Chattisgarh High Court
Samar Vijay Singh Tomar And Another vs State Of Chhattisgarh on 20 March, 2006
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
CRA No 594 of 2000 AND CRA No 716 of 2000
AND CRA No 1239 of 2000 AND CRA No 783 of 2005
1 Samar Vijay Singh Tomar and another
2 Javed Alam and another
3 State of Chhattisgarh
4 State of MP now Chhattisgarh
...Petitioners
VERSUS
1 State of Chhattisgarh
2 State of Chhattisgarh
3 Samar Vijay Singh Tomar And three others
4 Ranvijay Singh Tomar
...Respondents
! Shri Surendra Singh Senior Advocate with
Shri Neeraj Kumar Mehta for the appellants
^ Shri Pramod Kumar Verma Addl Advocate
General for the State
Smt Meena Shastry learned counsel for
the complainant
Honble Shri Justice Fakhruddin and
Honble Shri Justice Dilip Raosaheb Deshmukh JJ
Dated: 20/03/2006
: Judgment
J U D G M E N T
(Delivered on 20th.03.2006)
Per Dilip Raosaheb Deshmukh, J.
1. Vide Judgment dated 23rd February, 2000 delivered
in Sessions Case No. 07/1999 by Shri A.S.Naidu,
Sessions Judge, Sarguja, the appellant Samar Vijay
Singh was convicted under Section-302 of the I.P.C.
for committing murder of Ku. Preeti Shrivastava by
intentionally causing her death on 03-12-1998 at
10.45 A.M. in Govt. Girls College Campus, Ambikapur
by running her over by Jeep No.M.P.-27-B-1068 and
sentenced to undergo imprisonment for life and a
fine of Rs.1,000/- & in default to undergo
additional rigorous imprisonment for 6 months. Co-
accused Rajkumar Tiwari, Javed Alam & Ganesh
Kashyap were convicted under Section 302 read with
Section-34 of the I.P.C. for intentionally causing
the death of Ku. Preeti Shrivastava in furtherance
of the common intention with the appellant Samar
Vijay Singh and sentenced to imprisonment for life
and to pay a fine of Rs.1,000/- and in default to
undergo additional rigorous imprisonment for 6
months. Co-accused Ranvijay Singh Tomar, father of
appellant Samar Vijay and owner of the jeep used by
the above accused persons for committing the
aforesaid offence was acquitted from the charge
under Section-201 of the I.P.C.
2. Appellants Samar Vijay Singh and Raj Kumar Tiwari
preferred Criminal Appeal No.594/2000 while
appellants Javed & Ganesh preferred Criminal Appeal
No. 716/2000, assailing their conviction and
sentence as aforesaid. The State preferred Criminal
Appeal No.1239/2000 for enhancement of sentence
awarded to the appellants & Criminal Appeal No.
783/2005 against the acquittal of Ranvijay Singh
Tomar under Section-201 of the I.P.C. This judgment
governs all the abovementioned appeals.
3. Briefly stated the prosecution case is that on 03-
12-1998 Ku. Preeti Shrivastava, a student of
B.A. Final in Govt. Girls College, Ambikapur was
sitting with Ku. Vijaylaxmi Mishra PW-7, Ku. Seema
Mishra PW-8 and Ku. Nisha Thakur PW-17 in the
campus of the College since the second period was
free. Her bag and tiffin were kept by the side of
the road. Many other girls were basking in the sun
inside the campus. At about 10.45 A.M., a Jeep
driven by Samar Vijay Singh suddenly entered the
college campus and crushing the bag and the tiffin
of Ku. Preeti Shrivastava underneath, went ahead.
Appellants Rajkumar Tiwari, Javed Alam and Ganesh
Kashyap were accompanying Samar Vijay Singh in the
jeep. Seeing her tiffin & bag crushed by the jeep,
Ku. Preeti Shrivastava decided that she would stop
the jeep on its return and ask the driver to make
good the loss suffered. When the jeep returned,
Ku.Preeti stopped the jeep, stood in front of it
and asked appellant Samar Vijay Singh to repair the
tiffin and the bag for her. Hearing this, the
occupants of the jeep including the driver started
laughing. The girls noticed that the occupants of
the jeep were calling each other by names and
thereby learnt that Samar Vijay Singh, the driver
of the jeep was accompanied by Rajkumar Tiwari,
Javed Alam and Ganesh kashyap. Appellant Samar
Vijay Singh asked Ku. Preeti to get out of
his way, failing which, threatened to crush her
under the jeep. However, Ku.Preeti stood firm and
didn't budge. Appellant Rajkumar Tiwari, Javed &
Ganesh asked appellant Samar Vijay to crush Ku.
Preeti, if she didn't give way. Upon this, Samar
Vijay moved the jeep ahead and pushed Ku. Preeti
who fell down. When the girls were about to move
for picking up Preeti, Samar Vijay Singh reversed
and then accelerated the jeep ahead, crushing
Preeti's head under the jeep in the process & ran
away with the co-appellants.
4. Ku. Vijaylaxmi PW-7, threw a stone on the jeep,
which hit the bumper of the jeep. She noted down
the number of the jeep in her palm as M.P.-27-1962.
Ku. Lalita Yadav PW-6, attempted to catch hold of
one of the appellants but she was pushed and fell
down. Ku.Vijaylaxmi noticed that the jeep had a
"sticker" "Vote for the Congress" on the back
number plate
5. The girls got frightened and informed Asst.
Professor Smt. Archana Singh PW-9 and
Asst. Professor Smt. Pratibha Singh PW-10 about the
incident who along with Ku. Lalita Yadav PW-6,
Ku.Vijaylaxmi PW-7, Ku. Kumudini Kerkatta PW-4 &
Ku. Urmila Paikra PW-5 took the injured Ku. Preeti
to the District Hospital, Ambikapur. Clerk
Tarachand Sahu PW-11 of the Girls College
reached the spot thereafter and on being instructed
by the Principal lodged the F.I.R. Ex.P-12 at 11
A.M. in Police Station-Ambikapur to Asst. Sub-
Inspector B.N.Singh PW-31.
6. Dr. M.L. Beatrice PW-3, Chief Medical and Surgical
Supdt., Holy Cross Hospital who first examined Ku.
Preeti Shrivastava at the District Hospital,
Ambikapur found her to be in deep coma with profuse
bleeding from the nose and mouth with her nasal
bone fractured. She also found a depressed fracture
in the occipital region of Ku. Preeti size 2.5" x
2". On being informed by Ku. Vijaylaxmi PW-7 and
Ku. Lalita Yadav PW-6, she wrote "Hit by jeep on
the head and knocked down and passed over by front
and back wheel of the jeep" in her report Ex.P-4.
Soon after Ku. Preeti Shrivastava succumbed to the
injuries at 12.10 P.M.
7. Upon F.I.R. Ex.P-12 being lodged at 11 A.M.
Assistant Sub-Inspector Hardeep Singh PW-36 reached
the Hospital. In the meanwhile, Shri
R.L.Shrivatava PW-32, father of Ku.Preeti
Shrivastava, on receiving information about the
incident had already reached the hospital and
enquired about the incident from the girls who were
present there. A.S.I. Hardeep Singh recorded merg
intimation Ex.P-19 on the report of Laboratory
Technician Mariam Tirky PW-16 and prepared inquest
Ex.P-18. In presence of Shri R.L. Shrivastava PW-32
he also recorded the statements Ex.P-10 and Ex.P-7
respectively under Section-161 of Cr.P.C. of
Ku.Vijaylaxmi PW-7 and Ku. Lalita Yadav PW-6 on
03-12-1998 at the District Hospital who told him
that since the occupants of the jeep while talking
were addressing each other by their names, they
learnt that the driver of the jeep was Samar and
the occupants of the jeep were Rajkumar Tiwari,
Javed and Ganesh. They also stated that the
occupants of the jeep had said "Samar if the girl
does not give way, crush her under the Jeep". In
the merg intimation Mariam Tirky PW-16 gave the
Jeep No. as M.P.-27 B -1068.
8. Dr. A.K. Jain PW-33 Medical Officer, District
Hospital, Ambikapur conducted the autopsy on the
body of Ku. Preeti Shrivastava on 03-12-1998 and
found the following external injuries :-
A. An abrasion on left scapular region 8 x 6 cm (Eight
on by six cm) red in colour, and obliquely placed,
B. An abrasion to right side of back middle part
measuring 10 x 6 cm extending to right scapular region
red in colour obliquely placed;
C. An abrasion, right knee, laterally 8 x 3 cm, red in
colour,
D. An abrasion on right thigh upper part medially 2 x
2 cm, red in colour,
E. Two abrasions over right foot, one at the lateral
border 2 x 3 cm, and second one on right malleola,
lateral side 2 x 2 cm red in colour, obliquely placed,
F. Depression and crepitus at occipital region and
right zygomatic region 8 x 4 cm,
On internal examination, he recorded the
following findings:
A. Skull :- There was depressed fracture in occipital
bone and zygomatic bone 8 x 4 cm extending up to zygoma,
B. Meninges and brain injured due to fracture and
brain matter came out, huge haemotoma present and blood
present cranial cavity,
C. Fracture of the third rib left side
anterolaterally,
D. Pleura injured, trachea and throat was healthy,
left lung was injured and gorged, blood present in
pleural cavity , right lung was also gorged blood
present in pleural cavity, in heart the blood was
present, in little quantity in right chamber and the
left was empty, Aerota containing little blood, mouth,
esophagus, covering of intestine and diaphragm, were
healthy, in stomach, there was semi digested food
material, large intestine, little facial matter was
present, liver was ruptured posteriorily, and blood was
present in paritonial cavity, spleen and kidney were
healthy, uterus was healthy, blader was full of urine,
uterus was of normal size.
Dr. Jain opined vide report Ex.P-37 that death
was due to coma as a result of fracture of skull
bone and injury to vital organs, brain, lung and
liver.
9. Assistant Sub Inspector Hardeep Singh PW-36 reached
the spot on 03-12-1998 and seized the blood stained
Tar and soil and plain soil as also the black bag
and broken tiffin of Ku. Preeti vide seizure
memo Ex.P-25. On the same day at 3.00 P.M., he
seized vide Ex.P-33 the Jeep No. M.P.-27-B-1068
which stood in front of the house of appellant
Samar Vijay. In the front bumper of the Jeep some
remains of blood stains which had been washed were
noticed. At the back curtain a pamphlet of Congress-
I was pasted.
10. On 04-12-1998 at 6 P.M., Town Inspector S.C. Mishra
PW-39 arrested appellants Samar Vijay Singh,
Rajkumar Tiwari and Javed Alam vide Ex. P-72, 73 &
74. On 05-12-1998 at 7.00 A.M., he also arrested
Appellant Ganesh on surrender at the police station
vide Ex.P-75. On the same day, he seized vide Ex.P-
16 two stones having traces of light brown paint
from near the spot in Govt. Girls College,
Ambikapur. He also scratched the paint from the
back of the seized Jeep, sealed and seized it vide
Ex.P-34. On 06-12-1998 Ranvijay Singh Tomar,
father of appellant Samar Vijay Singh and the owner
of the jeep was arrested by him vide Ex.P-76. On 09-
12-1998, a document Ex.P-71 was obtained from
R.T.O., Ambikapur certifying Ranvijay Singh Tomar
as the owner of the jeep. Senior Scientific
Officer, Forensic Science Laboratory, Scene of
Crime Unit, Sarguja performed Benzidine Test on the
mud of the left mudguard and on the stains found on
the left front tyre. This test was positive
indicative of presence of blood. On being sent for
chemical examination to Forensic Science
Laboratory, Sagar vide report Ex.P-79 presence of
blood was confirmed on the mud scratched from the
front mudguard of the Jeep. However, this was not
found sufficient for examination by Serologist.
Vide report Ex.P-80 of the Forensic Science
Laboratory, Sagar, the paint scratched from the
stones (seized from the spot inside the college
campus) and the Jeep were found to be of similar
origin.
11. Investigation revealed that appellant Rajkumar had
soon after the occurrence gone to Abhaydeep Singh
PW-2 and told him that the Jeep driven by Samar
Vijay Singh had dashed against a girl. Statement
under Section-164 of Cr.P.C. Ex.P-3 of Abhaydeep
Singh PW-2 was recorded by Shri S.R.Banjare,
J.M.F.C., Ambikapur on 18-12-1998. After completion
of investigation, prosecution was launched against
appellant Samar Vijay Singh under Section-302 of
I.P.C., against Rajkumar Tiwari, Javed Alam, Ganesh
Kashyap under Section-302 read with Section-34 of
the I.P.C. and under Section-201 of the I.P.C.
against co-accused Ranvijay Singh Tomar for causing
disappearance of evidence of murder by washing the
blood stains on the jeep.
12. Appellants Samar Vijay Singh, Rajkumar, Ganesh,
Javed and co-accused Ranvijay Singh Tomar abjured
the guilt. Prosecution examined as many as 39
witnesses. The learned Sessions Judge, Ambikapur
acquitted Ranvijay Singh Tomar for want of evidence
and convicted Samar Vijay Singh under Section-302
of I.P.C. and Raj Kumar Tiwari, Javed Alam and
Ganesh Kashyap under Section-302 read with Section-
34 of the I.P.C. and sentenced them as aforesaid in
para-1 on the basis of the following evidence -
A. Testimony of Ku. Lalita Yadav PW-6, Ku.
Nisha PW-17, Ku. Seema Mishra PW-8, Dr. M.L. Beatrice PW-
3, Dr. A.K. Jain PW-33 proving that Ku. Preeti died a
homicidal death.
B. Statements made by Ku. Lalita Yadav PW-6 and Ku.
Vijaylaxmi PW-7, as forming part of res-gestae
under Section-6 of the Evidence Act. to Shri R.N.
Shrivastava PW-32 on his reaching the hospital
disclosing the names of the driver of the jeep as Samar
Vijay Singh and the occupants of the Jeep as Rajkumar
Tiwari, Javed and Ganesh.
C. Extra Judicial Confession made by the appellant Raj
Kumar before Abhaydeep Singh PW-2 soon after the
occurrence, also implicating appellant Samar Vijay Singh
as the driver of the Jeep.
D. Testimony of Ku. Seema PW-8 especially in para-34
and 35 showing the three occupants of the Jeep had asked
the driver Samar Vijay to run the girl over in case she
didn't give way and Samar Vijay surging the jeep ahead
crushed Preeti's head underneath.
E. Testimony of Arvind Gaur, Assistant Professor, P.G.
College, Ambikapur PW-12 showing that Ganesh Kashyap, a
student of B.Com 1st year `B' section was absent from
class on 03-12-1998.
F. Testimony of Professor Rajesh Shrivastava, P.G.
College, Ambikapur PW-18 showing that on 03-12-1998
Samar Vijay Singh and Raj Kumar Tiwari, students of
B.Com 1st year Section-`A' were absent from class (10
A.M. to 10.40 A.M.).
G. The fact of surrender by appellants Javed and
Ganesh in Police Station-Ambikapur on 04-12-
1998 vide Ex.P-74 and 75.
H. (i) Seizure of Jeep No. M.P.-27-B-1068 from, in
front of the house of appellant Samar Vijay.
(ii) Merg intimation Ex.P-19 by
Mariam Tirki PW-16 showing the
number of the Jeep as M.P.-27-B-
1068.
(iii) Testimony of Z.A. Abbasi PW-37
R.T.O. Office Ambikapur proving
ownership of Ranvijay Singh Tomar
over Jeep M.P.-27-B-1068.
(iv) Admission by Ranvijay Singh
Tomar of the seizure of Jeep M.P.-27-
B-1068, in reply to Question No.218
in examination under Section-313
of Cr.P.C.
13. Shri Surendra Singh, Learned Senior Counsel for the
appellants Samar Vijay Singh, Rajkumar Tiwari,
Ganesh Kashyap and Javed Alam argued that there was
no legal evidence on record to substantiate the
conviction and sentence awarded by the learned
Sessions Judge. No common intention of the
occupants of the Jeep to cause the death of Ku.
Preeti was established by the prosecution. Evidence
of Ku.Seema Mishra PW-8 was read in extenso while
arguing that the driver of the Jeep merely wanted
to get away as fast as possible and therefore the
offence if any committed by the driver of the Jeep
would not travel beyond Section-304 Part-I of the
I.P.C., the alleged act being a rash or negligent
act without any intention to kill Preeti. Referring
to the testimony of Ku.Seema PW-8 and Ku. Nisha PW-
17, it was next argued that there has been an
unfair and dishonest cross-examination by the
prosecutor due to which the trial Judge was in
error in holding that the identity of the driver of
the Jeep was established. During investigation, no
test identification of the appellants Samar Vijay
Singh, Rajkumar Tiwari, Ganesh Kashyap and Javed
Alam was got done from the witnesses who even did
not identify the occupants of the Jeep in Court.
14. Serious objection was taken to the finding recorded
in para-104 of the impugned judgment whereby the
statements made by Ku. Lalita Yadav PW-6 and Ku.
Vijaylaxmi PW-7 to Shri R.L.Shrivastava PW-
32 were relied on as admissible and forming part of
res-gestae under Section-6 of the Evidence Act., on
the ground that both Lalita Yadav PW-6 and
Ku. Vijaylaxmi PW-7 had turned hostile and the
testimony of Shri R.L.Shrivastava PW-32 was merely
hearsay since he admitted that the statements made
by the abovementioned two girls were not
spontaneous but upon asking. Reliance was placed
upon Pratap Singh & another Vs. State of Madhya
Pradesh, through P.S.-Bhind reported in 1970
M.P.L.J.-978.
15. Reliance was also placed in the case of Gentela
Vijayavardhan Rao Vs. State of Andhra Pradesh
reported in A.I.R.-1996-S.C.-2791 para-15, Yasin
Gulam Hyder v. State of Maharashtra 1980-SC-878,
Vijender v. State of Delhi 1997 SAR (CRI)-365-para-
7, Malkhan Singh v. State of M.P. 1990-Cr.L.J-2763
and Dhanna vs. State of Madhya Pradesh 1996-SC-
2478 Placitum `C'
16. It was also argued that reliance placed by the
Sessions Judge upon the statement of Abhay deep PW-
2 recorded under Section-164 of the Cr.P.C. was
contrary to law since the statement recorded under
Section-164 of the Cr.P.C. could only be used to
corroborate or contradict its maker and extra
judicial confession should be of such a nature as
by itself would be sufficient to convict the
accused. Reliance was placed on Kanda Padayachi v.
State of Tamil Nadu A.I.R. 1972-S.C.-66 Para-11,
A.I.R.-2001-S.C.-1103 Placitum-"A" and Hiramba
Brahma & another v. State of Assam A.I.R.-1982-SC-
1595 Placitum-`B'.
17. Reliance was also placed on Pandurang & others
v.State of Hyderabad A.I.R.-1955-SC-216 and
Suresh & another vs. State of U.P. A.I.R.2001-SC-
1344 Placitum -"B" while arguing that mere presence
of Rajkumar Tiwari, Javed and Ganesh at the scene
of the crime did not show culpability since there
was no meeting of minds and no premeditated concert
to kill Ku. Preeti. At the most it could be said
that the appellants were carefree youngsters who
had taken the Jeep inside the college campus merely
to have a look at the girls and were laughing when
Ku. Preeti tried to come to the middle of the Jeep
and the driver backed the jeep to get away while
Ku.Preeti had fallen upon a mild push. At the most
it could be said that there was complete
miscalculation and rashness on the part of the
driver in trying to get away from the campus. The
driver of the jeep alone could at the most be held
guilty under Section-304 Part-I of the I.P.C.
Reliance was placed on Sadhu Singh v. State of
Pepsu A.I.R.-1954-SC-271. Absence of tyre marks
either on the skull or on the clothes of Ku. Preeti
as admitted by Dr. Jain PW-33 in para-10 falsified
that Ku. Preeti was run over deliberately. Absence
of the appellants Samar Vijay, Ran Kumar and Ganesh
from college at the time of occurrence did not
prove their complicity in the offence of murder of
Preeti. Use of Jeep No.M.P.-27-B-1068 in the crime
was also not established since the number of the
offending vehicle was noted by Ku. Vijaylaxmi PW-7
to be M.P.-27-1962 and presence of human blood was
not confirmed vide Forensic Science Laboratory Ex.P-
79 on the soil seized from the left tyre of the
jeep.
18. Replying to the above arguments Shri Pramod Verma,
learned Additional Advocate General during his
brief arguments contended that the demeanor of the
eye-witnesses as noted by the learned Sessions
Judge revealed that the girls were under fear and
tremendous pressure and were not willing to
disclose the identity of the occupants of the Jeep
barring stray statements made by some girls in
their testimony. It also showed that the incident
in which Ku. Preeti was crushed under the jeep and
died had a tremendous impact on the minds of the
girls who saw the occurrence. The evidence showed
that the girls were under shock even at the
hospital where they truthfully disclosed the names
of the occupants and driver of the jeep to Shri
R.N. Shrivastava PW-32, the shocked father of the
deceased who had reached the hospital soon after
learning about the incident. There was no time for
deliberation or concoction. Every one was under
shock and panic. Statements of Ku.Vijaylaxmi PW-7
and Ku. Lalita Yadav PW-6 under Section-161 of
Cr.P.C. which were recorded by A.S.I. Hardeep Singh
PW-36 on 03-12-1998 at the Hospital showed that
both girls had stated that since the occupants of
the Jeep were addressing each other by names and
had asked Samar the driver of the jeep to run over
Ku. Preeti if she didn't give way, they learnt
about the identity of the driver as Samar and the
occupants as Rajkumar, Ganesh and Javed. These
girls had also given the history of the incident to
Dr. M.L.Beatrice PW-3 who had recorded the same in
Ex.P-4. Therefore, the testimony of Shri
R.L.Shrivastava PW-32 that he was informed by the
abovementioned girls about the names of the
occupants and driver of the jeep at the hospital,
forms part of res gestae and is admissible under
Section-6 of the Evidence Act. Since there was no
malice, no enmity or cause to falsely implicate
innocent persons, the trial judge, in its quest for
truth rightly relied on the testimony of Shri
R.L.Shrivastava PW-32 to hold that Samar Vijay
Singh was the driver and Rajkumar, Ganesh and Javed
were the occupants who had asked Samar Vijay Singh
to run Preeti over if she did not give way.
19. It was next argued that the very fact that Ku.
Preeti had fallen after a gentle push by the Jeep
and thereafter the Jeep was reversed and
accelerated further, coupled with the serious
injuries sustained by Preeti clearly reflected the
intention of appellants Samar Vijay, Raj Kumar,
Javed and Ganesh. The evidence of Dr. Jain P.W.33
and the findings recorded on internal examination
during autopsy revealed the impact and speed at
which the Jeep was accelerated ahead. The act of
appellant Samar Vijay in running over the fallen
Ku. Preeti and the act of appellants Raj Kumar,
Javed and Ganesh in exhorting Samar Vijay to run
Preeti over if she did not give way coupled with
the fact that after Ku. Preeti fell, the Jeep was
reversed and accelerated proved that the appellant
Samar Vijay shared the common intention with Raj
Kumar, Javed and Ganesh to kill Ku. Pretti by
crushing her under the Jeep. As regards the
evidence of Abhaydeep P.W.2 relating to extra
judicial confession of appellant Raj Kumar, it was
argued that Abhaydeep had no malice or enmity with
Raj Kumar or any reason to falsely implicate him.
20. Learned Addl. Advocate General while arguing upon
Cr.A.1239/2000 for enhancement of sentence awarded
to the appellants Samar Vijay, Raj Kumar, Javed and
Ganesh did not divulge any ground for enhancing the
sentence or for awarding the extreme penalty. Cr.
A. 783/2005 against acquittal of Ranvijay Singh
Tomar, learned Addl. Advocate General left it
wholly to the discretion of the Court, if it found
any evidence on record to convict Ranvijay Singh
Tomar under Section 201 I.P.C.
21. We have heard the rival contentions and have gone
through the record of S.T.No.7/99 minutely. We
have also gone through the various case laws cited
by the learned senior counsel for the appellants.
Ku. Lalita Yadav P.W.6 deposed that on 3.12.98 Ku.
Pretti Shrivastava, alongwith Ku. Nisha P.W.17, Ku.
Seema Mishra P.W.8, Ku. Vijaylaxmi P.W.7 and many
other girls were sitting by the side of the road
when the Jeep entered the college campus and
crushing the bag and tiffin of Preeti, went ahead.
Ku. Preeti said that she would ask the culprits to
make good the loss and stood in front of the Jeep
on its return. Preeti was hit by the bonnet of the
Jeep. When Lalita ran, one of the boys pushed her
due to which she fell. Vijaylaxmi noted the number
of Jeep. The medical report Ex.P.4 written by Dr.
M.L.Beatrice (P.W.3) clearly shows that Ku. Lalita
had gone with the injured Preeti to the hospital
and had given the history that Ku. Preeti was hit
by the Jeep, knocked down and passed over by the
wheel of the Jeep. There is no doubt that Ku.
Lalita saw the entire occurrence and the culprits.
The learned Sessions Judge noted her demeanor that
she was nervous and was repeatedly trying to
console herself. Obviously she did not have the
courage to testify the truth.
22. The testimony of Ku. Vijaylaxmi P.W.7 clearly shows
that she has suppressed the entire truth. She was
the person who accompanied the injured Preeti to
the hospital and gave the history of the incident,
as mentioned above, to Dr.
M.L.Beatrice P.W.3 which was recorded in report
Ex.P.4 containing the name of Ku. Vijaylaxmi P.W.7
as the person giving the history of the incident.
The testimony of Lalita Yadav P.W.6 shows that Ku.
Vijaylaxmi P.W.7 was sitting with Ku. Preeti when
the Jeep entered the campus. Obviously Ku.
Vijaylaxmi was under fear while giving evidence and
did not have the courage to speak the truth.
23. Ku. Seema Mishra P.W.8 blurted out during cross-
examination some traces of truth which was labeled
as unfair and dishonest cross-examination by the
learned senior counsel for the appellants. At the
end of the ordeal of her evidence she cried and
requested the Court never to call her again for
evidence since they were disturbed for the entire
year. The plight of the girls who were under
pressure from forces which act in such cases,
depicts the tremendous need for witness protection
in our country if criminal justice administration
was to be a reality.
24. Ku. Seema Mishra P.W.8 deposed that upon her bag
and tiffin being crushed under the Jeep, Preeti
stopped the Jeep on its return and stood in front
of it and asked the boys to get the bag and tiffin
repaired. There was a discussion as the boys
declined. On this, Preeti stood in front of the
Jeep and challenged the boys who were slowly moving
the jeep, to repair the bag. The boys asked her to
get out of their way failing which they would run
her over. Preeti said she would not move and if
they wished they could run her over. The driver
changed gear and moved the Jeep due to which Preeti
fell down. As they moved to lift Preeti the driver
speedily drove the Jeep running it over Preeti. In
reply to question 27 she said that she did not see
the occupants which was sheer falsehood as in
answer to the next question she said that there
were four boys in the Jeep. This statement has not
been controverted in cross-examination by the
defence. In reply to the next two questions she
said that she did not hear the boys taking each
other's name. She was cross-examined by the public
prosecutor. Question No.32, 34, 35 & 37 and the
answers given are reproduced in English.
Q.32: We allege that the occupant boys in the
Jeep
were talking to each other and
laughing.
Ans. Boys were laughing.
Q.34: The occupants of the Jeep were
asking Samar,
the driver of the Jeep to run the
girl over if she
did not give way.
Ans. Boys had said so but afterwards.
Q.35: After that Samar surged the Jeep
ahead, crushed
the head of Preeti and went away.
Ans. Yes.
Q.37: Pointing out towards the accused
Samar Vijay,
Javed, Raj Kumar and Ganesh, the
witness was
asked if these were in the Jeep.
Ans. I do not remember.
25. In such a case the Court is required to function
like the legendary swan in separating the grains of
truth from the chaff of falsehood. The skillful
cross-examination to elicit the truth is not the
forte of the defence alone but can be a tool for
the prosecutor when the witness suppresses the
truth under fear. The Court ought not to act
mechanically and accept statements given under fear
or pressure, denying the complicity of the
appellants in the crime and to ignore the threads
of truth appearing in the testimony of a witness in
answer to leading questions by the prosecutor. In
reply to question 37, Ku. Seema did not say that
the appellants were not the occupants of the Jeep
but said she did not remember. There is no doubt
that Ku. Seema P.W.8 saw the entire incident and
also the appellants Samar Vijay, Javed, Raj Kumar
and Ganesh from very close range in broad day light
and the incident would remain recorded in her
memory for a life time. She also admitted that the
boys were laughing in the Jeep and had said to
Samar that if the girl did not give way he should
run the girl over. She said a positive `yes' to a
specific question No.35, clearly meaning that
crushing Preeti's head Samar had surged the Jeep
ahead. The trial Judge, in this case, rightly
accepted the above portion of the testimony of Ku.
Seema.
26. Ku. Nisha Thakur (P.W.17) has corroborated the
testimony of Ku. Seema (P.W.8) mentioned above
regarding the incident in which Ku. Priti got
crushed under the Jeep. Regarding the complicity
of appellant Samar Vijay, she stated during cross-
examination by the defence in para 13 that the
occupants of the Jeep had said that if Preeti does
not give way Samar Vijay Singh should run the Jeep
over her. In para 12 she has stated that the boys
were laughing, she has again very positively
asserted that one of the occupants of the Jeep had
said that if Ku. Preeti did not give way she should
be run over by the Jeep. As held in Gura Singh v.
State of Rajasthan A.I.R. 2001 S.C. 330 the
testimony of Ku. Nisha Thakur P.W.17, Ku. Seema
P.W.8, Ku. Lalita Yadav P.W.6 cannot be brushed
aside or excluded or rendered unworthy of
consideration merely because they have been
declared hostile. It was held that in appropriate
cases, the court can rely upon the part of
testimony of such witnesses if that part of the
deposition is found to be credit worthy.
27. Shri R.L.Shrivastava P.W.32, deposed that on
receiving information from two girls of Girls
College, Ambikapur that his daughter Ku. Preeti was
crushed under the Jeep he reached the hospital at 5
to 7 minutes after 11 A.M. and saw his daughter in
deep coma, with her eyes bulging out. Just outside
the door of minor operation theatre the staff of
the Girls College and Ku. Lalita Yadav, Ku. Nisha,
Ku. Vijaylaxmi and Seema Mishra were standing. As
a most natural conduct he generally asked what
happened and where and who saw? It is clear that
he generally enquired from the girls who stood
outside the minor operation theatre whereupon
Lalita Yadav P.W.6, Vijaylaxmi P.W.7, Seema Mishra
P.W.8 and Nisha Thakur P.W.17 spontaneously told
him that they were sitting with Ku. Preeti by the
side of the road when a Jeep with four boys entered
the campus and crushed the tiffin and bag of Preeti
and went ahead. Preeti decided that she would stop
the Jeep on its return and ask the boys to make
good the loss. She did so and stopped the Jeep on
its return, stood in front of it and asked the
driver as to how will she attend the next period
since her bag was crushed. On hearing this, Samar
Vijay, the driver said that she should give way,
failing which she would be crushed under the Jeep.
Javed, the boy sitting with the driver in front
seat and Raj Kumar and Ganesh the other two boys
sitting in the rear seat also said to the driver
that if the girl does not give way she should be
crushed. Javed, the boy sitting next to the driver
said to him, "Samar Vijay crush the girl and run or
else we would have to face serious trouble." This
witness asked Vijay Laxmi P.W.7 and Ku. Lalita
Yadav P.W.6 as to how they learnt the names of the
driver and occupants of the Jeep. They told him
that since the boys were laughing and taking each
others name they learnt their names. The girls
named above also told him that the driver suddenly
drove the jeep with a jerk thereby pushing Ku.
Preeti who was thrown by the side of the road. As
the girls ran to lift Ku. Preeti the driver backed
the Jeep and then crushing Preeti under the front
tyre of the Jeep ran away. Vijay Laxmi P.W.7 also
told him that when she caught the sweater of Raj
Kumar who was sitting behind, he pushed her due to
which she fell down.
28. Section 6 of the Evidence Act is an exception to
the rule of evidence that hearsay evidence is not
admissible. The test for applying the rule of res-
gestae is that the statement should be spontaneous
and should form part of the same transaction,
ruling out any possibility of concoction. In
Gentela Vijayavardhan Rao Vs. State of Andhra
Pradesh reported in A.I.R.-1996-S.C.-2791 para-15,
it was held as follows:
"Section-6 of the Evidence Act and
some of the succeeding sections embody
the rule of admission of evidence
relating to what is commonly known as
res gestae. They are in the nature of
exception to "hearsay" rule. Section-6
permits proof of collateral statements
which are so connected with the facts in
issue as to form part of the same
transaction. Whether the statement made
by a witness was a part of the same
transaction or not is to be considered
in the light of the circumstances of
each case. The principle is that it
should be so intimately connected with
the fact in issue as to be a spontaneous
utterance inspired by the excitement of
the occasion or a spontaneous reaction
thereof, there being no opportunity for
deliberately fabricating the statement.
In other words, the statement which is a
part of res gestae does not narrate a
past event, but it is the event itself
speaking through a person thus excluding
the possibility of any design behind
it."
29. We have minutely gone through the cross-examination
of R.L.Shrivastava. We find that there is not even
an iota of material in his cross-examination which
would rebut his above testimony or render it
unworthy of credit. Nothing has been elicited
which would even suggest that R.L.Shrivastava had
any malice or motive to falsely implicate the
appellants Samar Vijay Singh, Javed, Raj Kumar
and Ganesh. The incident had occurred at 10.45
A.M. The girls and staff of the college had rushed
Preeti to the hospital. Within minutes
R.L.Shrivastava P.W.32 had reached the hospital.
Preeti was alive though in deep coma at that time.
After seeing Preeti's condition he was informed by
Lalita Yadav P.W.6, Vijay Laxmi P.W.7, Seema Mishra
P.W.8 and Ku. Nisha Thakur P.W.17 about the whole
incident. Before this, Lalita Yadav P.W.6 and
Vijay Laxmi P.W.7 had already given the brief
history of the incident to Dr. M.L.Beatrice P.W.3
who had recorded it as "the injured being hit by
the Jeep, and knocked down and passed over by the
wheel of the Jeep". In the facts and circumstances
of the case, we are of the considered opinion that
the statement made by Ku. Lalita Yadav P.W.6, Ku.
Vijaylaxmi P.W.7, Ku. Seema Mishra P.W.8 and Ku.
Nisha Thakur P.W.17 to Shri R.L.Shrivastava P.W.32
is admissible under Section 6 of the Evidence Act
as res-gestate despite the fact that the above
mentioned girls have turned hostile since the
statements were made to Shri R.L.Shrivastava soon
after the occurrence when the girls were in a state
of shock and there was not even the remotest
possibility or even a thread of a chance of
falsehood having crept in. Having given it our
utmost serious consideration, we are unable to
comprehend a situation in this case in which there
could be even the slightest possibility that the
girls could have been tutored. At the hospital,
there was no one except the girl students who had
witnessed the incident and their teachers. All of
them stood aghast outside the minor operation
theatre when Shri R.L.Shrivastava after having a
look at Preeti who was in deep coma, came out and
asked the crowd as to what had happened and where.
The shocked girls blurted out truthfully the
incident as it happened, to the father of the
deceased Ku. Preeti when he reached the
hospital within minutes of the occurrence. There
was no chance for concoction or improvement by any
one at that juncture. The fact that Ku. Lalita
Yadav P.W.6 and Ku. Vijaylaxmi P.W.7 had in their
statements recorded by A.S.I. Hardeep Singh P.W.36
on 3.12.1998 at the District Hospital under Section
161 Cr.P.C. also given an absolutely similar
description of the incident and the manner in which
they learnt the names of the driver and occupants
of the Jeep rules out the possibility that
R.L.Shrivastava P.W.32 might have subsequently made
improvements in his statement. Thus, the testimony
of R.L.Shrivastava P.W.32 is wholly reliable. It
is thus established beyond doubt that the occupants
of the Jeep were laughing and taking each others
name as Raj Kumar, Ganesh and Javed who had asked
the driver of the Jeep Samar Vijay to run the girl
over if she did not give way. Thus the act of
Samar Vijay in crushing Ku. Preeti under the Jeep
was in furtherance of the common intention of the
occupants of the Jeep i.e. Raj Kumar, Ganesh and
Javed. In Gentela's case (supra) it was held that
if there was time which was sufficient enough for
fabrication then the statement is not part of res-
gestae. However, as we have already held in this
case there did not exist any possibility of
fabrication or false implication of innocent
persons since the girls or even
Shri R.L.Shrivastava did not know the boys before
the incident. Statement under Section 161 Cr.P.C.
of Ku. Lalita P.W.6 and Ku.Vijaylaxmi P.W.7 were
recorded on 3.12.1998 at the hospital itself by
A.S.I. Hardeep Singh P.W.36 which give out the
names of the driver and occupants of Jeep. Neither
the father of the deceased nor A.S.I. Hardeep Singh
had the slightest idea at that juncture as to who
had caused the death of Preeti.
30. In Malkhan Singh v. State of M.P. 1990 Crl. L. J.
2763 the rule of res-gestae was not applied since
the evidence of the two witnesses to whom the
statements were made was found to be not reliable.
The statement under Section 161 Cr.P.C. of one of
the witnesses was recorded after 16 days and
another witness was found to be an interested
witness. However, in this case, statements under
Section 161 Cr.P.C. of Vijaylaxmi and Lalita were
recorded at the hospital itself on 3.12.1998. The
testimony of Shri R.L.Shrivastava P.W.32 about the
utterances made by the above mentioned witnesses to
him at the hospital is not only wholly unrebutted
in cross-examination but also
inspires confidence. Shri
R.L.Shrivastava would not have the slightest motive
for implicating innocent persons and shielding the
real culprits responsible for the murder of his
daughter.
31. The evidence led by the prosecution fully satisfies
the test laid down in Pandurang & others v. State
of Hyderabad A.I.R.1955 SC 216 and Suresh & another
v. State of U.P. A.I.R.2001 S.C. 1344 for
ascertaining whether the appellants Samar Vijay,
Javed, Raj Kumar and Ganesh Kashyap shared the
common intention for causing the death of Preeti.
The evidence clearly shows that the three occupants
of the Jeep had asked the driver to run the girl
over if she did not give way and Javed had said to
Samar Vijay that he should better crush Preeti and
run away or else will have to face trouble. The
testimony of Nisha Thakur P.W. 17 in cross-
examination para 13 also clearly shows that the
occupants of the Jeep had asked the driver to run
the girl over if she did not give way. The
testimony of Ku. Seema P.W.8 in reply to question
34 also corroborates the above testimony in toto.
Thus, the conditions necessary for arriving at a
finding that the appellants had shared the common
intention to cause the death of Preeti are
satisfied. In Suresh & another (supra), the Apex
Court went to the extent of saying that it was not
necessary for attracting Section 34 of I.P.C. that
the co-accused must be present at the scene of
occurrence. Even an omission can in certain
circumstances amount to an act. So the act
mentioned in Section 34 of I.P.C. need not be an
overt act, even an illegal omission to do a certain
act in certain situation can amount to an act e.g.
a co-accused, standing near the victim face to face
saw an armed assailant nearing the victim from
behind with a weapon to inflict a blow. The co-
accused who could have alerted the victim to move
away to escape from the onslaught deliberately
refrain from doing so with the idea that the blow
should fall on the victim, such omission can also
be termed as an act in a given situation. In the
present case, the occupants of the Jeep were
laughing at the insistence of Preeti standing
before the Jeep, and exhorted Samar Vijay to run
her over if she did not give way, in furtherance of
which, Samar Vijay reversed the Jeep a little bit
and accelerating it surged ahead crushing Preeting
underneath. Thus, the common intention of the
occupants of the Jeep in crushing Preeti under the
Jeep while escaping from the college campus is
clearly borne out.
32. Arvind Gaur P.W.12, Asst. Professor, P.G.College,
Ambikapur has established that Samar Vijay, Ganesh
and Raj Kumar Tiwari were his students and on
3.12.1998 Ganesh Kashyap was absent from college as
per entry in the attendance register article-A.
Similarly, the testimony of Professor Rajesh
Shrivastava P.W.18 proved that Samar Vijay and Raj
Kumar Tiwari were absent from College on 3.12.1998.
We have also minutely examined the testimony of
Abhaydeep Singh P.W.2 which establishes that Raj
Kumar Tiwari had gone to him soon after the
occurrence at 10.45 A.M. and stated that their
vehicle had dashed against a girl. The above
testimony finds corroboration from his statement
Ex.P.3 recorded under Section 164 Cr.P.C. Nothing
has been elicited in cross-examination to show that
this witness bears any grudge against Raj Kumar or
had any motive to falsely implicate him. The
testimony of Abhaydeep Singh only proves a strong
circumstance against the appellant Raj Kumar. It
is not being used as an extra judicial confession
of Raj Kumar since it does not by itself establish
the guilt of the maker of such admission as held in
Kanda Padayachi v. State of Tamil Nadu A.I.R.
1972 SC 66 Para 13. Similarly, the statement under
Section 161 Cr.P.C. made by Abhaydeep Singh can
also not be used as a substantive piece of evidence
but only as a piece of corroborative evidence. The
testimony of Inspector S.C.Mishra P.W.39 and the
arrest memo Ex.P.74 also establish that appellant
Javed had surrendered in Police Station Ambikapur
on 4.12.1998 at 6.00 P.M. and was arrested.
33. Use of vehicle Jeep No. M.P.27-B-1068 in the
incident is established by the fact that merg
intimation Ex.P.19 by Mariam Tirki P.W.16 has been
proved by Asst. Sub-Inspector Hardeep Singh P.W.36.
It shows that the Jeep bearing registration No.
M.P.27-B-1068 had crushed Ku. Preeti underneath.
Seizure of Jeep M.P. 27-B-1068 which stood in front
of the house of Samar Vijay vide Ex.P.33 is also
established by A.S.I Hardeep Singh P.W.36.
Ranvijay Singh Tomar, father of appellant Samar
Vijay is the owner of the Jeep M.P. 27-B-1068 is
also established by Z.A.Abbasi P.W.37 and not
disputed. Ranvijay Singh Tomar had, in reply to
Q.No.218 in examination under Section 313 Cr.P.C.
also admitted this. Report of Forensic Science
Laboratory, Saugor Ex.P.80 confirmed that the paint
scratched from the stones in the college campus and
the Jeep were of similar origin.
34. The injuries sustained by Ku. Preeti as given in
the post-mortem report Ex.P.36 proved by Dr.
A.K.Jain P.W.33 have been detailed by us in
paragraph 8 supra which prove the tremendous force
with which the stationery Jeep surged ahead after
being reversed. Despite the fact that Ku. Preeti
had fallen in front of the Jeep, the manner and the
force in which appellant Samar Vijay reversed,
accelerated and surged the jeep ahead on being
exhorted by Raj Kumar, Javed and Ganesh to run the
girl over, shows that the appellants shared
the common intention of causing the death of Ku.
Preeti by crushing her under the Jeep. The
testimony of R.L.Shrivastava P.W.32, Dr. A.K.Jain
P.W.33, Ku.Nisha P.W.17 and Ku. Seema P.W.8 proves
beyond doubt that death of Ku. Preeti was homicidal
and in cold blood and not accidental by any stretch
of imagination.
35. Having thus considered the rival contentions and
the evidence led by the prosecution in its
entirety, we are of the considered opinion that the
trial Judge has rightly convicted the appellant
Samar Vijay Singh under Section 302 I.P.C. and
appellants Raj Kumar, Javed and Ganesh under
Section 302 read with Section 34 I.P.C. The
sentence imposed by the trial Judge also does not
call for interference as the case does not fall
within the category of rarest of the rare case and
does not justify award of the extreme penalty of
death. So far as co-accused Ranvijay Singh Tomar
is considered, there is no evidence against him to
hold him guilty under Section 201 of I.P.C. for
causing disappearance of evidence of murder of
Ku. Preeti.
36. In the result, Cr. Appeal No.594/2000 preferred by
Samar Vijay Singh & Raj Kumar Tiwari and Cr.
Appeal No.716/2000 preferred by Javed & Ganesh
Kashyap fail and are hereby dismissed. Cr. Appeal
No.1239/2000 filed by the State for enhancement of
sentence awarded to the appellants Samar Vijay
Singh and Raj Kumar Tiwari and Javed Alam and
Ganesh Kashyap by the sessions Judge, Ambikapur in
S.T.No.7/99 also fails and is hereby dismissed.
Cr.Appeal No.783/2005 preferred by the State
against the acquittal of Ranvijay Singh Tomar also
fails and is hereby dismissed.
Per Hon'ble Fakhruddin,J
37. I have had the advantage of reading the Judgment of my esteemed learned brother Shri Dilip Raosaheb