Hakim Singh vs State Of Madhya Pradesh

This appeal has been preferred by the accused persons under Section 374 of the CrPC being aggrieved by the judgment of conviction dated 1.9.2005

passed by the Fifth Additional Sessions Judge (Fast Track Court) Morena in Sessions Trial No. 25/1995, whereby each of the appellants was

convicted under Section 302 of the IPC and sentenced to life imprisonment with a fine of Rs.500/- with default stipulation and appellant No.1Hakim

Singh has been additionally convicted under Section 25(1)(a) of the Arms Act and sentenced to one year RI and it is directed that appellant No.1-

Hakim Singh's both jail sentences to run concurrently.

Undisputedly complainant Ramprakash (PW-3), his father Gambhir Singh (PW-4) and his cousin brother Hari Singh (PW-5) are residents of

village Kisrolee and deceased Mahavir was also brother of complainant Ramprakash and similarly acquitted accused persons by the trial Court,

Ramkhiladi, Rameshwar and present appellant No.1-Hakim Singh are real brothers.

Prosecution's case in brief is that complainant Ramprakash (PW-3) on 27.11.1994 at 14=30 hours reached Police Station Ambah that dead body

of deceased Mahavir and lodged FIR (Ex.P/7) to the effect that about two months ago above mentioned Ramkhiladi gave beating to small children

Manish and Keshav of complainant's family and on this issue verbal altercation occurred between complainant and Ramkhiladi. On the date of

incident 27.11.1994 in the morning at about 8=30, complainant's brother Mahavir was coming after taking water from the well and at the same time

complainant Ramprakash was returning to the village after answering the call of nature, then near a school, Hakim Singh having a single barrel 12

bore gun and Vakeel Singh having a mouser gun, and each of Ramkhiladi, Rameshwar and Rampat having separate stick came there and all the

above-mentioned accused persons encircled Mahavir near the school then Ramkhiladi @ Khiladi struck by his stick over earthen pot of water carried

by Mahavir thereby earthen pot got broken after falling on earth. Mahavir started running but Hakim Singh, Vakeel Singh, Khiladi, Rameshwar and

Rampat chased him and encircled Mahavir again. Complainant cried that Mahavir is being killed and after hearing his cry, his cousin brother Hari

Singh (PW-5) and father Gambhir Singh (PW-4) also reached on the scene of occurrence. Thereafter each of Rampat and Ramkhiladi @ Khiladi

gave beating to complainant Ramprakash by their sticks which caused injuries on his left shoulder, on little finger of right hand and back side of skull

and complainant fell down. Hakim Singh fired by his single barrel 12 bore gun over Mahavir with intention to kill him which caused injury on left jaw

of Mahavir and blood was oozing out and Mahavir fell down. Then Vakeel Singh fired from his mouser gun, which caused gun shot over Mahavir's

neck and Mahavir immediately died. Thereafter Hakim Singh, Vakeel Singh and their companions Rampat, Rameshwar and Khiladi fled away

towards 'behad' and one air-fire was made by Hakim Singh after reaching the place of Siddha Baba and all the above-mentioned five persons fled

away after the incident. Thereafter, with the help of Phool Singh, Gambhir, Rajkumar, Hari Singh and others dead body of Mahavir was kept on a cot

and complainant with dead body and other above-mentioned persons reached the police station Ambah and lodged FIR, which was scribed by Town

Inspector V.S.Jadon.

On 27.11.1994 after issuing safina form (Ex.P/9) in presence of panch witnesses and after inspecting the dead body, inquest memo (Ex.P/10) was

prepared by Investigating Officer V.S.Jadon and the dead body of Mahavir was sent to hospital for post-mortem and complainant Ramprakash was

also sent to Civil Hospital, Ambah for his medical examination. At Ambah Hospital Dr. R.G.Verma on the same day examined complainant

Ramprakash and recorded his MLC (Ex.P/2). On same day Dr. R.G.Verma (PW-1) at 4=00 pm started postmortem of deceased Mahavir, about 30

years old, and recorded post-mortem report (Ex.P/4). Investigating Officer V.S.Jadon on 27.11.1994 at 20=30 hours prepared spot map (Ex.P/8) and

thereafter from spot seized a blood-stained white dhoti, blood-stained soil, separately plain soil and pieces of broken earthen pot vide seizure memo

(Ex.P/12). On 30.11.1994 complainant Ramprakash's x-ray examination was conducted at District Hospital, Morena and fracture of his first phalanx

of little finger of right hand was found and Dr. Yogendra Singh (PW-6) recorded relating x-ray report (Ex.P/28).

During investigation both present appellants and their companions Rampat, Ramkhiladi and Rameshwar were arrested on 21.12.1994 from the

tube-well of Hotam Gurjar (DW-1) situated in village Jalalpura, falling under Police Station Mania (Rajasthan) by separate arrest memos and during

investigation from appellant Hakim Singh, a 12 bore single barrel gun was seized vide seizure memo (Ex.P/23) and from appellant Vakeel Singh a

mouser gun was seized vide seizure memo (Ex.P/24). On 22.12.1994 from Vakeel Singh, his arms licence with two live cartridges of 306 bore was

seized vide seizure memo (Ex.P/18) and on same day from Hakim Singh, two live cartridges of 12 bore and an arm licence relating to a 12 bore

single barrel gun issued in favour of acquitted accused Rameshwar were seized vide seizure memo (Ex.P/19). For Hakim Singh's prosecution under

relating offence punishable under the Arms Act, sanction (Ex.P/6) of District Magistrate Morena was obtained. The seized material were sent to

FSL Sagar with a letter signed by Superintendent of Police, Morena. Later on, FSL Sagar's report (Ex.P/5) was received. After completing

formalities of the investigation, charge sheet was filed before JMFC Ambah, who committed the arisen criminal case to Sessions Court Morena, who

transferred the relating sessions trial to above-mentioned trial Court.

Trial Court framed charges against appellant No.1Hakim Singh for the offences punishable under Sections 148, 302, 325/149 of the IPC and

Section 25 of the Arms Act, and appellant No.2-Vakeel Singh was charged under Sections 148, 302, 325/149 of the IPC and it framed charges

against each of the other tried accused persons Rampat, Khiladi Singh and Rameshwar for the offences punishable under Sections 148, 325 and

302/149 of the IPC. Each of the tried accused persons abjured the guilt and claimed to be tried. The prosecution in order to bring home the guilt,

examined seven prosecution witnesses.

It was the defence of tried accused persons that they have been falsely implicated. It would be significant to mention here that the present

appellant No.2-Vakeel Singh did not take plea of alibi under his examination conducted by trial Court under Section 313 of the CrPC, but his brother-

in-law Hotam Singh (DW-1) was examined on this point. The trial Court after hearing acquitted two tried accused persons Ramkhiladi @ Khiladi

Singh and Rameshwar from all of the charges framed against them and it convicted and sentenced another tried accused Rampat Singh only for the

charged offence punishable under Section 325 of the IPC in relation to complainant and sentenced to the period already undergone (15 months) by

him with fine of Rs.1000/- but Rampat Singh was also acquitted from the other framed charges. It appears that no appeal was filed by Rampat

against his aforesaid conviction. Each of the present appellants was also acquitted from the charge of Sections 148 and 325/149 of the IPC but each

present appellant was convicted and sentenced under other charged offences as aforesaid.

Appearing counsel for the appellants vehemently contended that according to the medical evidence of relating doctor, who conducted post-

mortem, only one gun-shot entrance wound was found on neck of the deceased, but according to the evidence of alleged eyewitnesses, each of the

present appellant inflicted gunshot wound on Mahavir. Therefore, it is argued that in this case there were substantial contradictions between eye-

witness account given by close relative of the deceased and medical evidence. It is also argued that the compliance of Section 157 of the CrPC

regarding sending of copy of the FIR to relating JMFC was not proved by the prosecution, therefore, FIR (Ex.P/7) and prosecution's case was highly

suspicious. It is also contended that the Investigating Officer V.S.Jadon could not be examined by the prosecution, hence the appellants were

substantially prejudiced in establishing their defence. Therefore, it is prayed that the appeal filed on behalf of both the appellants be allowed and each

appellant be acquitted from the relating offences.

Per Contra, above-mentioned prayer has been strongly opposed by the Public Prosecutor appearing for the respondent/State on grounds that the

trial Court in light of so many referred citations has properly and legally analyzed and appreciated the entire evidence available on record and

according to medical evidence, on jaw of the deceased a through and through injury was found, which was in accordance with the prosecution's case

and eye-witness account given by relating eyewitnesses and Investigating Officer V.S.Jadon could not be examined before the trial Court, due to his

death but for proving Investigating Officer's signature, the prosecution examined police official witness Kaptan Tyagi (PW-7), who proved the

signatures of Late V.S. Jadon on relating exhibits and it was proved that in same incident complainant Ramprakash (PW-3) received one grievous

and some other injuries caused by companion of the present appellants, namely, Rampat Singh. Therefore, the presence of complainant Ramprakash

at the scene of occurrence could not be doubted and his evidence is also corroborated by his prompt FIR (Ex.P/7).

Therefore, dismissal of the appeal is prayed for.

It is clear from the evidence of Dr. R.G.Verma (PW1) and his post-mortem report (Ex.P/4) that on 27.11.1994 at Civil Hospital, Ambah at 4=00

pm at the time of starting of post-mortem he found following antimortem injuries on dead body of the deceased :-

(i) Gun-shot wound (entry wound), size 2.5x2 cm over anterior aspect of upper part of neck at thyroid cartilage, just lateral to midline, whose edges

were inverted, clotted blood and collar of abrasion was present but no blackening, charring and scorching was seen over this entry wound and

direction of this wound was little downward and posteriorly on right side and beneath it skin, muscles, blood-vessels and thyroid gland, cartilage,

trachea and oesophagus were badly lacerated;

(ii) Gun-shot (exit) wound, size 7.5x4 cm over right lateral side of neck placed obliquely, its edges were irregular and everted and relating skin,

muscles, bloodvessels and other structures were lacerated;

(iii) Lacerated wound, size 1.4x1.2x0.5 cm over anterior aspect of right shoulder joint, just below acromial end of right clavicle, whose edges were

irregular, clotted blood was present;

(iv) Lacerated wound, size 2.0x1.2 cmover left half of lower lip and this wound was through and through, whose margins were irregular and clotted

blood was present and beneath it mucous membrane of gun at base of premolar tooth was lacerated;

Dr. R.G.Verma (PW-1) deposed that on dissection of the dead body, despite already mentioned internal injuries, relating blood-vessels, trachea,

oesophagus were ruptured beneath the above mentioned injuries No. (i) and (ii) and second and third cervical vertibrae were fractured and spinal

cord was also lacerated. Dr. Verma opined that deceased had died because of coma arisen due to extensive bleeding and Mahavir had died within 6

to 24 hours from the starting of his post-mortem and all external and internal injuries were anti-mortem and Mahavir's death was homicidal.

Dr. R.G.Verma (PW-1) deposed that at the time of starting of post-mortem, rigor mortis was found present, which generally develop completely

within 12 to 24 hours and he started post-mortem at 4=00 pm. Giving much emphasis on above-mentioned facts regarding rigor mortis, it has been

argued on behalf of appellants that Mahavir might have died at about 4=00 am of relating date which makes the eye-witness account regarding

happening of the incident at 8=30 am doubtful, but it is well settled that deposition or evidence given by eye-witnesses should be read over as a

whole. In para 17, Dr. Verma has also deposed that in winter season rigor mortis could be developed earlier and in winter season and in summer

season the difference might be up to six hours and post-mortem of Mahavir was conducted by him on 27.11.1994, which falls in winter season. It is

to be remembered that Dr. R.G.Verma also medically examined complainant Ramprakash (PW-3) on same day and recorded MLC (Ex.P/2).

According to the evidence of Dr. R.G.Verma and his MLC (Ex.P/2), on the date of incident he found following injuries on the person of

complainant Ramprakash (PW-3) :-

(i) Swelling, size 8x4 cm over posteriolateral aspect of lower part of left forearm, where moments were restricted and its colour was reddish blue and

x-ray examination was advised for this injury;

(ii) Swelling, size 10x5x5 cm over posterior aspect of left shoulder joint, reddish blue in colour, moments are restricted and painful and for this injury

also x-ray examination was advised;

(iii) Swelling, size 5x1.5 cm over proximal part and base of little finger of right hand, where moments were restricted and it was also reddish blue in

colour and for this injury x-ray examination was deposed;

(iv) Swelling, size 5x4.5 cm over left side of occipital region of scalp, reddish blue in colour and this injury was simple in nature.

Dr. R.G.Verma (PW-1) opined that all these injuries found on person of complainant Ramprakash were caused by hard and blunt object within

12 hours from his examination.

It is clear from the evidence of Dr. Yogendra Singh (PW-6) and his x-ray report (Ex.P/28) that on reference of Medical Officer of Civil Hospital

Ambah, complainant Ram Prakash's radiological examination was conducted at District Hospital, Morena on 30.11.1994 and on little finger of right

hand's proximal phalanx fracture was found but no fracture was found in left forearm and left shoulder. Therefore, it is clear from the total medical

evidence available on record that in total four injuries were caused to complainant Ram Prakash (PW-3) including one grievous injury. It could not be

imagined that only to become an eye-witness, any person would invite such injury including a fracture on body by any helping hand. Complainant

Ram Prakash's evidence is substantially corroborated by his prompt FIR (Ex.P/7) and also by the eye-witness account given by his cousin brother

Hari Singh (PW-5) and Gambhir Singh (PW-4) father of the complainant.

Complainant Ramprakash (PW-3) admitted in his cross-examination (para 20) that his son Betal died due to tractor being turtled at the time of

'Bidai Ceremony' during the occasion of marriage of appellant Vakeel Singh's son near Agra (UP), but he clearly denied the suggestion given by

defence counsel in crossexamination that due to accidental death of his son during the marriage of appellant Vakeel Singh's son, he was having

enmity with appellant Vakeel Singh, but he admitted that complainant's family was not on talking terms with the family of accused persons after the

incident of giving beating by acquitted accused Ramkhiladi @ Khiladi to some children of complainant's family as Khiladi Singh has slept over small

children. It is clear from the evidence of Gambhir Singh (PW-4) that the above-mentioned accident of complainant's son was occurred four years

ago and even after this incident complainant's family were on visiting terms with the family of appellant Vakeel Singh.

Much emphasis has been given by appellants' counsel that only close relatives of the deceased have been examined as eye-witnesses and no

independent witness was examined, but it is well settled that the reliability of evidence of witnesses could not be affected by relationship, as a relative

witness would not falsely implicate any innocent person, leaving the real culprit.

It is true that Dr. R.G.Verma (PW-1) has not opined that injury found on lower lip of deceased Mahavir was caused by gun-shot, but all the three

eye-witnesses clearly deposed that injury on Mahavir's jaw was caused by gun-shot fired by appellant No.1-Hakim Singh by his 12 bore gun. It is to

be remembered that Dr. R.G. Verma (PW-1) has deposed and recorded in post-mortem report (Ex.P/4) that the lacerated wound on lower lip of

deceased was a through and through injury and even it caused laceration over mucous membrane of gum situated at the base of premolar tooth.

Such through and through injury could be caused by any pellet scattered after a gun-shot fired by a 12 bore gun. Only because Dr. R.G.Verma (PW-

1) considered this injury found on left side of lower lip of Mahavir to be lacerated wound, the evidence of eye-witnesses could not be discarded.

Learned counsel for the appellants, on this point have placed reliance on the cases of Ramnarayan vs. State of Punjab { 1975 CrLJ 1500 (SC);

State of Madhya Pradesh vs. Bhagwan Das [2002 (1) MPWN 153], but the fact and circumstances of the case in hand are easily distinguishable

from the above-mentioned cases. As deposed by above-mentioned three eyewitnesses Ramprakash (PW-3), Gambhir Singh (PW-4) and Hari Singh

(PW-5), above-mentioned injury has been found on lower lip, therefore, the evidence of eyewitnesses that first injury from gunshot was received by

Mahavir on his jaw could not be termed as totally contradicted by medical evidence, rather medical evidence impliedly corroborates the evidence

given by eye-witnesses that first injury was received by Mahavir on his jaw. It has been observed by the Apex Court in the case of Baso Prasad and

others vs. State of Bihar [AIR 2007 SC 1019] that possibility of some mistake in the post-mortem report could not be ruled out. It is clear from the

evidence of Dr. R.G.Verma (PW-1) and his postmortem report (Ex.P/4) that he had not given any positive opinion regarding nature of injuries No.

(iii) and (iv) wherein above-mentioned injury No.(iv) was found on left side of lower lip. Regarding such inconclusive medical evidence, it has been

observed by the Apex Court in the case of Bharat Singh vs. State of U.P. [AIR 1999 SC 717] as follows:

“But in the absence of any positive opinion from the doctor and in the absence of the exact distance from which the accused persons started

shooting at the deceased, it is not possible to accept this contention of the learned counsel for the appellants.â€​

In resembling facts and circumstances, it has been observed by the Apex Court in para 8 of the judgment in the case of Rachhpal Singh vs. State

of Punjab [AIR 2002 SC 2710] as follows:-

“8. A perusal of the evidence of the doctor shows that there is some discrepancy in his evidence in regard to the nature of the injury on the

deceased as to whether the edges of the wound were averted or inverted but this, in our opinion, is not fatal to the case of the prosecution. The

doctor while admitting that there was some such confusion in his evidence as well as the post-mortem report, in our opinion, has clarified the said

position during the course of his examination, though belatedly. From the very nature of the wounds found on the body of the deceased, it is clear that

they died of gunshot injuries which is not seriously disputed. What is being disputed by the learned counsel is the points of entry and exit which on

facts of this case, would make a very little difference since the other evidence adduced by the prosecution clearly shows that the deceased died out

of gunshot injuries.

Some discrepancy as to the nature of entry and exit on facts of this case would not make the prosecution case any weaker.â€​

In the light of the above mentioned citations, the argument advanced by the learned counsel for the appellants that there is contradiction between

ocular and medical evidence regarding above-mentioned injury found on the lower lip of the deceased, could not be accepted.

Despite being a relative of the deceased, complainant Ramprakash received a grievous injury and three other simple injuries in the same incident,

hence his presence and evidence could not be doubted on imaginary grounds. In this reference, case of Thaman Kumar vs. State of Union Territory

of Chandigarh [(2003) 6 SCC 380] is referable.

Much emphasis has been given by learned counsel for the appellants as it is mentioned in FIR that after receiving first injury Mahavir fell down,

whereas Hari Singh (PW-5) in para 19 deposed that Mahavir fell down after receiving second gunshot. Similarly, complainant Ramprakash deposed

in para 29 that till arrival of his father Gambhir Singh and cousin brother Hari Singh on the scene of occurrence, first shot from gun has been fired

from gun whereas his father and cousin brother deposed that they saw both the appellants firing from their guns. It is clear from the total evidence of

complainant Ramprakash (PW-3) and his FIR (Ex.P/7) that in the sequence of events, firstly his brother Mahavir was encircled and when Mahavir

started running, thereafter complainant was beaten by sticks and in reference to complainant's injuries, the trial Court convicted and sentenced

Rampat Singh under Section 325 of the IPC. At the scene of occurrence, where complainant was beaten by companion of present appellants and

simultaneously gun shots were being fired by appellants over his brother Mahavir, in such factual scenario, such trivial contradictions do not appear to

be material. Gambhir Singh (PW-4) deposed that appellant Vakeel Singh fired from his mouser gun whereas Hari Singh (PW-5) deposed that

appellant Vakeel Singh fired from his pachphera gun. Such variance or difference also does not appear material.

Similarly, in spot map (Ex.P/8) prepared by Investigating Officer Late V.S.Jadon, the place is not shown wherefrom appellant Vakeel Singh fired

from his gun, whereas in spot map (Ex.P/8) the place is shown wherefrom Hakim Singh fired from his gun. However, in the light of the case of State

of Punjab vs. Gurmit Singh and others [AIR 1996 SC 1393]; Krishnegowda vs. State of Karnataka (AIR 2017 SC 1657), and Sudha Renukaiah vs.

State of A.P. (AIR 2017 SC 2124), it is clear that on the basis of such negligence or carelessness of Investigating Officer the evidence of other

reliable eye-witnesses could not be discarded. Similarly, it might be possible that from same place both the appellants have fired on Mahavir. Dr.

R.G. Verma (PW-1) in his cross-examination (para 15) has clearly opined that both gunshot wounds found by him over neck of the deceased

Mahavir might be caused by a mouser gun. This medical evidence also provides additional reliability to the eye-witness account given by these

above-mentioned three prosecution's eyewitnesses relating to the role of appellant No.2-Vakeel Singh. Thus, the eye-witness account given by these

three eye-witnesses was appearing truthful and believable and it is inspiring confidence.

Regarding circumstantial evidence in shape of recovery of weapons, it is apparent that seized Investigating Officer Late V.S.Jadon could not be

examined before the trial Court due to his death, but the panch witness of relating disclosure statements of appellants and relating seizure memos,

Hari Singh (PW5) has clearly deposed that about 20-22 days after the incident, when he reached Police Station for getting information, then

appellants were present there and in his presence appellant No.1-Hakim Singh disclosed to the Investigating Officer that a gun is kept at the house of

father-in-law of Vakeel Singh, whereas arm licence and cartridges are kept in a box at his house situated at Kisrolee and similarly in his presence, in

interrogation appellant Vakeel Singh intimated to Investigating Officer that a gun has been kept by him in the house of Hotam Singh situated at

Jalalpura (Rajasthan), whereas his arm licence and cartridges are kept in his residential house of village Kisrolee. Hari Singh proved his signatures on

appellant Hakim Singh's memorandum (Ex.P/13) and Vakeel Singh's memorandum (Ex.P/14). It appears from perusal of Exts. P/13 and P/14 that

both of them were prepared at Police Station Ambah. Hari Singh also deposed that thereafter with Investigating Officer and both appellants he

reached Kutharan Ka Pura, District Dholpur (Rajasthan) where from the house of brother-inlaw of Vakeel Singh, a 12 bore single barrel gun was

seized by Investigating Officer on production of appellant No.1-Hakim Singh vide seizure memo (Ex.P/23) and from the same house of Hotam (DW-

1) on being produced by appellant No.2- Vakeel Singh a mouser gun was seized by the Investigating Officer vide seizure memo (Ex.P/24). Hari

Singh (PW-5) also proved hi.s signatures on both of these seizure memos and separate seizure memos (Ex. P/19 and Ex.P/18) prepared in village

Kisrolee from the appellant No.1-Hakim Sigh and appellant No.2-Vakeel Singh's residential houses wherefrom arms licences issued in favour of

acquitted accused Rameshwar and arm licence issued in favour of appellant No.2-Vakeel Singh were recovered and seized respectively. Therefore,

it is clear that though Investigating Officer V.S.Jadon could not be examined due to his death, but the examined panch witness Hari Singh (PW-5)

has proved the relating seizures of separate guns and separate licences relating to used firearms. It is clear from FSL Sagar's report (Ex.P/5) that

both the seized 12 bore single barrel gun and .30' â€" 06 rifle were found in working condition.

It is significant to mention here that it is also clear from the FSL Sagar's report (Ex.P/5) that on examination of deceased's kurta and white colour

vest (baniyan), each was having stains like blood and on the right outer side near collar of kurta with tearing of cloth, a hole was found on kurta of

size 0.3'x0.6' and similarly on baniyan on upper right side near the neck region, a hole of size 0.3'x0.7' was found and on chemical examination on

margins of each of these holes found of different clothes (vest and kurta) the tests for lead and copper metals were found positive and it is also

reported in Ex.P/5 that each of these holes found on kurta and vest were the bullet holes appearing to be caused by copper jacketed bullet, which

might have been fired from rifle, which was sent for examination. In our opinion, the holes found on deceased's kurta and vest (baniyan) might have

been caused by pellets spread from the shot fired by appellant No.1-Hakim Singh by his 12 bore gun. The FSL report also provides corroboration to

the role of appellant No.2Vakeel Singh in the incident. Dr. R.G. Verma (PW-1) deposed that at the time of post-mortem, the clothes found on the

dead body of Mahavir, an underwear, shirt and vest (baniyan) which were blood-stained were sealed by him in a packet and were sent to relating

police station through constable.

Much emphasis has been given by appellants' counsel on alleged non-compliance of provision of Section 157 of the CrPC regarding sending of

copy of the FIR to the relating JMFC. But, it is clear from the FIR (Ex.P/7) that it was recorded at 14=30 hours and thereafter after issuing safina

form and inspecting the dead body in presence of panch witness, inquest memo (Ex.P/10) was prepared by Investigating Officer and thereafter dead

body was sent for post-mortem to Ambah Hospital. It is clear from the different handwritten entries made by Dr. R.G.Verma in printed columns

with some blank places that the dead body was received at 4=00 pm on the date of incident in the relating hospital and in the night, on the date of

incident at 20=30 hours spot map (Ex.P/8) and thereafter on same date seizure memo (Ex.P/12) was prepared by Investigating Officer. In the light

of cases of Shiv Ram vs. State of U.P. [(1998) 1 SCC 149, and, Madru Singh vs. State of M.P. [AIR 1997 SC 3527], it is clear that where

investigation had started soon after the registration of F.I.R., mere delay in sending copy of the F.I.R. to the Magistrate would not demolish the other

positive and credible evidence on record of the case.

Much emphasis has been given by the appellants' counsel on the fact of non-examination of Investigating Officer V.S.Jadon before the trial

Court but the reason of non-examination of Investigating Officer V.S.Jadon is proved by the evidence of police official witness Kaptan Tyagi (PW-

7) and Late V.S. Jadon's signatures on FIR (Ex.P/7), spot map (Ex.P/8), seizure memo (Ex.P/29 and on various arrest memos (Exts. P/30 to P/34)

were proved by Kaptan Tyagi (PW-7). There were no material contradictions and omissions between the evidence given by the eye-witnesses and

their relating police statements. Therefore, in the light of the citations of the cases of State of Karnataka vs. Bhaskar Kusli Kodharkar and others

[(2004) 7 SCC 487; and, Bihari Prasad vs. State of Bihar [(1996) 2 SCC 317], above-mentioned argument raised by appellants' counsel is also

appearing devoid of any substance.

As observed earlier, though plea of alibi was not specifically raised by appellant No.2-Vakeel Singh in his examination conducted by trial Court

under Section 313 of the CrPC, but appellant No.2-Vakeel Singh's brotherin-law Hotam Singh (DW-1), resident of village Jalalpura, District Dholpur

(Rajasthan) deposed that Vakeel Singh is brother of his wife and about 10 years ago after Dipawali festival when his wife was ill, then Vakeel Singh

came to his house and stayed for a period of twenty-five days at his house and during this period in widely circulated newspaper a news item relating

to involvement of Vakeel Singh in a murder case was published, thereafter about twenty-five days later he produced Vakeel Singh at Ambah (MP)

Police Station, but his evidence appears to be totally unnatural and unbelievable as appellant No.2-Vakeel Singh has not raised his plea of alibi. On

the other hand, it is proved from the above-mentioned exhibited arrest memos proved by Hari Singh (PW-5) that both the appellants and three co-

accused persons tried with them before the trial Court were arrested on 21.12.1994 at abovementioned defence witness's tube-well situated in village

Jalalpura and separately two guns were also seized on different disclosure statement of each of the appellants from Hotam's house or its parts.

The incident occurred on 27.11.1994 whereas both the appellants and other co-accused persons were arrested on 21.12.1994. It is the evidence

of all the eyewitnesses that after the incident both the present appellants and their companions have fled away from their village and they could be

arrested after a period of more than twenty days. Therefore, the conduct of present appellants of leaving their residential houses for a continuous

period of 20 days and their arrest from out of the State of M.P. indicates that both the appellants have left their residential houses to prevent their

timely arrest. Therefore, in the light of Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delh) [(2010) 6 SCC 1], the above-mentioned proved

conduct of both the appellants also provides an additional circumstance against the present appellants.

In Charandas Swami vs. State of Gujarat and others [2017 (3) M.P.L.J. (Cri.)(S.C.) 353] in relation to conduct of accused in reference to

Section 8 of the Evidence Act, following excerption from the case of Vasanta Sampat Dupare vs. State of Maharashtra [(2015) 1 SCC 253] has

been taken, which reads thus:-

“28. Additionally, another aspect can also be taken note of. The fact that the appellant had led the police officer to find out the spot where the

crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his

conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90] wherein the Court

after referring to the decision in H.P. Admn. v. Om Prakash [(1972) 1 SCC 249] held thus: (Prakash Chand case, SCC p. 95, para 8).

“8. ... There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the

Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an

investigation which is hit by Section 162 of the Criminal Procedure Code. What is excluded by Section 162 of the Criminal Procedure Code is the

statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to

a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstance,

simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the

commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any

statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.â€​

In A.N. Venkatesh v. State of Karnataka it has been ruled that: [(2005) 7 SCC 714, para 9)

“9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any

fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the

dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8

irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview

of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the

appellants-accused (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of

the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place

where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a

place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible

under Section 8 of the Evidence Act.â€​

Keshav Singh (PW-2), who was working as Arms Clerk in the office of District Magistrate, Morena at the relevant time, has proved signatures

of the-then District Magistrate Morena on the sanction order (Ex.P/6) and though it is proved that the licence holder of seized 12 bore gun was

Rameshwar, resident of Madhya Pradesh, but it was seized from the possession of appellant No.1Hakim Singh on 22.12.1994 in the State of

Rajasthan and as Hakim Singh was not having any arms licence, therefore, his conviction recorded by trial Court under Section 25(1)(a) of the Arms

Act, also appears to be justified.

We are of the considered opinion that the trial Court has meticulously and legally analyzed and appreciated the entire evidence available on

record in the light of referred citations and did not err in convicting and sentencing the appellants for the relating offences. The appellants' appeal

appears to be totally devoid of any substance.

Consequently, the appeal filed by the appellants against their above mentioned conviction and sentence as recorded by the trial Court is dismissed

and their conviction and sentence are affirmed. Appellant No.1Hakim Singh is in jail. He be intimated with the result of this appeal through the

relating Jail Superintendent. Appellant No.2-Vakeel Singh is on bail after suspending his sentence by this Court. He is directed to immediately

surrender before the trial Court to serve out his remaining jail sentence. The order of the trial Court in relation to seized fire arms and other material

is also affirmed.

With a copy of the judgment, record of the trial Court be immediately sent back.