Madhya Pradesh High Court
Nathu Singh vs The State Of M.P. on 30 April, 2021
Author: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
DB : G.S. Ahluwalia & Rajeev Shrivastava J.J.
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Shri V.K. Saxena, Senior Advocate (through Video Conferencing) with
Shri Ayush Saxena, Advocate for Appellants Nathu Singh and Ramvir
Singh (Cr.A.s No. 397/2005 and 425/2005)
Shri Atul Gupta, Counsel for appellant Ghanshyam Singh (Cr.A. No.
401/2005)
Shri B.P.S. Chouhan, Public Prosecutor for State
Shri R.K. Sharma, Senior Advocate (through video conferencing) with
Shri M.K. Choudhary, Advocate for the complainant.
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Date of conclusion of hearing : 9-4-2021
Date of Judgment : 30.04.2021
Whether approved for reporting : Yes/No
Judgment
(Passed on 30/04/2021)
Per G.S. Ahluwalia J.
1. Cr.A. No. 584/2008 (State of M.P. Vs. Ramant Singh) has been
filed by the State of M.P., against the acquittal of Ramant Singh in
cross S.T. No. 229/2003. Similarly, State of M.P. has filed Cr.A. No.
790/2005 against the acquittal of 7 co-accused persons, in the present
case. In the light of the judgment passed by the Supreme Court in the
case of Nathilal & Ors. Vs. State of U.P. & Anr. reported in 1990
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Supp SCC 145 the present appeal as well as Cr.A. No. 790/2005 and
Criminal Appeal No. 584/2008 arising out of cross case were heard
simultaneously, and accordingly, judgments in all the cases are being
pronounced on the same day.
2. By this common Judgment, Criminal Appeals filed by Nathu
Singh (Cr.A. No. 397/2005), Ghanshyam Singh (Cr.A. No. 401/2005)
and Ramvir Singh (Cr.A. No. 425/2005) shall be decided.
3. All the three Criminal Appeals have been filed under Section
374 of Cr.P.C., against the judgment and sentence dated 20-5-2005
passed by 2nd Additional Sessions Judge, Morena in Sessions Trial No.
37/2001, by which appellant Ramvir Singh has been convicted under
Section 302 of I.P.C. (two counts), under Section 302/34 of I.P.C. (two
counts) and under Sections 307/34 of I.P.C. (two Counts), whereas
appellants Nathu Singh and Ghanshyam Singh have been convicted
under Section 302/34 of I.P.C. (four counts) and 307/34 of I.P.C(two
counts). Nathu Singh and Ghanshyam have been sentenced to undergo
Life Imprisonment and a fine of Rs. 1000/- for offence under Section
302/34 of I.P.C. (four counts) and rigorous imprisonment of 7 years
and fine of Rs. 500/- for offence under Section 307/34 of I.P.C. (two
count). Similarly Ramvir Singh has been sentenced to undergo Life
Imprisonment and a fine of Rs. 1000/- for offence under Section 302
of I.P.C. (two counts), & for 302/34 of I.P.C. (two counts), and
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
rigorous imprisonment of 7 years and fine of Rs. 500/- for offence
under Section 307/34 of I.P.C. (two counts). All the sentences have
been directed to run concurrently.
4. It is not out of place to mention here that on the report lodged by
one Angad Singh, Crime No. 203/2000 was registered by Police
Station Porsa, Distt. Morena, against unknown persons, for committing
murder of Brajesh. The complainant party of the present case was
tried for the said offence. By a separate judgment passed by the Trial
Court, Ramant Singh (P.W.1) was extended the benefit of right of
private defence and other 9 accused persons were acquitted.
Accordingly, all the accused persons in S.T. No. 229/2003 (Arising out
of Crime No. 203/2000, registered at Police Station Porsa, Distt.
Morena) were acquitted. The State had challenged the acquittal of all
the 10 persons in the cross case by filing M.Cr.C. No. 3966/2005 and
by order dated 30-7-2008, this Court granted leave to file appeal
against acquittal of Ramant Singh (P.W.1) only and the application for
grant of leave to appeal against acquittal of other 9 co-accused persons
was dismissed.
5. In the present case, total 10 persons were tried for committing
murder of Keshav, Jaswant, Raghunath @ Chhote Singh, Mamta and
for making an attempt to murder Smt. Gomati (P.W. 13) and Manohar
Singh (P.W.16). Three persons, namely Nathu Singh (Cr.A. No.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
397/2005), Ghanshyam Singh (Cr.A. No. 401/2005) and Ramvir Singh
(Cr.A. No. 425/2005) have been convicted, whereas Mahendra @
Kallu Singh, Kaushlendra, Sindhi Singh, Dinesh Singh Tomar, Kallu
@ Kalyan Singh, Mahesh Singh Tomar, Rajesh Singh Sikarwar have
been acquitted.
6. It is the case of the prosecution that after F.I.R. in crime no.
203/2000 was lodged, the police party went to village Khoyala.
During the investigation of the said case, the police party came to
know that more persons have been killed in the village. Accordingly
on 16-10-2000, at about 23:00, Dehati Nalishi, Ex. P.1 was lodged by
Ramant Singh (P.W.1) on the allegations, that a function was going on
in his house on the occasion of birth of his son. He was serving food.
The sitting room (Baithak)of Ramvir Singh Tomar, is situated by the
side of his house. Kaushlendra Singh, Bhanupratap Singh Tomar,
Kallu Singh, Mahendra Singh Tomar, started bursting crackers towards
the house of the complainant. It was objected by Manohar Singh.
Thereafter, these persons, started pelting stones on the house. Nathu
Singh, came there with .12 bore gun, whereas Ghanshyam Singh came
there with .12 bore gun. Ramvir Singh also came there with his
mouser gun. They started firing towards the house of the complainant.
Ramvir Singh shot Jaswant and Keshav, whereas Ghanshyam Singh
[Note : The name of Ramvir Singh has been substituted by mentioning
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Ghanshyam Singh] shot Chhote Singh, as a result they expired on the
spot. Nathu Singh caused gun shot injury to Manohar Singh, whereas
Ghanshyam caused injury to Mamta, wife of Naresh Singh. Ladies
were having their meals inside the house. The above mentioned
persons, entered inside the house and started beating as well as also
fired, as a result Gomati bai has also sustained injuries. The dead
bodies of Keshav Singh, Jaswant Singh, Raghunath are lying in front
of the door of his house and Gomati, Manohar Singh and Mamta are
injured. Nathu Singh (another person), Sudesh Singh, Virendra Singh,
Sultan Singh, Vinod Kumar came on the spot, and thereafter, the
assailants ran away. While fleeing away, they also extended a threat
that they would kill more persons. As he was scared, therefore,
immediately did not go to the police station to lodge the report. For
the last 2 years, they are not on visiting terms and on that issue they
are on inimical terms.
7. Thereafter, the F.I.R., Ex. P.10 was lodged. The police sent the
injured persons, namely Mamta, Gomati and Manohar Singh for
medical treatment. On 17-10-2000, Smt. Mamta lost her life during
her treatment. The postmortem of the dead bodies was conducted. The
blood stained and plain earth was seized. Live, empty cartridges and
misfired cartridges of .12 and .315 bore were seized from the spot.
The accused persons were arrested. Fire arms were seized. Site plans
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
were prepared. The M.L.C. reports of the injured persons were
obtained. The report from F.S.L. Sagar was obtained. The report from
armorer was also obtained and after concluding investigation, the
police filed charge sheet against Ghanshyam Singh, Nathu Singh,
Kallu @ Kalyan Singh, Mahendra @ Kallu, Sindhi Singh, Rajesh
Sikarwar, Dinesh Tomar, for offence under Sections
302,307,147,148,149,45 of I.P.C. and under Section 25/27 of Arms
Act. Bhanu Pratap Singh was a Juvenile. Since, Ramvir,
Kaushlendra and Mahesh were absconding, therefore, investigation
against them was kept pending under Section 178(3) of Cr.P.C. The
case was committed on 1-2-2001 against Ghanshyam Singh, Mahendra
Singh @ Kallu, Rajesh Singh, Sindhi Singh, Kallu Singh @ Kalyan,
Dinesh Singh and Nathu Singh. Lateron, Kaushlendra Singh was also
arrested and accordingly, on 7-5-2001, supplementary charge sheet
was filed against Kaushlendra Singh and the case was committed.
Lateron, Ramvir Singh, and Mahesh Singh were also arrested and
supplementary charge sheets were filed. The case against Mahesh
Singh and Ramvir Singh was committed on 4-12-2001.
8. It is not out of place to mention here that it appears from the
record of the Court of J.M.F.C., Ambah, Distt. Morena, that initially,
Dinesh, Ghanshyam, Nathu Singh, Mahesh Singh, Kaushlendra Singh,
and Ramvir were absconding, accordingly, proclamation under Section
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
82 of Cr.P.C. was issued against Ramvir Singh Tomar, Mahesh Singh,
Kaushlendra Singh, Nathu Singh, and Ghanshyam Singh. On 26-2-
2001, an application under Section 83 of Cr.P.C. was also filed for
attachment of the property of Ramvir Singh.
9. Be that as it may.
10. The Trial Court by order dated 27-6-2001, framed charges
against Mahendra @ Kallu Singh, for offence under Sections 148, 324
(for assaulting Ramant Singh by lathi), 302/149 (for causing murder of
Mamta by Ghanshyam), 302/149 (for causing murder of Keshav by
Ramvir), 302/149 (for committing murder of Jaswant by Ramvir),
302/149 (for committing murder of Chhotelal @ Raghunath by
Ghanshyam), 307/149 (for making an attempt to commit murder of
Manohar Singh by Nathu Singh), 307/149 (for making an attempt to
commit murder of Manohar Singh by Kaushlendra Singh), 307/149
(for making an attempt to commit murder of Gomati by Nathu Singh).
11. By order dated 27-6-2001, the Trial Court framed charges
against Rajesh Singh, Sindhi Singh, Dinesh Singh, Kallu @ Kalyan
Singh, for offence under Sections 148, 324/149 (for assaulting Ramant
Singh by lathi by Mahendra @ Kallu Singh), 302/149 (for causing
murder of Mamta by Ghanshyam), 302/149 (for causing murder of
Keshav by Ramvir), 302/149 (for committing murder of Jaswant by
Ramvir), 302/149 (for committing murder of Chhotelal @ Raghunath
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
by Ghanshyam), 307/149 (for making an attempt to commit murder of
Manohar Singh by Nathu Singh), 307/149 (for making an attempt to
commit murder of Manohar Singh by Kaushlendra Singh), 307/149
(for making an attempt to commit murder of Gomati by Nathu Singh).
Similar charges were framed against Mahesh Singh on 3-1-2002.
12. By order dated 27-6-2001, charges were framed against
Kaushlendra Singh for offence under Sections 148 of I.P.C., 324 of
I.P.C.(for assaulting Ramant Singh by lathi by Mahendra @ Kallu
Singh), 302/149 of I.P.C.(for causing murder of Mamta by
Ghanshyam), 302/149 of I.P.C. (for causing murder of Keshav by
Ramvir), 302/149 of I.P.C.(for committing murder of Jaswant by
Ramvir), 302/149 of I.P.C.(for committing murder of Chhotelal @
Raghunath by Ghanshyam), 307/149 of I.P.C.(for making an attempt to
commit murder of Manohar Singh by Nathu Singh), 307 of I.P.C. (for
making an attempt to commit murder of Manohar Singh , 307/149 of
I.P.C. (for making an attempt to commit murder of Gomati by Nathu
Singh).
13. By order dated 27-6-2001, charges were framed against Nathu
Singh for offence under Sections 148 of I.P.C., 324/149 of I.P.C.(for
assaulting Ramant Singh by lathi by Mahendra @ Kallu Singh),
302/149 of I.P.C.(for causing murder of Mamta by Ghanshyam),
302/149 of I.P.C. (for causing murder of Keshav by Ramvir), 302/149
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
of I.P.C.(for committing murder of Jaswant by Ramvir), 302/149 of
I.P.C.(for committing murder of Chhotelal @ Raghunath by
Ghanshyam), 307 of I.P.C. (for making an attempt to commit murder
of Manohar Singh), 307/149 of I.P.C. (for making an attempt to murder
Manohar Singh by Kaushlendra Singh), 307 of I.P.C. (for making an
attempt to commit murder of Gomati ).
14. By order dated 27-6-2001, charges were framed against
Ghanshyam Singh for offence under Sections 148 of I.P.C., 324/149 of
I.P.C.(for assaulting Ramant Singh by lathi by Mahendra @ Kallu
Singh), 302 of I.P.C.(for causing murder of Mamta), 302/149 of I.P.C.
(for causing murder of Keshav by Ramvir), 302/149 of I.P.C.(for
committing murder of Jaswant by Ramvir), 302 of I.P.C.(for
committing murder of Chhotelal @ Raghunath), 307/149 of I.P.C. (for
making an attempt to commit murder of Manohar Singh by Nathu
Singh), 307/149 of I.P.C. (for making an attempt to murder Manohar
Singh by Kaushlendra Singh), 307/149 of I.P.C. (for making an attempt
to commit murder of Gomati by Nathu Singh).
15. By order dated 24-7-2002, charges were framed against Ramvir
Singh for offence under Sections 148 of I.P.C., 324/149 of I.P.C.(for
assaulting Ramant Singh by lathi by Mahendra @ Kallu Singh),
302/149 of I.P.C. (for causing murder of Mamta by Ghanshyam), 302
of I.P.C. (for causing murder of Keshav), 302 of I.P.C.(for committing
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
murder of Jaswant), 302/149 of I.P.C.(for committing murder of
Chhotelal @ Raghunath by Ghanshyam), 307/149 of I.P.C. (for making
an attempt to commit murder of Manohar Singh by Nathu Singh),
307/149 of I.P.C. (for making an attempt to murder Manohar Singh by
Kaushlendra Singh), 307/149 of I.P.C. (for making an attempt to
commit murder of Gomati by Nathu Singh).
16. All the accused persons abjured their guilt.
17. The prosecution in support of its case, examined Ramant Singh
(P.W.1), Rajveer Sharma (P.W.2), Surendra Singh (P.W.3), M.P. Shukla
(P.W.4), Lalaram (P.W.5), Dr. Ravindra Singh Sikarwar (P.W.6), R.
Kanhaiya Singh (P.W.7), Jitendra Singh Bhadauria (P.W.8), Dr. Meera
Bandil (P.W.9), Mewaram (P.W.10), Dr. S.K. Sharma (P.W.11), Lakhan
Singh (P.W.12), Gomati Bai (P.W.13), Dr. D.C. Parashar (P.W.14), Smt.
Rajabeti (P.W.15), Manohar Singh Tomar (P.W.16), Kumher Singh
(P.W. 17), Dinesh Sharma (P.W.18), D.R. Mishra (P.W.19) R.S.
Ghuraiya (P.W. 20), and Vinod Kumar (P.W.21).
18. In defence, Ghanshyam Singh (D.W.1), Binda Singh Sengar
(D.W.2), Parwat Singh Sengar (D.W.3), were examined by the accused
persons.
19. The prosecution relied upon Dehati Nalishi, Ex. P.1/D.25, Crime
Details Form, Ex. P.2, Safina Form, Ex. P.3, Safina Form, Ex. P.4, site
plan, Ex. P.6, site plan, Ex. P.7, site plan, Ex. P.8, Seizure of Cloths,
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Intestine, liver, Heart, Spleen, Kidney and Lungs of deceased Mamta,
as well as bullet recovered from her body and other articles, Ex. P.9,
F.I.R., Ex. P.10/D.26, Requisition for M.L.C. of Gomati, Ex.
P.11,11A/D.8, Requisition for M.L.C. of Manohar Singh Ex.
P.12,12A/D.9,D.10, Requisition for M.L.C. of Mamta, Ex. P.13/D.11,
M.L.C. of Mamta, Ex. P.13A/D.12, Intimations under Section 174 of
Cr.P.C., Ex. P.14,15,16, Seizure Memo, Ex. P.17, Sanction for
prosecution, Ex. P.18, Report of Armorar, Ex. P.19, Intimation of death
of Mamta, Ex. P.20, .......... P.21 Not in the paper book as well as in the
original record, X-ray report, Ex. P.22, X-ray report, Ex. P.23, X-ray
report Ex. P.25, Seizure Memo, Ex. P.26, Requisition for post mortem
of Mamta, Ex. P.27, Post Mortem report of Mamta Ex. P.28, Seizure
memo of 12 bore rifle, Ex. P.29, F.I.R., Ex. P.30, case diary statement
of Sultan Singh,Ex. P.31, Requisition for Postmortem of Keshav
Singh, Ex. P.32/D.1, Postmortem report of Keshav, Ex. P.33/D.2,
Requisition of Postmortem of Raghunath Singh, Ex. P.34/D3,
Postmortem report of Raghunath Singh, Ex. P.35/D.4, Requisition for
Postmortem of Jaswant Singh, Ex. 36/D.5, Postmortem report of
Jaswant Singh, Ex. P.37/D.6, Memo to F.S.L., Sagar, Ex. P.38, Report
of F.S.L. Sagar, Ex. P.39, Seizure memo of Mouser Gun, Ex. P.40,
Arrest Memo of Mahendra Singh Tomar, Ex. P.41, Arrest Memo of
Rajesh Singh Sikarwar, Ex. P.42, Arrest Memo of Bhanupratap Singh
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Tomar, Ex. P.43, Arrest Memo of Sindhi Singh Tomar, Ex. P.44,
Memorandum under Section 27 of Evidence Act, Ex. P.45, Seizure
Memo of Lathi, Ex. P.46, Arrest Memo of Kallu Singh Tomar, Ex.
P.47, Arrest Memo of Ghanshyam Singh Tomar, Ex. P.48, Arrest Memo
of Nathu Singh, Ex. P.49, Memorandum under Section 47 of Evidence
Act, Ex. P.50, Memo to F.S.L. Sagar, Ex. P.51, Report of F.S.L. Sagar,
Ex. P.52, Report of F.S.L. Sagar, Ex. P.53.
20. The defence relied upon case diary statement of Ramant Singh,
Ex. D.1, F.I.R., Ex. D.2, case diary statement of Gomati bai, Ex. D.3,
case diary statement of Rajabeti, Ex. D.4, case diary statement of
Manohar Singh, Ex. D.5, Certified copy of charge sheet, Ex. D.6, List
of evidence, Ex. D.7, certified copy of Kaushlendra Singh, Ex. D.8,
certified copy of statement of Rajesh Singh Sikarwar, Ex. D.9, certified
copy of statement of Brajesh Singh Tomar, Ex. D.10, certified copy of
order sheet, Ex. D.11, certified copy of order sheet Ex. D.12, ceritified
copy of judgment dated 16-11-2002, Ex. D.13, certified copy of F.I.R.,
Ex. D.14, certified copy of Police charge sheet Ex. D.15, site plan,
Ex.D.16, case diary statement of Kumher Singh, Ex. D.17, Dying
Declaration, Ex. D.18, certified copy of requisition for postmortem of
Brajesh, certified copy of postmortem report of Brajesh, certified copy
of site plan, Ex. D.21, Copy of Rojnamcha Ex. D.22 and D.23,
Certified copy of Judgment dated 30-11-1991, Ex. D.24, Certified
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
copy of Judgment dated 30-11-1991, Ex. D.25, Copy of Rojnamcha
Ex. D.26, Certified copy of Habeas Corpus No. 2/2001, Certified copy
of order dated 8-1-2001, Ex. D. 28, Certified copy of order sheet, Ex.
D.29, and Certified copy of order sheet Ex. D.30.
21. The Trial Court, by impugned judgment and sentence dated 20-
5-2005 acquitted Mahendra @ Kallu Singh, Kaushlendra Singh,
Sindhi Singh, Dinesh Singh Tomar, Kallu @ Kalyan Singh,Mahesh
Singh Tomar and Rajesh Singh Sikarwar. However, convicted and
sentenced Nathu Singh, Ghanshyam Singh and Ramvir Singh for the
Offences mentioned in para 3 of this judgment.
22. Challenging the conviction and sentence awarded by the Trial
Court, it is submitted by the Counsels for the appellants, that the Trial
Court has ignored the material omissions, contradictions, and
embellishments. It is submitted that the witnesses are "related" and
"interested witnesses". The appellants have been falsely implicated, as
Brajesh was killed by the complainant party and in order to mount
pressure, they have falsely deposed against the appellants. The
appellants and the complainant party were on inimical terms and the
prosecution of the appellants is the outcome of said enmity. In support
of their contention, the Counsels for the appellants have relied upon
Para 3 to 7, 46, 53, 54, 82, 94, 96, 103, 105, 141, 142, 148, 150 of
evidence of Ramant Singh (P.W.1), Para 4, 16, 23, 72 of Gomtibai
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
(P.W.13), Para 2, 5, 9, 16, 17, 23, 28, 53 and 54 of Rajabeti (P.W. 15),
Para 3, 20, 22, 23, 31, 32, 34, 43, 52, 53, 76, 81, 96 and 97 of Manohar
Singh (P.W. 16), Paa 3,8,11,13,23,37 and 78 of Kumher Singh (P.W.
17).
23. Per contra, the Counsel for the State and the complainant have
supported the findings recorded by the Trial Court.
24. Heard the learned Counsel for the parties.
25. The First question for consideration is that whether Keshav,
Raghunath @ Chhote Singh, Jaswant and Mamta died a homicidal
death or not?
26. Dr. D.C. Parashar (P.W. 14) and team of other Doctors had
conducted Postmortem of Keshav. The Requisition for postmortem of
Keshav is Ex. P.32. The postmortem was conducted by a team of
Doctors. The following injuries were found on the dead body of
Keshav :
1. Entry Wound : On left side of chest measuring 2 x 1.5
cm oval shaped inverted margins blackening present,
situated 6 cm below and lateral to the left nipple direction
downward towards right side.
2. Exit Wound : Situated on back mid line 25 cm below
neck, measuring 3 cma x 2.5 cm margins Everted. Wound
lacerated. Blood clot present.
On internal examination, 9th and 10th vertebra were found
broken. Left lung was burnt. Heart was empty.
The cause of death was excessive hemorrhage as a result of
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
injuries to vital organs. The Postmortem report is Ex. P.33.
27. The requisition for postmortem of Raghunath @ Chhote Singh
is Ex. P.34. The postmortem was done by a team of Doctors. The
following injuries were found on the body of deceased Raghunath @
Chhote Singh :
1. Entry Wound : Right side of chest on anterial axillary
line 4 cm x 2 ½ cm direction downward. Inverted margins
blackening present. Situated 7 cm below lateral to the right
nipple
2. Entry Wound : On right chest measuring 3.x 2.5 x 2.5
cm below the injury no.1. Inverted margins. Blackening
present.
On internal examination, chest wall, right lung were found
lacerated, both chambers of heart were empty. There was a fracture of
9th and 10th thoracic vertebra. Three pallets were found lodged inside
measuring 1.5x1cm, 1.5x1 and 1x1cm. Pallets were removed and were
sealed and handed over to the Police Constable. The cause of death
was excessive hemorrhage as a result of injuries to vital organs. The
Postmortem report is Ex. P.35.
28. The requisition for postmortem of Jaswant is Ex. P. 36. The
postmortem was done by a team of Doctors. The following injuries
were found of the body of deceased Jawant Singh :
1. Entry Wound : Left side of chest measuring 1.8x1.5 cm
oval in shape. Inverted margins. Blackening present 5.5
cm medial to the left nipple. Direction downward laterally.
2. Exit Wound : Measuring 3cm x 2 cm on the left side
back 2 cm below the lnferior border of left scapula.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
On internal examination, left lung was teared. Heart was teared
and empty. Left 7th rib was fractured. The cause of death was
excessive hemorrhage as a result of injuries to vital organs. The
Postmortem report is Ex. P.37.
29. Dr. Meera Bandil (P.W.9) and Dr. S.K. Sharma (P.W. 11) had
conducted Postmortem of Deceased Mamta. The requisition for
postmortem is Ex. P. 27. This witness has stated that She along with
Dr. S.K. Sharma had conducted the Postmortem. The postmortem
report is in the handwriting of Dr. S.K. Sharma. This witness has
proved her signatures on the Postmortem report of deceased Mamta,
Ex. P.28.
30. Dr. S.K. Sharma (P.W. 11) had conducted the postmortem of
deceased Mamta. As per the postmortem report, following injuries
were found on the dead body of deceased Mamta :
1. One lacerated wound with charring ring around the
2.15 elliptical direction medially - posterior over right
lumber abdominal part. Its track is going in abdomen
puncturing internal loops, mesenteric aortic (Abd., Aorta
and vein) punctured Left Illiac bone.
2. Exit wound : left upper outer hip, everted margins
elliptical shape 2.5x3cm blood clot with slice of muscle and
skin flap. .5x1 cm curved metallic material was seen in
cavity which was sealed.
3. Three small 1/4x/14 cm charring injury spots seen
over Right thigh, one over Right Trochanter and 2 nd over
upper thigh and third over thigh anterior and one small F.B.
Metallic obtained and sealed.
4. Third charring injury was found on the front side of
lower part of thigh and one 1/4x1/4 size small pellet was
also recovered.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
The cause of death was hemorrhage shock due to injuries due to
gun shot (firearm). The Postmortem report is Ex. P.28.
31. Dr. D.C. Parashar (P.W.14) has also proved the postmortem
report, Ex. D.20, of deceased Brajesh, in respect of which cross case
i.e., Crime No. 203/2000 (S.T. No. 229/2003), was registered against
Ramant Singh (P.W.1), Vinod, Girraj, Suresh Singh, Manohar Singh,
Virendra Singh, Sultan Singh, Nathu Singh son of Madho Singh,
Jaikaran Singh and Ran Singh. The following injuries were found on
the dead body of Brajesh :
The entry wound was on right side over sternum of
chest at last border, 6 cms below the supra sternal notch,
measuring 1.5x1.5cm oval shaped inverted margins, and
blackening was present. The Exit wound was situated on
left side of back of lower border of scapula measuring
3cmx2cm irregular margins everted edges. The certified
copy of requisition for postmortem of Brajesh is Ex. D.19
and certified copy of Postmortem report of Deceased
Brajesh is Ex. D.20.
32. Dr. Mamta Bandil (P.W.9) was not cross examined on the ground
that Dr. S. K. Sharma (P.W.11) has also been cited as prosecution
witness, and since, the postmortem report is in his handwriting,
therefore, he will be cross examined by the Counsel for the accused.
Dr. D.C. Parashar (P.W.14) was cross examined by the Counsel for the
accused persons.
33. Dr. S.K. Sharma (P.W.11) was cross examined by the Counsel for
the appellants. In cross-examination, it was clarified by this witness
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
that gun shot was fired from a parallel place and not from the roof.
34. The deaths of Keshav, Raghunath @ Chhote Singh, Jaswant and
Mamta were homicidal in nature has not been challenged by the
Counsel for the appellants. Therefore, it is not necessary to consider
the evidence of Dr. D. C. Parashar (P.W.14) and Dr. S.K. Sharma
(P.W.11) in detail.
35. From the postmortem reports of Keshav, Raghunath @ Chhote
Singh, Jaswant and Mamta, Ex. P.33, P.35, P.37 and P.28 respectively,
it is clear that all the four persons died due to gun shot injuries
sustained by them and accordingly, it is held that all the four persons
namely Keshav, Raghunath @ Chhote Singh, Jaswant and Mamta died
homicidal death.
36. Now the next question for consideration is that whether Gomati
and Manohar sustained any gun shot injury or not?
37. It is not out of place to mention here that Mamta died during her
treatment in the hospital. Initially Mamta was also medically
examined along with Manohar Singh (P.W. 16) and Gomati (P.W.13).
Dr. D.C. Parashar (P.W.14) had examined all the injured persons. The
requisition for M.L.C. of Gomati bai (P.W.13) is Ex. P.11. Gomati bai
(P.W.13) was examined on 17-10-2000 at 12:35 A.M., in the night.
Following injuries were found on her body :
1. Firearm wound of entrance with intermingle wound of
exit on 2nd bone of right wrist. Margins are inverted and
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Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
everted. Blackening present
2. Lacerated wound on the mid of forearm of right side.
Feeling of hardness on the internal side of writ of forearm.
Hardness and Blackening present. X-ray was advised.
The M.L.C. report of Gomati bai (P.W.13) is Ex. P.11A.
38. The requisition for M.L.C. of Manohar Singh (P.W.16) is Ex. P.12.
Manohar Singh (P.W.16) was medically examined on 17-10-2000 at
12:50 A.M., in the night and following injuries were found :
1 Multiple lacerated wounds present about 7 in number
of various size. Inverted and everted margins present at the
site all over the hip on lower part of back.
2. Lacerated wound in between the buttocks inverted
and everted margins present. Blackening present. The
M.L.C. report of Manohar Singh is Ex. P.12A.
39. The requisition for M.L.C. of Mamta (Died on 17-10-2000
itself) is Ex. P.13. She was medically examined on 17-10-2000 at
12:40 A.M. in the night and following injuries were found on her
body :
1. Firearm gun shot injury wound of entrance on the
right side of abdomen near (Not "legible" but as per
evidence "Navel") inverted margins oval shape. Slightly
blackening present, blood cot with bleeding 1 cm x 1.5 in
the abdomen surface. F.B. In abdomen.
2. Lacerated wound over the left buttock. Irregular
margins, blood cot present 1 ½ cm x ¼ x ¼ x ¼ with diffuse
swelling near wound. The M.L.C. report is Ex. P.13A.
40. Dr. Ravindra Singh Sikarwar (P.W.6) had conducted x-ray of
Gomati bai (P.W.13), Manohar Singh (P.W. 16). The X-ray plate of
Gomati bai (P.W.13) has been marked as Ex. P.21 (However, as per
office noting, X-ray plate of Gomatibai (P.W.13) is missing in the
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Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
official file). In X-ray report of Gomatibai (P.W.13), fracture of distal
1/3rd of right ulna bone was seen. Multiple Metallic radio-opaque
irregular size were present in the soft tissues under the muscles and
laceration of blood vessels of Soft tissues was seen. The X-ray report
of Gomatibai (P.W.13) is Ex. P.22.
41. The x-ray plate of Manohar Singh (P.W.16) is Ex. P.23 and P.24.
In x-ray report, it was found that multiple radio-opaque foreign
bodyshadows of metallic density of different sizes, shapes were present
in both sides of lower abdomen. Right half of (not clear) in the lower
abdomen F.B. Shadows are present. No bony injury was seen. The x-
ray report of Manohar Singh is Ex. P.25.
42. As the Counsel for the appellants have not challenged the
M.L.C. reports of Gomati bai (P.W.13) as well as Manohar Singh (P.W.
16), therefore, it is suffice to say, that Gomati bai (P.W.13) and
Manohar Singh (P.W.16) sustained gun shot injuries and radio-opaque
foreign bodies were also seen in x-ray.
43. Thus, it is held that Keshav, Raghunath @ Chhote Singh,
Jaswant and Mamta died homicidal death, whereas Gomati bai
(P.W.13) and Manohar Singh (P.W. 16) sustained gun shot injuries.
44. Now the next question for consideration is that who killed four
persons and who caused injuries to the injured persons.
45. The prosecution case is based on direct evidence. The
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
prosecution has examined Ramant Singh (P.W.1), Gomati bai (P.W.13),
Rajabeti (P.W. 15), Manohar Singh (P.W. 16) and Kumher Singh
(P.W.17) as eye witnesses.
46. Ramant Singh (P.W.1) had lodged Dehati Nalishi, Ex. P.1,
whereas Gomati bai (P.W.13) and Manohar Singh (P.W.16) are injured
witnesses.
47. Since, four persons have died and two have sustained injuries
and three persons have been convicted, therefore, the role assigned to
each of the appellant shall be considered after deciding as to whether
Ramant Singh (P.W.1), Gomati bai (P.W.13), Rajabeti (P.W. 15),
Manohar Singh (P.W. 16) and Kumher Singh (P.W.17) are reliable
witnesses or not?
48. Ramant Singh (P.W.1) is the son of deceased Keshav Singh and
real brother of deceased Jaswant Singh. He is cousin brother of
deceased Raghunath Singh @ Chhote Singh. Gomati bai (P.W.13) is
not related to deceased Keshav but is the resident of same village.
Thus, She is an independent witness. Rajabeti (P.W. 15) is the widow
of Keshav and mother of deceased Jaswant and Ramant Singh (P.W.1).
Deceased Raghnuath Singh was her nephew. Manohar Singh (P.W. 16)
is the resident of village Khoyala and thus he is an independent
witness. Further, Kumher Singh (P.W. 17) is the father-in-law of the
deceased Mamta, but is not related to Ramant Singh (P.W.1).
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
49. Thus, the first question for consideration is that whether Ramant
Singh (P.W.1), Rajabeti (P.W. 15), and Kumher Singh (P.W.17) are
"interested witnesses" or not?
50. It is well established principle of law that the evidence of a
"related witness" cannot be discarded only on the ground of
relationship. The Supreme Court in the case of Rupinder Singh
Sandhu v. State of Punjab, reported in (2018) 16 SCC 475 has held
as under :
50. The fact that PWs 3 and 4 are related to the deceased
Gurnam Singh is not in dispute. The existence of such
relationship by itself does not render the evidence of PWs 3
and 4 untrustworthy. This Court has repeatedly held so and
also held that the related witnesses are less likely to
implicate innocent persons exonerating the real culprits.
The Supreme Court in the case of Shamim Vs. State (NCT of
Delhi) reported in (2018) 10 SCC 509 has held as under :
9. In a criminal trial, normally the evidence of the wife,
husband, son or daughter of the deceased, is given great
weightage on the principle that there is no reason for them
not to speak the truth and shield the real culprit.............
The Supreme Court in the case of Rizan v. State of
Chhattisgarh, reported in (2003) 2 SCC 661 has held as under :
6. We shall first deal with the contention regarding
interestedness of the witnesses for furthering the
prosecution version. Relationship is not a factor to affect
credibility of a witness. It is more often than not that a
relation would not conceal the actual culprit and make
allegations against an innocent person. Foundation has to
be laid if plea of false implication is made. In such cases,
the court has to adopt a careful approach and analyse
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
evidence to find out whether it is cogent and credible.
7. In Dalip Singh v. State of Punjab it has been laid down
as under: (AIR p. 366, para 26)
"26. A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely.
Ordinarily a close relation would be the last to screen
the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to
drag in an innocent person against whom a witness has
a grudge along with the guilty, but foundation must be
laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any
sweeping generalization. Each case must be judged on
its own facts. Our observations are only made to
combat what is so often put forward in cases before us
as a general rule of prudence. There is no such general
rule. Each case must be limited to and be governed by
its own facts."
8. The above decision has since been followed in Guli
Chand v. State of Rajasthan in which Vadivelu Thevar v.
State of Madras was also relied upon.
9. We may also observe that the ground that the witness
being a close relative and consequently being a partisan
witness, should not be relied upon, has no substance. This
theory was repelled by this Court as early as in Dalip Singh
case in which surprise was expressed over the impression
which prevailed in the minds of the Members of the Bar that
relatives were not independent witnesses. Speaking through
Vivian Bose, J. it was observed: (AIR p. 366, para 25)
"25. We are unable to agree with the learned Judges of
the High Court that the testimony of the two
eyewitnesses requires corroboration. If the foundation
for such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule. If
it is grounded on the reason that they are closely
related to the deceased we are unable to concur. This is
a fallacy common to many criminal cases and one
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
which another Bench of this Court endeavoured to
dispel in -- 'Rameshwar v. State of Rajasthan' (AIR at
p. 59). We find, however, that it unfortunately still
persists, if not in the judgments of the courts, at any
rate in the arguments of counsel."
10. Again in Masalti v. State of U.P. this Court observed:
(AIR pp. 209-10, para 14)
"But it would, we think, be unreasonable to contend
that evidence given by witnesses should be discarded
only on the ground that it is evidence of partisan or
interested witnesses. ... The mechanical rejection of
such evidence on the sole ground that it is partisan
would invariably lead to failure of justice. No hard-
and-fast rule can be laid down as to how much
evidence should be appreciated. Judicial approach has
to be cautious in dealing with such evidence; but the
plea that such evidence should be rejected because it is
partisan cannot be accepted as correct."
11. To the same effect is the decision in State of Punjab v.
Jagir Singh and Lehna v. State of Haryana.
51. Thus, it is clear that the evidence of a "related witness" cannot
be discarded only on the ground of relationship. On the contrary, why
a "related witness" would spare the real culprit in order to falsely
implicate some innocent person? There is a difference between
"related witness" and "interested witness". "Interested witness" is a
witness who is vitally interested in conviction of a person due to
previous enmity. The "Interested witness" has been defined by the
Supreme Court in the case of Mohd. Rojali Ali v. State of Assam,
reported in (2019) 19 SCC 567 as under :
13. As regards the contention that all the eyewitnesses are
close relatives of the deceased, it is by now well-settled that
a related witness cannot be said to be an "interested" witness
merely by virtue of being a relative of the victim. This Court
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
has elucidated the difference between "interested" and
"related" witnesses in a plethora of cases, stating that a
witness may be called interested only when he or she derives
some benefit from the result of a litigation, which in the
context of a criminal case would mean that the witness has a
direct or indirect interest in seeing the accused punished due
to prior enmity or other reasons, and thus has a motive to
falsely implicate the accused (for instance, see State of
Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani
v. Rayapati Venkat Reddy). Recently, this difference was
reiterated in Ganapathi v. State of T.N., in the following
terms, by referring to the three-Judge Bench decision in
State of Rajasthan v. Kalki: (Ganapathi case, SCC p. 555,
para 14)
"14. "Related" is not equivalent to "interested". A
witness may be called "interested" only when he or she
derives some benefit from the result of a litigation; in
the decree in a civil case, or in seeing an accused
person punished. A witness who is a natural one and is
the only possible eyewitness in the circumstances of a
case cannot be said to be "interested"."
14. In criminal cases, it is often the case that the offence is
witnessed by a close relative of the victim, whose presence
on the scene of the offence would be natural. The evidence
of such a witness cannot automatically be discarded by
labelling the witness as interested. Indeed, one of the earliest
statements with respect to interested witnesses in criminal
cases was made by this Court in Dalip Singh v. State of
Punjab, wherein this Court observed: (AIR p. 366, para 26)
"26. A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against the
accused, to wish to implicate him falsely. Ordinarily a
close relative would be the last to screen the real culprit
and falsely implicate an innocent person."
15. In case of a related witness, the Court may not treat his or
her testimony as inherently tainted, and needs to ensure only
that the evidence is inherently reliable, probable, cogent and
consistent. We may refer to the observations of this Court in
Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para
23)
"23. We are of the considered view that in cases where
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
the court is called upon to deal with the evidence of the
interested witnesses, the approach of the court, while
appreciating the evidence of such witnesses must not
be pedantic. The court must be cautious in appreciating
and accepting the evidence given by the interested
witnesses but the court must not be suspicious of such
evidence. The primary endeavour of the court must be
to look for consistency. The evidence of a witness
cannot be ignored or thrown out solely because it
comes from the mouth of a person who is closely
related to the victim."
52. Thus, if a witness has a direct or indirect interest in seeing the
accused punished due to prior enmity or other reasons, and has a
strong motive to falsely implicate the accused, then he would be called
an "interested witness". Therefore, the evidence of Ramant Singh
(P.W.1), Rajabeti (P.W.15) and Kumer Singh (P.W.17) (as he is father-
in-law of deceased Mamta) shall be considered in the light of the fact
that being "related witness" whether they can be termed as "interested
witness" having any strong motive to falsely implicate the appellants
or not?
53. Dehati Nalishi, Ex. P.1 was lodged by Ramant Singh (P.W.1) at
11:00 P.M. on 16-10-2000. Dehati Nalishi, Ex. P.1 was recorded by
D.R. Sharma (P.W.19). D.R. Sharma (P.W. 19) has stated that he was
posted as S.H.O., Police Station Porsa, Distt. Morena, as the post of
Town Inspector was vacant. On 16-10-2000, Angad Singh lodged a
F.I.R.,Ex. D.2, regarding murder of Brajesh, and accordingly, he went
to village Khoyala. After preparing inquest report, when he went to
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
the sitting room (Baithak) of Ramvir (a room situated away from the
house of Ramvir Singh), then he found that the dead bodies of Keshav,
Jaswant and Raghunath who were father, brother and relative of
Ramant Singh were lying near the house of Ramant Singh (P.W.1).
Mamta, Gomti and Manohar were found in an injured condition. All
of them had sustained gun shot injuries. On 16-10-2000 itself at 11:00
P.M., he recorded the Dehati Nalishi, Ex. P.1 which was lodged by
Ramant Singh (P.W.1). All the three injured persons were sent for
medical examination. Police force was deployed for safety of dead
bodies. Thereafter, R.S. Ghuraiya (P.W. 20) also came there along with
police force and informed this witness, that the Superintendent of
Police, Morena has instructed him to take over the investigation.
Thereafter, the case diary of Crime No. 203/2000 (Cross case) and
Crime No. 204/2000 (present case) was handed over to him. It was
further admitted that on 17-10-2000, he was present along with Shri
Ghuraiya to assist him in investigation. On 17-10-2000, requisition for
postmortem of Keshav Singh, Ex. P.32, Raghunath Singh, Ex. P.34 and
Jaswant Singh, Ex. P.36 were prepared.
54. Thus, it is clear that when this witness reached village Khoyala,
he found that dead bodies of three persons, namely Keshav, Jaswant
and Raghunath were lying near the house of Ramant Singh (P.W.1) and
Ramant Singh (P.W.1) was present and he lodged the Dehati Nalishi,
THE HIGH COURT OF MADHYA PRADESH
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Ex. P.1. Thus, it is clear that Ramant Singh (P.W.1) did not abscond
after the incident. In cross examination, this witness denied that
earlier one Ramlakhan was also detained but thereafter, he was
released by Ghuraiya (P.W. 20). He further stated that he had found
the dead body of Brajesh outside the house (different from sitting
room [Baithak])of Ramvir. On cross-examination by Court, this
witness stated that the house of Ramvir Singh is situated near field,
garden, School and pond. He further clarified that in Crime No.
203/2000, he issued Safina form at 21:55 and prepared inquest report,
Ex. D.21 at 22:00 and he took only 15-20 minutes to do so.
Requisition for postmortem of Brajesh Ex. P.19 was prepared. He
further stated that the dead body of Brajesh was sent along with
Constable Kaushal Pratap. He denied that this witness also went back
to Police Station Porsa, along with the dead body of Brajesh. The
sitting room (Baithak) of Ramvir is about 60-70 yards away from the
place where the dead body of Brajesh was kept. At the time of
preparation of inquest report, he was not aware of the fact that some
more persons have been killed. In further cross examination, this
witness in para 20 has stated that the dead body of Brajesh was sent to
Police Station Porsa at 22:15 and thereafter, he called the father and
brother of the deceased Brajesh, but they did not turn up and
accordingly, he went to the sitting room (Baithak) of Ramvir. (Here it
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
is not out of place to mention here that as Brajesh had already lost his
life, but still his father, brother and other relatives were not there,
which indicates that they had already absconded indicating their guilty
mind). On further cross examination, this witness clarified that when
he interrogated the persons who were present, then all of them replied,
that Ramvir will disclose the names of the assailants, but he has gone
to Porsa. He further denied the suggestion that he was knowing that
Ramvir was in Distt. Jalon. He further denied that F.I.R., Ex. D.2 was
not lodged on the information of Angad Singh, but his signatures were
obtained on blank papers. He further denied that Angad Singh had
disclosed, that Ramant Singh (P.W.1) has killed Brajesh.
55. R. S. Ghuraiya (P.W. 20) has investigated the matter. According
to this witness, the post of S.H.O., Police Station Porsa, Distt. Morena
was vacant, therefore, by wireless message, the Superintendent of
Police, Morena, instructed him to take over the investigation. At about
12:30 A.M., in the night, he reached village Khoyala and took over the
investigation of Crime No. 203/2000 (cross case) and Crime No.
204/2000 (present case). This witness has further stated that three
dead bodies were lying in front of the door of the house of Ramant
Singh (P.W.1). The persons, who had allegedly killed three persons
were not found in the village. On 17-10-2000, he issued notice, Ex.
P.5 to the witnesses for preparation of inquest report. Requisition for
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
postmortem of Keshav Singh, Ex. P.4, of Raghunath Singh, Ex. P.3
were prepared. Inquest report, E. P.8 was prepared in the presence of
Ramant Singh (P.W.1), Nathu Singh son of Madho Singh, Ashok
Singh, Manoj Singh and Siyaram Upadhyaya. The inquest report of
dead body of Keshav Singh, Ex. P.8 was prepared at 6:50 A.M.,
inquest report of dead body Jaswant Singh, Ex. P.7 was prepared at
7:00 A.M. and inquest report of dead body of Raghunath Singh Ex. P.6
was prepared at 7:10 A.M. The blood stained earth and plain earth
was seized from the spot where dead bodies were lying. Three empty
cartridges of .315 bore gun, three live cartridges of .315 bore (out of
which two had misfired but were having fire marks, whereas one
cartridge was live), one empty cartridge of .12 bore gun, 5 pieces of
paper of fired .12 bore cartridge, one blood stained pant of Jaswant,
one blood stained white coloured safi of Raghunath, one Taihmad and
one black coloured sleeper from the roof of house of Keshav Singh
were seized. The blood stained and plain earth found near the dead
body of Keshav, Jaswant and Raghunath were also seized. Blood
stained and plain earth from the place, where Mamta had suffered gun
shot was also seized. The seizure proceedings were completed at 8:30
A.M. vide seizure memo Ex. P.40 in the presence of Ashok Singh
Bhadoria and Nathu Singh. Thereafter, site plan, Ex. P.2 was prepared
showing the houses of different persons as well as the places where
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
dead bodies of Keshav, Raghunath and Jaswant were found. At serial
No. 15, he had found blood on the dilapidated house of Brijlal. Site
plan D.16 was also prepared, in which he had also shown the places
from where empty cartridges, misfired cartridges, as well as live
cartridges were seized. The spot where the witnesses were standing
was also shown. Ramant Singh (P.W. 1) also participated in other
police proceedings on 17-10-2000, like preparation of Crime Detail
Form, Ex. P.2, Inquest Reports, Ex. P.6,7, and 8, site plan Ex. D.16 etc.
The Statement of Ramant Singh (P.W.1) was recorded on 17-10-2000
and on the same day, the statements of Kumher Singh, Vinod Singh,
were recorded. On 18-10-2000, the statements of Rajakumari,
Ranikumari, were recorded. On 19-10-2000, the statements of
Rajabeti (P.W.15), Lakhan Singh were recorded. On 2-11-2000, the
statements of Suresh, Sultan Singh, Ashok, Laxmi devi and Gomti bai
(P.W. 13) were recorded.
56. Thus, it is clear that Ramant Singh (P.W.1) was not only present
on the spot on 16-10-2000 at 11:00 P.M., but also lodged the Dehati
Nalishi, Ex. P.1 and also participated in the police proceedings on 17-
10-2000. Thus, the conduct of Ramant Singh (P.W.1) clearly indicates,
that there was no intention on his part to abscond. Further, the
presence of Ramant Singh (P.W.1) on the spot is also natural, because
not only the incident took place in front of his house, but a function
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
was also going on in his house on the occasion of birth of his son.
Further, the mental condition of a person, who all of sudden lost his
father, brother, cousin brother and other persons in a shoot out during
the celebration of his son, can be presumed.
57. So far as the reliability and credibility of Ramant Singh (P.W.1)
is concerned, the Counsel for the appellants have attacked the
evidence of this witness on the ground that this witness has admitted
that there was no enmity between the appellants and the complainant
party. Further, the allegation that Brajesh died due to gun shot fired by
Ramvir Singh is missing in the Dehati Nalishi, Ex. D.1, therefore, it is
an improved version, made with an intention to save himself in the
cross case. Further, there are material contradictions and omissions. In
para 46 of his evidence, this witness has stated, that no litigation,
either civil or criminal has taken place between him and the appellants.
It is further stated that they were on visiting terms, and this witness
had no apprehension that the appellants may commit an offence.
Further, in para 53 and 54, this witness has stated about serving of
meals. It is submitted that in para 54, this witness has admitted that
about 50-60 independent witnesses were there, but not a single
independent witness has been examined. It is submitted that although
Gomati (P.W. 13) and Manohar Singh (P.W. 16) are independent
witnesses, but they are injured witnesses and not a single eye witness
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
who did not sustain any injury has been examined. It is contended by
the Counsel for the State that since, in the Dehati Nalishi, Ex. P.1, this
witness had disclosed enmity with the appellants, therefore it is clear
that he is an "interested witness". Under these circumstances, non-
examination of independent witnesses assume importance. An attempt
was also made to substantiate the plea of false allegation, by
submitting that although one Ramlakhan had fired, thereby killing four
persons and injuring two, but due to animosity, the appellants have
been falsely implicated.
58. Considered the submission made by the Counsel for the
appellants.
59. It is well established principle of law that it is the quality of a
witness which counts and not quantity of witnesses. The Supreme
Court in the case of Sarwan Singh v. State of Punjab, reported in
(1976) 4 SCC 369 has held as under :
13........... The onus of proving the prosecution case rests
entirely on the prosecution and it follows as a logical
corollary that the prosecution has complete liberty to
choose its witnesses if it is to prove its case. The court
cannot compel the prosecution to examine one witness or
the other as its witness. At the most, if a material witness is
withheld, the court may draw an adverse inference against
the prosecution. But it is not the law that the omission to
examine any and every witness even on minor points would
undoubtedly lead to rejection of the prosecution case or
drawing of an adverse inference against the prosecution.
The law is well-settled that the prosecution is bound to
produce only such witnesses as are essential for unfolding
of the prosecution narrative. In other words, before an
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Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
adverse inference against the prosecution can be drawn it
must be proved to the satisfaction of the court that the
witnesses who had been withheld were eyewitnesses who
had actually seen the occurrence and were therefore
material to prove the case. It is not necessary for the
prosecution to multiply witnesses after witnesses on the
same point; it is the quality rather than the quantity of the
evidence that matters........
The Supreme Court in the case of Yanob Sheikh Vs. State of
W.B. Reported in (2013) 6 SCC 428 has held as under :
20. We must notice at this stage that it is not always the
quantity but the quality of the prosecution evidence that
weighs with the court in determining the guilt of the
accused or otherwise. The prosecution is under the
responsibility of bringing its case beyond reasonable doubt
and cannot escape that responsibility. In order to prove its
case beyond reasonable doubt, the evidence produced by
the prosecution has to be qualitative and may not be
quantitative in nature. In Namdeo v. State of Maharashtra,
the Court held as under: (SCC p. 161, para 28)
"28. From the aforesaid discussion, it is clear that
Indian legal system does not insist on plurality of
witnesses. Neither the legislature (Section 134 of the
Evidence Act, 1872) nor the judiciary mandates that
there must be particular number of witnesses to record
an order of conviction against the accused. Our legal
system has always laid emphasis on value, weight and
quality of evidence rather than on quantity,
multiplicity or plurality of witnesses. It is, therefore,
open to a competent court to fully and completely rely
on a solitary witness and record conviction.
Conversely, it may acquit the accused in spite of
testimony of several witnesses if it is not satisfied
about the quality of evidence. The bald contention that
no conviction can be recorded in case of a solitary
eyewitness, therefore, has no force and must be
negatived."
(emphasis in original)
21. Similarly, in Bipin Kumar Mondal v. State of W.B., this
Court took the view: (SCC p. 99, para 31)
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
"31. ... In fact, it is not the number [and] quantity, but
the quality that is material. The time-honoured
principle is that evidence has to be weighed and not
counted. The test is whether the evidence has a ring of
truth, is cogent, credible and trustworthy [and
reliable]."
The Supreme Court in the case of Mahesh v. State of
Maharashtra, reported in (2008) 13 SCC 271 has held as under :
55. As regards non-examination of the independent
witnesses who probably witnessed the occurrence on the
roadside, suffice it to say that testimony of PW Sanjay, an
eyewitness, who received injuries in the occurrence, if
found to be trustworthy of belief, cannot be discarded
merely for non-examination of the independent witnesses.
The High Court has held in its judgment and, in our view,
rightly that the reasons given by the learned trial Judge for
discarding and disbelieving the testimony of PWs 4, 5, 6
and 8 were wholly unreasonable, untenable and perverse.
The occurrence of the incident, as noticed earlier, is not in
serious dispute. PW Prakash Deshkar has also admitted that
he had lodged complaint to the police about the incident on
the basis of which FIR came to be registered and this
witness has supported in his deposition the contents of the
complaint to some extent. It is well settled that in such
cases many a times, independent witnesses do not come
forward to depose in favour of the prosecution. There are
many reasons that persons sometimes are not inclined to
become witnesses in the case for a variety of reasons. It is
well settled that merely because the witnesses examined by
the prosecution are relatives of the victim, that fact by itself
will not be sufficient to discard and discredit the evidence
of the relative witnesses, if otherwise they are found to be
truthful witnesses and rule of caution is that the evidence of
the relative witnesses has to be reliable evidence which has
to be accepted after deep and thorough scrutiny.
The Supreme Court in the case of Nagarjit Ahir v. State of
Bihar, reported in (2005) 10 SCC 369 has held as under :
12. It was then submitted that in spite of the fact that a
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
large number of persons had assembled at the bank of the
river at the time of occurrence, the witnesses examined are
only those who are members of the family of the deceased
or in some manner connected with him. We cannot lose
sight of the fact that four of such witnesses are injured
witnesses and, therefore, in the absence of strong reasons,
we cannot discard their testimony. The fact that they are
related to the deceased is the reason why they were attacked
by the appellants. Moreover, in such situations though many
people may have seen the occurrence, it may not be possible
for the prosecution to examine each one of them. In fact,
there is evidence on record to suggest that when the
occurrence took place, people started running helter-skelter.
In such a situation it would be indeed difficult to find out
the other persons who had witnessed the occurrence. In any
event, we have the evidence of as many as 7 witnesses, 4 of
them injured, whose evidence has been found to be reliable
by the courts below, and we find no reason to take a
different view.
The Supreme Court in the case of Vijendra Singh Vs. State of
U.P. reported in (2017) 11 SCC 129 has held as under :
35. The next plank of argument of Mr Giri is that since
Nepal Singh who had been stated to have accompanied PW
2 and PW 3 has not been examined and similarly, Ram Kala
and Bansa who had been stated to have arrived at the
tubewell as per the testimony of PW 2, have not been
examined, the prosecution's version has to be discarded, for
it has deliberately not cited the independent material
witnesses. It is noticeable from the decision of the trial
court and the High Court, that reliance has been placed on
the testimony of PWs 1 to 3 and their version has been
accepted. They have treated PW 2 and PW 3 as natural
witnesses who have testified that the accused persons were
leaving the place after commission of the offence and they
had seen them quite closely. The contention that they were
interested witnesses and their implication is due to inimical
disposition towards accused persons has not been accepted
and we have concurred with the said finding. It has come
out in evidence that witnesses and the accused persons
belong to the same village. The submission of Mr Giri is
that non-examination of Nepal Singh, Ramlal and Kalsa is
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Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
quite critical for the case of the prosecution and as put forth
by him, their non-examination crucially affects the
prosecution version and creates a sense of doubt. According
to Mr Giri, Nepal Singh is a material witness. In this regard
we may refer to the authority in State of H.P. v. Gian Chand
wherein it has been held that: (SCC p. 81, para 14)
"14. Non-examination of a material witness is again
not a mathematical formula for discarding the weight
of the testimony available on record howsoever
natural, trustworthy and convincing it may be. The
charge of withholding a material witness from the
court levelled against the prosecution should be
examined in the background of the facts and
circumstances of each case so as to find whether the
witnesses were available for being examined in the
court and were yet withheld by the prosecution."
The Court after so holding further ruled that it is the
duty of the court to first assess the trustworthiness of
the evidence available on record and if the court finds
the evidence adduced worthy of being relied on and
deserves acceptance, then non-examination of any
other witnesses available who could also have been
examined but were not examined, does not affect the
case of the prosecution.
36. In Takhaji Hiraji v. Thakore Kubersing Chamansing, it
has been held that: (SCC p. 155, para 19)
"19. ... if a material witness, who would unfold the
genesis of the incident or an essential part of the
prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the
prosecution case which could have been supplied or
made good by examining a witness who though
available is not examined, the prosecution case can be
termed as suffering from a deficiency and withholding
of such a material witness would oblige the court to
draw an adverse inference against the prosecution by
holding that if the witness would have been examined
it would not have supported the prosecution case. On
the other hand, if already overwhelming evidence is
available and examination of other witnesses would
only be a repetition or duplication of the evidence
already adduced, non-examination of such other
witnesses may not be material. ... If the witnesses
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
already examined are reliable and the testimony
coming from their mouth is unimpeachable, the court
can safely act upon it, uninfluenced by the factum of
non-examination of other witnesses."
37. In Dahari v. State of U.P., while discussing about the
non-examination of material witness, the Court expressed
the view that when he was not the only competent witness
who would have been fully capable of explaining the
factual situation correctly and the prosecution case stood
fully corroborated by the medical evidence and the
testimony of other reliable witnesses, no adverse inference
could be drawn against the prosecution. Similar view has
been expressed in Manjit Singh v. State of Punjab and
Joginder Singh v. State of Haryana.
The Supreme Court in the case of Sadhu Saran Singh v. State
of U.P., reported in (2016) 4 SCC 357 has held as under :
29. As far as the non-examination of any other independent
witness is concerned, there is no doubt that the prosecution
has not been able to produce any independent witness. But,
the prosecution case cannot be doubted on this ground
alone. In these days, civilised people are generally
insensitive to come forward to give any statement in respect
of any criminal offence. Unless it is inevitable, people
normally keep away from the court as they find it
distressing and stressful. Though this kind of human
behaviour is indeed unfortunate, but it is a normal
phenomena. We cannot ignore this handicap of the
investigating agency in discharging their duty. We cannot
derail the entire case on the mere ground of absence of
independent witness as long as the evidence of the
eyewitness, though interested, is trustworthy.
60. Enmity is a double edged weapon. If the appellants claim that
there was an enmity between them and the complainant party, then
such enmity may also provide motive to commit offence. The
Supreme Court in the case of Kunwarpal v. State of Uttarakhand,
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
reported in (2014) 16 SCC 560, has held as under :
16. According to the complainant there was litigation
between them and the accused persons leading to enmity.
PW 3 Atmaram has also stated that there was litigation
between them and it culminated in the occurrence.
Animosity is a double-edged sword. While it can be a basis
for false implication, it can also be a basis for the crime
(Ruli Ram v. State of Haryana and State of Punjab v. Sucha
Singh). In the instant case there is no foundation established
for the plea of false implication advanced by the accused
and on the other hand evidence shows that enmity has led to
the occurrence.
61. The appellants themselves have filed copies of judgment dated
30-11-1991, Ex. D.24, passed by 1 st Add. Sessions Judge, Morena in
S.T. No. 194/1988 by which Ramant Singh (P.W.1), his father and
other persons were held guilty for offence under Section 326, 324,323,
147,148 of I.P.C. for causing injuries to Ramlakhan. Similarly by
judgment dated 30-11-1991, Ex. D.25, passed by 1 st Add. Sessions
Judge, Morena in S.T. No. 202/1988, Ramlakhan was convicted for
offence under Section 307 of I.P.C. for causing gun shot injuries to
Suresh Singh. Thus, it is clear that Ramlakhan and complainant party
were convicted for causing injuries to each other. If the judgments,
Ex. D.24 and D. 25 are considered, then it is clear that the said offence
was committed in the year 1988 and judgments were passed in the year
1991. The offence in question was committed on 16-10-2000. By no
stretch of imagination, it can be said that Ramlakhan might have killed
four persons and injured 2 persons, because of criminal case which
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
was decided in the year 1991. It also appears that some civil dispute is
also going on between Ramlakhan and complainant. Thus, for the
sake of arguments, if it is accepted that there was an enmity between
Ramlakhan and complainant party, even then there was no good reason
for the complainant party to spare Ramlakhan. Thus, it is incorrect to
say that the appellants have been falsely implicated due to enmity.
62. It is next contended by the Counsel for the appellants, that since,
Ramant Singh (P.W.1) had suppressed the fact of murder of Brajesh, in
Dehati Nalishi, Ex. P.1, therefore, it is clear that he had suppressed
very genesis of the incident, thereby making him unreliable.
63. Considered the submission made by the Counsel for the
appellans.
64. The appellants have relied upon site plan, Ex. D.16 prepared by
R.S. Ghuraiya (P.W.20) in the presence of D.R. Sharma (P.W. 19).
From the said site plan, it is clear that blood was found on the roof of
dilapidated house of Brajlal and one shoe of deceased Brajesh was also
found near the dilapidated house of Brajlal. As per site plan, Ex. D.16,
the dilapidated house of Brajlal is shown at Sr. No. 1 and one shoe of
deceased Brajesh is shown at Sr. No.2. The dead body of Brajesh was
shifted to the house of Ramvir Singh, which is shown at Sr. No.5,
which is approximately 365 steps away from the dilapidated house of
Brajlal. In the cross case, it was the stand of the appellants that
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Brajesh was shot by Ramant Singh (P.W.1) in front of the sitting room
(Baithak) of Ramvir Singh (which is shown in site plan Ex. D.16) and
from there, the dead body of Brajesh was shifted by his father and
others to the house of Ramvir Singh which is 365 steps away from
dilapidated house of Brajlal, shown at Sr. No.1. Further, from the site
plan, Ex. D.16, as well as from the evidence of R.S. Ghuraiya (P.W.20),
it is clear that empty cartridges, misfired cartridges, and live cartridges
were lying near the house of Ramvir Singh (appellant), whereas the
dead bodies of Keshav, Jaswant and Raghunath @ Chhote Singh were
lying in front of the house of Keshav Singh. The fact that .12 bore and
.315 bore cartridges were found near the house of Ramvir Singh
(appellant), it is clear that the assailants were standing near the house
of Ramvir Singh (appellant) and they were firing towards the house of
Ramant Singh (P.W.1). The Site Plan, Ex. D.16 throws sufficient light
in this regard. Site plan is an important document. A part of site plan
which has been prepared by the investigating officer, on the basis of
what he had seen and observed, would be a substantive evidence, and a
part of site plan which is prepared on the information given by a
witness, would be admissible, if the witness giving such information is
also examined. The Supreme Court in the case of Jagdish Narain v.
State of U.P., reported in (1996) 8 SCC 199 has held as under :
9..........While preparing a site plan an Investigating Police
Officer can certainly record what he sees and observes, for
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
that will be direct and substantive evidence being based on
his personal knowledge; but as, he was not obviously
present when the incident took place, he has to derive
knowledge as to when, where and how it happened from
persons who had seen the incident. When a witness testifies
about what he heard from somebody else it is ordinarily not
admissible in evidence being hearsay, but if the person from
whom he heard is examined to give direct evidence within
the meaning of Section 60 of the Evidence Act, 1872 the
former's evidence would be admissible to corroborate the
latter in accordance with Section 157 CrPC (sic Evidence
Act).........
The Supreme Court in the case of Rameshwar Dayal v. State
of U.P., reported in (1978) 2 SCC 518 has held as under:
36. Apart from the inquest report Ex. K-a-10 there is
another document which throws a flood of light on this
question--Ex. Ka-18 which is the site plan prepared by the
Investigating Officer at the spot from where the empty
cartridges of.12 bore were recovered. This is also a record
of what the Investigating Officer himself found at the spot.
The learned counsel for the appellants submitted that the
site plan was also not admissible in evidence because it was
based on information derived by the Investigating Officer
from the statement of witnesses during investigation.
Reliance was placed on a judgment of this Court in the case
of Jit Singh v. State of Punjab where this Court observed as
follows:
"It is argued that presumably this site plan also was
prepared by the Investigating Officer in accordance
with the various situations pointed out to him by the
witnesses... We are afraid it is not permissible to use
the site plan Ex. P-14 in the manner suggested by the
counsel. The notes in question on this site plan were
statements recorded by the Police Officer in the course
of investigation, and were hit by Section 162 of the
Code of Criminal Procedure. These notes could be
used only for the purposes of contradicting the
prosecution witnesses concerned in accordance with
the provisions of Section 145 of the Evidence Act and
for no other purpose."
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
In our opinion, the argument of the learned counsel is based
on misconception of law laid down by this Court. What this
Court has said is that the notes in question which are in the
nature of a statement recorded by the Police Officer in the
course of investigation would not be admissible. There can
be no quarrel with this proposition. Note No. 4 in Ex. Ka-18
is not a note which is based on the information given to the
Investigating Officer by the witnesses but is a memo of
what he himself found and observed at the spot. Such a
statement does not fall within the four corners of Section
162 CrPC. In fact, documents like the inquest reports,
seizure lists or the site plans consist of two parts one of
which is admissible and the other is inadmissible. That part
of such documents which is based on the actual observation
of the witness at the spot being direct evidence in the case is
clearly admissible under Section 60 of the Evidence Act
whereas the other part which is based on information given
to the Investigating Officer or on the statement recorded by
him in the course of investigation is inadmissible under
Section 162 CrPC except for the limited purpose mentioned
in that section. For these reasons, therefore, we are of the
opinion that the decision cited by the counsel for the
appellants has no application to this case.
65. One thing is clear that the dead body of Brajesh was immediately
removed by his family members. On the contrary, Ramant Singh
(P.W.1) had already lost 3 members of his family i.e., father, real
brother and cousin brother and three persons were injured. Under
these circumstances, if Ramant Singh (P.W.1) at the time of lodging
Dehati Nalishi, Ex. P.1, could not notice that Brajesh has also expired,
then it cannot be said that there was a deliberate suppression by
Ramant Singh (P.W.1) about murder of Brajesh in his Dehati Nalishi,
Ex. P.1. Further, this Court while deciding Cr.A. No. 584/2008 (arising
out of cross case) has come to a conclusion that Ramant Singh (P.W.1)
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
did not kill Brajesh. As per the postmortem report of deceased
Brajesh, Ex. D.20, a bullet injury was found on his body. It was
Ramvir Singh (appellant) who was having .315 bore mouser, in which
bullet cartridge is used. As per site plan Ex. D.16, one shoe of Brajesh
was found near the dilapidated house of Brajlal. Further, the
subsequent conduct of Ramant Singh (P.W.1) in not absconding from
the place of incident, and thereafter, participating in police
proceedings, also indicates his innocence. Therefore, non-disclosure
of murder of Brajesh in Dehati Nalishi, Ex. P.1, would not give any
dent to the prosecution story as well as to the reliability and credibility
of Ramant Singh (P.W.1).
66. It is further submitted that since, Ramant Singh (P.W.1)
absconded at subsequent stage, therefore, he has suppressed the very
genesis of murder of Brajesh and in fact, Ramant Singh (P.W.1) had
killed Brajesh and only thereafter, it appears that the appellants
retaliated either in exercise of their right of private defence or due to
sudden and grave provocation.
67. Considered the submission made by the Counsel for the
appellants.
68. Abscondence by itself cannot be said to be an incriminating
circumstance to indicate the guilty mind of a suspect. An innocent
person, under an apprehension of false implication, may also abscond.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
In the present case, R.S. Ghuraiya (P.W. 20) in para 2 of his
examination-in-chief, has specifically stated that on 17-10-2000, no
suspect who was alleged to have committed the present offence was
found in the village. Further, it is clear from the evidence of D. R.
Sharma (P.W.19), Angad Singh, had lodged F.I.R., Ex. D.2 in relation
to murder/death of Brajesh. It is not out of place to mention here that
Angad Singh was not the eye witness of murder of Brajesh. In F.I.R.
Ex. D.2 he had merely informed that he was in the field. After hearing
the noice of gun shots, he came back to village and found that the dead
body of Brajesh was lying on Kharanja (Street made up of stones) in
front of the sitting room (Baithak) of Ramvir Singh. Kallu Singh,
Mahesh Singh, Rajesh Singh were near the dead body and the names
of the assailants would be disclosed by Mahesh Singh, Ramvir Singh
and Rajesh Singh. Thus, F.I.R. regarding murder of Brajesh Singh was
lodged against unknown persons. It is really surprising that although
the dead body of Brajesh was lying in front of the sitting room
(Baithak) of Ramvir Singh, but the father of the deceased namely Ram
Singh, Ramvir Singh himself and other persons were not there.
Further the information given in F.I.R., Ex. D.2, that names of the
assailants would be disclosed by Ramvir Singh, clearly indicates, that
Angad Singh knew this fact that Ramvir Singh had witnessed the
incident and even then, if Ramvir Singh, along with Ram Singh (father
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
of deceased Brajesh) and others absconded from the spot, then it
clearly indicates the guilty mind of Ramvir Singh. Whereas Ramant
Singh (P.W.1) against whom it was alleged that he had shot Brajesh,
did not abscond and remained with the dead bodies of his father
Keshav, brother Jaswant and cousin brother Raghunath @ Chhote
Singh and not only lodged the Dehati Nalishi, Ex. P.1, but also
participated in the police proceedings which took place on 17-10-
2000. As the appellants were alleging that it was Ramant Singh
(P.W.1) who had shot Brajesh, therefore, subsequent abscondence of
Ramant Singh (P.W.1) would not amount to an incriminating
circumstance against him. The Supreme Court in the case of Kundula
Bala Subrahmanyam v. State of A.P., reported in (1993) 2 SCC 684
has held as under :
23. A closer link with the conduct of the appellants both
at the time of the occurrence and immediately thereafter is
also the circumstance relating to their absconding..........
69. The Supreme Court in the case of Matru Vs. State of U.P.
reported in (1971) 2 SCC 75 has held that where the appellant had
gone to the police station to lodge F.I.R. about the incident, then such
behavior of the appellant by normal standards is not suggestive of his
involvement in a heinous offence like murder, unless and until he is an
experienced criminal with extra ordinary balance of mind and
disciplined control over his senses and faculties. Therefore, the
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
immediate conduct of a person after the incident, also indicates his
guilty mind/innocence. Under these circumstances, the subsequent
abscondence of Ramant Singh (P.W.1) would not lead to any
conclusion.
70. Thus, viewed from every angle, it is held that Ramant Singh
(P.W.1) is a reliable witness and has narrated the truth.
71. Gomati bai (P.W. 13) is an independent witness who had come to
attend the function. Attacking her evidence, it is submitted by the
Counsel for the appellants that Gomati bai (P.W. 13) in her evidence
has stated that Ramvir Singh shot Keshav, Jaswant and Raghunath and
Ghanshyam shot Mamta. However, Gomati bai (P.W. 13) in her police
statement, Ex. D.3 had stated that Ghanshyam shot Mamta and "She
came to know" that Ramvir has killed Keshav and Jaswant whereas
Ghanshyam has killed Raghunath also. It is submitted that since, the
attention of this witness was drawn to the said statement, therefore, her
evidence that Ramvir Singh had shot Keshav and Jaswant is not
reliable and similarly, her evidence that Ghanshyam killed Raghunath
is also not reliable. Considered the submissions made by the Counsel
for the appellants.
72. Gomati bai (P.W.13) in her police statement Ex. D.3, had not
claimed that She had seen Ramvir Singh or Ghanshyam causing any
gunshot injury to Keshav, Jaswant and Raghuvir. On the contrary, She
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
had stated that "She came to know" that Ramvir Singh has killed
Keshav and Jaswant, whereas Ghanshyam has killed Raghunath. When
She was confronted with her police statement, Ex. D.3, then in para 26
of her cross examination, She claimed that She never disclosed to
police that "She came to know" and could not explain as to how, "She
came to know" was mentioned in her Police statement, Ex. D.3. Thus
in view of vital contradiction in the evidence of Gomati bai (P.W.13), it
is held that She did not see that who caused gun shot injuries to
Keshav, Jaswant and Raghunath @ Chhote Singh. However, it is held
that immediately after the incident, she came to know that Ramvir
Singh has killed Keshav and Jaswant, whereas Ghanshyam has killed
Raghunath @ Chhote Singh.
73. But so far as her evidence that gun shot injury was caused to her
by Nathu Singh, and Ghanshyam Singh shot Mamta is concerned, her
evidence is consistence. Thus, it is held that Gomati bai (P.W. 13) did
not see that who caused death of Keshav, Jaswant and Raghunath
Singh @ Chhote Singh.
74. It is further submitted that one Doctor had recorded the
statement of Gomati bai (P.W.13) as dying-declaration, Ex. D.18 in
which She had stated that Ramvir Singh had caused injuries to her,
therefore, her evidence that Nathu Singh had caused gun shot injuries
to her cannot be accepted.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
75. In the dying declaration of Gomati bai (P.W.13) Ex. D.18,
which was recorded by a Doctor, Gomatibai (P.W. 13) had stated that
Ramvir has caused injury to her, but on confrontation, She explained
that since She was not fully conscious, therefore, She might have
committed mistake in disclosing the name of the assailant to the
Doctor. In the present case, the Doctor who had recorded the dying
declaration, Ex. D.18 has not been examined. Since, Gomati bai
(P.W.13) has survived, therefore, so called Dying-declaration, Ex. D.18
is not admissible under Section 32 of Evidence Act. Further, in the
light of the explanation given by Gomati bai (P.W. 13) in para 72 of
her cross-examination, it is held that her statement which was recorded
as Dying declaration, would not give any dent to her evidence, that
Nathu Singh had caused gun shot injury to her. Further, She is an
independent witness having no enmity with Nathu Singh.
76. By referring to Para 16 of her cross-examination, it is submitted
by the Counsel for the appellants, that this witness has admitted that
firstly, Brajesh (deceased in cross case) suffered gun shot injury and
thereafter, the victims/deceased of this case suffered gun shot injuries.
Thus, it is clear that since, Brajesh was killed by Ramant Singh (P.W.1)
therefore, the prosecution has suppressed the very genesis of the
incident.
77. Considered the submission made by the Counsel for the
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
appellants. This Court has already considered the fact that the dead
body of Brajesh was immediately removed by his family members and
was taken to a place which was 365 steps away from the place of
incident. Why the dead body of Brajesh was removed has not been
explained by the appellants. Although in the light of the judgment
passed by the Supreme Court in the case of Nathilal (Supra), in case
where there is a cross case, then both the cases should be tried by one
judge and should be decided on one day, without getting influenced by
evidence or arguments in cross case. In the present case, in S.T. No.
229/2003 (Cross case), Mahesh was cited as a witness and was
examined as Prosecution Witness No. 3. It is not out of place to
mention here, that Mahesh is Accused No. 9 in the present case. He
had admitted in S.T. No. 229/2003, that gun shot was firstly fired by
Brajesh. Although it is the case of the Counsel for the appellants, that
any evidence led in cross case should not be read, but the very purpose
of deciding both the cases on one day by same judge is, to avoid any
contradictory findings with regard to the manner in which incident
took place. Further there is a difference between "Admission" and
"Evidence". This Court by judgment in Cr.A. No. 584/2008 State of
M.P. Vs. Ramant Singh, passed today, has held that in fact Ramant
Singh (P.W.1) did not cause death of Brajesh. In the case of Nathilal
(Supra) it has not been held that the same Court can give
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
contradictory findings. Under these circumstances, it is held that the
very genesis of the incident, has not been suppressed by the
prosecution. Thus, it is held that Gomati bai (P.W. 13) is a reliable
witness, who not only got injured but is also an independent witness.
78. Rajabeti (P.W. 15) is an eye witness and is the widow of Keshav
and mother of deceased Jaswant as well as mother of Ramant Singh
(P.W.1). By referring to para 5 of evidence of this witness, it is
submitted by the Counsel for the appellants, that this witness was not
in a position to depose that who caused injury to Gomati bai (P.W.13).
79. Considered the submission made by the Counsel for the
appellants.
80. In para 2 of the examination-in-chief, this witness has narrated
the role played by each and every accused, however, she did not say
anything as to who caused injuries to Gomati bai (P.W.13). Thereafter,
in para 5, She stated that She cannot say, that who caused injuries to
Gomatibai (P.W.13). Immediately thereafter, She was cross-examined
by the Court and in that cross-examination, this witness clarified that
Nathu Singh had caused gun shot injury to Gomati bai (P.W.13). This
witness is aged about 60 years and is a rustic villager. It is true that
initially She did not recollect that who caused injury to Gomati bai
(P.W.13), but on question put by the Court immediately after
examination-in-chief, this witness clarified that Nathu Singh caused
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
injury to Gomati bai (P.W.13). Thus, this Court is of the considered
opinion, that looking to the fact that not only this witness is aged about
60 years, but She had lost her husband and one child in her front of her
and her evidence was recorded after almost 3 years of incident, this
witness is a natural witness and is clear that She is narrating the truth
and therefore, some lapses of minor in nature, are bound to occur.
Further, it is clear from the deposition sheet of this witness, that her
examination-in-chief and cross examination by Court was recorded in
one session only, therefore, this witness had no time to improve her
version. Accordingly, it is held that this witness has duly proved that
Nathu Singh had caused gun shot injury to Gomatibai (P.W. 13).
81. Further, by referring to para 9,16 and 17 of this witness, it is
submitted that although this witness had stated that her statement was
recorded in the night of the incident itself, but infact the police case
diary doesnot contain any such statement. On the contrary, her police
statement was recorded on 22-10-2000.
82. Heard the learned Counsel for the appellants.
83. Looking to the trauma under which this witness must have
undergone, such lapses in the evidence of the witness are natural.
While appreciating the evidence of a witness, a Court is required to
consider all the circumstances, including the trauma under which a
witness must have undergone due to the incident. As already pointed
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
out, since, this witness had lost her husband and a son in front of her,
therefore, some minor omissions and contradictions are bound to occur
and that shows that the witness is a truthful witness. In para 17, a
suggestion was also given by the appellants, to this witness that her
police statement was recorded on 22-10-2000. The police statement of
this witness is Ex. D.4, which was recorded on 22-10-2000. Looking
to the fact that four persons, including the husband and son of this
witness were killed on 16-10-2000, this Court is of the considered
opinion, that even if the police statement of this witness was recorded
on 22-10-2000, it cannot be said that there was any delay in recording
of the same. In para 23, this witness had stated that Nathu Singh had
fired on Gomati bai (P.W.13), from front and denied that Nathu Singh
was standing on the roof of her house. Accordingly, she was
confronted with her police statement Ex. D.4, in which She had stated
that Nathu Singh fired from the roof of her house. On confrontation,
this witness replied that She had never disclosed to the S.H.O. that
Nathu Singh had fired from the roof.
84. It is well established principle of law, that only material
contradictions makes the evidence of a witness unreliable. The
Supreme Court in the case of Sunil Kumar Sambhudayal Gupta
(Dr.) v. State of Maharashtra, reported in (2010) 13 SCC 657 has
held as under :
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
30. While appreciating the evidence, the court has to take
into consideration whether the contradictions/omissions had
been of such magnitude that they may materially affect the
trial. Minor contradictions, inconsistencies, embellishments
or improvements on trivial matters without effecting the
core of the prosecution case should not be made a ground to
reject the evidence in its entirety. The trial court, after going
through the entire evidence, must form an opinion about the
credibility of the witnesses and the appellate court in normal
course would not be justified in reviewing the same again
without justifiable reasons. (Vide State v. Saravanan.)
85. Nathu Singh was carrying .12 bore gun which uses cartridge
having pellets in it. Therefore, whether the gun shot was fired from
the roof or from front while standing on the ground, would not make
much difference, because after a gun shot is fired from .12 bore gun,
the pellets get spread and it is very difficult to trace out the track or
direction unlike in the case of bullet injury. If the evidence of all the
witnesses including Gomati bai (P.W.13) is considered along with this
witness, then it is clear that the contradiction as to whether Nathu
Singh had fired from the roof of her house or from front of Gomati bai
(P.W. 13) is of minor in nature and doesnot adversely effect the
credibility and reliability of this witness.
86. By referring to para 23, 54 and 55 of this witness, it is submitted
that since, this witness has stated that there was no enmity between the
complainant party and accused party, where as Ramant Singh (P.W.1)
has stated in his Dehati Nalishi, P.1, that there was an enmity between
the parties, therefore, it is clear that this witness is not trustworthy.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
87. Considered the submission made by the Counsel for the
appellants.
88. The word "enmity" is a relative term and is a double edged
weapon. In Dehati Nalishi, Ex. P.1, it was stated by Ramant Singh
(P.W.1), that for the last two years, the accused party and complainant
party were not inviting each other and therefore, the accused party was
aggrieved by it. Minor differences between the parties, cannot be
termed as "enmity". Therefore, the suggestion which was given to
this witness as to whether there was any enmity between accused party
and complainant party cannot be equated with non-inviting of each
other in their functions. Further, it is clear that this witness is not
trying to exaggerate any thing, which makes her a natural and truthful
witness. Thus, it is held that Rajabeti (P.W. 15) is a reliable witness
and is not an "interested witness".
89. In order to attack the evidence of Manohar Singh (P.W. 16), the
Counsel for the appellants has drawn the attention of this Court, to
para 20 of his evidence, to contend that since, this witness was also an
accused in cross case, therefore, he is an "interested witness".
90. Considered the submissions made by the Counsel for the
appellants.
91. Manohar Singh (P.W. 16) is also an injured witness who had
suffered gun shot injuries on his back in the same incident. Therefore,
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
the presence of this witness on the spot is undisputed. The Supreme
Court in the case of Chandrasekar v. State, reported in (2017) 13
SCC 585 has held as under :
10. Criminal jurisprudence attaches great weightage to the
evidence of a person injured in the same occurrence as it
presumes that he was speaking the truth unless shown
otherwise. Though the law is well settled and precedents
abound, reference may usefully be made to Brahm Swaroop
v. State of U.P. observing as follows: (SCC p. 302, para 28)
"28. Where a witness to the occurrence has himself
been injured in the incident, the testimony of such a
witness is generally considered to be very reliable, as
he is a witness that comes with an in-built guarantee of
his presence at the scene of the crime and is unlikely to
spare his actual assailant(s) in order to falsely
implicate someone."
The Supreme Court in the case of Abdul Sayeed v. State of
M.P., reported in (2010) 10 SCC 259 has held as under :
28. The question of the weight to be attached to the
evidence of a witness that was himself injured in the course
of the occurrence has been extensively discussed by this
Court. Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness
that comes with a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured
witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan
Singh v. State of U.P., Machhi Singh v. State of Punjab,
Appabhai v. State of Gujarat, Bonkya v. State of
Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p.
606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v.
State of Rajasthan, Annareddy Sambasiva Reddy v. State of
A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in
Jarnail Singh v. State of Punjab, where this Court reiterated
the special evidentiary status accorded to the testimony of
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
an injured accused and relying on its earlier judgments held
as under: (SCC pp. 726-27, paras 28-29)
"28. Darshan Singh (PW 4) was an injured witness. He
had been examined by the doctor. His testimony could
not be brushed aside lightly. He had given full details
of the incident as he was present at the time when the
assailants reached the tubewell. In Shivalingappa
Kallayanappa v. State of Karnataka this Court has
held that the deposition of the injured witness should
be relied upon unless there are strong grounds for
rejection of his evidence on the basis of major
contradictions and discrepancies, for the reason that
his presence on the scene stands established in case it
is proved that he suffered the injury during the said
incident.
29. In State of U.P. v. Kishan Chand a similar view has
been reiterated observing that the testimony of a
stamped witness has its own relevance and efficacy.
The fact that the witness sustained injuries at the time
and place of occurrence, lends support to his
testimony that he was present during the occurrence.
In case the injured witness is subjected to lengthy
cross-examination and nothing can be elicited to
discard his testimony, it should be relied upon (vide
Krishan v. State of Haryana). Thus, we are of the
considered opinion that evidence of Darshan Singh
(PW 4) has rightly been relied upon by the courts
below."
30. The law on the point can be summarised to the effect
that the testimony of the injured witness is accorded a
special status in law. This is as a consequence of the fact
that the injury to the witness is an inbuilt guarantee of his
presence at the scene of the crime and because the witness
will not want to let his actual assailant go unpunished
merely to falsely implicate a third party for the commission
of the offence. Thus, the deposition of the injured witness
should be relied upon unless there are strong grounds for
rejection of his evidence on the basis of major
contradictions and discrepancies therein.
92. Thus, it is clear that an injured witness enjoys a special status
and the injury found on his body indicates his undoubted presence on
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
the scene of occurrence.
93. Further more, Manohar Singh (P.W. 16) was already acquitted by
the Trial Court and application for grant of leave to appeal has already
been rejected by this Court.
94. By referring to paragraphs 22, 23 of evidence of this witness, it
is submitted that his police statement was recorded belatedly.
However, the answer to the submission lies in the same paragraph, in
which this witness has clarified that he remained hospitalized at
Gwalior for 9 days and thereafter, he went to Indore, and stayed with
his son and was getting treatment. From the M.L.C.,Ex.P. 12A, it is
clear that this witness had suffered gun shot injuries on his buttock and
if he did not return back to the village and went to Indore to take
further treatment, while staying with his son, then this act of this
witness cannot be said to be unrealistic.
95. By referring to para 31,32 and 34 of his evidence, it is submitted
that since, Brajesh had died due to gun shot injury and since, this
witness was also being tried for murder of Brajesh, therefore, this
witness is not reliable.
96. Considered the submissions made by the Counsel for the
appellants.
97. Manohar Singh (P.W. 16) has stated that although he had not
seen Brajesh sustaining gun shot but the accused party had started
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
shouting that Brajesh has sustained a gun shot injury and thereafter,
the accused party took the body of Brajesh to their house. This
evidence of Manohar Singh (P.W.16) is in accordance with site plan,
Ex. D.16, according to which the dead body of Brajesh was taken by
his family members to the house of Ramvir Singh, which was at a
distance of 365 steps from the dilapidated house of Brajlal. It is also
clear from the site plan, Ex. D.16, that the sitting room (Baithak) of
Ramvir Singh and dilapidated house of Brajlal are situated at nearby
places. This Court has already held that the accused persons have not
explained as to why they shifted the dead body of Brajesh from the
place where he sustained gun shot injury? It is also clear from F.I.R.,
Ex. D.2, that the F.I.R., in respect of murder of Brajesh was lodged by
Angad Singh against unknown persons. Further, Brajesh had suffered
bullet injury and Ramvir Singh was carrying .315 bore gun and
according to the witnesses, the gun shot fired by Ramvir Singh had hit
hit his own nephew Brajesh. Thus, it cannot be said that the evidence
of Manohar Singh (P.W.16) is unreliable on account of non-
explanation of manner in which Brajesh was killed. Further, by a
separate judgment passed by this Court in Cr.A. No. 229/2003 (State
of M.P. Vs. Ramant Singh [Cross Case]), this Court has already held
that Ramant Singh did not shot Brajesh.
98. By referring to para 43 of his evidence, it is submitted by the
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Counsel for the appellants that there are material omissions and
contradictions in the evidence of this witness with regard to who
caused injury Gomati bai (P.W.13) and this witness (P.W. 16),
therefore, he is a unreliable witness.
99. Considered the submissions made by the Counsel for the
appellants.
100. Manohar Singh (P.W. 16) in his evidence has stated that Nathu
Singh shot Gomati, whereas Kaushlendra Singh (acquitted) shot this
witness. Whereas in his police statement, Ex. D.5, this witness had
stated that Kaushlendra Singh fired at him, and as he bent down,
therefore, the gun shot hit Gomati bai (P.W.13), and gun shot fired by
Nathu Singh hit him. On confrontation, this witness could not explain
as to how, the above fact was mentioned in his police statement, Ex.
D.5. If the manner in which the incident in question had taken place is
considered, then it is clear that as number of gun shots were fired,
therefore, the persons who had come to attend the function must have
run helter-skelter. In this circumstance, some discrepancies in the
evidence of the witnesses are bound to happen. Even otherwise, this
case is not based on the solitary evidence of this witness. Kaushlendra
Singh has already been acquitted by the Trial Court in cross S.T. No.
37/2001. Since, the State has also filed an appeal against the acquittal
of Kaushlendra Singh, therefore, whether he has been rightly acquitted
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
or not shall be considered separately while deciding the State Appeal.
However, looking to the contradictions in the police statement and
Court evidence of this witness, at the most, it can be said that this
witness has failed to prove that who caused gun shot injury to
Gomatibai (P.W. 13) as well as to himself.
101. By referring to para 52 of evidence of this witness, it is
contended by the Counsel for the appellants that there are material
improvements in the evidence of this witness. By referring to police
statement, Ex. D.5 of this witness, it is submitted that there was no
allegation that "after he requested the accused party not to burst
crackers, then Ramvir, Ghanshyam, Kaushlendra, Nathu Singh,
Bhanupratap, Rajesh, Dinesh Singh, Chhote Singh, Sindhi and Kallu
started pelting stones". Thus, it is submitted that since, this witness
has improved his version, therefore, his evidence is liable to be
rejected in toto.
102. Considered the submissions made by the Counsel for the
appellants.
103. The maxim falsus in uno falsus in omnibus has no application in
India. The Supreme Court in the case of Shakila Abdul Gafar Khan
v. Vasant Raghunath Dhoble, reported in (2003) 7 SCC 749 has held
as under :
25. It is the duty of the court to separate the grain from the
chaff. Falsity of a particular material witness or a material
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
particular would not ruin it from the beginning to end. The
maxim "falsus in uno falsus in omnibus" has no application
in India and the witnesses cannot be branded as liars. The
maxim "falsus in uno falsus in omnibus" has not received
general acceptance nor has this maxim come to occupy the
status of rule of law. It is merely a rule of caution. All that it
amounts to is that in such cases testimony may be
disregarded, and not that it must be disregarded. The
doctrine merely involves the question of weight of evidence
which a court may apply in a given set of circumstances,
but it is not what may be called "a mandatory rule of
evidence". (See Nisar Ali v. State of U.P.)
26. The doctrine is a dangerous one especially in India for
if a whole body of the testimony were to be rejected,
because the witness was evidently speaking an untruth in
some aspect, it is to be feared that administration of
criminal justice would come to a dead stop. Witnesses just
cannot help in giving embroidery to a story, however true in
the main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance, and
merely because in some respects the court considers the
same to be insufficient for placing reliance on the testimony
of a witness, it does not necessarily follow as a matter of
law that it must be disregarded in all respects as well. The
evidence has to be sifted with care. The aforesaid dictum is
not a sound rule for the reason that one hardly comes across
a witness whose evidence does not contain a grain of
untruth or at any rate an exaggeration, embroideries or
embellishment. (See Sohrab v. State of M.P. and Ugar Ahir
v. State of Bihar.) An attempt has to be made to, as noted
above, in terms of felicitous metaphor, separate the grain
from the chaff, truth from falsehood. Where it is not
feasible to separate the truth from falsehood, because grain
and chaff are inextricably mixed up, and in the process of
separation an absolutely new case has to be reconstructed
by divorcing essential details presented by the prosecution
completely from the context and the background against
which they are made, the only available course to be made
is to discard the evidence in toto. (See Zwinglee Ariel v.
State of M.P. and Balaka Singh v. State of Punjab.) As
observed by this Court in State of Rajasthan v. Kalki
normal discrepancies in the evidence are those which are
due to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
such as shock and horror at the time of occurrence and
those are always there, however honest and truthful a
witness may be. Material discrepancies are those which are
not normal, and not expected of a normal person. Courts
have to label the category to which a discrepancy may be
categorized. While normal discrepancies do not corrode the
credibility of a party's case, material discrepancies do so.
These aspects were highlighted recently in Krishna Mochi
v. State of Bihar, Gangadhar Behera v. State of Orissa and
Rizan v. State of Chhattisgarh.
104. Therefore, merely because a witness has been disbelieved on
some part of his evidence, would not result in discarding of his entire
evidence. The Court must try to remove grain from the chaff. As the
major part of the evidence of this witness is in consonance with his
previous version as well as the prosecution story and also medical
evidence, therefore, the same cannot be discarded only on the ground
that on some issue, this witness has been disbelieved.
105. By referring to para 54 of evidence of this witness, it was once
again submitted by the Counsel for the appellants, that since, this
witness has stated that there was no enmity between the parties,
therefore, it is impossible for the accused party to kill four persons and
to injure 2 persons.
106. Considered the submissions made by the Counsel for the
appellants.
107. It is the case of the complainant party, that the gun shot fired by
Ramvir Singh had hit the deceased Brajesh and thereafter, they started
firing at the complainant party. While deciding the Cr.A. No.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
584/2008 (State of M.P. Vs. Ramant Singh [cross case]), this Court has
already held that the prosecution has failed to prove, that Brajesh was
killed by Ramant Singh (P.W.1). Further, where a case is based on
direct evidence, absence of motive is not material. The Supreme Court
in the case of Saddik v. State of Gujarat, reported in (2016) 10 SCC
663 has held as under :
21. It is settled legal position that even if the absence of
motive, as alleged, is accepted, that is of no consequence
and pales into insignificance when direct evidence
establishes the crime. Therefore, in case there is direct
trustworthy evidence of witnesses as to commission of an
offence, the motive part loses its significance. Therefore, if
the genesis of the motive of the occurrence is not proved,
the ocular testimony of the witnesses as to the occurrence
cannot be discarded only on the ground of absence of
motive, if otherwise the evidence is worthy of reliance. (See
Hari Shanker v. State of U.P.; Bikau Pandey v. State of
Bihar; Abu Thakir v. State of T.N.; State of U.P. v.
Kishanpal and Bipin Kumar Mondal v. State of W.B.)
The Supreme Court in the case of Yogesh Singh Vs. Mahabeer
Singh reported in (2017) 11 SCC 195 has held as under :
46. It has next been contended by the learned counsel for
the respondents that there was no immediate motive with
the respondents to commit the murder of the deceased.
However, the trial court found that there was sufficient
motive with the accused persons to commit the murder of
the deceased since the deceased had defeated accused
Harcharan in the Pradhan elections, thus putting an end to
his position as Pradhan for the last 28-30 years. The long
nursed feeling of hatred and the simmering enmity between
the family of the deceased and the accused persons most
likely manifested itself in the outburst of anger resulting in
the murder of the deceased. We are not required to express
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
any opinion on this point in the light of the evidence
adduced by the direct witnesses to the incident. It is a
settled legal proposition that even if the absence of motive,
as alleged, is accepted that is of no consequence and pales
into insignificance when direct evidence establishes the
crime. Therefore, in case there is direct trustworthy
evidence of the witnesses as to commission of an offence,
motive loses its significance. Therefore, if the genesis of the
motive of the occurrence is not proved, the ocular testimony
of the witnesses as to the occurrence could not be discarded
only on the ground of absence of motive, if otherwise the
evidence is worthy of reliance. (Hari Shanker v. State of
U.P., Bikau Pandey v. State of Bihar, State of U.P. v.
Kishanpal, Abu Thakir v. State of T.N. and Bipin Kumar
Mondal v. State of W.B.)
108. Motive always remains in the mind of the wrongdoer.
Therefore, merely because the witnesses have not alleged any motive,
would not make their evidence unreliable.
109. By referring to para 76 of his evidence, it is submitted by the
Counsel for the appellants, that the prosecution has failed to prove that
this witness had sustained gun shot injury.
110. Considered the submissions made by the Counsel for the
appellants.
111. M.L.C. of Manohar Singh (P.W. 16) is Ex. 12A. This witness
was medically examined on 17-10-2000 at 1:50 A.M. in the night.
Thus, it is clear that this witness was medically examined immediately
after the incident, without there being any undue delay. From the
M.L.C., Ex. P.12A, it is clear that this witness had suffered gun shot
injury on his back. Therefore, there is every likelihood, that this
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
witness might not have authoritatively noticed that, who had caused
gun shot injury to him. Further, according to this witness, Kaushlendra
Singh had caused gun shot injury to him, whereas Kaushlendra Singh
has been acquitted and whether the acquittal of Kaushlendra Singh is
in accordance with law or not, shall be decided in the Criminal Appeal
No.790/2005 filed by State.
112. By referring to para 96 and 97 of evidence of this witness, it is
contended that this witness has admitted that it was a dark night, and
without any source of light, it was not possible to see the faces of any
persons. Although it is claimed by this witness, that Gas Patromax
were burning, but since, the same has not been mentioned in his police
statement, Ex. D.5, therefore, it is clear that there was no source of
light on the spot. It is further submitted that even in the site plan Ex.
D.16, the gas patromax have not been shown therefore, it is clear that
there was no source of light.
113. Considered the submissions made by the Counsel for the
appellants.
114. Gomati bai (P.W.13), this witness and Kumher Singh (P.W. 17)
[Although his daughter-in-law namely Mamta was killed] are
independent witnesses. Since, Gomati bai (P.W.13) and this witness
are injured witnesses, therefore, their presence on the spot is doubtful.
It is the case of the prosecution, that a function was going on in the
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
house of Ramant Singh and lot of persons had gathered there.
Therefore, under these circumstances, it is clear that there cannot be
any function without light. If the investigating Officer, R.S. Ghuraiya
(P.W. 20) did not show Gas Patromax in the site plan, Ex. D.16, then at
the most, it can be said to be a faulty investigation and the trustworthy
evidence of prosecution witness cannot be thrown out. In an identical
situation, the Supreme Court in the case of Prithvi (minor) Vs.
Mamraj reported in (2004) 13 SCC 279 has held as under :
17. A further reason for disbelieving the evidence of Prithvi
is that, while Prithvi stated that he could see the assailants
because there was light on the spot coming from a bulb
fitted in an electric pole near the chakki of Birbal (which
was situated about fifteen steps from the place of
occurrence) the investigating officer (PW 36) when cross-
examined said that he did not remember anything about it
nor did he include any electric pole in his site plan.
Assuming that this was faulty investigation by the
investigating officer, it could hardly be a ground for
rejection of the testimony of Prithvi which had a ring of
truth in it. We may recount here the observation of this
Court in Allarakha K. Mansuri v. State of Gujarat, SCC at
p. 64, para 8, that:
"The defects in the investigation holding it to be shaky
and creating doubts also appears to be the result of the
imaginative thought of the trial court. Otherwise also,
defective investigation by itself cannot be made a
ground for acquitting the accused."
115. Thus, it is held that Manohar Singh (P.W. 16) is a trustworthy
and reliable witness.
116. Kumher Singh (P.W. 17) is the father-in-law of the deceased
Mamta. However, he is not related to Ramant Singh (P.W.1) and
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
accordingly, he is an independent witness. This witness has stated that
a function in the house of Ramant Singh (P.W.1) was going on. He
was having his meal. He further stated that Ramvir shot Jaswant and
Keshav. Nathu Singh, Kaushlendra Singh, and Ghanshyam started
firing. Gun shot fired by Kaushlendra hit Gomati bai (P.W. 13).
Immediately thereafter, he corrected himself and stated that gun shot
fired by Kaushlendra hit Manohar Singh (P.W.16) and gun shot fired
by Nathu Singh hit Gomati bai (P.W. 13). However, he could not see
that who shot Mamta. He further stated that gun shot fired by Nathu
Singh hit Raghunath. Kumher Singh (P.W. 17) was confronted with
his police statement, Ex. D.17 in which it was stated that "Ghanshyam
shot Raghunath", but in reply this witness insisted that he had
informed the Investigating Officer, that it was Nathu Singh, who shot
Raghunath. Thus, there is a material contradiction as to who shot
Raghunath. Under these circumstances, it is held that the evidence of
this witness that Nathu Singh shot Raghunath cannot be accepted.
117. By referring to para 8 of evidence of this witness, it is submitted
that this witness has clearly stated that none of the assailant had
entered inside the house of Ramant Singh (P.W.1).
118. Considered the submissions made by the Counsel for the
appellants.
119. This incident has taken place in a most gruesome manner.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Multiple firing had taken place. As number of persons had gathered to
attend the function, therefore, they must have run helter-skelter. In
these circumstances, if a witness could not notice some part of the
incident, then he cannot be disbelieved in toto.
120. By referring to para 11 of evidence of this witness, it is
submitted that the allegation that Nathu Singh shot Raghunath cannot
be accepted. This aspect of the matter has already been considered in
the previous paragraph and it has already been held that the evidence
of this witness that Nathu Singh shot Raghunath cannot be relied upon.
121. By referring to para 23 of evidence of this witness, it is
submitted that some of the residents of the village had telephones in
their houses, in spite of that no information was given to police.
Therefore, the entire prosecution story is unreliable.
122. Considered the submissions made by the Counsel for the
appellants.
123. Where three persons had already died and three more were
injured, then the reaction of each and every person would be different.
Their conduct cannot be considered with a particular and uniform
yardstick.
124. By referring to suggestion given in para 78 of his evidence, it is
submitted that in fact this witness and members of other complainant
party were creating ruckus under the influence of alcohol and since,
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Brajesh had come to lodge his objection, therefore, he was chased by
this witness and others and Brajesh was killed by Ramant Singh
(P.W.1). It is further submitted that in fact all the four persons died
due to gun shots fired by Ramlakhan and the injured also sustained
injuries due to gun shot fired by Ramlakhan, therefore, it is prayed
that the appellants have been falsely implicated.
125. This defence of the appellants has already been considered in
detail in the previous paragraphs of this judgment. Further, this
defence cannot be accepted for other reason also. The deceased
persons namely, Keshav, Jaswant and Mamta had suffered bullet
injuries, whereas Raghunath @ Chhote Singh suffered pellet injuries.
Gomati bai (P.W.13) and Manohar Singh (P.W. 16) had suffered pellet
injuries. Thus, it is clear that two types of guns were used in the
incident. Therefore, it is clear that the entire incident was not
committed by one person, but more than one assailants were involved
in the incident. Further, why the witnesses would spare Ramlakhan in
order to falsely implicate the appellants, specifically when some civil
dispute is already going on between Ramlakhan and the complainant
party?
126. Thus, considering the submissions made by the Counsel for the
appellants, this Court is of the considered opinion, that minor
omissions, contradictions, embellishment in the evidences of the
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
prosecution witnesses, would not make them unreliable, therefore, it is
held that Ramant Singh (P.W.1), Gomati bai (P.W.13), Rajabeti
(P.W.15), Manohar Singh (P.W. 16) and Kumher Singh (P.W.17) are
reliable witnesses and their testimony is worth reliance.
127. Now, the next question for consideration is that what offence
was committed by the appellants Nathu Singh, Ramvir Singh and
Ghanshyam.
128. For the sake of clarity, the role played by each and every
appellant shall be considered separately.
Nathu Singh (Cr.A. No. 397/2005)
129. Ramant Singh (P.W.1), has lodged Dehati Nalishi, Ex. P. 1 and
F.I.R., Ex. P.10 was lodged on the basis of Dehati Nalishi, Ex. P.1. As
Per Dehati Nalishi Ex. P.1, the appellant Nathu Singh was also armed
with 12 bore gun and caused injuries to Manohar.
(i) Ramant Singh (P.W.1) has stated that on the date of incident, a
function on the occasion of birth of his son was going on. The invitees
were having their meals. Kaushlendra (acquitted), Sindhi (acquitted),
Rajesh (acquitted), Mahendra (acquitted), Kallu (acquitted), and
Bhanupratap started bursting crackers by the side of the platform of his
house. Ladies were having their meals on the roof of the house, and
Jaswant (deceased) and Suresh were serving food. Manohar requested
the accused persons, to burst crackers after 10-15 minutes. On this
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
issue, all the accused persons started abusing and also started pelting
stones and bricks. Kaushlendra (acquitted) left the place and came
back with his .12 bore gun, Ramvir (appellant) also came there with
his mouser, whereas Ghanshyam (appellant) came there with .12 bore
gun and Nathu Singh (appellant) also came there with .12 bore gun.
Ramvir Singh (appellant) shot Keshav and Jaswant, whereas
Ghanshyam (appellant) shot Raghunath @ Chhote Singh. This witness
went inside the house. Thereafter, all the accused persons surrounded
the house and started pelting stones. Mamta (deceased) scolded from
inside, as to why they are killing all the persons, then Ramvir
(appellant) shot Mamta, who fell down. Kaushlendra (acquitted)
caused injury to Manohar Singh (P.W.16). Nathu Singh (appellant)
caused gun shot injury to Gomati bai (P.W.13). Ramant Singh (P.W.1)
ran to the roof of the house, where he was assaulted by Mahendra
Singh (acquitted) by lathi and had scuffle with him. As Ramant Singh
(P.W.1) got scared, therefore, he continued to sit by the side of the dead
bodies. The police party came to his house at about 11-11:30 P.M.,
and thereafter, he lodged the Dehati Nalishi, Ex. P.1.
(ii) Thus, if the evidence of Ramant Singh (P.W.1) is considered,
then it appears that Nathu Singh was armed with .12 bore gun and
caused injury to Gomati bai (P.W.13).
(iii) Although Ramant Singh (P.W.1) was confronted with some
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
portion of his statement recorded under Section 161 of Cr.P.C., Ex.
D.1, but there is no discrepancy with regard to the role allegedly
played by Nathu Singh (appellant). However, in Dehati Nalishi, Ex.
P.1, this witness had stated that Nathu Singh had caused gun shot
injury to Manohar Singh. He was confronted with said contradiction
and in para 61 of his cross-examination, this witness has stated that he
never disclosed to the police that Nathu Singh had caused injury to
Manohar Singh.
(iv) It is not out of place to mention here that three persons, had
already lost their lives and three were injured, therefore, the mental
condition and the trauma under which this witness must be going can
be understood. Further, the Dehati Nalishi, Ex. P.1 was lodged within
2.30 hours of the incident. However, in his police statement, Ex. D.1,
which was recorded on the next date of incident i.e., 17-10-2000, this
witness had specifically stated that Nathu Singh caused injury to
Gomatibai (P.W. 13). Therefore, under these circumstances, the
evidence of Ramant Singh (P.W.1) that Nathu Singh caused injuries to
Gomati bai (P.W.13) can be relied upon, provided the evidence of other
witnesses is found in consonance with said allegation.
(v) Gomati bai (P.W.13) has also stated in her evidence, that gun
shot injury was caused to her by Nathu Singh. Although Gomati bai
(P.W.13) was confronted with her police statement, Ex. D.3, but there
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
is no discrepancy with regard to the role allegedly played by Nathu
Singh (appellant). Further, the dying declaration, Ex. D.18 of
Gomatibai (P.W. 13) was recorded by a Doctor, in which She had
stated that Ramvir had caused injury to her, but on confrontation, She
explained that since She was not fully conscious, therefore, She might
have committed mistake in disclosing the name to the Doctor. In the
present case, the Doctor who had recorded the dying declaration, Ex.
D.18 has not been examined. Since, Gomati bai (P.W.13) survived,
therefore, so called Dying-declaration, Ex. D.18 is not admissible
under Section 32 of Evidence Act. Further, in the light of the
explanation given by Gomati bai (P.W. 13) in para 72 of her cross-
examination, it is held that her Court evidence cannot be discarded in
the light of the statement which was recorded as Dying declaration,
Ex. D.18.
(vi) Rajabeti (P.W. 15), is an eye witness and is widow of Keshav
and mother of deceased Jaswant. Rajabeti (P.W. 15) has also stated
that the Nathu Singh (appellant) caused gun shot injury to Gomati bai
(P.W.13). Although in para 2 of her examination-in-chief, this witness
had earlier stated that Nathu Singh had caused injury to Manohar, but
in cross examination by Trial Court, this witness in para 5 of her cross
examination, clarified that Gomatibai (P.W. 13) sustained injuries due
to gun shot fired by Nathu Singh. Although Rajabeti (P.W.15) was
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
confronted with her police statement, Ex. D.4, but there is no
discrepancy with regard to the role allegedly played by Nathu Singh
(appellant).
(vii) Manohar Singh (P.W.16) is an injured witness. He has also
stated that Nathu Singh, caused injury to Gomati bai (P.W.13). This
witness was confronted with his statement, Ex. D.5, in which he had
stated that Kaushlendra (acquitted) fired a gun shot on this witness, but
as this witness bent down, therefore, the said shot hit Gomati bai
(P.W.13). In reply it was stated by this witness that he had not given
the statement " then Kaushlendra fired.....hit Gomati bai".
(viii) Kumher Singh (P.W.17) is an eye witness. Initially in para 4, he
stated that Kaushlendra (acquitted) caused injury to Gomatibai
(P.W.13) but immediately thereafter, he corrected himself in the same
para, and stated that Nathu Singh (appellant) caused gun shot injury to
Gomatibai (P.W.13). He also stated that Nathu Singh shot Raghunath.
However, in his police statement, Ex. D.17, it was stated by him that it
was Ghanshyam who shot Raghunath. When the attention of this
witness was drawn to his previous police statement, Ex. D.17, then he
replied that he cannot explain as to how the police has written that
"Ghanshyam had fired gun shot causing injury to Raghunath", but in
fact Nathu Singh had shot Raghunath Singh. Since, there is a material
contradiction in the evidence of this witness and his police statement,
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Ex. D.17 of this witness, therefore, the evidence of this witness that
Nathu Singh had shot Raghunath Singh, cannot be accepted.
(ix) Thus, it is clear that as per Dehati Nalishi, Ex. P.1, F.I.R., Ex.
P.10, Nathu Singh was armed with .12 bore gun and had also fired,
whereas Ramant Singh (P.W.1), Gomati bai (P.W.13), Rajabeti
(P.W.15), and Kumher Singh (P.W.17) have stated that the appellant
Nathu Singh (appellant) caused gun shot injuries to Gomatibai
(P.W.13).
Ramvir Singh (Cr.A. No. 425/2005)
130.(i)Ramant Singh (P.W.1) in his Dehati Nalishi, Ex. P.1 and F.I.R.,
Ex. P.10 has stated that Ramvir Singh shot Keshav and Jaswant.
(ii) Ramant Singh (P.W.1) in his Court evidence, stated that Keshav,
Jaswant and Mamta were shot by Ramvir Singh.
(iii) Ramant Singh (P.W.1) was confronted with his police statement,
Ex. D.1, in which he had stated that it was Ghanshyam, who shot
Mamta. In para 94 of his cross-examination, it was clarified by this
witness that since, various persons had already died, therefore, he was
un-confortable. Accordingly, it was claimed that he had wrongly
disclosed in his police statement, Ex. D.1, that Ghanshyam had shot
Mamta. In para 96 of his cross examination, this witness replied that
in fact he had disclosed to the S.H.O., that Ramvir had shot Mamta.
Thus, according to this witness, Ramvir Singh also shot Mamta.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
(iv) Gomati bai (P.W. 13) has stated that Ramvir Singh shot Keshav
and Jaswant. Further, it is stated that Ghanshyam shot Raghunath @
Chhote Singh. Gomati bai (P.W.13) in her police statement Ex. D.3,
had not claimed that She had seen Ramvir Singh or Ghanshyam
causing any gunshot injury to Keshav, Jaswant and Raghuvir. On the
contrary, She had stated that "She came to know" that Ramvir Singh,
killed Keshav and Jaswant, whereas Ghanshyam killed Raghunath.
When She was confronted with her police statement, Ex. D.3, then in
para 26 of her cross examination, She claimed that She never disclosed
to police that "She came to know" and could not explain as to how,
"She came to know" was mentioned in here Police statement, Ex. D.3.
Thus in view of vital contradiction in the evidence of Gomati bai
(P.W.13), it is held that She did not see that who caused gun shot
injuries to Keshav, Jaswant and Raghunath @ Chhote Singh.
However, it is held that immediately after the incident, she came to
know that Ramvir Singh has killed Keshav and Jaswant, whereas
Ghanshyam has killed Raghunath @ Chhote Singh.
(iv) Rajabeti (P.W.15) has stated that Ramvir Singh (appellant) shot
Jaswant, Keshav and Mamta. Rajabeti was not confronted with her
police statement Ex. D.4, in which She had stated that it was
Ghanshyam who shot Mamta. It is well established principle of law
that unless and until, the contradiction is pointed out to the witness, the
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
defence cannot take advantage of such discrepancy. The Supreme
Court in the case of V.K. Mishra Vs. State of Uttarakhand reported
in (2015) 9 SCC 588 has held as under :
93. 19. Under Section 145 of the Evidence Act when it is
intended to contradict the witness by his previous statement
reduced into writing, the attention of such witness must be
called to those parts of it which are to be used for the
purpose of contradicting him, before the writing can be
used. While recording the deposition of a witness, it
becomes the duty of the trial court to ensure that the part of
the police statement with which it is intended to contradict
the witness is brought to the notice of the witness in his
cross-examination. The attention of witness is drawn to that
part and this must reflect in his cross-examination by
reproducing it. If the witness admits the part intended to
contradict him, it stands proved and there is no need to
further proof of contradiction and it will be read while
appreciating the evidence. If he denies having made that
part of the statement, his attention must be drawn to that
statement and must be mentioned in the deposition. By this
process the contradiction is merely brought on record, but it
is yet to be proved. Thereafter when investigating officer is
examined in the court, his attention should be drawn to the
passage marked for the purpose of contradiction, it will then
be proved in the deposition of the investigating officer who
again by referring to the police statement will depose about
the witness having made that statement. The process again
involves referring to the police statement and culling out
that part with which the maker of the statement was
intended to be contradicted. If the witness was not
confronted with that part of the statement with which the
defence wanted to contradict him, then the court cannot suo
motu make use of statements to police not proved in
compliance with Section 145 of the Evidence Act that is, by
drawing attention to the parts intended for contradiction.
Since, the attention of this witness was not drawn to her
previous statement with regard to contradiction on the issue as to who
caused gun shot injury to Mamta, therefore, this Court cannot look into
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
the previous statement i.e., police statement of this witness.
Accordingly, as per evidence of Rajabeti (P.W. 15) it was Ramvir who
shot Mamta also. Thus, according to this witness, Ramvir Singh, shot
Keshav, Jaswant and Mamta.
(v) Manohar Singh (P.W. 16) has stated in his court evidence that it
was Ramvir (appellant) who shot Keshav and Jaswant. Thus,
according to this witness, Ramvir Singh killed Keshav and Jaswant.
(vi) Kumher Singh (P.W. 17) has stated that he could not see as to
who caused gun shot injury to Mamta. However, it was specifically
stated by him that Ramvir Singh shot Jaswant Singh and Keshav
Singh.
(vi) Thus, from the evidence of Ramant Singh (P.W.1), Rajabeti
(P.W. 15), Manohar Singh (P.W. 16) and Kumher Singh (P.W. 17), it is
clear that Ramvir Singh (appellant) shot Keshav and Jaswant.
(vii) There is some discrepancy as to who caused gun shot injury to
Mamta. Ramant Singh (P.W.1) and Rajabeti (P.W. 15) says, that it was
Ramvir who caused gun shot injury to Mamta, whereas Gomati bai
(P.W.13), and Manohar Singh (P.W.16) have stated that in fact
Ghanshyam caused gun shot injury to Mamta.
(viii) According to the witnesses, Ramvir Singh was carrying .315
bore gun, whereas Ghanshyam was carrying .12 bore gun. As per
postmortem report of Mamta, Ex. P.28, as well as F.S.L. report, Ex.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
P.39, one piece of .315 bullet was recovered from the dead body of
Mamta. As per postmortem report, Ex. P.28, one pellet was also
recovered from the dead body of Mamta. Thus, it is clear that
deceased Mamta had suffered two gun shots, i.e., one by .315 bore gun
and another by .12 bore gun. Accordingly, whether Ramvir Singh shot
Mamta or not shall be considered in the following paragraphs.
Further, Raghunath @ Chhote Singh had suffered pellet injuries,
whereas Ramvir Singh was carrying .315 bore mouser. Therefore,
whether Raghunath @ Chhote Singh died due to gun shot fired by
Ramvir Singh or not shall also be considered in the following
paragraphs.
Ghanshyam (Cr.A. 401/2005)
131.(i)Ramant Singh (P.W.1) in his Dehati Nalishi, Ex. P.1 and F.I.R.,
Ex. P.10 had informed that Ghanshyam shot Raghunath @ Chhote
Singh and Mamta, whereas in his Court evidence, Ramant Singh
(P.W.1) has stated that Ghanshyam shot Raghunath @ Chhote Singh,
whereas Ramvir Shot Mamta. Ramant Singh (P.W.1) in his police
statement, Ex. D.1 had stated that Ghanshyam had shot Mamta and
accordingly, he was confronted with such contradiction in his police
statement Ex. D.1. In para 94 of his cross-examination, it was clarified
by this witness that since, various persons had already died, therefore,
he was un-confortable. Accordingly, it was claimed that he had
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
wrongly disclosed in his police statement, Ex. D.1 that Ghanshyam
had shot Mamta. In para 96 of his cross examination, this witness
replied that in fact he had disclosed to the S.H.O., that Ramvir had shot
Mamta. Thus,it is held that Ramant Singh (P.W.1) has claimed that
Ghanshyam had shot Raghunath.
(ii) Gomati bai (P.W. 13) has stated that Mamta was standing along
with her, when Ghanshyam shot Mamta. Although Gomati bai
(P.W.13) was confronted with her police statement, Ex. D. 3 in respect
of other aspects, but there is no discrepancy regarding causing injury
to Mamta, because in her police statement, Ex. D.3, She had stated that
it was Ghanshyam who shot Mamta. Thus, it is clear that the evidence
of Gomati bai (P.W.13) is consistent so far it relates to the allegation
that Ghanshyam shot Mamta. So far as the allegation of killing
Raghunath @ Chhote Singh by Ghanshyam is concerned, this witness
in her police statement, Ex. D.3 had stated that lateron, "She came to
know" that Ghanshyam killed Raghunath @ Chhote Singh. Thus,
according to Gomati bai (P.W.13), Ghanshyam shot Mamta, and also
came to know immediately after the incident, that Ghanshyam killed
Raghunath @ Chhote Singh also. However, in the light of evidence of
Gomatibai (P.W.13) it can be held that it is her claim that Ghanshyam
shot Mamta.
(iii) Rajabeti (P.W. 15) has stated in her Court evidence that
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Ghanshyam shot Raghunath and Kaushlendra (acquitted) shot Mamta.
On cross examination by Court, this witness in para 5 of her evidence
stated that Mamta was shot by Ramvir, whereas in her police
statement, Ex. D.4, She has stated that Ghanshyam shot Raghunath and
Mamta. However, She was not confronted with contradiction in
causing injury to Mamta. As statement recorded under Section 161 of
Cr.P.C. is not a substantial piece of evidence, therefore, her police
statement cannot be read against Ghanshyam with regard to causing
death of Mamta. Thus, the evidence of Rajabeti (P.W.15) can be read
only to the extent that Ghanshyam caused death of Raghunath.
(iv) Manohar Singh (P.W. 16) has stated that Ghanshyam shot
Raghunath @ Chhote Singh and Mamta. Manohar Singh (P.W.16) was
confronted with his police statement, Ex. D.5, in respect of certain
contradictions regarding other aspects, but there is no contradiction
with regard to the role played by Ghanshyam. Thus, according to
Manohar Singh (P.W.15), Ghanshyam shot Raghunath and Mamta.
(v) Kumher Singh (P.W. 17) in para 7 of his cross examination by
Court, has stated that Nathu Singh shot Raghunath Singh. So far as
the role played by Ghanshyam Singh is concerned, it was stated by this
witness that Ghanshyam Singh was also armed with gun and was
firing.
132. For the sake of convenience, chart showing the allegations made
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
by the witnesses, of causing injuries to different persons, is as under :
Jaswant Keshav (D) Raghunath Mamta (D) Gomati Manohar (I)
(D) (D) (I)
Ramant
Singh
(P.W.1)
Dehati Ramvir Ramvir Ghanshyam Ghanshyam Nathu Singh
Nalishi Ex. Singh Singh
P.1
Case Diary Ramvir Ramvir Ghanshyam Ghanshyam Nathu Kaushlendra
Statement, Singh Singh Singh Singh
Ex. D.1
Court Ramvir Ramvir Ghanshyam Ramvir Nathu Kaushlendra
Evidence Singh Singh Singh Singh Singh
Gomati
bai
(P.W.13)
Case Diary Ramvir Ramvir Ghanshyam Ghanshyam Nathu
Statement Singh Singh (Came to Singh
Ex. D.4 (Came to (Came to know)
know) know)
Dying Ramvir
Declaration Singh
Ex. D.18
Court Ramvir Ramvir Ramvir Ghanshyam Nathu Kaushlendra
Evidence Singh Singh Singh Singh Singh
Rajabeti
(P.W. 15)
Case Diary Ramvir Ramvir Ghanshyam Ghanshyam Nathu Kaushlendra
Statement Singh Singh Singh Singh
Ex. D.4
Court Ramvir Ramvir Ghanshyam Ramvir Nathu Kaushlendra
Evidence Singh Singh Singh Singh Singh
Manohar
Singh
(P.W. 16)
Case Diary Ramvir Ramvir Ghanshyam Ghanshyam Kaushle Nathu Singh
Statement Singh Singh -ndra
Ex. D. 5 Singh
Court Ramvir Ramvir Ghanshyam Ghanshyam Nathu Kaushlendra
Evidence Singh Singh Singh Singh
Kumher
Singh
(P.W.16)
Case Diary Ramvir Ramvir Ghanshyam Ghanshyam Nathu Kaushlendra
Statement Singh Singh Singh Singh
Ex. D. 17
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Court Ramvir Ramvir Nathu Singh Nathu Kaushlendra
Evidence Singh Singh Singh Singh
133. Before proceeding further, this Court thinks to apposite to
consider the defence of the appellants Ghanshyam and Ramvir Singh.
Defence of Appellants Ghanshyam and Ramvir Singh
134. The appellant Ghanshyam and Ramvir have taken a defence of
plea of alibi. It is well established principle of law that plea of alibi is
required to be proved by the accused by leading cogent evidence. The
Supreme Court in the case of Jitender Kumar Vs. State of Haryana
reported in (2012) 6 SCC 204 has held as under :
71. Once PW 10 and PW 11 are believed and their
statements are found to be trustworthy, as rightly dealt with
by the courts below, then the plea of abili raised by the
accused loses its significance. The burden of establishing
the plea of alibi lay upon the appellants and the appellants
have failed to bring on record any such evidence which
would, even by reasonable probability, establish their plea
of alibi. The plea of alibi in fact is required to be proved
with certainty so as to completely exclude the possibility of
the presence of the accused at the place of occurrence and
in the house which was the home of their relatives. (Ref. Sk.
Sattar v. State of Maharashtra.)
The Supreme Court in the case of Om Prakash v. State of
Rajasthan, reported in (2012) 5 SCC 201 has held as under :
32. Drawing a parallel between the plea of minority and the
plea of alibi, it may be worthwhile to state that it is not
uncommon to come across criminal cases wherein an
accused makes an effort to take shelter under the plea of
alibi which has to be raised at the first instance but has to be
subjected to strict proof of evidence by the court trying the
offence and cannot be allowed lightly in spite of lack of
evidence merely with the aid of salutary principle that an
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
innocent man may not have to suffer injustice by recording
an order of conviction in spite of his plea of alibi.
The Supreme Court in the case of Jumni Vs. State of Haryana
reported in (2014) 11 SCC 355 has held as under :
23. On the standard of proof, it was held in Mohinder Singh
v. State that the standard of proof required in regard to a
plea of alibi must be the same as the standard applied to the
prosecution evidence and in both cases it should be a
reasonable standard. Dudh Nath Pandey goes a step further
and seeks to bury the ghost of disbelief that shadows alibi
witnesses, in the following words: (Dudh Nath case, SCC p.
173, para 19)
"19. ... Defence witnesses are entitled to equal
treatment with those of the prosecution. And, courts
ought to overcome their traditional, instinctive
disbelief in defence witnesses. Quite often, they tell
lies but so do the prosecution witnesses."
Therefore, the evidence led by Ghanshyam and Ramvir Singh in
support of their plea of Alibi shall be considered in the light of the
degree of proof as pointed out by the Supreme Court in the above
mentioned judgments.
135. Ghanshyam (D.W.1) has examined himself under Section 315 of
Cr.P.C. He has stated that he is a teacher in Govt. School and from the
date of his appointment, he is residing in village Kheriya, in the house
of one Rajendra Singh Tomar as his tenant. He further stated that only
on special occasions, he goes to village Khoyala, where incident took
place. It is further stated by him that on 27-10-2000, when he went to
Porsa to collect his salary, then he came to know that some people
have been killed. He has further stated that he was illegally detained
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
by R.S. Ghuraiya (P.W. 20) and accordingly, he had also filed a writ
petition in the nature of Habeas Corpus. He has also stated that on 18-
7-2000 some dispute arose between Kaushlendra Singh and Virendra,
Sultan Singh, Manohar Singh (P.W. 16), Dinesh and Ramesh.
Accordingly, a complaint Ex. D.6 was filed for offence under Section
323,294,506(B), 427,336 of I.P.C. The statement of Kaushlendra
recorded under Section 200 of Cr.P.C. is Ex. D.8, statement of Rajesh
under Section 202 of Cr.P.C. is Ex. D.9, statement of Brajesh under
Section 202 of Cr.P.C. is Ex. D.10 and the copies of the ordersheets are
Ex. D.11 and D.12. He also stated that a false F.I.R., Ex. P.14 was
lodged by Sultan Singh on the basis of which the police filed charge
sheet, Ex.D.15 and by judgment, Ex. D.13, Ghanshyam, Kaushlendra
and Ramvir have been acquitted. Since, the complaint was filed,
therefore, Sultan, Manohar, Dinesh, Ramesh and Ramant (P.W. 1) were
having grudge against him. In cross-examination, Ghanshyam claimed
that distance between village Kheriya and Khoyala, where incident
took place, is about 116-17 Km.s and not 1-2 Km. He accepted that he
has not filed any document to show that he was on duty from 16-10-
2000 to 26-10-2000. He denied that on the date of incident, he was in
village Khoyala.
136. Thus, if the defence of Ghanshyam regarding plea of alibi is
considered, then it is clear that he had never claimed that on 16-10-
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
2000, he was in village Kheriya. He has not filed any document to
show that he was on duty from 16-10-2000 till 26-10-2000. Further, in
criminal complaint Ex. D.6 and his statement Ex. D.8, this witness had
disclosed his address as village Khoyala and not village Kheriya.
Further according to Ghanshyam himself, the distance between village
Kheriya and village Khoyala is only 16-17 Kms. Thus, it cannot be
said that it was physically impossible for him to remain present in
village Khoyala at the time of incident. Further, this witness has not
examined Rajendra Singh Tomar, in whose house, Ghanshyam was
claiming that he was residing as a tenant. Thus, it is held that
Ghanshyam has failed to prove his plea of alibi. Further, he has
claimed that because of some incident which took place on 18-7-2000,
there was an enmity between the parties. As already held, enmity is a
double edged weapon and it also provides motive for committing
offence.
137. Further, taking a false plea of alibi, would also be an additional
link to the circumstances, although false plea of alibi cannot be a sole
criteria to record conviction. The Supreme Court in the case of
Subramaniam v. State of T.N., reported in (2009) 14 SCC 415 has
held as under :
34.........Failure to prove the plea of alibi and/or giving of
false evidence itself may not be sufficient to arrive at a
verdict of guilt; it may be an additional circumstance. But
before such additional circumstance is taken into
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
consideration, the prosecution must prove all other
circumstances to prove his guilt........
138. Ramvir Singh has examined Binda Singh Tomar (D.W.2) and
Parvat Singh Sengar (D.W.3). Ramvir Singh is the brother-in-law
(Jija) of Binda Singh Tomar (D.W.2). He has stated that Ramvir was
arrested from village Patrai. Ramvir is residing in village Patrai for the
last 6-7 years back and is cultivating lands on Batai. He has further
claimed that in the night of Karvachouth, Ramvir and his sister
Ishnokumari were in village Patrai. In cross-examination, this witness
accepted, that Ishnokumari was elected as Sarpanch of Gram
Panchayat Khoyala. He further claimed that most probably,
Ishnokumari had shifted to village Patrai in the year 1999.
139. Considered the evidence of Binda Singh Tomar (D.W.2).
Ishnokumari, the wife of Ramvir was elected as Sarpanch of Gram
Panchayat, Khoyala, therefore, there was no reason for Ramvir to shift
to village Patrai. Ramvir has not clarified the reason for his shifting to
village Patrai. Further, Ramvir has not examined any witness, in
whose house, he was residing as tenant, because Binda Singh Tomar
(D.W.2) has not claimed that Ramvir Singh was residing in his house.
Thus, it is clear that Binda Singh Tomar (D.W.2) is not a reliable
witness.
140. Parvat Singh Sengar (D.W.3) has claimed that he is having 25
acres of land and Ramvir Singh was cultivating the same on batai.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
However, this witness has not filed any document to show that he is
the owner of 25 acres of land in village Patrai. He further admitted
that his grand father Jahar Singh and father-in-law of Ramvir, Kamal
Singh are real brothers. Therefore, it is clear that Parvat Singh Sengar
(D.W.3) is not an independent witness. Further, this witness has not
clarified the residential address of Ramvir Singh in village Patrai.
Thus, in absence of any evidence that Parvat Singh Sengar (D.W.3) is
having any agricultural land in village Patrai, coupled with the fact that
he is a near relative of Ramvir Singh, this Court is of the considered
opinion, that Ramvir Singh has failed to prove that he had ever shifted
to village Patrai and was not present in village Khoyala at the time of
incident.
141. By referring to para 144 and 149 of the impugned judgment, it is
submitted by the Counsel for the appellants, that the Trial Court, itself
has come to a conclusion that there are certain improvements in the
evidence of the witnesses, and they have tried to over implicate other
accused persons, therefore, the evidence of the witnesses are not
reliable.
142. This Court has already held that the principle of falsus in uno
falsus in omnibus has no application in India and the Court must try to
remove grain from the chaff. The Trial Court after appreciating the
evidence has already acquitted some of the co-accused persons.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
143. By referring to the findings given by the Trial Court in para 165,
166, 169, 175, 177, 178, 179, 181, 182 and 194 of Judgment, it is
submitted by the Counsel for the appellants, that the Trial Court, itself
has found that the incident cannot take place only on the question of
bursting of crackers and thus, the witnesses and investigating officer
have tried to suppress some part of the incident.
144. It is suffice to say, that this Court while deciding the Cr.A. No.
584 of 2008 filed by the State of M.P. against the acquittal of Ramant
Singh (P.W.1), has already held that Ramant Singh (P.W.1) did not
commit murder of Brajesh. In fact, by shifting the dead body and by
improving their version, specifically in the light of the fact that F.I.R.,
by Angad Singh in cross S.T. No. 229/2003 was lodged against
unknown persons, the appellants have tried to suppress the very
genesis of the incident. Therefore, in the light of findings recorded by
this Court in Cr.A. No. 584 of 2008, the findings given by the Trial
Court in the above mentioned paragraphs loses its importance.
145. No other argument was advanced by the Counsel for the
appellants.
146. If the evidence of all the witnesses along with the weapons used
by the appellants are considered, then the following conclusion would
emerge :
(a) So far as the murder of Keshav and Jaswant is conerned, all the
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
witnesses have stated in single voice that Ramvir Singh, killed Keshav
and Jaswant. The ocular evidence is supported by Postmortem report.
Further, Ramvir Singh was allegedly having .315 bore gun and bullet
injuries were found in the dead bodies of Keshav and Jaswant.
Accordingly, it is held that Ramvir Singh killed Keshav and Jaswant.
(b) So far as the murder of Raghunath @ Chhote Singh is
concerned, Ramant Singh (P.W. 1), Rajabeti (P.W. 15) and Manohar
Singh (P.W. 16) have stated in single voice that it was Ghanshyam who
shot Raghunath @ Chhote Singh. Kumher Singh (P. 17) has also stated
that Ghanshyam was having gun and he too had fired. Although, the
Trial Court has held that it was Ramvir Singh who killed Raghunath @
Chhote Singh, but the said finding recorded by the Trial Court is
contrary to record. As per the Postmortem report of Raghunath @
Chhote Singh, Ex. P.35, no exit wound was found and three pellets
were also recovered from the dead body of Raghunath @ Chhote
Singh, which were seized vide seizure memo Ex. P. 26. Ghanshyam
Singh was armed with .12 bore gun and cartridge having pellets are
used in the said gun. Since, Raghunath @ Chhote Singh had suffered
pellet injuries, and Ghanshyam was having .12 bore gun, therefore, it is
clear that Raghunath @ Chhote Singh, died of gun shot fired by
Ghanshyam. A charge under Section 302 of I.P.C. was also framed
against Ghanshyam for killing Raghunath. Under these circumstances,
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
it is held that it was Ghanshyam who killed Raghunath @ Chhote
Singh.
(c) There is some discrepancy as to who caused gun shot injuries to
deceased Mamta. According to Ramant Singh (P.W.1) and Rajabeti
(P.W. 15), it was Ramvir Singh who shot Mamta, whereas according to
Gomati bai (P.W. 13) and Manohar Singh (P.W. 15), Mamta was shot
by Ghanshyam Singh. Under these circumstances, it becomes
necessary to verify the ocular evidence with medical evidence as well
as ballistic evidence. As per Postmortem report, Ex. P.28, one piece of
.315 bore bullet and one pellet were recovered from the dead body of
Mamta. Thus, it is clear that deceased Mamta had suffered gun shots
from two different guns. One injury was caused by bullet and a piece
of .315 bore bullet was also recovered from her dead body and another
gun shot injury (three charring injuries) were caused by pellets and one
pellet was also recovered from her dead body. Ramvir Singh was
having .315 bore gun whereas Ghanshyam was having .12 bore gun.
Thus, it is clear that in fact there is no discrepancy in the evidence of
the witnesses. Thus, it is held that Mamta suffered injuries from gun
shots fired by Ramvir Singh and Ghanshyam Singh. According to
Postmortem report, the cause of death was shock due to injuries due to
gun shot (firearm). The three charring injuries from which one pellet
was recovered were found on the thigh of Mamta. Thus, in all
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
probabilities, those three charring injuries were not sufficient to cause
death. Accordingly, it is held that gun shot fired by Ramvir Singh,
caused death of Mamta. However, no charge under Section 302 of
I.P.C. for committing murder of Mamta was framed, but a charge under
Section 302/149 of I.P.C. for committing murder of Mamta was
framed. Thus, it is held that the appellant Ramvir Singh cannot be
held guilty for offence under Section 302 of I.P.C. for committing
murder of Mamta.
(d) So far as the injury sustained by Manohar Singh (P.W. 16) is
concerned, it is the evidence of the witnesses, that it was Kaushlendar
Singh who caused gun shot injury to Manohar Singh. However, in
Dehati Nalishi, Ex. P.1, although, the presence of Kaushlendra on the
spot was mentioned, but it was alleged that Kaushlendra Singh along
with others was bursting crackers. When it was objected by Manohar
Singh, then he abused him. However, no role after the opening of fire
was attributed to him. Further, there was no allegation that
Kaushlendra was having any firearm or had fired any gun shot. Since,
the Trial Court has already acquitted Kaushlendra Singh, and the State
Appeal No. 790/2005 against his acquittal has also been dismissed by
this Court by a separate judgment passed today, therefore, in absence
of any specific allegation against any of the appellants, it is held, that
Ramvir Singh, Nathu Singh and Ghanshyam Singh were sharing
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
common intention to make an attempt to commit murder of Manohar
Singh.
(e) So far as the injuries sustained by Gomati bai (P.W. 13) is
concerned, it is clear from her M.L.C., Ex. P. 11A, as well as x-ray
report, Ex. P22, multiple metallic radio-opaque irregular size foreign
body Shadows were found in the soft tissue under the muscles. Thus,
it is clear that Gomatibai (P.W.13) had suffered pellet injuries which
could have been caused by .12 bore gun. According to the evidence of
witnesses, Nathu Singh was having .12 bore gun and he had caused
gun shot injury to Gomatibai (P.W.13).
A .12 bore gun was also seized from the possession of Nathu
Singh vide seizure memo, Ex. P. 29. Although independent witnesses
of seizure namely Mewaram (P.W.10) and Lakhan Singh (P.W. 12)
have turned hostile and have not supported the prosecution story, but
they have admitted their signatures on seizure memo, Ex. P.29. Why
they put their signatures on the seizure memo, Ex. P.29 has not been
explained by them. The Supreme Court in the case of Ramesh
Harijan Vs. State of U.P. Reported in (2012) 5 SCC 777 has held as
under :
22.4. The recovery of part of the sheet and white clothes
having blood and semen as per the FSL report has been
disbelieved by the trial court in view of the fact that Ram
Prasad alias Parsadi (PW 5) and Bhikari (PW 10) did not
support the prosecution case like other witnesses who did
not support the last seen theory. The trial court failed to
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
appreciate that both the said witnesses, Ram Prasad alias
Parsadi (PW 5) and Bhikari (PW 10) had admitted their
signature/thumb impression on the recovery memo. The
factum of taking the material exhibits and preparing of the
recovery memo with regard to the same and sending the cut
out portions to the serologist who found the blood and
semen on them vide report dated 21-3-1996 (Ext. Ka-21) is
not disputed. The serological report also revealed that the
vaginal swab which was taken by the doctor was also
human blood and semen stained.
23. It is a settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and
cross-examine him.
"6. ... The evidence of such witnesses cannot be treated
as effaced or washed off the record altogether but the
same can be accepted to the extent that their version is
found to be dependable on a careful scrutiny thereof."
[Vide Bhagwan Singh v. State of Haryana; Rabindra
Kumar Dey v. State of Orissa; Syad Akbar v. State of
Karnatak and Khujji v. State of M.P.(SCC p. 635, para
6).]
24. In State of U.P. v. Ramesh Prasad Misra (SCC p. 363,
para 7) this Court held that evidence of a hostile witness
would not be totally rejected if spoken in favour of the
prosecution or the accused but required to be subjected to
close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defence can
be relied upon. A similar view has been reiterated by this
Court in Balu Sonba Shinde v. State of Maharashtra,
Gagan Kanojia v. State of Punjab; Radha Mohan Singh v.
State of U.P., Sarvesh Narain Shukla v. Daroga Singh and
Subbu Singh v. State.
"83. Thus, the law can be summarised to the effect that
the evidence of a hostile witness cannot be discarded
as a whole, and relevant parts thereof which are
admissible in law, can be used by the prosecution or
the defence."
[See also C. Muniappan v. State of T.N. (SCC p. 596,
para 83) and Himanshu v. State (NCT of Delhi).]
25. Undoubtedly, there may be some exaggeration in the
evidence of the prosecution witnesses, particularly that of
Kunwar Dhruv Narain Singh (PW 1), Jata Shankar Singh
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
(PW 7) and Shitla Prasad Verma (PW 8). However, it is the
duty of the court to unravel the truth under all
circumstances.
26. In Balaka Singh v. State of Punjab, this Court
considered a similar issue, placing reliance upon its earlier
judgment in Zwinglee Ariel v. State of M.P. and held as
under: (Balaka Singh case, SCC p. 517, para 8)
"8. ... the court must make an attempt to separate grain
from the chaff, the truth from the falsehood, yet this
could only be possible when the truth is separable
from the falsehood. Where the grain cannot be
separated from the chaff because the grain and the
chaff are so inextricably mixed up that in the process
of separation, the court would have to reconstruct an
absolutely new case for the prosecution by divorcing
the essential details presented by the prosecution
completely from the context and the background
against which they are made, then this principle will
not apply."
27. In Sukhdev Yadav v. State of Bihar this Court held as
under: (SCC p. 90, para 3)
"3. It is indeed necessary, however, to note that there
would hardly be a witness whose evidence does not
contain some amount of exaggeration or
embellishment--sometimes there would be a
deliberate attempt to offer the same and sometimes the
witnesses in their over anxiety to do better from the
witness box detail out an exaggerated account."
28. A similar view has been reiterated in Appabhai v. State
of Gujarat (SCC pp. 246-47, para 13) wherein this Court
has cautioned the courts below not to give undue
importance to minor discrepancies which do not shake the
basic version of the prosecution case. The court by calling
into aid its vast experience of men and matters in different
cases must evaluate the entire material on record by
excluding the exaggerated version given by any witness for
the reason that witnesses nowadays go on adding
embellishments to their version perhaps for the fear of their
testimony being rejected by the court. However, the courts
should not disbelieve the evidence of such witnesses
altogether if they are otherwise trustworthy.
29. In Sucha Singh v. State of Punjab (SCC pp. 113-14,
para 51) this Court had taken note of its various earlier
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
judgments and held that even if major portion of the
evidence is found to be deficient, in case residue is
sufficient to prove guilt of an accused, it is the duty of the
court to separate grain from chaff. Falsity of particular
material witness or material particular would not ruin it
from the beginning to end. The maxim falsus in uno, falsus
in omnibus has no application in India and the witness
cannot be branded as a liar. In case this maxim is applied in
all the cases it is to be feared that administration of criminal
justice would come to a dead stop. Witnesses just cannot
help in giving embroidery to a story, however true in the
main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of credence, and merely
because in some respects the court considers the same to be
insufficient or unworthy of reliance, it does not necessarily
follow as a matter of law that it must be disregarded in all
respects as well.
Further, V.K. Sharma (P.W.21) has stated that on 24-12-2000, he
had arrested Nathu Singh and his confessional statement, Ex. P.50 was
recorded. On production of .12 bore gun by Nathu Singh, the same was
seized vide seizure memo, Ex. P.29.
It is well established principle of law that the evidence of Police
personal cannot be discarded only because of the fact, that either he is
an investigating officer or his evidence is not corroborated by
independent witness. The Supreme Court in the case of Rohtash
Kumar v. State of Haryana, reported in (2013) 14 SCC 434 has held
as under:
35. The term witness, means a person who is capable of
providing information by way of deposing as regards
relevant facts, via an oral statement, or a statement in
writing, made or given in the court, or otherwise. In
Pradeep Narayan Madgaonkar v. State of Maharashtra32
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
this Court examined the issue of the requirement of the
examination of an independent witness, and whether the
evidence of a police witness requires corroboration. The
Court therein held that the same must be subject to strict
scrutiny. However, the evidence of police officials cannot
be discarded merely on the ground that they belonged to the
police force, and are either interested in the investigating or
the prosecuting agency. However, as far as possible the
corroboration of their evidence on material particulars,
should be sought. (See also Paras Ram v. State of Haryana,
Balbir Singh v. State, Kalpnath Rai v. State, M. Prabhulal v.
Directorate of Revenue Intelligence and Ravindran v. Supt.
of Customs.)
The Supreme Court in the case of Mukesh Singh Vs. State
(NCT of Delhi), reported in (2020) 10 SCC 120 has held as under :
11......The informant/investigator concerned will be cited as
a witness and he is always subject to cross-examination.
There may be cases in which even the case of the
prosecution is not solely based upon the deposition of the
informant/informant-cum-investigator but there may be
some independent witnesses and/or even the other police
witnesses. As held by this Court in a catena of decisions, the
testimony of police personnel will be treated in the same
manner as testimony of any other witness and there is no
principle of law that without corroboration by independent
witnesses his testimony cannot be relied upon. [See
Karamjit Singh v. State (NCT of Delhi).] As observed and
held by this Court in Devender Pal Singh v. State (NCT of
Delhi), the presumption that a person acts honestly applies
as much in favour of a police officer as of other persons,
and it is not judicial approach to distrust and suspect him
without good grounds therefor.
One fired cartridge was also found embedded in the barrel.
Thus, it is held that one .12 bore gun and fired cartridge were seized
from the possession of Nathu Singh.
Lalaram (P.W.5) had examined the .12 bore gun. Lalaram (P.W.
THE HIGH COURT OF MADHYA PRADESH
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
5) is an armorer working in the police department and according to the
report of the armorer, Ex. P.19, the said gun was found in working
condition. Therefore, it is held that Nathu Singh (Cr.A. No. 397/2005)
caused gun shot injuries to Gomati bai (P.W.13).
Whether, the appellants Nathu Singh, Ramvir Singh and
Ghanshyam were sharing common intention
147. The Supreme Court in the case of Chhota Ahirwar v. State of
M.P., reported in (2020) 4 SCC 126 has held as under :
21. It is a settled principle of criminal law that only the
person who actually commits the offence can be held guilty
and sentenced in accordance with law. However, Section 34
lays down a principle of joint liability in a criminal act, the
essence of which is to be found in the existence of common
intention, instigating the main accused to do the criminal
act, in furtherance of such intention. Even when separate
acts are done by two or more persons in furtherance of a
common intention, each person is liable for the result of all
the acts as if all the acts had been done by all of these
persons.
22. Section 34 is only a rule of evidence which attracts the
principle of joint criminal liability and does not create any
distinct, substantive offence as held by this Court in B.N.
Srikantiah v. State of Mysore; Bharwad Mepa Dana v. State
of Bombay and other similar cases. To quote Arijit Pasayat,
J. in Harbans Kaur v. State of Haryana; the distinctive
feature of Section 34 is the element of participation in
action.
23. Common intention can only be inferred from proved
facts and circumstances as held by this Court in Manik Das
v. State of Assam. Of course, as held in Abdul Mannan v.
State of Assam, the common intention can develop during
the course of an occurrence.
24. Section 34 is only attracted when a specific criminal act
is done by several persons in furtherance of the common
intention of all, in which case all the offenders are liable for
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
that criminal act in the same manner as the principal
offender as if the act were done by all the offenders. This
section does not whittle down the liability of the principal
offender committing the principal act but additionally
makes all other offenders liable. The essence of liability
under Section 34 is simultaneous consensus of the minds of
persons participating in the criminal act to bring about a
particular result, which consensus can even be developed at
the spot as held in Lallan Rai v. State of Bihar. There must
be a common intention to commit the particular offence. To
constitute common intention, it is absolutely necessary that
the intention of each one of the accused should be known to
the rest of the accused.
25. Mere participation in crime with others is not sufficient
to attribute common intention. The question is whether,
having regard to the facts and circumstances of this case, it
can be held that the prosecution established that there was a
common intention between the appellant-accused and the
main accused Khilai to kill the complainant. In other words,
the prosecution is required to prove a premeditated
intention of both the appellant-accused and the main
accused Khilai, to kill the complainant, of which both the
appellant-accused and the main accused Khilai were aware.
Section 34 of the Penal Code, is really intended to meet a
case in which it is difficult to distinguish between the acts
of individual members of a party and prove exactly what
part was played by each of them.
26. To attract Section 34 of the Penal Code, no overt act is
needed on the part of the accused if they share common
intention with others in respect of the ultimate criminal act,
which may be done by any one of the accused sharing such
intention [see Asoke Basak, SCC p. 669]. To quote from the
judgment of the Privy Council in the famous case of
Barendra Kumar Ghosh, "they also serve who stand and
wait".
27. Common intention implies acting in concert. Existence
of a prearranged plan has to be proved either from the
conduct of the accused, or from circumstances or from any
incriminating facts. It is not enough to have the same
intention independently of each other.
148. Thus, it is clear that common intention can develop during the
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
course of occurrence also. If the facts of this case are considered, then
it is clear that Ramvir Singh, Nathu Singh and Ghanshyam Singh, fired
indiscriminately, thereby causing death of Keshav, Jaswant, Raghunath
@ Chhote Singh and Mamta and causing gun shot injuries to Gomati
bai (P.W. 13) and Manohar Singh (P.W. 16). Further, coming to the
place of occurrence with their .12 bore or .315 bore guns, clearly
establishes that all the three appellants were sharing common
intention.
No charge under Section 34 of I.P.C. was framed, but charge under
Section 149 of I.P.C. was framed and its effect
149. It is well established principle of law that if charge under
Section 149 of I.P.C. has been framed and if it is found that some of
the accused persons were not guilty and some of the accused had
participated in the occurrence and were sharing common intention
then, they can be convicted with the aid of Section 34 of I.P.C. and
non-framing of charge under Section 34 of I.P.C. would not cause any
prejudice to them.
The Supreme Court in the case of Mala Singh v. State of
Haryana, reported in (2019) 5 SCC 127 has held as under :
40. Now coming to the question regarding altering of the
charge from Section 149 to Section 34 IPC read with
Section 302 IPC, this question was considered by this Court
for the first time in Lachhman Singh v. State where Fazl Ali,
J. speaking for the Bench held as under: (AIR p. 170, para
13)
THE HIGH COURT OF MADHYA PRADESH
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
"13. It was also contended that there being no charge
under Section 302 read with Section 34, Penal Code,
the conviction of the appellants under Section 302
read with Section 149 could not have been altered by
the High Court to one under Section 302 read with
Section 34, upon the acquittal of the remaining
accused persons. The facts of the case are however
such that the accused could have been charged
alternatively, either under Section 302 read with
Section 149 or under Section 302 read with Section
34. The point has therefore no force."
41. This question was again examined by this Court in
Karnail Singh v. State of Punjab wherein the learned Judge
Venkatarama Ayyar, J. elaborating the law on the subject,
held as under: (AIR p. 207, para 7)
"7. Then the next question is whether the conviction of
the appellant under Section 302 read with Section 34,
when they had been charged only under Section 302
read with Section 149 was illegal. The contention of
the appellants is that the scope of Section 149 is
different from that of Section 34, that while what
Section 149 requires is proof of a common object, it
would be necessary under Section 34 to establish a
common intention and that therefore when the charge
against the accused is under Section 149, it cannot be
converted in appeal into one under Section 34. The
following observations of this Court in Dalip Singh v.
State of Punjab were relied on in support of this
position: (AIR p. 366, para 24)
'24. Nor is it possible in this case to have recourse to
Section 34 because the appellants have not been
charged with that even in the alternative and the
common intention required by Section 34 and the
common object required by Section 149 are far from
being the same thing.'
It is true that there is substantial difference between the two
sections but as observed by Lord Sumner in Barendra
Kumar Ghosh v. King Emperor, they also to some extent
overlap and it is a question to be determined on the facts of
each case whether the charge under Section 149 overlaps
the ground covered by Section 34. If the common object
which is the subject-matter of the charge under Section 149
does not necessarily involve a common intention, then the
THE HIGH COURT OF MADHYA PRADESH
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
substitution of Section 34 for Section 149 might result in
prejudice to the accused and ought not therefore to be
permitted. But if the facts to be proved and the evidence to
be adduced with reference to the charge under Section 149
would be the same if the charge were under Section 34, then
the failure to charge the accused under Section 34 could not
result in any prejudice and in such cases the substitution of
Section 34 for Section 149 must be held to be a formal
matter.
We do not read the observations in Dalip Singh v. State of
Punjab as an authority for the broad proposition that in law
there could be no recourse to Section 34 when the charge is
only under Section 149. Whether such recourse can be had
or not must depend on the facts of each case. This is in
accord with the view taken by this Court in Lachhman
Singh v. State, where the substitution of Section 34 for
Section 149 was upheld on the ground that the facts were
such 'that the accused could have been charged
alternatively either under Section 302 read with Section
149, or under Section 302 read with Section 34' (AIR p.
170, para 13)."
42. The law laid down in Lachhman Singh and Karnail
Singh was reiterated in Willie (William) Slaney wherein
Vivian Bose, J. speaking for the Bench while referring to
these two decisions, held as under: [Willie (William) Slaney
case, AIR p. 129, para 49]
"49. The following cases afford no difficulty because
they directly accord with the view we have set out at
length above. In Lachhman Singh v. State, it was held
that when there is a charge under Section 302 of the
Penal Code read with Section 149 and the charge
under Section 149 disappears because of the acquittal
of some of the accused, a conviction under Section
302 of the Penal Code read with Section 34 is good
even though there is no separate charge under Section
302 read with Section 34, provided the accused could
have been so charged on the facts of the case.
The decision in Karnail Singh v. State of Punjab is to
the same effect and the question about prejudice was
also considered."
43. This principle of law was then reiterated after referring
to law laid down in Willie (William) Slaney in Chittarmal v.
State of Rajasthan in the following words: (Chittarmal
THE HIGH COURT OF MADHYA PRADESH
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Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
case, SCC p. 273, para 14)
"14. It is well settled by a catena of decisions that
Section 34 as well as Section 149 deal with liability for
constructive criminality i.e. vicarious liability of a
person for acts of others. Both the sections deal with
combinations of persons who become punishable as
sharers in an offence. Thus they have a certain
resemblance and may to some extent overlap. But a
clear distinction is made out between common
intention and common object in that common intention
denotes action in concert and necessarily postulates the
existence of a pre-arranged plan implying a prior
meeting of the minds, while common object does not
necessarily require proof of prior meeting of minds or
preconcert. Though there is substantial difference
between the two sections, they also to some extent
overlap and it is a question to be determined on the
facts of each case whether the charge under Section
149 overlaps the ground covered by Section 34. Thus,
if several persons numbering five or more, do an act
and intend to do it, both Section 34 and Section 149
may apply. If the common object does not necessarily
involve a common intention, then the substitution of
Section 34 for Section 149 might result in prejudice to
the accused and ought not, therefore, to be permitted.
But if it does involve a common intention then the
substitution of Section 34 for Section 149 must be held
to be a formal matter. Whether such recourse can be
had or not must depend on the facts of each case. The
non-applicability of Section 149 is, therefore, no bar in
convicting the appellants under Section 302 read with
Section 34 IPC, if the evidence discloses commission
of an offence in furtherance of the common intention
of them all. (See Barendra Kumar Ghosh v. King
Emperor; Mannam Venkatadari v. State of A.P.;
Nethala Pothuraju v. State of A.P. and Ram Tahal v.
State of U.P.)"
The Supreme Court in the case of Dhaneswar Mahakud Vs.
State of Orissa reported in (2006) 9 SCC 307 has held as under :
12. Recently in Gurpreet Singh v. State of Punjab this Court
has relied upon Ramji Singh v. State of Bihar for the
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Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
proposition that charges framed under simpliciter Section
302 can be changed to Section 302 read with Section 34
IPC. The relevant portion of the judgment in Ramji Singh
case is extracted below: (SCC pp. 533-34, paras 14-16)
"14. Legal position as to whether in the absence of charge
under Section 34 conviction could be maintained under
Section 34 was cleared by the Constitution Bench in
Willie (William) Slaney v. State of M.P. where this Court
observed at para 86: (AIR p. 137)
'86. Sections 34, 114 and 149 of the Penal Code provide
for criminal liability viewed from different angles as
regards actual participants, accessories and men actuated
by a common object or a common intention; "and the
charge is a rolled-up one involving the direct liability and
the constructive liability" without specifying who are
directly liable and who are sought to be made
constructively liable.
In such a situation, the absence of a charge under one or
other of the various heads of criminal liability for the
offence cannot be said to be fatal by itself, and before a
conviction for the substantive offence, without a charge,
can be set aside, prejudice will have to be made out. In
most of the cases of this kind, evidence is normally given
from the outset as to who was primarily responsible for
the act which brought about the offence and such
evidence is of course relevant.'
This was reiterated by the Supreme Court a number of
times. We may refer to Dhanna v. State of M.P. where this
position is reiterated after referring to the other cases. It
held: (SCC pp. 82-83, para 9)
'9. It is, therefore, open to the court to take recourse to
Section 34 IPC even if the said section was not
specifically mentioned in the charge and instead
Section 149 IPC has been included. Of course a
finding that the assailant concerned had a common
intention with the other accused is necessary for
resorting to such a course. This view was followed by
this Court in later decisions also. (Amar Singh v. State
of Haryana, Bhoor Singh v. State of Punjab.) The first
submission of the learned counsel for the appellant has
no merit.'
Accordingly it is held that even in the absence of the
charge under Section 34 the conviction could be
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
maintained by the courts below.
15. The counsel for the appellants could not show that
any prejudice was caused to either of the accused
persons because of the non-framing of charge under
Section 34.
16. It is true that the two injuries which proved to be
fatal were not specifically attributed to either of the
accused. The common intention can be formed at the
spot. At times it is difficult to get direct evidence of
preconcert of minds. The common intention can be
gathered from the circumstances and the manner in
which assault is carried out. The manner in which
assault was carried out leaves no manner of doubt in
our mind that the appellants had come with the
intention to kill the deceased. Their intention was not
to cause injuries alone."
13. It is apparent from the decisions rendered by this Court
that there is no bar on conviction of the accused-appellants
with the aid of Section 34 IPC in place of Section 149 IPC
if there is evidence on record to show that such accused
shared a common intention to commit the crime and no
apparent injustice or prejudice is shown to have been caused
by application of Section 34 IPC in place of Section 149.
150. However, there is basic difference between common intention
and common object. Common intention requires pre-oriented minds
and concerted plans whereas, Common object has no such requirement
of meeting of minds of the members of unlawful assembly before
commission of offence. However, common intention may also develop
during the course of occurrence, provided there is clear proof and
cogent evidence to prove common intention. Thus, if the facts of this
case are considered, then it is clear that all the three appellants came
on the spot with their respective guns and fired multiple gun shots.
Even empty, live and misfired cartridges of .12 and .315 bore guns
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
were found on the spot. Both the injured persons as well as deceased
Mamta (three charring injuries with one pellet inside such injury) and
Raghunath @ Chhote Singh had suffered injuries due to gun shot fired
from .12 bore guns. Thus, it is clear that all the three appellants were
sharing common intention. Since, some of the elements of common
intention and common object overlap each other, therefore, due to
acquittal of remaining accused persons, the appellants can be
convicted with the aid of Section 34 of I.P.C.
Whether the conviction of Ghanshyam and Nathu Singh can be
converted into under Section 302 and 307 of IPC respectively
instead of 302/34 of I.P.C. and 307/34 of I.P.C. as awarded by Trial
Court.
151. The Trial Court has convicted Ghanshyam Singh for offence
under Section 302/34 of I.P.C. for murder of Raghunath @ Chhote
Singh, whereas this Court has found that the findings given by the
Trial Court in this regard are not correct and in fact Raghunath @
Chhote Singh died because of gun shot fired by Ghanshyam.
The Trial Court had framed charge under Section 302 of I.P.C.
against Ghanshyam Singh for murder of Raghunath @ Chhote Singh.
The State has not filed any appeal against the findings given by the
Trial Court in this regard. However, it is clear that Ghanshyam Singh
has already been convicted under Section 302/34 of I.P.C. for murder
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
of Raghunath @ Chhote Singh and has already been awarded Life
Imprisonment and a fine of Rs. 1000 for offence under Section 302/34
of I.P.C. It is true that conviction with the help of Section 34 of I.P.C.
and conviction for offence under Section 302 of I.P.C. stands on a
different footing, but since, no prejudice is caused to the appellant
Ghanshyam due to alteration of his conviction from under Section
302/34 of I.P.C. to under Section 302 of I.P.C. for murder of
Raghunath @ Chhote Singh, specifically when a specific charge was
framed against Ghanshyam Singh, and he faced the criminal trial
knowing fully well that he is being tried for committing murder of
Raghunath @ Chhote Singh, therefore, it is held that even in absence
of any appeal against acquittal of Ghanshyam for offence under
Section 302 of I.P.C., the findings recorded by the Trial Court thereby
convicting Ghanshyam Singh for offence under Section 302/34 of
I.P.C. can be altered to conviction under Section 302 of I.P.C.
Similarly, the conviction of Nathu Singh for offence under
Section 307/34 of I.P.C. can be altered to conviction under Section 307
of I.P.C., because a specific charge was framed against him under
Section 307 of I.P.C. for making an attempt to murder Gomatibai
(P.W.13).
Accordingly, it is held as under :
(i) Ramvir Singh (Cr.A. of 425 of 2005) caused death of Keshav,
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
and Jaswant, therefore, he is held guilty of committing offence under
Section 302 of I.P.C. on two counts. He is further held guilty of
offence under Section 302/34 of I.P.C. for murder of Raghunath @
Chhote Singh and Mamta. He is further held guilty for committing
offence under Section 307/34 of I.P.C. i.e., for making an attempt to
commit murder of Gomati bai (P.W. 13).
(ii) Nathu Singh (Cr.A. 397/2005) is held guilty for offence under
Section 302/34 of I.P.C. on four counts. Since, he also caused gun
shot injury to Gomatibai (P.W. 13), therefore, it is held that he had
knowledge and intention that by his act, if death of Gomati bai
(P.W.13) had occurred then he would have been guilty of murder.
Accordingly, he is held guilty for committing offence under Section
307 of I.P.C. for making an attempt to commit murder of Gomatibai
(P.W.13).
(iii) Ghanshyam Singh (Cr.A. No. 401/2005) is held guilty for
committing offence under Section 302 of I.P.C. for killing Raghunath
@ Chhote Singh. He is further held guilty of offence under Section
302/34 of I.P.C. on three counts i.e., for murder of Keshav, Jaswant and
Mamta. He is also held guilty for committing offence under Section
307/34 of I.P.C. i.e., for making an attempt to commit murder of
Gomati bai (P.W. 13).
(iv) By a separate judgment passed today in Cr.A. No. 790/2005, this
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Court has upheld the acquittal of Kaushlendra Singh and others.
Accordingly, Nathu Singh, Ramvir Singh and Ghanshyam Singh
are also held guilty for committing offence under Section 307/34 of
I.P.C., for making an attempt to commit murder of Manohar Singh.
152.(i) Accordingly, following sentence is awarded to the
appellants :
(a) Ramvir Singh :
Life Imprisonment with fine of Rs. 1000/- for offence under
Section 302 of I.P.C. on two counts (for murder of Keshav, and
Jaswant) and under Section 302/34 of I.P.C. for murder of Raghunath
@ Chhote Singh and Mamta awarded by Trial Court is hereby
affirmed.
Rigorous imprisonment of 7 years and fine of Rs. 500/- awarded
by Trial Court for offence under Sections 307/34 of I.P.C. (on two
counts) for making an attempt to murder Gomati bai and Manohar
Singh is hereby affirmed.
All sentences shall run concurrently.
(b) Nathu Singh :
Life imprisonment with fine of Rs. 1000/- awarded by Trial
Court for offence under Section 302/34 of I.P.C. on four counts i.e., for
murder of Keshav, Jaswant, Raghunath @ Chhote Singh and Mamta is
hereby affirmed.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
Rigorous Imprisonment of 7 years with fine of Rs. 500/- is
awarded for offence under Section 307 of I.P.C., i.e., for making an
attempt to kill Gomati bai (P.W.13) [As awarded by Trial Court for
offence under Section 307/34 of I.P.C.]
Rigorous Imprisonment of 7 years with fine of Rs. 500/-
awarded by the Trial Court for offence under Section 307/34 of I.P.C.
for making an attempt to murder Manohar is hereby affirmed.
All sentences shall run concurrently.
(c) Ghanshyam :
Life Imprisonment with fine of Rs. 1000/- for offence under
Section 302/34 of I.P.C. on three counts (for murder of Keshav,
Jaswant and Mamta) awarded by Trial Court is hereby affirmed.
Life imprisonment with fine of Rs. 1000/- is awarded for offence
under Section 302 of I.P.C. for murder of Raghunath @ Chhote Singh.
Rigorous Imprisonment of 7 years with fine of Rs. 500/-
awarded by Trial Court for offence under Section 307/34 of I.P.C. (on
two counts) for making an attempt to murder Gomati bai and Manohar
Singh is hereby affirmed.
All sentences shall run concurrently.
153. Accordingly, with aforementioned modification, the judgment
and sentence dated 20-5-2005 passed by 2 nd Additional Sessions Judge,
Morena in S.T. No. 37/2001 is hereby affirmed.
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No. 397 of 2005 Nathu Singh Vs. State of M.P.
Cr.A. No. 401 of 2005 Ghanshyam Singh Vs. State of M.P.
Cr.A. 425 of 2005 Ramvir Singh Vs. State of M.P.
154. The appellants Ghanshyam Singh and Ramvir Singh are in jail.
They shall undergo the remaining jail sentence. They be intimated
about the judgment.
155. The appellant Nathu Singh is on bail. His bail bonds are hereby
cancelled. He is directed to immediately surrender before the Trial
Court, for undergoing the remaining jail sentence.
156. The record of the Trial Court be returned back. The appeals fail
and are hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Shrivastava)
Judge Judge
