eye- witnesses on  the basis  of unwarranted  conjectures of eye- witnesses  on  the  basis  of  unwarranted  conjectures  and surmises. 2.   The undisputed  facts are  that three women Ram Piyari, Mathura and  Bhagwati were  shot dead  and Deya  daughter of Mathura got  injured by gun shots in the night of 6.4.79 and the  respondent  remained  absconding  till  he  surrendered himself on  25.10.81.   The parties  belong to  the  village Kakora within the jurisdiction of Lahar Police Station which is at a distance of about nine kilo metres.  The case of the prosecution is  supported by the evidence of PWs 1 to 3, eye witnesses for  the murder  of Ram  Piyari, PWs  5 and 6, eye witnesses for  the murder  of Mathura  and PW 4, eye witness for the  murder of Bhagwati. PW 6 is the daughter of Mathura and she  herself  received  injuries  by  gun  shots.    The occurrence was  between 8  and 9  P.M. on  6.4.79 and it was reported in  the police  station around 10.00 A.M., the next day. 3.   According to  PW 1  the  husband  of  Ra,  Piyari,  the respondent and  his brother Bachoo Singh came with two other persons, when  himself and  his younger brother Devi Lal (PW

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2) were sitting on the Chabutra after having dinner at about 8 O’clock  in front  of  their  house.  The  respondent  was carrying a  Mark-3 gun  and his  brother was having a lathi. One of the other persons had a mouser gun and the fourth had a lathi.   The  respondent fired  at PW  1 and PW 2 twice by missed them.   Both jumped over the wall of the Chabutra and hid behind  the same.   On hearing the sound of the gun-shot Ram Piyari  came out  of the  house and was going back after shutting the  door when  the respondent fired one shot which hit her.    She  fell  down  dead  inside  the  door.    The respondent and  his companions  went towards house of Chhote PW 4.  PW 2  has also spoken on the same lines as PW 1. PW 3 is the  wife of PW 2.  According to her she was working with Ram Piyari  in the  kitchen and  on hearing  the  sound  Ram Piyari came  out and she was hot dead when she was trying to go back  after closing  the door.  The evidence given by the aforesaid three  witnesses has  to been  shaken in the cross examination. Their  presence at  the place  of occurrence is quite natural  and the  slight differences  in the narration are negligible.   PW  11 Dr.  Srivastava has  described  the injury on the body   of Ram Piyari as follows:      "There was  a wound  in the back of      Ram  Piyari   and  wound   of   gun      cartridge   entrance    and    that      cartridge breaking Diaphram, liver,      pericardium, heart  and  left  lung      and  breaking  6th  and  7th  lungs      (paslis) came  out from  the  chest      and there  was mark of one external      injury (wound)."      He has  deposed that  the death  was caused by the said anti morterm injury and the bleeding from the said injury as ell s  shock.   The trial  court has  accepted the aforesaid evidence and  concluded that  Ram Piyari was murdered by the respondent. 4.   The High  Court has, however, adopted a curious process of reasoning.   The  High Court has observed that ’defection of the  fire was  below to  upwards’ and  ’any  male  killer shooting from a standing posture at a female victim - former presumably taller  than the latter - could not have the shot victim from  below upwards’. We are unable to appreciate how the court could mebark upon such a kind of imaginary surmise without any  foundation therefor  in the  evidence.   it  is pointed out  by the  High Court itself that PW 1 and PW 2 do not speak  about the posture taken by the respondent to fire at Ram  Piyari. We find that no question has been put to any witness by  the cross examining counsel on that matter.  The doctor has  not also been questioned about ’defection of the fire’.   Nothing has also been brought on record whether the victim  was   shorter  than   the  respondent.     In   such circumstances there  was  no  justification  or  warrant  to invoke  the  aid  of  such  unsustainable  presumptions  and formulate a theory on the strength thereof. 5.   Another reason  given by  the High Court is that in the First  Information  Report  PW  1  has  not  said  that  the respondent fired  the first two shots.  it is pointed out by the  learned   counsel  for  the  appellant  that  the  said reasoning is factually erroneous as the F.I.R. contains such a statement.   The High Court has also observed that if PW 1 and PW  2 had  hidden themselves  behind the  Chabutra, they could not  have seen  Ram Piyari  walking from  the  kitchen inside the  house to  the door.  It is further observed that the two  witnesses would  immediately have  run  away  under cover of  the Chabutra  as there  was a  risk of their being picked up  by the respondent if he came around the Chabutra.

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Comments have  also been  made by the High Court that PW 12, the Investigation  Officer failed  to seize  the door of the house to  demonstrate that  there was  enough space  for the passing of a bullet or that there was any damage to the door by gun  shot.   It has also been observed that PW 12 has not stated on  oath whether  he had  collected empty  cartridges near the house.  None of the comments made by the High court is appropriate. 6.   The reasoning  of the  High Court  is palpably wrong as the evidence  of PWs  1 to 3 presents a clear picture of the occurrence.   In the  absence of any suggestion in the cross examination of  the witnesses,  the   evidence  can  not  be rejected as  not acceptable.   The circumstances referred to by the  High Court  do not impinge upon the acceptability of the version  given by  PWs 1  to 3. We do not agree with the reasoning of the High Court. 7.   The second incident is that of killing of Mathura, wife of PW  5 and  mother of  Pw 6.   The  injury on  her body is described by Pw 11 as follows:-      "the woman  Mathurabai had wound on      the left  side of her arm and below      that was  gun would  of entrance in      her chest  which was  deep in  left      plura,     lungs,     peraicardium,      medistenum and  passing through the      hear that cartridge stopped between      the heart  and below the fifth lung      bone from where it was taken out."      Even PW 1 has stated that after shooting down his wife, the respondent  and his companions went towards the house of Chhote (PW  5).   The evidence  of PW  6 is  very clear  and unimpeachable.   She was  by the side of her mother when the respondent fired.  She herself got injured by two gun shorts though she  escaped death.   She  had  seen  the  respondent firing from  a close distance.  In the chief examination she has stated that the moon light was just then coming out when the incident  occurred.   In the  cross examination  she had stated that  there was  no moon  light and  torch light  was there.  Much is made of this to disbelieve her version.  The trial court  has described  it as  a mistake and opined that nothing turns  on it.   The  High Court  has, however, given great  importance  to  the  same  in  order  to  reject  her evidence.   We are  unable to agree with the High Court.  In fat, there is no discrepancy between the two statements.  In the chief  examination she  has only  stated that moon light was just  coming out.  In the cross examination the emphasis was on  the sufficiency  of the  light at  that place.    In answer to  such a  question she  had replied  that there was torch light and no moon light.  It can not therefore be said that her  entire deposition  is not credit worthy. A perusal for the  evidence alongwith that of her father PW 5 taken in conjuction with  the fact that PW 6 got injured by gun shots shows that  it was  the respondent who shot dead Mathura and injured Pw 6.  The High Court has commented upon the matters which are  not in evidence.  The reasoning of the High Court borders on perversity. 8.   The next  incident is the killing of Bhagwati,  wife of PW 4.  the victim  was the aunt of the respondent.  it is in evidence that she left her husband and began to live with PW 4 and therefore the respondent and the members of his Family were entmical to her.  According to the evidence of PW 4 the respondent fired twice.  Once shot hit hor hear the eyes and the second  hit her behind the ear and head.  It is also his deposition that  the brother  of the respondent hit her with lathi on  the head.   The injury on her body is described by

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PW 11 as follows:      "On the  forehead of woman Bhagwati      one wound  of entrance  of the  gun      firing was  at the  upside of  Nose      which breaking  temporal  bone  and      marking an  outgoing wound  on  the      face came out.  Apart from this one      more gun  wound was  found  on  the      left side of head which was only to      the depth  of skin  and it appeared      that the  gun fire  wont out  whole      touching that part of the body".      Here again,  the doctor  has described the death as due to murder.   No  doubt, the  only witnesses  who has  spoken about the killing of Bhagwati is PW 4 but we do not find any reason to  reject his  evidence as  unworthy of  acceptance. The High  court thus rejected the evidence of Pw 4 as a made up story and  implausible as the respondent did not go after him when  he did  himself behind  the wall and took shelter. Comment is made by the High Court hat there is no acceptable evidence that  any cartridges  or spent  bullets were  found inside the  house.  We do not find any justification for the observation made  by the  High Court that the sole testimony of PW 4 ’most unconvincing’. At that time of the high in the village it  is not  possible  to  expert  other  independent persons to  be at  the place  of occurrence  to witness  the same. 9.   A general  comment is  made by  learned counsel for the respondent that  the evidence  adduced by the prosecution is perfunctory and  slip shod.  It is also argued that no other independent witnesses  have been  examined in support of the prosecution and  all the witnesses are interested.  There is no merit in either o the contentions.  The depositions given by the  witnesses are  cogent and  natural .  As pointed out already the  occurrence was between 8 to 9 P.M. in the night and one  can not  expect other  villagers to  have assembled already in  the houses of the deceased.  There is nothing on record to  show that the witnesses are in any way interested in falsely  implicating the  accused.    The attempt made by the respondent  by examining  DW 1  is  to  show  that  some scoundrels had  come  to  the  village  and  shot  dead  the aforesaid women  and fled  away.   There  is  absolutely  no support for the said version.  If there was any truth in the same, there  is no  explanation for  the respondent  and his brother remaining  absconding for  quite a  long time.  DW 1 has stated  in the  Chief examination that the respondent is his nephew.   In the cross examination he has deposed to the contrary that the respondent is not of his caste and that he is a  Harijan.  It is also argued that the First Information Report was given to the Police 14 hours after the occurrence and there  is no  explanation for such a delay.  There is no merit in  this contention.   The occurrence was in the night time and  the police  station was  about 9  kilometers away. There were  three deaths and the killers had deadly weapons. The villagers  would not  have dared  to go out in the night time.   In the circumstances of the case, it can not be said that there  was undue  delay on the part of the complainants to inform the police. It should be noted that the respondent and his  brother were  named in  the F.I.R. The respondent’s brother were  named in  the F.I.R.  The respondent’s brother is stated  to have  died in  an encounter.   The  other  two unnamed persons  were not  traceable.   On Balwant Singh was charged alongwith  the respondent, by the prosecution but he was later discharged. 10.  We have  no doubt  whatever that the evidence on record

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is sufficient  to  prove  beyond  doubt  the  guilt  of  the respondent.   He is not only quilty of murder of three women but also  of attempt to kill PW.6.  Hence, the conviction of the respondent  by the  trial court  is correct and the High Court is  in the  error in  setting aside  the  same.    The sentences awarded  by the  trial court  are appropriate.  In the result,  the judgment  of the  High Court  is set aside. The judgement  and order  of the  IIIrd Additional  Sessions Judge, Behind  (M.P.) are restored.  The bail granted to the respondent stands cancelled.  He shall be taken into custody forthwith to undergo the sentence