Kalyan Singh & Ors vs State Of Madhya Pradesh

Ashok Kumar Joshi,J.:

By this common judgment being passed in Criminal Appeal No.349/2000, another pending Criminal Appeal No. 360/2000 is also being decided as both

of them have arisen out of the judgment dated 1st May, 2000, passed by First Additional Sessions Judge, Dabra, District Gwalior in Sessions Trial No.

70/1995, whereby each of the appellants of both these appeals has been convicted under Section 302/149 of IPC and sentenced to life imprisonment

with fine of Rs.1000/- with default stipulation; under Section 325/149 of the IPC to undergo two years RI; under Section 323/149 of the IPC to

undergo six months RI; under Section 147 of the IPC to undergo one year RI; and, under Section 148 of the IPC to undergo 1-1/2 years RI, and it was

also directed that all the jail sentences of each appellant shall run concurrently.

It would be significant to mention here that original appellant No.2-Mulua S/o Girvar Singh of Criminal Appeal No. 360/2000, who was father of

appellant Veerendra and was also convicted and sentenced like other appellants, died during pendency of relating criminal appeal, hence the appeal

stood abated in reference to Mulua and his name has been deleted from the array of appellants.

Undisputedly, complainant Kesharbai (PW-1) is the wife of deceased Maujilal and Rajbahadur (PW-2) is their son and Bhuribai (PW-3) is sister-in-

law (Jethani) of the complainant and admittedly there was enmity between families of complainant and appellants due to panchayat elections.

Prosecution's case in brief is that on the date of incident, i.e., 14.10.1994 on the day of festival of Vijaya Dashmi @ Dashahara, complainant

Kesharbai (PW-1) lodged FIR at 13=30 hours at Police Station Belgadha to the effect that on same day she with her husband Maujilal, son

Rajbahadur (PW-2) and sister-in-law Bhuribai (PW-3) had gone to their field for uprooting the crop of groundnut and at about 12=30 pm all of them

were seated on boundary (maidh) of their field, then from adjoining Pannalal's field all the appellants with above mentioned Mulua came on their maidh

and encircled her husband and started beating to kill him. At that time, appellants Mahendra Singh, Devi Singh and Kalyan Singh, each was having a

separate gun and Mulua and other appellants were armed with farsas, axes and sticks. Firstly Mulua inflicted an injury on Maujilal's back side of head

from his farsa and when her husband tried to stand up then appellant Ranveer caused injury on Maujilal's left arm with his axe and appellant

Brijmohan caused injury with his axe on left leg of her husband and when her husband started running towards adjoining Ramdayal's field then

appellants Devi Singh, Mahendra Singh and Kalyan Singh instigated other appellants that Maujilal should not escape today and all appellants with

Mulua chased and let him fall in Ramdayal's field, thereafter appellant Veerendra with axe, Laxman with farsa, Kammod, Kallu, Dhirendra with their

sticks and three appellants Devi Singh, Mahendra Singh and Kalyan Singh each by butt of their guns caused injuries to her husband on all over body

and blood was oozing out from Maujilal's wounds. When complainant and her sister-in-law Bhuribai tried to save Maujilal, then Dhirendra with stick

and Brijmohan with axe caused injuries to complainant and Kammod let her fall down and thereafter appellant Dhirendra inflicted injury to Bhuribai

with his stick (lathi) and on their shouting, Ravindra Singh (PW-4) and Sunman Singh, who were grazing their cattle nearby came on spot, then

appellants and Mulua presuming Maujilal dead fled away towards village Belgadha. The appellants and Mulua were having enmity due to previous

panchayat elections. Leaving her injured husband in relating field, complainant Kesharbai reached the police station Belgadha with her son Rajbahadur

and Rajendra Singh and lodged FIR (Ex.D/1), which was scribed by the-then SHO J.P.Dangi (PW-7).

After recording FIR (Ex.D/1), J.P.Dangi (PW-7) reached on spot and prepared spot map (Ex.D/3) and inspected injured Maujilal, who was lying in

Ramdayal's field. Looking to his serious condition, J.P.Dangi recorded Maujilal's police statement (Ex.P/17) on spot and seriously injured Maujilal,

complainant Kesharbai and Bhuribai were sent to Community Health Centre (CHC) Bhitarwar but in the way before reaching to hospital, Maujilal

succumbed to the injuries. From scene of occurrence bloodstained soil and some shoes were seized vide seizure memo (Ex.P/7); later on merg report

was lodged and above mentioned Investigation Officer prepared Inquest Memo (Ex.P/1). On the date of incident itself, Dr. R.Vimlesh (PW-6)

examined complainant Kesharbai and Bhuribai and recorded their MLCs, Ex.P/9 and P/8, respectively. He advised x-ray examination of some injuries

of both these injured ladies. On 15.10.1994 Dr. R.Vimlesh (PW-6) at 8.00 am started post-mortem of deceased Maujilal and recorded post-mortem

report (Ex.P/10) and sent in a sealed packet the clothes found on dead body to concerned police station. Dr. R.G.Bala (PW-8) on 18.10.1994 at the

relating hospital of Gwalior, on x-ray examination of complainant Kesharbai found fractures of her two bones and recorded x-ray report (Ex.P/44).

During investigation appellant Mahendra was arrested vide arrest memo (Ex.P/2) and on his disclosure (Ex.P/3) a gun was seized vide seizure

memo (Ex.P/4) and after arrest of other appellants, axes were seized from appellants Ranveer, Veerendra and Brijmohan and sticks were seized from

appellants Laxman, Dhirendra, Kallu, Kammod by different seizure memos. The uprooted crop of groundnut was seized vide seizure memo (Ex.P/39)

and with letters (Exts.P/40 to P/42) seized articles were sent to relating FSL Sagar and Gwalior. During investigation, it was found that at the time of

incident appellant Mahendra Singh was having a licensed gun of arm licence holder Man Singh, hence an offence punishable under Section 30 of

Arms Act was found against Man Singh also. After completing other formalities of investigation, charge sheet was filed before relating JMFC, who

committed arisen criminal case to Sessions Judge, Gwalior, who transferred relating sessions trial to above mentioned trial Court.

The trial Court framed charges under above mentioned offence separately against each of the appellants and Mulua and charge for offence

punishable under Section 30 of the Arms Act was framed against accused No.12-Man Singh. All tried accused persons abjured their guilt. Before trial

Court, eight prosecution witnesses were examined. It was the defence of the present appellants and Mulua and Man Singh that they have been falsely

implicated due to political rivalry. Ex- MLA, Dabra, Jagannath Singh Rawat (DW-1) and appellant Devi Singh examined himself as DW-2 before the

trial Court to indicate that the three appellants Kalyan Singh, Devi Singh and Mahendra Singh of Criminal Appeal No. 349/2000 were at the relevant

time on the date of incident, at Dabra. Trial Court placing reliance on the evidence of four eye-witnesses produced by the prosecution and treating the

police statement (Ex.P/17) recorded by Investigating Officer of deceased Maujilal in his life time as dying declaration, convicted present appellants

and Mulua as aforesaid but it acquitted the tried accused No.12-Man Singh from charge of Section 30 of the Arms Act.

It has been vehemently contended by learned senior counsel appearing on behalf of the appellants in both the appeals that alleged eye-witness

Ravindra Singh (PW-4) was a relative of deceased and no any independent witness was examined by the prosecution in relation to the incident and

though it is alleged that each of the three appellants of Criminal Appeal No. 349/2000 was having separate gun, according to the prosecution's case no

shot was fired by any appellant, which shows the prosecution story unnatural. Similarly it is argued that complainant Kesharbai (PW-1) deposed that

she received some injuries by sharp cutting object, but according to medical evidence, she was having all the injuries caused by hard and blunt object,

hence it is contended that the evidence of relating injured witnesses and eye-witnesses is not corroborated by medical evidence available on record.

The alleged dying declaration (Ex.P/17) in shape of police statement recorded by the Investigator is highly criticized on grounds that it is not recorded

in dying declaration's format and recorded without getting any medical certification regarding fitness of seriously injured Maujilal and even it was not

signed by Maujilal or any other witness. Investigating Officer J.P.Dangi (PW7) admitted in his cross-examination that during investigation it was learnt

that incident had occurred due to outraging of modesty of Chimmanlal's daughter by son Rajveer Singh (PW-4) of the deceased. Hence, it is argued

that the alleged motive indicated in FIR (Ex.D/1) is highly suspicious. Similarly in absence of positive evidence regarding sending of copy of the FIR

(Ex.D/1) promptly to relating Magistrate, it is argued that the FIR is anti-time and anti-dated and has been prepared after consultation and during

investigation. Hence, it was prayed that both the appeals be allowed and each appellant of both the appeals be acquitted.

Per Contra, appearing Public Prosecutor on behalf of the respondent/State contends that the trial Court has minutely and legally analysed and

appreciated entire evidence available on record and trivial contradictions or omissions were not having much importance and as in the same incident

Kesharbai (PW-1) and her sister-in-law Bhuribai (PW-3) received grievous and simple injuries respectively and their eye-witness account was

materially corroborated by independent eye-witness Ravindra Singh (PW-4) and according to post-mortem report (Ex.P/10) deceased Maujilal was

having three incised anti-mortem wounds on his body caused by sharp cutting weapons. Hence, the argument advanced by learned senior counsel for

the appellants that eyewitness account is not corroborated by medical evidence was rightly not accepted by the trial Court and in the light of catena of

citations referred by trial Court in its judgment, it is prayed that both the appeals be dismissed.

It would be significant to mention here that due to typing mistake occurred at the time of recording of evidence of Dr. R.Vimlesh (PW-6) and

similarly in judgment, injury, injury No.(i) mentioned in post-mortem report (Ex.P/10) is mentioned as lacerated wound in deposition sheet and

judgment, but it is clear from perusal of post-mortem report (Ex.P/10) that actually injury No.(i) mentioned in post-mortem report was an incised

wound found on skull of the deceased and it appears that this typing error has created some confusion and ambiguity.

It is clear from the evidence of Dr. R.Vimlesh (PW6) and his post-mortem report (Ex.P/10) that on 15.10.1994 at 8=00 am, he found following

ante-mortem injuries on dead body of about 45 years old Maujilal :-

(i) Incised wound, size 7cmx1.8cm up to bone deep and this woun was situated over the left posterior parietal area of head and was obliquely placed;

(ii) Lacerated wound size 3cmx1.5cm up to bone deep situated on left lateral side of forehead and a lacerated wound, size 2.3 x 1.5 cm bone deep

over upper anterior part of nose;

(iii) Lacerated wound, size 5.3cmx3cm over left lateral mid of arm and on its dissection it was found that beneath it relating bone was having

compound fracture with extensive laceration of skin, muscles and blood vessels and both fragments of left humerus bone were visible and through the

wound deeply stained surrounding area of arm with clotted blood;

(iv) Lacerated wound with swollen irregular margins and coagulated blood, size 12 cmx2cmxbone deep over left upper posterior part of forearm and

elbow joint;

(v) Incised wound, size 7x1.5cm bone deep over left upper one third anterior part of leg;

(vi) Incised wound, size 6x1.5cm bone deep over right anterior mid part of leg;

(vii) Lacerated wound, size 4x2cmxdeep upto muscles in between index and middle fingers or left hand;

(viii) Contusion semi-circular 9x5 cm on middle portion of chest on left side;

(ix) Contusion, semi-circular size 6.9cmx5 cm, which was about 2 cm below to the above mentioned injury;

(x) Contusions multiple in number in area of 9x6 cm over anterior part of left thigh;

(xi) Contusion, size 3x2 cm on lower part of left forearm;

(xii) Abrasion, size 2x1-1/2cm over posterior part of right forearm;

(xiii) Abrasion, size 2x1.2 cm anterior lower part of pubic area.

Dr. R.Vimlesh opined that above mentioned incised wounds described at serial No. (i), (v) and (vi) were caused by sharp edged weapon, whereas

other lacerated wounds, abrasions and contusions were appearing to be caused by hard and blunt object and he opined that the deceased has died due

to shock out of extensive hemorrhage resulting from multiple injuries, mainly due to above mentioned injury No. (iii) found on left arm and he opined

that the mode of deceased's death was homicidal and he had died within 24 hours from starting of his post-mortem. Hence, it is clear from medical

evidence that deceased Maujilal met with homicidal death on 14.10.1994.

According to Dr. R.Vimlesh's (PW-6) evidence and his MLC (Ex.P/9) recorded on the date of incident at Bhitarwar Hospital on examination of

complainant Kesharbai he had found in total 6 contusion injuries over different organs of her body and all were appearing to be caused by hard and

blunt object within 12 hours of his examination and for determining the nature of injuries he has advised x-ray examination. It is clear from evidence of

Dr. R.G.Bala (PW-8) that on 18.10.1994 at Government Clinic, Tansen Nagar, Gwalior, on x-ray examination of complainant Kesharbai he found

fracture in distal phalanx of thumb of right hand and also found fracture in transverse process of fourth lumber vertebra on right side and recorded x-

ray report (Ex.P/44) and also proved annexed x-ray plates (Ex.P/45 and P/46). It is clear from the medical evidence that complainant Kesharbai

(PW-1) has received these two grievous injuries prima facie caused by hard and blunt object.

According to evidence of Dr. R.Vimlesh (PW-6) and his another MLC (Ex.P/8), prepared on examination of Bhuribai (PW-3) it is clear that on

the date of incident, i.e., 14.10.1994 he found contusion, size 5x3.5 cm on posterior middle region of left leg caused by hard and blunt object and has

advised for x-ray examination. In absence of any x-ray report regarding Bhuribai, it appears that above mentioned sole injury of Bhuribai was of

simple nature. Â

In support of prosecution's case before the trial Court Kesharbai (PW-1), her son Rajbahadur (PW-2), complainant's sister-in-law (Jethani)

Bhuribai (PW-3) and Ravindra Singh (PW-4) have given eye-witness account of the incident substantially corroborating the prosecution's story. It is

argued by learned counsel for the appellant that Kesharbai (PW-1), Rajbahadur (PW-2) and Bhuribai (PW-3) are close relatives of deceased and it is

also contended that Ravindra Singh (PW-4) was also a distant relative, but Ravindra Singh (PW-4) in his cross-examination has clearly denied the

relating suggestion given by defence counsel in his crossexamination. Much emphasis has been given by learned counsel for the appellants on some

contradictions between the evidence given by each of these eyewitnesses and his/her relating police statement relating to weapon of different

appellants and on the point of inflicted specific injury by each appellant to deceased and injured witnesses. In the light of Masalti and others vs. State

of UP (AIR 1965 SC 202), it is clear that when five or more accused persons were giving beating to deceased and other injured witnesses, such

contradictions and discrepancies are natural. It is true that no incised wound was found on body of complainant Kesharbai (PW-1), but it is clear from

the evidence of Dr. R.Vimlesh (PW-6) and his post mortem report (Ex.P/10) that deceased was having three incised wounds including one on back

side of his skull caused by sharp cutting object, which is attributed to be caused by Mulua with his farsa. In such circumstances, this argument could

not be accepted that there is material contradictions between ocular evidence given by eyewitnesses and medical evidence. It is clear from evidence

of all these eye-witnesses that after starting of Maujilal's beating, when he reached to adjoining field of Ramdayal, then he was chased by all the

appellants with Mulua. It is also clear from the spot map (Ex.D/3) prepared by the Investigating Officer J.P. Dangi (PW-7) that he found injured

Maujilal lying in the field of Ramdayal and bloodstained soil was also seized from Ramdayal's field. Â

Even the independent witness Ravindra Singh (PW4) has substantially corroborated the role attributed to all the three appellants Kalyan Singh,

Devi Singh and Mahendra Singh of Criminal Appeal No. 349/2000 that though inflicted injuries by butt of separate gun which each of these appellants

was having in his hand. Medical evidence also corroborates that some injuries found on the body of the deceased were appearing to be caused by butt

of guns. Ravindra Singh (PW-4) deposed that before the incident he was grazing his cattle on nearby boundary (maidh) and, therefore, saw the

incident. His name and another eye-witness Sunman is also mentioned in prompt FIR (Ex.D/1) lodged by complainant Kesharbai (PW-1). These eye-

witnesses have deposed in one voice that when Maujilal started running, then appellant Kalyan Singh, Devi Singh and Mahendra Singh, instigated other

appellants and Mulua for killing Maujilal and thereafter encircled him in Ramdayal's field by present appellants and Mulua. When fatal injuries were

being caused by other appellants by sharp edged weapons like farsas and axes and sticks, then only due to non-firing shots from separate guns

possessed by three appellants Kalyan Singh, Devi Singh and Mahendra Singh, cannot make eye-witness account given by these witnesses

unbelievable. The presence of Kesharbai (PW1), Bhuribai (PW-3) and Rajbahadur (PW-2) for uprooting the groundnut plants from their field with

Maujilal could not be doubted and the grievous injuries and simple injury received by Kesharbai (PW-1) and Bhuribai (PW-3) respectively confirms

their presence on scene of occurrence.

It is true that Investigating Officer J.P.Dangi (PW-7) admitted in his cross-examination (para 11) that during investigation it was learnt by him that

the incident had occurred due to prior incident of outraging modesty of Chimman Singh's girl by Rajveer, who is deceased's son, whereas according to

the evidence of complainant's FIR (Ex.D/1) the incident was caused by the appellant due to panchayat election rivalry. It is well established that the

evidence of any witness is to be read as a whole. In some para Investigating Officer also deposed that as no report was lodged at relating police

station regarding outraging of modesty of Chimman's girl by the deceased's son Rajveer, hence he did not investigate on that point.

The deceased's son Rajbahadur (PW-2) deposed in cross-examination (para 25) that he is acquainted with Chimman Singh's daughter Leelabai but

he clearly denied the next suggestion given by defence counsel that due to outraging the modesty of Leelabai, a panchayat occurred prior to the

incident in his village. It is also significant to mention here that no appellant in his examination under Section 313 of the CrPC conducted by trial Court

has disclosed such facts regarding outraging of modesty of any girl of his family by any person of complainant's family. It is well established that

alleged motive of murder has importance only in cases based totally on circumstantial evidence and in other murder cases, where eye-witness account

is available then absence of motive or nonproving of alleged motive is having no importance.

Much emphasis has been given by learned senior counsel for three appellants of Criminal Appeal No. 349/2000 on evidence of Ex-MLA Dabra

Jagannath Singh Rawat (DW-1) and evidence given by appellant Devi Singh, before trial Court as DW-2. Jagannath Singh (DW1) deposed that at

Dabra, all these three appellants are his neighbours and on the date of incident at 1 or 2 pm he had seen all these three appellants worshiping their

tractor at Dabra. Appellant Devi Singh as DW-2 deposed that he resides in village Belgadha where his agricultural land is situated and in town Dabra,

he is also having a residential house, but on the date of incident he was at his Dabra's house with his brother Mahendra and Kalyan (other appellants),

but it is well settled that defence of plea of alibi by relating accused should be taken from the first opportunity or from the beginning. It is also

significant to mention here that all these three appellants of Criminal Appeal No.349/2000 have not stated in their examination conducted under

Section 313 of CrPC by the trial Court that on relevant time they were at Dabra. It is also important to mention here that no suggestions were given to

Investigating Officer J.P.Dangi and other prosecution witnesses relating to alleged plea of alibi of above mentioned three appellants. In these facts, it

appears that the alleged plea of alibi raised by these three appellants Devi Singh, Kalyan Singh and Mahendra Singh appears to be an after-thought

defence and hence unbelievable. On the other hand, Belgadha or Dabra is having no such distance that after incident these appellants could not reach

Dabra at the mentioned time.

Much emphasis has been given on the facts that in August, 1995 appellant Devi Singh, Kalyan Singh and Mahendra Singh filed a petition bearing

Criminal Misc. Case No.2202/1995 under Section 482 of the CrPC, whose copy is being got exhibited as Ex.D/9, but in record of trial Court copy of

the order dated 7.3.1996 passed by this Court in relating petition is annexed, according to which the above mentioned petition stood dismissed as not

pressed. It is clear from the copy of the petition filed under Section 482 of the CrPC (Ex.D/9) on behalf of three appellants of Criminal Appeal

No.349/2000, namely, Devi Singh, Kalyan Singh and Mahendra, which is proved and signed by Devi Singh, there is no mention of their plea of alibi in

any of the various paragraphs of the petition.

Similarly, from perusal of the record of the trial Court, it appears that it includes an application dated 19.4.2000 filed under Sections 311, 233 of the

CrPC by counsel for these three appellants Devi Singh, Mahendra Singh and Kalyan Singh. It was mentioned in para 2 of that original application

available in trial Court's record that these three appellants on 14.10.1994 were present at Jagannath Singh S/o Vrindavan Singh, resident of MLA

Road, Jawaharganj, Dabra and, hence, for them it was necessary to call above mentioned Jagannath as a defence witness and later on above

mentioned Jagannath Singh was examined as DW-1 before the trial Court on same date 19.4.2000, who deposed that all these three appellants are his

neighbours at town Dabra, but he did not depose that on 14.10.1994 these appellants were present at his residential house. Though Devi Singh (DW-2)

deposed that his residential house is adjacent to Ex-MLA Jagannath Singh's (DW-1) house, but no documentary evidence with regard to his residential

house of Dabra was produced before the trial Court. It is also clear that there were material differences in averments made in above mentioned

application filed on behalf of these three appellants and the evidence given by both of above mentioned defence witnesses. It is well settled that plea

of alibi should be raised by relating accused from beginning. It is clear that in the petition (Ex.D/9) filed before this Court under Section 482 of the

CrPC, there is no reference of their plea of alibi on the date of incident. Hence, it is clear that the plea of alibi was an after thought defence raised by

these three appellants, which could not be believed in view of all these above mentioned facts and circumstances. It is also significant to mention here

that in all police papers including arrest memo, seizure memos and other papers these three appellants Kalyan Singh, Devi Singh and Mahendra Singh

are specifically indicated as resident of village Belgadha. Hence, we are of the considered opinion that the trial Court was right in recording its finding

that this evidence of defence witnesses was not inspiring confidence regarding plea of alibi raised belatedly.

Similarly much emphasis has been given by learned senior counsel for the appellants on the evidence of J.P.Dangi (PW-7) that prior to scribing the

complainant's FIR (Ex.D/1) he heard about the incident during his patrolling in nearby villages but in the light of judgment in the case of Sidhartha

Vashisht @ Manu Sharma vs. State (NCT of Delh) [(2010) 6 SCC 1], it is clear that a hearsay information or even telephonic intimation given to

relating police station could not be termed as FIR. It is also proved from the evidence of the Investigator that within one hour after incident prompt

FIR (Ex.D/1) was lodged and investigation was also promptly started by J.P.Dangi (PW-7). Hence, only due to mere absence of positive evidence

regarding compliance of Section 157 of the CrPC regarding prompt sending copy of the FIR to relating Magistrate, otherwise appearing reliable

evidence could not be discarded.

Regarding seizure of many articles during investigation, the evidence of Investigating Officer J.P. Dangi (PW-7) is on record, which is though

corroborated by panch witness Jagdish (PW-5), but as no FSL report regarding these articles was filed and proved before the trial Court, hence this

circumstantial evidence in shape of alleged seizure of recovery of some weapons on disclosure statements of relating appellants does not appear to be

of any consequence but it is well established that only due to non-availability of FSL report, otherwise reliable evidence of eye-witnesses could not be

disbelieved. The dying declaration (Ex.P/17) also materially corroborates the evidence of above mentioned eye-witnesses.

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

did not commit any error in convicting the present appellants for the aforesaid offences. Hence, both these criminal appeals are having no substance

and are liable to be dismissed.

In the result, Both Criminal Appeals No. 349/2000 and 360/2000 are hereby dismissed and each appellant's conviction and sentences as recorded

by the trial Court are affirmed. Each appellant of both the appeals are on bail after suspending their sentences. They are directed to immediately

surrender before the trial Court to serve out their remaining jail sentence. The trial Court's order regarding disposal of seized property is affirmed.

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