Madhya Pradesh High Court
Rajkumar Kushwah And 2 Ors. vs The State Of Madhya Pradesh on 28 October, 2015
Author: P.K. Jaiswal
Bench: Jarat Kumar Jain, P.K. Jaiswal
60
HIGH COURT OF MADHYA PRADESH : BENCH AT
INDORE
D.B.: Hon'ble Shri Pankaj Kumar Jaiswal &
Hon'ble Shri Jarat Kumar Jain, JJ.
CRIMINAL REFERENCE No.03/2013
STATE OF MADHYA PRADESH
Versus
RAJKUMAR KUSHWAHA & ORS.
*******
CRIMINAL APPEAL No.1323/2013
RAJKUMAR KUSHWAHA & 2 ORS.
Versus
STATE OF MADHYA PRADESH
*******
CRIMINAL APPEAL No.1420/2013
NARESH KUMAR DOSHI
Versus
STATE OF MADHYA PRADESH
*******
Ms. Rekha Shrivastava, learned Counsel for the
appellants (Criminal Appeal No.1323/2013 and for
respondents in Criminal Reference No.03/2013).
Shri M.D. Patil, learned counsel for the appellant
(Criminal Appeal No.1420/2013).
Shri Deepak Rawal, learned Dy. Advocate
General for respondent - State.
*****
JUDGMENT
(Passed on this 28th day of October, 2015) Per P.K. Jaiswal, J.
Both the appeals have been preferred against the judgment and order dated 13.9.2013 of the 60 Special Judge, Barwani, District Barwani, in Sessions Trial No.149/11, whereby appellant No.1 - Rajkumar Kushwaha, appellant No.2 - Dilip Sharma and appellant No.3 - Tarun Soni (Cri. Appeal No.1323/2013), have been convicted for the offences under Section 302 of IPC (for 14 counts) and have been sentenced to death. Under Section 307 of IPC (for 19 counts) and sentenced for 10 years R.I., under Section 435 of IPC, sentenced to undergo 7 years R.I. to them. The sentences imposed on them were ordered to consecutively.
2. Criminal Appeal No.1420/2013, has been filed by appellant - Naresh Kumar Doshi, who has been convicted for preparing criminal conspiracy for the offence punishable under Section 435 read with Section 120-B IPC and has been sentenced to undergo 7 years R.I, under Section 302 (for 14 counts) read with Section 120-B of IPC and has been sentenced to undergo life imprisonment with fine of 60 Rs.3,00,000/- on each count. In default of payment of fine 3 years additional R.I. on each count and under Section 307 read with Section 120-B of IPC (for 19 counts) and has been sentenced to undergo 10 years RI with fine of Rs.1,00,000/- on each count. In default of payment of fine 3 years additional R.I. on each count.
3. Appellants - Rajkumar Kushwah, Dilip Sharma and Tarun Soni, have been sentenced to 'death', therefore, the learned Special Judge vide Criminal Reference No.03/2013, preferred the same under Section 366 of the Cr.P.C. and the provisions of Rule - 273 of 'Rules and Orders' (Criminal).
4. The learned trial Court also directed to award the compensation to the family members of the each of the deceased and injured as per paragraphs 410 and 411 of the impugned judgment.
5. Brief facts of the case are that appellant No.1 - Rajkumar Kushwaha, appellant No.2 - Dilip 60 Sharma and appellant No.3 - Tarun Soni, were cleaner, conductor and driver of the bus bearing registration No. R.J.-09-PA-1442, owned by Naresh Kumar Doshi, proprietor of Ashok Travels. The vehicle bearing registration No. R.J.-09-PA-1442 of Ashok travels is a bus plied between Nashik (Maharashtra) to Sikar (Rajasthan). Timing of the operation of this vehicle was that it leaves Nashik at 11.00 - 11.30 and reaches Sikar next day.
6. On 21.08.2011 at about 04.00 PM, bus of "Sai Kripa Travels" bearing registration No.MP-09-FA- 2717 run by 'Sai Kripa' travels left Sendhwa for Indore, wherein Praveen (PW3) was the helper, Pankaj Panchal, who died in the incident, was the conductor and Sunil Thakur was driver of the said bus of 'Sai Kripa Travels'. When bus bearing registration No. MP- 09-FA-2717, reached Jamli Toll Plaza on A.B. Road, other bus bearing registration No. R.J.-09-PA-1442 of Ashok Travels was standing there, where some 60 dispute has taken place between the conductor of bus of 'Sai Kripa Travels', namely Pankaj Panchal and accused Dilip Sharma and Rajkumar Kushwaha of the bus belonging to Ashok Travels. The dispute was for getting the passengers for their buses. After sometime, the bus of Sai Kripa Travels reached at RTO Barrier, Balsamund and sometime thereafter, the other vehicle of Ashok Travels also came there. As per the prosecution story, the bus of Ashok Travels overtook the bus of Sai Kripa Travels and then, it came just over the bus of Sai Kripa Travels and obstructing its way off the engine. On this Praveen (PW3) cleaner of Bus of Saikripa Travels came down from the bus to clear the way. Pankaj Panchal, who was the conductor of the bus was standing at the gate of the bus. At the same time, the other accused persons, ie., Tarun Soni, Dilip Sharma and Rajkumar Kushwaha, who were Driver, Conductor and Helper, respectively, got down from their vehicle of Ashok Travels and with an intent to put 60 passengers of the bus of Sai Kripa Travels on fire, Driver (Tarun Soni) of Ashok Travels poured petrol at the gate of the bus of Sai Kripa Travels and set it on fire. Cleaner of the bus belonging to Ashok Travels namely Rajkumar Kushwaha, remained standing there with a Tommy in his hand, so that none in the bus of Sai Kripa Travels may try to save themselves and, thereafter, the accused persons flew away. Santosh (PW1) passenger came out of the bus along with his father - Champalal (PW2). There were 30-35 passengers in the bus. The said incident was witnessed by Kishore (PW6) and other persons of the locality. Station House Officer - Amar Singh Raghuwanshi (PW56) of police station Nagalwadi, District Barwani, received information that, on the A.B. Road at Balsamad R.T.O. Barrier two rival bus operators' driver, conductor and cleaner are fighting amongst each other and are setting fire to each other's bus. Upon this information, Amar Singh Raghwanshi 60 (PW56), informed Head Constable No.272 of Police Chowki Ozar that he should call fire brigade immediately from Sendhwa and he along with the available force at the police station and after informing his superior officers, proceeded to the spot. The information was recorded on 21.8.2011 by Roznamcha Sanha (Daily Diary) No.728. When PW56 reached the spot, he found that both the buses were set at fire and were burning, with the help of force and other citizens and with the help of other employees of the hotels, he tried to extinguish the fire; from the spot, he dispatched the inured persons by ambulance and other vehicles, to Sendhwa, Ozar, Julwaniya and Barwani. With the help of fire brigade which had come from Sendhwa, the fire on the Sai Kripa Bus No.M.P.-09/FA-2117 and Ashok Travels bus No.RJ-09/PA-1442 were extinguished. The injured and deceased persons were immediately sent to civil hospital, Sendhwa. (PW56) Amar Singh Raghuwanshi, SHO on the spot received 60 a Dehati Nalish from PW1 complainant Santosh son of Champalal Prajapat. On his report, he entered the case at 0/11 under Sections 435, 302, and 307 read with Section 34 of IPC against Tarun Soni (driver), Dilip Sharma (conductor) and Rajkumar (cleaner) of Ashok Travels. After taking down Dehati Nalishi report, a Murg report was also taken from complainant - Santosh (PW1) under Section 174 Cr.P.C and both of them were sent with PW50 constable No.210 Raju More to Police Station Nagalwadi, where Head Constable No.209 Jagdish Chauhan (PW3) recorded it.
7. SHO (PW56) Amar Singh Raghuwanshi, prepared the spot panchnama, after inspection and also seized bus M.P.09/FA-2117, one match box, one plastic Can, one lathi and recorded the testimony of complainant PW1 Santosh, injured (PW2) Champalal, (PW29) Umesh Fullpagare and Rajendra Khori.
8. In the investigation it has also come on 60 record that Sai Kripa Bus was plying between Sendhwa to Dhamnodh and Dhamnodh to Indore, whose driver was Sunil, Conductor was Pankaj Panchal and cleaner was Praveen Jaiswal (PW3). That Ashok Travels is having All India Permit for plying from Nashik (Maharashtra) to Sikar (Rajasthan). As per the Bus Stand supervisor Radheyshyam Soner and agent Mehra Pandey, on 21.8.2011, Tarun Soni, Dilip Sharma and Rajkumar Kushwah, had quarreled with the conductor Pankaj Panchal of Sai Kripa bus over lifting the passengers and the timing of travel. Both the buses when reached Toll Plaza Jamli at A.B. Road, conductor Dilip Sharma and cleaner Rajkumar Kushwaha of Ashok Travels raised a dispute and there was altercation between them. This fact has been confirmed by the injured persons Narendra Jaiswal (PW20), Tara Bai (PW4), Lakhan Giri Goswami (PW5), Pushpa Bai (PW12), Bhim Singh (PW10), Noorjahan (PW9), Sai Kripa Bus cleaner Praveen Jaiswal (PW3) 60 and other persons sitting in the Sai Kripa Bus. After this incident, both the buses left for Indore and met at the Toll Plaza at village Jamli and the video clips of Toll Plaza were also obtained by the Investigating Officer from Inspector of Toll Plaza Banwarilal Sharma and another employee Bharat Chauhan, who have also confirmed the above facts. The injured persons namely Umesh, Aman Lakhan, Sonu, Bhimsingh, Narendra and Tarabai, were sent to Primary Health Centre where they were medically examined by Dr. S.S. Sisodiya (PW7). Exhibits P/11 to P/17 are their medical report. Injured Champalal, Abhayraj, Mohd. Haneef and Naseeb Ali, were sent to primary health Centre, Julvaniya by Dr. Manoj Kadam (PW8) and their MLC reports are Exhibit P/21 to Exhibit P/24. Injured Shradha and Jyoti, were medically examined by Dr. R.K. Dube (PW13) at Public Health Centre, Rajpur. Exhibits P/27 and P/28, are their MLC reports. On 21.8.2011, Helper - Pajkaj Panchal, was medically 60 examined at Public Health Centre, Sendhwa. He was referred to M.Y. Hospital Indore for further treatment. Exhibit P/30 is his MLC report. Similarly, injured Pushparaj, Kalibai, Nayeem, Pushpabai, Sonu and Sanjanabai, who sustained severe burn injuries were also medically examined.
9. Dying declaration Exhibit P/82 of Kali Bai was recorded by Executive Magistrate - Rajesh Patidar (PW32). Before recording the Dying Declaration of Kali Bai, she was examined by Dr. A. Vishnar (PW39) who has stated that she was in a fit state of mind to give her statement.
10. On 22.8.2011, Additional Executive Magistrate, Indore - Arjit Kumar Shrivastava (PW42), recorded the Dying Declaration (Exhibit P/100) of Pankaj Panchal at M.Y. Hospital, Indore.
11. On the basis of information received Tehsildar - PW26 Janki Yadav, went to Public Health Centre, Sendhwa and prepared safina form (Exhibit 60 P/44). Inquest report of dead persons namely Baburao son of Tukaram, Chandubai wife of Hiralal, Parvatibai wife of Tarachand, Rajini wife of Ramesh, Manoj son of Mohan, Kapil son of Tarachand, Lucky son of Tarachand, Himanshu son of Ramesh Gupta, Sumanbai, Manish son of Rajendra Khori, Ku. Sakshi D/o. Rajendra Khori vide Exhibit P/45 to Exhibit P/55 were prepared.
12. On a murg intimation received by A.S.I. - Santosh Sisodiya (PW54) about recovering of two more dead bodies at Public Health Centre, Sendhwa. He recorded murg intimation vide Exhibit P/118. The dead bodies, which were recovered at Primary Health Center, Sendhwa, were identified by the witnesses, after due examination of the aforesaid, Santosh Sisodiya (PW54).
13. The postmortem of dead bodies were conducted by Dr. M.S. Sisodiya (PW7), Dr. Manoj Kadam (PW8), Dr. Suresh Chouhan (PW17) and by 60 Dr. Sanjay Babar (PW28).
14. On 28.8.2011, during treatment helper Pankaj Panchal was died at M.Y. Hospital at Indore. The same was informed to Police Station - Sanyogitaganj, Indore. On the basis of aforesaid information, Murg No.458/11 was prepared by ASI Rajendrasingh Tomar (PW30). Postmortem of dead body of Helper - Pankaj Panchal, was conducted by Dr.A.K. Lanjewar (PW38) at M.Y. Hospital, Indore, on 23.8.2011. During treatment, injured Pushpraj son of Rameshchandra was died at M.Y. Hospital.
15. On 29.8.2011, during treatment at Choitram Hospital, Indore, injured - Kalibai D/o. Chatiya succumbed to her injuries.
16. Investigating Officer - Dinesh Sigh Chouhan (PW57) had sent a memo for information of Exhibit P/103 to the manager of Jamli Toll Plaza. On the basis of which witness Amarsingh (PW13) had sent the information to the police, which is Exhibit P/104. 60 Computer sheet (Exhibit P/105) regarding vehicle passing through toll plaza and C.D. of camera fitted in toll plaza Article - 8 had been sent to the police, which was seized by seizure panchanama (Exhibit P/106). Investigating Officer Dinesh Singh Chouhan (PW57) has seized documents of vehicle bearing Bus No.M.P.- 09-FA-2717 from owner of 'Sai Kripa Travels'. Investigating Officer had sent a memo to the manager of 'Ashok Travels' for obtaining information regarding driver, conductor, helper (cleaner) of vehicle Bus No.R.J.-09-PA-1442 through which information about the mobile number and SIM of bus owner accused - Naresh Kumar Doshi, has also been obtained. The Investigation Officer sent the seized property to FSL for examination, which was seized during the course of the investigation. He also recorded statements of witnesses under Section 161 of Cr.P.C. who were travelling in the bus of 'Sai Kripa Travels'.
17. After investigation, the police has submitted 60 the charge-sheet in the court of Judicial Magistrate First Class, Rajpur. Thereafter, the case was committed to the learned Sessions Court on 21.12.2011 and thereafter, it was transferred before the Court of Special Judge, Barwani, District Barwani, on 23.12.2011.
18. In order to support the case, the persecution has examined 58 witnesses. Out of that PW7 Dr. M.S. Sisodiya, Dr. Manoj Kadam (PW8), Dr. R.K. Dubey (PW13), Dr. Suresh (PW17), Dr. Onkarsingh Kanel (PW27) and Dr. Sanjay Babar (PW28), Dr. Prashant Rajput (PW37), Dr. A.K. Lanjhewar (PW38) and Dr. A. Vishnar, have been examined to depose about the injuries caused to various passengers of the Sai Kripa Bus and also the persons who died in the bus and the persons who died in the hospitals.
19. The eye-witnesses examined in the case are PW1 Santosh, his father (PW2) Champalal, (PW3) Praveen Jaiswal, cleaner of the Sai Kripa bus, PW4 60 Tarabai, PW5 Lakhan, (both passengers of Sai Kripa bus), PW6 Kishore, who came on motor-cycle, PW6 Noorjahan Beg, PW10 Bhimsingh, PW11 Jyoti, PW12 Pushpabai, PW17 Chetyan, PW20 Narendra, PW25 Sanjna, PW29 Umesh Fullpagare, PW41 Mohammed Naeem, PW48 Rajendra Khori and PW51 Naseeb Ali, who were the passengers of the Sai Kripa Bus. The other witnesses are PW14 Mahesh, who sold a shirt to accused Rajkumar. PW16 Anita, is the wife of conductor Santosh, who states the statement made to her by the husband.
20. PW18 Dilip is the manager of Ashok Travels, PW19 Chokharam is the passenger of Ashok Travels, who was travelling with his motor-cycle, which was loaded in the bus of Ashok Travels. This loading of the motor-cycle had taken place after emptying the petrol from the tank and keeping in a plastic Can.
21. PW21 Ganesh, PW22, Ravindra, PW23 Kashiram and PW24 Suresh, are Panchnama 60 witnesses of various seizures and statements recorded by the police. PW30 is the Sub Inspector, who got the murg of Pankaj Panchal recorded. PW31 Ashok Dubey, who recorded the testimony about Ganibai (Exhibit P/81). PW32 recorded the dying declaration of Kalibai (Exhibit P/82). PW33 and PW34 are the witnesses of arrest and seizure of goods. PW35 K.S. Gautam, has conducted the test identification parade. PW36 Omprakash had taken the photographs Articles
-A/1 to A/7 of the burning Sai Kripa Bus. PW42 Ajeet Kumar Shrivastava, Additional Tehsildar had recorded the dying declaration of Pankaj Panchal (the deceased).
22. PW43 Amar Singh was the person In-charge of the Toll tax barrier, PW44 Manoharlal was Bainami owner of Sai Kripa, PW45 Lakhanlal Malviya carried viscera of the dead body. Karansingh Solanki, ASI had prepared the murg report of Kalabai (Exhibit P/109). PW47 Ramesh Chandra is a police mechanic ASI, who 60 examined the buses. PW49 Mohan is the father of Manoj, who died in the bus and had collected the dead body. PW50 Raju More, Constable wrote FIR (Exhibit P/114). PW52 Head Constable Radheshyam also recorded murg Dehati Nalish (Exhibit P/115). PW53 Jagdish Chauhan, Head Constable recorded another Dehati Nalishi at Chowki Ozar.
23. PW54 Santosh Sisodiya, Sub Inspector was entrusted with the investigation and he admitted vide paragraph 29 that both the buses were burnt. PW52 Jaybhan Patidar was in-charge of the Police Chowki situated at M.Y. Hospital, Indore. PW56 Amarsingh Raghuwanshi, recorded first FIR (Exhibit P/1), Exhibit P/2 murg and recorded case diary statements of PW1, PW2 and PW9.
24. (PW57) Dinesh Singh took over the investigation on 28.8.2011. He has produced permits under the Motor Vehicles Act of Ashok Travels by Exhibit P/125. He admitted in paragraph 36 that he 60 collected the telephone call details of Naresh Kumar Doshi, from one month prior to the date of incident till the date of incident and did not find any conversation of Naresh Kumar Doshi with the employees of the Ashok Travels bus at any point of time. In para 38, he stated about registering counter case as Ashok Travels bus was also set to fire.
25. The trial Court, accepting the aforesaid evidence, has convicted all the appellants including Naresh Kumar Doshi, under office of conspiracy 120-B read with Section 302, 307 of IPC and other incidental offences.
26. In the appeal and death reference against the three other accused persons, as per the judgment of the Hon'ble Apex Court, reported in Mohinder Singh v/s. State of Punjab reported as AIR 2013 SC 3622, the matter has to be considered afresh by this Court in the following manner :-
"(i) The story begins at the Sendhwa 60 barrier where there was a quarrel between the condemned accused persons Nos.1,2 & 3 with the driver, conductor and cleaner of Sai Kripa bus.
(ii) That the next step is that the conductor of Sai Kripa bus (Pankaj) had hit Rajkumar, the conductor of the Ashok Travels in public view and at the instance of PW3 they speeded away with their bus from Sendhwa barrier.
(iii) Then, it is the further case of the prosecution that at Balsamud Toll barrier there was a Jam (Road Block) of the vehicles and, therefore, Sai Kripa bus had to half there.
(iv) That due to the Jam (Road Block) the Ashok Travels' bus could reach and overtake the Sai Kripa bus and halt infront of it. It is the case of the prosecution that PW3 Praveen, cleaner of Sai Kripa bus got down from the bus to clear the way and Pankaj Panchal, the conductor of Sai Kripa bus, was standing at the gate.
(v) The version of the Toll barrier is that the three persons came out of Ashok Travels' bus and accosted the conductor of Sai Kripa bus Pankaj.
(vi) The driver Tarun made bravado call by saying that he had a talk with Naresh Seth and who has instructed to settle the score ^^fuiVk nks^^ There upon Tarun, Dilip and Rajkumar (driver, conductor and cleaner) came out of the Ashok Travels' bus. Tarun threw petrol at the gate of the bus and set it on fire. Rajkumar was standing with Tommy in his hand so that 60 no passenger of the bus may get out.
(vii) There is a different version also than the above version that Rajkumar hit Pankaj Panchal on the leg with the Tommy and thereafter petrol was thrown on him and he was set to fire.
(viii) Pankaj Panchal to save himself went into the inner part of the bus which caused fire to spread in the bus. Passengers who could break the windows jumped out of it and those who could not get out of the bus were burnt alive and lost their lives. They were 13 in number. Injured Pankaj Panchal was carried to M.Y. Hospital, Indore where his dying declaration was recorded and ultimately he died."
27. Learned Senior counsel appearing for appellant - Naresh Kumar Doshi, has submitted that the case of the prosecution had been inherently, improbable and there has been material contradictions in the statements of the prosecution witnesses in respect of the involvement of appellant - Naresh Kumar Doshi. There is no evidence that appellant - Naresh Kumar Doshi, entered into a criminal conspiracy with accused appellants - Rajkumar Kushwaha, Dilip Sharma and Tarun Soni of causing 60 damages to Sai Kripa Travels bus bearing registration No. M.P.09-FA-2717, causing murder of its conductor - Pankaj Panchal and passenger and abetted accused - Rajkumar, Dilip and Tarun to cause the incident. To support the aforesaid, he has drawn our attention to the statement of PW57 Dinesh Singh Chouhan and submits that bus in question is registered in the name of appellant - Naresh Kumar Doshi, National Permit No.210 was issued on 12.10.2009 and on the basis of the aforesaid National Permit, he had been operating the bus between Nashik and Sikar. The finding of the trial Court that for transportation of passengers no permit in M.P. is taken and conduction in M.P. was done without permit and this fact is with the knowledge of the appellant, but he ought to have clear the situation and had there been a permit, he would have produced it. He submitted that no case for an offence under any of the provision of the Motor Vehicles Act, 1988 was registered against appellant - Naresh 60 Kumar Doshi. The learned Court below wrongly applied the principles of Section 106 of Evidence Act and Section 114 (g) of Evidence Act. He has drawn our attention to Exhibits P/123, P/124 and Exhibit P/125/1, 2, 3 and 4 and submits that the learned trial Court wrongly gave a finding that permit was not produced by the owner to ply the bus whereas permit is part of the charge-sheet (Exhibit P/155). It is also submitted that there is no evidence of pre-planning. The dispute was originally between accused - appellant No.1 - Rajkumar Kushwaha and Pankaj Panchal conductor of Sai Kripa Travels as is evident from paragraphs 14 and 17 of the statement of (PW3) Praveen Jaiswal. Pankaj Panchal and Kali Bai in their dying declarations have not made any allegations and later on (PW16) Anita wife of Pankaj Panchal, for the first time in her court statement made allegations against appellant - Naresh Kumar Doshi. There is an omission in her 161 statement (Exhibit D/16). He has placed reliance on 60 para 18 and 19 of the decision of the Apex Court in the case of Musauddin Ahmed v/s. State of Assam reported as AIR SC 2010 Pg. No.3813. In respect of conspiracy, he has drawn our attention to para 16 of the decision of the Apex Court in the case of Param Hansh v/s. State of Bihar, reported as AIR 1987 SC 955, paragraphs 66 and 257 of the decision of the Apex Court in the case of Kehar Singh v/s. State of (Delhi Admn.), reported as AIR 1988 SC 1883, para 19 of the decision of the Apex Court in the case of Sanjiv v/s. State of H.P. reported as AIR 1999 SC 782, para 14 of the decision of the Apex Court in the case of Baliya v/s. State of M.P. reported as 2012 (9) SCC 696, paragraphs 10, 11 and 12 of the decision of the Apex Court in the case of Shambhu v/s. Ajmer reported as AIR 1956 SC 404, paragraphs 7 and 8 of Joydeb Patra v/s. State of W.B. reported as AIR 2013 SC 2878 and Dhan Singh v/s. State of Punjab, reported as AIR 2004 SC 1920 and submitted that ther 60 is no evidence of picking up passengers nor any case of conspiracy against the present appellant - Naresh Kumar Doshi is made out. The statements made by the key witnesses were full of contradictions and could not be relied upon. He submits that some of the material witnesses of prosecution, turned hostile, thus, could not be relied upon. Thus, the case of the prosecution is not trustworthy.
28. Thus, in view of the above, the Criminal Appeal No.1420/2013, filed by appellant - Naresh Kumar Doshi, owner of the vehicle, deserves to be allowed.
29. Ms. Rekha Shrivastava, learned counsel for the appellants (cleaner, bus driver and conductor) had adopted the arguments of the learned Senior counsel and submitted that as per the evidence, which has come on record, it is a case of sudden fight and provocation and same would come under Clause of Section 304-I of IPC. She has drawn our attention to 60 the decisions of the Apex Court in the case of Balkar Singh v/s. State of Uttarakhand, reported as 2009 CRI.L.J. 2980 (SC), Smt. Sandhya Jadhav v/s. State of Maharashtra, reported as 2006 CRI.L.J. 2111 (SC), Sirdhar Bhuyan v/s. State of Orissa reported as AIR 2004 SC 4100 and Keshub Mahindra v/s. State of M.P. reported as 1996 (6) SCC 129 and the Division Bench judgment of this court in the case of Gajraj Singh v/s. State of M.P. reported as 2006 (3) M.P.L.J.] 199 and submitted that there is no conclusive evidence to hold that appellant No.2 - Dilip Sharma and appellant No.3 - Tarun Soni, shared the common intention to commit the murder. The only overt act was that they were present on the spot, but no overt act has been assigned to them and prayed for their acquittal.
30. Per contra, Shri Deepak Rawal, Dy.
Advocate General appearing for the State, has tried to defend the case of the prosecution and submitted that 60 contradictions trivial in nature. He submits that court has to examine the facts of the case in proper perspective where the said ghastly crime had been committed where 14 passengers stood roasted and 19 passengers have suffered burn injuries. He also drawn our attention to the decisions of the Apex Court in the case of C. Muniappan & Ors. V/s. State of Tamil Nadu, reported as 2010 (9) SCC 567, Sunder Singh v/s. State of Uttaranchal, reported as 2010 (10) SCC 611, Inder Singh & Ors. V/s. State of Rajashthan, reported as 2015 (1) Supreme 369, Bhagwan Dass V/s. State of (NCT of Delhi), reported as 2011 (6) SCC 396 and in the case of Haradhan Das V/s. State of Bengal, reported as 2012 (12) JT 490 (SC) and submitted that the Court has to consider the mitigating and aggravating circumstances in each case, ie., the degree of brutality, depravity and diabolic nature of offence. In such matters, it is not only a nature of crime, but the background of criminal, his psychology, 60 his social condition, his mindset for committing offence and effect of imposing alternative punishment on the society are also relevant factors. He submits that murder of large number of persons has been committed. There is no cogent reason to interfere with the punishment of death sentence awarded to accused
- appellant - Rajkumar Kushwaha, Dilip Sharma and Tarun Soni. It is also submitted that there is no rule of law that deposition of a hostile witness is to be discarded in toto. He lastly submits that no mitigating circumstances could be pointed out for a lesser sentence. Both the appeals lack merit and are liable to be dismissed.
31. We have considered the rival submissions made by the learned counsel for the parties and perused the records.
32. The evidence of the prosecution on the point of first dispute at Sendhwa barrier is deposed by PW1 Santosh, but he has omitted some details. PW3 60 Praveen had vide paragraph 4 of his testimony had confirmed it. PW4 Tarabai in paragraph 2 of her testimony also confirmed this dispute. So also PW5 Lakhan vide paragraph 2, PW6 Kishore vide paragraph 2, PW10 Bhimsingh vide paragraph 2, PW11 Jyoti vide paragraph 5, PW12 Pushpabai vide paragraph 2, PW15 Chathiya vide paragraph 6, PW19 Chokharam vide paragraph 4, PW25 Sanjana vide paragraph 2, PW29 Umesh Fullpagare vide paragraphs 2 and 10. PW41 Rajendra Khori vide paragraph 3, PW51 Naseeb Ali vide paragraph 3 have also confirmed the dispute.
33. Thus, it is clearly established that Pankaj Panchal had beaten appellant No.1 - Rajkumar Kushwaha (cleaner of Ashok Travels) and had humiliated him in public view. This act resulted in sudden and grave provocation to Rajkumar and before he could act Sai Kripa bus people speeded away from the spot.
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34. Sai Kripa bus people as they were speeding away would have escaped very easily but due to accidental Jam (Road Block), which was at the Balsamud Toll barrier, they were compelled to halt at that place. There was no time gap in which the anger caused by humiliation of accused appellant No.1 - Rajkumar Kushwaha, could have cooled down and accidental Jam (Road Block) at Toll barrier gave an opportunity to the Ashok Travels' employees to avenge the humiliation caused to them by Pankaj Panchal.
35. The second stage was the barrier at Balsamud where, the whole incident had taken place. In this matter, if we look into the FIR (Exhibit P/1) lodged by PW1 which mentions that the petrol was poured aiming at the conductor. The first information report Exhibit P/1 lodged by PW1, as is revealed in the testimony, PW2 (the father) that both of them were sitting at the rear end of the seat (as per paragraph 4 of his deposition).
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36. Other persons except PW3 (whose statement is being examined little later) saw throwing of petrol, which is also deposed by PW4 vide paragraph 3, PW5 Lakhan vide paragraphs 3, 4 and 6, PW6 Kishore vide paragraphs 3 and 4, PW9 Noorjahan Beg vide paragraph 4.
37. This witness PW9 of course vide paragraph 5 had given a story in the Court that the door of the bus was closed, but had not stated the same in her case diary statement (Exhibit D/2).
38. Similarly, PW10 Bhimsingh supported the version of setting fire to the person at the gate, but improved the version from his case diary statement (Exhibit D/3) that the gate of Sai Kripa bus was also closed.
39. PW51 Naseeb Ali, in paragraph 4 stated the version of driver inquiring about 'Dada' Sai Kripa bus and then, throwing of petrol on the bus and setting it to fire. He omitted the version that petrol was thrown at 60 the conductor and he was set to fire. This man has tried to depose that the petrol was thrown at the bus to set it to fire and not on the conductor.
40. PW1 Santosh Prajapati, complainant - eye- witness - Passenger of Sai Kripa Bus in his statement has deposed that the staff of buses of Ashok Travels and Sai Kripa Travels had a quarrel at Sendhwa barrier. Pankaj Panchal (conductor of Sai Kripa Bus) hit/beat the appellant No.1 - Rajkumar Kushwaha and then, sped away in his bus. The bus held up in Jam (Road Block) at Balasumund Toll barrier. Ashok Travels bus overtook. Three accused persons came down then, appellant No.3 - Tarun Soni, driver of the bus asked appellant No.1 - Rajkumar Kushwaha, cleaner of the bus asked appellant No.2 - Dilip Sharma, conductor of the bus to break the legs of the conductor of Sai Kripa bus Pankaj Panchal. A/1 poured the petrol on (the deceased) conductor - Pankaj Panchal, the bus caught fire. Statements of Champalal Prajapati 60 (PW2), passenger father of PW1 injured - eyewitness, Smt. Tara Bai, passenger and injured eyewitness, Lakhan Giri Goswami (PW5) passenger, Smt. Noorjaha (PW9) - passenger eye-witness. Bhimsingh (PW10) and Smt. Jyoti (PW11) - passenger eye- witness. Their statements are similar to PW1 - Santosh Prajapati. Jyoti (PW11) in para 7 of her statement has deposed that deceased Pankaj Panchal ran inside the bus. Smt. Pushpa Bai (PW12), Smt. Sanjana (PW25), Umesh Fullpagare (PW29), Mohammed Nayeem (PW41), Rajendra Kohri (PW48) and Nasib Ali (PW51), their statements are also similar to the statement of Santosh Prajapati (PW1). Except that Sanjana (PW25) in her statement has deposed that petrol was thrown on conductor - Pankaj Panchal. Umesh Fullpagare (PW29) in his statement has deposed that petrol was thrown on bus and not on the conductor.
41. The initial version, which was deposed by 60 PW1 to PW8 was tried to modified by the prosecution by introducing the version of closing the gate of the bus. This was done with the intention to suggest that the dispute was not with the conductor Pankaj Panchal, but was against the entire bus and, therefore, the version of setting of the bus to fire was designed by all the accused persons present at the spot. Therefore, it is an intentional case of causing death of the passengers of the bus and also the other injured persons who managed to escape by breaking the windows of the bus.
42. This second version of setting fire to bus itself by throwing petrol is totally contrary to the FIR and the main witness (PW3) Praveen, the cleaner of the Sai Kripa bus, who has faithfully deposed the incident without mixing anything.
43. (PW3) Praveen in paragraph 4 of his deposition has stated that he had asked the Ashok Travels bus people to set a time table for the buses. 60 When this was refused Pankaj Panchal, the conductor started beating to Rajkumar. In respect of mar-peet of Rajkumar as per paragraph 39 of his statement, he admitted that he also participated in it. This witness in para 5 has stated that after separating the bus conductor and Rajkumar, he asked his bus conductor that we should go ahead of the bus of the accused persons and lift the passengers. In paragraph 6, this witness has stated that at the RTO barrier, he had come out of the bus. At that very point of time Tarun, Dilip and Rajkumar of Ashok Travels alighted from the bus. Dilip was wearing white shirt and had a Tommy in his hand. Rajkumar was wearing a red T-shirt and he was having a Can in his hand.
44. In paragraph 7, he categorically states that Dilip had hit on the leg of conductor Pankaj, who was standing at the gate. Accused Tarun asked Rajkumar to sprinkle the petrol and set him to fire; then Rajkumar threw petrol on conductor and set him to fire. 60 Conductor Pankaj went inside the bus and, therefore, the bus caught fire. In paragraph 11 he refused to support the version of any bravado of the accused persons and on that issue he was declared hostile vide paragraph 13 and he disowned the version (Exhibit P/8) that accused Tarun had shouted that he had a talk with Naresh Seth. It is a dispute occurring every day, they every day pick up the passengers; Naresh Seth has said - ^fuiVk nks lkyksa dks] esS lc ns[k yawxk^ this was not stated. In paragraph 15 this witness stated that he was working on the Sai Kripa bus from 7 months prior to the date of incident. In paragraph 17, he categorically states that before the date of incident there was never any quarrel with the staff of Ashok Travels bus. There was never any dispute about picking up of the passengers before this date. He had observed Ashok Travels bus for last three months, which was not reaching on time. In paragraph 18 he candidly admitted that the Sai Kripa bus also had no permit to 60 pick up passengers from Sendhwa. The permit was in parts while travelling from Dhamnod to Indore and from Dhamnod to Sendhwa. In paragraph 19, he admits that the bus had to stop at the Toll tax barrier because there was a Jam and if there was no Jam they would have gone ahead. After they halted on the barrier within 2-3 minutes Ashok Travels bus also arrived. In paragraph 22, he stayed at the scene only for 5 minutes and then escaped. He had denied the suggestion that he escaped because he had himself set to fire the bus of Ashok Travels. In paragraph 28, he accepts that Dilip had hit Pankaj with Tommy on the right leg and he had fallen down. He was confronted with his case diary statement (Exhibit P/8) about setting fire to the bus by petrol, which was not stated earlier. In paragraph 39, he gives the distance as 5 Kms between the first place and place of second incident.
45. The story of Tarun making a bravado call 60 was not supported by any of the witnesses examined by the prosecution from PW1 to PW16.
46. As per paragraphs 3 and 6 of her court statement Anita (PW16), widow of Pankaj Panchal, there is complete omission in her police statement (Exhibit D/6). Paragraphs 10, 14, 11 and 10 of the Court statements of Naredra (PW20), Praveen Jaiswal (PW3), Lakhan (PW5) and Kishore (PW6) respectively are relevant which reads as under :-
¼ujsUn½z vfHk;kstu lk{kh@20 10- ;g dguk xyr gS fd rhuksa esa ls ,d O;fDr us cksyk Fkk fd ujs'k lsB ls ckr gks xbZ gS vkt fuiVk nks A eSaus iqfyl dks iz-ih-@43 dk , ls , Hkkx dk dFku ^^rhljk eksVk yack ---------------------------- eSa ns[k ywaxk^^ dk ugha fn;k Fkk A ¼izoh.k tk;loky½ vfHk;kstu lk{kh@3 14- ;g dguk xyr gS fd vkjksih r:.k us cksyk Fkk fd ujs'k lsB ls ckr gks xbZ gS] jkst dh fpd&fpd gS] jkst jkLrs esa lokjh fcBk ysrs gSa A ujs'k lsB us dg j[kk gS fuiVk nks lkyksa eSa lc ns[k yawxk A iqfyl us esjs dFku fy;s Fks] eSaus iqfyl dks iz- ih-@8 esa ^^,^^ ls ^^6^^ Hkkx dk dFku M~zkboj r:.k
----------------------- lc ns[k yaqxk^^ dk ugh fn;k Fkk A ;g dguk xyr gS fd eSa vkjksih ujs'k dks cpkus ds fy;s lgh ckr ugha crk jgk gwa A ¼yk[ku½ vfHk;kstu lk{kh@5 11- ;g dguk xyr gS fd v'kksdk Vs~zoYl okyk O;fDr cksy jgk jgk Fkk fd ujs'k lsB ls ckrphr gks xbZ gS] jkst&jkst dh fpd&fpd gS vkSj gekjs jkLrs 60 dh lokjh fcBk ysrs gS A ujs'k lsB us dg j[kk gS fd fuiVk nks lkyksa dks eSa lc ns[k yaqxk A eSaus iqfyl dks iz-ih-@9 dk ^^,^^ ^^,^^ Hkkx dk dFku ^^fpYykdj cksyk
---------------------------------------- ns[k yqaxk^^ dk ugha fn;k Fkk A ;g dguk xyr gS fd vkjksih ujs'k dks cpkus ds fy;s eSa vkt ;g ckr ugha crk jgk gwa A ¼fd'kksj½ vfHk;kstu lk{kh@6 10- ;g dguk xyr gS fd eksVk lk O;fDr fpYydj cksy jgk gS fd ujs'k lsB ls ckrphr gks xbZ gS A jkst&jkst dh fpd&fpd gS A gekjs jkLrs dh lokfj;ka fcBk ysrs gSa] lc ns[k yaqxk A eSaus iqfyl dks iz-ih-@10 dk ^^,^^ ls ^^,^^ Hkkx dk dFku ^^fpYykdj cksy jgk Fkk ---------------------------------------- lc ns[k yqaxk dk ugha fn;k Fkk A ;g dguk xyr gS fd eSa vkjksih ujs'k dks cpkus ds fy;s vkt lgh ckr ugha crk jgk gwa A
47. Paragraph 3 of Tarabai (PW4) is relevant which reads as under :-
¼rkjkckbZ½ vfHk;kstu lk{kh@4 03- fQj ogka ls gekjh cl ckyleqn csSfj;j ds ikl igqaph Fkh] ihNs ls v'kksdk VªsoYl dh cl vkbZ Fkh vkSj gekjh cl dks vksojVsd dj fy;k Fkk A v'kksdk VªsoYl cl ls 3 O;fDr mrjdj vk, Fks vkSj gekjh cl ds d.MsDVj vkSj Dyhuj ls >xM+k fd;k Fkk A ,d O;fDr us gekjh cl ds d.MsDVj ij isVªksy fNM+d fn;k Fkk vkSj vkx yxk nh Fkh A cl esa vkx yxh Fkh vkSj iwjh cl eas /kqvk gksus yxk Fkk vQjk&rQjh gksus yxh Fkh A /kaq, ls esjk ne ?kqVus yxk Fkk] fQj esjs ifr us dkap rksM+dj f[kM+dh esa ls eq>s ckgj Qsad fn;k Fkk gekjs Åij ls ,d&nks lokjh vkSj fudy xbZ Fkh eq>s Qsadus ls dej vkSj ckabZ vka[k esa pksV vkbZ Fkh A
48. Paragraphs 3, 4, 20 and 22 of Noorjahan @ Noor are relevant which reads as under :- 60
¼uwjtagk mQZ uwj½ vfHk;kstu lk{kh@9 03- gekjh cl Vksy VSDl ukds rd pyh xbZ Fkh ogka ij ,d nwljs cl okys ls ,d NksVk lk fookn lokjh dks ysdj gqvk Fkk ogka ls gekjh cl jokuk gks xbZ Fkh vkSj cSfj;j ij vkbZ Fkh ogka ij tke yxk gqvk Fkk A ogka ij v'kksdk VªsoYl dh cl okys us gekjh cl dks vksojVsd fd;k Fkk v'kksdk VªsoYl dh cl esa ls 03 O;fDr vk, Fks A 04- ,d O;fDr ds ikl VkWeh Fkh] ,d O;fDr ds ikl ,d IykfLVd dh dsu Fkh ftl O;fDr ds ikl VkWeh Fkh mlus gekjh cl ds daMDVj dks VkWeh ekjh Fkh tks cl ds njokts ij yxh Fkh A ftl O;fDr ds ikl dsu Fkh mlus isVªksy daMDVj ij Mkyk Fkk vkSj mlds rqjar ckn gh ekfpl ls vkx yxk nh Fkh A isVªksy cl esa Hkh fxjk Fkk vkx yxkbZ rks daMDVj cl ds vanj Hkkxk Fkk A 20- vLirky ls NqV~Vh gksus ds ckn esjs dksbZ dFku ugha fy;s x;s Fks A vkt ;kn Hkh ugha gS] ysrs rks ;kn jgrk A ?kVuk ds 17&18 fnu ckn fdlh us dFku fy;s gks rks /;ku ugha A 22- bankSj vLirky esa MkDVjksa us eq>ls pksV vkus ds laca/k esa iwNrkN ugha dh Fkh A eq>s ,e-Ogk;-vLirky esa pkph Qjhnk vkSj pkpk fu'kkn ysdj x;s Fks A nq?kZVuk cl esa gqbZ Fkh blfy;s eSaus crk;k Fkk A
49. Paragraphs 2, 3 and 4 of Bheem Singh (PW10) are relevant which reads as under :-
¼Hkheflag½ vfHk;kstu lk{kh@10 02- eSa uanqjckj ls bankSj tk jgk Fkk A Vksy ukds ij gekjh cl okys vkSj v'kksdk cl okyksa dh ;kf=;ksa dks fcBkus dks ysdj f>x&f>x gqbZ Fkh A ,-ch-jksM ij cSfj;j ij gekjh cl tke gksus ds dkj.k :dh Fkh ihNs ls v'kksdk VªsoYl dh cl vkbZ Fkh vkSj gekjh cl ds vkxs vkdj :dh Fkh A 03- v'kksdk VªsoYl dh cl esa ls 03 yksx fudys Fks A ,d ds ikl VkWeh Fkh] ,d ds ikl isVªksy dh dsu Fkh rhljk O;fDr Hkh lkFk esa Fkk A gekjh cl ds Dyhuj Mªkboj dks ftldks eSa tkurk ugh gwa] VkWeh ekjh Fkh A rhuksa esa ls fdlh us cksyk 60 Fkk fd isVªksy Mkydj vkx yxk nks A fQj isVªksy Mkyk Fkk vkSj vkx yxk nh Fkh vkSj fQj xsV can dj Hkkx x;s Fks A 04- gekjh cl dk tks Dyhuj] MªkbZoj ftls isVªksy Mkydj tyk;k Fkk og ej x;k gS A cl eas /kqavk gks x;k Fkk A cl esa ;k=h tys Fks fQj f[kM+dh rksM+dj dqN yksxks dks ckgj fudkyk Fkk tks efgyk vkt U;k;ky; esa vkbZ gS muds ckyd dks Hkh eSaus f[kM+dh ls ckgj fudkyk Fkk A esjs Hkh eqag] gkFk] iSj tys gq, gS vkSj eSa Hkh f[kM+dh ls dwn x;k Fkk] dwnus ls eq>s Hkh iSj es yxh Fkh A
50. Paragraphs 1 and 2 of Dilip (PW18) is relevant which reads as under :-
¼fnyhi½ vfHk;kstu lk{kh@18 01- eSa v'kksdk VªsoYl esa eSustj ds ij inLFk gwa A gekjk dk;kZy; eanlkSj esa gS A eq>S 18&19 o"kZ v'kksdk VªsoYl esa dk;Z djrs gq, gks x;s gSa A v'kksdk VªsoYl dh cl pyrh gS A eanlkSj ls lHkh txg tkrk gS A v'kksdk VªsoYl dh ,d cl lhdj ¼jktLFkku½ ls ukfld ¼egjk"V½ Hkh pyrh gS tks cl pyrh Fkh mldk uacj vkj-ts-09 ih-,-@1442 gS A ? kVuk fnukad 21-08-2011 dks ;gh cl ukfld ls lhdj dh vksj vk jgh Fkh A 02- eSa gkftj vnkyr pkjksa vkjksihx.k dks tkurk gwa A
51. Paragraph 6 of Anita (PW16) is relevant which reads as under :-
06- iqfyl us tc eq>ls iwNrkN dh Fkh rc ogka dqN paqfunk MkDVj Fks A eSaus iqfyl dks crk fn;k Fkk fd esjs ifr us eq>s crk;k Fkk fd v'kksdk VªsoYl cl ds Mªk;oj vkSj daMDVj cksy jgs Fks fd ujs'k HkkbZ dk Qksu vk;k gS vkSj cksyk gS fd fuiVk nks] ns[k ysaxs A ;fn ;g ckr esjs iqfyl dFku iz-Mh- @6 esa u gks rks eSa bldk dksbZ dkj.k ugha crk ldrh A 60
52. Anita (PW16), wife of the deceased Panakj Panchal in her police statement has deposed that deceased Pankaj Panchal, having told her about the exhortation given on phone by the accused - Naresh Kumar Doshi, but the same does not find place in her 161 statement (Exhibit D/6), for which this witness in her cross - examination has not given any reasons. Even the two dying declarations of deceased Panakj (Exhibit P/100) and Kali Bai (Exhibit P/82) do not mention about the involvement of the appellant.
53. Thus, the version of any bravado alleged to have been given in the name of Naresh, is absolutely unreliable. In fact, this story of bravado is put cleverly by PW55 and PW56. After recording the FIR Exhibit P/1, the police Inspector realized that the only substantial person would be the owner of the bus and therefore, they should trap him by putting words in the mouth of witnesses that it was all done at the instance of accused Naresh Seth. The absence of this version 60 in the FIR (Exhibit P/1) by a disinterest person PW1 Santosh clearly demonstrate that the investigation was absolutely unfair and they were introducing false story to involve Naresh Kumar Doshi.
54. The picture which clearly emerges from the testimony of all these witnesses PW1 to PW8 that the entire episode was a result of the first act of beating Rajkumar by Pankaj in public view and escaping from there ahead of the Ashok Travels bus. The whole episode occurred because by accident the Sai Kripa bus could go ahead and was forcibly required to halt at Balsamud Toll barrier which had occasioned due to the Jam at that place. Had the jam not been there on that day the episode would not have taken place at all and Sai Kripa bus would have gone and after a little passage of time, the tempers might have cooled.
55. It was a case of sheer accident that on that day petrol was available in a Can, because of PW19 who was travelling to Sikar by this bus along with his 60 motor-cycle. Before loading the motor-cycle in the bus as a preventive measure from setting fire to bus by leakage of petrol, the petrol was taken out of the petrol tank of the motor-cycle in the plastic Can. This petrol would have been put back in the motor-cycle on the arrival at Sikar if the travel would have continued.
56. The story of subsequent witnesses that the petrol was thrown at the bus and not at the conductor is totally falsified because the actual scene was witnessed by PW3 alone and the other witnesses who were the passengers were sitting inside the bus could not have observed the entire incident some of them who had received compensation from the State Government agreed to give the version that it was the bus, which was set to fire and not the conductor. It can be presumed that these witnesses who were given compensation by the State Government were persuaded by the prosecution to state that the accused persons had deliberately thrown petrol on the bus and 60 set the bus to fire and not the conductor.
57. This story is inherently unreliable. There was dispute about lifting of the passengers and so no bus operator ever think of injuring the passengers.
58. The contention of Ms. Rekha Shrivastava, learned counsel for the appellants that the incident is the outcome of the sudden and grave porvocation against Pankaj Panchal. Though he had died in the incident, but it is clear from the fact that there was no intention to kill him, but only to teach him a lesson, because by Tommy he was not hit on the head, but on the leg. Neither he was prevented from escaping nor he was grievously injured in the incident. He did not die instantly, he was taken to M.Y. Hospital, Indore and there he succumbed to injuries. His dying declaration was recorded. Thus, it is clear that the offence against him was a product of sudden and grave provocation, which was caused by him by hitting Rajkumar in public view and, therefore, the entire action would attract 60 Section 304 (Part-I or Part-II) of IPC and not Section 302 of IPC.
59. Learned Senior counsel would contend that the story of conspiracy is introduced merely to rope appellant - (accused No.4) - Naresh Kumar Doshi, owner of the bus of Ashok Travels. None of the prosecution witnesses have stated that there was any bravado uttered by Tarun. The hatching of the conspiracy of setting a fire to the bus and causing death of passengers was not all in existence. It could not be in comprehension of anyone that on the fateful day there would be a quarrel at Sendhwa and it would be followed by the incident at Balsamud barrier. In fact Praveen (PW3) admits that the quarrel took place for the first time. The version put that Naresh Kumar Doshi had directed to do it, is totally destroyed by the testimony of these witnesses and also by the testimony of the Investigating Officer who had candidly admitted that after having got the record of telephonic 60 talks of Naresh Kumar Doshi, for 30 days before the date of incident, he could find no version by which it could be proved that Naresh Kumar Doshi accused No.4 had talked with the three employees namely; Tarun, Rajkumar and Dilip before the incident.
60. It is clear from the prosecution version of (PW18) Dilip son of Radheyshyam Karbra that Naresh Kumar Doshi - (accused No.4) had a business of transport and, therefore, he had employed PW18 as Manager to look after the buses. It was PW18, the Manager who was managing the affairs of this bus and it was he who was dealing in the entire business, therefore, the version that Naresh Seth (accused No.4) is directly involved and he had himself asked such kind of criminal activity, is absolutely unbelievable.
61. It is quite true that evidence of conspiracy is not easily available, because it is hatched in secrecy, but it is settled law as laid down by the Hon'ble Apex Court that a meeting of mind has got to be established 60 for the purpose of conspiracy and it is also to be proved by the prosecution that what was the object of conspiracy. It is also settled law that if the person is not at the spot of the crime and is trying to be roped in by virtue of his being owner/co-conspirator in committing the incident, very strong proof is required to be adduced by the prosecution. This being totally absent in this case, appellant - Naresh Kumar Doshi is entitled to acquittal.
62. The Apex Court in the case of R. Shaji v/s. State of Kerala, reported as AIR 2013 SC 651, wherein it has been pointed out about the conspiracy. In para 31 the Apex Court observed that all the stages of offence need not be known to every person, but the knowledge of the main object/purpose of the conspiracy would warrant the attraction of relevant penal provision. Thus, an agreement between two persons to do or to cause an illegal act is the basic requirement of the offence of conspiracy. Thus, as per 60 the decision of the Apex Court in the case of R. Shaji v/s. State of Kerala (supra), the agreement between the accused persons to do the main object of the crime is to be proved. It is needless to mention that in this case such evidence is absolutely absent and, therefore, appellant - Naresh Kumar Doshi, cannot be dragged in, in the alleged offence by making him a co- conspirator of the actual crime committed. Thus, the trial Court has condemned appellant - Naresh Kumar Doshi, for not filing the documents pertaining to plying of the bus under the Motor Vehicles Act, because it is observed that by virtue of Section 106 of the Evidence Act, he can draw adverse inference against (accused No.4) - Naresh Kumar Doshi, because according to the trial court, these facts were specially within the knowledge of Naresh Kumar Doshi.
63. In the present case, when the prosecution itself came out with the case that there is a national permit for the bus of Naresh Kumar Doshi / Ashok 60 Travels and all fitness certificates obtained from the RTO Chittorgarh were attached with the Challan. The learned trial Judge has absolutely misdirected itself on this count.
64. The learned Court below has totally ignored that when PW3 himself admits that the dispute about picking up of the passengers had taken place for the first time on that day. PW3 further admits that it is they who were not entitled to pick up the passengers at Sendhwa because they had no direct permit from Sendhwa to Indore. It was of different stages.
65. The learned court below absolutely ignored that plying of bus without permit is an offence punishable under Section 192 of the Motor Vehicles Act and the absence of any prosecution that the bus was being plied without permit did not prove that they were committing an illegal act from which a conspiracy can be inferred. The learned trial Judge has too much assumed that the bus was plying without permit and 60 that was the illegal act, which constituted the basis of the charges of conspiracy under Section 120-B of IPC. The learned trial Judge seems to be over whelmed by the number of deaths, which occurred in the case and on moral conviction has recorded a conviction against appellant - Naresh Kumar Doshi and have convicted other accused persons under Section 302 of IPC and sentenced them to death.
66. Of course, Hon'ble the Supreme Court has refused to acquit the accused persons rightly when investigating authorities did not perform their duties properly, vide judgment reported in the case reported in AIR 2004 SC 1920, D. Singh v/s. State of Punjab in paragraphs 5 and 6. The same was the view in the case of Babu v/s. State, reported in AIR 2013 SC 1769.
67. In the present case, the criticism of the learned Court below that the police did not produce the permits under the Motor Vehicles Act and the accused 60 was also under a duty to establish by producing permit / documents in his favour and, therefore, by drawing an adverse inference the court concluded that there was a conspiracy of violating the Motor Vehicles Act, permitting and lifting the passengers without any authority of law. The learned Court below has absolutely overlooked that the prosecution itself has produced the valid permits of the Ashok Travels bus along with the challan and did not file any case under Section 192 of the Motor Vehicles Act for using the Motor bus for carrying passengers without permit. Therefore, the view of the learned court below about the failure of the appellant to produce permits vitiates its entire consideration of the matter against accused appellant No.4 - Naresh Kumar Doshi.
68. In the present case, besides appellant - Naresh Kumar Doshi, being only the Proprietor of the bus and the permit holder there is absolutely, no evidence of meeting of minds of accused appellant - 60 Naresh Kumar Doshi, with others at the scene of the crime. Admittedly,he was not at the spot and the evidence of alleged talks is negatived by the telephone record collected by the Investigating Officer showing the absence of any communication between appellant No.4 - Naresh Kumar Doshi and other employees. Thus, on the analogy of this case, a conclusion of conspiracy can be arrived at against appellant - Naresh Kumar Doshi, is unsustainable.
69. In the present case beyond that Naresh Kumar Doshi, being the bus owner, there is absolutely, no evidence of any meetings of mind of Naresh Kumar Doshi, who was 300 Kms. away from the spot, of entering into a conspiracy and asking the condemned accused persons to set fire the conductor and set ablaze the bus does not arise. As held by the Supreme Court that relationship alone was not a proof of entering into conspiracy as stated by the prosecution.
70. Decision of Chandran @ Manichan @ 60 Maniyan v/s. State of Kerala reported as AIR 2011 SC 1594 was heavily relied on by the learned trial Court to say that Master ie., Naresh Kumar Doshi, had permitted the employees to illegally ply the bus without permit and, therefore, the incident which have arisen was due to illegal plying of the bus can be fastened on the accused in the present case because the Supreme Court in the case of Chadran (Supra) has held that doing of illegal mixing of poisonous is not required to be manually done by the Proprietor of the business and, therefore, the lower Court drawing an analogy from the principle to hold guilty appellant No.4 - Naresh Kumar Doshi.
71. Reliance of the trial Court in the case of R. Shaji (Supra) is far-fetched as already has been found out from the judgment of Kehar Singh (Supra) and the judgment of the Supreme Court reported in Baliya @ Balkishan v/s. State of M.P. reported as J.T. 2012 (10) SC 145. It is very clear that, there is necessity to 60 prove of meetings of mind by appellant - Naresh Kumar Doshi with what has happened on the fateful day. The whole case was a result of beating given to appellant No.1 - Rajkumar Kushwaha by Pankaj Panchal, the conductor of Sai Kripa Bus. Accidentally, there was petrol on that day in the vehicle. There is positive admission of PW3 that before this no other dispute took place up to this date. The theory of any conspiracy to do the killing of 14 by burning the bus with petrol is based on mere moral conviction of the learned trial Court that appellant - Naresh Kumar Doshi being the owner of the bus plying his bus without permit so he should be held guilty of the acts done by the three condemned persons.
72. The finding of the trial Court that the bus was plying contrary to Section 192-A of the M.V. Act is totally based on conjectures and not on evidence and on this finding holding appellant - Naresh Kumar Doshi, guilty of Section 192-A of M.V. Act, when such 60 case have not been put up by the prosecution at any stage because Exhibit P/125 destroys the assessment of the learned trial Court.
73. In AIR 2011 SC 760 (Kalyan Kumar v/s. Ashutosh) the Hon'ble Apex Court has vide paragraphs 21 and 22 analyzed the underlying principle of excluding hear-say evidence. The Court has culled out the principle that hear-say is excluded from evidence, because maker of the evidence does not take responsibility for his statement, but throws it on someone else. If such evidence were to be permitted then, it will destroy the reliability.
74. Therefore, in the present case, when there is absolutely, no charge under Section 192-A of the Motor Vehicles Act of plying the bus without any permit, the learned trial Court has totally acted on its whims and thus acted against the settled principle of law by invoking Section 106 of the Evidence Act and arrived at a perverse conclusion that the accused was plying 60 the bus without permit and so this conspiracy would extend to setting fire to conductor, passengers and the bus.
75. In the case of Paramjeet Singh v/s. State of Uttarakhand) reported as AIR 2011 SC 200, Hon'ble the Supreme Court, vide per paragraph 13 has held that burden of proving an offence is always on the prosecution and stricter proof is required, when the offence is more serious. The present case is also a very serious matter and very strict proof alone would be sufficient to warrant a conclusion of guilt. Fortunately, for appellant - Naresh Kumar Doshi, there is absolutely, no evidence in this regard.
76. Dinesh Singh Chouhan (PW57), would take over investigation on 23.8.2011 produced permits of Ashok Travels bus vide Exhibit P/125 and admitted in para 36 that he collected CDRs of accused appellant No.4 - Naresh Kumar Doshi for one month prior, but no record of appellant No.4 talking to appellants No.1, 60 2 and 3. In para 38, he has deposed that he registered a counter case as Ashok Travels bus was burnt too. Admittedly, at the time of occurrence, accused appellant No.4 - Naresh Kumar Doshi, 300 Kms. away from the place of accident. No named FIR has been lodged against him. PW16 Anita only named him. Investigating Officer - Dinesh Singh Chouhan (PW57) in his statement very categorically admitted that there is no evidence of conversation between accused No.4
- Naresh Kumar Doshi and other appellants. The learned trial Court gave a wrong finding that no permit was produced by the bus owner. As per statement of (PW3) Praveen, the issue arose between accused appellant No.1 - Rajkumar Kushwaha and deceased Pankaj Panchal. In the dying declaration Exhibit P/100 also there is no reference of telephonic conversation. First time the story was built up by (PW16) Anita, wife of deceased - Pankaj Panchal, who was not present at the time of occurrence. In her 161 statement (Exhibit 60 D/6), nothing has been stated about the telephonic conversation. As per Exhibit P/125, accused No.4 - Naresh Kumar Doshi, was having National Permit, which was valid up to 11.10.2011.
77. Thus, considering the totality of the evidence, there is nothing on record to prove the case against appellant - Naresh Kumar Doshi. Thus, we allow Criminal Appeal No.1420/2013, so far as relates to appellant - Naresh Kumar Doshi and set aside the impugned judgment of conviction and sentence awarded to appellant - Naresh Kumar Doshi and he is accordingly, acquitted from the charges under Sections 435 read with Section 120-B, 302 read with Section 120-B and 307 read with Section 120-B of IPC.
78. In respect of Criminal Appeal No.1323/2013 of appellants - Rajkumar Kushwaha, Dilip Sharma and Tarun Soni, we see no infirmity in the judgment under appeal. There is no merit in the submissions raised on behalf of them.
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79. Criminal Appeal No.1323/2013, has no merit and is liable to be dismissed.
80. Now, the question, the law which require consideration whether the present case would fall under 'rarest of rare case', so as to justify awarding of capital punishment to appellants - Rajkumar Kushwaha, Dilip Sharma and Tarun Soni.
81. The Apex Court has consistently held that only in those exceptional cases where the crime is so brutally, diabolical and revolting so as to shock the collective conscience of the community, would it be appropriate to award death sentence. Since such circumstances cannot be laid down as a straight jacket formula but must be ascertained from case to case, the legislature has left it open for the Courts to examine the facts of the case and appropriately decide upon the sentence proportional to the gravity of the offence.
82. Having noticed the decisions of the Apex 60 Court on the said aspect, we would revert to the factual position of this case. Herein, time, place, manner and the motive behind commission of crime speak volumes of the callous nature of the offence. We are of the considered view that the instant case falls into such category of rarest of the rare case where culpability has assumed the proportion of extreme depravity and the appellants are perfect examples who slayed fourteen innocent lives. The entire incident shocks the collective conscience of the community. The acts of murder committed by the appellants are so gruesome, merciless and brutal that the aggravating circumstances far outweigh the mitigating circumstances. Thus, we have no hesitation in holding that this case falls in the categories of 'rarest of rare cases' where the sentence for death of appellants has rightly been awarded by the trial Court and such sentence eminently was desirable, which in our considered view, not only deters others from 60 committing such atrocious crime, but also manifest society's abhorrence of such crime. This case not only shocks the judicial conscience, but even the conscience of the society and in our view, the nature of crime and the situation demands award of death sentence to appellants - Rajkumar Kushwaha, Dilip Sharma and Tarun Soni.
83. In the result, Criminal Appeal No.1323/2013, filed by the appellants - Rajkumar Kushwaha, Dilip Sharma and Tarun Soni, is hereby dismissed, death sentence is hereby confirmed and Criminal Appeal No.1420/2013, filed by appellant - Naresh Kumar Doshi, is allowed. He is on bail. His bail bond and surety bond are hereby discharged.
(P.K. JAISWAL) (JARAT KUMAR JAIN)
JUDGE JUDGE
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