Shashi Dhar Singh and another vs State of M.P.

The following judgment of the Court was delivered by Hon. Shacheendra Dwivedi, J.:-

The appellants have challenged the order of conviction recorded by the learned Third Additional Sessions Judge. Morena, thereby they have been

convicted u/s 302/34. I.P.C. and sentenced to suffer imprisonment for life.

According to the prosecution version, on 22.10.1979, the deceased Uma Charan Singh, who was a Medical Practitioner, had gone for the

treatment of the brother of one Panna Chamar (PW 6) at village Harichha. While deceased Uma Charan Singh was returning back to his village,

witnesses Saheb Singh (PW 1), Desh Raj Singh (PW 2) and Hotam Singh (PW 3) were working in cheir Kachhar (Low lying fields). The Kachhar

is on way to village Harichha from village Sagoli. When deceased Uma Charan Singh had corssed the Kachhar, it was at about 10,00 a.m. that the

persons working in the field, namely, Saheb Singh (PW 1), Desh Raj Singh (PW 2) and Hotam Singh (PW 3), also started for their village Sagoli.

When the deceased had reached near the tubewell of one Babu Pachori, three accused persons including the two appellants since Ram Karan

Singh had absconded and could not be apprehended during trial, as such, he was declared absconding and was not put up for trial came out from

the bushes where they were hiding themselves and surrounded the deceased. The deceased was abused and then fired at by the accused persons

hitting the deceased at different parts of his body. The deceased fell down and all the there accused persons thereafter lied away from the spot.

The witnesses Sahab Singh (PW 1) Deshraj Singh (PW 2) and Hotam Singh (PW 3) ran towards the deceased, who was seriously injured, but

was alive. Soon thereafter the witnesses Ramchndra Singh (PW 4) and Ghanshyam Singh (PW 5) also came on the spot. They were told by the

deceased that he was fired at by the accused-appellants and one absconding accused Ram Karan Singh. While the deceased was being brought to

the hospital at Porsa on a Cot. he died on way. The FIR (Ex. P/1) was lodged by P.W. 1 Saheb Singh.

After the due investigation, challen was filed against the accused-appellants showing the other co-accused Ram Karan as absconding. At the trial,

the accused appellants had abjured their guilt. Their case was that they were falsely implicated due to enmity since there was a civil litigation in

between them on one side and the deceased Uma Charan Singh, Desh Raj Singh (PW 2) and Ram Lakhan and other on the other side.

The learned trial Court on the basis of the evidence, led by prosecution at the tiral, held the appellants guilty of the offence u/s 302/34 I.P.C. and

sentenced them as slated above.

At the trial, Dr. Rakesh Kumar Sharma (PW 12) was examined by the prosecution, since he had conducted the autopsy of the dead body and had

found 8 injuries on the body of the deceased caused by firearms. The fatal gun shot wounds were found on the abdominal part of the body thereby

the death has resulted due to shock and haemorrhage.

The injuries found on the body of the deceased corroborate the version of the eye-witnesses P.W. 1 Saheb Singh, P.W. 2 Desh Raj Singh and

P.W. 3 Hotam Singh, who had deposed that all the three accused persons had fired at the deceased causing him gun shot injuries. The deceased

had also given the oral dying-declaration in their presence to witnesses Ramendra Singh (PW 4) and Ummed Singh (PW 5). Witness Chhotelal

(PW 13) had seen the accused persons going towards the forest with the guns. On hearing the sound of gum shot, Tilak Singh (PW 7) had also

come on the spot.

The learned trial Court on the evidence of the above witnesses and the surrounding circumstances found that the prosecution story was established

beyond the shadow of doubt and therefore, the appellants were convicted of the offence.

Challenging the order of conviction and sentence, it is strenuously urged by senior counsel Shri J.P. Gupta appearing for the appellants, that the

judgment of conviction and sentence is bad in law and is also against the evidence brought on record. He has challenged the conviction of the

appellants mainly on the grounds that:-

(a) all the prosecution witnesses are highly interested:

(b) no weapon of offence has been recovered from the appellants:

(c) the First Information Report is ante-timed and ante-dated. It does not give details about the potato crop and it was also not lodged the

concerned Police Station Sihonia, but was lodged at Police Station Porsa:

(d) the names of the assailants were not mentioned in the inquest report and in the requisition memo:

(e) that there were variations and contradictions in the statements of the prosecution witnesses. Their evidence was also contradicted by the

medical evidence in relation to the distance of firing of the gun shots:

(f) in the spot map the place of the witnesses, from where they had seen the incident, was not shown: and lastly

(g) the oral dying-declaration could not have been given by the deceased to the witnesses as he must have died soon after he had received the

injuries without any loss of time and as such could not have narrated the incident to the witnesses.

The learned State Counsel has supported the impugned judgment of conviction and sentence. According to him the evidence of the eye-witnesses

cannot be rejected merely for their being interested. The minor contradictions are natural and only go to indicate that the evidence has not been

procured or tutored. According to the State, the evidence of the eye-witnesses is corroborated by the oral dying declaration, by the evidence of

witness Chhotelal (PW 13), who had seen the accused persons soon after the incident, going towards the forest with firearms in their hands, by the

First Information Report lodged after the incident, naming the accused persons therein and, therefore, it is submitted that the appeal be dismissed.

We proceed to examine the grounds of challenge as submitted by the defence.

It is now well established that it is not the quantity of the witnesses but the quality of evidence on which the conviction of an accused can be based.

Even if one witness is found to be reliable, the conviction can be based on his testimony. But it is a rule of prudence that when the witnesses appear

to be interested, instead of placing implicit reliance on their evidence, the Court should seek some corroboration of their evidence, before basing

the conviction on their testimony. Their evidence is also required to be closely scrutinised.

In the present case, the prosecution witnesses Sahab Singh (PW 1), Deshraj Singh (PW 2) and Hotam Singh (PW 3) had followed the deceased,

when he had returned from village Harichha. The three witnesses were working in the field since morning, and since the date of incident was soon

after the Diwali festival, the deceased had asked them to come home. The witnesses had seen the incident as they were behind the deceased. They

had reached to the deceased alter the accused persons had fled away from the spot. It was at that time that witnesses Ramendra Singh (PW 4)

and Ummed Singh (PW 5) had also appeared on the spot. They had gone to river for taking the bath and were returning to the village. The

deceased spoke to the witnesses that he was tired at by three persons including two appellants and the absconding accused Ramkaran Singh.

After the incident, it is natural that the anxiety of the relations is to carry the deceased to a place where medical aid is available. Admittedly, Porsa

is a bigger place than Sihonia and therefore, the injured was taken to Porsa instead of being taken to Sihonia. The deceased had died on way to

Porsa, and thereafter, the report was lodged at Porsa. In the circumstances, if the report was not lodged at P.S. Sihonia, the prosecution case

does not suffer at all. The report lodged at Porsa was sent to Police Station Sihonia. In the report, the incident was described.

It is again well settled now that F.I.R. need not contain the details of the incident or the acts of the accused persons. It is sufficient if the report

describes the broad features and the manner in which the incident had occurred, the names of the accused persons and the names of the witnesses.

The accused/appellants have not been able to show any material contradictions in the evidence of eye-witnesses and the story narrated in the

F.I.R.

The eye-witnesses are near relations of the deceased. On his asking, they had followed him to their village Sagoli, since it was the third day after

Diwali festival, when the relations collect and take their meals together. Their presence at the spot cannot be said to be unnatural nor they can be

described as chance witnesses. The other two witnesses, namely, Ramendra Singh and Ummed Singh had reached the spot, having come from the

reviver after taking their bath and were proceeding towards the village, as such, they can also not be described as chance witnesses. The dying

declaration was given to them in the presence of witnesses Saheb Singh. Deshraj Singh and Hotam Singh.

The deceased had not described the whole incident, but had stated the names of the persons, who were responsible for his injuries. The evidence

of eye-witnesses was corroborated by the evidence of P.W. 4 Ramendra Singh and P.W. 5 Ummed Singh. It was further corroborated by the

evidence of Chotelal (PW 13), who had seen the accused persons going towards the forest armed with firearms and had thereafter seen the

deceased on the spot, with firearm injuries. The witnesses also found on the spot, the eye-witnesses Saheb Singh (PW 1), Deshraj Singh (PW 2)

with Ramendra Singh (PW 4) and Ummed Singh (PW 5). On his asking, he was told that the three accused persons had caused firearm injuries to

Umacharan Singh.

The evidence of eye-witnesses is further corroborated by the evidence of Pannalal (PW 6), who had staled that the deceased was practicing on

medical side and had gone with him to village Harichha-ka-pura for the treatment of his ailing brother Chunnilal on the fateful day of incident and

had returned from village Harichha at about 9,00 a.m. On the spot, some medicines and the instruments for injunction the medicines were also

found, which also corroborate the prosecution version that the deceased had gone to village Harichha as stated by Pannalal and the incident had

occurred on his return. The evidence of eye-witnesses is also corroborated by the medical evidence as number of injuries were found on the

persons of the deceased, which go to indicate that the assailants were more than one in number.

After the arrest of the accused persons, if the weapons of offence were not recovered that does not belie the prosecution version nor can be said

to be an adverse circumstance to the prosecution case. The stated firearms were unlicensed and the accused persons were not obliged to get those

weapons recovered. The lodging of the FIR at P.S. Porsa does not lead to a presumption that the FIR registered later at Police Station Sihonia,

was ante-timed or ante-dated. In the circumstances when the injured had suffered the gun shot injuries, the witnesses were naturally interested in

getting him the proper medical aid with the hope that his life may be saved, and in such a situation, they had rushed to village Porsa, which is a

bigger place where better medical facilities are available than village Sihonia. Unfortunately, the deceased died on way to Porsa, therefore, the

report was lodged at Porsa. No adverse inference can be drawn against the prosecution for not lodging the report at the concerned Police Station,

i.e. P.S. Sihonia.

There arc no circumstances to show or even create the doubt that the FIR was ante-limed or ante- dated by the Police in the instant case. The FIR

could also not be said to be lodged with any delay. The witnesses had gone to the village and had brought the Cot. The deceased was then taken

to the village, and from the village, he was carried to Porsa on the Cot. Looking at the injuries, the jerks in the bullock-cart would have accelerated

his bleeding, and as such, the witnesses had carried him on the Cot instead of carrying him through any conveyance.

The non-mentioning of the names of the assailants in the inquest report or in the requisition memo, cannot be said to be fatal to the prosecution

case. In a criminal case, the circumstances of each case are to be examined independently. There can be no universal rule in this regard. The

mentioning of the names of the accused may be desirable, but that by itself will not belie the prosecution version. The names of the assailants were

described in the F.I.R.

As such, by not repeating the names of the accused persons in the inquest report or in the requisition memo, the prosecution case does not suffer

adversely. The incident had occurred in broad day light near the village. Not only that incident was witnessed by the three eye-witnesses, but

witnesses Chotelal (PW. 3) had at the relevant time, also seen the accused persons going towards the forest with the firearms in their hands. The

independent witnesses Ramendra Singh (PW 4) and Ummed Singh (PW 5) had reached on the spot and to them the deceased had narrated the

names of the assailants. As such, the non-mentioning of the names in the inquest report and in the requisition memo loose its importance.

Further, the minor contradictions in the statements of the prosecution witnesses also do not effect prosecution case adversely. The version of the

witnesses has been consistent on all material points. The minor contradictions only to show that the prosecution witnesses had stated the incident in

the natural way. The version of the prosecution witnesses can also not be said to be in contradiction to medical evidence. According to Dr. Rakesh

Kumar Sharma (PW 12) who had conducted the post-mortem on the body of the deceased, the gun shot on the deceased were tired from a

distance of about three feet as the blacking on the wounds was found, whereas, according to the prosecution witnesses, the accused persons were

at a distance of about 10 yards from the deceased, when they had tired at him. The fact cannot be lost sight of that the witnesses were witnessing a

ghastly crime. The shots were being fired by the accused persons at the deceased, and in such a situation, it could only their rough estimate of the

distance. The firearm with with its hand itself further covers the distance of 2-3 feet towards the target when one is in a firing position. As such, the

distance, stated by the prosecution witnesses, is not belied nor contradicted by the version of the doctor.

The contention of the learned counsel, that the place, wherefrom witnesses had seen the incident, was not shown in the spot map, is also of no

avail, although it may be said to be desirable. Further, in the spot map, the Investigating, Officer has to record the situation of the spot on his

observations. If any eye-witness stated that he was standing at a particular place, that would be his statement to the Police during investigation and

the same would be hit by Section 162 of Cr.P.C. Therefore, the contention is misconceived.

The last argument of the learned counsel, that looking at the number and the nature of the injuries and the version of P.W. 12 Dr. Rakesh Kumar

Sharma, the deceased could not have given dying declaration, is also without any merit. The deceased had not narrated the details of the incident.

He had only stated the names of the assailants. The deceased had given the oral dying-declaration without any loss of time, and therefore, it cannot

be said that oral dying-declaration without any loss of time, and therefore, it cannot be said that oral dying-declaration was not possible to be given

by the deceased. There is also nothing on record to disbelieve the prosecution witnesses P.W. 4 Ramendra Singh and P.W. 5 Ummed Singh on

that count.

On the above discussion, it is found that the prosecution was successful in establishing its case against the appellants beyond the shadow of any

doubt. The appellants arc found to be authors of the ghastly crime. The learned trial Court on a detailed examination of evidence on record,

including the defence evidence, has rightly found that the offence was commuted by the appellants. The other accused Ramkaran Singh could not

be apprehended by the Police and, therefore, only the appellants were tried by the trial Court.

In the above facts and circumstances, the trial Court committed no mistake in convicting and sentencing the appellants. The findings of the trial

Court are supported by the evidence on record and are based on good reasonings. We have therefore, found no merit in this appeal. The appeal,

as such, fails and is dismissed. The appellants are on bail. Their bail bonds are cancelled. They shall surrender to custody on 12.6.1997 of the trial

Court for undergoing the remaining part of the sentence.