GOPAL SINGH Vs. STATE OF M P

JUDGEMENT

(1.) The prosecution story is as under:

(2.) The prosecution in support of his case relied primarily on the eye - witness account of Feran Singh PW5 and on the oral dying declarations made by the two deceased to Daulat Singh PW4, Harnath Singh PW9, Sumer Singh PW10 and Shivraj Singh PW11. In addition, the prosecution relied on the recoveries made pursuant to the disclosure statements of the accused. The prosecution case was then put to the accused and the plea taken was of serious enmity on account of a land dispute between them and Daulat Singh PW4 as the latter was keen to take over their agricultural land. The trial court recorded a comprehensive judgment and discussed the evidence under two broad heads (1) the eye witness evidence of Feran Singh PW5 and (2) the circumstantial evidence which included the motive behind the incident and the dying declaration of the deceased and the recoveries of the weapons of offence. The Court then examined the evidence of the prosecution in the background of the motive and observed that Maharaj Singh accused was the son of Balwant Singh from his first wife and the other accused were sons of Maharaj Singh whereas PW4 Daulat Singh and PW9 Harnath Singh were also sons of Balwant Singh though from a second wife and Feran Singh PW5 was son of Daulat Singh PW and Shivraj Singh PW11 was son of Sumer Singh PW10, meaning thereby all the witnesses belonged to one large group. The Court also observed that from the evidence on record, it was amply clear that the relations between the two sets of brothers were very strained and several criminal litigations inter-se them and pertaining to a land dispute had started in the year 1984 and were subsisting even on the date of murder and that the periodic quarrels between them had caused great friction in the family. The Court then went on to examine the prosecution story and recalled that two different stories had been projected by the prosecution, first, that a report had been filed by Daulat Singh PW at the Police Station immediately after the crime had been committed at about 1 p.m. and the second that information had been received on telephone as per Ex.P3 at 3.45 p.m. on which Sub-Inspector Katiyar PW13 had reached the place of incident at 4p.m and after spot inspection at 4.45 p.m. had initiated the recording of the FIR. The Court, however, disbelieved the statement of Sub Inspector that he had reached the place of incident at 4 p.m. observing that if the information had been received at 3.45 p.m. it would not have been possible for him to have covered the 18 km distance through a very rustic rural road within 20 minutes. The Court, accordingly, held that on account of the discrepancy with regard to the lodging of the FIR at 1 p.m. or after 4.45 p.m., the only inference that could be drawn was that till 1p.m. the names of the accused were not known and that the report of 1 p.m. had been withheld by the prosecution. The Court then went into the alternative that assuming that the FIR had indeed been recorded shortly after 4.45 p.m. and the incident had taken place at 10 or 10.30 a.m. about one km away from the village and the time taken in conveying the information to the village by Maina Banjara to Daulat Singh and Sumer Singh, it appeared to be a case of a delayed FIR. The Court further observed that there was no evidence to show as to when the copy of the FIR had been received by the Magistrate, as provided by Section 157 of the Code of Criminal Procedure and finally concluded on this aspect by observing:

(3.) The Court then examined the dying declarations that have been allegedly made by the two deceased shortly before their deaths to Daulat Singh PW4, Harnath Singh PW9 and Sumer Singh PW10. The Court referred to the broad principle underlying the recording of a dying declaration and emphasized that its veracity had to be adjudged carefully as the maker was not available for cross-examination and the Court was thus called upon to exercise great caution and for that purpose two broad factors had to be kept in mind, firstly, that the person making the dying declaration was physically capable of making it, and secondly that the statement, if made, represented the true state of affairs. The Court then examined the statement of the witnesses to the dying declaration and observed that as the evidence inter-se them was completely discrepant as to the manner in which the dying declaration had been made, a serious doubt was cast on the truthfulness of their testimony. The Court also referred to the evidence of Dr. R.K. Sharma PW, the doctor who had performed the post-mortem examinations, and had found 28 wounds on each body, and observed that as per the statement of the doctor both the injured would have been rendered unconscious within 10 to 15 minutes looking to the critical nature of the wounds. The Court then tested the prosecution story on this basis and opined the incident had occurred around 9 or 10 a.m., as suggested, and Daulat Singh and Sumer Singh had taken an hour to reach the place of incident (as Daulat Singh had virtually admitted that they had reached the site of at 11 a.m.), it appeared to be extremely doubtful that Rajmohan and Niranjan Singh were in a position to make any statement. The Court also examined the statement of Harnath Singh PW9 and observed that it was a blatant lie and that it would have been impossible for him to reach the place of incident to become a witness to the oral dying declarations. The Court, accordingly, concluded that the statements of the aforesaid witnesses were totally contradictory and illogical and in point of fact the deceased were not in a position to make any statement and that under these circumstances, "the story of the dying declaration was totally made up, unnatural and non-dependable." The Court also examined the evidence of the solitary eye witness Feran Singh PW son of Daulat Singh and recorded a positive finding that the story projected by him was totally unnatural inasmuch that he had rushed to the village from the site after seeing the incident about I km away where his father, uncle, brothers, cousins and the entire family had been present, but he did not tell them as to what had happened but had, in fact, hidden himself on the plea that he feared for his own safety. The Court ultimately concluded that the evidence was against normal human behaviour and could not be deemed to be trust-worthy. The Court also held that the investigation in the matter was completely irresponsible and shoddy and the police had made no attempt to ascertain the identity of the person who had made the telephone call leading to the recording of Ex.P3 at 3.40 p.m. and the prosecution story appeared to have been built on the assumption that as the relations between the parties were strained, it were the accused and accused alone, who were responsible for the double murders. The trial court, accordingly, acquitted the accused.