STATE OF M.P.

UDAI SINGH

DECEMBER I, 1997

[M.M PUNCHHI AND M. SRINIVASAN, JJ.]

Indian Penal Code, I860-Sections 302 and 307-Accused committing murder of three women in a string and attempting to kill the fourth-One of the victims shot dead while she was trying to go back after closing the C door-Evidence by three witnesses present at the place of occurrence- Deposition by Doctor that death caused by gun shot injury and shock and haemorrhage-Conviction by Trial Court-Acquilla/ by High .Court on the reasoning that defection of the fire on one victim was below to upwards and a male is taller than female and hence any male killer could not have shot D a female victim from below upwards shooting from a standing position- Held, such unwarranted conjectures and surmises not justified-Sentence awarded by the Trial Court restored. . .

Evidence-Creditworthiness-Injured witness having seen the accused firing from a close distance-Deposition in the chief examination that there E was moon lighi at the time of incident while deposition in the cross examination that no moonlight but only torch light-Emphasis on sufficiency of light-Held, no discrepancy between the two statements.

Evidence-Witnesses~Plea of interested witnesses and absence of independent witnesses rejected-Depositions given by witnesses held to be F cogent and natural-At the time of occurrence in the night, other villagers/ witnesses cannot be expected to have assembled in the houses of the deceased.

Code of Criminal Procedure, 1973-F.J.R-Delay of I4 hours-Held, no undue delay as the occurrence was in the night time and the police station was about 9 Kms away.

G The respondent shot dead three women R, M and B injured the 4th i.e.

PW 6, the daughter of M, on the night of 6-4-79. Firstly, the respondent along with his companions went to the house of R. He was carrying a gun while his other companions were carrying lathis and gun. The respondent fired twice at PWl, the husband of R, and PW2, her brother-in law, who were H sitting outside on the chabutra, but missed them. Both jumped over the wall

STATE OF M.P. v. UDAI SINGH 597

of the chabutra and hid behind the same. When R came out of the house on A hearing the sound of the gut shot, she was shot dead by the respondent while she was trying to go back after closing the door. After this the respondent and his companions went to the house of M where they shot dead Mand shot at her daughter PW6 and injured her. Next, the respondent killed B who was the aunt of the respondent. The respondent remained absconding till he B surrendered himself on 25.10.81.

The trial Court convicted the respondent under Section 302 IPC for committing a string of three murders and under Section 307 IPC for attempt to commit murder of PW6. In appeal, the High Court reversed the judgment of the trial court and acquitted the respondent. Aggrieved, the state preferred C this appeal.

On behalf of the respondent, it was contended that the evidence adduced by the prosecution was perfunctory and slipshod as no other independent witnesses had been examined in support of the prosecution and that all the witnesses were interested. It was further contended that the FIR was given D to the Police 14 hrs after the occurrence and there was no explanation for such a delay.

Allowing the appeal, the Court

HELD: I. The evidence on record is sufficient to prove beyond doubt E the guilt of the respondent. He is not only guilty of murder of three women but also of attempt to kill PW6. Hence, the conviction of the respondent by the trial court is correct and the High Court is in error in setting aside the same. [603-F)

i.I. The High Court has chosen to reject the natural evidence of F eyewitnesses on the basis of unwarranted conjectures and surmises. The evidence of PW 6 is very clear and unimpeachable. She was by the side of her mother when the respondent fired. She herself got injured by two gun shots though she escaped death. She had seen the respondent firing from a close distance. In the chief examination she has stated that the moon light G was just then coming out when the incident occurred. In the cross examination she had stated that there was no moonlight and torch light was there. The High Court has erred in giving great importance to the same in order to reject her evidence. In fact, there is no discrepancy between the two statements. In the chief examination she has only stated that moonlight was just coming out. In the cross examination the emphasis was on the sufficiency H

A of the light at that place. In answer to such a question she had replied that there was torch light and no moonlight. It cannot therefore be said that her entire deposition is not credit worthy.1599-D; 601-G-H; 602-A)

2.2. The High Court has adopted a curious process of reasoning. The High Court has, observed that 'defection of fire was below to upward' and B 'any male killer shooting from a standing posture at a female victim - former presumably taller than the latter - could not have shot the victim from below upwards. ' The court could not have embarked upon such a kind of imaginary surmise without any foundation therefor in the evidence. It is pointed out by the High Court itself that PWI and PW2 do not speak about the posture c

taken by the respondent to fire at R. No question has been put to any witness by the cross examining counsel on that matter. The doctor has not also been questioned about 'defection of the fire'. Nothing has been brought on record whether the victim was shorter than the respondent. In such circumstances there was no justification or warrant to invoke the aid of such unsustainable presumptions and formulate a theory on the strength thereof. 1600-E-G)

2.3. The reasoning of the High Court is palpably wrong in rejecting the evidence of PWs I to 3. None of the comments made by the High Court in this regard is appropriate. Their presence at the place of occurrence is quite natural and the slight differences in the narration are negligible. In the absence of any suggestion in the cross examination of the witnesses, the evidence cannot be rejected as not acceptable. 1600-B; 601-C)

3. There is no merit in the contentions that no other independent witnesses have been examined in support of the prosecution and that all the witnesses are interested._The depositions given by the witnesses are cogent and natural. The occurrence was between 8 P.M to 9 P.M. in the night and one cannot expect other villagers to have assembled already in the houses of the deceased. There is nothing on record to show that witnesses are in any way interested in falsely implicating the accused. 1603-A)

4. The occurrence was in the night time and the police station was about 9 Kilometres away. There were three deaths and the killers had deadly weapons. The villagers would not have dared to go out in the night time. In the circumstances of the case, it cannot be said that there was undue delay on the part of the complainants to inform the police. 1603-D)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 252 of H 1992.

STA TE OF M.P. v. UDAI SINGH [SRINIVASAN, .I.] 599

From the Judgment and Order dated 20.6.89 of the Madhya Pradesh A High Court in Crl. A.No. 112of1983.

Anoop G. Chaudhary, Prashant Kumar and Uma Nath Singh for the Appellant.

S.K. Bhattacharya, Pradeep Kumar and P.K. fain for the Respondent. B

The Judgment of the Court was delivered by

SRINIVASAN, J. The State of Madhya Pradesh has preferred this appeal against the judgment of the High Court acquitting the respondent by reversing the judgement of the llI Additional Sessions Judge, Bhind whereby C he was convicted under Section 302 l.P.C. for committing a string of three murders and section 307 l.P.C. for attempting to commit a fourth murder. Even here, we are constrained to observe that the High Court has chosen to reject the natural evidence of eyewitnesses on the basis of unwarranted conjectures and surmises.

The undisputed facts are that three women Ram Piyari, Mathura and Bhagwati were shot dead and Deva daughter of Mathura got injured by gun shots in the night of 6.4.79 and the respondent remained absconding till he surrendered himself on 25.10.81. The parties belong to the village Kakora within the jurisdiction of Lahar Police Station which is at a distance of about E nine kilo metres. The case of the prosecution is supported_ by the evidence of PWs I to 3, eye witnesses for the murder of Ram Piyari, PWs 5 and 6, eye witnesses for the murder of Mathura and PW 4, eye witness for the murder of Bhagwati. PW 6 is the daughter of Mathura and she herself received injuries by gun shots. The occurrence was between 8 and 9 P.M. on 6.4.79 and it was reported in the police station around I 0.00 A.M., the next day.

According to PW 1 the husbanci of Ram Piyari, the respondent and his brother Bachoo Singh came with two other persons, when himself and his younger brother Devi Lal (PW 2) were sitting on the chabutra after having dinner at about 8 O'clock in front of.their house. The respondent was carrying G a Mark-3 gun and his brother was having a lathi. One of the other persons had a mouser gun and the fourth had a lathi. The respondent fired at PW I and PW 2 twice but missed them. Both jumped over the wall of the Chabutra and hid behind the same. On hearing the sound of the gun-shot Ram Piyari came out of the house and was going back after shutting the door when the respondent fired one shot which hit her. She fell down dead inside the door. H

A The respondent and his companions went towards house of Chhotte PW 4.

PW 2 has also spoken on the same lines as PW I. PW 3 is the wife of PW

2. According to her she was working with Ram Piyari in the kitchen and on hearing the sound Ram Piyari came out and she was shot dead when she was trying to go back after closing the door. The evidence given by the aforesaid three witnesses has not been shaken in the cross examination. Their presence B at the place of occurrence is quite natural and the slight differences in the narration are negligible. PW 11 Dr. Srivastava has described the injury on the body of Ram Piyari as follows :

"There was a wound in the back of Ram Piyari and wound of gun cartridge entrance and that cartridge breaking Diaphram, liver, Pericardium, heart and left lung and breaking 6th and 7th lungs (paslis) came out from the chest and there was mark of one external injury (wound)."

He has deposed that the death was caused by the said anti morterm injury D ilnd the bleeding from the said injury as well as shock. The trial court has accepted the aforesaid evidence and concluded that Ram Piyari was murdered by the respondent.

4, The High Court has, however, adopted a curious process of reasoning. The High Court has observed that 'defection of the fire was below E to upwards' and 'any male killer shooting from a standing posture at a female victim-former presumably taller than the latter-could not have the shot victim from below upwards'. We are unable to appreciate how the court could embark upon such a kind of imaginary surmise without any foundation thereof in the evidence. It is pointed out by the High Court itself that PW I and PW 2 do not speak about the posture taken by the respondent to fire at Ram F Piyari. We find _that no question has been put to any witness by the cross examining counsel on that matter. The doctor has not also been questioned about 'defection of the fire'. Nothing has also been brought on record whether the victim was shorter than the respondent. In such circumstances there was no justification or warrant to invoke the aid of such unsustainable presumptions G and formulate a theory on the strength thereof.

Another reason given by the High Court is that in the First Information Report PW I has not said that the respondent fired the first two shots. It is pointed out by the learned counsel for the appellant that the said reasoning is factually erroneous as the F.l.R. contains such a statement. (ThJ H High Court has also observed that if PW I had PW 2 had hidden themselves

behind the Chabutra, they could not have seen Ram Piyari walking from the A kitchen inside the house to the door. It is further observed that the two witnesses would immediately have run away under cover of the Chabutra as there was a risk of their being picked up by the respondent if he came around the Chabutra.) Comments have also been made by the High Court that PW

12, the Investigation Officer failed to seize the door the house to demonstrate B that there was enough space for the passing of a bullet or that there was any damage to the door by gun shot. It has also been observed that PW 12 has not stated on oath whether he had collected empty cartridges near the house.

None of the comments made by the High Court is appropriate.

The reasoning of the High Court is palpably wrong as the evidence C of PWs I to 3 presents a clear picture of the occurrence. In the absence of any suggestion in the cross examination of the witnesses, the evidence can not be rejected as not acceptable. The circumstances referred to by the High Court do not impinge upon the acceptability of the version given by PWs I to 3. We do not agree with the reasoning of the High Court.

The second incident is that of killing of Mathura, wife of PW 5 and mother of PW 6. The injury on her body is described by PW I l as follows:-

"The woman Mathurabai had wound on the left side of her arm and below that was gun wound of entrance in her chest which was deep

in left plura, lungs, pericardium, medistenum and passing through the E heart that cartridge stopped between the heart and below the fifth lung bone from where it was taken out."

Even PW 1 has stated that after shooting down his wife, the respondent and his companions went towards the house of Chhote (PW 5). The evidence of PW 6 is very clear and unimpeachable. She was by the side of her mother F when the respondent fired. She herself got injured by two gun shots though she escaped death. She had seen the respondent firing from a close distance; In the chief examination she has stated that the moon light was just then coming out when the incident occurred. In the cross examination she had stated that there was no moon light an~ torch light was there. Much is made G of this to disbelieve her version. The trial court has described it as a mistake and opined that nothing turns on it. The High Court has, however, given great importance to the same in order to reject her evidence. We are unable to agree with the High Court. In fact, there is no discrepancy between the two statements. In the chief examination she has only stated that moon light was just coming out. In the cross examination the emphasis was on the sufficiency H

A of the light at that place. In answer to such a question she had replied that there was torch light and no moon light. It can not therefore be said that her entire deposition is not creditworthy. A perusal for the evidence alongwith that of her father PW 5 taken in con junction with the fact that PW 6 got injured by gun shots shows that it was the respondent who shot .dead B Mathura a1!d injured PW 6. The High Court has commented upon the matters which are not in evidence. The reasoning of the High Court borders on perversity.

The next incident is the killing of Bhagwati, wife of PW 4. The victim was the aunt of the respondent. It is in evidence that she left her C husband and began to live with PW 4 and therefore the respondent and the members of his family were enimical to her. According to the evidence of PW 4 the respondent fired twice. One shot hit her near the eyes and the second hit her behind the ear and head. It is also his deposition that the brother of the respondent hit her with lathi on the head. The injury on her body is described by PW 11 as follows : D

"On the forehead of woman Bhagwati one wound of entrance of the gun firing was at the upside of Nose which breaking temporal bone and marking an outgoing wound on the face came out. Apart from this one more gun wound was found on the left side of head which was only to the depth of skin :md it appeared that the gun fire went out while touching that part of the body."

Here again, the doctor has described the death as due to murder. No doubt, the only witness who has spoken about the killing of Bhagwati is PW 4 but we do not find any reason to reject his evidence as unworthy of acceptance.

The High Court thus rejected the evidence of PW 4 as a made up story and implausible as the respondent did not go after him when he hid himself behind the wall and took shelter. Comment is made by the High Court that there is no acceptable evidence that any cartridges or spent bullets were found inside the house. We do not find any justification for the observation made by the High Court that the sole testimony of PW 4 is 'most unconvincing'. At that G time of the night in the village it is nor possible to expect other independent persons to be at the place of occurrence to witness the same.

A general comment is made by learned counsel for the respondent that the evidence adduced by the prosecution is perfunctory and slip shod.

It is also argued that no other independent witnesses have been examined in H support of the prosecution and all the witnesses are interested. There is no

' ..

merit in either of the contentions. The depositions given by the witnesses are A cogent and natural. As pointed out already the occurrence was between 8 to 9 P.M. In the night and one can not expect other villagers to have assembled already in the houses of the deaceased. There is nothing on record to show that the witnesses are in any way interested in falsely implicating the accused.

The attempt made by the respondent by examining OW I is to show that some scoundrels had come to the village and shot dead the aforesaid women and fled away. There is absolutely no support for the said version. If there was any truth in the same, there is no explanation for the responden't and his brother remaining absconding for quite a long time. OW I has stated in the chief examination that the respondent is his nephew. In the cross examination

he has deposed to the contrary that respondent is not of his caste and that C he is a Harijan. It is also argued that the first Information Report was given to the Police 14 hours after the occurrence and there is no explanation for such a delay. There is no merit in this contention. The occurrence was in the night time and the police station was about 9 kilometres away. There were three deaths and the killers had deadly weapons. The villagers .would not D have dared to go out in the night time. In the circumstances of the case, it . can not be said that there was undue delay on the part of the complainants to inform the police. It should be noted that the respondent and his brotlrer were named in the F.l.R. The respondent's brother is stated to have died in an encounter. The other two unnamed persons were not traceable. One Balwant

Singh was charged alongwith the respondent, by the prosecution but he was E later discharged.

JO.

W~ have no doubt whatever that the evidence on record is sufficient to prove beyond doubt the guilt of the respondent. He is not only guilty of murder of three women but also of attempt to kill PW 6. Hence, the conviction of the respondent by the trial court is correct and the High Court is in the F error in setting aside the same. The sentences awarded by the trial court are appropriate. In the result, the judgment of the High Court is set aside. The judgment and order of the Illrd Additional Sessions Judge, Behind (M. P.) are restored. The bail granted to the respondent stands cancelled. He shall be taken into custody forthwith to undergo the sentence.

M.P.

Appeal allowed.