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Judgment
All six appellants named above have preferred this appeal against the impugned judgment but learned counsel appearing for the appellants has
submitted that she does not want to press the appeal preferred by the appellants â€" Nag Singh S/o Umrao Singh, Prahalad Singh S/o Nag Singh and
Surat Singh S/o Ram Singh, therefore, we are only considering the appeal preferred by Ramjeet Singh S/o Nag Singh, Govind Singh S/o Ram Singh
and Hadmat Singh S/o Nag Singh.
All the appellants have preferred this appeal against the judgment and order dated 21/12/2004 passed in S.T. No.61/2001 by ASJ, Garoth, District-
Mandsaur, whereby the learned trial Court held the appellants guilty for the offence under Section 147, 148, 302/149 of IPC and Section 25, 27 of the
Arms Act, 1959 and sentenced them one-one year R.I. and fine of Rs.1,000/- 1,000/- each for the offence under Section 148 of IPC, life
imprisonment for the offence under Section 302/149 of IPC with fine of Rs.7,000/- - Rs.7,000/- each, in default further to undergo 2 years R.I., one-
one year R.I. with fine of Rs.1,000/- - 1,000/each for the offence under Section 25 Arms Act, in default further to undergo R.I. for 3-3 months each,
3-3 years R.I. each with fine of Rs.2,000/- each for the offence under Section 27 of Arms Act, in default further to undergo 6-6 months R.I. each. No
separate punishment was awarded for the offence under Section 147 of IPC. All the sentences of imprisonment shall run concurrently.
Necessary facts in brief are that on 15/11/2000 between 08:00 - 11:00 in the morning, the appellants constituted wrongful assembly armed with
deadly weapons like gun and sword with the common object to kill Gopal Singh and in furtherance to their common object, they killed him by gunshot
and also causing injuries by sword. After killing Gopal, the appellant â€" Nag Singh, Prahalad Singh and Surat Singh reached home of the deceased.
They found brother-in-law of Gopal, Toofan Singh there. They informed him that they have killed Gopal and have thrown his body in the Khaal of
village - Khotada Bujurag. He immediately rushed towards the spot and found Gopal Singh lying dead. There were marks of gunshot and injuries
caused by sword on his body.
He immediately went to the Police Station Garoth and lodged FIR Ex.P/1 stating that due to old enmity on account of land dispute Nag Singh,
Prahalad Singh and Surat Singh has killed Gopal. The police registered crime No.294/2000 under Section 302 of IPC and started investigation.
Investigating Officer (I.O.) B.R. Dwivedi (PW/11) visited the spot, prepared spot map Ex.P/2, issued notice Ex.P/4 to the witnesses, prepared
Panchanama Lash Ex.P/3 in their presence, sent the dead-body with request memo Ex.P/18 for postmortem and seized an empty cartridge, blood
stains & plain soil from the spot (Ex.P/21). Dr. K.L. Rathore (PW/4) performed autopsy and submitted report Ex.P/19. In his opinion the death was
due to intensive bleeding from the injuries caused to the deceased. He further opined that the injury No.1, 2 and 6 found on the deceased were caused
by bullet while injury No.3, 4 and 5 were incised wounds and were caused by some hard and sharp object within 24 hours of the postmortem. In the
opinion of the Doctor all the injuries found on the deceased were ante mortem. The police seized the clothes and other articles received from the
Hospital (Ex.P/75).
The police arrested the appellants and on their disclosure seized wooden stick each from Hadmat Singh and Govind Singh (seizure memo Ex.P/14
& P/16), 12 bore country made gun and sword from Nag Singh and Ranjeet Singh respectively (Ex.P/17 & P/15). The police sent all these arms to
Dr. Rathore (PW/4) and asked him as to whether all the injuries found on the body of the deceased can be caused with these arms, which was replied
positive by Dr. Rathore (PW/4) (Ex.P/20). The police also seized a promissory note, dairy, an applications written by the deceased vide seizure memo
Ex.P/5 & P/76, Ration card of Shambhu Singh, Vinod and Sardar (Ex.P/33) for the purpose of collecting admitted handwriting of the deceased and
sent arms and other seized articles for forensic analysis to the FSL, Sagar and hand-writing for expert opinion to the State Examiner of Questioned
Documents, Bhopal (Ex.P/64 & P/65) and obtained reports (Ex.P/68 to P/72). After completing investigation, the police filed charge-sheet against the
appellants.
The appellants were charged under Section 147, 148, 302/149 of IPC and 25/27 of the Arms Act, 1959. They abjured their guilt and claimed for
Trial. They were tried and convicted as stated in para 2 above.
The appellants have preferred this appeal on the grounds that the judgment of the learned trial Court is contrary to the law and facts. The learned
trial Court has committed error in not considering the fact that the deceased was notorious man and several criminal cases were pending against him.
He was having so many enemies and may be a targeted by any of them. There was also a dispute between the appellants and the deceased in respect
of property, therefore, possibility of false implication cannot be ruled out. It is also evident from the fact that the whole family of the appellants has
been involved in this matter. There is no evidence regarding forming of an unlawful assembly having any common object, therefore, theÂ
learned trial Court erred in convicting each of the appellants for commission of the major offence under SectionÂ
302 of IPC. The eye-witness of the incident namely Gowardhan (PW/6) and Ram Singh (PW/8) are not only
chance witnesses and highly interested witnesses but their character also impeaches the credibility of their evidence. The learned trial
Court erred in relying upon their statements for passing conviction. The police statements of both these witnesses were recorded belatedly and there is
also no explanation for the same, therefore, their testimony is highly doubtful. The story of the incident narrated by these witnesses is different from
the story that has been brought by the police before the trial Court; therefore, the learned trial Court ought to have disbelieved the prosecution case.
The learned trial Court erred in relying upon the evidence of the interested witnesses for want of corroboration by the independent witnesses. The
recovery of weapons has not been proved. The learned trial Court has also erred in disbelieving the defence evidence on extraneous consideration.
The learned trial Court has erred in ignoring the discrepancies, contradictions and exaggerations occurred in the statements of the witnesses examined
by the prosecution. The learned trial Court has misread and misappreciated the evidence on record. The impugned judgment is erroneous on facts and
also in the law and based on the surmises and conjectures, therefore, the appellants are entitled for the acquittal.
Per contra, the prosecution has opposed the contentions of the appellants. It is submitted by the learned Public Prosecutor that the statements of the
eyewitnesses Gowardhan (PW/6) and Ram Singh (PW/8) and extra judicial confession of the appellants are also available on record to support the
case of the prosecution. The injuries found on the deceased and recovery of articles further corroborate the case of prosecution, therefore, the learned
trial Court has rightly convicted the appellants. He prayed for dismissal of the appeal.
We have carefully considered the rival contentions of the parties and have perused the record.
The appellants have not challenged the death of Gopal Singh and also the fact that his death was homicidal, therefore, detailed discussion for the
same is not required.
To prove its case, the prosecution has produced 3 sets of evidence. First extra judicial confession; second eyewitnesses and third recovery of
arms.
PW-1 Toofan Singh has stated that after the incident, accused Nag Singh, Surat Singh and Prahlad Singh came to his house and told him that they
have killed his brother-in-law Gopal, go and take care of him. He rushed to the spot, saw the dead-body, rushed to the police station and lodged FIR
naming all three accused persons i.e. Nag Singh, Surat Singh and Prahlad Singh stating that they have killed Gopal by gunshot and by giving him blow
of sword. He didn't name Hadmat Singh, Ranjit Singh and Govind Singh as assailants, whose appeal we are considering. After 6 days of the incident,
when his police statements were recorded, he named these appellants also but without assigning any reason for not naming them at the first occasion
available to him when he filed the FIR. Therefore this improvement does not earn credence and on this ground alone we can easily discard his
statement so far it relates to Hadmat Singh, Ranjit Singh and Govind Singh.
Here we consider some background facts, which have significant impact on the credibility of this witness. The deceased Gopal was resident of
village Barkhedi Mitthu. 15-20 years back of the incident, he got married with Thanbai, who is sister of this witness Toofan Singh, but 5 years back, he
entered into a second marriage with Tarabai and left the village Barkhedi Mitthu and started living with her at village Ranayra, Rajasthan. Except
some occasional visits, he almost deserted Thanbai. Witness Toofan Singh is resident of Chikunya ka kheda. All the three are distinct places. All the
appellants are either brother or nephews of the deceased. There was no reason for them to go to the witness to inform him about their gruesome act,
when they were aware of the fact that the deceased was having no relation with his sister (sister of the witness) and that too at an altogether different
place. There was no reason for the appellants to go to a totally different place which was neither residence of the witness nor was the residence of
the deceased and informed him that they have killed his brother-in-law, who already was practically having no relation with his sister. This is
something unbelievable and this coupled with the improvement in his police statement, makes his statement doubtful.
The prosecution has examined Gowardhan and Ram Singh (PW/6 & 8), who are son (from first wife Thanbai) and real brother of the deceased
Gopal. They both have claimed that they have seen the incident with their own eyes or have seen the appellants killing Gopal, but the important fact is
that the police have recorded their statements under section 161 Cr.P.C. after laps of more than one month on 20th December 2000. It has come in
the evidence and also the witnesses have claimed that they met with the police on several times and also they tried their level best to contact the
police and reveal the incident before it, but the police did not pay heed to their cry and did not record their statements, but the Investigating Officer
B.R. Dwivedi PW11 has turned down their claim and has stated that they never came to the police before 20.12.2000. These witnesses have stated
that they were in touch with Toofan Singh, who lodged the FIR since the day of the incident, they participated in the last rituals for next 13 days,
remained in touch with all relatives and so many persons who came to pay homage, but they never disclosed before any one of them that they have
seen the incident. They have stated that they have repeatedly approached the police and stated them that they have seen the incident, but the police
averted them on the one pretext or the other and didn't record their statements, but I.O. Mr. Dwivedi has refuted their claim in toto. Their statements
do not earn any credence as they did not take any action against the decelerating attitude of the police.
The I.O. has stated that the complainant had told him the passerby have seen the incident, therefore, he tried his level best to find out any eye
witness of the incident but did not find any of them.
Toofan had lodged the FIR. All the time he was in contact with the police, even then his statements under section 161 were recorded after 6 days
of the incident. No explanation is given for this delay, which creates doubt regarding truthfulness of his statement as in his statement he added names
of three more persons as the assailants, for which no plausible explanation is given.
The I.O. has admitted that the dead body was handed over to Govardhan (para/11), which means Govardhan met him on the very date of the
incident. He further admitted that he is acquainted with Ram Singh as he was history-sheeter and was under surveillance. Ram Singh has stated that
on the date of the incident, first he went to the police station to lodge the report where he was informed that the report was already lodged by Toofan
Singh, then he went to the hospital, met toofan, attended cremation and remained in the village for next 15 days and participated in all customary
programmes. Thus, at one side I.O. states that he did not find any eye witness even after all efforts and on the other side Govardhan and Ram Singh
state that since the dead body was brought to the hospital and till cremation and all last rituals, all the time they remain present in the village. This
creates serious doubts and thus, this delay of 35 days in recording their statement despite their availability makes their statement completely suspicious
or seriously doubtful.
Toofan (PW/1) has stated that all the 6 accused person came to him and informed that they have killed Gopal and go and take care of him, while
Govardhan and Ram Singh has stated that they encountered the accused persons right at the time when they were killing Gopal as they were with the
Gopal when the appellants assaulted him. When the appellants saw them, they threatened them on the gun point and asked them to keep quiet and not
to disclose the incident before anyone; else they will kill them also. Now both sets of statements cannot be true at the same time. If the accused
persons confronted with Govardhan and Ram Singh then there was no need for them to go to an altogether different place and to tell Toofan Singh
that they have killed Gopal because they knew that son and brother of the deceased have seen them causing incident and they will tell the entire world
about that. Similarly, when the accused persons were interested in concealing their involvement and they threatened Govardhan and Ram Singh not to
disclose the incident before anyone then there was no occasion for them to go to Gopal Singh and disclose their involvement in the incident themselves
and that too for no reason. Both sets of statements cannot be true simultaneously.
The law is well settled. When truth cannot be ascertained from the material placed before the court then entire case of the prosecution has to be
discarded.
Some other reasons are also there to disbelieve the prosecution case. Statements of Govardhan and Ram Singh are stereotype. They have stated
almost similar facts on all material points, which give rise to think that before going to give statement before the Court they were tutored or at least
consulted each other as to what to tell or not to tell before the Court. Besides, their statements suffer from inherent improbabilities. They have stated
that after seeing the incident they came back to Ranayara. Ram Singh asked Govardhan, whose father was killed by the accused persons, to stay
there and he himself proceeded for Garoth to report the matter to the police. He reached police station, where SHO informed him that report is
already lodged. Then he went to the hospital, met with Toofan Singh, they received the dead body, took that to the village Barkhedi by jeep alongwith
Toofan, Chain Singh, Chander and his uncle, attended cremation, remained there for next 15 days, met with hundreds of people, discussed the
programmes to be arranged for the last rituals with Toofan but he neither asked Toofan Singh about the report nor disclosed before him or anyone else
including the Doctor or the police officers whom he met (para 22/Ram Singh) that he had seen the incident or had seen the accused persons killing his
brother.
He has further stated that since last 20-25 years he has motorcycle but on the date of incident, he chose to travel by foot to reach Garoth or
Barkhedi situated about 15-20 km away from the spot. He passed through several villages of his own community, saw many persons working on their
fields, but he did not make any hue and cry.
Father of Govardhan was died in the incident but strangely he remained at Ranayara. He set idle waiting for Ram Singh hoping that he will lodge
the report. After waiting for 2-3 hours, he also proceeded for Garoth. On the way, he took lift from a motorcyclist, who dropped him at village
Kalakheda. He took a bus and reached Garoth. He participated in the cremation, remained there all the time, he was surrounded by many person, but
he never disclose that he had seen the incident and did not try to seek help from anyone telling them the police is not taking him seriously and not
recording his statement. Thus the reaction of both these witnesses is not natural.
Admittedly Gopal Singh entered into second marriage with Tarabai. He left his first wife Thanbai. He started residing at Ranayara (Rajasthan).
Though it has come in the statement of the witnesses that he did not stop visit to his first wife but it appears from the evidence that his visits were
very rare. Govardhan was residing with his mother at Barkhedi Mitthu and he was studying and staying at Bhawanimandi. Ram Singh was resident of
Kumbhakoth. Distance of Ranayara and Kumbhakoth is 50 kms. All three brothers Ram Singh, deceased Gopal Singh and the accused Nag Singh
became separate since last 20-25 years. Their father had partitioned the property among them since last 5-6 years. They were living separately with
their families. In all these circumstances, the claim of Gowardhan and Ram Singh that on the previous night of the incident they went Ranayara and
stayed with the deceased Gopal Singh and on the next morning they were accompanying the deceased when on the way they were pounced by the
assailants does not appear convincing particularly when they have not given satisfactory explanation as to when they were not in regular touch of the
deceased, why on the previous night of the incident, they went to the house of the deceased and stayed there. All these facts coupled with conduct of
the witnesses make their presence at the spot highly doubtful.
Ram Singh was having grudge with the accused Nag Singh. He has admitted that Nag Singh has filed a report against him for the offence under
Section 307 of IPC 6-7 years back. In that case Nag Singh had given statement against him and Gopal Singh before the Court. That case was pending
even after the death of Gopal Singh. The appellants Ranjeet Singh and Hadmat Singh are sons of Nag Singh. Ram Singh has also left his first wife and
the appellants Govind Singh and Surat Singh are sons of his first wife.
All these facts make his statement unreliable.
To convince regarding culpability of the accused persons and to corroborate statements of the eye-witnesses and to consolidate its case, the
Investigation Officer seized the arms particularly the gun and sword used in the incident recovered from possession of the Nag Singh and Ranjeet
Singh respectively and also seized an empty cartridge and its shell from the spot and sent them for forensic analysis, but we have doubts that this
evidence is helpful to establish the case of the prosecution, as this fact could not be ascertained with certainty by the experts of the FSL that the
cartridge seized from the spot was fired from the gun seized from Nag Singh. Similarly, the group of blood found on the sword could not be
ascertained by the serologist of FSL, Sagar.
So far as charges under the Arms Act are concerned, no prosecution sanction to prosecute the accused Nag Singh for the charge u/s 25 of the
Arms Act is produced or proved by the prosecution regarding firearm or gun seized from him. It is not the case of the prosecution that the
accused/appellant Ranjeet Singh was having in his possession a sword at any public place. The sword was seized from a well situated in a farm in
village Barkhedi Mitthu. Notification issued under Section 4 of the Arms Act, which bars the possession of the arms of specified class or description
on any public place is also not produced or proved. Use of these firearms in the incident is also doubtful. Therefore, charges under section 25, 27
Arms Act cannot be held proved.
The motive of the murder is also not clear. Ram Singh has admitted that they all three brother were given equal share in the property by their
father during his life time and they all were living separately and there was no enmity between them. Then it is unbelievable as to why Nag Singh
would kill his brother.
Thus, statements of the all main three witnesses suffers from inherent improbabilities and incongruities, evidence of the eye-witnesses is not
truthful, reliable and trustworthy and hence cannot form the basis of conviction. Their presence at the scene of occurrence at the time of the incident
is highly unnatural. Besides these, the prosecution has also been unable to convincingly connect the arms with the incident. Therefore, we do not
consider it safe to base the conviction of the appellants thereon. There is no other tangible and clinching material on record in support of the charges
against the appellants.
On a totality of the consideration of all relevant facts and circumstances, we are of the unhesitant opinion that the evidence of PW1, as a witness
of extra judicial confession, as projected by him and evidence of PW/6 & 8 as a witness of incident of murder is wholly unacceptable being fraught
with improbabilities, doubts and oddities inconceivable with normal human conduct or behaviour and, thus cannot be acted upon as the basis of
conviction. The testimonies of these witnesses fall short of the requirement of proof of the charge beyond all reasonable doubt. The appellants are
thus entitled to the benefit of doubt. The contrary view taken by the court below is against the weight of the evidence on record and the exposition of
law.
In the result, the appeal succeeds and is allowed. As a consequence, the appellants Hadmat Singh, Ranjit Singh and Govind Singh are acquitted
and are ordered to be set at liberty if not required in connection with any other case. Appeal so far as appellants Nag Singh, Prahalad Singh and Surat
Singh are concerned, stands dismissed as not pressed.
The order of the learned trial Court regarding disposal of the case property is hereby confirmed.