Allahabad High Court
Rajendra Singh S/O Matol Singh And ... vs State Of U.P. on 28 September, 2007
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza
JUDGMENT Shiv Charan, J.
1. The above mentioned appeals have been instituted by Rajendra Singh, Gajendra Singh, Ram Khilari, Krishan Gopal against the Judgment and order dated 24.9.2005 passed by Sri Anil Kumar Sharma Addl. Sessions Judge Court No. 4 Mathura in ST. No. 75 of 1995 under Section 302 and 307 IPC, P.S. Jamuna Par District Mathura. By the impugned Judgment and order learned Sessions Judge convicted the appellants for the offence under Section 302 and 307 IPC and sentenced to life imprisonment and imposed fine of Rs. 10000/- in default to undergo imprisonment for one year and further sentenced each of the accused persons for the offence under Section 307 IPC to undergo seven years RI and Fine of Rs. 5000/- and in default six months further imprisonment.
2. The facts of the case are as follows:
3. Puran Singh son of Preetam Singh resident of village Kumha P.S. Jamunapar lodged FIR on 27.7.91 at about 6.20 p.m. With the allegations that on 27.7.91 he along with his father Preetam Singh, Dilip Singh, Hakim Singh and others went in the court in connection of murder case. When they were returning to their village from Mathura, on the scooter of Vijai Singh and his father was pillion rider. Complainant ,Hakim Singh and Dilip Singh were on Motorcycle. Scooter was about 100 yards ahead from the motor cycle when scooter reached about 200 yards from village Diwana one motor cycle overtake the scooter. On that motor cycle Ram Khilari resident of his village was sitting along with gun. Rajendra was driving the motor cycle. He was also having a gun. Another motor cycle of blue colour bullet was also following that motor cycle. On that motor cycle there was Gajendra of his village along with gun. Pappu was driving that motor cycle. All these accused persons at about 5.30 p.m. Surrounded his father and Vijai Singh. His father and Vijai Singh alighted from the scooter and tried to escape from the spot towards railway line. But in the mean time Gajendra Singh by riffle, Rajendra, Ram Khilari by their guns, Pappu by country made pistol opened fires on both of them. After sustaining the bullet injury his father Preetam Singh fell down on the ground by the side of the railway line. Vijai Singh after crossing the railway line fled away from the spot towards the field. Accused persons chased him and opened fire on him with intention to killing him. The complainant, Dilip Singh and Hakim Singh tried to rescue. Numerous persons assembled on the spot. After causing injuries to the father of the complainant and Vijai Singh by fire arm all the accused persons escaped from the spot on the motorcycle. The accused persons committed the murder of his father.
4. The investigation of the case was entrusted to the then Station Officer Jamuna Par Rama Nand Tyagi. During investigation he visited at the spot, prepared site plan of place of incident. He also got prepared the inquest report and other documents through S.I. Virendra Singh. He took the simple and blood stained earth from the spot and also recovered Khokha of cartridges, Tikli etc. and prepared the fard. He recorded the statement of the witnesses and after completing all the formalities he submitted charge sheet against the accused persons.
5. The prosecution in support of allegations examined Puran Singh P.W.I. He stated that the incident took place about 10 years earlier on 27.7.91. He along with Hakim Singh, Vijai Singh, Dilip Singh, Sonveer Singh, Vinod, Preetam Singh and others came at Mathura Court in connection of a murder case. Preetam Singh deceased and others were accused persons in that case. When the case was adjourned by the court then he along with Hakim Singh, Dilip Singh and Vijai Singh were returning to his village. His father Preetam Singh was a pillion rider on the scooter of Vijai Singh. He alongwith Hakim Singh and Dilip Singh were on another motorcycle. Scooter was about 100 meters ahead of motorcycle. When the scooter reached at about 200 yards from village Diwana then all of a sudden one motorcycle with high speed over took the scooter. On that motorcycle Rajendra and Ram Khilari were sitting armed with guns. Rajendra was driving motorcycle. Another motorcycle also followed them and on this motorcycle Pappu and Gajendra were sitting. Gajendra was armed with rifle and Pappu was driving the motorcycle. All these four accused persons surrounded the scooter. At about 5.30 p.m. All these accused persons surrounded Preetam Singh his father and Vijai Singh. Both of them Preetam and Vijai Singh after leaving the scooter ran away towards railway line. But in the mean time Rajendra, Gajendra, Ram Khilari and Pappu opened fire on them. Preetam Singh after sustaining fire arm injury fell down by the side of the railway line. Vijai Singh after crossing the railway line tried to escape towards the field. These accused persons fired on him also. Vijai Singh sustained fire arm injuries by the firing of the accused persons. On noise he along with Dilip Singh and Hakim Singh and several other-persons tried to rescue them. After causing injuries all the accused persons escaped on motorcycle towards Raya. That his father was murdered due to enmity. He also proved written FIR Ext.Ka-1. This witness was cross-examined at length by the counsel for the accused persons.
6. Vijai Singh P.W. 2 has also been examined. He was an injured witness. He also stated that the incident took place at about 10 years earlier. He along with the members of his family Hakim Singh, Dilip Singh, Preetam Singh, Puran Singh, Sonveer, Vinod, Rajpal, Jai Pal and Narayan Singh went at Mathura Court for pairvi of a murder case. After the proceeding of the case they were returning to their village. Preetam Singh was sitting with him on his scooter. Dilip Singh, Puran Singh, Hakim Singh were sitting on a motorcycle. Rest of the persons returned to their village on other vehicles. Scooter was ahead from the motorcycle. When the scooter reached at a distance of 200 yards from village Diwana then a motorcycle over took the scooter in a high speed. Rajendra was driving the motorcycle and Ram Khilari was a pillion rider. Both were armed with single barrel gun. The motorcycle was parked in front of his scooter and he applied brake to stop the scooter. At the same time he heard the noise of firing and Preetam Singh cried that he had been killed. He also saw back side and saw one bullet motorcycle of blue colour. Pappu was sitting on the motorcycle Gajendra was armed with rifle and he opened fire on Preetam Singh. Pappu was armed with a country made pistol. Both of them tried to escape from there by the side of railway line. But again he heard the sound of firing. Preetam Singh fell down after sustaining fire arm injuries by the side of railway line and after crossing the railway line he escaped from the spot towards village Diwana. Numerous persons assembled at the spot. Accused persons Rajendra, Ram Khilari, Gajendra and Pappu chased him and they were also firing on him. He sustained injuries of three fires and he also raised alarm. Dilip Singh, Hakim Singh, Puran Singh accompanied them on another motorcycle raised alarm and numerous persons reached on the spot. This incident took place at about 5.30 p.m. He was admitted in the military hospital for treatment. These injuries were also examined and he contradicted his statement on certain point.
7. Dilip Singh P.W. 3 also a witness of the fact and incident. He was also accompanying the deceased and injured and other witnesses. He also stated that on 27.7.91 he went at Court Mathura in a murder case and after the proceedings of the case Vijai Singh and Preetam Singh were returning to their village on a Scooter. Scooter belonged to Vijai Singh. Along with them he himself Puran Singh and Hakim Singh were on motorcycle. He was driving the motorcycle. Rest of the persons returned to their village on another vehicles. When they reached near village Diwana Kala after crossing Yamuna river at some distance one motorcycle over took the scooter by high speed and after reaching at a distance of 100 yards ahead motorcycle blocked the passage of scooter. After some time another motorcycle also followed earlier one. This motorcycle was driven by Rajendra Singh and Ram Khilari was also pillion rider. The first motorcycle was driven by Pappu alias Krishna Gopal and Gajendra was a pillion rider of motorcycle. Pappu was armed with country made pistol, Gajendra armed with rifle and occupants of motorcycle which was following the first motorcycle were armed with gun. Firstly the occupants of first motorcycle fired. This bullet hit Preetam Singh from back side. After sustaining injuries Preetam Singh fell down on the ground. Vijai Singh escaped from the spot but he also sustained injuries of fire arm. He does not remember that whose bullet hit Vijai Singh. Vijai Singh was chased by Rajendra Singh, Ram Khelari, Pappu and Gajendra. Preetam Singh and Vijai Singh sustaianed fire arm injuries from back side. This incident had been seen from 100 yards from behind the tree. Besides him some Hakim Singh, Puran Singh also witnessed the incident from behind the tree. Preetam Singh died on the spot by fire arm injuries. Numerous persons reached on the spot. After the incident accused persons escaped from motorcycle towards Raya. He took Vijai Singh in the military hospital for treatment and Preetam Singh was lying dead on the spot Hakim Singh was thereby his side. In both the parties there was enmity with regard to election of Pradhan. A litigation was also pending in between both the parties. Incident took place on 27.7.91 at about 5.30 p.m.
8. Rama Nand Tyagi S.I. was the Investigating Officer. He stated that after the incident and after registration of the case he reached on the spot and he prepared the site plan of the place of incident and prepared the documents. He proved site plan Ex.Ka-2 and blood stained earth and simple earth Ex.Ka-4. Fard of Khokha, Tikli recovered from the spot is Ext. Ka-5. Inquest report Ext. Ka-6 and other documents along with inquest report, challan lash and photo lash, letter to CMO, letter to R1 Ext.Ka-7 to Ka 12. He dispatched the dead body for post-mortem. A raid was also conducted by him at the residence of accused persons in order to arrest them. In this connection a fard Ext. Ka 13 was prepared by him. On the basis of the result of investigation he submitted charge sheet against the accused persons Ext. Ka 14. He also stated that: Head Constable Mata Deen prepared the chik FIR on the basis of written FIR and he also proved the Chik FIR Ext. ka 16, Articles Ext. 1 to 19.
9. Dr. N.M. Saxena P.W. 5 conducted the post mortem of the dead body of Preetam Singh on 28.7.91 and proved the post mortem report Ext.Ka 17.
10. Bhagwan Sawant Subedar Chief Ward Master Military hospital P.W. 6 is a formal witness. He brought the papers from the military hospital regarding treatment of injured Vijai Singh and he proved the summary report prepared regarding treatment of Vijai Singh in the military hospital. He also stated that all the documents regarding the treatment of Vijai Singh were destroyed in accordance of defence service regulation para No. 592.
11. Accused appellants in their statement under Section 313 Cr.P.C. Denied the allegations of the prosecution. They have also denied the evidence produced against them by the prosecution. It is further stated that all the documents were fabricated in collusion of the complainant and witnesses have given evidence due to enmity. Rajendra and Gajendra Singh accused persons further stated that on the date, time and place of incident they were not present at the spot. Gajendra Stated that on that date he was present at his duty in the R.T.O. Officer, Mathura. Rajendra Singh stated that on the date of incident he had been working in the office of R.T.O Agra. The accused appellants in defence produced Pratap Kishor Sinha Record Keeper District Court Mathura DW-1. Some record from the Civil Court was summoned through him he stated that according to the register all the records from 1986 to 1992 had already been weeded out on 27.6.97. He proved the entry in the register Ext.Kha-1.
12. Makhan Singh D.W. 2 was an employee of RTO office Mathura. Record was summoned from the RTO office. He stated that the entire summoned record had already been weeded out. Sri S.C. Shiv Hare Deputy Transport Commissioner Agra D.W. 3 stated that in the year 1991 he was posted as ARTO Enforcement Mathura. Rejendra Singh accused also posted with him as a constable. He brought the checking memorandum of the year 1991. On 27.7.91 he along with Rajveer Singh, Rajendra Singh, R.N. Misra, Balveer Singh, Banwari Lai and Bhoop Singh discharged the duty of checking of the vehicle from 7.00 a.m. to 10.00 a.m. at Mathura-Agra road. Four vehicles were challanned and three vehicles were detained. From 10.00 a.m. to 8 p.m. Along with his staff attended the meeting with the Transport Minister Government of U.P., Principal Secretary Transport Commissioner, Deputy Transport Commissioner of the Zone and R.T.O. Agra. The Transport Minister on that date inaugurated Inter State Bus Stand at Agra He further stated that from 7.00 a.m. to 8.00 p.m. Accused Rajendra Singh continuously remained with him. He also issued a certificate in this connection to Rejendra Singh. He also stated that the memorandum filed today in the Court is a private document. The accused persons also examined Banwari Lai D.W. 4 and he also stated that on 27.7.91 he was posted as Enforcement constable ARTO office Mathura. Rajendra Singh along with other persons also remained posted with him. He also stated that on that date from 7.00 a.m. to 10 a.m. discharged their duties along with ARTO in the checking of the vehicles and then remained busy in the programme of Transport Minister from 10 a.m. to 8 p.m. Rajendra Singh also remained with him from 7.00 a.m. to 8.00 p.m. Maharaj Singh D.W. 5 has also been produced. He stated that in the evening at 4.00 or 4.15 p.m. he heard that some unknown persons were injured in the firing. After half an hour he reached at the spot along with colleague. On reaching on the spot he found that Preetam Singh was lying dead near the railway line. Vijai Singh in injured condition was lying near the house of Raghuveer of village Diwana. No relation of the deceased and Vijai Singh were present there. He went with Vijai Singh with the police vehicle at Military Hospital and admitted him.
13. We have heard Sri D.N. Wali Senior Advocate, Sri Dilip Kumar, Sri Rajiv Gupta, Sri Rajes Singh Advocate for the appellants and Sri R.K. Singh, Surendra Singh AGA for the State and perused the entire material on record.
14. It has been argued by learned Counsel for the appellants that the prosecution story as stated in the F.I.R. Is highly improbable. Presence of witnesses Puran Singh and Dilip Singh is not possible. Although Vijai Singh is an injured witness and his presence cannot be doubted on the spot but in view of the evidence it appears highly improbable that he has the opportunity to see the incident. Vijai Singh and Preetam Singh were also followed by the motor cycle by witnesses while returning from Mathura after attending a criminal case. Puran Singh is the son of the deceased and Dilip Singh is also a relation but no efforts was made by the accused persons to cause injuries to Puran Singh or Dilip Singh. It is also material that Vijai Singh relation of this witness sustained fire arm injuries in the incident but none of them accompanied Vijai Singh injured in the hospital. Maharaj Singh D.W. 5 took the injured Vijai Singh in the hospital and in the prescription prepared in the Military hospital the name of Maharaj Singh has been mentioned. It was but natural that if Puran Singh and Dilip Singh were present on the spot then they might have taken Vijai Singh in the hospital. Not mentioning the name of Puran Singh and Dilip Singh in the paper prepared by the Military hospital and Maharaj Singh a person who brought the injured in the hospital shows that they were not present at the spot. It has been further argued that the father of Puran Singh, namely, Preetam Singh died on the spot due to injuries and Vijai Singh sustained serious bullet injuries but after leaving both of them lying on the spot. Puran Singh rushed at the police station to lodge the F.I.R. It is against the human conduct. If he was present on the spot then immediately he will rush to lodge the FIR, cannot be believed. He might have accompanied Vijai Singh in the hospital. The dead body of the father is lying unattended on the spot and the son is reaching to the police station to lodge the FIR is against the human conduct. The FIR is too prompt and from that the inference can be drawn that it is anti-timed lodged after consultation. The witness Puran Singh stated that he went at the police station to lodge the F.I.R on motorcycle but there is no mention in the G.D. at Police station that Puran Singh came at the police station on the motor cycle. Moreover, the motor cycle was not found on the spot by the I.O. and this fact stand falsified that Puran Singh Dilip Singh and Hakim Singh were on separate motor cycle following the scooter of Vijai Singh and Preetam Singh. It has been further argued that ail the witnesses are highly interested and related and inimical to the accused persons. Independent witnesses were available at the place where incident took place on the public road where numours person were probale to be present. These witnesses did not put up their signatures on the inquest report and this fact shows that they were not present on the spot. Vijai Singh at the time of admission in the hospital was conscious. He stated his number allotted to him by military. No other person is expected to be aware of the number of Vijai Singh who was a military person and on the medical document there is mention of the number of Vijai Singh and from this fact only inference can be drawn that Vijai Singh was fully conscious and he stated to the Doctor that three unknown persons caused the injuries. Whereas according to the F.I.R. there are four accused persons involved in the incident. Much has been argued regarding the reliability of statement of Maharaj Singh. It has been argued that the name of Maharaj Singh has been mentioned in the medical document of Vijai Singh as a person who brought him at the hospital. And this fact has not been disbelieved by the prosecution. This witness has stated that Puran Singh, Dilip Singh and Hakim Singh were not present on the spot. That there is no reason to disbelieve the statement of this witness Maharaj Singh D.W. 5. The prosecution ought to have produced this witness but intentionally the prosecution failed to produce him. It has further been argued that Gajendra and Rajendra were not present at the time of the incident. Defence evidence has been produced to show that on the day of the incident they were present on their duty along with ARTO in the checking of the Vehicle from 7.00 a.m. to 8.00 p.m. They remained with the ARTO. It has further been argued that a false case has been fabricated against them due to enmity.
15. Learned A.G.A opposed the argument of learned Counsel for the appellants and further argued that the prosecution story is fully believable. F.I.R is prompt. Incident took place at 5.30 p.m. And F.I.R was lodged on the same day at 6.20 p.m. Puran Singh was on motor cycle at the time of the incident and immediately after the incident he rushed at the police station to lodge the F.I.R. Puran Singh, Dilip Singh witnesses were following on separate motorcycle to Vijai Singh and Preetam Singh who were coming on scooter. That on the date of the incident criminal case was fixed at Mathura court. Deceased, Vijai Singh and other witnesses were returning from the Court of Mathura at village and on the way the accused persons committed the murder of Preetam Singh and caused fatal injuries to Vijai Singh due to enmity. Motive was available to the accused persons. By no stretch of reasoning the presence of Vijai Singh can be doubted because he is injured witness the sustained serious fatal fire arm injuries. There is no reason to disbelieve his statement. That all the accused persons have participated in the commission of murder. Maharaj Singh D.W. 5 was not present at the time of the incident. He reached on the spot after considerable delay hence no reliance can be placed on the statement of the witness.
16. It is a definite case of the prosecution that on 27.7.91 Preetam Singh, Dilip Singh, Hakim Singh, Vijai Singh and Puran Singh went at Civil Court Mathura in order to attend the case in connection of a murder case. At about 5.30 p.m. at the time of returning at their village, when reached near village Diwana two motorcycles driven by the accused persons over took the scooter of Vijai Singh on which Preetam Singh deceased was a pillion rider. Puran Singh complainant, Dilip Singh and Hakim Singh were following them at some distance on separate motor cycle. Distance in between scooter and motorcycle was about 100 yards when scooter reached at a distance of 200 yards from the village Diwana and these accused persons over took the scooter and all of them armed with fire arm surrounded and opened fire on Preetam Singh. Vijai Singh and Preetam Singh tried to escape from the spot but the accused persons chased them and caused fire arm injuries to them. Preetam Singh fell down by the side of railway line and died whereas Vijai Singh went at village Diwana and in front of the house of Raghubir Singh fell down. It is a material fact in this case that whether 27.7.91 was a date fixed in a criminal case in which deceased and witnesses were accused persons. Because it is the opening sentence of the FIR that on 27.7.91 complainant along with father injured and witnesses went in the District Court Mathura in connection of a case fixed on the date and the incident took place while they were returning from the District Court Mathura in the evening. The witnesses Puran Singh, Vijai Singh and Dilip Singh have specifically stated that on the date of the incident they went at district Court Mathura to face trial in a murder case of the relation of the accused persons. These witnesses have not been cross-examined by the counsel for the accused that on 27.7.91 there was no date fixed in the murder case at Mathura Civil Court. Under these circumstances there is no option except to presume that on 27.7.91 a murder case of the relation of the accused persons was fixed in the Civil Court Mathura and on that date the deceased and witnesses went there to attend the case. This fact is also material to scrutinize the truthfulness of the prosecution story. Admittedly there was enmity in between the deceased the witnesses and accused persons. Some relation of the accused persons was allegedly murdered by the deceased and witnesses. Under these circumstances it is but natural that the accused persons after making preparation and planning way laid in order to commit the murder of Preetam Singh and Vijai Singh. Although enmity is like double edged weapons and it cuts both ways. Where there is enmity then there is every strong possibility that the rival party may plan to eliminate the other party and also every possibility that due to inimical relation in case of murder of any member they may implead other party in that case. It is also material to ascertain as to whether the accused persons committed the murder of Preetam Singh and caused fatal injuries to Vijai Singh on 27.7.91 while returning from the Civil Court after attending the Court in connection of murder case of accused persons. As we have stated above that the statements of the witnesses have not been disputed regarding the date fixed in the murder case i.e. 27.7.91. A question was also put to the accused persons in the statement under Section 313 Cr.P.C. That whether the complainant Puran Singh father and another person appeared at Mathura Civil Court in connection of a murder case. The accused persons instead of denying specifically gave a evasive reply of being ignorant from this fact. Only Rajendra Singh accused stated that it is wrong but the witnesses have not been cross-examined on this point hence it is established fact that 27.7.91 was the date fixed in a murder case.
17. It is also material in the circumstances of the case that as to whether the incident took place at about 5.30 p.m. On the public road near railway line at village Diwana. It has not been argued by learned Counsel for the appellants that no incident took place near the railway line near village Diwana regarding murder of Preetam Singh and causing fatal injuries to Vijai Singh. It is a definite case of the prosecution that incident took place at about 5.30 p.m. The accused persons examined Maharaj Singh D.W. 5 to show that after some time of the incident he reached at the spot and found Vijai Singh lying in injured condition at village Diwana in front of the house of Raghubeer Singh and dead body of Preetam Singh was lying near the railway line. He stated that he took Vijai Singh for treatment in the military hospital in the vehicle of police. He further stated that no member of the deceased and injured were present on the spot at that time and much stress has been laid on the statement of Maharaj Singh D.W. 5 by learned Counsel for the appellants and stated that there is no reason to disbelieve the statement of Maharaj Singh and he must be believed to this effect that no family members of the deceased and injured was present at the spot at the time of the incident. But statement of a witness cannot be considered in isolation. Statement of a person shall be considered along with the other evidence and other circumstances. Maharaj Singh D.W. 5 has not stated that incident took place in his presence. He only stated that after knowing the incident of the murder of Preetam Singh he reached at the spot and saw the dead body of Preetam Singh lying near the railway line and Vijai Singh lying in injured condition at village Diwana near the house of Raghubeer Singh. It would have been different if Maharaj Singh was present at the spot at the time of the incident also and he stated that the incident took place in different manner as alleged by the prosecution. In our opinion the statement of Maharaj Singh is relevant regarding the time and place of incident. There is nothing in the statement of the witnesses also from which the inference can be drawn that the incident did not happen at the place alleged by them. It is also material that at what time the incident took place. Maharaj Singh D.W. 5 has stated that at about 4.00 or 4.15 p.m. he heard that some person of village Kuman had been injured by fire arm and after half an hour of knowing this fact he reached at the spot. At that time he saw the dead body of PreetamSingh of village Kuman lying by the side of railway line and Vijai Singh was lying near the house of Raghubeer Singh of village Diwana in injured condition and police was present at the spot at that time. He also stated that Hakim Singh, Dilip Singh, Sonveer Singh, Puran Singh son of Preetam Singh were known to him from earlier. He did not see these persons on the spot. No person of village Kuman was present on the spot. He took the injured Vijai Singh at military hospital in the police vehicle for treatment and he was admitted in the military hospital at about 7.00 p.m. If the statement of Maharaj Singh is to be believed regarding the time of incident then incident might have happened -earlier to 4.00 or 4.15 p.m. And after half an hour he reached at the spot. Meaning thereby he reached at about 4.45 p.m. On the spot and the police was present on the spot at about 4.45 p.m. He took Vijai Singh for treatment to medical hospital. The injured was admitted in the hospital at about 7.00 pm. Regarding time the statement of Maharaj Singh appears unbelievable as from 4.45 p.m. up to 7.00 p.m. There was no reason for not admitting the injured in the hospital. Otherwise according to the prosecution story the incident took place at about 5.30 p.m. And this time of incident appears more reliable and believable in view of the statement of Maharaj Singh D.W. 5 also. F.I.R. was lodged at the police station at about 6.20 p.m. And distance of place of incident from the police station Jamuna Par is about 6 km. The investigating Officer stated that he reached at the spot at about 6.30 p.m. And started preparing the inquest report and other formalities. The injured Vijai Singh was also taken at the military hospital in the police vehicle along with Maharaj Singh D.W. 5. This time of incident-appears more reliable probable and believable. There is no possibility of presuming that incident took place prior to 4.00 p.m. as stated by Maharaj Singh, it is not reliable that from 4.00 or prior to 4.00 p.m. The deceased and injured remained lying on the spot and not being noticed by any person. The place of incident is high way and it is but natural that numerous vehicle use to pass on the high way within a short time and when there had been indiscriminate firing from the side of the accused persons then naturally huge crowed rushed towards the spot and there was no possibility that in such circumstance Vijai Singh remained lying unattended up to 7.00 p.m. as is waiting for Maharaj Singh to accompany him to the hospital. Under this circumstance, the statement of Maharaj Singh is not reliable regarding time of incident. Under these circumstances it appears that as incident took place at 5.30 p.m. and immediately FIR was lodged at 6.20 p.m. And police also reached on the spot at 6.30 p.m. and injured Vijai Singh was taken to the hospital for treatment and Maharaj Singh was present there and he accompanied the injured at the military hospital. This statement of Maharaj Singh is also not reliable that the witnesses relation of the deceased and vehicle were not present at the spot when he took Vijai Singh to the hospital. It may be possible that when there was a huge crowd on the spot Maharaj Singh could not notice the presence of the family members of the deceased and injured. A person who is reaching on the spot after more than half an hour cannot be believed for this fact that a particular person was not present at the time of the incident because much emphasis has been laid by the counsel for the appellants on the statement of Maharaj Singh in order to rule out the possibility of the presence of a witness on the spot at the time of the incident. Hence on the basis of the above reason we are of the opinion that incident took place on 27.7.91 at about 5.30 p.m. There can be variation of about 10-15 minutes in the time of the incident. It is not expected from the close relation of the deceased that they will keep a watch on watch in order to ascertain as to what time the accused persons attacked on his relation and at what time he rushed for the police station. But it is certain the FIR was recorded at 6.20 p.m. Moreover Hon'ble Apex Court held in 2002 Supreme Court cases (Crl) 961 Sukhchain Singh v. State of Haryana and Ors.:
It is neither the requirement of law nor usually expected that names of all the relatives of the injured should be mentioned in the medico legal report prepared by the doctor in his discretion.
18. We have stated above, that from all the circumstances and even from the statement of Maharaj Singh D.W. 5 it has been established that incident took place on the high way near railway line near village Diwana at about 5.30 p.m. Then it is also material that whether the accused persons participated in the commission of the offence of murder and causing injuries to Vijai Singh. On behalf of the appellant it has not been alleged that no injury was sustained by Vijai Singh in the incident. Maharaj Singh D.W. 5 himself stated that Vijai Singh was lying in injured condition near village Diwana in front of the house of Raghubeen Singh and he was admitted in the military hospital. At a distance of 200 yards from Vijay Singh the dead body of Preetam Singh was lying. The presence of Vijai Singh on the spot cannot be doubted. The injury report of Vijai Singh also shows that he sustained fire arm injuries and the counsel for the appellant has also not argued that no fire F arm injuries were sustained by Vijai Singh. But the learned Counsel for the appellants vehemently argued that according to medical case sheet of Vijai Singh three assailants caused injuries at about 5.00 p.m. and it has further been argued that when Vijai Singh was admitted in the hospital he was conscious and cooperative and he was crying from pain and Vijai Singh stated that three assailants, fired on him. The counsel for the appellants also argued that on the basis of this fact of the medical case sheet up to that time it was not known that who were the assailants and who caused injuries and moreover specifically stated that there were three assailants and not four as the prosecution as alleged. A person who is crying from pain and having bullet injury is not expected to narrate the entire sequence of the event. It would not be proper to place reliance on this fact of the medical case diary that the number of assailants was three and the prosecution witnesses have given a false evidence regarding the number of accused persons. Under what circumstances this fact has been mentioned in the case sheet has not been explained. It will not be proper to throw away the statement of the witness regarding the number of assailants and place reliance on this medical case sheet. Moreover, the Doctor was also not expected to ascertain each and every minutes detail of the incident. This medical case sheet also shows that besides Maharaj Singh, two constable also accompanied the injured at the medical hospital and from this fact inference can be drawn that FIR was in existence at the time of admission of vijai Singh in the hospital otherwise there was no reason for the police constable to accompany the injured in the hospital. Hence we disagree with this argument of learned counsel for the appellant that there were three assailants to commit this incident as has been stated by Vijai Singh to the Doctor who prepared the medical case sheet.
19. It is also material to be seen that whether the FIR is prompt or whether it is too prompt to be believed that it is anti-timed. Learned A.G.A argued that FIR is prompt as lodged at about 6.20 pm. Whereas the incident took place at 5.30 p.m. But the learned Counsel for the appellants argued that FIR is too prompt, it is not possible to be lodged at 6.20 p.m. If the incident took place at about 5.30 p.m. and distance of police station is 6 km. And the learned Counsel for the appellants argued that it may be inferred that FIR is ante-timed. Although FIR was lodged after about 50 minutes of the incident at about 6.20 p.m. and the distance of police station is 6 km. It is also fact that the murder was committed of the father of the complainant Puran Singh and one relation Vijai Singh was injured in the incident. Learned Counsel for the appellants argued that the murder was committed of the father of the complainant and uncle was lying seriously injured and son rushed at the police station immediately after the incident to lodge the FIR. It is un-reliable and unbelievable and against the human conduct. Although Puran Singh has stated that he rushed at the police station to lodge FIR on his motorcycle. But the learned Counsel for the appellants argued that according to the general diary Puran Singh did not come to the police station on motorcycle. If Puran Singh might have gone at the police station on the motorcycle, then it was natural that there might have been entry in the G.D and there is no mention in the G.D of motorcycle and the inference must be drawn that Puran Singh went at the police station on foot or by any another vehicle. It has been specifically alleged by the witnesses Puran Singh, Vijai Singh and Dilip Singh that on one scooter there was-Vijai Singh, Preetam Singh and on another motor cycle there was Puran Singh, Hakim Singh and Dilip Singh. Complainant and others were following Preetam Singh, Vijai Singh who were on separate scooter and the distance in between two vehicles was about 100 yards. When scooter reached about 200 yards from village Diwana then the Motorcycles of accused persons over took the scooter and they were armed with fire arm and-opened fire. Seeing this incident complainant and others opted to remain at some distance from the spot in order to save themselves. Complainant and others took the shelter behind the road side tree. And when the accused persons after committing the incident fled away from the spot then these persons reached on the spot and saw the dead body lying there. And there is no circumstance on the record from which this fact can be disbelieved that Puran Singh and others did not go to the Civil Court in connection of a murder case and they were not returning along with Preetam Singh and Vijai Singh. The presence of scooter is established as the same was found lying on the spot by the I.O. And other circumstance also shows that Puran Singh and others also went at Civil Court Mathura then it is also possible that Puran Singh and others were returning from Civil Court on separate motorcycle. If Puran Singh and others were present at the spot along with motor cycle then it is highly improbable that in order to lodge the FIR Puran Singh shall not go by motor cycle which was very well with him. It is also not possible that Puran Singh after the incident rushed, towards the police station on foot whereas Motorcycle was present. Learned Counsel for the appellant tried to persuade that Puran Singh went at the police station on foot running where as the FIR was lodged at 6.20 p.m. which is not at all possible to be lodged at 6.20 p.m. when the incident took place at about 5.30 p.m. He also argued that circumstance shows that the incident took place and later on information was given to the family members of the deceased and injured, Puran Singh etc. and on information they reached at the spot and lodged the FIR. But FIR has been shown recorded at 6.20 p.m. The promptness of the FIR shows that it is ante-timed. We disagree with the argument of the counsel for the appellants.
The Hon'ble Apex court in Supreme Court Cases 1983 page 217 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat held as follows:
In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
Other circumstances has also been pointed out by learned Counsel for the appellants to rule out the possibility of the presence of Puran Singh and other witnesses on the spot. That 1.0 has not stated that motorcycle was at the spot and even the place of motorcycle of the witnesses has not been shown in the site plan. And that neither Puran Singh nor other witnesses accompanied Vijai Singh injured to the police station and these circumstances also shows that he was not present at the spot. We have elaborately discussed these circumstances above.
20. We have stated above, that the presence of Vijai Singh on the spot cannot be ruled out because he sustained fire arm injuries on the vital part of the body and according to the defence witness also Vijai Singh was admitted in the military hospital in injured condition having fire arm injuries. But from the statement of Vijai Singh the counsel for the appellants tried to show that he had no opportunity to see the assailants. That at one point Vijai Singh has stated that he told to the Doctor that three unknown assailants opened fire on him and that about the names of the accused persons he came to know next day in the morning. This witness also stated that the occupant of the motor cycle which over took them were covering their faces or not he cannot say. This witness also stated that when he reached in the hospital he was fully conscious. He did not disclose the name of the accused persons to the police personnel. That he did not see any of the accused persons opening fire. On the basis of the statement of this witness learned Counsel for the appellants argued that this witness turned hostile and he did not support the prosecution story. But in order to consider the evidentiary value of this witness it is essential, to consider the sequence of the incident. And if the statement of this witness be considered along with sequence of the event then it will be very well said that he is justified. Moreover, one stray sentence is not sufficient to determine the evidenciary value of the witness. We have stated above, that when Vijai Singh and Preetam Singh were "returning from District Court. Mathura on Scooter and near village Diwana on the road these accused persons over took the scooter and parked their motor cycles in front, of the scooter in order to stop the scooter. At that time Preetam Singh was a pillion rider. Immediately after stopping the scooter these accused persons opened the fire on Preetam Singh. It is but natural that when Vijai Singh was on the driver seat it will not be possible to him to, see the real assailants of the pillion rider. But this witness specifically stated that these accused persons armed with fire arm gun and riffle appeared on the spot on their motorcycle and when some of the accused open fire on Preetam Singh and immediately Preetam Singh, and Vijai Singh tried to escape from the spot to save themselves. And all these accused persons chased them. Under this circumstance it was not possible for Vijai Singh to see which of the accused opened fire on Preetam Singh or on him. We have decided that the incident took place on the road near the railway line. Scooter was found lying on the metalled road on Kachcha Patri whereas deceased Preetam Singh's dead body was lying at point 'A' near the railway line at a distance of 14 paces where the scooter was lying. It shows that Preetam Singh and Vijai Singh both tried to escape from the spot and these assailants chased them and opened fire on them. Vijai Singh fell down at village Diwana near the house or Raghubeer Singh at a distance of 200 yards from the scooter. It shows that Vijai Singh had to run up to distance of 200 yards in order to escape from the accused persons. A person who is running in order to save from the accused persons will not turn his back in order to see that what the accused, persons are doing with another victim. And it is also not possible to see that which of the accused particularly is opening fire. The earlier statement of examination in chief has not been confronted to this witness. Moreover, it is also material that the incident took place on 27.7.91 and the statement of the witnesses were recorded in the year 2001 after 11 years. It is not. possible for the witnesses to remember each and every minutes detail of the incident. In our opinion this is not very material that Vijai Singh also stated that which motor cycle reached earlier and which later on. And Vijai Singh contradicted the statement of Puran Singh about this fact that which motor cycle reached first and which later on. Ac One place Vijai Singh also stated that at the time of admission in the hospital he was not fit to talk. That Doctor did not enquire from him that as to how he sustained injuries. That he regained consciousness next day in the hospital. He sustained all the injuries on the back side while escaping fro mi the spot. It is highly improbable that Vijai Singh Injured was not in a position to see the assailants when the Incident: took place in broad day light. The he and place of incident is certain and by no stretch of reasoning it can be said that the incident took place in the dark of night. All the circumstances shows that the incident took place in broad day light on the high way. The statements of Vijai Singh is most reliable and it will not be proper to discredit the statement of this witness by stray sentence here and there. The statement be considered in its entirety.
Moreover, the Hon'ble Apex Court in the State of Gujarat v. NaginBhai Dhulabhai Patel and Ors. reported in 1983(3) SCC at page 324 held as follows:
The mere fact that she did not make the statement before the police will not justify throwing her entire evidence overboard particularly when she is an injured witness whose presence is incapable of being doubted. Her statement was being recorded soon after she herself was injured and two persons had been killed-a nerve shattering experience for anyone. The High Court is, therefore, not justified in making a mountain out of omission.
21. The Hon'blo Apex Court has held that the presence of injured witness at the scene of occurrence cannot be doubted. It has been held in 1994 SCC (Crl) 1694 Shivalinqappa Kallayanappa and Ors. v. State of Karnataka-
The fact that the two deceased persons met homicidal death and that Pws 2 to 4 received injuries in the same occurrence is beyond dispute. When once presence of Pws 2 to 4, they being injured, at the scene of occurrence is not doubted, then their evidence assumes great importance and unless there are strong grounds the same cannot be rejected on the basis of some minor discrepancies.
The Hon'ble Supreme Court has also held in 1995 SCC (Cri) 1081 Gaianan Amrut Gaykwad and Ors. v. State of Maharashtra When a person is attacked by a number of assailants it may become difficult for that person to say exactly whose blow had caused an injury to him. When a witness deposes generally about the assault on him and others it may become necessary to scrutinise his evidence carefully and to find out whether all the accused had taken part in the assault or rot. But his evidence cannot be discarded altogether if otherwise it is believable. Having carefully considered their evidence we find that their evidence is quite consistent and does not suffer from any serious infirmity.
The Hon'ble Apex Court further held in Naqarjit Ahir etc. v. State of Bihar ;
It was then submitted that in spite of the fact that large number of persons had assembled at the bank or the river at the time of occurrence, the witnesses examined are only those who are members of the family of the deceased, or in some manner connected with him. We cannot lose sight of the fact that four of such witnesses are injured witnesses and, therefore, in the absence of strong reasons, we cannot discard their testimony. The fact that they are related to the deceased is the reason why they were attacked by the appellants. Moreover, in such situations though marry people may have seen the occurrence, it may net be possible for the prosecution to examine each one of them. In face there is evidence on record to suggest that when the occurrence took place, people started running helter-skelter. In such a situation it would be indeed difficult to find out of other persons who had witnessed the occurrence, in any event, we have the evidence of as many as 7 witnesses, 4 of them injures, whose evidence has been found to be reliable by the courts below, and we find no reason to take a different view.
22. Much has also been argued regarding the presence of the witness Puran Singh, Dilip Singh on the spot and circumstance have been stated to rule out the possibility of the presence of the witnesses on the spot. As we have discussed above and we are of the opinion that these witnesses were also present on the spot at the time of the incident and all these witnesses along with deceased and injured were returning from District Court: Mathura after attending the court in a murder case. Hence it is but natural that these witnesses were also coming on separate motor cycle following Vijai Singh and Preetam Singh and they have every opportunity to see the incident and Puran Singh lodged the Fid also. Dilip Singh also accompanied Vijai Singh at military hospital. I. Although-his name has not been mentioned in the record or the hospital as a person who bring him. But Vijai Singh also stated that Dilip Singh also accompanied him to the hospital. There are certain contradictions in the statement of the witnesses but contradictions are natural to occur in the statement of the witnesses and the minor contradictions makes the prosecution story and statement A' the witnesses reliable.
23. According to the post-mortem following injuries were found on the body of Preetam Singh:
(1) Fire arm wound of entry 14cm x 9cm x abdomen walls on front of Rt side of abdomen 5cm from lumber blackening u tattooing found in wound medially.
(2) Fire arm wound of entries 3cm x. 2.5 cm x chest cavity deep on Lt side of back of chest 5cm from spine.
(3) Firing wound of exit 5cm x 3cm x chest cavity deep on lateral aspect of Lt side of chest with communicated inj. No. (2) (4) Fire arm wound of entry 3cm x 2cm x chest cavity deep on back of Rt side chest 5cm from spine.
(5). Fire wound of exit 6cm x 3cm x chest cavity deep on lateral aspect of Rt side of chest with communicated Inj No. (4).
(6) Fire arm wound of entry 5cm x 3 cm x bone deep on outer back part of Rt side of upper arm.
(7) Fire arm wound of Exit 14cm x 9 cm x bone deep on top of left side fractured upper part of humorous Jt. communicating Inj. No. (6) blackening & tattooing resent in all wound of entry.
24. All the above injuries were caused by fire arm. Much has been argued by the counsel for the appellant that after sustaining injury No. 1 it was not possible for Preetam Singh to run. And moreover injury No. 1 is on the front portion of the body. How this injury was caused by the accused persons was not clarified by the prosecution. The Injuries were caused by the accused persons to the deceased while he was running. Hence the injuries must be sustained on the back portion of the body but injuries are on the front portion of the body. It is also material how the incident was committed by the accused persons. All the assailants were armed with fire arm gun and riffles and immediately after getting down from the motorcycle the accused persons sprayed the bullet. Hence it is not very material that which particular injury was sustained by the deceased at what time and it also cannot be said that after sustaining the injury No. 1 deceased will not be in a position to run. But it is the fact that the deceased fell down at a distance of 14 yards from the place where the scooter was lying and from this fact only inference can be drawn that the accused had to run up to the place where he fell down. No benefit can be given to the accused persons on the basis of this tact.
25. It has also been argued by learned Counsel for the appellants that all the witnesses are close relation of the deceased. Puran is son of the deceased, Vijai Singh is the nephew of Preetam Singh as he is the son of Man Singh real brother of Preetam Singh. That Dilip Singh P.W. 3 is also the real brother of Vijai Singh. No independent witness has been produced by the prosecution inspite of the fact that the independent witnesses were available. The incident took place in the manner where it was not possible for the prosecution to ascertain the name and identity of the witnesses who saw the incident. The incident took place on the high way at a distant place from the village of the deceased. Moreover, Vijai Singh is a injured witness and Puran Singh as well as Dilip Singh were also following the scooter of deceased and Vijai Singh. In view of several pronouncement of Hon'ble Apex Court even the statement of close relation and inimical to the accused is reliable but the statement of such witnesses must be considered cautiously. We have considered the circumstances as mentioned above and we are of the opinion that the statements of these witnesses are reliable. We have already stated above that Vijai Singh cannot be called a hostile witness and even if it may be presumed that Vijai Singh stated some facts which are adverse to the prosecution story even then his statement is reliable.
26. The Hon'ble Apex Court has also held that the testimony of interested witness cannot be discarded merely on the ground that he is a related witness. The Hon'ble Apex Court in Baitullah and Anr. v. State of U.P. has held that Moreover, there is nothing in the cross-examination of P.Ws 2 to 4 seriously in discard their version about the occurrence. The High Court has rightly pointed out that merely because the witnesses are interested/related, their evidence cannot be brushed aside as it is normally expected that they will not leave out the real culprits and rope in the innocent persons.
In Sajjan Singh and Ors. v. State of M.P. Reported in the Apex Court has further held that-
Both Sajid and Ismile would certainly bear ill will towards Banesingh and his family members and their servants because of inimical relations which Pyaremain and Munnabhai on the one hand and the accused party on the other hand had, Statements of the eyewitnesses would, therefore, have to be scrutinized with caution though they cannot be thrown out merely because the witness got ill will towards the accused party.
The Hon'ble Apex Court regarding interested witness has also held in Hari Ram v. State of U.P. Reported in (2004) 8 SCC page 151 held as follows:
We shall first deal with the contention regarding interested-ness of the witnesses for furthering prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
The Hon'ble Court further held in Rama Shish Rai v. Jagdish Singh :
We are clearly of the view that the findings of the High Court were erroneous, resulting in grave miscarriage of justice. The eye witnesses P.Ws. 1, 2, 3, 5, 8 and 10 consistently supported the case of the prosecution throughout. They were subjected to lengthy cross-examination but nothing could be elicited from their mouth so as to discard the creditworthiness of their statements. The ocular evidence of the eye-witnesses were corroborated in material particulars with the medical evidence. In our view, therefore, the acquittal recorded by the High Court on the aforesaid reasoning is perverse. The High Court discarded the eye witness account, branded them as inimical witnesses. This is not the requirement of law. The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well settled principle of law that enmity is a double edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In the present case the High Court has rejected the otherwise creditworthy testimony of eyewitnesses account merely on the ground that there was enmity between the prosecution party and the accused party.
27. It has also been argued by learned Counsel for the appellant that the statement of P.W. 1 Puran Singh and P.W. 4 Rama Nand Tyagi are contradictory regarding the time of preparation of inquest report. Puran Singh stated that the police completed all the formalities up to 9.00 p.m. In the light of torch and gas. This witness also stated that inquest report was prepared within one and half or two hours. Whereas Rama Nand Tyagi P.W. 4 stated that inquest report was completed at 7.30 p.m. But in our opinion no contradiction in the statement of Puran Singh and Rama Nand Tyagi on the time of completion of inquest report. Besides preparation of inquest report and other documents 1.0 also prepared other fard on the spot and it may be possible that the inquest report was completed at 7.30 p.m. and afterwards sent the dead body for post mortem. I.O. completed other formalities like preparing papers etc. Certain other infirmities were pointed out in the statement of the 10 and in this connection the Judgment of the Hon'ble Apex Court reported in 12003 (1) ACC 6191 Amar Singh v. Balwinder Singh and Ors. is relevant which was relied by the trial court also:
In Paras Yadav and Ors. v. State of Bihar, while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar, when this Court observed that in such cases the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.
28. In view of this verdict of Apex Court if there are certain irregularities in the investigation no benefit can be given to the accused persons. In the present case empty cartridges were recovered from the spot and there are other circumstances also established the truthfulness of the prosecution story. Infirmities if any, are not material so as to given the benefit to the accused. Much has also been argued by the counsel for the appellant that it has not been established that from how much distance the accused persons opened fire and whether dispersal of the pellets was possible. But the manner in which incident was committed these are not material things. Accused persons opened fire on Preetam Singh and Vijai Singh while they were escaping from the spot. It was not at all possible for the witnesses to pin point that from which place which of the accused opened fire on Vijai Singh and deceased while running.
29. Much has been argued by learned Counsel for the appellant regrading the statement of Maharaj Singh D.W. 5 and it has been argued that statement of this witness is reliable specially in the circumstances that his presence has been admitted at the hospital. That this witness ought to have been examined by the prosecution but when the prosecution has failed to examine as P.W. Then the accused persons examined him as defence witness and from the statement of this witness this inference can be drawn that after the incident Puran Singh, Dilip Singh were not present on the spot otherwise they might have accompanied Vijai Singh at the hospital. We have discussed it elaborately above. But even then the learned Counsel for the appellants stated that the statement of this witness is admissible under Section 6 of Indian Evidence Act. It has been provided by Section 6 of the Indian Evidence Act: "Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places". We disagree with the argument of learned Counsel for the appellants that the statement of Maharaj Singh is part of the same transaction. He himself stated that at about 4.00 or 4.30 p.m. he heard at his farm that near village Diwana some persons caused fire arm injuries to the person of village Kuman. According to his statement, the incident took place much earlier to 4.00 or 4.15 p.m. After knowing about the incident he rushed after half an hour and the incident took place in the village or near village Diwana and within this period of more than half an hour according to this witness. Numerous persons naturally assembled at the spot. We failed to understand that how the statement of this witness shall form part of same transaction. After commission of the incident the events relating to the incident came to an end. No part of the events of the incident took place in his presence except that he accompanied injured Vijai Singh at the hospital and Vijai Singh was taken at the hospital after more than an hour of the incident when the police reached on the spot. In our opinion no benefit can be given to the accused persons on the basis of the statement of Maharaj Singh D.W. 5. We also disagree with the statement of Maharaj Singh regarding the presence of witness on the spot. Because he was not present on the spot at the time of the incident. If he might have seen the incident from the place where Vijai Singh fell down then it could have been said that he is reliable. Because he reached at the spot after half an hour according to the witness himself. In our opinion the statement of Maharaj Singh is not admissible in view of Section 6 of Indian Evidence Act. Moreover prosecution is justified in not examining him as prosecution witness in view of the verdict of Apex Court reported in 2000 (7) Supreme Court Cases 490 Hukum Singh and Ors. v. State of Rajasthan:
In trials before a Court of Session the prosecution" shall be conducted by a Public Prosecutor". Section 226 of the Code enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the court that fact. Alternatively, he can wait further and obtain direct information about the version which may particular witness might speak in court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.
30. It has also been argued by learned Counsel for the appellants regarding Gajendra and Rajendra accused persons that they were not present at the time of the incident. That on the date of the incident both were employees of ARTO office Mathura and Agra. Makhan Singh D.W. 2 and S.C. Shiv Hare Deputy Transport Commissioner Agra D.W. 3, Banwari Lai D.W. 4 have been produced to prove that these accused persons remained on their duties from 7.00 am to 8.00 pm on 27.7.91 and these witnesses are the public servant. There is no question of these witnesses telling a lie in order to support the accused persons. It is a fact that these accused persons were the employees of ARTO Mathura and Agra at the time of the incident. Evidence has been produced to this effect that they remained on duty from 7.00 am to 8.00 pm. Incident took place at about 5.30 pm. Sri S.C. Shiv Hare was ARTO Enforcement Mathura in the year 1991 and he stated that Rajendra Singh accused was posted as constable with him at the relevant time. That on 27.7.91 he discharged the duty of checking of vehicles of Mathura Agra road from 7 a.m to 10.00 a.m. Four vehicles were challaned and three vehicles were detained and afterwards from 10am to 8.00 pm he remained busy in the duty of Transport Minister and other officers of the Transport department along with his employees including the accused. It may be expected that this witness along with the accused and other employees of Transport department conducted checking of the vehicles up to 10.00 am. But afterwards there is no such evidence from which the presence of this witness on the spot can be ruled out. There is only oral statement of the witness to show that up to 8.00 pm accused also remained with him in connection of some meeting and programme of Transport Minister and other officers. If it may be presumed that up to 10.00 a.m. this witness remained with ARTO in the checking of the vehicles then it cannot be presumed that after 10.00 am also he remained with ARTO up to 8.00 pm. After 10 am there was no reason and possibility of the presence of this witness with the ARTO in connection of the programme of the Transport Minister. There is every possibility after 10 am the accused remained either in the ARTO office or some where else. He committed the offence of murder along with other co-accused persons at 5.30 p.m.
31. Banwari Lal D.W. 4 stated that on 27.7.91 he was posted as constable in the office of ARTO Enforcement Mathura. On that date he discharged his duty with ARTO along with accused and other employees from 7.00 am up to 10 pm in the checking of the vehicles at Agra-Mathura road and thereafter from 10.00 am to 8.00 p.m. remained busy in the programme of Transport Minister. But the oral statement of this witness is also not reliable. Hence on the basis of the reasons mentioned above we are of the opinion that the accused Rajendra Singh and Gajendra Singh utterly failed to prove the plea of alibi to the effect that they were not present on the spot at the time of the incident.
32. From the statement of Puran Singh, Vijai Singh and Dilip Singh it has been established that on 27.7.91 they along with Preetam Singh and other went at Mathura Court in connection of a murder case and while they were returning on scooter and motor "cycle the accused persons over took the scooter of Vijai Singh and Preetam Singh and opened fire on Vijai Singh and Preetam Singh in order to kill them. That the accused persons Committed the murder of Preetam Singh in a pre-planned manner and also caused fatal injuries to Vijai Singh. In our opinion the statement of the witnesses are worth reliable. Their statements cannot be disbelieved due to certain contractions and improbabilities as pointed out by the appellants counsel. Moreover, Vijai Singh is an injured witness and his presence cannot be disbelieved on the spot and minor contradictions are not material.
For the reasons mentioned above, we are of the opinion that the prosecution proved the guilt of the accused persons beyond reasonable doubt. All the appellants on 27.7.91 at about 5.30 p.m. Committed the murder of Preetam Singh while they were returning from Mathura District Court after attending the court in a murder case near village Diwana. Vijai Singh sustained serious fire arm injuries. There is no reason of false implication of accused persons. There is no merit in the appeal and the same is liable to be dismissed.
33. The appeal are dismissed. The conviction and sentence recorded by the Addl. Sessions Judge Mathura is confirmed. The accused persons shall be confined in the imprisonment to serve the sentence awarded to them by the Sessions Judge. The C.J.M. Mathura shall ensure the compliance of the Judgment and order of the Sessions Judge if they are on bail their bail bonds are cancelled.