SOBARAN SINGH Vs STATE OF M.P.
Bench: T.S. THAKUR,V. GOPALA GOWDA,C. NAGAPPAN
Case number: Crl.A. No.-001466-001466 / 2012
Diary number: 17893 / 2012
Advocates: SANJAY K. AGRAWAL Vs
C. D. SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1466 OF 2012
Sobaran Singh & Ors. .. Appellant(s) versus
State of M.P. .. Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. This appeal is preferred against the judgment dated
16.3.2012 passed by the High Court of Madhya Pradesh
Bench at Gwalior in Criminal Appeal No.353 of 2004.
2. The appellants herein are accused nos.1 to 3 in the
case in Sessions Trial No.8/97, on the file of Additional
Sessions Judge, Gohad, District-Bhind (M.P.) and they were
tried for the offence punishable under Section 302 read
with Section 34 IPC and the Trial Court convicted them for
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the said offence and sentenced each one of them to
undergo imprisonment for life and to pay a fine of Rs.500/-,
in default to undergo Rigorous Imprisonment for one
month.
3. Challenging the conviction and sentence, the
accused preferred appeal in Criminal Appeal No.353 of
2004 in the High Court and the same came to be dismissed
by the impugned judgment and that is now under
challenge in this appeal.
4. Briefly, the case of the prosecution is as follows :
PW5 Satyendra Singh, PW16 Brijendra Singh and
deceased Narendra Singh are sons of PW7 Hanumant
Singh. PW6 Uday Singh and PW10 Om Prakash are
brothers of PW7 Hanumant Singh. On 6.9.1994 at 8.00
a.m. PW5 Satyendra Singh and PW16 Brijendra Singh had
gone to attend call of nature in the drain (Nalah) and they
heard the sound of weeping and alarm raised by PW10 Om
Prakash and they went there and saw Narendra lying on the
ground and accused no.3 Sardar Khan put his knee on his
chest after holding his hands tight and accused no.1
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Sobaran Singh and accused no.2 Suraj Singh tied his neck
with a muffler (Safee) and accused no.1 Sobaran Singh was
armed with a 12-bore gun and due to fear, they did not go
near Narendra and in the meanwhile, PW6 Uday Singh and
PW11 Vishwanath Sharma also rushed to the spot and on
seeing them, accused nos.1 to 3 ran away. They found
Narendra alive with injuries on the neck, chest and right
knee and they carried him to the tube-well and thereafter,
put him on the tractor-trolley and drove him to the hospital
at Mau where he was declared dead by the Doctor. PW14
Dr. O.P. Tengar conducted the post-mortem at 12.30 p.m.
on 6.9.1994 over the body of Narendra and found the
following :
(i) Abrasion admeasuring 3.0 cm x 1.0 cm on calf muscle of right leg;
(ii) Abrasion multiple in number size varies from 2.5” to 3.0” in length and linear in width over right side of neck 2” below the ear lobule and 2.2” above the clavicle;
(iii) Abrasion 2 in number size 2.2”, 2.0” x linear just over the cricoids cartilage;
(iv) Contusion 1.5” x 1.0” on the middle sternum.
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On dissection of the body, he found contusion on sternum
and ecchymosed underneath the contusion (rupture of
small capillaries and ventricles) with tracheal rings and
cricoids cartilage fractured. Pharynx and larynx were
congested. He expressed opinion that death was caused
due to strangulation (Asphyxia), 4-6 hours prior to autopsy
and issued Exh.P16 post-mortem report. Thereafter, PW6
Uday Singh went to Mau Police Station and lodged a
report, which was registered in the shape of Marg, under
Section 174 CrPC by Assistant Sub-Inspector of Police
Balram Singh. During the investigation of Marg,
statements of the witnesses were recorded. On 7.8.1995,
PW9 Assistant Sub-Inspector Ram Naresh Singh Kushwah
registered a case in Crime No.76/1995 against accused
nos.1 to 3 for the alleged offence under Section 302 read
with Section 34 IPC and prepared Exh.P13 FIR. During
investigation of the case, witnesses were examined and
final report was filed. Charge under Section 302 IPC was
framed against accused nos.1 to 3 and they were found
guilty and were sentenced as narrated above and the
appeal preferred by them was dismissed by the High
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Court. Challenging the same, accused nos.1 to 3 have
preferred this appeal.
5. The learned counsel for the appellants contended
that the Marg Intimation Report shows that the
complainant had only a suspicion against the accused and
he has not stated about their involvement in the crime and
the accused have been convicted merely on the evidence
of the informant and other eye witnesses, who are none
else, but the family members of the deceased, having
enmity against the accused and the First Information
Report came to be registered after nearly a year from the
date of occurrence and on deliberation and afterthought,
the statements of the material witnesses have been
recorded falsely implicating the accused and there are
embellishment and material contradictions in the
statements of the witnesses and the investigation is biased
and tainted and the prosecution has failed to prove the
charge against the accused persons and the High Court fell
in error while confirming the conviction imposed by the
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Trial Court and the impugned judgment is liable to be set
aside.
6. Per contra, the learned counsel for the respondent
State contended that the courts below, relying on the
testimonies of the ocular witnesses have found the
accused guilty of the offence charged and the conviction
and sentence imposed are sustainable and does not call
for any interference.
7. Narendra died of Homicidal violence is sought to be
proved by testimony of the post-mortem Doctor and
opinion of the Forensic Science Expert. PW14 Dr. O.P.
Tengar conducted autopsy on the body of Narendra and
found abrasions multiple in number with varying size over
the right side of the neck and on dissection of the body,
contusion on sternum and ecchymosed underneath with
tracheal rings and cricoids cartilage fractured and pharynx
and larynx congested. In his post-mortem report, he has
opined that the death was caused due to strangulation
(Asphyxia), 4-6 hours prior to autopsy.
8. PW15 Dr. Ashok Sharma, Junior Forensic Specialist
has testified that he perused the post-mortem report, the
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Case Diary and all the materials collected and was of the
view that there was no scientific basis to disagree with the
opinion of the Autopsy Surgeon. Exh.P18 is the written
opinion expressed by him. Accepting the medical
evidence it is clear that Narendra died of Asphyxia by
strangulation.
9. The prosecution case is that accused nos.1 to 3 in
furtherance of their common intention committed the
murder of Narendra by strangulating him with a muffler
(Safee) and to prove the same, they examined PW5
Satyendra Singh, PW6 Uday Singh, PW10 Om Prakash,
PW11 Vishwanath Sharma and PW16 Brijendra Singh as
having witnessed the occurrence. PW10 Om Prakash and
PW11 Vishwanath Sharma did not support the case of the
prosecution in full and were treated as hostile. Two among
the remaining ocular witnesses are brothers of deceased
Narendra.
10. PW5 Satyendra Singh and PW16 Brijendra Singh have
testified that on 6.9.1994 at 8.00 a.m. they had gone to
Nalah to attend call of nature and they heard the sound of
weeping and the alarm raised by PW10 Om Prakash and
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went there and found Narendra lying on the ground and
accused no.3 Sardar Khan put his knee on the chest of
Narendra and holding his hands tight and accused no.1
Sobaran Singh and accused no.2 Suraj Singh pressing the
neck of Narendra by tying a muffler (Safee) and accused
no.1 Sobaran Singh was armed with a 12-bore gun and due
to fear, they did not go near and in the meanwhile, PW6
Uday Singh and PW11 Vishwanath Sharma rushed to the
spot and on seeing them, the accused left the place and
they took injured Narendra to the hospital at Mau in a
tractor-trolley, where he was declared dead.
11. Immediately after the occurrence, during Marg
investigation, PW5 Satyendra Singh was examined and in
the said statement, he has stated that he was ploughing
his Banjara field with tractor on 6.9.1994 and his uncle Om
Prakash came running to his field and informed him about
the death of Narendra and this statement was put to PW5
Satyendra Singh in the cross-examination and, of course,
he has denied the same. In this context it is also relevant
to point out that, after registration of the First Information
Report on 10.8.1995, the statement of Satyendra Singh
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was recorded by the Investigation Officer, wherein, for the
first time, he has stated about having witnessed the
occurrence.
12. In the Marg investigation, Brijendra Singh was not
examined and he was examined only after registration of
the FIR on 10.8.1995, which is almost a year after the
occurrence. Though both the above witnesses claimed to
have seen the occurrence, during which the accused
attacked Narendra resulting in his death, they have not
lodged a complaint in the police station and had not taken
immediate steps for the arrest of the accused. Their
testimonies do not inspire confidence and conduct belies
their version.
13. It is the testimony of PW6 Uday Singh that on
6.9.1994 at about 8.00 a.m. he went to the tube-well and
met Vishwanath Sharma and they heard the alarm raised
by PW10 Om Prakash and they rushed there and he saw
from a distance that Narendra lying on the ground with
accused no.3 Sardar Khan armed with a 12-bore gun
sitting on his chest after holding both his hands tight and
accused no.1 Sobaran Singh and accused no.2 Suraj Singh
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pressing the neck of Narendra by trying a muffler and PW5
Satyendra Singh and PW16 Brijendra Singh also reached
there and on seeing them, all the accused ran away and
they took injured Narendra in the tractor-trolley to the
hospital where he was declared dead by the doctor and he
went to police station and lodged Exh.D1 Complaint. In his
complaint PW6 Uday Singh has stated that on the
occurrence day around 8.00 a.m. he went from his house
for grazing the cattle and around 9.00 a.m. his brother Om
Prakash told him that Narendra is lying unconscious at the
Har and thereafter, he, PW11 Vishwanath Sharma and PW5
Satyendra Singh went to Har and saw Narendra lying
unconscious on the ground and a safee was there around
his neck and there were red coloured marks on the chest
and they took him in the tractor to the hospital at Mau,
where he was declared dead and he came to the police
station for filing the report and he has doubt on accused
no.1 Sobaran Singh and accused no.3 Sardar Khan. In the
Marg Investigation, his statement was recorded, in which
the same version has been told by him. As already seen,
about 11 months after the occurrence, the First
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Information Report came to be registered on 10.8.1995
and the statement of Uday Singh was recorded and in that
statement, for the first time, Uday Singh has come out with
the version that he witnessed the attack made by the
accused on Narendra, which resulted in death. If really,
Uday Singh had seen the attack made by the accused
persons on Narendra during the occurrence, he must have
stated so in his complaint given before the police station
implicating the accused. On the other hand, Uday Singh
has only expressed his suspicion on accused no.1 and
accused no.3 in his complaint and has not whispered about
witnessing the occurrence for a period of 11 months.
14. Exh.D2 is the statement of PW6 Uday Singh given on
6.9.1994 to the police, wherein, he has stated that around
9.00 a.m. on the occurrence day, his brother PW10 Om
Prakash told him at the tube-well that Narendra is lying
unconscious near the drain (Nalah) and he and his nephew
Satyendra and Vishwanath Sharma went to the drain and
found Narendra lying unconscious with injuries and there
was safee around his neck and they took him in a tractor-
trolley to the hospital at Mau where he was declared dead
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and he has doubt on accused no.1 Sobaran Singh and
accused no.3 Sardar Khan as the dispute is going on with
them. During cross-examination, the said statement was
put to PW6 Uday Singh and he simply denied it and stated
that he informed the police about the accused attacking
Narendra. In short, the testimony of PW6 Uday Singh does
not inspire confidence and no credence can be given to it.
15. The complainant PW10 Om Prakash has testified that
on 6.9.1994 at 8.00 a.m. he took buffaloes for grazing to
Banjara field and saw the accused persons beating his
nephew Narendra and he cried and thereafter, PW5
Satyendra Singh, PW6 Uday Singh and PW16 Brijendra
Singh came there and the accused fled away and they took
injured Narendra to the hospital at Mau where he was
pronounced dead. It is his further testimony, in
examination-in-chief that he could not see by which
weapon the accused persons were beating Narendra and
due to the impairment of vision, he could not say whether
the signatures found in the spot map and seizure memo
were that of his and he was treated as hostile by the
prosecution.
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16. In the cross-examination, PW10 Om Prakash
admitted that he was examined by police on the date of
occurrence itself, namely 6.9.1994, and the said Marg
diary statement is Exh.D/2-A, and he has stated therein
that on the occurrence day in the morning Narendra took
buffaloes to Banjara wale Har and after sometime, he went
with his buffaloes and saw Narendra lying in the grass with
white liquid coming from mouth and nose and he saw at a
distance that accused no.2 Suraj Singh with a 12-bore gun,
accused no.3 Sardar Khan and another person, who could
not be identified, going down by crossing the drain (Nalah)
and he ran to the tube-well and informed the same to
others and he along with PW5 Satyendra Singh, PW6 Uday
Singh and PW11 Vishwanath Sharma went to the
occurrence place and found injured Narendra alive and
they took him to the hospital at Mau, where he was
declared dead and he has doubt on accused nos.1 and 3
about their involvement in the death of Narendra. The
above version is the earliest in point of time wherein, he
has not stated about the attack made by the assailants on
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Narendra. Moreover, he did not support the prosecution
case in full and was declared as hostile.
17. PW11 Vishwanath Sharma is an independent witness
and he was staying in the tube-well of PW10 Om Prakash
on 6.9.1994 and according to him, he heard the cry of
PW10 Om Prakash and he along with PW5 Satyendra Singh
and PW6 Uday Singh ran there and saw Narendra lying
seriously injured and saw the accused proceeding towards
village from Nalah and they took injured Narendra to the
hospital in the tractor-trolley and he was dead by then.
This witness was also treated as hostile by the prosecution
and his testimony does not help the prosecution case in
any way.
18. The investigation in this case is slip-shod. Balram
Singh, Assistant Sub-Inspector of Mau Police Station, who
registered the Marg under Section 174 CrPC was not
examined in the trial. No explanation was offered by the
prosecution for his non-examination. PW12 Bharat Singh
Sikarwar, who is the station in-charge, has admitted that
during Marg enquiry he could not ascertain the names of
culprits nor could register the crime. In fact, at the
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instance of the higher police authority, the FIR came to be
registered against the accused on 10.8.1995, after a
period of 11 months from the date of occurrence and the
statements were recorded on 10.8.1995 and only in those
statements, for the first time, PWs 5, 6, 10, 11 and 16 have
stated that they saw the accused persons attacking
Narendra during the occurrence. The Marg Intimation
Report, which was recorded, was neither exhibited nor
proved by prosecution in the trial. The Investigation
Officer Santosh Singh Gaur, who conducted part of
investigation did not testify in the trial. The High Court has
elaborately dealt with the said omissions in paragraph
nos.19 and 25 of the judgment and proceeded to observe
that investigation agency cannot be permitted to conduct
investigation in a tainted and biased manner and
concludes that the investigation was defective and tainted
and the defective investigation by itself cannot be a
ground for acquittal. 19. Our independent analysis of the evidence on the
record coupled with the infirmities which we have noticed
above has created an impression on our minds, that the
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prosecution has not been able to bring home guilt to the
appellants beyond a reasonable doubt. The High Court
even after noticing the infirmities, in our opinion, fell in
error in confirming the conviction of the appellants. The
reasons given by the High Court do not commend to us to
sustain the conviction and sentence. They are neither
sufficient nor adequate or cogent much less compelling to
uphold the impugned judgment.
20. As a result of our above discussion, we hold that the
case against the appellants has not been proved beyond a
reasonable doubt and they are entitled to benefit of doubt.
Their appeal consequently succeed and is allowed and the
conviction and sentence imposed on them are set aside
and they shall be set at liberty forthwith, if not required in
any other case.
…………………………….J. (T.S. Thakur)
…………………………….J. (V. Gopala Gowda)
……………………………J. (C. Nagappan)
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New Delhi; July 7, 2014