Madhya Pradesh High Court
Mangal Singh & Ors. vs The State Of M.P. on 25 September, 2017
THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
Division Bench:
(1)Hon'ble Shri Justice S.K. Seth.
(2)Hon'ble Shri Justice Rajendra Mahajan.
CRIMINAL APPEAL No.960 of 2000
1. Mangal S/o Bhagwant
Singh, aged 45 years.
2. Panjan S/o Jagat
Singh, aged 28 years.
3. Rampal S/o Mangal
Singh, aged 19 years.
4. Mrs. Mankunwar W/o
Dharamjeet Singh Yadav,
aged 48 years.
5. Smt. Sahodara Bai
W/o Mangal Singh Yadav,
aged 42 years.
6. Smt. Sadhna Bai W/o
Panjan Singh Yadav, aged
25 years.
All are the residents of
village Chhapar, P.S. Satai,
Distt. Chhatarpur, M.P.
7. Smt. Somwati Bai
W/o Shivpal Singh Yadav,
aged 18 years, R/o
Bagaroun, Distt. Mahoba,
U.P.
Appellants.
2
Cr.A. 960/2000
Versus
The State of Madhya
Pradesh.
Respondent.
.............................................................................................
For Appellant. : Shri Y.K. Gupta, learned counsel for
appellant No.1.
: Shri Vishal Danial, learned counsel
for appellants No.2 to 7.
For Respondent/ :Shri Ajay Tamrakar, learned Panel
State. Lawyer.
..............................................................................................
JUDGMENT
(Pronounced on 25.9.2017) Per: RAJENDRA MAHAJAN, J.
Appellants-accused have preferred this appeal under Section 374 (2) of the Cr.P.C. against the impugned judgment and order dated 29.03.2000 passed by the Sessions Judge, Chhatarpur in Sessions Trial No.62/1999, whereby each of the appellants has been convicted under Sections 148 and 302 read with 149 (for three counts) of the IPC and sentenced to suffer rigorous imprisonment for 2 years in the former count and rigorous imprisonment for life with a fine of Rs.2000/- (two thousand) in default to further undergo rigorous imprisonment for one year for each out of the three counts in the latter count. The substantive jail 3 Cr.A. 960/2000 sentences in the aforesaid Sections awarded to each of the appellants are directed to run concurrently.
2. The following are the undisputed facts:
(2.1) The complainant party and the accused party were the residents of village Chhapar at the time of the occurrence.
(2.2) Deceased Uttam Singh and deceased Pyari Bai are the father and the mother of Virendra Singh (PW/2) and Madhav Singh (PW/3) respectively and deceased Usha Bai is the wife of said Virendra Singh. At the time of death of Usha Bai, she was carrying 7 months' old pregnancy.
3. The case of prosecution as unfolded before the trial Court, in brief, is as under:-
(3.1) On 03.01.1999 at about 12:30 pm in village Chhapar, complainant Virendra Singh made an oral FIR to Rakesh Tiwari (PW/8), the Sub- Inspector and SHO of Police Station Satai, stating that in the morning of the same day at about 4:00 am, he and his brother Madhav Singh (PW/3) went to his agricultural field which is named as Kolhu Wala Khet for irrigating the 4 Cr.A. 960/2000 crops. They used a diesel engine for drawing water from the well. The irrigation of the crops was over at about 8:30 am. He, his father Uttam Singh (since deceased) and his brother Madhav Singh took the engine which is fitted on four wheeled platform by pulling and pushing to their another agricultural field, which is named as Gadara Wala Kuan, through Kachcha passage which passes through Mer (field ridge) of the appellants. The appellants, who were present in their field, took objections regarding the carrying of engine through their Mer. Thereupon, they tendered apology and told them that they would take the engine back. Meanwhile, appellants Mangal Singh and Panjan Singh with axes, appellant Rampal Singh with stick, appellant Mankunwar Bai with Farsa and appellants Sahodara Bai, Somwati Bai and Sadhna Bai with sickles assaulted Uttam Singh. As a result, blood started coming profusely out of his injuries and he fell down dead. Seeing him dead, he and his brother Madhav Singh got frightened. Madhav 5 Cr.A. 960/2000 Singh fled towards village Patwapurwa and he ran towards his house in his village Chhapar from the place of occurrence. The appellants chased him down. No sooner did he reach his house, he narrated the incident to his mother Pyari Bai and his wife Usha Bai (since deceased). When he saw the appellants proceeding towards his house, he holed himself up in a place of his house which is called as Patwa. Thereupon, the appellants assaulted his mother Pyari Bai and wife Usha Bai with axes, sticks and sickles. Seeing the assaults being done upon them, he got scared and went towards the house of his neighbour Dhanua Kori from the back door of his house surreptitiously, but none was in his house. Thereupon, he hid himself in the small Bagiya (house garden) of his another neighbour Gaurishankar (not examined). He remained there for about an hour. When the appellants left his house, he reached there. He saw his wife and mother lying dead in the pools of blood. On the basis of the oral FIR of Virendra Singh, Rakesh 6 Cr.A. 960/2000 Tiwari recorded the FIR Ex.P-12 in dehati nalisi and registered a case against all the seven appellants under Sections 147, 148, 149 and 302 of the IPC. Later, on the same day at about 2:30 pm, Head Constable Daulat Ram (PW/7) registered the FIR at Crime No.1/1999 in Police Station Satai vide Ex.P-41.
(3.2) Rakesh Tiwari (PW/8) on the self same day held inquest enqueries in the presence of public witnesses on the places where the dead bodies of Uttam Singh, Pyari Bai and Usha Bai were lying, and he prepared the inquest reports Ex.P- 3, Ex.P-5 and Ex.P-7 respectively. Thereafter, he sent their dead bodies to the District Hospital Chhatarpur, where on 03.01.1999, Dr. V.S. Vajpayee (PW/4) conducted post-mortems and gave the reports Ex.P-15, Ex.P16 and Ex.P-17 of deceased Uttam Singh, Pyari Bai and Usha Bai respectively. According to him, all the three deceased persons suffered homicidal deaths.
(3.3) Rakesh Tiwari (PW/8) took over the investigation. He prepared spot map Ex.P-8 at 7 Cr.A. 960/2000 the instance of Virendra Singh connecting both the places of occurrence. He also collected samples of plain earth and blood stained earth vide memos EX.P-9 and Ex.P-11 in the presence of public witnesses from the places of occurrence. He also arrested all the appellants in the presence of Babulal (PW/5) and Ramesh Chand (not examined) and he also interrogated them in their presence. On the basis of the disclosure statements of appellants Mangal Singh (Ex.P-18), Panjan Singh (Ex.P-19), Rampal Singh (Ex.P-20), Mankunwar Bai (Ex.P-
21), Sahodara Bai (Ex.P-22), Sadhna Bai (Ex.P-
23) and Somwati Bai (Ex.P-24), he seized, one blood stained axe (vide seizure memo Ex.P-25) from appellant Mangal Singh, one blood stained axe and one blood stained sweater (vide seizure memo Ex.P-30) from appellant Panjan Singh, one blood stained bamboo stick and one blood stained Baniyan (vide seizure memo Ex.P-26) from appellant Rampal Singh, one blood stained Farsa (vide seizure memo Ex.P-27) from 8 Cr.A. 960/2000 appellant Mankunwar Bai, one blood stained sickle (vide seizure memo Ex.P-28) from appellant Sahodara Bai, one blood stained sickle (vide seizure memo Ex.P-31) from appellant Sadhna Bai and one blood stained sickle (vide seizure memo Ex.P-29) from appellant Somwati Bai. On various dates he recorded the case diary statements of witnesses who were conversant with the incident. He also sent all the articles collected in the course of investigation for forensic examinations to the State Forensic Science Laboratory Sagar. The laboratory gave report Ex.P-49.
(3.4) Upon the conclusion of the investigation, the police filed a charge-sheet against the appellants for being prosecuted for the offences punishable under Sections 147, 148, 149 and 302 IPC in the Court of Judicial Magistrate First Class, Bijawar. Vide order dated 18.03.1999, the learned JMFC committed the case for trial to the Sessions Court.
4. The learned Sessions Judge framed the charges 9 Cr.A. 960/2000 against the appellants under Sections 148 and 302 read with 149 (for three counts) IPC. The appellants denied the charges and prayed for trial. Thereupon, they were put on trial. In the examination under Section 313 Cr.P.C., they denied all the incriminating evidence and circumstances appearing against them in the prosecution evidence. Their defence, simpliciter, was that some unknown person(s) murdered all the three deceased persons in the night between 02.01.1999 to 03.01.1999, but complainant Virendra Singh lodged the FIR against them on account of old enmity. They have also examined two defence witnesses namely Dr. S.S. Bundela (DW/1) Dr. Aabha Khare (DW/2).
5. After analyzing and appreciating the evidence on record in detail in the impugned judgment, the learned Sessions Judge has found all the appellants guilty for committing the murders of all the three deceased and thus convicted them under Sections 148 and 302 read with 149 (for three counts) IPC and sentenced each of them thereunder as noted in para 1 of this judgment. Feeling aggrieved by the impugned judgment, the appellants are before this Court in this appeal.
6. It be noted that during the pendency of this appeal, 10 Cr.A. 960/2000 vide order dated 13.08.2009 passed in the order sheet of the same date, this Court had issued notices to the appellants for enhancement of sentences on the ground that it is a case of triple murder, where two women were murdered and the appropriate sentence has not been awarded to them.
7. At the time of hearing arguments, learned counsel for the appellants submitted that Virendra Singh (PW/2) has admitted in para 7 of his evidence that he had gone to Police Outpost Padariya of Police Station Satai to lodge the report of the incident. But the prosecution has suppressed the said FIR. On the other hand, the prosecution has produced the FIR Ex.P-12, which is recorded by Rakesh Tiwari (PW/8) at the instance of Virendra Singh in village Chhapar. Therefore, the FIR Ex.P-12 is interpolated and manipulated, and it does not narrate the true picture of the incident. It was further submitted that the convictions of the appellants are based upon the evidence of Virendra Singh and his brother Madhav Singh (PW/3) as only independent witness Natthu Singh (PW/1) has not supported the prosecution case and turned hostile. It was further submitted that the evidence of Virendra Singh and Madhav Singh falls in the category of interested and relative witnesses as deceased Uttam Singh and Pyari 11 Cr.A. 960/2000 Bai are their parents and deceased Usha Bai is the wife of Virendra Singh and Bhabhi of Madhav Singh. It was further submitted that Virendra Singh and Madhav Singh have given self-contradictory evidence in their cross-examination, and there are also material contradictions and omissions among the FIR, their case diary statements and their evidence.
8. It was further submitted by the learned counsel for the appellants that Virendra Singh and Madhav Singh fled away from the place of occurrence instead of coming to the rescue of their father Uttam Singh. It was further submitted that Virendra Singh has stated in his evidence that he saw the appellants assaulting his mother Pyari Bai and his wife Usha Bai in his house silently through the cracks of the door of Patwa. It is highly surprising that he had not saved them nor did he raise alarms to call for the neighbours to come to save them. It was further submitted that Madhav Singh has admitted in his evidence that he went running to village Ramgarh, where there is a Police Outpost but he had not lodged the report of the incident. On the other hand, he went to Chhatarpur by bus to inform about the incident to his brother Hari Sigh @ Anand and Jija (brother-in-law) Rajendra Singh. It was further submitted that the conduct of 12 Cr.A. 960/2000 Virendra Singh and Madhav Singh is highly unusual which in turn proves that they had not witnessed the appellants assaulting their father Uttam Singh at the Mer of the appellants and Virendra Singh had not seen assaulting the appellants to his mother Pyari Bai and wife Usha Bai. It was further submitted that Dr. V.S. Vajpayee (PW/4), who had conducted the post-mortem examinations on the dead bodies of the three deceased, has admitted in para 22 of his cross-examination that he had found digestive food in their small intestines. This medical evidence proves the defence of the appellants that all the deceased were murdered in the night by unknown person(s).
9. It was further submitted by the learned counsel for the appellants that as per the FIR and the depositions of Virendra Singh and Madhav Singh, appellants namely Sahodara Bai, Somwati Bai and Sadhna Bai had inflicted injuries on the persons of all the three deceased with sickles. Dr. V.S. Vajpayee (PW/4) has admitted that if an injury is caused by sickle, then the victim suffers a punctured wound but he had not found a punctured wound on the dead body of any of the three deceased. Thus, from the medical evidence, it is proved that the aforesaid three appellants are 13 Cr.A. 960/2000 falsely implicated in the case as they are the family members of the remaining appellants. It was further submitted that their false implications has also caused dents in the truthfulness of the prosecution story. It was further submitted that the appellants are agriculturists by occupation and sickle, axe and Farsa are used in agriculture for various purposes. Therefore, they are agricultural tools. Consequently, their seizure from the possession of the appellants by Investigating officer Rakesh Tiwari (PW/8) has no evidentiary value especially in view of the negative report of the Serologist. It was further submitted that Virendra Singh has stated in the FIR and his evidence that he stayed in the Bagiya of Gaurishankar for about an hour to save himself from being assaulted by the appellants. It was further submitted that Madhav Singh has stated in paras 15 and 17 of his cross-examination that Narpat Singh is his distant cousin and he had also seen from his agricultural field assaulting the appellants to his father Uttam Singh at the appellant's Mer. Thus, said Gaurishankar and Narpat Singh are the star witnesses of the case. But the prosecution has not examined them. Their non-examination also makes the prosecution-case doubtful. It was further submitted that the 14 Cr.A. 960/2000 learned Sessions Judge has not considered the evidence of Virendra Singh and Madhav Singh from the aforestated aspect. Therefore, the learned Sessions Judge has erred in placing the explicit reliance upon their testimonies. Consequently, the convictions of the appellants are bad in law and they deserve to be acquitted of the charges framed against them by allowing the appeal.
10. Insofar as enhancement of sentences of the appellants are concerned, the learned counsel for the appellants submitted that the present case does not fall in the category of the rarest of the rare case because the incident occurred on the trivial ground that Virendra Singh, Madhav Singh and his father deceased Uttam Singh carried the engine through the Mer of the agricultural field of appellant Mangal Singh. Therefore, in case of rejection of this appeal and upholding of the impugned judgment, the appellants are not liable to be punished with death sentences.
11. In reply, learned Panel Lawyer for the respondent/State submitted that Virendra Singh has not stated in his evidence anywhere that he had lodged the report of the incident at Police Outpost Padariya. On the other hand, he has stated in paras 7 and 10 of his evidence 15 Cr.A. 960/2000 that he had gone to the said Police Outpost to fetch the police. It was further submitted that Rakesh Tiwari (PW/8) has stated in para 20 of his cross-examination that on the date of incident, R.C. Mishra was the in-charge of the said Police Outpost and he informed him about the incident on wireless and upon his order he reached the place of offence. When he and others reached the place of incident, he found him there. He himself recorded the FIR Ex.P-12 at the instance of Virendra Singh. It is therefore crystal clear that Virendra Singh had not lodged the report of the incident at Police Outpost Padariya. Consequently, there is no question of suppression of the FIR as contended by the learned counsel for the appellants. It was further submitted that there are minor contradictions and omissions in the depositions of Virendra Singh and Madhav Singh which do not affect the substratum of prosecution case. It was further submitted that Virendra Singh and Madhav Singh are not interested witnesses because there is nothing in their cross- examinations to the effect that they are interested in the conviction of the appellants. It was further submitted that the appellants have not brought any independent evidence on record to prove that they have deep rooted enmity with them 16 Cr.A. 960/2000 (appellants). It was further submitted that Virendra Singh and Madhav Singh had lost three members of their family. Therefore, they would not at any cost save the real culprits and would rope in the appellants. It was further submitted that Virendra Singh has stated in para 24 of his cross- examination that when he and his brother Madhav Sigh made an attempt to save their father Uttam Singh from being attacked by the appellants, they charged at them with sickles, Farsas and axes. As a result, they got frightened to death, and they fled away from the place of occurrence in order to save themselves. Thus, there is nothing unusual in their conduct to run away from the place of occurrence. It was further submitted that Madhav Singh has stated in his evidence that he ran towards village Patwapura and therefrom he went to village Ramgarh. On the way between the said villages, the Police Outpost Padariya is not situated. Therefore, he has properly explained as to why he had not lodged the report there. It was further submitted that Madhav Singh has stated in paras 6 to 8 of his cross-examination that he narrated to some of the villagers of Ramgarh regarding the incident, and they advised him to go to Chhatarpur to lodge the report which is why he went to 17 Cr.A. 960/2000 Chhatarpur. There, he preferred to inform his brother Hari Singh @ Anand and his Jija Rajendra Singh about the incident instead of lodging the FIR at Police Station Chhatarpur. It was further submitted that Virendra Singh had seen his father being murdered by the appellants moments before his mother and wife were attacked by the appellants, therefore, he had not come to their rescue or raise the alarms to call for the people to save them jeopardizing his own life. It was further submitted that their evidence cannot be disbelieved on the ground they had not come to the rescue of the deceased persons.
12. It was further submitted by learned Panel Lawyer that the independent witnesses are by and large reluctant to record their statements to the police or the Courts for various reasons. In the circumstances, only the relative witnesses come forward to record their statements to the police and the Courts. It was further submitted that in the course of investigation of the present case, Investigating Officer Rakesh Tiwari had recorded the case diary statements of independent eye-witnesses namely Hari Singh, Narpat Singh, Natthu Singh, Ramkunwar, Mannulal and Rajendra Singh. However, they had been won over by the appellants. 18 Cr.A. 960/2000 For this reason, Natthu Singh (PW/1) turned hostile and the prosecution had to give the remaining witnesses up. Therefore, there is no force in the contention of the learned counsel for the appellants that non-examination of independent eye-witnesses by the prosecution has cast doubt on the veracity of its case. It was further submitted that Dr. V.S. Vajpayee has clarified in his cross-examination that a punctured wound could be caused by sickle only when its pointed edge is entered into the body of a victim and if a blow is inflicted with the middle part of it, then the victim would suffer an incised wound in place of a punctured wound. He has also stated in his evidence that the injuries were caused with the middle part of a sickle(s), therefore, none of the deceased persons had sustained punctured wound. Thus, Dr. V.S. Vajpayee has satisfactorily explained as to why none of the deceased persons suffered punctured wound. Consequently, it is wrongly argued on behalf of the appellants that all the three deceased had not suffered punctured wound with sickle(s). Therefore, appellants Sahodara Bai, Somwati Bai and Sadhna Bai, who are alleged to have sickles with them at the time of incident, were wrongly implicated in the case. It was further submitted 19 Cr.A. 960/2000 that it is true that Dr. V.S. Vajpayee (PW/4) has stated in his cross-examination that he had found digestive food in the small intestines of all the three deceased. However, it is not the sole ground to say that all the three deceased were murdered at night because the digestion of food depends upon its quality and nature. Some foods are easily digestible and some foods are not easily digestible and they take time to digest. Therefore, it can be said with certitude that all the three deceased had taken easily digestible foods in their dinner. It was further submitted that Forensic Science Laboratory Sagar had sent its report Ex.P-49 along with the report of Serologist. The Serologist has stated in his report that he could not determine the origin of blood stains on axe, Farsa and sickle, which were seized from the possession of appellants Panjan Singh, Mankunwan Bai and Sahodara Bai respectively, because the blood stains thereon were disintegrated and not sufficient for carrying out tests. It was further submitted that the prosecution has proved its case by the ocular evidence, therefore, the negative report of the Serologist does not impact adversely upon the prosecution- case. Upon these submissions, learned Panel Lawyer submitted that the learned Sessions Judge has convicted 20 Cr.A. 960/2000 the appellants upon just and proper appreciation of evidence on record, therefore, no interference by this Court with the impugned judgment is called for and the appeal filed by the appellants deserves to be dismissed.
13. Insofar as notices for enhancement of sentences issued to the appellants, learned Panel Lawyer has justified the issuance of notices and prayed for death sentences to the appellants.
14. We have carefully considered the rival submissions made at the Bar and perused the record of the trial Court and the impugned judgment.
15. The first point for our consideration is whether the three deceased persons had suffered homicidal deaths?
16. Virendra Singh (PW/2) and Madhav Singh (PW/3) have deposed that deceased namely Uttam Singh, Pyari Bai and Usha Bai died of injuries which they had sustained in the course of the incident. Rakesh Tiwari (PW/8) has deposed that he held the inquest enquiries in the presence of the public witnesses on the places where their dead bodies were lying. Upon the inquest enquiries, he and the public witnesses were of the opinion that they had succumbed to injuries. Dr. V.S. Vajpayee (PW/4) has 21 Cr.A. 960/2000 testified that on 04.01.1999, he conducted the post-mortem examinations on the dead bodies of Uttam Singh, Pyari Bai and Usha Bai in the mortuary of the District Hospital Chhatarpur. He has given evidence in detail regarding the injuries sustained by them. He has stated that they suffered anti-mortem injuries on the vital and non-vital parts of their bodies with hard & blunt and hard & sharp objects and the injuries suffered by them on their vital parts, were sufficient for causing their deaths in the ordinary course of nature. He has also stated that in the course of post-mortem examination of Usha Bai, he found in her womb 20 weeks' old foetus. He has opined that the deceased persons had died 18 to 30 hours prior to the commencement of the post- mortem examinations and they suffered homicidal deaths. He has proved the post-mortem reports of deceased Uttam Singh Ex.P-15, Pyari Bai Ex.P-16 and Usha Bai Ex.P-17. It be noted that we have not detailed the evidence of Dr. V.S. Vajpayee in this judgment on the ground that the defence has not challenged the homicidal nature of the deaths of the deceased persons. Thus, we hold that all the three deceased had suffered homicidal deaths.
17. Learned counsel for the appellants have contended 22 Cr.A. 960/2000 that all the three deceased had not died in the morning of 03.01.1999, the date of incident. On the other hand, they had died in the night between 02.01.1999 and 03.01.1999 when they were sleeping as Dr. V.S. Vajpayee has stated in his evidence that he had found digestive foods in their small intestines and faceal matters in the large intestines of all the three deceased and reverse process of rigour mortis has set in their bodies. Dr. V.S. Vajpayee has strongly denied in his cross-examination that all the three deceased were assaulted while sleeping. Investigating Officer Rakesh Tiwari has testified that he found the dead body of Uttam Singh in the Mer of agricultural field of appellant Mangal Singh and dead bodies of Pyari Bai and Usha Bai in the Attai (Dalan) of their house. Had all the three deceased died in the aforesaid night, then their dead bodies would have been found in one and the same place not on the two aforestated places, which are removed by four furlongs from each other as per spot map Ex.P-8. In the case of Pattipati Venkaiah Vs. State of Andhra Pradesh, AIR 1985 SC 1715, the Supreme Court has observed that medical science is not so perfect as to determine the exact time of death of a deceased person. In the case of Nihal Singh and others Vs. State of Punjab, AIR 23 Cr.A. 960/2000 1965 SC 26, the Supreme Court has observed the time of death can not be ascertained on the basis of digestion of stomach contents and condition of the bladder and intestine because the digestion depends on the nature of the food taken and digestive power of individual person. In the light of the aforesaid rulings, evidence on record and discussions, we reject the contentions of the learned counsel for the appellants that all the three deceased died in the night between 02.01.1999 and 03.01.1999.
18. The next point for our consideration is whether the appellants having been members of an unlawful assembly and in furtherance of common object of the assembly, murdered all the three deceased?
19. Virendra Singh (PW/2) has deposed that they have got two Khets (agricultural fields). They have named them as Kolhu Wala Khet and Gadara Wala Khet. They would irrigate the crops drawing water from the wells by means of diesel engine. The engine is fitted on four wheeled platform with a hook for towing it. Appellant Mangal Singh has got a Khet adjoining his Kolhu Wala Khet. On the morning of the fateful day, he and his brother Madhav Singh irrigated the crops in their Kolhu Wala Khet. After completion of the irrigation, he 24 Cr.A. 960/2000 asked Madhav Singh to go to home to fetch the nails being required in the engine. Some time later, Madhav Singh and his father Uttam Singh came in the Kolhu Wala Khet. Thereafter, they were carrying the engine to their another Khet by pushing and pulling using a passage which goes through the Mer of appellant Mangal Singh. While they were in the Mer of appellant Mangal Singh with the engine, appellants Mangal Singh and Panjan Singh with axes, appellant Rampal Singh with Lathi, appellant Mankunwar Bai with Farsa and appellants Sadhna Bai, Somwati Bai and Sahodara Bai with sickles each came over to the Mer from inside of their Khet and appellant Mangal Singh took objections of their carrying engine through his Mer. Thereupon, he tendered an apology with folded hands and told him that in future they would not carry the engine through his Mer. Meanwhile, appellants Mangal Singh, Panjan Singh and Rampal Singh assaulted his father Uttam Singh with axes and Lathi. As a result, he fell down. Thereafter, appellant Mankunwar Bai with Farsa, appellants Somwati Bai, Sadhna Bai and Sahodara Bai with sickles assaulted him. Appellant Mangal Singh exhorted the remaining appellants to beat him and Madhav Singh. Having 25 Cr.A. 960/2000 heard so, he fled towards his native village Patwapura. After reaching his house, he narrated the incident to his mother Pyari Bai and his wife Usha Bai. Moments later, he saw all the appellants coming running towards his house. Thereupon, his mother told him to hide inside the house. He hid himself in the Patwa as he feared that they would assault him. Through the small cracks of its door, he saw the appellants assaulting his mother and his wife. He had an apprehension that the appellants would also assault him by smoking him out in his house, therefore, he went towards his neighbour's house Dhanua Kori on the sly through the back door of his house. However, he found his house locked. Thereafter he hid himself in the kitchen garden of his another neighbour. He remained there for about an hour. When the appellants had left his house, he came to his house and saw his mother and wife lying dead in the Aangan of his house. When the police came to his village, he lodged the report Ex.P-12.
20. Virendra Singh has stated in para 12 of his cross- examination that he has not stated in the FIR that he and his brother Madhav Singh had gone to his Khet at about 4:00 am as he does not wear a watch. The police had recorded 26 Cr.A. 960/2000 the said time on its own in the FIR as he had gone after rising of the sun. He has stated in the FIR and his case diary statement (Ex.D-1) that he had sent Madhav Singh to his house to bring nails. His father Uttam Singh came to the Khet with him. He has stated that if these facts are not mentioned in the FIR and his case diary statements, he cannot give any explanation as he had mentioned these facts at the time of recording of the FIR and his case diary statement. He has also deposed that he had not stated in the FIR and in his case diary statements that Madhav Singh and his father had come to the Khet at about 8 to 9 am. He has stated in the FIR and his case diary statement that appellant Mankunwar Bai with Farsa and appellants Sahodara Bai, Somwati Bai and Sadhna Bai with sickles assaulted his father Uttam Singh after he had fallen down, but if these facts are not mentioned in the FIR and the case diary statement. He cannot give any reason for this. We find that these omissions and contradictions are minor in nature, therefore, veracity of the evidence of Virendra Singh cannot be doubted for the said reason.
21. Virendra Singh has stated in para 10 of his cross- examination that he had lodged the report of the incident at 27 Cr.A. 960/2000 Police Outpost Padariya and the police had obtained his thumb impression on the report. He has also stated that he had lodged the report only once. However, in para 20 of the cross-examination, Rakesh Tiwari (PW/8) has denied that Virendra Singh had lodged the FIR at Police Outpost Padariya. He has stated in the said para that on the date of incident, Assistant Sub-Inspector, R.C. Mishra, was in- charge of the said Police Outpost. Since Virendra Singh has specifically stated in his cross-examination that he lodged the report at Police Outpost Padariya, the evidence of said R.C. Mishra is material on the point whether Virendra Singh had lodged the report at Police Outpost Padariya? But the prosecution has not examined him in order to contradict Virendra Singh that he had not lodged the report at Police Outpost Padariya. In the circumstances, we hold that Virendra Singh had, firstly, lodged the report at Police Outpost Padariya and thereafter, he recorded FIR Ex.P-12 to Rakesh Tiwari in village Chhapar. It be noted that in para 22 of the cross-examination of Rakesh Tiwari, the defence has challenged that Virendra Singh had lodged the report of the incident against appellants Mangal Singh, Panjan Singh and Rampal Singh at Police Outpost Padariya and thereafter 28 Cr.A. 960/2000 R.C. Mishra immediately came over to village Chhapar for investigation. In this background, we have to critically examine the evidence of Virendra Singh whether he has falsely implicated appellants Mankunwar Bai, Sahodara Bai, Somwati Bai and Sadhna Bai being family members of appellants Mangal Singh, Panjan Singh and Rampal Singh?
22. In para 19 of the cross-examination, Virendra Singh has stated that appellants Sahodara Bai, Somwati Bai and Sadhna Bai had inflicted injuries upon his father Uttam Singh with the pointed edge of their sickles. His brother Madhav Singh in para 10 of his cross-examination has stated that he could not see whether the aforestated appellants had inflicted injuries on his father Uttam Singh with the pointed edge or middle part of their sickles. Dr. V.S. Vajpayee in paras 21 and 30 of his cross-examination has stated that if an injury is inflicted with the pointed edge of a sickle, then the victim suffers a punctured wound. He has deposed that on the face of deceased Pyari Bai, he had found a punctured wound but he had not found any punctured wound on the dead bodies of Uttam Singh and Usha Bai. Since Virendra Singh has not specifically stated which appellant out of the trio inflicted injury on the face of his mother with sickle, we 29 Cr.A. 960/2000 are unable to hold which appellant out of the trio had caused the said injury to deceased Pyari Bai. Rakesh Tiwari had deposed that he has seized sickles at the instances of Sahodara Bai, Somwati Bai and Sadhna Bai. As per the FSL report Ex.P-49, blood stains were found on the sickles which had been seized from the possession of the said appellants. However, as per the report of Serologist which is the part of the FSL report, the origin of blood on the sickles could not be determined because of disintegration of blood and inconclusive test-results. Thus, the seizure of sickles at the instances of aforestated appellants does not connect conclusively them with the crime. Therefore, we do not find safe to believe that part of the statement of Virendra Singh wherein he has stated that said appellants assaulted his father, mother and his wife with sickles.
23. Virendra Singh has stated in paras 22 and 29 that appellant Mankunwar Bai is the real sister of appellant Mangal Singh and that her husband had deserted her. Thereafter, she is separately living in village Chhapar form the family of appellant Mangal Singh. He has also stated that prior to the present incident, she had inflicted injuries with sickle on his mother Pyari Bai for which she is facing trial in 30 Cr.A. 960/2000 the Court at Bijawar town of Chhatarpur district. As per the FIR and deposition of Virendra Sigh, appellant Mankunwar Bai had assaulted all the deceased persons with Farsa. Rakesh Tiwari has stated that he has seized Farsa at her instance. As per the report of FSL and Serologist Ex.-49, blood stains were found on the Farsa. But the origin of blood could not be determined because of disintegration of blood and inconclusive test-results. Thus, the seizure of Farsa at the instance of appellant Mankunwar Bai does not connect definitely her with the crime without any other reliable evidence. In view of the aforesaid facts and evidence, false implication of appellant Mankunwar Bai cannot be ruled out.
24. On the basis of aforesaid close scrutiny of the evidence of Virendra Singh, we do not believe his evidence on the point that appellants Mankunwar Bai, Sahodara Bai, Somwati Bai and Sadhna Bai had assaulted all the three deceased persons.
25. Now, the point for consideration before us is whether the remaining evidence of Virendra Singh wherein he has stated that appellants Mangal Singh, Panjan Singh and Rampal Singh assaulted his father, mother and wife with axes and sticks can be relied upon? It is settled in law that in 31 Cr.A. 960/2000 India the dictum "Falsus in uno, falsus in omnibus" is not applicable (See: Major Singh Vs. State of Punjab, (2007) 1 SCC (Cri) 118, Sucha Singh and another Vs. State of Punjab, (2003) 7 SCC 643). It is also settled in law that where a part of statement of a witness is found reliable after close scrutiny that part may be accepted discarding the remaining part of his evidence (See- Haji Khan Vs. State of U.P., (2005) 13 SCC 353). In the light of the aforesaid settled law, we hold that the statement of Virendra Singh is reliable to the extent that appellants Mangal Singh, Panjan Singh and Rampal Singh assaulted his father, mother and his wife and committed their murders.
26. Upon the perusal of examination-in-chief of Madhav Singh (PW/3), we find that there is consistencies and uniformity between his evidence and that of his brother Virendra Singh regarding the death of their father Uttam Singh. Since we have held that the statement of Virendra Singh is reliable in respect of the murder of his father by appellants Mangal Singh, Panjan Singh and Rampal Singh, to that extent we hold his evidence is also reliable.
27. Learned counsel for the appellants have challenged the truthfulness of the testimonies of Virendra Singh and 32 Cr.A. 960/2000 Madhav Singh on the ground of their conduct as they had fled away from the place of occurrence when Uttam Singh was being assaulted instead of coming to his rescue. Virendra Singh in para 24 of his cross-examination has stated that when he and Madhav Singh came to the rescue of their father, the appellants ran towards them with the weapons, therefore, they could not save their father and in order to save themselves they ran away. The same evidence on the said point is given by Madhav Singh in his examination-in-chief. Thus, they have properly explained as to why they had not come to the rescue of their father when he was being assaulted by the appellants. As Virendra Singh had seen moments before the blood-lust in the acts of appellants while they were killing his father and saw them chasing him after murdering his father, therefore, it is quite understandable that he had not come to rescue of his mother and wife when they were being assaulted by the appellants in the Aangan of his house. In the case of Rana Pratap and others Vs. State of Haryana, AIR 1983 SC 680, the learned Sessions Judge in his judgment doubted the presence of witnesses on the ground that they had not rescued the deceased when he was in the clutches of the 33 Cr.A. 960/2000 assailants. The Supreme Court in para 6 of the judgment described his view as unreasonable and held that every person who witnesses a murder reacts in his own way. Some become stunned, speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter- attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. In the light of the said ruling, the testimonies of Virendra Singh and Madhav Singh cannot be disbelieved on their conduct at the time of occurrence.
28. As per the statements of Madhav Singh and Virendra Singh, Nathu Singh (PW/1) witnessed from his agricultural field the assault on their father being done by the appellants. However, he turned hostile. But it does not affect the prosecution case as we have held their evidence reliable to the extent as indicated here-in-above.
34Cr.A. 960/2000
29. Learned counsel for the appellants have argued that as per the evidence on record, deceased Pyari Bai and Usha Bai were assaulted by the appellants in the Angan of their house, and their house is situated among the house of other persons. However, the prosecution has not examined any independent witness in support of its case. Therefore, the prosecution case becomes doubtful. Upon the perusal of the record of the trial Court, we find that Investigating Officer Rakesh Tiwari had recorded the case diary statements of Narpat Singh, Ramkunwar and Munnulal. They have stated in their case diary statements that they had seen the appellants assaulting and murdering deceased Pyari Bai and Usha Bai. From the perusal of the proceedings of various dates of hearing of the trial Court, we find that the prosecution had not examined them after Natthu Singh turned hostile with the apprehension that they may also have been won over by the defence. The Supreme Court has observed in para 9 of the decision rendered in the case of State of A.P. Vs. S. Rayappa and others, (2006) 4 SCC 512, thus, it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases 35 Cr.A. 960/2000 are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross- examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being in a close relation to the deceased he will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against the somebody and screen the real culprit to escape him unpunished. The only requirement is that the testimony of a relative witness should be examined cautiously. The same view was taken by the Supreme Court in the case of Sahabuddin Vs. State of Assam (2012) 13 SCC 213. In the light of the said rulings, the veracity of the prosecution case cannot be doubted that it has not examined any independent witness in support of its case.
30. Rakesh Tiwari has deposed that on the basis of the disclosure statements of appellants Mangal Singh, Panjan Singh and Rampal Singh being Ex.P-18, P-19 and P-20 respectively, he seized from the possession of appellant 36 Cr.A. 960/2000 Mangal Singh, one axe and one jacket vide seizure memo Ex.P-25, appellant Panjan Singh, one axe and one sweater vide seizure memo Ex.P-30, and appellant Rampal Singh, one Lathi and one Baniyan vide seizure memo Ex.P-26. As per the report of FSL Ex.P-49, no blood stains were found on the articles sezied from the possession of appellant Panjan Singh. However, the blood stains were found on the articles seized from the possession of appellants Mangal Singh and Rampal Singh. As per the report of Serologist, the origin of blood cannot be determined on the axe and Baniyan on account of disintegration of blood and inconclusive test- results. Since from the ocular evidence, the involvement of the aforesaid appellants in the crime have been proved, the negative reports of the FSL and the Serologist do not absolve them of the crime.
31. Now, we consider defence evidence led by appellants Rampal Singh and Sadhna Bai.
32. Dr. S.S. Bundela (DW/1) has stated that he is an Ophthalmologist. On 11.09.1999, he examined vision of eyes of appellant Rampal Singh at the District Hospital Chhatarpur upon the written request of Jail Superintendent Chhatarpur. After the examination, he has found that he has 37 Cr.A. 960/2000 only 10% vision in his right eye by birth and he could not see through the left eye because of the absence of the eyeball. He has proved his report Ex.D-3. This witness has admitted in his cross-examination that appellant Rampal Singh with 10% vision could go anywhere without the help of any person and that he can also do routine work of his daily life. Not only that he can assault any person which is near to him. Upon the aforesaid admissions of this witnesses, we hold that the defence put up by appellant Rampal Singh is not tenable that on account of poor vision, he could not take part in the alleged crime and he is falsely implicated in the case.
33. Dr. Aabha Khare (DW-2) has deposed that she is a gynecologist. On 16.03.1999, she clinically examined appellant Sadhna Bai at the District Hospital Chhatarpur and found that she was carrying 7 months' old pregnancy. She has stated in his cross-examination that a woman of village background with 3 to 4 months old pregnancy can do agricultural work. In the present case, the date of incident is 03.01.1999. This witness examined appellant Sadhna Bai on 16.03.1999. On the basis of the aforesaid dates, it can be said that on the date of incident i.e. 03.01.1999, appellant 38 Cr.A. 960/2000 Sadhna Bai was having pregnancy of 3 to 4 months old. Therefore, the defence taken by her cannot be accepted on account of her pregnancy, she could not take part in the incident and she is falsely implicated in the case. However, we have not believed the evidence given by Virendra Singh and Madhav Singh regarding her involvement in the crime for different reasons.
34. In view of the forgoing critical and deep analysis of evidence on record, reasoning and discussions, we come to the ultimate conclusion that it has been proved beyond reasonable doubt that appellants namely Mangal Singh, Panjan Singh and Rampal Singh committed the murders of all the three deceased persons in furtherance of common intention.
35. Now, we will deal with a legal point whether appellants Mangal Singh, Panjan Singh and Rampal Singh can be convicted under Section 302 IPC with the aid of Section 34 IPC in place of Section 302 read with 149 IPC because the formation of an unlawful assembly is not proved in the case. The Supreme Court has held in a catena of judgments that where the formation of unlawful assembly of five or more than five accused persons is not proved in a case in 39 Cr.A. 960/2000 committing a crime and only involvement of less than five accused persons is proved then the remaining accused persons can be convicted under Section 302 with the aid of 34 IPC, although they were tried with charge under Section 302 read with Section 149 IPC. A reference may be made in this respect to the decisions rendered in the cases of Kacheru Singh Vs. State of U.P., AIR 1956 SC 546, Bharbad Mepa Vs. State of Bombey, AIR 1960 SC 289 and Alma Vs. State of M.P., AIR 1991 SC 1519. In the light of the aforesaid rulings, we convict appellants Mangal Singh, Panjan Singh and Rampal Singh under Section 302 read with 34 IPC in place of Section 302 read with 149 IPC.
36. As it is earlier stated that vide order dated 13.08.2009, this Court has given notices for enhancement of sentences to the appellants, now the point for consideration before us is whether the sentences awarded to appellants Mangal Singh, Panjan Singh and Rampal Singh under Section 302 IPC by the learned Sessions Judge deserve to be enhanced? As is it obvious from the evidence on record, the incident occurred on the spur of moments without pre-plan and pre-meditation when the complainant party was carrying their engine through the Mer of accused party. Moreover, 40 Cr.A. 960/2000 there is no evidence on record that there is a deep rooted enmity between the complainant party and the accused party. The appellants had filed this appeal in the year 2000, whereas this Court has given the notices of enhancement of sentences to them in the year 2009, i.e. after a lapse of near about of nine years. Thus, the efficacy of giving notices of enhancement of sentences has lost its significance with elapsed of nine long years. The Supreme Court has enumerated the aggravating and the mitigating circumstances in awarding a death sentence in the cases of Bachchan Singh Vs. State of Punjab, (1980) 2 SCC 684, Machhi Singh and others Vs. State of Punjab, (1983) 3 SCC 470 and more recently in the case of Mukesh and another Vs. State (NCT of Delhi) and others, (2017) 6 SCC 1. The Supreme Court in the case of Lehna Vs. State of Haryana, (2002) 3 SCC 76 has defined in para 23 of the decision "the rarest of rare case". The Supreme Court in the cases of Panchhi and others Vs. State of U.P., (1998) 7 SCC 177, Omprakash Vs. State of Haryana, (1999) 3 SCC 19 and Ram Pal Vs. State of U.P., (2003) 7 SCC 141 has held that the degree of brutality in committing a murder and the number of murders are also not the criteria for awarding a 41 Cr.A. 960/2000 death sentence. The law laid down in the aforesaid case-law, we are of the considered opinion that this is not a fit case for awarding death sentences to appellants Mangal Singh, Panjan Singh and Rampal Singh.
37. The learned Sessions Judge has held appellants Mangal Singh, Panjan Singh and Rampal Singh guilty for three counts under Section 302 IPC and awarded life imprisonment with a fine, as noted in para 1 of this judgment, for each out of the three counts and ordered that they shall suffer life imprisonments concurrently for all the three counts. Now the point before us is whether this Court can alter concurrent life imprisonments into consecutive life imprisonments for each of the three counts? The Constitution Bench of the Supreme Court in recent judgment rendered in Muthuramalingum and others Vs. State represented by Inspector of Police, (2016) 8 SCC 313, has held that if an accused committed more than one murders in one and the same incident and he is not awarded any sentence under any other panel Section of law, then the multiple sentences of life imprisonment awarded to an accused under Section 302 IPC shall run concurrently. Therefore, in view of the said law, we cannot alter the life 42 Cr.A. 960/2000 imprisonments awarded to the aforesaid appellants under Section 302 IPC from concurrently to consecutively.
38. In the result, this appeal is allowed in the following terms:-
(i) Vide the impugned judgment, the convictions and sentences imposed upon appellants Mankunwar Bai, Sahodara Bai, Somwati Bai and Sadhna Bai under Sections 148 and 302 read with 149 IPC are set aside. They are acquitted of the said charges. Their bail bonds shall stand cancelled as they are on bail by the orders of this Court.
The Trial Court is directed that if they have already deposited the fine, the same shall be refunded to them.
(ii) Vide the impugned judgment, the convictions and sentences awarded to appellants Mangal Singh, Panjan Singh and Rampal Singh under Section 148 IPC are set aside and they are acquitted of the said charge. Their convictions recorded under Section 302 read with 149 IPC is altered into one under Section 302 read with 34 IPC and they shall suffer imprisonment for life for all the three 43 Cr.A. 960/2000 counts concurrently. The fine sentences shall remain intact.
(iii) Appellant Rampal Singh's jail sentence has been suspended by this Court vide order dated 20.09.2006 and he is on bail. His bail-bonds shall stand cancelled. He is directed to surrender before the CJM Court Chhatarpur within two months from the date of passing of this judgment, failing which the Chief Judicial Magistrate shall take the steps in accordance with law for sending him jail to suffer imprisonment.
39. A copy of this judgment be sent to the Court of CJM Chhatarpur.
(S.K. Seth) (Rajendra Mahajan)
Judge Judge
SS