State Of Madhya Pradesh vs Narendra Singh & Another

This criminal appeal arises from the judgment dated 28.12.2004 passed in Sessions Trial No.219/2003 by the Court of Fifth Additional Sessions

Judge, Bhind, whereby the accused persons/present respondents have been acquitted from the charge of Section 302/34 of the Indian Penal Code

doubting the presence of accused persons Narendra Singh and Kuldeep Singh at the place of the incidence.

It is the contention of the State that PW6 Seema Singh daughter of Late Indraveer Singh had given an oral intimation to PW9 RBS Sikarwar on

24.03.2003 at about 11.00 AM to the effect that she is resident of Village Mehdawa and her father Indraveer Singh was murdered with the help of

knife by Munna and Gyanendra as has been informed to her by the village boy Shailendra (PW1). Her intimation was recorded on Sanha No.850 of

roznamcha of relating Police Station and vide roznamcha entry on Sanha 851 (Ex.P/13) RBS Sikarwar marked his departure and had reached at the

spot where PW5 Ramveer Singh got the dehati nalishi recorded as Ex.P/9.

In dehati nalishi (Ex.P/9), it is mentioned that Ramveer Singh is younger brother of Indraveer Singh, who was a retired personnel from Army and on

24.03.2003 at about 6-7 AM, he had gone to Lord Shiva Temple alongwith his brother Indraveer Singh and sister-in-law Munni Devi. Temple is about

1 km away from the Village and the fateful day was Monday. When they were coming back after offering their tributes to Lord Shiva at about 8.00

AM, deceased Indraveer Singh was walking ahead at some distance of 2-3 farms, when on reaching close to bamba, he was surrounded by Munna,

Gyanendra, Narendra and Kuldeep, who were already sitting there. Thereafter, Munna had hit with a knife and then Indraveer Singh started running,

but he could not run for a long. When he was caught hold off, he was brutally assaulted with knives in the chest cavity. Due to fear, Ramveer and his

sister-in-law had sent intimation through Village boy Shailendra (PW1), and on the basis of report of PW4 Habib Khan, Crime No.33/03 (Ex.P/8) was

recorded.

It is the case of the appellant-State that the order of acquittal of Narendra Singh and Kuldeep Singh is arbitrary and illegal and against the evidence

on record. It is mentioned that in her Court statement, PW6 Seema Singh had informed that Shailendra had informed her that her father Indraveer

Singh was murdered by Munna, Gyanendra, Narendra and Kuldeep. She had fully supported the FIR and the incident, and similarly PW7 Munni had

supported the story of her husband being assaulted by four persons, namely, Munna, Gyanendra, Narendra and Kuldeep and this was medically

corroborated by the evidence of PW8 Dr. S.K. Singh Niranjan, who had performed post-mortem on the dead body and had found 18 sharp cutting

wounds on the body and, therefore, the acquittal of Narendra Singh and Kuldeep Singh be set aside.

In this regard, the main important aspect is that PW1 Shailendra is the witness, who had informed Seema (PW6) about the incident. Therefore, the

evidence of Shailendra and Seema is to be appreciated to examine the involvement of respondent-accused persons.

PW1 Shailendra refused to identify the accused persons available in the Court and informed and deposed that he was informed about the incident

by his family members. At the time of the incident, he had gone for grazing of his goats and denied that at the instance of Munni Devi, he had given

intimation about the incident at her house. He denied giving statement (Ex.P/1) to the Police. In Ex.P/1, he has mentioned that when he was coming

back at about 9.30 AM with loads of gram crop, he had met Munni Devi, the mother of Kalu, who had asked Shailendra to inform at her house that

Munna, Gyanendra, etc. had murdered Kalu's father. He further stated that he had given this information to Seema that her father has been murdered

and then he had gone away. In crossexamination, he has admitted by keeping silence that he knew the accused persons. In para 4, he admitted that in

his statement, he had incorrectly stated that he was not knowing the accused persons. He further admitted that he had wrongly stated that he had not

given any intimation to Seema about murder of Indraveer Singh and he further admitted that he had informed Seema as was asked by her mother and

then left for his house.

PW6 Seema, who was declared hostile and thereafter when leading questions were asked to her, she admitted that Shailendra had visited her house

and had informed her about murder of Indraveer Singh and then she had gone to Police Station Raun for giving intimation and she had given intimation

about her father's murder at Police Station Raun. She admitted that she had left her home at 8.00 AM and gave information at about 9.00 AM. She

further deposed that she had given names of all four persons to Daroga and she had only given intimation to Daroga and had come back. There is no

case diary statement of PW6 Seema on record.

Dehati nalishi (Ex.P/9) has been recorded by Ramveer Singh, on the basis of which, FIR (Ex.P/8) was recorded. Copy of Roznamcha is Ex.P/13, in

which entry on Sanha no.851 is dated 24.05.2003 mentioning time of 11.00 AM, wherein it is mentioned that there is an intimation that at Village

Mehdawa, girl Seema daughter of Indraveer Singh, resident of Village Mehdawa has informed that on close to 'haar', her father indraveer Singh was

murdered with knives by Munna, Gyanendra, etc., and she had not gone at the place of the incident, but was informed by a boy of Village Chukhar

and, therefore, had come to give intimation. At 11.10 AM Roznamcha entry on Sanha no.851 dated 24.03.2003 makes a mention of departure of RBS

Sikarwar alongwith Head Constable Baijnath Singh and Constables Harpal Singh and Rajveer Singh in Jeep No.MP03/3306 with Driver Rakesh

towards Village Mehdawa alongwith necessary arms and ammunition. In this Roznamcha entry, the names of only two persons have been mentioned

and not of all the four accused as have been named in the case. However, in the dehati nalishi, there is mention of all the names of four accused

persons. However, dehati nalishi was recorded when PW9 had reached the place of incidence and had met PW5 Ramveer, who is the informant of

the dehati nalishi.

Learned Sessions Court has taken into consideration not only the statements of the witnesses, but also the plea of alibi as was put forward by

accused persons Narendra and Kuldeep inasmuch as DW9 Uday Singh deposed that he is resident of Village Matiyavali Buzurg and works as a

helper with Hand pump Mechanic Narendra Singh. He alongwith Narendra Singh had reached Matiyavali to repair a hand pump on 23.03.2003 at

about 4.00 PM and then on 24.03.2003, they had repaired another hand-pump at about 8-9 AM. He further deposed that on 23.03.2003, he and

Narendra had taken their dinner at place of Gandharv Singh Sarpanch and Narendra had slept there itself and he had gone to sleep at his own house.

They had started repairing second hand-pump in the morning of 24.03.2003 at about 7.00 AM and completed the repairs by 9.00 AM. This second

hand pump was situated at Badhai ka Darwaza of the Village and had obtained a Panchnama from Panch and Sarpanch of the village and had handed

over the same to Sub-Engineer Mahesh Dubey on 24.03.2003. They had returned back to Raun Block at about 10-10.30 AM on cycle. In his cross-

examination, he has denied the suggestion that Narendra was not with him on 24.03.2003. Similarly, the deposition of DW9 Uday Singh has been

supported by DW8 Mahesh Chand Dubey, Sub-Engineer, PHE, Sub-Division, Gohad, who has deposed that on 24.03.2003, Narendra Singh was taken

away by the Constable of Police Station Raun at about 3.00 PM when the meeting of senior officers was going on. He had taken him for

interrogation. He further deposed that on 23.03.2003, he had seen Uday Singh repairing hand pump at Village Mataiyawali Buzurg and Narendra had

returned back on 24.03.2003 at about 10-10.30 AM. He had produced relevant Panchnama (Ex.D/6). On the basis of the Panchnama and the

Attendance Register, Certificate (Ex.D/7) was issued.

Similarly, DW7 Chandrabhan Singh alias Chandu, who is brother-in-law of Kuldeep deposed that on 16.03.2003, Kuldeep had visited his house at

Datawali. He had pain in the stomach, therefore, he had taken Kuldeep to Bandha (UP) for treatment on 21.03.2003, where they had consulted Dr. J.

K. Nigam. On advice of the doctor, he had taken back Kuldeep to his Village Datawali and on 24.03.2003, he had again taken Kuldeep to the doctor

and back to Datawali and Kuldeep was in his home till 27.03.2003. He had left his Village for Mehdawa on 28.03.2003.

Learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rana Pratap & Others v.

State of Haryana as reported in AIR 1983 SC 680 to impress upon this Court that the evidence of prosecution witnesses cannot be discarded on the

ground that they did not react in a particular manner. It has been held that every person who witnesses a murder reacts in his own way. Some are

stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to

keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking

the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground

that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of State of Punjab v. Wassan Singh & Others as

reported in AIR 1981 SC 697, wherein the ratio is that mere fact that the witnesses had succeeded in escaping unhurt, or that there are discrepancies

in the statements of the witnesses is no ground for holding that they were not eye-witnesses. It has been held that where the witnesses were

examined at the trial 17 months after the incident, such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the

statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination. It has been

further held that relatives or interested witnesses cannot be rejected merely because they are relatives or interested witnesses.

Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Angad v. State of Maharashtra as reported in AIR 1981

SC 1227, wherein the ratio is that the evidence of eye-witnesses cannot be rejected only on the ground that they did not intervene to save the

deceased.

Thus, placing reliance on the aforesaid three judgments, the learned counsel for the State submits that the acquittal of the respondents is uncalled

for and needs to be set aside. It is submitted that the acquittal is based on hypothesis developed by the learned Sessions Court to the effect that the

reaction of wife PW7 Munni is unnatural and she was not an eye-witness. Similarly, deposition of PW5 Ramveer has been doubted.

Learned counsel for the respondent has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Chandrappa & Others

v. State of Karnataka as reported in (2007) 4 SCC 415, wherein the ratio is that in an appeal against acquittal, where two views are possible on

evidence on record, one taken by trial Court in favour of accused should not be disturbed by the appellate Court.

Learned counsel for the respondents-accused has placed reliance on the judgment of the Hon'ble Supreme Court in the case of M.C. Ali &

Another v. State of Kerala as reported in 2010 Cri.L.J. 2791, wherein the ratio is that all witnesses are/were interested and their evidence is not

independently corroborated, then only one conclusion consistent with guilt of accused was not possible and, therefore, in the facts and circumstances,

acquittal of accused by the trial Court cannot be interfered with.

Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Anjan Kumar Sarma & Others v. State of Assam

as reported in AIR 2017 SC 2617, wherein the ratio is that in a murder case while appreciating the circumstantial evidence like last seen theory if

proof of other circumstances are absent and only circumstance of last seen together is available, then even in absence of satisfactory explanation of

the accused, cannot be made basis of conviction.

Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Antar Singh v. State of Madhya Pradesh as reported

in AIR 1979 SC 1188. In this case, the Hon'ble Supreme Court has held that in an appeal against acquittal, though the powers of the High Court in

dealing with the case are as extensive as of the trial Court, but before reversing the acquittal, the High Court should bear in mind that the initial

presumption of the innocence of the accused is in no way weakened, if not reinforced, by his acquittal at the trial and further the opinion of the trial

Court, which had the advantage of observing the demeanour of the witnesses, as to the value of their evidence should not be lightly discarded. Where

two views of the evidence are reasonably possible, and the trial Court has opted for one favouring acquittal, the High Court should not disturb the

same merely on the ground that if it were in the position of the trial Court, it would have taken the alternative view and convicted the accused

accordingly.

Recently the Hon’ble Supreme Court in the case of Kunna alias Sanjay Behra v. State of Orissa as reported in (2018) 1 SCC 296 has held

that the testimony of solitary eye-witness related both to deceased and appellant-accused as a witness to murder is wholly unacceptable being fraught

with improbabilities, doubts and oddities, therefore, when the testimonies of other witnesses fall short of requirement of charge beyond reasonable

doubt and when inference of motive is also not available, then appellants deserve acquittal.

Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Tota Singh & Another v. State of Punjab as reported

in AIR 1987 SC 1083. The ratio is again the same that no interference is to be made with the order of the acquittal unless the approach made by the

lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is

such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterized as

perverse.

In the present case, the learned Sessions Judge has recorded acquittal of the accused persons Narendra Singh and Kuldeep on the basis of the

conduct of wife of deceased PW3 Munni Devi and also on the ground that though some persons were working in the adjoining field, but none of them

were called as a witness and the conduct of Munni Devi in not reporting the matter in the Village, but reporting it to Shailendra on way to the Village,

treating her conduct to be unnatural. Similarly, it has recorded another finding in para 24 that PW6 Seema was the informant at the Police Station on

whose instance Roznamcha entry Ex.P/13 was recorded and in this Roznamcha entry, the name of only two accused Munna and Gyanendra has been

mentioned, therefore, the learned Sessions Court reached to a conclusion that at the time of recording of dehati nalishi, the name of the accused was

not included in the persons involved in the incident. Trial Court has also appreciated the evidence of PW5, which was to the effect that PW5 Ramveer

has included the name of the accused persons due to old enmity and it has also come on record that Ramveer and son of the deceased had met the

accused persons in the jail demanding a sum of Rs.5.00 Lacs. In fact, DW3 Gajendra Singh Bhadoria a Warder at Sub-Jail, Lahar deposed on

appearing before the Court with the Meeting Register dated 17.07.2003 upto 23.08.2004. On 10.01.2004, Ramveer Singh Son of Sudama Singh had

come to meet Narendra Singh son of Shiv Baksh Singh and his name is mentioned at Sr.No.8 in Ex.D/1-C. Similarly, on 24.01.2004, Ramveer Singh

Son of Sudama Singh had come to meet Kuldeep Son of Sukhveer and on 27.01.2004, Shivkaran Son of Indraveer Singh had visited Jail to meet

Kuldeep Singh and entries of which were exhibited as Ex.D/2C and Ex.D/3-C respectively. All these meetings took place before recording of

evidence of Ramveer (PW5) and Munni (PW7) and Seema (PW6), whose statements were recorded before the Court on 23.06.2004.

Learned Sessions Court has also relied on the evidence of defence witness Rajaram (DW1), who deposed that since the wife of Kuldeep was

suffering from TB, therefore, when he had collected information about TB patients, he had come to know the fact that Kuldeep had visited his in-laws

place and this evidence has remained unrebutted. This evidence is supported by DW7 Chandrabhan Singh and DW6 Dr. J.K. Nigam who has

supported that he had given treatment to Kuldeep on 21.03.2003 and had again examined him on 24.03.2003 and then again he had visited the doctor

on 27.03.2003.

Similarly, DW9 Uday Singh deposed that he works with Narendra as helper while Narendra is a handpump mechanic and had visited Village

Matiyavali Buzurg on 23.03.2003. They had reached Village Matiyavali Buzurg at about 4.00 PM and had repaired the handpump on 24.03.2003 at

about 8-9 AM. They had taken their meals at place of Gandharv Singh and Narendra had taken rest at the place of Sarpanch Gambhir Singh. They

had obtained a Panchnama for repairs of the handpump and handed over to the Sarpanch, which was, in turn, submitted to the Sub-Engineer Mahesh

Chandra Dubey on 24.03.2003 from where in the afternoon, Police had taken Narendra.

DW4 Gandharv Singh corroborated the statements of DW9 Uday Singh that Narendra Singh had stayed at his place for night rest on 23.03.2003

and had visited the Village on 24.03.2003 at about 9.00 AM alongwith Uday Singh to repair the handpump and he had given acknowledgment to this

effect.

DW8 Mahesh Chand Dubey, Sub Engineer also deposed that on 24.03.2003 Narendra had visited him after repairing the handpump at about 10-

10.30 alongwith Panchnama of Sarpanch Ex.P/6.

DW5 K.C. Jha also supported the presence of Narendra Singh at Jansankhya Niwaran Shibir at Block Raun in presence of Incharge Assistant

Engineer from Lahar.

Learned Sessions Judge has also discarded Ex.P/7, seizure memo of a knife drawn on 27.03.2003, whereas Narendra Singh was arrested on

24.03.2003 specially when the prosecution failed to point out that there were blood stains on the seized knife.

Learned Sessions Judge has also appreciated the fact that as per Ex.P/3, a white Safi with green border was found close to the dead body.

Similarly, another Safi with black border was found close to the dead body. But neither PW5 Ramveer nor PW7 Munni deposed that said Safis have

any connection with the accused persons.

In view of such facts, this Court is of the opinion that the law laid down in the case of Angad (supra) will not help the prosecution because the

acquittal has not only been recorded on the doubtful conduct of PW7 Munni and PW5 Ramveer, but also taking into consideration the totality of the

facts and circumstances and the defence witnesses, which have been produced to support alibi that the accused persons Kuldeep and Narendra were

not available at the place of crime.

Similarly, the judgments rendered by the Hon’ble Supreme Court in the cases of State of Punjab v. Wassan Singh (supra) and Rana Pratap

(supra) stand distinguished on the above appreciation and also the fact that names of both Kuldeep and Narendra are not mentioned in the Roznamcha

Sanha, which is the first information given by PW6 Seema, daughter of the deceased at the Police Station. No reason has been assigned as to what

prevented Seema from taking names of the present accused when she had given intimation at the Police Station.

Now in the light of the law laid down in the case of Tota Singh v. State of Punjab as reported in 1987 AIR (SC) 1083 since there is no material on

record to show that the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could

not have been possible, the findings of the Sessions Court is not called for. In fact, in the light of the law laid down by the Hon’ble Supreme Court

in the case of Chandrappa (Supra) where the ratio is that even if two views are possible on the basis of evidence on record, one taken by the trial

Court in favour of the accused should not be disturbed by the appellate Court. Similar is the view in the cases of Antar Singh (supra) and M.C. Ali

(supra).

In fact in the present case, evidence of PW7 Munni and PW5 Ramveer are not independently corroborated by the evidence of PW1 Shailendra

and other prosecution witnesses. It has come on record that the accused persons had old enmity with Ramveer and they were not available at the

scene of crime as Kuldeep was visiting his wife at Banda, who was suffering from TB and Narendra was visiting another village in the Block to repair

the tubewell, therefore, on the basis of two aspects of the evidence, namely, absence of the name of the accused persons in the Roznamcha and their

old enmity with Ramveer coupled with possible alibi of their not being present on the scene of crime, as no independent witnesses have been examined

despite showing their presence in the neighbouring fields, makes it a lost case for the prosecution, which they have failed to rebut through any cogent

evidence. Thus, the judgment of acquittal recorded by the learned Sessions Court does not call for any interference. Hence, the appeal fails and is

dismissed. Record of the trial Court be sent back.