Gajendra Singh and ors. Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. - the learned court below has also failed to consider the fact that on the basis of anonymous telephone message the police had reached on the spot and dehati nalishi was written on the basis of information provided by bablu singh (p. 7) are not reliable because their statements are not supported by other witnesses. 7) is reliable. the minor discrepancies in their statements is less important and on the basis of it, the statements of both these witnesses are not unreliable. 7) have been recorded with a delay and they arc not reliable as they were not present on the spot. air 2004 sc 2329, it has been held that direct testimony of eye witnesses corroborated by medical evidence fully establishes the prosecution version and mere failure or omission or negligence on part of investigating officer cannot affect the credibility of prosecution version.i.s. shrivastava, j.1. being aggrieved by the judgment of conviction and sentence dated 20-1-2005 passed by smt. sunita yadav, 1st additional sessions judge, chhatarpur, in sessions trial no. 147/2003 convicting the appellants under section 302/34 of ipc and sentencing with rigorous imprisonment for life and fine of rs. 10,000/-, in default six months' rigorous imprisonment, this appeal has been preferred by the appellants.2. the brief facts of the prosecution case are that on 6-6-2003 marriage ceremony of daughter of ganesh prasad was being celebrated in shantinagar colony, chhatarpur. deceased deendayal was also present there. while deceased deendayal was sitting with other villagers, bablu singh (p.w. 2) and chintu (p.w. 7) in a tent, at that time the accused persons came in a jeep at about 10.45 p.m. at the place of incident. accused gajendra singh alighted from the jeep, he was having 315 bore rifle. along with him accused katare raja, ravindra raja and chhatrapal singh also alighted from the jeep. on exhortation of accused katare raja and ravindra raja, the accused gajendra singh fired gun shot on deendayal due to which deendayal fell down on the ground. accused gajendra singh fired second gun shot causing injury and thereafter all the accused persons ran away in the jeep. the information about the incident was given on phone to the police station civil lines. due to gun shot injury deendayal died on the spot. the witness to the incidents were bablu singh, chintu, makhan, kittu lodhi and others. after committing murder the accused persons gajendra singh, ravindra, chhatrapal and katare ran away in the jeep. the accused persons were having enmity with deendayal due to the murder of jangbahadur. the report of offence was made by bablu singh, on the basis of which crime no. 125/2003 under section 302/34 was registered against the accused persons at police station civil lines, chhatarpur. after investigation challan was filed against accused gajendra singh, ravindra singh @ munna raja, katare raja @ katte raja and chhatrapal singh and after trial appellants/accused persons were convicted as above mentioned.3. this appeal has been preferred by the appellants- accused persons on the ground that there is no proper appreciation of the evidence, there is delay in lodging the fir, the learned court below has committed error in believing the story of the witnesses who were not present on the spot, they were not the eye-witnesses but plotted witnesses, the plea of enmity was proved. the learned court below has also failed to consider the fact that on the basis of anonymous telephone message the police had reached on the spot and dehati nalishi was written on the basis of information provided by bablu singh (p.w. 2) nephew of the deceased deendayal. in fact bablu singh (p.w. 2) was not present on the spot. on the aforesaid grounds, learned counsel for the appellants prays for setting aside the impugned judgment.4. in reply, the learned counsel appearing for the state argued that the findings have been recorded on the basis of evidence adduced. the grounds raised in the appeal are baseless and delay in lodging the fir has been properly explained and has argued that the appeal being devoid of merits is liable to be dismissed.5. the main point for determination of this appeal is that whether the evidence has been properly appreciated by the court below or not? whether the appeal deserves to be allowed.6. as regards the delay in lodging the fir is concerned, the incident took place at 22.45 hours on 6-6-2003 and fir was lodged on 7-6-03 at 00.30 hours, which was registered on the basis of merg report no. 0/03 which was prepared on the spot at 23.30 p.m. bablu singh (p.w. 2) lodged the fir (exh. p-12). he has deposed that after the incident, he ran towards the police station civil lines along with makhan, kittu, chintu and other persons. on the way, some people told them that the police had reached the spot, he should go there and, therefore, he returned to the spot. there he lodged the report to police. in this way, there is no delay in the lodging of the fir and due explanation has been given by bablu singh (p.w. 2).7. it has been argued by other appellants that the statements of bablu singh (p.w. 2) and chintu (p.w. 7) are not reliable because their statements are not supported by other witnesses. bablu is related to deceased deendayal and chintu was working with deendayal, hence they are interested witnesses.8. arguments considered. bablu (p.w. 2) and chintu (p.w. 7) are the eye witnesses of the incident. they were present there when the accused/appellants came by jeep on the spot and their evidence cannot be discarded merely on the ground that they are relatives and interested in the deceased. the fsl report (exh. p- 24) confirmed the fact that the used cartridge was fired with the rifle of gajendra singh, which was seized from him on 11-6-2003. in lilaram v. state of haryana : air 1999 sc 3717, it has been held that the evidence of the eye witnesses cannot be rejected on the ground that they were interested witnesses.9. as regards the evidence of the incident is concerned, as per mr (exh. p-12), at the time of incident, accused came in a jeep and from this jeep, accused gajendra singh thakur alighted with his 315 bore gun with accused ravindra raja, katte raja and chhatrapal singh. chhatrapal singh said- 'yeh betha madarchod luddar'. katte raja said- 'maro goli madarchod ko'. ravindra raja shouted- 'chhoro mat' and gajendra singh fired with 315 bore rifle at deendayal, which caused injuries on the left side of the chest. he fired second shot which caused injury on the left arm of deendayal. deendayal fell down and died. in the court statement, bablu singh (p.w. 2) has deposed that at the time of incident, from their back from the side of the sagar road a jeep came. from this jeep, gajendra singh, chatrapal singh, katare and ravindra singh alighted and said- 'yeh betha hai madarchod', katare said- 'chhoro mat', ravindra shouted- 'shoot him'. gajendra singh from his 315 bore rifle shot deendayal and thereafter, all the four accused ran away in the jeep. deendayal, who was sitting on the chair, fell down. the first bullet injured the left side of chest, whilst the second bullet injured the left side of arm and deendayal died.10. chintu (p.w. 7) has deposed that when they were sitting on the spot, a jeep came there from which gajendra, katare, chatrapal and ravindra alighted. chatrapal said- 'yeh betha hai madarchod luddar'. katare said- 'maro sale ko goli'. ravindra said- 'maro bhagne na paye' and gajendra singh with his rifle shot deendayal causing injury on his left side of chest and left arm. being afraid, he ran towards the field and concealed himself in the fields and after the return of the accused, he went to police line alone. when he reached near the collector bungalow, accused was coming from the front side and said that you go to police station and i am going to the spot when he reached the police station and informed the 'munshi' that his brother has been shot, he replied the police has approached the spot you go there. thereafter, he returned to the spot. in this way, there is no contradictions in the statements of bablu (p.w. 2) and chintu (p.w. 7). they have confirmed that the accused persons were having firm determination to kill deendayal and in furtherance of their determination, they reached the spot and as soon as they alighted respectively, accused chatrapal and katare, ravindra said the above words. in furtherance of their object to kill deendayal, gajendra shot deendayal with his rifle. hence, the evidence of bablu singh (p.w. 2) and chintu singh (p.w. 7) is reliable. the minor discrepancies in their statements is less important and on the basis of it, the statements of both these witnesses are not unreliable. this is not a case in which there was not a case of predetermination. all the accused came in a jeep at the place of incident and all of them alighted from the jeep and the manner in which chatrapal, raja katare, ravindra exhorted gajendra to kill deendayal shows that it was a planned case of accused persons with common intention to kill the deceased. the exhortation given by chhatrapal, raja katare, ravindra to gajendra confirms the predetermination. the law laid down in jainul haque v. state of bihar air 1974 sc 45 and mohan singh and anr. v. state of m.p. air 1999 sc 883, is not applicable to this case as the facts of the instant case are entirely different.11. it has been argued by the appellants that the police statements of bablu singh (p.w. 2) and chintu (p.w. 7) have been recorded with a delay and they arc not reliable as they were not present on the spot. the respondent has argued that their statements have not been recorded after inordinate delay and hence, objection raised by the appellants is baseless. the police statement of bablu singh (p.w. 2) (exh. d-l) was recorded on 7-6-2003 and the police statement of chintu (p.w. 7) (exh. d-2) was recorded on 11-6-2003. the investigating officer, b.k. pawaiya (p.w. 20) has deposed that he recorded the statement of bablu on 7-6-2003 in the hospital and he recorded the statement of chintu on 11-6-2003 at his residence in the village. in paragraph 15 of the statement, he has explained that on the next day the witnesses chintu, kittu and lakhan were not available hence, he could not record their statements uptil 11 -6-2003, as he was busy. this gives the satisfactory explanation of the delay in recording of police statement of chintu (p.w. 7). the police statement of bablu (p.w. 2) has not been recorded with any delay. hence, the objection of the appellants in this regard is not tenable. there is no dispute that deendayal died as a result of gun shot injury. in ram bali v. state of u.p. air 2004 sc 2329, it has been held that direct testimony of eye witnesses corroborated by medical evidence fully establishes the prosecution version and mere failure or omission or negligence on part of investigating officer cannot affect the credibility of prosecution version.12. on the basis of above discussion, we are of the opinion that there is no substance in this appeal. the appeal being devoid of any merit is dismissed accordingly.