Madhya Pradesh High Court
Rajbahadur Singh vs State Of M.P. on 24 March, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010)
Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 620 of 2010
Hotam Singh & Ors.
Vs.
State of M.P.
Cr.A. No. 666 of 2010
Rajbahadur Singh
Vs.
State of M.P.
_______________________________________
Shri R.K Sharma Sr. Advocate with Shri M.K. Choudhary Counsel
for the Appellants in Cr.A. No. 620 of 2010
Shri Anand Purohit Counsel for Appellant Rajbahadur Singh in Cr.A.
No. 666 of 2010
Shri C.P. Singh, Counsel for the State
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Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010)
Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
Date of Hearing : 14-03-2022
Date of Judgment : 24th-03-2022
Approved for Reporting :
Judgment
24th- March -2022
Per G.S. Ahluwalia J.
1.Cr.A. No.s 620 of 2010 and Cr.A. No. 666 of 2010 have been filed against the Judgment and Sentence dated 28-7-2010 passed by Additional Sessions Judge, Ambah, Distt. Morena in S.T. No. 292 of 2005 by which the appellants Hotam Singh, Raj Kumar, Rajesh Singh, Jabar Singh, and Rajbahadur have been convicted under Section 148, 302/149 and 323/149 of I.P.C. For offence under Section 148 of IPC they have been sentenced to undergo Rigorous Imprisonment of One year and a fine of Rs. 200/- in default 1 month R.I., for offence under Section 302/149 of IPC for Life Imprisonment and fine of Rs. 1,000/- in default 3 months R.I. and for offence under Section 323/149 of IPC, fine of Rs. 100/- in default 1 week S.I.
2. It is not out of place to mention here that the co-accused Rajaram was convicted but during the pendency of this appeal, he has expired and the appeal filed by him was dismissed as abated by order dated 28-10-2015.
3. According to prosecution story, the injured Rustam Singh lodged a Dehati Nalishi on 2-3-2004 at 23:30, on the allegations that they are four brothers and have some vacant land in village Prempura. 3
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) Hotam Singh was insisting that they should leave the said land. Yesterday, he had given an ultimatum to vacate the land. Today, when he was coming back from Porsa to village Prempura, then he was stopped by Rajesh son of Hotam Singh, Shiv Singh son of Hotam Singh, and they offered liquor. When he refused to do so, then Rajesh caught hold of his neck and Shiv Singh assaulted on his head by handle of the gun as a result, blood started oozing out. He ran towards his house and was screaming. Hotam Singh, his sons Shiv Singh, Jabar Singh, Rajkumar, Rajaram son of Chimman Singh, Rajbahadur son of Tilak Singh came together in furtherance of common object and attacked his house. After hearing the noise, his brother Janved Singh, Ummed Singh, his wife Rani came out of the house in order to save him. Rajaram was having gun. He handed over the same to Rajesh, who shot his brother Janved. Hotam Singh and his sons assaulted his wife Rani and brother Ummed Singh by lathis as a result they sustained injuries on their head. After hearing noise, Mukesh son of Udaibhan Singh and Reema daughter of Kripal Singh also came on the spot and witnessed the incident. It was a moon night therefore, he has witnessed the entire incident. On the issue of land, Hotam Singh, Shiv Singh, Rajesh, Rajkumar, Jabar Singh, Rajbahadur and Rajaram have killed his brother Janved and have caused injuries to the complainant Rustam Singh, Rani and Ummed Singh.
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Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
4. On this report, FIR was lodged. Spot map was prepared. The Mobile FSL unit also carried out the inspection of the spot. The post- mortem of the dead body was got conducted. Incriminating articles were seized from the spot. The statements of witnesses were recorded. The appellants were arrested. The incriminating articles were sent to F.S.L. The police after concluding the investigation, filed charge sheet against the Appellants and Rajaram (died during the pendency of the appeal) for offence under Sections 302,307,323, 147,148,149 of IPC.
5. The Trial Court by order dated 11-7-2007 framed charges under Sections 302/149,323/149 and 148 of IPC. By order dated 12- 9-2007 additional charge under Section 30 of Arms Act was also framed against Rajaram.
6. The Appellants and Rajaram abjured their guilt and pleaded not guilty.
7. The prosecution examined Mukesh (P.W.1), Smt. Rani (P.W.2), Smt. Bai (P.W.3), Vijay Bahadur Singh (P.W.4), Chakrapan (P.W.5), Surendra Kumar Dubey (P.W.6), Vishambhar Singh (P.W.7), Vasharad Khan (P.W. 8), Sarif Khan (P.W.9), Dr. A.K. Khan (P.W.10), Shivram Singh (P.W.11), Smt. Reema Parihar (P.W. 12), Shiv Kumar (P.W. 13), Suryadev Tiwari (P.W. 14), Ranveer Singh (P.W. 15), Ramshankar Singh (P.W. 16), Ummed Singh (P.W.17), Dr. R.S. Sikarwar (P.W. 18), Ranveer Singh Vaishya (P.W. 19), R.V.S. Bhadoriya (P.W. 20) and J.S. 5 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) Bhadoriya (P.W. 21).
8. The appellants did not examine any witness in their defence.
9. The Trial Court by the impugned Judgment has convicted and sentenced the appellants for the offences mentioned above.
10. Challenging the judgment passed by the Court below, it is submitted by the Counsel for the Appellants that the allegations of firing is against Rajesh Singh. Rustam Singh had lodged the Dehati Nalishi, and before he could be examined, he was killed, therefore, FIR has not been proved. In the Dehati Nalishi, Ex. P.29, the date 3- 3-2004 has been mentioned below the signatures of the writer, therefore, it is incorrect to say that Dehati Nalishi, Ex. P.29 was lodged on 2-3-2004 at 23:30. The place of incident has been changed from the door of the house of Deceased Janved to the door of the house of Rustam. If the assailant was standing at the well, then the door of the house of Janved is not visible, therefore, the deceased could not have sustained the gun shot injury. Seized gun was not sent to F.S.L. All the witnesses are related witnesses, therefore, their evidence is liable to be scrutinized very minutely. The provisions of Section 157 of Cr.P.C. has not been complied with in its letter and spirit. Even if the entire evidence is accepted, the prosecution has failed to prove that the other accused persons were the members of unlawful Assembly and had acted in furtherance of Common Object.
11. Per contra, the Counsel for the State has supported the findings 6 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) recorded by the Trial Court.
12. Heard the learned Counsel for the parties.
13. In the present case, Janved Singh Tomar is the deceased, whereas Rani, Ummed Singh and Rustam Singh are the injured. Rustam Singh was killed during the pendency of the Trial, and some of the appellants were facing trial for the murder of Rustam Singh also. However, the Counsel for the Appellants could not point out the outcome of said Criminal Trial.
14. Dr. R.S. Sikarwar (P.W.18) has conducted the post-mortem of the deceased Janved Singh and found the following injuries on his body :
Injuries over dead body
(i) Multiple gun shot wounds of size 1 cm x 1 cm x deep upto thoracic cavity all over left side of chest anterior aspect with clotted blood present
(ii) Multiple gun shot wounds of size 1 cm x 1 cm x muscle deep over upper part left arm anterolateral aspect with clotted blood present.
On examination of cloths neharucut (Jacket) is having multiple holes on its left side chest area, Ooni Sweater full Aastin is having multiple holes on its left side chest area and upper part left arm area. These holes of both clothes are corresponding to the multiple gun shots wounds over left side chest and upper part left arm area.
On internal examination, left lung, Pericardium and heart were found ruptured.
Injuries no.1 and 2 were caused by firearm within 24 hours of duration and antemortem in nature.
The post-mortem report is Ex. P.24.
15. This witness was cross-examined. In cross-examination, he stated that no through and through gun shot injury was found on the 7 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) dead body of Janved. Thus, witness was also not in a position to say that by which weapon, the injuries were caused to the deceased. He did not try to find out the blood group of the deceased. The post- mortem continued for about 1 hour. He denied that pellets removed from the dead body were not given to the police constable immediately after the post-mortem. Since no burning or tattooing was present, therefore, the gun shot was fired from a distance of more than 4 ft.s.
16. Thus, it is clear that the death of Janved Singh Tomar was homicidal in nature.
17. Dr. R.S. Sikarwar (P.W.18) had also medically examined Rani, Ummed Singh and Rustam. Following injuries were found on the body of Rani (P.W. 2) :
(i) Lacerated wound with clotted blood 4 ½ cm x 1 cm x bone deep over right frontal area scalp - Advised x ray skull
(ii) Contusion red colour 3 ½ cm x 2 ½ cm over lower part of left forearm dorsoventral surface.
The MLC is Ex. P.18.
In X-ray, no bony injury was found. The X-ray report is Ex. P.22.
18. Following injuries were found on Ummed Singh :
(i) Lacerated wound with clotted blood 3 ½ cm x ½ cm x bone deep over right frontal area scalp - Advised x-ray skull
(ii) Contusion red colour 4 ½ cm x 3 cm over left side chest lower part - Advised x-ray chest 8 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) The M.L.C. is Ex. P.19 and in X-ray report, Ex. P.20, no bony injury was found.
19. Following injuries were found on the body of Rustam Singh :
(i) Lacerated wound with clotted blood 5 /12 cm x ½ cm x bone deep over middle of frontal area scalp - Advised x-
ray skull The MLC is Ex P.17. In x-ray report, Ex. P.21, no bony injury was found.
20. This witness was cross-examined in relation to the injuries sustained by injured persons. He stated that the injured Rani, Ummed Singh and Rustam Singh were not personally known to him. The injured could have sustained the injuries by fall. All the injuries were caused within 3 hours of medical examination. Blood starts clotting within 15 minutes of sustaining injuries. He was on duty from 8 A.M of 2-3-2004 till 8 A.M. of 3-3-2004 and the injured were examined by him in between 12 A.M. to 4 A.M. in the intervening night of 2-3- 2004 and 3-3-2004. He had not seized the cloths of the injured.
21. Thus, the defence has not seriously challenged the injuries sustained by Rani, Ummed Singh and Rustam Singh.
22. The next moot question for consideration is that whether the Appellants are guilty of committing murder of Janved and causing injuries to Rani, Ummed Singh and Rustam Singh or not? FIR could not be proved on account of murder of Rustam Singh. Effect?
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Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
23. Hotam Singh has admitted in his statement under Section 313 of Cr.P.C. that he and his sons being tried for murder of Rustam Singh/complainant.
24. Thus, it is clear that the complainant Rustam Singh was murdered, before he could be examined in the Court. If the complainant dies before his examination, then it cannot be said that the very foundation of the prosecution would go. FIR is not a substantive piece of evidence and can only be used for omissions and contradiction purposes. Therefore, the prosecution can always prove its case on the basis of other material collected by it, during investigation. The Supreme Court in the case of Harkirat Singh Vs. State of Punjab reported in (1997) 11 SCC 215 has held as under :
4.....Equally unjustified was the High Court's reliance upon the contents of the FIR lodged by Walaiti Ram who, as stated earlier, could not be examined during the trial as he had died in the meantime. The contents of the FIR could have been used for the purpose of corroborating or contradicting Walaiti Ram if he had been examined but under no circumstances as a substantive piece of evidence....
25. The Supreme Court in the case of Amish Devgan v. Union of India, reported in (2021) 1 SCC 1 has held as under :
113. Acronym FIR, or the first information report, is neither defined in the Criminal Procedure Code nor is used therein, albeit it refers to the information relating to the commission of a cognizable offence. This information, if given orally to an officer in charge of the police station, is mandated to be reduced in writing. Information to be recorded in writing need not be necessarily by an eyewitness, and hence, cannot be rejected merely because it is hearsay. Section 154 does not mandate nor is this requirement manifest from other 10 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) provisions of the Criminal Procedure Code. Further, FIR is not meant to be a detailed document containing chronicle of all intricate and minute details. In Dharma Rama Bhagare v.
State of Maharashtra it was held that an FIR is not even considered to be a substantive piece of evidence and can be only used to corroborate or contradict the informant's evidence in the court.
26. Thus, FIR can be used only for corroboration or contradiction purposes in case if the complainant is examined. If the complainant expires before his examination, then the FIR cannot be thrown and since, the FIR is not a substantive piece of evidence, therefore, it will not have any adverse effect on the prosecution case. In the present case, the FIR was based on the Dehati Nalishi, Ex. P. 29 written by J.S. Bhadoria (P.W.21). J.S. Bhadoria (P.W.21) has proved Dehati Nalishi. Since, the complainant Rustam Singh has expired, and he did not expire on account of any injury sustained by him in the incident, therefore, the Dehati Nalishi, Ex. P.29 cannot be treated as Dying Declaration. Thus, it is not admissible under Section 32 of Evidence Act. Since, FIR had merely set the investigating agency in motion and is not a substantive piece of evidence, therefore, non- examination of complainant due to his murder, will not have any adverse effect on the prosecution case, and the prosecution can always prove its case by relying on direct or circumstantial evidence. When Dehati Nalishi was lodged?
27. According to the prosecution case, Dehati Nalishi, Ex. P.29 was lodged on 2-3-2004 at 23:30 whereas below the signatures of 11 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) writer, the date 3-3-2004 is mentioned. Thus, it is submitted that the Dehati Nalishi, Ex. P.29 is an antedated document prepared after due deliberations.
28. Considered the submissions made by the Counsel for the Appellants.
29. Dehati Nalishi Ex. P.29 mentions the time of incident as 8:30 P.M. on 2-3-2004. The time of giving information is 23:30. After the signatures of the complainant Rustam Singh, a following note has been appended :
uksV & fjiksZV ls vijk/k /kkjk 302 @ 307]147]148]149] 323 vkbZ ih lh dk dk;e dj foospuk es fy;k x;kA nsgkrh vly dk;eh gsrq Fkkuk Hksth tkrh gSaA gLrk{kj 3-3-2004
30. In cross-examination of J. S. Bhadoria (P.W.21) a question was asked to the effect that who took the Dehati Nalishi to police station and accordingly, Rojnamchasanha Ex. D.10 was proved by the defence. According to this Rojnamchasanha, Ex. D.10, Constable Raghvendra Shukla had brought the Dehati Nalishi, Ex. P.29 to the police station at 1:00 A.M. Thus, it is clear that the complainant gave information to J.S. Bhadoria (P.W. 21) regarding incident at 23:30 and some time must have been spent for writing down the Dehati Nalishi and thereafter, J.S. Bhadoria (P.W. 21) sent the Dehati Nalishi, Ex. P.29 to the Police Station. It appears that before putting the note below the Dehati Nalishi, Ex. P.29, the date had changed, 12 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) therefore, the investigating officer J.S. Bhadoria (P.W. 21) put 3-3- 2004 below his signatures. Although in cross-examination, this witness has admitted that he had put 3-3-2004 below his signatures, but no question was put to him as to why the date 3-3-2004 was put below the signatures. Thus, it is clear that at the time of sending the Dehati Nalishi, Ex. P.29 to the Police Station, it was already 12 A.M., therefore, the date had changed and accordingly, the date 3-3-2004 was put below the signatures. Therefore, no adverse inference can be drawn against the prosecution in this regard. Whether place of incident has been changed by the prosecution?
31. By referring to spot map (Crime Details Form), Ex. P.30, it is submitted by the Counsel for the Appellants that although the place where dead body of Janved was lying has been shown in front of the house of Bheekam whereas the door of the house of deceased Janved has been shown at a different place. According to this map, Ex. P.30, the door of the house of Janved is towards North Direction, whereas the door of the house of Bheekam is towards East Direction. The firing was allegedly done from "Well" which has been shown at Serial No.2. It is true that if a person is standing in front of the door of the house of Bheekam Singh, then he can sustain gun shot injury, but if a person is standing in front of the door of the house of Janved, then he cannot sustain gun shot injury because the house of Bheekam and Janved are in between the "Well" and the door of the house of 13 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) Janved.
32. A similar arguments were also done by referring to spot map, Ex. P.14 prepared by Scientific Officer, Scene of Crime Mobile Unit (FSL), Distt. Morena.
33. Considered the submissions made by the Counsel for the Appellants.
34. Spot Map (Crime Details Form), Ex. P.30 was prepared by J.S. Bhadoria (P.W. 21) on the information given by complainant Rustam Singh. He has specifically stated this fact in para 2 of his examination-in-chief. As already pointed out, Rustam Singh could not be examined as he was already murdered prior to his examination. J.S. Bhadoria (P.W.21) had prepared the spot map, Ex. P.30 on the instructions of Rustam Singh/complainant. Therefore, it is clear that according to J.S. Bhadoria (P.W.21), the spot map, Ex.P.30 was not prepared on the basis of what he had actually observed on the spot. Spot map, Ex. P.30 also bears the signatures of complainant/Rustam Singh. Thus, every information shown in the map, would be hit by Section 162 of Cr.P.C. and the description given in spot map, Ex. P.30 can only be used for corroboration or contradiction purposes.
35. The Supreme Court in the case of Rameshwar Dayal Vs. State of U.P. reported in (1978) 2 SCC 518 has held as under :
36. Apart from the inquest report Ex. K-a-10 there is another document which throws a flood of light on this 14 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) question--Ex. Ka-18 which is the site plan prepared by the Investigating Officer at the spot from where the empty cartridges of.12 bore were recovered. This is also a record of what the Investigating Officer himself found at the spot. The learned counsel for the appellants submitted that the site plan was also not admissible in evidence because it was based on information derived by the Investigating Officer from the statement of witnesses during investigation. Reliance was placed on a judgment of this Court in the case of Jit Singh v. State of Punjab where this Court observed as follows:
"It is argued that presumably this site plan also was prepared by the Investigating Officer in accordance with the various situations pointed out to him by the witnesses... We are afraid it is not permissible to use the site plan Ex. P-14 in the manner suggested by the counsel. The notes in question on this site plan were statements recorded by the Police Officer in the course of investigation, and were hit by Section 162 of the Code of Criminal Procedure. These notes could be used only for the purposes of contradicting the prosecution witnesses concerned in accordance with the provisions of Section 145 of the Evidence Act and for no other purpose."
In our opinion, the argument of the learned counsel is based on misconception of law laid down by this Court. What this Court has said is that the notes in question which are in the nature of a statement recorded by the Police Officer in the course of investigation would not be admissible. There can be no quarrel with this proposition. Note No. 4 in Ex. Ka- 18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself found and observed at the spot. Such a statement does not fall within the four corners of Section 162 CrPC. In fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section. For these reasons, therefore, we are of the opinion that the decision cited by the counsel for the 15 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) appellants has no application to this case.
(Underline supplied)
36. The Supreme Court in the case of Sat Kumar v. State of Haryana, reported in (1974) 3 SCC 643 has held as under :
11.......Apart from this Ext. P.L. contains the title "plan of Village Uchana Kalan prepared on the pointing out of the witnesses in case (FIR) No. 172, dated August 9, 1967, for an offence under Section 307 IPC, relating to Police Station Narwana." It is clear that this site plan, which shows Mark No. 1 as the place of occurrence, is in consequence of a statement made during investigation to the ASI by some witness whose name even has not been disclosed. Since the ASI had already registered the case under Section 154 of the Criminal Procedure Code, after obtaining the first information report from Suraj Bhan and proceeded to the spot in the course of investigation, any statement made by witnesses during the course of investigation would be hit by Section 162(1) of the Criminal Procedure Code, and inadmissible in evidence except for the purpose of contradiction of the witness when examined in Court either by the accused or by prosecution with the leave of Court. A plan prepared in the way done showing the place of occurrence cannot be admissible in law and no reliance can be placed on the place of occurrence as indicated therein.
The learned Sessions Judge in admitting such a document has to exclude the statements of witnesses which are sought to be indirectly introduced in the evidence by means of a site plan or a sketch. At any rate nothing turns on the absence of blood marks in the site plan since the point was not agitated by the accused during the cross-examination of the police officer.
37. The Supreme Court in the case of State of Rajasthan v. Bhawani, reported in (2003) 7 SCC 291 has held as under :
11. The High Court has extensively relied upon the site plan prepared by the investigating officer for discarding the prosecution case and for this purpose has referred to the place from where the accused are alleged to have entered the nohara, the place from where they are alleged to have fired upon the deceased and also has drawn an inference that the place wherefrom the accused are alleged to have fired upon the deceased, the shot could not have hit the 16 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) houses on the eastern side of the nohara. Many things mentioned in the site plan have been noted by the investigating officer on the basis of the statements given by the witnesses. Obviously, the place from where the accused entered the nohara and the place from where they resorted to firing is based upon the statement of the witnesses. These are clearly hit by Section 162 CrPC. What the investigating officer personally saw and noted alone would be admissible. This legal position was explained in Tori Singh v. State of U.P. in the following words: (AIR p. 401, paras 7-8) A rough sketch map prepared by the Sub-Inspector on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit and also the places where the witnesses were at the time of the incident would not be admissible in evidence in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch map would be admissible so far as it indicates all that the Sub-
Inspector saw himself at the spot; but any mark put on the sketch map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. Therefore, such marks on the map cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch map.
12. Therefore, the findings recorded by the High Court on the basis of the site plan prepared by the investigating officer whereby it discarded the prosecution case is clearly illegal being based upon inadmissible evidence and has to be set aside.
38. As the complainant Rustam Singh, on whose information, the spot map, Ex. P.30 was prepared could not be examined, therefore, any information shown in the spot map, Ex. P.30 would not be 17 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) admissible.
39. So far as the spot map, Ex. P.14 prepared by Dr. A.K. Khan ,Scientific Officer (P.W.10) is concerned, in the index, the door of the house of Janved is not mentioned. Dr. A.K. Khan (P.W.10) in para 6 of his cross-examination, has specifically stated that he had prepared the spot map, Ex. P.14 on the information given by S.H.O. and S.D.O. (P). Thus, it is also clear that even Dr. A.K. Khan (P.W. 10) did not prepare the spot map, Ex. P.14 on his actual observations and thus, spot map, Ex. P.14 was prepared by a hearsay witness. Since, J.S. Bhadoria (P.W.21) had prepared the spot map, Ex. P.30 on the information given by the complainant Rustam Singh, therefore, any information given by J.S. Bhadoria (P.W.21) to Dr. A.K. Khan (P.W.10) was not based on his actual observation.
40. The prosecution case is based on testimony of Rani (P.W.2)/ injured Eye witness, Smt. Bai (P.W.3), Vijay Bahadur (P.W.4), Chandrabhan (P.W.5), Shivram Singh (P.w.11), Shivkumar (P.W.13), and Ummed Singh/injured Eye witness (P.W. 17).
41. Attacking the testimonies of Smt. Bai (P.W.3), Vijay Bahadur (P.W.4), Chandrabhan (P.W.5), Shivram Singh (P.w.11), Shivkumar (P.W.13), it is submitted by the Counsel for the Appellants, that since, their names were not mentioned in the Dehati Nalishi, Ex. P.29, therefore, they are not reliable witnesses. Further they all are related witnesses.
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Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
42. Considered the submissions made by the Counsel for the Appellants.
43. Merely because the name of some of the eye-witnesses were not mentioned in the FIR/Dehati Nalishi, the same is not sufficient to discard the testimony of those witnesses. Further, non-inclusion of names of all the eye-witnesses, also indicates that the Dehati Nalishi/FIR is not lodged after due deliberations. Where the complainant himself is an injured person, then it is possible that he may not have noticed that who are the other eye-witnesses, therefore, the testimony of a witness who is not named in the FIR, cannot be discarded on this ground only.
44. The Supreme Court in the case of State of M.P. Vs. Man Singh, reported in (2003) 10 SCC 414 has held as under :
10. One of the circumstances highlighted by the High Court to discard the evidence of PW 8 is non-mention of his name in the FIR. As stated by this Court in Chittar Lal v. State of Rajasthan evidence of the person whose name did not figure in the FIR as a witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses, should be indicated in the FIR. As was observed by this Court in Shri Bhagwan v. State of Rajasthan mere non-mention of the name of an eyewitness does not render the prosecution version fragile.
45. The Supreme Court in the case of Nirpal Singh v. State of Haryana, reported in (1977) 2 SCC 131 has held as under :
10. The last of the eyewitnesses is PW 22 Rattan Singh whose evidence has also been believed by the Sessions Judge who observed as follows:
"The fact that his name was not recorded in the first 19 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) information report in a way shows that it was not a case of planned first information report otherwise his name would have been mentioned therein. After going through the statement of Ratan PW I feel inclined to hold that it also inspires confidence and is true."
The High Court also came to a similar finding as follows:
"Because of his disinterestedness the evidentiary value of the testimony of Rattan Singh deserves a considerable weight."
Counsel for the appellants vehemently contended that as the name of Rattan Singh was not mentioned in the first information report, although the eyewitnesses Sadhu Ram and Inder Kaur have categorically stated that another Rattan Singh of Siria was present at the occurrence, the Court should hold that Rattan Singh is a made-up witness. To begin with, this is essentially a question of fact which was fully noticed by the two courts of fact and in spite of that the courts of fact have believed the evidence of PW 22 Rattan Singh. Secondly, the mere fact that his name was not given in the FIR, though of some relevance, would not be sufficient by itself to entail rejection of the testimony of this witness. We must realise that five persons had been killed and the informant Sadhu Ram must have been stunned and stupefied at the ghastly murders that took place in his presence and had picked up sufficient courage to run to the Police Station to lodge the FIR. It may be that in view of that agitated mental condition he may have omitted to mention the name of Rattan Singh. The mere fact that Rattan Singh s/o Siri, Ram is not mentioned in the FIR does not establish that Rattan Singh PW 22 could not have seen the occurrence. It is possible that both these persons may have witnessed the occurrence and the informant mentioned the name of one and not the other. Other comments were also made against Rattan Singh which have been considered by both the trial court and the High Court. Both the courts have held that the evidence of this witness inspires confidence. Strong reliance was placed on the conduct of the witness in not reporting to the police officer immediately when he came to the spot. The witness was, according to the findings of the Sessions Judge and the High Court, an independent one and was not at all connected with the litigations between the appellants and the deceased. He, therefore, must have disclosed the version before the police only when he was asked to do so, because he had no interest in the matter at all. For these reasons, we do not see any reason to take a view different from the one 20 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) taken by the Courts below regarding the credibility of this witness.
46. Mukesh Singh (P.W.1) who was cited as an eye-witness, did not support the prosecution case and was declared hostile.
47. Smt. Rani (P.W.2) is an injured eye-witness. She has stated that her Jeth Janved Singh was also residing with her family. There was an open place which was being used by the witness to tie their cattles, whereas the appellant Hotam Singh was insisting Rustam Singh and Janved to leave the possession of the said open piece of land. Rustam Singh refused to leave the possession. On the day of incident, her husband Rustam Singh had gone to Porsa. While he was coming back, he was waylaid by Rajesh and Shiva Singh who offered liquor to him. When he refused to consume liquor, then Rajesh caught hold of his collar and Shiv assaulted him on his head by the handle of the gun. Her husband rushed back to his house. The deceased Janved, Ummed Singh, this witness and Jethani enquired about the incident. While Rustam Singh was disclosing the incident, Rajesh, Shiv Singh (died during the trial), Rajbahadur, Rajaram, Jabar Singh, Rajkumar, Hotam Singh came running to the house of this witness. Rajaram was having .12 bore gun with him. He handed over the gun to Rajesh, who fired a gun shot causing injury on the chest of Janved, who died on the spot. Thereafter, the co-accused Shiv Singh, Rajaram, Jabar Singh, and Rajkumar started assaulting them. This witness sustained injury on her head as well as left elbow. 21
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) Ummed Singh tried to intervene in the matter. He too was assaulted by Rajesh, Shiv Singh, Rajkumar, Rajbahadur, Hotam Singh by fists, blows and lathis. Ummed Singh also sustained injury on his head and also sustained injury on his ribs. Reema, Mukesh and Udaibhan Singh also came on the spot and witnessed the incident. The incident took place at around 16:30 and since, it was moon night, therefore, the incident was seen by all. Thereafter, the accused persons ran away and some one informed the police on phone. Thereafter, police came on the spot. This witness, Ummed Singh, Rustam Singh and the dead body of Janved was kept in the police jeep. This witness stated that She is not aware of any writing work done by police. The report was lodged by her husband in the police station. From police station, they were sent to hospital, where She, Ummed Singh and Rustam Singh were treated. The post-mortem of Janved was conducted on the next day. The statements of the witnesses were recorded on the next day. She further stated that in the meanwhile, her husband Rustam Singh has also been killed and appellants are facing trial for the same. This witness was cross-examined.
48. In cross-examination, she admitted that She had not witnessed the incident of assault on her husband Rustam Singh, but the incident was narrated by him. She further stated that her house is also connected with the house of Bheekam Singh. She further stated that the door of her house is towards NORTH direction, whereas the door 22 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) of the house of Bheekam Singh is on EAST direction. She stated that Janved was shot in front of the door of her house. She further stated that the deceased Janved and Rustam Singh resides in the same house. She further stated that the deceased sustained gun shot injury on the platform constructed in front of door of her house. She further clarified that the platform constructed in front of the door of her house and in front of the house of Bheekam Singh is common. The police had come on the spot after 30 minutes of the incident and they were taken to police station, from there they were taken to hospital. She further stated that the FIR was lodged in the Police Station, but clarified that She was not present at that time. She expressed her ignorance of a criminal trial against her husband and son of Janved for making an attempt on the life of Hotam Singh. The house of Hotam Singh is in front of the house of this witness. She denied that the deceased Janved and his wife were residing in a different house situated at a distance of 2 km.s from the place of incident. She further stated that her husband had signed the FIR. She denied that Janved was killed by some unknown persons. No villager had come to intervene in the matter. She admitted that Vijaybahadur, Chakrapan, Shivram Singh and Shiv Kumar are her nephews. She further stated that after hearing the noise, She had come out of her house. The kitchen is common and no body had dinner by that time. The movement She came out of the house, her husband Rustam Singh 23 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) came running and the accused persons also followed him. Her police statement was recorded by the police on the next day of incident. All the accused persons had come together. Rustam Singh was standing while narrating the incident, and this witness was also standing. The Appellant Rajaram and Shiv Singh were standing on the ground whereas the other accused persons had climbed on to the platform. Rajaram had handed over the gun to Rajesh. It was a moon light. The height of the platform is about ½ ft. The gun shot was fired from a distance of 5-7 ft.s. She admitted that Hotam Singh had quarreled in front of her house. She denied that She was inside the house and had not witnessed the incident.
49. After the cross-examination of Rani (P.W.2) was over, a prayer was made by the Public Prosecutor that by mistake some documents could not be proved, therefore, sought permission for additional Examination-in-chief. The prayer was not opposed and accordingly additional Examination-in-chief was recorded and She stated that her Saree, Shirt of her husband, Shawl of deceased Janved were seized by the police vide seizure memo Ex. P.2. The empty cartridges were seized from the spot vide seizure memo Ex. P.3 and blood stained earth was also seized.
50. Smt. Bai (P.W. 3) is the widow of deceased Janved Singh. She has also narrated about the incident which took place with Rustam Singh. She further alleged that after Rustam Singh was assaulted, he 24 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) came running to the house and he was followed by the appellants. Rajaram handed over the gun to Rajesh who fired a gun shot causing injury on the chest of Janved who died on the spot. She further stated that when Rani (P.W.2) intervened, She was beaten by Rajbahadur, Rajkumar, Jabar Sigh, Hotam Singh as a result she sustained injury on her head as well as on elbow. Ummed Singh tried to save Rani. He too was assaulted by Rajbahadur, Rajkumar, Jabar Singh, Hotam Singh as a result he too sustained injury on his head. Reema and Mukesh also reached on the spot and witnessed the incident and thereafter, the appellants ran away. Some one informed the police and accordingly, the police came on the spot and took the dead body of Janved along with Rani, Ummed and Rustam Singh in police jeep. She further stated that Rustam Singh has been murdered and the appellants are facing trial. This witness was cross-examined.
51. In cross-examination, she admitted that She had not witnessed the incident of assault on Rustam Singh, but She was told by Rustam Singh. She further stated that there is platform in front of the door of her house. Her platform is adjoining to the platform of Bheekam Singh. Her husband was wearing Jacket, Kurta and Dhoti at the time of incident. Janved had sustained gun shot injury in front of the door of her house. She admitted that the houses of Rustam Singh and her husband were not different. She denied that Hotam Singh had never threatened to the leave the possession of vacant land. The cloths of 25 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) Rustam Singh were stained with blood. When the police came on the spot, the dead body of her husband was lying on the platform. She denied that the appellants have been falsely implicated in the murder of Rustam Singh. She further stated that no one had dinner by the time of incident. She further stated that She had personally seen that Rajaram had given his gun to Rajesh. The gun shot was fired by Rajesh from a distance of 5-7 ft.s. Lot of persons had come after the incident.
52. Vijay Bahadur Singh (P.W. 4) has also re-iterated the prosecution case and specifically stated that all the appellants came following Rustam Singh and Rajaram handed over his gun to Rajesh who fired gun shot causing injury to Janved, who expired on the spot. Thereafter, Hotam Singh, Raj Bahadur, Jabar Singh, Rajkumar and Shiv Singh assaulted Rani and Ummed. It was moon night and had sufficient moon light. The Safina form is Ex. P.4 and Lash Panchnama is Ex. P.5. This witness was cross-examined.
53. In cross-examination, he stated that Bhogiram had four sons namely Sitamber Singh, Rustam Singh, Ummed Singh and Janved Singh. Smt. Bai is the wife of Janved, whereas Chakrapan is son and Rani is the wife of Rustam Singh. He further stated that he had not seen the incident of assault on Rustam Singh and he was told by Rustam Singh. He further stated that the incident took place in front of the house of Bheekam. The dead body was found on the platform 26 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) constructed in front of the house of Bheekam Singh. Well is constructed by the side of house of Bheekam Singh. The Well is at a distance of 7-8 ft.s from the wall of the house of Bheekam Singh. Platform is clearly visible from the Well. He denied that some unidentified person had fired causing death of Janved. As all the appellants had assaulted together, therefore, this witness was not in a position to assign specific role to each and every appellant. After 1-2 minutes of the incident, Reema, Chakrapan Singh and Shivram Singh came on the spot. He denied that at the time of preparation of Lash Panchnama, Ex. P.5, he was not aware of the names of the assailants. Spot map was prepared on the information given by Rustam Singh. He admitted that at the time when Rustam Singh came shouting, he was inside the house and he and other members came out of the house, immediately thereafter. Rajesh and Rajaram were standing near the Well, where the gun was handed over by Rajaram to Rajesh. Bheekam Singh had also come out of the house. He admitted that the house of Janved and Bheekam Singh is common.
54. Chakrapan (P.W.5) is the son of deceased Janved Singh and has also narrated the prosecution story. He was cross-examined. In cross-examination, he stated that the dead body of Janved was lying on the platform constructed in front of his house. This witness, Vijaybahadur, Shivram, Shivkumar, Ummed Singh and Rani were there. He also admitted that the incident of assault on Rustam Singh 27 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) did not take place in his presence, but he was told by Rustam Singh. He denied that no incident had taken place on his platform. He denied that some unidentified person had killed Janved. He further stated that he is having lease of open land but has not produced the lease deed. He admitted that after the murder of Janved, police force was deployed. However, denied that police force was also deployed at the house situated in Haar. He further stated that by the time he came out of his house, his father had already sustained the gun shot injury.
55. Thus, it is clear that this witness had not seen the incident of causing gun shot injury to his father, but has specifically stated about the assault on Rani and Ummed Singh and even according to prosecution case, Rani and Ummed Singh were assaulted after the gun shot injury was sustained by deceased Janved Singh.
56. Shivram Singh (P.W. 11) is also one of the Eye-witnesses. He has also narrated the same prosecution story. He also proved Safina form, Ex.P.4 and Lash Panchnama, Ex. P.5. The incident took place at about 8:30 in the night and it was full moon night. He was cross- examined.
57. In cross-examination, he stated that Safina form, Ex. P.4 and Lash Panchnama, Ex. P.5 were prepared in the night itself. He stated that at that time, he did not disclose the names of the assailants. He stated that the house of Rustam and this witness is same but now it 28 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) has been partitioned. He also stated that the incident of assault on Rustam Singh did not take place in his presence. He denied that Janved Singh was residing in his house situated in the fields. He stated that Janved was residing with Rustam Singh. He denied that Janved and Rustam Singh were residing in separate houses. After the incident, the male members have shifted to the house constructed in the fields whereas ladies are still residing in the same houses. He admitted that now he is residing in the house situated in the field. At present in the house of Janved Singh, his son Chakrapan, Rambahadur and his wife are residing. Only one gun shot was fired which hit on chest of Janved. The face of Janved was towards WEST direction whereas the face of the assailants were towards EAST direction. There is a platform in front of the door of the house of Rustam Singh and when Rustam Singh came rushing in an injured condition, Janved was at the door of his house. At the time of firing, Janved had come to the door of the house of this witness. Janved was at a distance of 5 hands from the house of this witness when he suffered gun shot injury. He did not try to intervene in the matter and also did not try to save the injured. He was standing at a distance of 15-16 hands from the platform. Mukesh, Reema, Chakrapan, Vijaybahadur and Shivkumar were already present on the spot and did not come after the incident. The police had come at about 10 P.M. His police statement was recorded on the next day. Although a 29 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) suggestion was given in para 24 of the cross-examination that this witness had not disclosed to the police that the appellants had also assaulted Rani and Ummed, but in police statement, Ex. D. 7, there is a specific allegation that Hotam Singh and his sons had assaulted Rani and Ummed. The gun was handed over at the Well. Rajesh did not fire immediately but moved forward by 5 steps. Gun shot was fired from a distance of about 5 steps. The platform is in two parts with a passage in between which goes inside the house. Janved had suffered gun shot injury on the platform constructed outside his house.
58. Smt. Reema Parihar (P.W. 12) is also an eye witness and Rustam Singh is the maternal grand father and Rani is maternal grand mother of this witness. She has also narrated the same prosecution case. She was cross-examined.
59. In cross-examination, She stated that after hearing the noise of Rustam Singh, all of them had come out of the house. She further admitted that incident of assault on Rustam Singh did not take place in her presence. At the time of gun shot firing, the deceased Janved Singh and the appellant Rajesh were facing each other.
60. Shiv Kumar (P.W. 13) has also supported the prosecution case. In cross-examination, he fairly conceded that the incident of assault on Rustam Singh did not take place in his presence. After Rustam Singh came rushing and was screaming, this witness and other 30 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) witnesses came out of the house and immediately, all the appellants came there. Rajesh had fired a gun shot from a distance of 2-3 steps. The deceased Janved and Rajesh were facing each other. The dead body of Janved remained on the spot till, the police reached there. It was a moon night. One door of the house is on NORTH direction whereas another door is towards EAST direction. The incident took place in front of the door facing EAST direction. The platform is 2 ft. high. The injured were assaulted after the gun shot was fired. All the appellants had assaulted Rani and Ummed and therefore, stated that he cannot clarify the specific role played by each of the appellant. Janved and Rustam Singh were residing together and Janved had come out of the house of Rustam Singh, however, clarified that Janved had sustained gun shot injury on the platform constructed outside the door of the house of this witness.
61. Ummed Singh (P.W.17) is an injured witness. He stated that Rustam Singh was coming back from Porsa. There is a pond near the village where Rustam Singh was waylaid and was offered liquor. When Rustam Singh shouted, then Shiv Singh assaulted on the head of Rustam Singh. Rani came to save him, then either Rajesh or Shiv Singh assaulted on the head of Rani. This witness was answering the call of nature. After hearing the voice of Rani he came rushing and he too was assaulted by the appellants. Rajaram handed over the gun to Rajesh, who caused gun shot injury to Janved. He was taken to 31 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) hospital. His blood stained cloths were seized on the next day of incident vide seizure memo Ex. P.2. Shirt of Rustam Singh was also seized vide same seizure memo. The blood stained earth and fired pellets were also seized vide seizure memo Ex. P.3. Article B is his shawl. Article C is the shirt of Rustam Singh whereas Article D are fired pellets which were seized by the police.
62. In cross-examination, he admitted that the incident of assault on Rustam Singh did not take place in his presence. He had suffered fracture of 3 ribs. The house of Rajaram is adjoining to the house of this witness.
63. Thus, from the evidence of the witnesses, it is clear that house of Rustam Singh, Bheekam Singh and deceased Janved was common. Although it appears that partition had taken place and Rustam Singh and Deceased Janved were residing in one portion, whereas Bheekam was residing in another portion. The witnesses have admitted that the door of the house of Janved is towards NORTH direction, whereas the door of the house of Bheekam is towards EAST direction. There is a discrepancy in the evidence of witnesses regarding the place where incident took place, but one thing is clear that platforms of both the houses are common and are separated by a passage only. The house of Rustam Singh, Janved and Bheekam Singh was one which was partitioned. Smt. Bai (P.W.3) has stated that the platform of her house is adjoining to the platform of the house of Bheekam Singh. 32
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) The door of the house of Janved is not far away from the door of the house of Bheekam Singh. According to Smt. Rani (P.W.2), the kitchen is still common. Further according to Vijay Bahadur (P.W. 4), the incident took place in front of the door of the house of Bheekam whereas Shivkumar (P.W. 13), who is son of Bheekam Singh, has stated that Janved came out of his house and went to the platform situated outside the house of this witness, where he sustained the gun shot injury. Since, the house is common, therefore, if some of the witnesses described that the gun shot was sustained by Janved in front of their house, then at the most it can be said that it was a mis- description of the exact place of incident. Further the witnesses are rustic villagers and all of them were residing in the same house. If the witnesses could not understand the distinction between the different portions of the house which were in possession of Rustam Singh and Janved and Bheekam, then not much importance can be attached to such discrepancy. Further, while appreciating the evidence, the Court must read the entire evidence, and should not give undue importance to a stray line in order to disbelieve the direct evidence which is otherwise found to be reliable and trustworthy.
64. According to Rani (P.W.2) and Smt. Bai (P.W.3), no one had taken dinner by that time. Even in Post-mortem report, Ex. P.25, Dr. R.S. Sikarwar (P.W. 18) has specifically mentioned that digested food was found in small intestine, which supports the evidence of Rani 33 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) (P.W.2) and Smt. Bai (P.W.3), that the witnesses and the deceased had not taken the dinner.
65. Furthermore, in the present case, Rani (P.W.2) and Ummed Singh (P.W. 17) are the Injured eye-witnesses. Their presence on the spot is undoubted and the injuries sustained by them are the guarantee of the fact that they were present on the spot at the time of incident.
66. The Supreme Court in the case of State of U.P. v. Naresh, reported in (2011) 4 SCC 324 has held as under :
27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.
The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)
67. The Supreme Court in the case of Ram Avtar Rai v. State of U.P., reported in (1985) 2 SCC 61 has held as under :
10.....It is not possible to reject the evidence of PW 1 altogether on account of the discrepancies having regard to the fact that he is an injured witness whose presence at the scene of the occurrence when the deceased was attacked was not disputed before us by the learned Counsel for the 34 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) appellants as mentioned above.
68. The Supreme Court in the case of Chandrasekar v. State, reported in (2017) 13 SCC 585 has held as under :
10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P. observing as follows: (SCC p. 302, para 28) "28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."
69. The Supreme Court in the case of Jarnail Singh v. State of Punjab, reported in (2009) 9 SCC 719 has held as under :
28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v.
State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
35
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
70. The Supreme Court in the case of Vishnu v. State of Rajasthan, reported in (2009) 10 SCC 477 has held as under :
34....When a person receives injuries in the course of occurrence, there can be hardly any doubt regarding his presence at the spot. Further, injured witnesses would not spare the real assailants and falsely involve innocent persons.
71. The Supreme Court in the case of Baleshwar Mahto v. State of Bihar, reported in (2017) 3 SCC 152 has held as under :
12. Here, PW 7 is also an injured witness. When the eyewitness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer to the following observations in Abdul Sayeed v. State of M.P. : (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
[Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under : (SCC pp. 726-27, paras 28-29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could 36 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
72. It is submitted by the Counsel for the Appellants that J.S. Bhadoria (P.W.21) who is the investigating officer, had stated that the dead body of Janved was lifted from front of his house. This Court has already held that the spot map, Ex.P.30 was prepared on the information given by Rustam Singh and since, Rustam Singh could 37 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) not be examined as he was killed prior to his examination, therefore, the investigating officer would be a hearsay witness in respect of the information given by the witnesses. Thus, the evidence of J.S. Bhadoria (P.W. 21) that the dead body of Janved was lifted from front of his house would be nothing but a hearsay statement, as the house is of Janved Singh was an information given by Rustam Singh and was not an actual observation by the investigating officer while preparing spot map, Ex. P.30. Therefore, his evidence, being a hearsay one on this issue, will not be of any evidentiary value.
73. Further, it is well established principle of law that the entire evidence is to be read as a whole. The Supreme Court in the case of Shyamal Ghosh v. State of W.B., reported in (2012) 7 SCC 646 has held as under :
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
74. The Supreme Court in the case of Bhagwan Jagannath Markad v. State of Maharashtra, reported in (2016) 10 SCC 537 has held as under :
19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing 38 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted.
A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does 39 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) not escape.
75. The Supreme Court in the case of State of H.P. v. Raj Kumar, reported in (2018) 2 SCC 69 has held as under :
16. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinise the evidence more particularly keeping in view the drawbacks and infirmities pointed out in the evidence and evaluate them to find out whether it is against the general tenor of the prosecution case.
76. The Supreme Court in the case of State of Karnataka v. Suvarnamma, reported in (2015) 1 SCC 323 has held as under :
12.9. Zahira Habibullah Sheikh (5) v. State of Gujarat:
(SCC pp. 395-97, paras 37 & 40) "37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
77. Thus, if the evidence of the witnesses is read as a whole, then from the conjoint reading of evidence of all the witnesses, it is clear that there is no major contradiction with regard to place of incident. The minor discrepancies which have figured is only due to the fact that the witnesses were residing in the same house which was 40 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) subsequently partitioned but the kitchen is still common and as per the spot map, Ex. P.14, blood was also found on the platform situated outside the door of the house of Bheekam. Thus, it is held that there is no major discrepancy with regard to place of incident, and the witnesses did not try to shift the place of incident from the door of the house of deceased Janved to the door of house of Bheekam.
78. Further more, as per the FSL report, Ex. P.32, blood was found in the blood stained earth which was seized from the place of incident, i.e., in front of the house of Bheekam, which also corroborates the prosecution case, that the incident took place in front of the house of Bheekam.
Non-Examination of Independent Witnesses
79. It is submitted by the Counsel for the Appellants that the houses of the villagers are situated at nearby places, as well as the witnesses have stated that lot of persons had come after the incident, but none of the independent witnesses were examined.
80. Considered the submissions made by the Counsel for the Appellants.
81. Now a days, no independent witness is generally ready to come forward to depose in favor of one party at the risk of taking enmity with another party. The Supreme Court in the case of Ramanand Yadav v. Prabhu Nath Jha, reported in (2003) 12 SCC 606 has held as under :
41
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
15. So far as non-examination of Lambodar and two others is concerned, it is established by the evidence on record that the village was a faction-ridden one. In some cases persons may not like to come and depose as witnesses and in some other cases the prosecution may carry the impression that their evidence would not help it as there is likelihood of partisan approach so far as one of the parties is concerned.
In such a case, mere non-examination would not affect the prosecution version. But at the same time, if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid. If the materials show that there is a partisan approach, as indicated above, the court has to analyse the evidence with care and caution. Additionally, the accused persons have always the option of examining the left-out persons as defence witnesses.
82. The Supreme Court in the case of Sadhu Saran Singh v. State of U.P., reported in (2016) 4 SCC 357 has held as under :
29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.
83. The Supreme Court in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing, reported in (2001) 6 SCC 145 has held as under :
42
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced.
The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses........
84. The Supreme Court in the case of Ambika Prasad v. State (Delhi Admn.), reported in (2000) 2 SCC 646 has held as under :
12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW
7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That 43 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh this Court observed: (SCC pp.
691-92, para 15) "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."
Whether Prosecution witnesses are not reliable being related witnesses
85. The incident is alleged to have taken place at 20:30 in front of the house of Bheekam Singh. All the witnesses were in the house and they came out after hearing the shouts of Rustam Singh. All the Appellants allegedly followed Rustam Singh. Rajaram was having a gun with him, which he gave to Rajesh, who in his turn fired a gun shot causing injury in the chest of Janved Singh who died on the spot, and thereafter, all the Appellants assaulted Rani (P.W.2) and Ummed Singh (P.W.17). As already pointed out, injuries were found on the body of Rani (P.W. 2) and Ummed Singh (P.W. 17). Thus, the presence of these two injured Eye-witnesses is undoubted. Further, during the course of arguments, the injuries sustained by these two 44 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) injured eye-witnesses was not challenged by the Counsel for the Appellant. As all the witnesses are family members, therefore, their presence in the house is natural. As already held, now a days, the independent witnesses donot come forward to depose in a criminal case. Further there is valid reason for the independent witnesses to stay away from the case. According to the suggestions given during the course of cross-examination or even in the examination-in-chief, the witnesses have spoken about enmity which is going on between both the parties. Suggestion was given to Rani (P.W.2) as well as the Appellants have filed a copy of charge sheet in Crime No. 263 of 2006, Ex. D.3 to show that on 3-10-2006 (subsequent to the present case), Hotam Singh was attacked by the complainant party. Similarly, Rani (P.W.2) and Smt. Bai (P.W.3) have specifically stated that Rustam Singh/complainant was killed by the appellants during the pendency of the Trial. Hotam Singh, in his statement under Section 313 of Cr.P.C. has also stated that since, an attempt on his life was made by the complainant party, therefore, he has been falsely implicated in the case of murder of Rustam Singh. Thus, it is clear that Hotam Singh and his sons are facing trial on the allegations of murder of Rustam Singh.
86. Further from the order sheet dated 16-6-2010, it appears that a statement was made that one of the accused Shiv Singh has been killed and accordingly, after due verification, the Trial Court by order 45 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) dated 1-7-2010, separated the name of Shiv Singh from the array of accused persons. However, it is made clear that there is nothing on record to show that who had killed Shiv Singh.
87. Therefore, it is clear that after the murder of Janved Singh, the bad blood between the parties increased and not only an attempt was made on the life of Hotam Singh, but even prosecution witness Rustam Singh was killed. Where the enmity between two parties of a village is so intense, then the independent witnesses would certainly not come forward to depose in the matter.
88. So far as the reliability of related witnesses is concerned, it is suffice to mention here that there is a difference between "Related Witnesses" and "Interested Witnesses".
89. As already pointed out the presence of all the prosecution witnesses in their own house was natural. Now a days generally no independent witness come forward to depose in the matter. Under these circumstance, the testimony of a witness cannot be discarded merely on the ground that he is related witness.
90. The Supreme Court in the case of Rupinder Singh Sandhu v. State of Punjab, reported in (2018) 16 SCC 475 has held as under :
50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits.
91. The Supreme Court in the case of Shamim Vs. State (NCT of 46 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) Delhi) reported in (2018) 10 SCC 509 has held as under :
9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.............
92. The Supreme Court in the case of Rizan v. State of Chhattisgarh, reported in (2003) 2 SCC 661 has held as under :
6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In Dalip Singh v. State of Punjab it has been laid down as under: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.
9. We may also observe that the ground that the witness 47 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para
25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
10. Again in Masalti v. State of U.P. this Court observed:
(AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand- fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
11. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana.
93. Why a "related witness" would spare the real culprit in order to falsely implicate some innocent person? There is a difference between "related witness" and "interested witness". "Interested witness" is a witness who is vitally interested in conviction of a 48 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) person due to previous enmity. Further more, why a related witness would spare the original assailant. Even according to the defence, Hotam Singh was assaulted after this incident. There is nothing on record to show that both the parties had already attacked each other. In fact, it appears from the evidence which has come on record, the murder of Janved was first in time and thereafter, Hotam Singh was attacked and Rustam Singh was killed allegedly by the Appellants. Therefore, it cannot be said that the witnesses were interested witnesses. The "Interested witness" has been defined by the Supreme Court in the case of Mohd. Rojali Ali v. State of Assam, reported in (2019) 19 SCC 567 as under :
13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested"
witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani v. Rayapati Venkat Reddy). Recently, this difference was reiterated in Ganapathi v. State of T.N., in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki: (Ganapathi case, SCC p. 555, para 14) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to 49 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) be "interested"."
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, wherein this Court observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person."
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
94. Therefore, it is held that since, the evidence of eye-witnesses as well as the injured eye-witnesses has been found to be reliable, then this Court cannot discard their testimony on the ground that they are related witnesses.
Non-Examination of Shiv Shanker who had written the FIR
95. It is submitted by the Counsel for the Appellants that on the 50 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) basis of Dehati Nalishi, Ex. P.29, the FIR was written by Shiv Shanker, but he has not been examined by the prosecution and accordingly, the FIR could not be proved.
96. Considered the submissions made by the Counsel for the Appellants.
97. It is clear from order dated 9-4-2010, a report was submitted by the prosecution that Shiv Shanker has retired, and is roaming around here and there as a Baba and is involved in Bhajan and Pujan. Therefore, the prosecution was finding it difficult to even execute the warrant of arrest issued against Shiv Shanker. The Counsel for the Appellants themselves insisted that the prosecution case should be closed as Rajesh is in jail for the last approximately 2 ½ - 3 years and accordingly, the prosecution case was closed by the Trial Court. Further more, when the Dehati Nalishi, Ex. P.29 has already been proved by J.S. Bhadoria (P.W.21), this Court is of the considered opinion, that non-examination of Shiv Shanker would not be fatal to the prosecution case.
Motive
98. The witnesses have specifically stated that an open land in front of their house was lying vacant. The house of Hotam Singh is also in front of the house of Bheekam Singh. Hotam Singh was insisting that Rustam Singh should leave the possession of the said open land. According to the witnesses, open land was being used by 51 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) the complainant party for tying their cattles. It appears that none of the party was the owner of the said land, but since, the complainant party was using the said land, therefore, Hotam Singh wanted to grab said land, which according to the appellants themselves was a Govt. land and therefore, the incident in question took place. Thus, the prosecution has also succeeded in establishing the motive behind the incident.
Whether All the Appellants were the members of Unlawful Assembly and were sharing common object
99. It is submitted by the Counsel for the Appellants that even according to the prosecution case, only Rajesh had caused gun shot injury to the deceased. Another allegation was that Rajaram had given his gun to Rajesh. Rajaram has already expired and his appeal has already been dismissed as abated. There is no allegation against remaining accused persons of causing any injury to the deceased, therefore, the other appellants were not the members of Unlawful Assembly and were not acting in furtherance of Common Object.
100. Heard the learned Counsel for the Appellants.
101. Before considering the material available on record, this Court would like to consider the law governing the Unlawful Assembly and Common Object.
102. The Supreme Court in the case of Sukhbir Singh Vs. State of Haryana reported in (2002) 3 SCC 327 has held as under : 52
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
12. ........An accused is vicariously guilty of the offence committed by other accused persons only if he is proved to be a member of an unlawful assembly sharing its common object. There is no dispute to the legal provision that once the existence of common object of unlawful assembly is proved, each member of such an assembly shall be liable for the main offence notwithstanding his actual participation in the commission of the offence. It is not necessary that each of the accused, forming the unlawful assembly, must have committed the offence with his own hands.
13. Unlawful assembly has been defined under Section 141 of the Penal Code, 1860 as under:
"141. Unlawful assembly.--An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is--
First.--To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.--To resist the execution of any law, or of any legal process; or Third.--To commit any mischief or criminal trespass, or other offence; or Fourth.--By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
14. The prosecution in the instant case could not specifically refer to any of the objects for which the accused are alleged to have formed the assembly. It appears, from the circumstances of the case, that after altercation over the splashing of mud on his person and receiving two slaps on his face from the complainant party, Sukhbir Singh declared 53 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) to teach the complainant party, a lesson and went home. Immediately thereafter he along with others came on the spot and as held by the High Court wanted to remove the obstructions caused in the flow of water. As the common object of the assembly is not discernible, it can, at the most, be held that Sukhbir Singh intended to cause the fatal blow to the deceased and the other accused accompanied him for the purpose of removing the obstruction or at the most for teaching a lesson to Lachhman and others. At no point of time any of the accused persons threatened or otherwise reflected their intention to commit the murder of the deceased. Merely because the other accused persons were accompanying him when the fatal blows were caused by Sukhbir Singh to the deceased, cannot prove the existence of the common object specifically in the absence of any evidence of the prosecution in that behalf. The members of the unlawful assembly can be held liable under Section 149 IPC if it is shown that they knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that the common object does not require prior concert and a common meeting of mind before the attack. It can develop even on spot but the sharing of such an object by all the accused must be shown to be in existence at any time before the actual occurrence.
(Underline supplied)
103. The Supreme Court in the case of Manjit Singh Vs. State of Punjab reported in (2019) 8 SCC 529 has held as under :
14.3. We may also take note of the principles enunciated and explained by this Court as regards the ingredients of an unlawful assembly and the vicarious/constructive liability of every member of such an assembly. In Sikandar Singh, this Court observed as under: (SCC pp. 483-85, paras 15 & 17-18) "15. The provision has essentially two ingredients viz.
(i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the 54 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.
* * *
17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.
18. In Masalti v. State of U.P. a Constitution Bench of this Court had observed that: (AIR p. 211, para 17) '17. ... Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment 55 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.'"
14.4. In Subal Ghorai, this Court, after a survey of leading cases, summed up the principles as follows: (SCC pp. 632- 33, paras 52-53) "52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines "unlawful assembly" to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the 56 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly.
53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution." 14.5. We need not expand on the other cited decisions because the basic principles remain that the important ingredients of an unlawful assembly are the number of persons forming it i.e. five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object.
14.6. The facts of the present case, as established by the prosecution, make it clear that on the relevant date i.e. 3-3- 57 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) 2001 and at the relevant time i.e. 11.15 a.m., at least five of the accused persons, including the present appellants were present at the Barnala Court Complex. The members of the complainant party purportedly came to the very same court complex to attend the hearing of the aforesaid rape and murder case of the village girl in which, their kith and relatives were the accused persons and the case was being pursued by the appellant Manjit Singh. It is also established that when the persons related with the complainant party were about to board their vehicle, the accused persons attacked them with weapons. Significantly, the attack on the complainant party was triggered with exhortation by the appellant Manjit Singh to avenge the rape and murder of the village girl in the expressions "aj eh bach ke naa jaan KK* da badla lai kay rahenge". This clearly brings out the motive for the attack as also the object of the assembly. Moreover, the blows hurled by the accused persons on the members of the complainant party had been of wide range, sufficient force and chosen aims. The appellant Manjit Singh himself had given two blows to the witness PW 5 on either of his hands. Labh Singh gave kirpan-blow on the head of Beant Singh. The appellant Sukhwinder Singh aimed the first blow on Dalip Singh but hit the right hand of the victim. The appellant Sukhvinder Singh caused yet another injury to PW 6 Gurnam Singh by the handle of his kirpan. These were apart from the repeated blows by the accused Bakhtaur Singh on the head of the deceased Dalip Singh with his ghop and then three blows to PW 6 Gurnam Singh. That apart, Bakhtaur Singh also gave the blow of his kirpan on the left leg of Gurnam Singh. It is beyond the pale of doubt that the accused persons had acted in concert and the object had clearly been to ensure casualties amongst the members of the complainant party. On the applicable principles, we have no hesitation in concluding that the accused persons did constitute an unlawful assembly; did indulge in rioting in the Court Complex with deadly weapons; and did cause grievous bodily injuries to members of the complainant party. The deceased Dalip Singh was attacked rather repeatedly by the members of this unlawful assembly and he sustained grievous injury on the head that proved fatal. The background aspects as also the conduct of the accused persons at and during the incident leaves nothing to doubt that each of the member of this assembly remains liable for the offence committed by himself as also by every other member of the assembly.
104. The Supreme Court in the case of Bhagwan Jagannath 58 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) Markad v. State of Maharashtra, reported in (2016) 10 SCC 537 has held as under :
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.
21. An offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing the common object vicariously liable for the offence. The common object has to be ascertained from the acts and language of the members of the assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members. It is to be assessed keeping in view the nature of the assembly, arms carried by the members and the behaviour of the members at or near the scene of incident. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard-and-fast rule can be laid down as to when common object can be inferred. When a crowd of assailants are members of an unlawful assembly, it may not be possible for witnesses to accurately describe the part played by each one of the assailants. It may not be necessary that all members take part in the actual assault. In Gangadhar Behera, this Court observed: (SCC pp. 398-99, para 25) "25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A four-Judge Bench of this Court in Masalti case observed as follows: (AIR p. 210, para 15) '15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded.
Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be 59 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.'"
105. The Supreme Court in the case of Dev Karan v. State of Haryana, reported in (2019) 8 SCC 596 has held as under :
11. The learned counsel took us through the provisions of Chapter VIII of IPC, dealing with "Offences against the Public Tranquility". It was his submission that the provisions have to be read holistically, and in sequence.
Thus, Section 141 IPC defines an "unlawful assembly" as an assembly of five or more persons with a common object. Such common objects are specified in the section, and what would be applicable, in this case, would be the third aspect i.e. "to commit any mischief or criminal trespass, or other offence". Section 142 IPC provides that a person who, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly, while Section 143 IPC provides the punishment for being part of such an unlawful assembly. Section 144 IPC deals with joining an unlawful assembly, armed with deadly weapon, which is likely to cause death; Section 146 IPC deals with rioting; Section 147 IPC deals with punishment for rioting while Section 148 IPC deals with rioting, armed with deadly weapon. Section 149 IPC reads as under:
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
12. It was, thus, the submission advanced that unless there is infliction of punishment under Section 143 IPC, as a sequitur to forming an unlawful assembly under Section 60 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) 141 IPC, there could be no cause to apply Section 149 IPC.
13. The learned counsel referred to the judgment in Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel to elucidate his submission. The concept of vicarious liability, as a result of which a large number of accused constituting an unlawful assembly can be held guilty, has been discussed, to hold that it is not necessary that each of the accused inflict fatal injury or any injury at all; the mere presence of an accused in such an assembly is sufficient to render him vicariously liable under Section 149 IPC, for causing the death of the victim of the attack, provided that the accused are told that they are to face the charge, rendering them so vicariously liable. The principle of this vicarious liability, under Section 149 IPC has been set out in para 28 of the judgment and reads as under: (SCC p.
755) "28. Section 149 propounds a vicarious liability [Shambhu Nath Singh v. State of Bihar] in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly, and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object."
(emphasis in original)
14. The concept of unlawful assembly under Section 149 IPC was, thus, as per para 31, opined to have two elements:
(Vinubhai Ranchhodbhai Patel case, SCC p. 756) "(i) The assembly should consist of at least five persons; and
(ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein."
15. In that context, in paras 32 and 33, it has been observed as under: (Vinubhai Ranchhodbhai Patel case, SCC p. 756) "32. For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that 61 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) such person is a member of an "unlawful assembly"
consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC.
33. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non-fatal."
(emphasis in original)
106. The Supreme Court in the case of Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel, reported in (2018) 7 SCC 743 has held as under :
15. It was held by a three-Judge Bench of this Court in Shambhu Nath Singh v. State of Bihar: (AIR p. 727, para 6) "6. Section 149 of the Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object."
(emphasis supplied) However, there are Benches of a lesser smaller strength which have observed that Section 149 creates a specific and distinct offence. In view of the fact that decision in Shambhu Nath Singh was decided by a larger Bench, the 62 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) law declared therein must be taken to be declaring the correct legal position. With utmost respect, we may also add that the same is in accord with the settled principles of the interpretation of the statutes having regard to the language of Section 149 and its context.
* * * *
20. In cases where a large number of accused constituting an "unlawful assembly" are alleged to have attacked and killed one or more persons, it is not necessary that each of the accused should inflict fatal injuries or any injury at all. Invocation of Section 149 is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an accused in such an "unlawful assembly" is sufficient to render him vicariously liable under Section 149 IPC for causing the death of the victim of the attack provided that the accused are told that they have to face a charge rendering them vicariously liable under Section 149 IPC for the offence punishable under Section 302 IPC. Failure to appropriately invoke and apply Section 149 enables large number of offenders to get away with the crime.
* * *
33. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non-fatal.
34. For mulcting liability on the members of an unlawful assembly under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the 63 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying AK 47 rifles collectively attack a victim and cause his death by gunshot injuries, the fact that one or two of the members of the assembly did not in fact fire their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed.
35. The identification of the common object essentially requires an assessment of the state of mind of the members of the unlawful assembly. Proof of such mental condition is normally established by inferential logic. If a large number of people gather at a public place at the dead of night armed with deadly weapons like axes and firearms and attack another person or group of persons, any member of the attacking group would have to be a moron in intelligence if he did not know murder would be a likely consequence.
107. Thus, it is clear that it is not necessary that each and every member of the Unlawful Assembly must play some overact in the commission of offence. The essential aspect is as to whether the Assembly was unlawful or not and whether the members of the Unlawful Assembly have acted in furtherance of common Object or not? In order to find out as to whether the object was unlawful or not, the role played by an individual coupled with language used by them, arms carried by the members and behavior of the members prior to, during and after the incident along with surrounding circumstances, plays an important role. Common object is in the minds of the participants and therefore, the said mental attitude is to be deciphered from the over all circumstances. In some case, a silent presence may be an innocent presence, and in some case, a silent presence may be an Unlawful Assembly with common object. 64
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
108. If the allegations made against the Appellants are considered in the light of the evidence led by the prosecution, then it is clear that after sustaining injuries, Rustam Singh came rushing to his house and he was followed/chased by the Appellants. Thereafter, Rajaram gave his gun to Rajesh, who is son of Hotam Singh, and Rajesh in his turn fired gun shot causing fatal injury in the chest of Janved who succumb to the injury on the spot. Thereafter, Rani (P.W.2) and Ummed Singh (P.W.17) were assaulted by the Appellants and the ocular evidence of the witnesses in this regard is corroborated by the medical evidence, Ex. P.18 and P.19. Thus, it is clear that Rani (P.W.2) and Ummed Singh (P.W. 17) were assaulted by other appellants only after Janved had expired due to gun shot fired by Rajesh. Thus, the appellants Hotam Singh, Rajkumar, Jabar Singh and Raj Bahadur joined the attacked even after knowing fully well that Janved has been killed by Rajesh. Under these circumstances, it is clear that Hotam Singh, Rajkumar, Jabar Singh and Raj Bahadur were not only the members of Unlawful Assembly but they were also sharing common object. Section 142 of IPC reads as under :
142. Being member of unlawful assembly.--Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
109. The Supreme Court in the case of Chandrika Prasad Singh v. State of Bihar, reported in (1972) 4 SCC 140 has held as under :
4. Regarding the other appellants the High Court has 65 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) observed:
"The learned Sessions Judge has not accepted the story of common object of the assembly to take forcible possession of the paddy crop and the land because he found that this plot was in possession of the accused persons, one of them being Ramdeo Singh. But the common object of the assembly developed on the spot when Ram Sajjan Singh and Shambhu Prasad Singh came to protest against the harvesting of paddy. Most of the appellants had indulged in overt acts and had actually assaulted Ram Sajjan Singh and Shambhu Prasad Singh. So their conviction under Section 326 read with Section 149 of the Penal Code, 1860 must be said to have been correctly arrived at."
The argument that no overt act has been proved against the Appellants 2 to 5 and, therefore, they are entitled to be acquitted is difficult to sustain. As observed by the High Court, most of the appellants had indulged in overt acts and had assaulted Ram Sajjan Singh. If the other appellants were members of the assembly, the unlawful common object of which developed at the spot and they continued as its members, then, they are clearly liable to be proceeded against and convicted. It has not been shown that the High Court is wrong in its observation on the material on the record and we have not been persuaded to disagree with that Court. From the finding of the High Court it is clear that these appellants were present at the spot at the time of the occurrence not merely as passive or innocent spectators without intending to share the common object of the assembly; nor did they happen to be there out of idle curiosity, content by merely gazing on, having nothing to do with the assault.
110. The Supreme Court in the case of Bhajan Singh v. State of U.P., reported in (1974) 4 SCC 568 has held as under :
13. Section 149 IPC constitutes, per se, a substantive offence although the punishment is under the section to which it is tagged being committed by the principal offender in the unlawful assembly, known or unknown.
Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well-knit with what followed as the dangerous finale of, call it, the beating. This is not a case where something foreign or unknown to the object has 66 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) taken place all of a sudden. It is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the five accused. (See also K.C. Mathew v. State of Travancore-Cochin).
111. Thus, it is clear that all the appellants came together and the co-accused Rajesh fired at Janved, resulting in his instantaneous death. Thereafter, the other appellants assaulted Rani (P.W.2) and Ummed Singh (P.W. 17). Thus, with the help of Section 142 of IPC, it is held that all the appellants were the member of Unlawful Assembly and participated in the incident in furtherance of common object.
Non-compliance of Section 157 of Cr.P.C.
112. As already pointed out, the prosecution could not trace out Shiv Shanker Tiwari who had written the FIR, therefore, the prosecution also could not prove that whether copy of FIR was sent to the concerning Magistrate or not?
113. Now the only question for consideration is that whether non- compliance of Section 157 of Cr.P.C. would result in vitiating the investigation as well as Trial or not?
114. The Supreme Court in the case of Jafel Biswas v. State of W.B., reported in (2019) 12 SCC 560 has held as under :
16. The purpose and scope of Section 157 CrPC has time and again been considered by this Court in large number of cases.
17. The learned counsel for the appellant has relied on State of Rajasthan v. Daud Khan, Sheo Shankar Singh v. State of U.P. and Bijoy Singh v. State of Bihar.
18. In State of Rajasthan in paras 27 and 28, this Court has 67 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) laid down as follows: (SCC pp. 620-21) "27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows: (SCC pp. 549-50, paras 30-31) '30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 CrPC has crept in and thereby, the very registration of the FIR becomes doubtful. The said submission will have to be rejected, inasmuch as the FIR placed before the Court discloses that the same was reported at 4.00 p.m. on 13-6-1979 and was forwarded on the very next day viz. 14-6-
1979. Further, a perusal of the impugned judgments of the High Court as well as of the trial court discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution. Therefore, the said submission made on behalf of the appellants cannot be sustained.
31. In this context, we would like to refer to a recent decision of this Court in Sandeep v. State of U.P. wherein the said position has been explained as under
in paras 62-63: (SCC p. 132) "62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v.
State of Punjab wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually 68 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab, Anil Rai v. State of Bihar and Aqeel Ahmad v. State of U.P."'
28. It is no doubt true that one of the external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR "forthwith" ensures that there is no manipulation or interpolation in the FIR. If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. However, if the court is convinced of the prosecution version's truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case"
19. The obligation is on the IO to communicate the report to the Magistrate. The obligation cast on the IO is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is always taken as a ground to challenge the veracity of the FIR and the day and time of the lodging of the FIR.
20. In cases where the date and time of the lodging of the FIR is questioned, the report becomes more relevant. But mere delay in sending the report itself cannot lead to a conclusion that the trial is vitiated or the accused is entitled to be acquitted on this ground.69
Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010)
21. This Court in Anjan Dasgupta v. State of W.B. (of which one of us was a member, Hon'ble Ashok Bhushan, J.) had considered Section 157 CrPC. In the above case also, the FIR was dispatched with delay. Referring to an earlier judgment of this Court, it was held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been registered much later in time than shown.
115. The Supreme Court in the case of Leela Ram v. State of Haryana, reported in (1999) 9 SCC 525 has held as under :
10.....It is now a well-settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring to a decision of this Court (vide State of Rajasthan v. Kishore).
116. Thus, in every case, non-dispatch of counter copy of FIR to concerning Court, or delay in dispatch would not vitiate the trial or the accused is not entitled for acquittal. If there is no doubt with regard to the timings of the Dehati Nalishi, then the failure on the part of the prosecution to prove the compliance of Section 157 of Cr.P.C. would not be fatal to the prosecution case.
Injuries to Rani (P.W.2), Ummed Singh (P.W.17) and Rustam Singh
117. As already pointed out, all the witnesses have stated that they had not witnessed the incident of assault made on Rustam Singh. Rustam Singh was killed prior to his examination as a witness. Thus, the incident, which allegedly took place with Rustam Singh could not be proved by the prosecution due to murder of Rustam Singh. Thus, the appellants cannot be held guilty for causing injuries to Rustam 70 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) Singh.
118. The Trial Court has convicted the appellants for offence under Section 323/149 of IPC. There is not much discussion in the judgment regarding assault made on Rani (P.W.2) and Ummed Singh (P.W. 17). However, the evidence of Rani (P.W.2) and Ummed Singh (P.W.17) with regard to the assault by all the Appellants on them is reliable and trustworthy which was fully corroborated by the Medical Evidence. All other witnesses have also supported the prosecution version that Rani (P.W.2) and Ummed Singh (P.W. 17) were beaten by the Appellants.
119. Accordingly, the Appellants are held guilty of committing offence under Section 302/149 of IPC and under Section 323/149 of IPC on two Counts.
120. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment. Therefore, the Life Imprisonment and a fine of Rs. 1000/- with default rigorous imprisonment of 3 months for offence under Section 302 of IPC and fine of Rs. 100/- (On two counts) with default simple imprisonment of one week for offence under Section 323/149 of IPC and Rigorous Imprisonment of One year and a fine of Rs. 200/- with default rigorous imprisonment of one month for offence under Section 148 of IPC, awarded by the Trial Court doesnot call for any interference. Accordingly, the sentence awarded by the Trial Court is 71 Hotam Singh & Ors. Vs. State of M.P. (Cr.A. No. 620 of 2010) Rajbahadur Singh Vs. State of M.P. (Cr.A. No. 666 of 2010) also affirmed.
121. Ex-consequenti, the Judgment and Sentence dated 28-7-2010 passed by Additional Sessions Judge, Ambah, Distt. Morena in S.T. No. 292 of 2005 is hereby Affirmed.
122. The Appellants Rajbahadur Singh, Hotam Singh, Raj Kumar and Jabar Singh are on bail. Their bail bonds are hereby cancelled. They are directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
123. The appellant Rajesh is in jail. He shall undergo the remaining jail sentence.
124. Let a copy of the judgment be immediately provided to the Appellants free of cost.
125. The record of the Trial Court be sent back immediately along with a copy of this judgment for necessary information and compliance.
126. The Criminal Appeals No.620 of 2010 and 666 of 2010 filed by Hotam Singh, Rajkumar, Rajesh Singh, Jabar Singh and Raj Bahadur Singh fail and are hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2022.03.24 18:28:11 +05'30'