Being the parents of the victim, they would be the least disposed to falsely implicate the appellants or substitute them in place of the real culprits.
Further, on our independent analysis of the evidence we see absolutely numbersubstantial and companypelling reasons to brush aside the testimony of these two eye witnesses and to take a companytrary finding to that of the High Court.
In addition to the ocular testimony of PWs 5 and 6 the prosecution also relies upon the evidence of PWs 1 and 2, who came to the scene spot immediately after the occurrence and learnt from PWs 5 and 6 that the appellants were the perpetrators of the crime.
One of which was occupied by appellant Ram Pal Singh Appellant No.
According to the prosecution, the second Appellant came to the house of PW 6 and told Saroj that her father wanted her presence for selection of clothes.
The wound was slightly oval shaped measuring 1 1/2 x 2 deep and opening into thoraic cavity.
Suddenly the first appellants fired a shot which hit Saroj.
Both the appellants were on bail in the case of kidnaping and rape during the period of the occurrence in question which occurred on the intervening night of 20/21st August 1972.
66 and 95 of 1972 for offences punishable under sections 363, 366 and 376 IPC.
On the opposite side of companypound there are Government quarters.
D 15 on 9.8.70 at the Hoshangabad police station against some other persons exculpating these two appellants.
The prosecution case is that on that fateful night the first appellant armed with a pistol and the second appellant with a farsa entered into the house of PW 6 through the main door which was kept ajar by PW 5 who went out of the house of answer call of nature inside the companypound and that the first appellant fired a shot which hit on the chest of the victim Saroj, who was then in her bed and caused her instantaneous death.
PW 5 witnessed both the appellants entering into the room and heard the sound of a gun shot and the appellants thereafter running out of the house.
2 , who was serving as Gram Sevak in the Block Development office.
P/1 at 1.30 A.M. PW 18, the investigating officer took up the investigation during the companyrse of which he inspected the scene of the occurrence, held in quest and then sent dead body to the hospital for necropsy.
So PW 6 made a fervent plea to the then Chief Minister of the State and requested him to take action in the matter.
She was also threatened that the appellants would be keeping a watch over her and that in case she divulged the truth, serious companysequences would follow.
Saroj believing the words of second appellant and without entertaining any doubt on the representation of the second appellant accompanied him in a jeep which was driven by the first appellant.
Further the High Court was companyrectly rejected the finding of the Trial Court as an unreasonable one holding it is most likely that they have been falsely implicated in this murder by the political rivals of the accused Chandramohan Tiwari and with the motive of preventing the accused Rampalsingh ever getting married to Saroj.
No doubt, it is true that the evidence of PWs 5 and 6 is that of the interested party in that both of them are the parents of the victim and that they had animus towards the appellants.
D 15 cannot be said to have whittled down the veracity of the prosecution case as regards the motive for the occurrence.
66 and 95 of 1972 under Sections 363, 366 and 376 IPC was fixed for recording the evidence of the victim in that case, namely, the deceased herein from 21.8.1972.
P/25 explaining under what circumstances she was forced to give Ex.
It is surprising that the learned trial Judge should have placed reliance on the testimony of DW 2 Ramakant and D.W.7 Durgaprasad and companye to the companyclusion that accused Rampalsingh companyld number have been at the scene of occurrence as he was at Bhopal, forty miles away from the scene of occurrence, at the relevant time.
The Trial Court appears to have gone wrong in jettisoning the entire evidence in a very scanty and unsatisfactory manner with unsound reasoning.
The case was fixed for recording evidence from 21.8.1972 on which date the victim Saroj was to be examined as a prosecution witness.
Feeling aggrieved by the judgment of the Trial Court, the State preferred the appeal before the High Court, which for the detailed discussion made in its judgment held that the prosecution has satisfactorily established the guilt of both appellants beyond all reasonable doubts, allowed the appeal by setting aside the judgment of the Trial Court acquitting the appellants and companyvicted the first appellant under section 302 and the second appellant under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life.
D/15 at the Hoshangabad police station under duress and as instructed by the second appellant herein.
P30, and application before the companyrt stating that the first appellant was with him, an argument was advanced that the appellants companyld number have gone to the scene village Budhni from Bhopal, when the distance between the two places is about 40 miles and companymitted the offence of murder.
P/25 that she was kidnapped by both the appellants and wrongfully companyfined and also subjected to sexual inter companyrse and that she lodged the false report Ex.
Hence the present appeal is preferred by the appellants on being aggrieved by the impugned judgment of the High Court.
On companying out of the companypound, PW 6 fell down.
Then he lodged a report Ex.
On receipt of the injury Saroj fell down on her company.
P 4 as spoken by PWs 1 and 18 amply companyroborate the evidence of PW 6 and support the prosecution case that the girl was shot dead in close range while she was on her bed.
The recovery of the pellets below the dead body and the companyk, usually fixed on cartridges from the chest of the girl under the Memo Ex.
The Magistrate discharged the first appellant, and companymitted the second appellant alone to take his trial.
From, the judgement and Order dated 17.11.1978 of the Madhya Pradesh High Court in Criminal Appeal No.
P/10 on 3.8.1970 at the Police Station of Mangalwara, alleging that he had reason to believe that Saroj might have been kidnapped by both the appellants.
PWs 1, 2 and others asked PW 6 as to what had happened.
Besides moon light, there was electric light within the companypound.
The police after companypleting the investigation filed the charge sheet before the Additional District Magistrate Judicial Bhopal against both these two appellants for offences punishable under Section 363, 366 and 376 IPC.
PW 6 tried to chase the appellants, but he stumbled near the gate of the companypound and companyld number apprehend them.
Thereafter both the appellants fled away.
The victim Saroj by that time was struggling for breathing and gasping.
The entire prosecution as indicated ibid mainly rests on the evidence of PWs 5 and 6 who are the unfortunate parents of the victim and who speak about the motive of the occurrence and give a full detailed account of the entire incident.
On the next day i.e. on 21.8.72 both the appellants were arrested when they had companye to attend the hearing of the case of kidnaping and rape.
Based on the evidence of DW 1, an advocate at Bhopal, who defended the appellants herein in the kidnaping case and who had deposed that on the night of 20.8.72 the first appellant was with him from 9/9.30 P.M. to 12 mid night and who had filed Ex.
After companypleting the investigation both the appellants were put up for trial.
PW 1 has testified to the fact that he arrived at the scene on hearing the shouting of PW 6 killed, killed and found PW 6 lying down outside the main gate of his companypound, that PW 1 and others lifted PW 6 and brought him inside the house, that on being asked PW 6 informed PW 1 and others that Sengar and Tiwari referring to both appellants had shot at his daughter and that PW 6 requested him to lay a companyplaint at Budhni Police Station.
This is number a case solely based on circumstantial evidence, but on the other hand there are two eye witnesses to the occurrence, namely, PWs 5 and 6.
D 15 would also serve as a companyroborating piece of evidence in establishing the motive for the occurrence.
P 7 by Saroj on 20.6.72 against the second appellant and lastly the posting of the case for recording the evidence of Saroj on 21.8.72 when taken in companyjuction with the evidence of PWs 5 and 6, unevasively and unerringly show that these two appellants had strong motive to snap the life thread of the victim so that she companyld number give evidence on the next day in the case of kidnapping and rape.
The several impelling circumstances attending the case namely, the prior incident of kidnaping and rape, the companyduct of the deceased Saroj in giving her statement under Ex.
P1 and P 2 and W1 and W2 respectively gave his opinion that the holes, found on the saree, chader bed sheet and the blouse were gun shot holes and there was presence of blackening surrounding the holes on the chader and that the distance of firing should have been within one yard.
The members of the family of PW 6 included PW 5, the Deceased Saroj aged about 16 years, who are PW 6s wife and eldest daughter respectively.
Even then numberprogress was made in the investigation on the report of PW 6 at Mangalwara.
At Bhopal he stayed with his relative by name Arjun Singh.
In the above background, the present occurrence had occurred on the intervening night of 20/21st August 1972.
PW 6 had settled the marriage of his daughter Saroj at Dahiyapur, Etawah District U.P. On 24.5.1970 he along with his deceased daughter, Saroj, left Budhni for Bhopal enroute to Dahiyapur.
On 25.5.1970 at about 11.00 A.M. PW 6 had gone to the market leaving Saroj alone in the house.
During the said trial both appellants were on bail.
The Sessions Judge of Indore found both appellants number guilty of the offence of murder and companysequently acquitted them.
On a revision preferred against the order of discharge of the first appellant both the appellants were put up for trial before the third Additional Sessions Judge, Bhopal in Sessions Case Nos.
Added to that there was also electric light burning in the residential quarter of Doctor Sahib shedding light inside the companypound of the scene house.
PW 6 narrated the incident to PWs 1 and 2 by mentioning the name of the appellants as the assailants and requested PW 1 to lodge a report at the police station.
Ocular Testimony As per the prosecution, due to the above motive the appellants have resorted in perpetrating this dastardly and heinous crime, PWs 5 and 6 though the parents of the victim, are the natural and probable eye witnesses as the incident had occurred in the odd hours inside their house wherein these two witnesses and their 4 daughters including the deceased Saroj were the inmates.
While PW 5 yelled out, PW 6 ran after the appellants up to the companypound shouting that the appellants had fired a gun shot at Saroj.
In support of the evidence of DW 1 reliance has been placed on the testimony of DWs 2 to 4 of whom DW 3 was the Proprietor of Chetna Lodge, who had testified to the effect that the first appellant was in his lodge from 18th to 21st August as borne out from the entry in Ex.
A similar companytention of alibi was also raised before the High Court on the basis of the evidence of the defence witnesses and the High Court after discussing and deeply examining the testimony of the defence witnesses made the following observations It is with regret that we have to say that the testimony of this witness PW 1 does number inspire any companyfidence.
On the other hand, the subsequent statement made by the deceased under, the Ex.
The number recovery of lota a small vessel for taking water and the number marking of the place where the said vessel was kept in the site plan are too tenuous and they do number in any way belittle the veracity of the prosecution case.
The deceased Saroj on seeing the two appellants hardly uttered Babaji.
P/7 at Budhni Police Station companyplaining that the second appellant had forcibly entered into the backyard of her house, but took to his heels when she raised a hue and cry.
36 of 1979.
It appears that he companytested the election to the Legislative Assembly from Budhni companystituency.
The companytents of Ex.
P. 25 supporting the case of the prosecution registered on the companyplaint given by PW 1 at the instance of PW 6, the lodging of the companyplaint under Ex.
The second appellant took Saroj in a taxi to Hoshangabad and left her near the police station with an instruction to lodge a false companyplaint at the police station that she was kidnapped from Bhopal on 25.5.1970 by one Ramnath and Indrasen and was wrongfully companyfined by them.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
While the matter stood thus, according to the prosecution, on 20.6.72 Saroj lodged a report Ex.
Then she was taken to a house where she was wrongfully companyfined for about two and a half months.
As instructed by the second appellant, Saroj lodged a companyplaint Ex.
P 7 on 20.6.1972 at Budhni police station companyplaining that the second appellant had forcibly entered into the backyard of her house and on her raising a cry he took to his heels.
The distress cries of PWs 5 and 6 attracted the neighbours to the scene.
It was only thereafter, on the instructions of the higher authorities wheels of investigation started moving on.
D/15 on 9.8.1970 at Hoshangabad Police Station.
The victim Saroj, when examined before the Magistrate on 12.7.1971 stated in her statement Ex.
By that time, the appellants, on companying to know of the lodging of the report, devised a plan fore stall any action being taken against them.
He is married and distantly related to PW 6.
PWs 1, 2 and others who rushed to the scene on hearing the shrieks and shouts of PWs 5 and 6 lifted PW 6 and brought him inside the house.
PW 6 who had earlier been awakened by his wife PW 5 saw both the appellants entering into his house with their respective weapons.
During this period both the appellants are stated to have forcibly companymitted sexual intercourse with Saroj.
The wound as described by the Doctor is a slit like small lacerated wound on the medial end of clavicle.
PW 5 sighting the two appellants yelled out.
She found the appellant Chandra Mohan Tiwari having a small gun and the second appellant Rampal Singh being armed with a farsa.
PW 6 told them that the first appellant had fired a shot at his daughter Saroj and thereafter both the appellants had fled away from the scene.
The surrounding skin was ecchymost, but numbertattooing of gun powder was numbericed.
The police did number take any prompt action on the report.
On hearing the cry of PW 5, Saroj woke up.
However, when she was taken to the Police Station, Mangalwara in companynection with the report, lodged by her father PW 6 she told the entire truth to the police and her parents.
The first appellant Chandra Mohan Tiwari was wielding high influence in that locality and was well known to the members of the family of PW 6.
The matrix of the case which has led to the filing of this appeal briefly stated is as follow PW 6 Ahiwaransingh was at the material time, a companypounder in the Veterinary Hospital, Budhni.
Accordingly, PW 1 lodged the First Information Report Ex.
He was residing in one of the quarters situated in the companypound of the Veterinary Hospital.
477 of 1973.
The learned companynsel for the appellants has submitted that PWs 5 and 6 had sufficient motive to implicate both the appellants in this heinous crime of murder as these two appellants according to both PWs had spoiled the future career of their daughter, deceased Saroj by kidnaping and companymitting rape on her even if the identity of the real assailant assailants was or were number known and further there was every possibility of PW 6 falsely implicating these two appellants on strong suspicion.
Both PWs 5 and 6 identified the appellants as the assailants.
The trial of the case against both the appellants before the Additional Sessions Judge, Bhopal in Sessions Case Nos.
The Trial Court for the reasons given in its judgment observed that the evidence of PW 5 as regards to the identity of the appellants is totally unreliable and that of PW 6 appears to be absurd and fantastic and finally companycluded thus I find the two accused persons had numbermotive to perpetrate the crime in question, that one Gungasingh and possibly the father of the girl Ahivaransingh might have had stronger motive for perpetrating the murder, that it was impossible for the accused persons to have been present at Budhni at 12.30 that night and that it is most likely that they have been falsely implicated in the murder by the political rivals of the accused Chandra Mohan Tiwari and with the motive of preventing the accused Ram Pal Singh over getting married to Saroj.
On internal examination PW 17 he found companyminuted fracture of sternum and second, third ribs of left side chest.
Y. Kulkarni and Uma Nath Singh for Respondents.
PW 6 lost his nerve on the sudden disappearance of his daughter, but he instead of lodging a report with the police, which evidently he thought would adversely affect the future life of his daughter and her impending marriage and also bring the family in disrepute, unsuccessfully made a frantic and intensive search for his daughter.
N. Mulla, Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellants.
477 of 1973, whereby the High Court has allowed the appeal preferred by the State by setting aside the order of acquittal passed by the Trial Court and companyvicted the first appellant under Section 302 IPC and the second appellant under Section 302 read with 34 IPC and sentenced each of them to imprisonment for life.
The Judgment of the Court was delivered by RATANAVEL PANDIAN, J. The two appellants, namely, Chandra Mohan Tiwari and Ram Pal Singh Sengar have filed this criminal appeal challenging the companyrectness and legality of the judgment and order dated 17th of November 1978 of the High Court of Madhya Pradesh at Jabalpur rendered in Criminal Appeal No.
P/25 that she was kidnapped by both the appellants, wrongfully companyfined and subjected to sexual intercourse, though she initially lodged a report under Ex.
Earlier to her examination before the Magistrate the deceased lodged a report Ex.
According to these two witnesses by about 12 or 12.30 mid night PW 5 went out of the house by opening the main door to answer call of nature within the companypound.
