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PETITIONER: MADRU SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       09/09/1997

BENCH: M. M. PUNCHHI, S. P. KURDUKAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT: Present:               Hon’ble Mr. Justice M.M. Punchhi               Hon’ble Mr. Justice S.P. Kurdukar               Hon’ble Mr. Justice M. Jagannadha Rao H.M. Singh,  Kirpal Singh,  M.A. Krishna  Moorthy, Advs. for the appellants. Uma Nath Singh, Adv. for the Respondent The following Judgment of the Court was delivered:                       J U D G M E N T S.P. KURDUKAR, J      These two  criminal appeals  by special leave are filed by A-1  to A-4  and A-6 against a common judgment dated July 30, 1992  passed  by  the  High  Court  of  Madhya  Pradesh, Jabalpur Bench  at Indore.  All  the  appellants  under  the impugned order  stood convicted  for an  offence  punishable under Sections  148 and 302/149 of the Indian Penal Code for which they  were sentenced  to suffer  two  years’  rigorous imprisonment and  imprisonment for life respectively. 2.   The appellants  along with Bhagirath (A-5) and Bali Ram (A-7) were  tried for  an offence  punishable under Sections 148, 302/149  of the  Indian Penal  Code for  committing the murder of  Peera Singh.  Bhagirath  (A-5)  died  during  the pendency of  trial and hence, trial abated against him. Bali Ram (A-7)  was acquitted  of all  the charges  by  the  High Court. Peera  Singh (since  deceased) was  the  resident  of village  Kalmer   in  district  Indore  (M.P).  Peera  Singh suspected that his first wife was abducted by Bhagirath (A-5 since dead  ) which  led  to  the  incident  of  assault  on Bhagirath by  Peera Singh  and his  two associates,  namely, Amba Ram  and  Hari  Das.  As  a  result  of  this  assault, Bhagirath sustained  serious injuries  on his  leg which was ultimately required  to be  amputated. For  that crime,  all three accused persons were tried and convicted under Section 307 of  the Indian  Penal Code  and each  one  of  them  was sentenced to  suffer rigorous  imprisonment for three years. After undergoing  the said  sentence, Peera Singh and others came out  of jail. This was a cause for enmity between them. It was  alleged by  the prosecution  that Bhagirath  and his companions were  waiting for  an opportunity to take revenge on Peera  Singh and  ultimately on 7th August, 1984 at about

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4.00 p.m.,  the appellants  and two  other  accused  persons picked up  quarrel with Peera Singh when he was returning on a bicycle  with his  wife Ram Kanya (PW 1) from Hatod to his village Kalmer.  Shanker Singh  (A-2) obstructed Peera Singh near village  Kankad and thereafter Kamal Singh (A-1), Mangi Lal (A-4)  and Deokaran   (A-6)  who were  hiding at a short distance reached  the place of assault with weapons in their hands. Peera Singh and his wife anticipating danger to their lives started  running towards  the field  of Bhagirath. All the appellants  chased them  and  after  overpowering  Peera Singh, he  was  dropped  on  the  ground  in  the  field  of Bhagirath. A-1  and A-3  were armed with axes. A-6 was armed with farsi.  In the  meantime, A-7  appeared on the scene of occurrence  with  lathi  and  knife.  A-5  (since  deceased) exhorted the appellants to chop off the head of Peera Singh. Ram Kanya  (PW 1)  tried to  intervene and requested them to spare her husband but appellants did not pay any heed to her request but on the contrary they assaulted Ram Kanya (PW 1). While the assault was going on, a Matador was passing by the road. Ram  Kanya (PW  1) gave  a signal to the driver of the Matador to  stop which  in fact  stopped. Goverdhan  (PW 2), Rameshwar, Sunder  (PW 8)  and Hari Dass (PW 4) who were the occupants of  the  said  Matador  got  down  therefrom.  The appellants finding  that some  persons had  arrived  at  the scene of  occurrence, fled  away.  Ram  Kanya  (PW  1)  then requested the  occupants of  the  Matador  to  help  her  in carrying the  injured to  the police stating at Hatod. While carrying the  injured Peera  Singh to  the police station at Hatod, he  died on  the way  before they  reached the police station. The  statement of  Ram Kanya (PW 1) was recorded by the Station  House Officer  on 7th August, 1984 at 6.00 p.m. After registering  the FIR of Ram Kanya (PW 1) at about 6.00 p.m., the  dead body  of Peera Singh was sent to the Primary Health Centre,  Hatod. Dr.  Kochar (PW  5), Medical  Officer held the  autopsy on  the dead  body of  Peera Singh  on 8th August, 1984 and found as many as 14 incised injuries on the dead body. The cause of death as mentioned by Dr. Kochar was due  to  excessive  haemorrhage  and  shock  on  account  of incision carotid vessels and jugular veins. In the meantime, the investigating  officer carried out the investigation and after completing  the same, as stated earlier, seven accused persons were  put up  for trial  for the offences punishable under Sections 147, 148, 302/149 and 324 of the Indian Penal Code. 3.   The appellants  denied the  charge and  claimed  to  be tried. According  to them, they have been falsely implicated due to  enmity. A-1 and A-2 took up the plea of alibi and in support thereof  they examined Moti Lal (DW 1) and Ganga Ram (DW 2).  All the  accused pleaded that they are incident and they be acquitted. 4.   The prosecution  in support  of its  case mainly relied upon the  ocular account  of incident given by Ram Kanya (PW 1). Goverdhan  (PW 2), Ram Singh (PW 3) and Hari Dass (PW 4) were the occupants of the Matador and were examined to prove the presence  of Ram Kanya (PW 1) at the scene of occurrence and running  away of the accused from the place of incident. In addition  to this  evidence, prosecution  examined  panch witnesses to  prove the  sport panchanama as well as various recoveries of  the incriminating articles at the instance of the appellants  under Section 27 of the Indian Evidence Act. Dr. N.  Kochar (PW  5) was examined to prove the post mortem examination report (Ex.6). 5.   The trial  court after careful scrutiny of the oral and documentary evidence  on  record  convicted  the  appellants under Sections  147, 148,  302/149 of  the Indian Penal Code

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and sentenced  them to  undergo various  terms of sentences. The trial court however, acquitted A-1 to A-4 and A-6 of the charge under  Section 324/34  of the  Indian Penal  Code for causing injuries  to Ram Kanya (PW 1). Substantive sentences were ordered  to run concurrently. Agg ieved by the order of conviction and  sentence passed  by  the  trial  court,  the appellants and  Bhagirath preferred  two  sets  of  criminal appeals to  the High  Court  of  Madhya  Pradesh,  Bench  at Jabalpur.  The  High  Court  confirmed  the  conviction  and sentence of  the appellants but, however, acquitted Bali Ram (A-7) of  all the  charges. It  is this judgment of the High Court which  is the  subject matter  of challenge  in  these criminal appeals. 6.   At the  outset, it  may be  stated  that  there  is  no serious challenge  to the  fact that  Peera Singh met with a homicidal death. Dr. Kochar (PW 5) who performed the autopsy on the  dead body  of Peera  Singh had  found as  many as 14 incised injuries.  the cause  of death  was testified  to be excessive haemorrhage  and shock  due to  cutting of carotid vessels and  jugular veins. We, therefore, see no hesitation in confirming  the findings  of the  courts below that Peera singh died a homicidal death. 7.   Mr. Singh,  the learned counsel appearing in support of these appeals  urged  that  the  courts  below  committed  a serious error  in holding  that the  FIR was not ante dated. The fact  that the  said FIR  was received  by the concerned Magistrate on  10th August,  1984,  after  about  two  days, clearly proves that the FIR was not lodged as alleged on 7th August, 1984  at 6.00  p.m. but  the same  might  have  been recorded and registered some time on 8th August, 1984. There is  no  suitable  explanation  given  by  the  investigating officer as  to why  it was  sent to the concerned Magistrate after two  days. Counsel,  therefore, urged that the assault on Peera  Singh must  not have been witnessed by anybody and only after  finding the  dead body  of Peera  Singh  on  8th August,  1984,  a  false  FIR  was  registered  against  the appellants on  suspicion and  out of enmity. This contention was also  raised before  the courts  below and  the same was negatived by  them. It is no doubt true that the copy of FIR was received  by the  concerned Magistrate  on 10th  August, 1984 but that by himself could not be a circumstance to hold that the  FIR was  ante dated  and was in fact not lodged on 7th August,  1984. The  evidence of Ram Kanya (PW 1) is very emphatic on this point and she had asserted that she saw the entire incident  and she  herself had  gone  to  the  police station in  the Matador  along with  the dead  body of Peera Singh and  lodged the  FIR on  7th August, 1984 at 6.00 p.m. Despite searching  cross-examination, the  defence could not elicit any omission or contradiction in this behalf. In this view of  the matter  merely because  the copy  of the  First Information Report  was received by the concerned Magistrate on 10th  August, 1984, no conclusion could be drawn that the FIR was  not lodged  on 7th  August, 1984  at 6.00  p.m. the courts were right in rejecting this contention. 8.   It was  then  urged  by  Mr.  Umanath  Singh  that  the evidence of  Ram Kanya  (PW 1) is full of material omissions and contractions  and, therefore,  it would  not be  safe to accept her  evidence as  trustworthy. He took us through the evidence of  Ram Kanya  (PW 1) and pointed out to us various omissions and  contradictions. There  are some omissions and contradictions but  the same  are  trivial  in  nature  and, therefore, in  our considered  view  would  not  affect  the substratum of  the prosecution case. The fact that Ram Kanya (PW  1)  had  sustained  some  injuries  was  not  seriously disputed in  these appeals. Ram Kanya (PW 1) was examined by

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Dr. N.  Kochar (PW 5) on 8th August, 1984, and he issued the injury certificate.  He denied  that the  incised the injury certificate. He denied that the incised injury on the person of Ram Kanya (PW 1) could be a self inflicted injury. In the face of this positive evidence on record, it is difficult to hold that  Ram Kanya (PW 1) was not present at the time when the assault  took place on Peera Singh. Ram Kanya (PW 1) has given all  necessary details  as  regards  the  assault  the weapons and the role played by each of the accused. It is in these circumstances, we do not see any error when the courts below have  accepted the evidence of Ram Kanya (PW 1) as the time of  incident also stands corroborated from the evidence of Goverdhan  (PW 2)  and Hari  Dass (PW  4). They  were the occupants of  Ram Kanya (PW 1). When they got down, they saw the accused  running away.  They saw  Ram Kanya  (PW 1)  was present at  the scene  of offence  and  had  sustained  some injuries on her person. It is true that both these witnesses were having  some hostile  relations with the appellants but on that  score, it  would not  be proper  to  discard  their evidence. The  courts below  have very carefully scrutinised their  evidence  bearing  in  mind  the  strained  relations between the appellants and these witnesses and after careful scrutiny of  their evidence accepted the same to the limited extent that  the presence  of Ram Kanya (PW 1) was proved at the place  of incident  and carried  injured Peera  Singh in Matador to  the Police  Station at Hatod. We, therefore, see no error in the said finding recorded by the courts below. 9.   Mr. Singh  then  urged  that  there  is  a  significant variance as  regards the  role attributed  to  each  of  the appellants and  the weapons  with which they assaulted Peera Singh. Mr.  Singh then  urged that the evidence of Ram Kanya (PW 1) is again full of omissions and contradictions even as regards the  role played  by each  of the appellants and the weapons with  which they  assaulted Peera Singh. The witness had made  a lot  of improvements  in her evidence before the court and  if these  improvements are carefully scrutinised, it would  clearly show  that the  witness is not telling the whole truth.  This submission  is again devoid of any merit. The trial  court in  its exhaustive  judgment had succinctly considered the  evidence of  Ram Kanya (PW 1) in this behalf and had  accepted the same being trustworthy. The High Court confirmed the  said finding after going through the evidence of Ram  Kanya (PW  1), we  see no reason to take a different view. 10.  It was then urged by Mr. Singh that the evidence of Ram Kanya (PW  1), Goverdhan  (PW 2) and Hari Dass (PW 4) should be discarded  as they bore an enmity against the appellants. There  is   no  corroboration   to  the  evidence  of  these interested witnesses  from any independent source and in the absence of  such corroboration,  it would  not  be  safe  to convict the  appellants on  their  evidence.  At  any  rate, appellants in  the present circumstances be given benefit of doubt and  be acquitted.  This  submission  again  dose  not appeal to  us. Ram Kanya (PW 1) in her evidence had asserted that Bhagirath  (A-5 since  dead) was telling the appellants that Peera  Singh should  be punished and his head should be severed. This  was the  direction of  Bhagirath  (A-5  since dead) and  in compliance  thereof,  the  appellants  with  a common object  to commit  the murder  of Peera Singh, laid a murderous assault  on him  and caused  as many as 14 incised injuries on  his person.  The evidence  on record shows that the  appellants  chased  Peera  Singh  until  the  field  of Bhagirath and  then they  again assaulted  him  with  deadly weapons. It  is thus  clear that  the appellants  formed  an unlawful assembly and the object of the said assembly was to

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commit the murder of Peera Singh. 11.  After careful consideration of the oral and documentary evidence on record, we are satisfied that the impugned order of conviction and sentence of the appellants does not suffer from any infirmity. 12.  For the  foregoing conclusions, we do not see any merit in these appeals and the same are accordingly dismissed.