Madhya Pradesh High Court
Keshav Singh vs State Of M.P. on 23 April, 2018
Author: Ashok Kumar Joshi
Bench: Sheel Nagu, Ashok Kumar Joshi
-( 1 )- CRA No. 559/1999
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
ASHOK KUMAR JOSHI.JJ
Criminal Appeal No.559/1999
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1. Ram Singh S/o Jiwaram Bramhan
2. Ram Narayan S/o Jiwaram Bramhan
.... Appellants
Vs.
State of Madhya Pradesh
Through - Police Station Civil Lines,
Morena.
.... Respondent
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Shri Sanjay Gupta, learned counsel for the appellant
No.1-Ram Singh.
Shri A.K.Jain, learned counsel for the appellant No.2-
Ram Narayan, appointed through legal-aid to assist
this Court.
Shri J.M.Sahney, learned Public Prosecutor for the
State.
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AND
Criminal Appeal No.588/1999
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Keshav Singh S/o Hakim Singh
.... Appellant
Vs.
State of Madhya Pradesh
Through - Police Station Civil Lines,
Morena.
.... Respondent
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Shri R.K.Shrivastava, learned counsel for the
appellant-Keshav Singh.
Shri J.M.Sahney, learned Public Prosecutor for the
State.
-( 2 )- CRA No. 559/1999
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JUDGMENT
(23/04/2018) Per Ashok Kumar Joshi,J.:
By this common judgment being passed in Criminal Appeal No.559/1999, another Criminal Appeal No. 588/1999 is also being decided as both of them have been filed against the same judgment dated 26 th October, 1999, passed by Fourth Additional Sessions Judge, Morena in Sessions Trial No. 74/1986, whereby the appellant No.1-Ram Singh of abovementioned Criminal Appeal No.559/1999 has been convicted under Section 302/34 of IPC and sentenced to life imprisonment with fine of Rs.2500/- with default stipulation, and appellant No.2-Ramnarayan has been convicted under Section 302 of IPC and sentenced to life imprisonment with fine of Rs.5000/- with default stipulation. Appellant Keshav Singh of Criminal Appeal No.588/1999 has also been convicted and sentenced under Section 302/34 of IPC, to undergo life imprisonment with fine of Rs.2500/- with default stipulation.
2. Admittedly, at the relevant time appellant-Ram Singh was Sarpanch of the relating Gram Panchayat and appellants Ram Singh and Ram Narayan are real brothers.
3. Prosecution's case in brief is that on 31.12.1984 at 21=30 hrs at Police Station Civil Lines, Morena, complainant Siyaram (PW-6) lodged First Information Report (Ex.P/5) to the effect that on that day at about 7=00 pm when he reached his house situated in village Bindwa Quari, Feran Singh Ka Pura, he heard the noise of a gun shot immediately followed by cries of his brother Matadeen, who was returning from his field to -( 3 )- CRA No. 559/1999 his house, that he is being assaulted by Sarpanch Ram Singh, Ram Narayan and Keshav with guns. He immediately reached to the spot with her nephews Soneram (PW-5) and Lakhan (PW-8), but by that time 4-5 shots had been fired. After reaching the spot near Siyaram saw Ram Narayan, Ram Singh and Keshav firing guns to kill his brother Matadeen. Thereafter, appellant Ram Narayan took the gun of his brother Ram Singh and fired a shot whose projectile hit the chest of Matadeen, who fell down on the ground. Thereafter, above mentioned three appellants fled away with their companions Brijlal, Dhaniram, Bishambhar, Babu, Siyaram and Sirnam through the field of mustard (Sarso). On complainant raising a hue and cry Sirnam and Rameshwar came from the village with a cot and carried injured Matadeen to Morena and after informing Police Station Civil Lines, Morena, the injured was taken to District Hospital, Morena where in the same night at 8=05 pm, Dr. Ravi Ratan Parashar (PW-9) after giving intimation to the Police Station, recorded Matadeen's dying declaration (Ex.P/21) as Matadeen's condition was much serious and critical. Matadeen expired a short time while thereafter. Death of Matadeen was also intimated by Dr. Parashar, whereafter Siyaram reached the Police Station to lodge the FIR.
4. In the FIR, another incident, occurred a day prior to date of incident, was also mentioned that on 30.12.1984 when complainant's cousin brother Badshah (PW-2) and complainant's nephews Nawal Singh and Virendra were grazing their goats, then Ram Singh Sarpanch, Ram Narayan, Siyaram, Balik Ram, Sirnam, Babulal, Maharaj Singh, Ganesh Ram, Sambhar and Keshav, who were armed with gun, farsa and sticks, -( 4 )- CRA No. 559/1999 came, hurled abuses and caused obstruction in grazing by claiming that the land belongs to them. Complainant's relatives replied that the land belongs to them, thereafter Ram Singh and Ram Narayan fired from their guns killing one of the goats. On the next day, i.e., 31.12.1984 at 7.00 a.m., Ram Singh and his companions abused and threatened that yesterday only one goat was killed but today one person will be killed. Thereafter, complainant reached the Police Station Morena in the morning but he was informed that the body of deceased goat should be brought for post-mortem by the veterinary doctor, whereafter the complainant returned to his village.
5. After registration of crime on the date of incident, in presence of panch witnesses after issuing Safina Form, an Inquest Memo (Ex.P/6) was prepared and dead body of Matadeen was sent for post-mortem. On next day, i.e., 1.1.1985, SHO Jagram Singh Kushwaha (PW-7) after inspecting the scene of occurrence prepared spot map (Ex.P/7) at the instance of complainant Siyaram. At the same time from the spot, 5 empty cartridges having base of brass and one iron blade/strip of 5 inch long were seized vide seizure memo (Ex.P/8) and bloodstained soil and separately plain soil were also seized by seizure memo (Ex.P/9). On 1.1.1985 at 8.30 am Dr. C.S.Bhadoriya (PW-3) started autopsy of the dead body of Matadeen and found an entry wound caused by firearm on left chest and one exit wound on back of the deceased and recorded post-mortem report (Ex.P/2, P/3 and P/4). The doctor sent the clothes worn by the deceased in a packet to concerned Police Station. During investigation, appellant Ram Narayan was arrested on 15.1.1985 and on his presentation a licencee mouser gun -( 5 )- CRA No. 559/1999 with 25 live cartridges and a licence book of licence holder/appellant Ram Singh were seized vide seizure memo (Ex.P/17). Appellant Ram Singh was arrested on 15.2.1985 vide arrest memo (Ex.P/18). Appellant Keshav was arrested on 15.3.1985. Other acquitted co-accused persons and two other accused persons (who died during the trial before the trial Court) were also arrested. The seized gun, empty cartridges, clothes of the deceased and other seized material were sent to the FSL, Sagar. After completing investigation, the charge sheet was filed and after committal of the case by the Magistrate Court to the Sessions Court it was transferred by the Sessions Judge to the abovementioned trial Court.
6. The trial Court framed charges under Sections 148, 302/149 and 302 of IPC against Ram Singh and appellant Ram Narayan was also charged for the offences punishable under Sections 148, 302/149 and 302 of IPC and present appellant Keshav and other co- accused persons (acquitted by the trial Court) were charged for the offence punishable under Sections 147 and 302/149 of IPC.
7. The appellants abjured their guilt. Nine prosecution witnesses were examined. It was the defence of the appellants that they have been falsely implicated due to political rivalry of Panchayat election. It was the specific defence of the appellant Ram Singh that on 31.12.1984 he was in Morena at relating medical shop where he was serving and after receiving the information that one injured was brought from his village to District Hospital, Morena, when he reached District Hospital Campus for seeing the injured, he was assaulted by complainant Siyaram and his companions and he received grievous injuries. He was also medically -( 6 )- CRA No. 559/1999 examined and admitted in District Hospital, Morena and a criminal case was also registered for causing injury to him against the complainant and his companions and prior to the incident he was residing in Morena. Dr. C.S.Bhadoriya (DW-1) and Dr. Yogendra (DW-2) were examined in defence for proving appellant Ram Singh's MLC report and x-ray report, respectively. Appellant Ram Singh's son Radheshyam (DW-3) and Ganeshram Sharma (DW-4) were examined as defence witnesses in relation to presence of Ram Singh at the medical shop owned by Ganeshram.
8. The trial Court after hearing, vide impugned judgment acquitted the tried accused persons Vasika, Siyaram, Sirnam, Dhaniram and Brijlal and also acquitted the appellant Ram Singh from the charge of Sections 302 and 148 of IPC but convicted Ram Singh under Section 302/34 of IPC instead of charged offence under Section 302/149 of IPC and sentenced as aforesaid and appellant Ram Narayan was acquitted from the charge of Sections 148 and 302/149 of IPC, but Ram Narayan was convicted and sentenced under Section 302 of IPC and sentenced as aforesaid. Similarly, appellant Keshav was acquitted from the charge of Section 147 of IPC, but he was convicted under Section 302/34 of the IPC instead of charged offence under Section 302/149 of IPC and sentenced as aforesaid.
9. Learned counsel for the different appellants vehemently contended that relating to the incident, two sets of evidence were produced by the prosecution; one in the shape of dying declaration of deceased Matadeen, according to which, fatal gun shot was fired by appellant Ram Singh whereas, according to another set of prosecution evidence in the shape of evidence given by -( 7 )- CRA No. 559/1999 eye-witnesses Siyaram (complainant)(PW-6), Ramlakhan (PW-8), Kapooribai (PW-1) and Soneram (PW-5), the fatal gum shot was fired by appellant Ram Narayan with Ram Singh's gun. There were material contradictions and inconsistencies between these two sets of contradictory evidence produced by prosecution and since each set of prosecution witnesses was contradicting the another, learned trial Court erred in partially believing one over the other. It is also vehemently argued that according to the FIR, incident occurred at 7 to 7-15 pm on 31.12.1984 and at this time in winter season, the identity of the assailants is totally doubtful in dark, as the source of light at that time was not established by the prosecution and the time of incident mentioned in the FIR is contradicted and rebutted by most of the eye-witnesses.
10. It is also pointed out by counsel for the appellants that there are material contradictions and inconsistencies between the evidence given by different prosecution witnesses on the material points i.e. at the time of incident where was the deceased standing; from which direction were the gun shots fired and from what distance; in total how many gun shots and by which firearm shots were fired; at the time of incident what was uttered by Matadeen, and how many accused persons were wielding firearms. There are material contradictions and omissions between the evidence given by each eye-witness and his police statement recorded during the investigation. It is also argued that it was proved by the defence evidence that appellant Ram Singh was in Morena at a Medical shop at the time of incident, but the trial Court erred in disbelieving the reliable defence evidence on this point. It is further -( 8 )- CRA No. 559/1999 submitted that compliance of Section 157 of CrPC regarding sending of copy of FIR to the concerning Magistrate was also not proved.
11. Regarding dying declaration of the deceased Matadeen, it is vehemently contended by learned counsel for the appellants that the time of incident is not mentioned in the dying declaration and at the relevant alleged time of recording of dying declaration, the deceased could not have been in a fit state to give any statement after receiving such fatal injuries on chest. It is also argued that the role of Ram Singh regarding causing fatal gun shot is totally contradicted by eye- witnesses. Hence, either dying declaration should have been discarded or eye-witness account given by the prosecution witnesses should have been discarded but instead the trial Court made up a new case by mixing both versions. It is argued by the learned counsel for the appellant Keshav that in dying declaration it is recorded that Ram Narayan and Keshav were having separate guns but some prosecution witnesses clearly deposed that Keshav was not wielding any gun and similarly Ram Narayan was not having any gun, hence it is submitted that both the prosecution versions were totally doubtful and contradictory.
12. Much emphasis has been given on the fact that though allegedly during investigation five empty cartridges were seized from the spot on 1.1.1985, but according to the prosecution's evidence, they were deposited in Malkhana of relating police station on 15.2.1985. Hence, the FSL report (Ex.P/22) that seized five empty cartridges were fired from the same licensed gun of appellant Ram Singh was totally unbelievable. Hence, it is prayed that the appeals be allowed and each -( 9 )- CRA No. 559/1999 appellant be acquitted of the charges. Learned counsel for appellants placed reliance on the judgments in the cases of State of Andhra Pradesh vs. Thadi Narayana (AIR 1962 SC 240); Nachhettar Singh and others vs. State of Punjab (AIR 1976 SC 951); Sukhram vs. State of MP (AIR 1989 SC 772); and Vijay Singh vs. State of MP (2005 Cr.L.J. 299)
13. Per Contra, learned Public Prosecutor appearing on behalf of the respondent/State supported the impugned judgment and submitted that the trial Court has properly and legally analyzed the entire evidence available on record, in the light of referred citations in it and it is well established that conviction can be based solely on dying declaration, whereas in case in hand, eye-witness account of prosecution witnesses is also available and otherwise reliable prosecution case could not be totally discarded only due to negligence or carelessness of investigator.
14. According to the evidence given by Dr. C.S. Bhadoriya (PW-3) and post-mortem reports (Exts. P/2, P/3 and P/4) on 1.1.1985 in the morning at 8-30 am, on starting of the post-mortem of deceased Matadeen, aged about 31 years, he found one hole on front portion of the shirt and one hole at the back portion of the shirt worn by the deceased and found following injuries:-
(i) An oval shaped wound, size 1cm x 0.8 cm., on left side of the chest, in second intercostal space, 8 cm. above from the left nipple and 8 cm. lateral to the mid sternal line and edges of this wound were inverted.
(ii) An irregular shaped wound, size 3 cm x 2 cm, on scapular region of the back, left side, whose margins were irregular and everted. This would was situated 6 cms. above and medial from the angle of the scapula and was -( 10 )- CRA No. 559/1999 7 cm. lateral to the mid line (vertebral column).
On probing, it was found that both wounds were interconnected, hence, the doctor opined that first was the entry wound and the second exit wound caused by gun shot prior to death. He deposed that on dissection of the deadbody, the scapula bone was broken on front side at the level of 2 nd and 3rd ribs and it was broken on back side at the level of 4 th and 5th ribs of the lower part of upper portion of left lung and upper part of lower portion of lung were ruptured and such laceration was of size 8cm x 6cm in total thickness of the lung and thoracic cavity was filled with blood on left side and in his opinion, deceased Matadeen had died due to shock because of excessive bleeding from both the wounds and he had died within 12 to 18 hrs. of the post-mortem. He deposed that he sealed the worn shirt and other clothes found on the dead body and sent them in a sealed packet to the police station. In cross-examination he deposed that entry wound was comparatively higher, whereas the exit wound was at lower side. In his cross-examination, PW-3 revealed that both the blood vessels which provide blood to the body and return the blood from heart to lungs respectively, were not damaged. Hence, till death of the deceased there was regular blood supply from the heart to both of the lungs. It thus was proved from the evidence available on record that deceased Matadeen met with homicidal death.
15. Dr. Ravi Ratan Parashar (PW-9) deposed that on 31st December, 1984 when he was on his duty at District Hospital, Morena on emergency duty, then police and some other people brought Matadeen in a severe condition, who was admitted by him in Male Surgical -( 11 )- CRA No. 559/1999 Ward and it was appearing that the injured will die within few time, hence he recorded dying declaration of Matadeen and before doing so, on examination he found that Matadeen was totally conscious and was in a fit condition to give statement and thus he recorded dying declaration in question and answer form and before recording dying declaration he certified on Ex.P/21 that the patient is fully conscious and in a position to give statement and recording of dying declaration was started at 8=05 pm. Matadeen revealed that 'his name is Matadeen, presently he is in Morena hospital, he is resident of village Bindwa Quari, the quarrel had occurred with Ram Singh Sarpanch, Ram Singh had fired shot on him and at that time Ram Narayan was with Ram Singh, Ram Singh's younger brother was also there and that 3 or 4 gun shots were fired, and that, Ram Singh, Keshav Thakur, Ram Narayan, Siyaram and Balika were present, and Ram Singh, Ram Narayan, Keshav and Siyaram, each was having separate firearm and that he is not giving statement under any duress or pressure'. Dr. Parashar deposed that recorded dying declaration was read over to Matadeen and as he was not in a condition to mark his signature, his thumb impression was taken at the lower part. Signatures of witnesses Sarnam Singh, Munshi and Kamla Nurse were also taken on dying declaration, who were present at the time of recording of dying declaration.
16. Though it is true that in the end of dying declaration, it was not recorded by Dr. Parashar that during recording of the statement Matadeen remained conscious but absence of such certification does not appear material because dying declaration was being recorded by the doctor and Dr. Parashar deposed in -( 12 )- CRA No. 559/1999 evidence that at the time of recording of dying declaration Matadeen was groaning due to pain and his condition was continuously deteriorating. Matadeen's thumb impression and thumb impression of witness Munshi were taken by ink of a pen but because of non- availability of ink-pad fulfillment of formalities by available means appears to be sufficient. Dr. Parashar also deposed that his emergency duty was from 5=00 pm to 8=00 pm on that day but as his reliever Dr. C.S. Bhadoriya had not come to hospital, hence he was treating Matadeen and he also explained that as no requisition from police regarding MLC of Matadeen was received at that time, hence the injuries of Matadeen were not recorded in the MLC register kept in the hospital. Dr. Parashar also deposed that at that time oxygen tube was attached to Matadeen but mask was not worn by him. No such circumstance was suggested in the cross-examination of Dr. Parashar (PW-9), which could demonstrate Dr. Parashar being prejudiced for or against the appellants.
17. Dr. C.S.Bhadoriya (PW-3), who conducted autopsy of the deceased Matadeen, clearly deposed in cross- examination that blood vessels supplying blood to the body and the blood vessels which return the blood to the lungs were not damaged, hence till death blood was being supplied to the lungs and in such situation, Matadeen could remain in fit state of speaking.
18. Much emphasis has been given by learned counsel for the different appellants on the fact that Dr. Ravi Ratan Parashar (PW-9) gave written intimation (Ex. P/22) to the SHO regarding death of Matadeen at 9=00 pm but in Ex.P/22 it was not mentioned by him that he has recorded dying declaration of Matadeen. No such -( 13 )- CRA No. 559/1999 intimation was required in the letter reporting about the death of the injured brought to the hospital. Original bed-head ticket of Matadeen of District Hospital, Morena is on record as Ex.D-5 and in its beginning just after admission of Matadeen, in margin of the bed-head ticket it is clearly recorded that 'dying declaration recorded' and Dr. Parashar has proved his and other doctor's signatures on this bed-head ticket (Ex.D/5). At the end of this bed-head ticket spread on three pages, signature of a Head Constable is also appearing below the entry regarding receiving a copy of dying declaration. It is clear from the evidence and the judgment of the trial Court (para 19) that at the time of recording of evidence before the trial Court record of District Hospital Morena was called by the trial Court and received, wherein a carbon copy of the recorded dying declaration of Matadeen was also available, which was totally in accordance with Ex.P-21, hence just due to giving of dying declaration to police officer, it could not be discarded.
19. Complainant Siyaram (PW-6) deposed in his cross- examination that dying declaration was recorded in his and Investigating Officer Jagram Singh Kushwaha's presence but it is clear from the total evidence given by Dr. Parashar (PW-9) that at the time of recording of dying declaration of Matadeen by him, no relative of the deceased nor any police official was present in the room except Matadeen and three witnesses who have signed on dying declaration (Ex.P/21). The trial Court has also referred to many citations about the dying declaration and thus we are of the considered opinion that the trial Court did not commit any error in recording its finding that the dying declaration (Ex.P/21) given by Matadeen -( 14 )- CRA No. 559/1999 was recorded by Dr. Ravi Ratan Parashar (PW-9).
20. Before examining the veracity of various facts mentioned by the deceased in his dying declaration and by above mentioned four eye-witnesses in their depositions, it would be proper to discuss about some facts regarding circumstantial evidence. Investigating Officer Jagram Singh Kushwaha (PW-7) prepared spot map (Ex.P/7) in the morning of 1.1.1985 at the instance of complainant Siyaram (PW-6). According to the facts mentioned in the spot map (Ex.P/7), fatal injury from gun shot was sustained by Matadeen on western maidh (boundary) of agricultural land of Laxminarayan @ Lachchhi. According to the spot map (Ex.P/7), Laxminarayan's agricultural land is adjacent to the dagra (Kachcha path or road) situated between Baretha and village Feran Singh Ka Pura. In the spot map from starting over outline diagram it is clearly recorded that on which place blood-stained soil was found and at about 60 feet distance from it, five empty cartridges were found at the same time, which were separately seized along with an iron blade having length of about 5" vide seizure memo (Ex.P/8). The places wherefrom these empty cartridges were recovered are clearly mentioned in the above mentioned dagra or nearer to it, and the distance of Feran Singh Ka Pura, where complainant and other witnesses reside, is shown as at about one furlong away from the spot. During investigation, a rifle has been recovered which is a licensed gun of Ram Singh and according to ballistic expert of FSL Sagar's report (Ex. P/22), all the above mentioned recovered empty cartridges from spot on 1.1.1985 were found to be fired by the seized rifle in laboratory after comparing the firing pin impression and breech face marks found on -( 15 )- CRA No. 559/1999 these empty cartridges with two test cartridges fired from the same gun.
21. Regarding ocular evidence, it is argued that most important contradiction or discrepancy is regarding the time of the incident as in the FIR (Ex.P/5) lodged by complainant Siyaram (PW-6), the time of incident is mentioned as 7 to 7=15 in the evening of 31.12.1084. Some prosecution witnesses have admitted in cross- examination that in winter season generally sun sets at 5=30 pm and much darkness sets in at about 7=00 pm. Contrary to FIR, complainant clearly deposed in cross- examination (para 30) that at the time of lodging report he has mentioned the time of murder as sunset and at the time of incident daylight was available. Siyaram (PW-6) deposed that on the date of incident, before evening, he had reached his house situated at village Bindwa Quari and about one hour later he heard the sound of his brother's shouting 'run, he has been surrounded and being killed', thereafter he, Soneram (PW-5), Lakhan @ Ram Lakhan (PW-8), Jabar Singh and Kapoori from their houses reached the scene of occurrence, where he saw that three persons, namely, Ram Singh, Ram Narayan and Keshav fired a shot from their gun and at that time Siyaram, Balika, Brijlal, Dhaniya, Vishambhar, Babu and Sirnam were also with the appellants. In examination-in-chief, Siyaram deposed that all the three appellants of both these appeals separately fired which caused injury on left side of chest of Matadeen and he fell down. Thereafter, Ram Singh and his companions fled away shouting that 'sala, has been killed'.
22. According to the FIR lodged by complainant Siyaram, appellant Ram Narayan after taking Ram -( 16 )- CRA No. 559/1999 Singh's gun had fired the fatal shot at Matadeen and in cross-examination complainant in para 25 admitted that he had mentioned the fact regarding taking of Ram Singh's gun by Ram Narayan and thereafter fatal shot was fired by Ram Narayan. In para 25, he clearly deposed that he viewed that the shot fired by Keshav and separate shot fired by Ram Singh did not hit Matadeen. In para 22, Matadeen deposed that when each of the appellants Ram Singh, Ram Narayan and Keshav fired shot on Matadeen then they were standing at dagra (kachcha path). In next para, he deposed that in his presence two or three shots from respective guns were fired but he could not tell how many shots were fired by each of these three appellants. He deposed that when gun shot hit Matadeen then he was also standing near Matadeen. In para 28, complainant deposed that when he reached the spot he saw his brother Matadeen sitting in such position as people sit on indian style toilet seat but when Matadeen tried to stand up to run, at that time he received the fatal gun shot. It is clear that there are some contradictions, omissions and improvements in complainant's evidence in comparison to his FIR and his police statement (Ex.D/1). He clearly denied the fact that in the report and police statement he had stated that on the date of incident he reached his house at about 7=00 pm.
23. Complainant and deceased's real sister Kapoori Bai (PW-1) deposed that on the date of incident, at the time of sunset she was at her brother's house then she heard the cries of Matadeen that Ram Narayan, Ram Singh and Keshav are killing him with the help of guns. When she reached the mustard field where Matadeen was present she further saw Siyaram, Soneram and Ram Lakhan -( 17 )- CRA No. 559/1999 having separate guns along with Ram Narayan. Ram Narayan took the gun of Ram Singh and fired a gun shot which hit Matadeen in the chest and while fleeing away accused persons were heard shouting that 'Matadeen had died, now Siyaram, Soneram and Ram Lakhan be also killed'. In para 8 Kapoori reiterated that the incident had occurred at the time of sunset, but thereafter she admits that at the time of recording of her police statement she had mentioned the time as 7=30 or 7=00 pm to the Investigating Officer. In para 10, she deposed that at the time of incident she was standing at a distance of only two or three hands from Matadeen in Laxminarayan's field and above mentioned dagra was about 3-4 hands wide. She also deposed that after her reaching on spot, she heard sound of only one gun shot. She deposed that at the time of firing of fatal shot, Matadeen and relating accused were on same level. In para 33, she deposed that at the time of sustaining fatal shot by Matadeen, complainant Siyaram was standing close to Matadeen.
24. Soneram (PW-5) deposed that on the date of incident in the evening, his uncle Matadeen had gone to his agricultural land. At that time in the mustard fields, Brijlal, Dhaniya, Shambhar Singh and Keshav were hiding themselves when Ram Singh, Ram Narayan, Balika, Sirnam and Babu were standing in the way when Matadeen was returning from his field, all the above mentioned persons surrounded Matadeen when Matadeen shouted. Thereafter, PW-5, the complainant, Ram Lakhan and Kapoori Bai reached the spot from their house and saw Ram Narayan firing gun shot from mouser gun which hit the chest of Matadeen. Soneram (PW-5) deposed that his uncle Siyaram (PW-6) lodged the -( 18 )- CRA No. 559/1999 FIR registered by SHO at Morena hospital. In cross- examination, he deposed that at the time of incident, daylight was available. Soneram improved his statement by deposing that after Matadeen sustained fatal injury the accused persons while fleeing away had also fired towards them. He clearly deposed in para 5 that in his presence only fatal gun shot was fired by Ram Narayan. In para 9, Soneram deposed that the incident had occurred about one hour prior to 5=00 pm and after incident when they reached Morena, at that time little daylight was available. He admitted in same para that in winter season at 6 or 7 pm it is dark and thus no man can be visible from a distance of two hands.
25. Ram Lakhan (PW-8) deposed that on the date of incident, at 7=00 pm in the evening when he was at home, he heard Matadeen shouting that he is being surrounded and killed. Thereafter PW-8 with Siyaram, Soneram and Kapoori reached the spot. At that time, each of Ram Singh and Ram Narayan was firing shot at Matadeen to kill him and at that time Siyaram (acquitted accused by the trial Court) was present but empty handed. PW-8 did not see any other accused and Ram Narayan's gun shot hit Matadeen and he fell down on the maidh or boundary of Lachchhi @ Laxminarayan's agricultural land. He clearly deposed that at the time of incident Ram Singh and Ram Narayan were having separate mouser guns. Ram Lakhan did not speak anything about the appellant Keshav. It is significant to mention here that Ram Lakhan stated only names of three accused persons Ram Singh, Ram Narayan and Siyaram.
26. The evidence of two nephews of complainant and deceased, Badshah (PW-2) and Nawal Singh (PW-4), is -( 19 )- CRA No. 559/1999 related to the incident of killing of one of their goats by shot fired by Ram Singh, one day prior to the date of incident of Matadeen's murder. It is clear from the facts emerged from their cross-examination that complainant Siyaram (PW-6) and Soneram (PW-5) were tried for murder of Shambhar Singh, who was real brother of appellant Keshav. It would be significant to mention here that Keshav's brother Shambhar Singh was also accused before the trial Court, but due to his death during trial, the case abated against him. It would also be significant to mention here that in a separate criminal case decided by JMFC Morena, Ram Singh and some of his companions were acquitted from the offence of killing of one goat on 30.12.1984. Similarly facts came in cross- examination of Siyaram (PW-6) that Soneram and Ram Lakhan with their companions were acquitted by the Sessions Court for alleged attempt to murder of the appellant Ram Singh at Morena Hospital Campus in the night of 31.12.1984.
27. It is the defence of appellant Ram Singh that he was having rivalry on account of Panchayat election with the complainant but the complainant Siyaram (PW-6) deposed in cross-examination that he instigated Ram Singh for leaving his service and helped him in getting elected as Sarpanch of gram panchayat. Badshah (PW-2) deposed in cross-examination (para 14) that complainant Siyaram had previously fought election for the post of Member against Roshanlal.
28. Much emphasis has been given by the appellant's learned counsel that the incident of killing of one goat belonging to the nephews of complainant, is not of such nature which could provide any motive for the murder in question. It is well established that motive for murder, -( 20 )- CRA No. 559/1999 comparatively has importance in cases based only on circumstantial evidence.
29. According to the evidence of Investigating Officer Jagram Singh Kushwaha (PW-7) and spot map (Ex.P/7), village Feran Singh Ka Pura of Bindwa Quari is about one furlong away from the scene of occurrence, hence hearing the sound of firing at the house of complainant is possible, but it appears that there are some contradictions and discrepancies in evidence of Kapooribai (PW-1), Soneram (PW-5), Siyaram (PW-6) and Ram Lakhan (PW-8). There are contradictions and omissions between their depositions and police statements recorded during the investigation. It is clear that there are some improvements and exaggerations in the evidence of above mentioned four prosecution eye- witnesses. According to the testimony of Ram Lakhan (PW-8), he had seen only Ram Singh, Ram Narayan and Siyaram. Appellant Keshav is even not named by Ram Lakhan (PW-8). Some of the eye-witnesses have deposed that firing had started prior to Matadeen raising hue and cry and thereafter they reached near Matadeen to witness the incident.
30. In above mentioned peculiar facts and circumstances of the case, it is clear that the eye- witnesses have introduced some improvements and exaggerations. Regarding improvements or exaggerations made by prosecution witnesses, it has been observed by the Apex Court in the case of State of UP vs. Anil Singh (AIR 1988 SC 1998) as follows :-
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added -( 21 )- CRA No. 559/1999 by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini, 24 Cal WN 626 : (AIR 1919 PC 157), the Privy Council had this to say:
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."
14. In Abdul Gani v. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.
15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as -( 22 )- CRA No. 559/1999 utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
31. In the light of above mentioned citation, it is clear that due to some improvements or exaggerations made by eye-witnesses, their total evidence could not be discarded, as eye-witness account given by the prosecution witnesses receives corroboration from FSL report (Ex.P/22) that Matadeen was shot dead only by the appellant Ram Singh's licensed gun and in such established facts and circumstances, the presence of Ram Singh on spot could not be doubted. Hence, comparatively eye-witness account given by eye- witnesses complainant Siyaram and others that Ram Narayan of firing the fatal gun shot by Ram Singh appears to be reliable and presence of Ram Singh with Ram Narayan on scene of occurrence is established by eye-witness account given by complainant and others and even by dying declaration of Matadeen.
32. It is well settled that the dying declaration alone could be the basis of conviction, but it appears from the dying declaration (Ex.P/21) that deceased Matadeen also stated that out of total accused persons Ram Singh, Ram Narayan, Keshav and Siyaram, each was having a separate gun, but during investigation except Ram Singh's licensed mouser rifle, no other gun is recovered.
33. So far as the appellant No.1-Ram Singh and No.2- Ram Narayan of Criminal Appeal No. 559/1999 are concerned, according to the dying declaration, in reply to the question on point that who caused fatal shot, -( 23 )- CRA No. 559/1999 Matadeen had replied that Ram Singh had caused firearm injury to him but in same sentence he also added that Ram Narayan was with him. In reply to next question that who were with them, Matadeen again replied that Ram Singh's younger brother was with him. Undisputedly, appellant Ram Narayan is younger brother of the appellant Ram Singh.
34. In the case of Jagdish Lal Malhotra vs. The State [1984 (2) Crimes 108], it is observed that if the broad statement of facts made in the dying declaration is at variance with the other evidence of the prosecution, then it will render the dying declaration as untrustworthy and suspicious, but in case in hand the difference is only on the point that who fired fatal shot on Matadeen. According to the dying declaration of Matadeen, fatal gun shot was fired by appellant Ram Singh, whereas according to the FIR promptly lodged by complainant Siyaram (PW-6) and complainant's evidence, fatal gun shot was fired by appellant Ram Narayan from the licensed gun of his brother appellant Ram Singh. Matadeen also stated in dying declaration that only 3 or 4 gun shots were fired.
35. It is clear that under investigation except the licensed gun of Ram Singh, no other gun was seized from any other appellant or acquitted accused. Hence, it is clear that some other facts stated by Matadeen in his dying declaration (Ex.P/21) are contradicted by eye- witness account given by complainant Siyaram. It is clear from the evidence of complainant Siyaram that when firing took place at the scene of occurrence, then deceased tried to save himself by hiding in the mustard crop standing in Laxminarayan's field and by circumstantial evidence it is proved that all five -( 24 )- CRA No. 559/1999 cartridges were fired by Ram Singh's gun, hence it is clear that except the last fired shot, previous shots remained did not find the target, i.e., Matadeen. In such circumstances, the possibility could not be ruled out that when Ram Singh remained unsuccessful by previous four gun shots fired by him, then last shot was fired by Ram Narayan after taking Ram Singh's licensed gun. It is clear from the evidence that Matadeen was trying to save himself from being shot and therefore could not be expected to have watched the incident clearly. Matadeen may have seen firing of previous gun shots by Ram Singh, hence he stated in dying declaration that fatal shot was fired by Ram Singh Sarpanch but it is possible that he may not have seen that who fired the last gun shot. In dying declaration Matadeen clearly deposed that younger brother of Ram Singh, i.e., Ram Narayan was with Ram Singh and he clearly stated about presence of Ram Narayan in other sentences of his dying declaration.
36. The seriously injured Matadeen was taken to District Hospital Morena promptly where his dying declaration was recorded by Dr. Ravi Ratan Parashar (PW-9) and after his death FIR was lodged by complainant Siyaram (PW-6) in same night at 21=30 hours at Police Station Civil Lines, Morena. It would be significant to mention here that if the incident had not been eye-witnessed by complainant Siyaram (PW-6) and some other witnesses, it would not have been possible for them to take the injured Matadeen to District Hospital, Morena for treartment. As the incident occurred near the house of complainant and his family members, then it was possible for them to hear the sound of firings of gun shots and to reach the scene of -( 25 )- CRA No. 559/1999 occurrence. The fact stated by Matadeen in his dying declaration (Ex.P/21) that fatal shot was fired by Ram Singh appears to be erroneous and on this point the evidence of complainant Siyaram (PW-6) supported by his prompt FIR appears comparatively more reliable that last/fatal shot was fired by Ram Narayan through Ram Singh's licensed gun.
37. It has been argued that the compliance of Section 157 of the CrPC regarding sending copy of the FIR to the relating Magistrate is not proved by the prosecution, but in present case dying declaration of deceased Matadeen at District Hospital Morena was recorded by Dr. Ravi Ratan Parashar (PW-9) at 8=05 pm and FIR was lodged at 21=30 hrs of same day. It is clear that in the same night written intimation was forwarded by the District Hospital to the relating police station regarding bringing of injured Matadeen to the hospital and later on about his death during the treatment, which indicates that investigation promptly commenced. Hence, in such state of affair, the prosecution case cannot be discarded merely for non-compliance of Section 157 of the CrPC vide [Susanta Das vs. State of Orissa (AIR 2016 SC
589).
38. Regarding circumstantial evidence reflected from evidence of Investigating Officer Jagram Singh Kushwaha (PW-7) it appears that Ram Singh's licensed gun was seized by him on 15.1.1985 after appellant Ram Narayan's arrest on the same day vide arrest memo (Ex.P/16) and on same day on production by Ram Narayan a rifle MP Bore licence in the name of Ram Singh with 25 live cartridges and Ram Singh's licence book were seized by him vide seizure memo (Ex.P/17) and the gun was sealed and its licence and live cartridge -( 26 )- CRA No. 559/1999 were separately sealed in presence of witnesses Bhoop Singh and Sobran. From the evidence of Investigating Officer Jagram Singh Kushwaha (PW-7) it appears that relating seized gun and previously seized five empty cartridges and one iron blade were deposited in Malkhana of Police Station Civil Line, Morena on 15.1.1985 vide Malkhana Register of concerning police station. It has been argued by the learned counsel for appellant Ram Singh that as allegedly seized five empty cartridges on 1.1.1985 were not deposited in relating Malkhana on 1.1.1985, hence their deposit on 15.1.1985 in Malkhana with the seized rifle indicates unfairness in the investigation. Jagram Singh Kushwaha (PW-7) deposed that after seizure of five empty cartridges and iron blade, their seizure was also recorded in Rojnamcha on 1.1.1985 and the relating material was handed over to Head Moharrir for depositing in Malkhana and the Head Moharrir made entries at his convenience.
39. In the light of the judgment in the cases of Krishnegowda vs. State of Karnataka (AIR 2017 SC 1657) and Sudha Renukaiah vs. State of A.P. (AIR 2017 SC 2124), it is clear that due to negligence or carelessness of Investigating Officer or other police official due to late deposit of empty cartridges in Malkhana, recovery and seizure of five cartridges on 1.1.1985 could not be doubted, as previously mentioned in spot map (Ex.P/7) prepared on 1.1.1985 itself by the same Investigating Officer, the places of recovery of each empty cartridge is separately shown in outline diagram by giving a different letter to each place of its recovery and the distance of five empty cartridges from blood stained soil as about 60 feet has also been clearly mentioned in spot map and on 1.1.1985 by a separate -( 27 )- CRA No. 559/1999 seizure memo (Ex.P/8) the recovery of five empty cartridges with an iron blade is separately described in detail. According to the ballistic report of FSL Sagar (Ex.P/22), the recovered iron blade was a part of licensed rifle of appellant Ram Singh. As facts regarding these empty cartridges were mentioned on 1.1.1985 in different documents prepared during investigation, their mere late deposit in Malkhana or late entry in Malkhana Register cannot not make their recovery doubtful.
40. According to the ballistic expert's report of FSL Sagar (Ex.P/22) these empty cartridges were fired from the licensed gun which was seized on 15.1.1985. This circumstantial evidence also corroborates the use of appellant Ram Singh's licence gun in the murder of Matadeen.
41. The defence of appellant No.1-Ram Singh is relating to his plea of alibi based on other incident which occurred in the same night at Morena, wherein he received grievous injury with other injuries.
42. Dr. C.S.Bhadoriya (PW-3), who proved post-mortem report (Ex.P/2, P/3 and P/4) of deceased Matadeen, was also called as defence witness No.1, to prove the entries made in Medico Legal Register maintained in District Hospital, Morena. It appears from the record and documentary evidence (Ex. D/11) that the record of Sessions Trial No. 30/1986 was eliminated as accused persons of that trial Ram Lakhan @ Lakhan, Gabbar, Soneram, Chhote, Kilola and Sobran Singh were acquitted by the relating trial Court vide judgment dated 27.7.1990 from the charge of Sections 307, 325, 149, 148 and 323/149 of the IPC. As the original record of the relating sessions trial was eliminated, appellant Ram -( 28 )- CRA No. 559/1999 Singh's MLC (Ex.D/6) was proved from above mentioned register by Dr. C.S. Bhadoriya, who deposed that on 31.12.1984 at 10=00 pm he found 4 lacerated wounds and one incised wound on Ram Singh's head and advised for x-ray examination and as Ram Singh's condition was serious, he referred him to JA Hospital, Gwalior. Dr. Yogendra Singh (DW-2) deposed that in the night of 31.12.1984, on x-ray examination of skull of appellant Ram Singh on advice of Dr. C.S.Bhadoriya, he found multiple fractures in parietal bone of skull of Ram Singh and Dr. Yogendra Singh gave his statement on the basis of x-ray register maintained in District Hospital, Morena. Hence, it appears in the same night, appellant No.1-Ram Singh received grievous and simple injuries but as it appears that relating accused persons of incident occurred at Morena have been acquitted, there appears no necessity for discussing about it.
43. Appellant Ram Singh's son Radheshyam Sharma (DW-3) deposed that on 31.12.1984, when he was studying and residing at Gopalpura, Morena with his parents and other brothers and sisters, he was with his father at Ganesh Medical Stores.
44. Ganesh Ram Sharma (DW-4) deposed that appellant Ram Singh was working as a qualified person in Ganesh Medical Stores, Morena, which is his shop since 1982 but in cross-examination (para 8), he deposed that actually Ram Singh was a partner in his above mentioned medical shop. He also deposed that the medical shop's licence was issued in the name of Ram Singh. Radheshyam and Ganesh Ram deposed that in the night at Ganesh Medical Store Morena, Ram Singh received intimation that quarrel had occurred in his village at Bindwa Quari then Ram Singh went to District -( 29 )- CRA No. 559/1999 Hospital Campus where he was assaulted by some persons of complainant party and after being unconscious he was taken to hospital and remained admitted and was treated for several months. Ganesh Ram Sharma (DW-4) deposed that he went with Ram Singh to the District Hospital Campus but appellant Ram Singh's son Radheshyam Sharma (DW-3) had not deposed that at that time Ganesh Ram Sharma was also present at the shop. Radheshyam Sharma had deposed that only his father went to District Hospital, Morena and after receiving intimation about his father being assaulted, he reached the hospital. In FIR (Ex.P/5), the distance of village Bindwa Quari, Feran Singh Ka Pura from Police Station Civil Line Morena is mentioned as 5- 1/2 miles. The prosecution witnesses have deposed that at the relevant time appellant Ram Singh was Sarpanch of the Gram Panchayat concerned.
45. Complainant Siyaram (PW-6) admitted in his cross- examination (para 30) that appellant Ram Singh's children were studying in Morena, but Ram Singh's wife is residing in village Bindwa Quari and Ram Singh used to go to Morena from village Bindwa Quari as he was Sarpanch of the same village and on the date of incident he was in village Bindwa Quari.
46. Defence witnesses Radheshyam Sharma (DW-3) and Ganesh Ram Sharma (DW-4) deposed that bills were prepared and signed by the appellant Ram Singh at the above mentioned medical shop, but no bill or bill book in relation to the date of incident was produced or proved before the trial Court in defence. Hence, in such circumstances, it could not be inferred that it was impossible for Ram Singh to be in village Bindwa Quari on the date of incident.
-( 30 )- CRA No. 559/199947. An important fact is to be remembered that according to the prosecution's case the appellant Ram Singh's licensed rifle was used in the incident and according to the FSL report, all the recovered empty cartridges on 1.1.1985 in the investigation were fired from Ram Singh's licensed gun. Therefore, the use of above mentioned gun is established, hence if on the date of incident Ram Singh would have been in Morena then use of his licensed gun in the incident occurred in the evening of 31.12.1984 would have been impossible. The use of Ram Singh's licensed gun in incident occurred in his native village confirms his presence on spot and negates his plea of alibi.
48. After considering the total evidence available on record, so far as the role of present appellants Ram Singh and Ram Narayan is concerned, it appears that the trial Court's finding that Matadeen was murdered by appellant Ram Narayan in furtherance of common intention of his and his brother appellant Ram Singh appears to be totally justified, but so far as appellant Keshav Singh is concerned, it is clear that trial Court erred in reaching to the conclusion that Matadeen was murdered by Ram Narayan in furtherance of common intention of Ram Narayan, Ram Singh and Keshav, as similarly placed other accused persons Balika, Sirnam, Dhaniram and Brijlal have been acquitted by the trial Court and their acquittal is even not challenged by the prosecution. We are of the considered view that Keshav is entitled to similar reasonable benefit of doubt, which is given by the trial Court to above mentioned acquitted accused persons.
49. Therefore, it is clear that Criminal Appeal No.588/1999 filed by Keshav Singh is worthy of -( 31 )- CRA No. 559/1999 acceptance, whereas another Criminal Appeal No.559/1999 filed by both real brothers appellants Ram Singh and Ram Narayan is having no substance.
50. In the result, Criminal Appeal No. 559/1999 filed by appellants No.1-Ram Singh and No.2-Ram Narayan is hereby dismissed and their conviction and sentences as recorded by the trial Court are affirmed. Appellants Ram Singh and Ram Narayan who are on bail after suspending their sentences are directed to immediately surrender before the trial Court to serve out their remaining jail sentence.
51. However, Criminal Appeal No.588/1999 filed by appellant-Keshav Singh is allowed and Keshav Singh's conviction and sentence as recorded by the above mentioned trial Court are set aside and Keshav Singh is acquitted from the charge of Section 302/34 of the IPC. Appellant Keshav is on bail, his presence is no more required before this Court and, therefore, it is directed that his bail bonds shall stand discharged. The trial Court's order regarding disposal of seized property is affirmed.
With a copy of this judgment record of the trial Court be sent back immediately.
(Sheel Nagu) (Ashok Kumar Joshi) (Yog) Judge Judge Digitally signed by VALSALA VASUDEVAN Date: 2018.04.24 18:28:51 -07'00'