Madhya Pradesh High Court
Raju Balmik vs The State Of Madhya Pradesh on 6 July, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia, Anuradha Shukla
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
Cr.A. Nos. 1871/2024, 2045/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 6th OF JULY, 2026
CRIMINAL APPEAL No. 1871 of 2024
MUKESH BALMIK
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms Nikita Jain - Advocate for appellant.
Shri Rajesh Shukla - Additional Advocate General for the State.
Shri Abhishek Tiwari - Advocate for complainant.
WITH
CRIMINAL APPEAL No. 2045 of 2024
RAJU BALMIK
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sushant Tiwari - Advocate for appellant.
Shri Rajesh Shukla - Additional Advocate General for the State.
Shri Abhishek Tiwari - Advocate for complainant.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
Cr.A. Nos. 1871/2024, 2045/2024
JUDGMENT
Per: Justice Gurpal Singh Ahluwalia
1. These two Criminal Appeals under Section 374(2) of Cr.P.C. have
been filed against the Judgment and Sentence dated 8-12-2023 passed by
1st A.S.J., Datia in S.T. No. 55/2018 and 57/2019, by which the appellants
have been convicted and sentenced as under :
S.No. Name of Conviction Sentence Fine
Appellant under
Section
1. Mukesh 148 of IPC R.I. for six Rs.500/-
Balmik months in default
to suffer
RI for 2
months
302/149 of Life Rs.
IPC (in Imprisonment 1,000/- in
respect of default 1
deceased year's
Badal) R.I.
302/149 of Life Rs.
IPC (in Imprisonment 1,000/- in
respect of default 1
deceased year's
Ajay) R.I.
323/149 of R.I. for 1 Rs.500/-
IPC (in year in default
respect of 3
injured months'
Vinod) RI.
323/149 of R.I. for 1 Rs.500/-
IPC (in year in default
respect of 3
injured months'
Shivkumar) RI.
25(1B)(a) R.I. for 1 Rs.1000/-
of the year in default
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
Cr.A. Nos. 1871/2024, 2045/2024
Arms Act 3
months'
RI.
27 of Arms R.I. for 3 Rs.1000/-
Act years in default
1 year's
RI.
2. Raju 148 of IPC R.I. for six Rs.500/-
Balmik months in default
to suffer
RI for 2
months
302/149 of Life Rs.
IPC (in Imprisonment 1,000/- in
respect of default 1
deceased year's
Badal) R.I.
302/149 of Life Rs.
IPC (in Imprisonment 1,000/- in
respect of default 1
deceased year's
Ajay) R.I.
323/149 of R.I. for 1 Rs.500/-
IPC (in year in default
respect of 3
injured months'
Vinod) RI.
323/149 of R.I. for 1 Rs.500/-
IPC (in year in default
respect of 3
injured months'
Shivkumar) RI.
27 of Arms R.I. for 3 Rs.1000/-
Act years in default
1 year's
RI.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
Cr.A. Nos. 1871/2024, 2045/2024
2. It is not out of place to mention here that Appellant Mukesh Balmik
and Raju Balmik were absconding. Raju Balmik was arrested on 27-11-
2017 and supplementary charge sheet was filed and accordingly trial in
S.T. No. 55/2018 was initiated. Mukesh Balmik was arrested on 18-12-
2018 and supplementary charge sheet was filed and accordingly, trial in
S.T. No. 57/2018 was initiated. Both the Trials were clubbed together.
3. Other co-accused persons, namely Rohit @ Golu, Aakash, Chappa
@ Harkishan, Chhuttan, Sunny, Kadori @ Chunnilal were tried in S.T. No.
131/2014 and by Judgment and Sentence dated 25-10-2017 passed by
Additional Sessions Judge, Datia, co-accused Rohit @ Golu was acquitted
and others were convicted for offence under Sections 148,302/149 (2
counts) and 323/149 (2 counts). Criminal Appeal No. 5631/2017 filed by
Aakash and Chappa @ Harkishan, Criminal Appeal No. 6250/17 filed by
Chhuttan, Criminal Appeal No. 6251/17 filed by Kadori @ Chunnilal and
Criminal Appeal No. 6252/17 filed by Sunny, were also listed for
analogous hearing. In the light of judgment passed by Supreme Court in
the case of A.T. Mydeen Vs. The Asstt. Commissioner, Customs
Department, decided on 31/10/2021 in Cr.A. No. 1306 of 2021, the
evidence led in the case of present appellants cannot be read for the
accused persons who were tried separately, accordingly the appeals filed by
Raju Balmik and Mukesh, are being decided separately by a separate
judgment.
4. The facts necessary for disposal of the present appeal in short are
that the appellants and the complainant party were known to each other.
According to the prosecution case, on 29.05.2014 at about 09:30 a.m.
complainant Vinod Balmik lodged an FIR at Police Station Kotwali
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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Cr.A. Nos. 1871/2024, 2045/2024
District Datia alleging that the accused party was on inimical term with the
complainant party on account of one criminal case which is also pending in
the Court. The said trial is at the stage of evidence. The appellant Raju
Balmik and others were insisting that the complainant party should turn
hostile. On this issue, on 29.05.2014 at about 09:00 a.m., the complainant
Vinod (injured), Ajay (Deceased), Badal (Deceased), Shiv Kumar (injured)
were returning back to their house. As soon as they reached near the house
of Maithili, they were waylaid by Raju Balmik, Mukesh, Akash, Chappa @
Harkishan, Chhuttan, Sunny and Chunnilal @ Kadori. The accused
persons were armed with weapons. Raju, Chhuttan and Mukesh were
having 0.315 bore Adhiya, whereas Akash, Chappa @ Harkishan were
having 12 Bore gun, Sunny was having sword and Chunnilal was having
lathi. By forming an unlawful assembly and in furtherance of common
object, they started abusing the complainant party and insisted that the
complainant party should compromise. Thereafter, Chunnilal @ Kadori
Balmik assaulted Vinod by Lathi. As a result, the complainant Vinod
sustained injury on the elbow of his left hand, knee of his left leg, as well
as on his back. Raju Balmik fired a gunshot with an intention to kill Badal,
which caused injury near the right eye of Badal. Mukesh fired a gunshot on
Badal causing gunshot injury in his abdominal region. Chhuttan also fired
a gun shot caused injury in the abdominal region of Badal. Badal fell down
on the ground and expired. Sunny assaulted Ajay @ Ajju by means of a
sword which landed on the back side of his head. Aakash and Chappa @
Harkishan also fired gunshots from their respective guns. Ajay also fell
down on the spot. Shiv Kumar, Aakash Balmik, his wife Anita and other
persons who had also reached on the spot have also witnessed the incident.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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Cr.A. Nos. 1871/2024, 2045/2024
Shiv Kumar had also sustained injury in the incident. On the basis of the
FIR, Crime No. 196/2014 was registered for offence under Section 147,
148, 149, 302, 307, 323 and 294 of Indian Penal Code. The
complainant/injured Vinod Balmik, (PW1), and Shiv Kumar (PW4) were
sent for medical examination. The Investigating Officer prepared the spot
map. A merg intimation under Section 174 of CrPC was also recorded on
the spot in respect of death of Badal. The blood-stained earth, plain earth,
fired empty cartridge of 0.315 bore were seized from the spot vide seizure
memo (Ex.P/6C). The injured Ajay was referred to District Hospital, Datia.
An information in that regard was also sent by Dr. Ujjania to the police. Dr.
Ujjania had also conducted the MLC of Ajay @ Ajju. The MLC report of
complainant Vinod and Shiv Kumar was also prepared by Dr. D. K.
Ujjania. The Lash panchanama of the dead body of Badal was prepared.
The post mortem of the dead body of Badal was got done. A plastic cap
was also recovered by the autopsy surgeon during post mortem. The
clothes, plastic cap in sealed cover were handed over by the autopsy
surgeon to the police which were also seized. The dying declaration of the
injured Ajay was recorded. The statement of Ajay under Section 161 of
CrPC was also recorded by the police. However, on 08.06.2014, Ajay also
died on account of injuries sustained by him. Accordingly, an information
was also given. The Lash panchanama of the dead body of deceased Ajay
Balmik was prepared. The post mortem of the dead body of Ajay Balmik
was done.
5. Initially, the appellant Raju Balmik was arrested, later on during the
pendency of trial of Raju Balmik, appellant Mukesh was arrested. The
police filed supplementary charge sheets against both the appellants for
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
Cr.A. Nos. 1871/2024, 2045/2024
offence under Section 302, 307, 323, 294, 148 of IPC and under Section 25
and 27 of Arms Act.
6. The trial Court by order dated 5-7-2018 framed charges against
appellant Raju Balmik under Section 148, 302 r/w Section 149 (2 counts),
307, 323,294 of IPC. However by order dated 3-11-2023, charges were
amended and charges under Section 147,148,302 r/w149 (2 counts),
307/149 (4 counts), 323/149,294 of IPC and under Section 27 of Arms Act,
were framed. Similarly, the Trial Court by order dated 3-9-2019, framed
charges against appellant Mukesh for offence under Sections
147,148,302/149 (2 counts), 307/149 (4 counts), 323/149 and 294 of IPC.
The charges were amended by order dated 3-11-2023 and charges under
Section 147,148,302/149 (2 counts), 307/149 (4 counts), 323/149, 294 of
IPC under Section 25(1-b) and 27 of Arms against appellant Mukesh were
framed.
7. The appellants abjured their guilt and pleaded not guilty.
8. The prosecution examined Vinod Balmik (P.W.1), Sunita @ Anita
(P.W.2), Aakash Balmik (P.W.3), Shiv Kumar (P.W.4), Bhanvar Singh
(P.W.5), Mohit Verma (P.W.6), Devendra Singh (P.W.7), Jagdish Prasad
Sen (P.W.8), Ajay Koli (P.W.9), Ghanshyam Singh Tomar (P.W.10),
Manoj Kumar Shrivastava (P.W.11), Ram Singh (P.W.12), Vinit Goyal
(P.W.13), Dr. D.K. Ujjania (P.W.14), Rajpal Singh (P.W.15), Dilip Singh
(P.W.16), Sobaran Singh Tomar (P.W.17), R.K. Singh (P.W.18), Khuman
Singh (P.W.19), Sher Singh (P.W.20), and Dr. Dinesh Kumar (P.W.21).
9. The Appellants examined Dr. Ravin Patel (D.W.1) in their defence.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
Cr.A. Nos. 1871/2024, 2045/2024
10. The Trial Court after recording evidence and hearing both the
parties, convicted and sentenced the appellants for the offences already
mentioned above.
11. As already pointed out, the Cr.A.s of other co-accused persons who
were tried and convicted in separate trial were also listed for analogous
hearing. In Criminal Appeal No. 2045/2024, this Court while refusing to
grant bail to appellant Raju had directed the listing of this case for final
hearing in the month of July 2026. Accordingly, the counsel for the
appellants were directed to argue the matter finally. But the Counsel for the
accused persons did not argue inspite of the fact that order dated 1-4-2026
was passed in Cr.A. No. 2045/2024 (Appellant Raju Balmik). However, at
the time of hearing of connected appeals, which were listed for hearing
analogously and have been decided by separate judgment, Shri Sankalp
Sharma and Shri B.K. Sharma, Counsels for Aakash, Chappa @ Harkishan
and Kadori @ Chunnilal submitted that they would give their written
submissions. Ms. Nikita Jain, Counsel for Chhuttan was also requested to
file her written submissions. Shri Sankalp Sharma and Shri B.K. Sharma,
Advocates, provided their written submissions, but no written submission
was filed by Ms. Nikita Jain, Counsel for the appellant Chhuttan. On one
hand, it is being projected in the society that it is the Court which has failed
to dispose of the appeals in time, but on most of the occasions, it is only on
account of non-cooperation by the counsel for the parties, the Courts are
forced to adjourn the cases. Once this Court had already made it clear by
order dated 1-4-2026 passed in Cr.A. No. 2054/2026 that in the month of
July 2026, the matter shall be heard finally, then it was always expected
from the counsel for the parties that they should have made preparation in
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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Cr.A. Nos. 1871/2024, 2045/2024
order to put forward the case of the appellants. But the counsel for the
parties deliberately did not prepare the case and deliberately did not utter
even a single word in spite of repeated requests made by the Court. The
Court also tried to convince or persuade the counsel for the parties by
clarifying that the court is ready to read the entire record with them,
therefore, they must put forward the case of their litigants, but
unfortunately none of the counsel for the appellant rose to the occasion and
did not utter a single word.
12. Above all, the order for Final Hearing was passed in Cr.A. No.
2045/2024 in the presence of Shri Sushant Tiwari, Counsel for
appellant Raju Balmik, but inspite of repeated requests, he did not
utter a single word and all the time was looking at the Court. Similarly,
Ms. Nikita Jain, who was appearing for appellant Mukesh also did not utter
a single word. Although this Court had also granted an opportunity to file
written arguments but that was not done either by Shri Sushant Tiwari
Advocate, nor by Ms. Nikita Jain/Ashok Jain, Advocates.
13. The only question for consideration is that when the litigants are
being represented by their counsel and in spite of the order passed by this
Court that the appeal shall be heard finally, still the Counsel for the
appellants are not co-operating, then whether this Court should adjourn the
hearing merely on the ground that the counsel for the parties are not ready
to argue the matter or not?
14. In the considered opinion of this court, the timely disposal of appeal
is the requirement of the hour. Once the appeal has been filed, then it has to
be decided and the disposal of the appeal cannot be left to the mercy of the
appellants. In order to meet such a hostile attitude, this Court can finally
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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Cr.A. Nos. 1871/2024, 2045/2024
decide the appeal after going through the record. The Supreme Court in the
case of Surya Baksh Singh v. State of U.P., reported in (2014) 14 SCC
222 has held as under :
24. It seems to us that it is necessary for the appellate court which
is confronted with the absence of the convict as well as his
counsel, to immediately proceed against the persons who stood
surety at the time when the convict was granted bail, as this may
lead to his discovery and production in court. If even this exercise
fails to locate and bring forth the convict, the appellate court is
empowered to dismiss the appeal. We fully and respectfully
concur with the recent elucidation of the law, profound yet
perspicuous, in K.S. Panduranga v. State of Karnataka. After a
comprehensive analysis of previous decisions our learned Brother
had distilled the legal position into six propositions: (SCC p. 734,
para 19)
“19.1. that the High Court cannot dismiss an appeal for non-
prosecution simpliciter without examining the merits;
19.2. that the Court is not bound to adjourn the matter if both the
appellant or his counsel/lawyer are absent;
19.3. that the court may, as a matter of prudence or indulgence,
adjourn the matter but it is not bound to do so;
19.4. that it can dispose of the appeal after perusing the record and
judgment of the trial court.
19.5. that if the accused is in jail and cannot, on his own, come to
court, it would be advisable to adjourn the case and fix another
date to facilitate the appearance of the appellant-accused if his
lawyer is not present, and if the lawyer is absent and the court
deems it appropriate to appoint a lawyer at the State expense to
assist it, nothing in law would preclude the court from doing so;
and
19.6. that if the case is decided on merits in the absence of the
appellant, the higher court can remedy the situation.”
15. In view of the aforesaid judgment, this Court had also made it clear to
the counsel for the appellants that in case if they do not co-operate with the
Court, then this Court after going through the record will decide the appealSignature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 1871/2024, 2045/2024
by itself. In spite of that information, the counsel for the appellant Raju and
Mukesh neither uttered a single word nor filed written submission, and all
the time they kept mum. If an Advocate has accepted the brief on behalf of
the litigant, then it is always expected that he should be ready with the
arguments. The Advocates are the Officers of the Court and therefore they
must behave like an Officer of the court. It was not the case of any of the
counsel that they were engaged by the litigants only for the purposes of
filing bail applications. Once the appellant has engaged a counsel, then the
said counsel has a duty towards the Court as well as towards his appellant.
In the present case the counsel for the appellants namely Shri Sushant
Tiwari (Counsel in Cr.A. No. 2045/2024) and Shri Ashok Jain/Ms. Nikita
Jain (Cr.A. No. 1871/2024) ), have miserably failed in discharging their
duties. Neither they argued the matter nor they agreed to file their written
submissions. This Court cannot allow anybody to hijack the proceedings of
the court. Once it was already made clear by the Court that this matter shall
be heard finally in the month of July 2026 then in all fairness it was
expected from the counsel for the appellants that either they should have
made preparation by themselves or should have engaged any counsel if
they were of the view that they are not competent enough to argue this
case.
16. Under these circumstances this Court is of considered opinion that as
one of the accepted mode for disposal of the appeal is to go through the
record by itself and decide the matter, therefore, looking to the conduct of
the counsel for the parties, this Court has decided to exercise this option
which is permissible in the light of Judgment passed by the Supreme Court
in the case of Suryabaksh (Supra).
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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Cr.A. Nos. 1871/2024, 2045/2024
17. It is also not out of place to mention here that Shri Sankalp Sharma
and Shri B.K. Sharma, Advocates who were appearing in connected
Criminal Appeals had provided written submissions. Accordingly this
Court has gone through the entire record of the Court below as well as the
written submissions provided by Shri Sankalp Sharma, and Shri B.K.
Sharma, Counsel for other co-accused persons.
18. It is submitted by counsel for State that the prosecution has proved
its case beyond a reasonable doubt and does not require any interference.
The counsel for the State submitted that it is a case of double murder. The
accused party as well as the complainant party were on inimical terms. The
accused party was facing a trial in which the complainant party was the
witness. The accused party was pressurizing the complainant party to enter
into a compromise and when they refused to do so, then the accused party
deliberately and intentionally attacked the complainant party even by using
the firearms resulting in death of two persons and causing injury to two
witnesses. Vinod Balmik (P.W.1) and Shiv Kumar (P.W.4) are the injured
witnesses. Therefore their presence on the spot is un-doubtful. It is further
submitted that the appellants could not demolish the evidence of the
prosecution witnesses. The oral evidence is supported by the medical
evidence and thus it is submitted that the trial court did not commit any
mistake by convicting the appellants. However it is fairly conceded that the
acquittal of Rohit @ Golu is not under challenge.
19. Heard the learned counsel for the State and perused the record as
well as the written submissions submitted by Shri B. K. Sharma, counsel
for co-accused Aakash, Chappa @ Harkishan and filed by Shri Sankalp
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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Sharma, Counsel for co-accused Kadori in separately decided appeal for
guidance purposes.
20. At the cost of repetition, it is once again clarified that these two
appeals are being decided on the basis of evidence led by the
prosecution and the evidence led by prosecution in earlier Sessions
Trial No. 131/2104 in respect of other co-accused persons has not been
taken into consideration.
21. The first question for consideration is as to whether the death of
Badal and Ajay is homicidal in nature or not?
22. Dr. D. K. Ujjania (P.W.14) had medically examined the injured Ajay
@ Ajju on 29.05.2014. On medical examination, Dr. Ujjania found 4
injuries (in fact 5 injuries) on the body of Ajay, which are as under :
(i) Incised wound transversally mid parietal region size 5×1/2x
bone deep over the skull. Bleeding present Left side;
(ii). Incised wound size 6 x ½ x bone deep over the right parietal
region of scalp, transversely obliquely bleeding present;
(iii). Incised wound size 4×1/2×1/2 cm left side of parietal region.
(iv). Pain and Tenderness on the left leg.
(v) Contusion size 5 x 3 inch over the right forearm near forearm.
23. The MLC report of Ajay @ Ajju is Ex. P/16. According to Dr.
Ujjania (PW14), the injuries no. 1, 2 and 3 were caused by hard and sharp
object, whereas injury no. 5 was caused by hard and blunt object. X-ray of
skull, x-ray of right forearm, wrist and x-ray of left leg of thigh was
advised and the injured was referred to Medical College. This witness was
cross-examined.
24. In cross examination, he admitted that he had not verified from Ajay
about the incident. He had not found any fire arm injury to Ajay. He
denied that he had prepared the MLC, Ex. P/16 without actually examining
the injured Ajay. Injured Shiv Kumar had no external injury.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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25. Later on, Ajay expired on 08.06.2014 and accordingly Dr. A. K.
Ojha, who was examined as PW5 in the earlier trial, conducted post
mortem of the dead body of the deceased. In the post mortem report Ex.
P/27-C, the following injuries were found :
1. Healed wound found at occipital region 5 x 4 cm in
measuring, conical in shape (V shape).
2. Healed wound found on fronto parietal region of skull
towards left side admeasuring 3×1 cm.
On dissection of wound No. 1 fracture was found
admeasuring 5×4 cm at the base of occipital bone and mid of
occipital region, both fracture met at left side of occipital
region which is conical in shape. Another fracture found at
top of ocipital region which is measuring 3×1 cm. After
dissection of bone, subdural hematoma was found in
fracture of skull in both fracture area and corresponding to
fracture side. On dissection of another bone, no fracture was
found. The cause of death was the injury on head and coma.
It was also opined by Dr. A. K. Ojha (PW5) that the injuries
might be 10 to 12 days old.
(Although Dr. Dinesh Kumar (PW21), who on the relevant date was posted
as Medical Officer with Dr. A.K.Ojha at District Hospital, Datia and owing
to death of Dr. A.K.Ojha had entered the witness box in his place has
proved the post mortem report of Ajay (Ex.P/27C), but it appears that the
entire post mortem report has not been placed by the concerning clerk in
the record of exhibited documents and only last page of the report is placed
at page No.72, while the remaining pages are placed in the file captioned
“Committal Part” at Page No.40)
26. Since, Dr. A.K. Ojha was no more, therefore, the Post mortem report
was proved by Dr. Dinesh Kumar (P.W.21) who also identified the
signatures of Dr. A.K. Ojha. In cross examination, Dr. Dinesh Kumar
(P.W.21) admitted that Post mortem report was not prepared in his
presence.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 22-07-2026
19:31:21
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27. The next question for consideration is that whether the deceased
Ajay @ Ajju died because of injuries sustained by him or not?
28. In order to do complete justice, this Court would like to consider the
arguments advanced by Shri Sankalp Sharma, Advocate in connected
Cr.A.s, which were decided by passing separate Judgment.
29. It was argued by Shri Sankalp Sharma, Advocate, in separately
decide appeal that since, Ajay @ Ajju had died on account of
complications, therefore, it cannot be said that Ajay @ Ajju died on
account of injuries caused to him.
30. Since, the complications were developed on account of injuries caused
to him, therefore, it can be safely said that the appellants are liable for
committing murder of Ajay @ Ajju. A Division Bench of this Court in the
case of Bablu @ Virendra Kumar Vs. State of M.P. decided on 21-12-
2017 in Cr.A. No. 427 of 2009 has held as under :
21. Thus, this Court is of the considered opinion, that the death of
Prembai was homicidal in nature and the cause of death was
septicemia due to infection and gangrene of peritoneum, omentum
and intestine coil. There is nothing on record to suggest that the
septicemia had developed due to post operational complications.
Thus, the septicemia had developed due to infection and gangrene
because of injuries caused by the appellant. Thus, the cause of
homicidal death is directly relatable to the injuries caused by the
appellant.
31. Thus, where the complications had developed on account on injuries
caused to the deceased, then it cannot be said that the accused would not be
guilty of committing murder of the deceased. In the present case, repeated
sword blows were given on the head of deceased Ajay @ Ajju which is
vital part of the body therefore, it is clear that assault was made with a clear
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intention and knowledge to cause murder and the injuries were sufficient in
the ordinary course of nature to cause death. Accordingly, it is held that the
death of Ajay @ Ajju was homicidal in nature.
32. So far as the death of Badal is concerned, according to the
prosecution case, Badal had died on the spot. The post mortem of Badal
was done by Dr. D. K. Ujjania (PW.14). Dr. D. K. Ujjania found the
following injuries on the body of the deceased Badal:
(i) Entrance wound size 2.5 x 2 cm situated over abdomen in
umbilicus region in the left side .3 cm away from umbilicus,
inferio lateral from umbilicus. Margins of the wound was inverted,
lacerated blackening of the margin was present around the wound.
Wound track deep directed upward and laterally connecting exit
wound No. 1. Clotted blood was present inside the track of wound.
(ii) The second entrance wound situated in the left pelvic area of
abdomen 8 cm away from the umbilicus Inferio lateral situated 3
cm in size, circular in shape margin inverted blackening was seen.
Track direction upward and medially continued exit wound no.2.
Clotted blood was present inside the track.
(iii) Entrance wound situated on right side of scalp temporal
region size 5 cm away from the right eye margin of wound is
lacerated, inverted, blackening seen around the wound. Track deep
direction upward and medially contained with the exit wound no.3
(iv) First exit wound was of 4 x 4 cm situated over left side back
of the chest at the level of 10th intercostal space. 5 cm away from
the midline margin, everted, lacerated track deep continued with
the entrance wound no. 1.
(v) Second Exit wound situated over right side of back in
lumbar region L3,L4 level just lateral to the mid line margin of
wound everted. Lacerated size 3 into 3.5 cm continued with track
no. 2.
(vi) Third exit wound situated over right side of eye orbit 5 x 5 cm
margin of the wound lacerated, everted track deep continue to the
entrance wound no. 3. Structure like eye wall was absent.
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On internal examination plastic cap was found on wound number 1 of Exit
Wound 2.5 cm long diameter 2 cm which was sealed and handed over to
the police constable. According to Dr. D. K. Ujjania (P.W.14), the cause of
death was syncope on account of firearm injury in the vital organs and the
death of the deceased Badal was homicidal in nature. The post mortem
report is Ex.P/17. This witness was cross examined and in cross
examination this witness has stated that copy of FIR was not sent. The Fire
arms were also not shown to him at the time of Post mortem. The track of
entrance wound was from downwards to upward. The person who had
caused injury No.3 must be on the right side of the deceased. The cloths
were sealed by him but did not mention as to whether any gun shot holes
were there or not.
33. It is not out of place mention here that no accused was arrested and
no fire arm was seized prior to post mortem of the deceased Badal. Thus,
this Court has failed to understand the logic behind the question that fire
arms were not shown to this witness prior or at the time of post mortem.
Thus it is clear that this witness was not effectively cross examined with
regard to the injuries found on the body of the deceased as well as the
nature of death. Under these circumstances it is clear that even Badal had
died a homicidal death.
Whether Vinod Balmik (P.W.1) and Shiv Kumar (P.W.4) had
sustained injuries?
34. Dr. D.K. Ujjania (P.W.14) had medically examined Shiv Kumar
(P.W.4) and found following injuries on his body :
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(i) Pain @ Tenderness of the back. No swelling and redness
seen;
(ii) Pain @ Tenderness on right side of chest but no swelling
and redness seen.
All the injuries simple in nature, caused by hard @ blunt. Duration
within 12 hours. The MLC report is Ex. P/14.
35. Dr. D.K. Ujjania (P.W.14) had examined Vinod Balmik (P.W.1) and
found following injuries on his body:
(i) Contusion 4×4 cm on the left elbow joint
(ii) Pain & Tenderness of left knee joint, but not swelling and
redness seen;
(i) Abrasion middle finger 2×1/4×1/4 cm with redness.
Injuries 2 and 3 simple in nature caused by hard & blunt object.
Duration within 12 hours. X-ray of left elbow joint was advised.
The MLC report of Vinod Balmik (P.W.1) is Ex. P/15.
36. Thus, it is clear that Vinod Balmik (P.W.1) and Shiv Kumar (P.W.4)
had also sustained injuries.
Who are the author of death of Badal and Ajay and causing injuries to
Vinod Balmik (P.W.1) and Shiv Kumar (P.W.4)
37. It is not out of place to mention here that initially appellant
Raju Balmik was arrested and accordingly, his trial had begun,
whereas the appellant Mukesh was arrested during the pendency
of trial against Raju Balmik.
38. Vinod Balmik (PW1), has stated that Raju who is present in the
Court, is known to him. He has also stated that the deceased Badal,
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and Ajay are his nephews. He further stated that on 29.05.2014 at
about 09:00 a.m., he was returning back to his house from the market.
He was accompanied by deceased Ajay, Badal, Pappu @ Akash and
Anita. As soon as they reached in front of the house of Maithili, they
found that accused Raju, Mukesh, and Chhuttan were carrying 0.315
bore Adhiya each. Akash, Chappa @ Harkishan and Rohit @ Golu
were carrying 12 bore gun. Sunny was carrying sword and Chunnilal
was having lathi. The accused persons surrounded them and started
threatening as to whether they would enter into compromise or not?
When he refused then Chunnilal started assaulting this witness by
means of a lathi. Raju fired a gunshot from his 0.315 Bore Adhiya
causing injury near the eye of deceased Badal. The second gunshot
was fired by Mukesh from his 0.315 Bore Adhiya causing gunshot
injury in the abdominal region of Badal. Chhuttan also fired a gunshot
from his 0.315 Bore Adhiya causing another injury in the abdominal
region of Badal. Sunny gave 3 to 4 sword blows to Ajay which landed
on his head. Ajay fell down on the ground. Akash, Chappa @
Harkishan, Rohit @ Golu fired indiscriminately. Badal had died on
the spot. This witness and Shiv Kumar somehow managed to rush to
police station. The FIR was lodged by this witness. The FIR is Ex.
P/1C. The spot map is Ex. P/2C. The merg intimation is Ex. P/3C.
This witness was sent for medical examination. His statement under
Section 164 of CrPC was recorded which is Ex. P/4C. He was also
sent for medical examination and x-ray was also done. The cross-
examination of this witness was deferred at the request of the Counsel
for the appellants. This witness was cross examined on 24-1-2019.
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39. In cross-examination he stated that he was working in fisheries
department and his timings of duty was 10:30 to 5:30 P.M. The spot
map was prepared on his instructions. Certain questions were put
regarding location of Harijan Colony and this witness specifically
stated that Harijan Colony is situated where the incident took place.
He further admitted that the houses of Maharaj Singh Adivasi,
Maithili, Prakash, Babu Khan are situated near the place of occurrence
in which they are residing along with their family. Police had shifted
Ajay to hospital in front of him. He admitted that while recording
merg intimation, Ex. P/3C regarding death of Badal, he did not lodge
the merg intimation regarding death of Ajay (It is not out of place to
mention that Ajay died on 8-6-2014, there was no question of lodging
merg intimation regarding death of Ajay at that time). He further
stated that he had informed the police that he was accompanied by his
wife Anita and Aakash Balmik but could not explain as to why it was
not mentioned in his police statement, Ex. D/2 and F.I.R. Ex. P/1 (It is
not out of place to mention here that presence of Anita and Aakash
Balmik is mentioned in the FIR and police statement of this witness).
He was further confronted with omission in his police statement, FIR
and statement under Section 164 of Cr.P.C. that before threatening to
enter into compromise, Raju had also abused him in the name of his
mother, but he could not explain as to why this fact is not mentioned
in above mentioned statements. They reached the police station at
about 9:20 A.M. He denied that lot of persons had gathered on the
spot even prior to arrival of police but on his own stated that 2-4
persons had come. He admitted that he was on inimical terms with
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Signing time: 22-07-2026
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appellant Raju. He admitted that his brother Chandraprakash was
killed in the year 2004. In that case he had made allegations against
Raju, Pramod, Mukesh. However, he denied that the police had not
filed charge sheet against aforesaid persons. Raju Balmik had fired
from a distance of 2-4 fts. He stated that since, they were surrounded
by the accused persons, therefore, neither he nor his family members
could inform the police while the firing was going on. He denied that
appellant Raju Balmik was not present on the spot. He also denied
that Raju Balmik had not committed the incident. He denied that Raju
Balmik was on his duty till 8:40 A.M. behind the P.W.D. office. He
denied for want of knowledge that CMO had given a certificate to the
effect that Raju Balmik was on duty.
40. After Mukesh was arrested, the examination in chief of this
witness was once again recorded and in the examination in chief, he
re-iterated the same allegations. He was cross-examined and in cross-
examination, nearly similar questions were put to this witness, which
were already asked to this witness in cross examination by co-accused
Raju Balmik and by other co-accused persons. It was denied that
Mukesh was getting treatment at the time of incident and was not
involved.
41. Anita (PW2) is the another eyewitness. She was examined on
22-4-2019 in respect of appellant Raju. She had identified Raju in
Court. It was also stated by her that deceased Badal, Ajay and injured
Shiv Kumar are also known to her. She had stated that there was an
old enmity between them and accused. However, she was not aware of
the fact as to whether any criminal case is pending or not. She further
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stated that on 29.05.2014 at about 09:00 a.m., she was returning back
from market along with her husband Vinod, Badal, Akash Balmik,
Shiv Kumar, Ajju @, Ajay. She was behind her husband. As soon as
they reached in front of the house of Maithili, they were waylaid by
the accused persons. Raju, Chhuttan and Mukesh were having small
guns in their hands whereas Akash and Chappa @ Harkishan were
having longer guns. Sunny was having sword whereas Chunnilal was
having lathi. Raju challenged her husband and insisted that in case if
they do not enter into a compromise then they will be killed.
Thereafter Kadori started assaulting her husband Vinod by lathi. As a
result he sustained injury on the elbow of her left hand and knee of her
left leg. Thereafter Raju fired a gunshot causing injury near the eye of
Badal. Mukesh fired a gunshot causing injury on the abdominal region
of Badal. Chhuttan also fired a gunshot causing gunshot injury in the
abdominal region of Badal. Thereafter Sunny assaulted Ajay by sword
causing injury on his head. Akash and Chappa @ Harkishan also fired
towards these witnesses, Ajay had fallen down on the ground. The
accused persons had also fired at witnesses, however, they succeeded
in running away by saving their lives. Her husband Vinod and Shiv
Kumar went to lodge FIR. The incident was witnessed by her
husband Vinod, Shiv Kumar, Aakash Balmik, Badal and Ajju. Her
statement under Section 164 of Cr.P.C. was recorded which is Ex. P/5.
The police had also recorded her statement.
42. She was cross-examined by the counsel for the appellant Raju.
She stated that her original name is Anita whereas her nickname is
Sunita. She admitted that she had disclosed her name to the police as
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Sunita. The police had neither recorded her statement on the date of
incident nor had interrogated her. She did not go to the police station
to inform the police that she had witnessed the incident. Her
statements were recorded after 24-25 days of the incident. She had
disclosed to the police that she was following her husband with Vinod,
Aakash Balmik, Shivkumar, and Ajju, but could not explain as to why
this fact is not mentioned in her police statement (Ex.D/1). She further
stated that Ajay is the son of her Jeth. Earlier, a fight had taken place
between Raju Balmik, Mukesh, and the deceased Ajay alias Ajju.
Appellant Raju Balmik was of the view that it is Vinod Balmik (PW1)
who is not allowing the compromise to take place.
43. On 22/10/2019, the examination-in-chief of this witness was
once again recorded in respect of another appellant Mukesh Balmik.
This witness had identified Mukesh Balmik as well as Raju Balmik.
She again narrated the entire incident in her examination-in-chief for
Mukesh Balmik. She was further cross-examined. She admitted that
she is working as a Safai Karamchari in Municipal Council, Datia.
She further stated that on the date of the incident, she had gone to
vegetable market to purchase vegetables. She further stated that she
had left her house at about 8:00-8:30 a.m. for purchasing vegetables.
Her husband had already left the house prior to her leaving to
purchase vegetables. She expressed her ignorance as to whether Ajay,
Badal, and Shivkumar were on duty or not. She claimed that she met
with the witnesses and the deceased near Bhainro Mandir at about
8:45-9:00 a.m. All four persons were coming from the side of the
market. The house of Shiv kumar is at a distance of 150 to 200 meters
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Signing time: 22-07-2026
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away from the house of this witness. Badal, Shiv kumar, and Ajay
were 2-3 steps ahead of her. She further stated that her husband Vinod
was also along with the deceased Ajay. When she noticed that the
accused persons were standing behind the house of Maharaj Singh, at
that time she had not noticed Maithili, Prakash, and Brindavan. The
gunshot fired at Badal was shot from a distance of 2-4 steps. She
further stated that the appellants had surrounded them. When Badal
suffered a gunshot injury, then he fell behind the house of Maharaj
Singh, whereas Ajay had fallen down in front of the house of Prakash.
Out of fear, she had rushed towards her house. Ajay had not suffered
any gunshot injury. Ajay was earlier treated in Gwalior; however, she
was not in a position to disclose the name of the hospital. She
admitted that appellant Raju was working as a Safai Daroga in the
Municipal Council. She denied that at the time of the incident, Raju
was busy in performing his duties. She was not in a position to
disclose the distance of the vegetable market from her house;
however, she claimed that it takes about 5-7 minutes to reach there.
She had purchased only one or two vegetables from the market. When
she started coming back from the market, she was not aware of the
location of her husband and her nephew. Chunghar Phatak, where she
met with her husband and nephew, is about 20-30 steps away from her
house. She further stated that a lot of houses and shops are situated on
the way. In between Chunghar Phatak and the place of occurrence, no
incident had taken place. When she turned towards her house, people
were walking on the street. She admitted that her relationships with
the neighbors are good and they visit the houses of each other on
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Signing time: 22-07-2026
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every occasion of sorrow and happiness. She further stated that people
are residing in the houses situated by the side of the place of
occurrence. After the first gunshot was fired, she did not run away as
she could not get any opportunity. She has further stated about the
place from where Mukesh had fired the gunshot. She further stated
that about two years back, appellant Mukesh etc. had beaten Ajay, and
in respect of that, a criminal case was going on. She further stated that
the wife and children of appellant Mukesh are also employees of the
Municipal Council. She denied that she was not present on the spot at
the time of the incident.
44. Thus, it is clear that the appellants have failed to point out any
circumstance which may falsify or make the evidence of Anita alias
Sunita (PW2) doubtful.
45. Akash Balmik (PW3) was examined and cross-examined after
both the appellants i.e. Raju and Mukesh, were arrested. Accordingly,
his evidence was recorded in respect of both the accused persons. This
witness has identified Raju and Mukesh Balmik in the Court. He
further has stated that the deceased Ajay and Badal were his brothers.
It was stated that on 29/05/2014 at about 9:00 a.m., he was returning
from Thandi Sadak towards his house after purchasing pulses from a
shop. In front of the house of Maharaj Singh, the accused persons
were standing and met with the complainant party. Raju, Mukesh, and
Chuttan were having .315 bore Adhias, Sunny was having sword,
Chunnilal alias Kadori was having sword, Akash and Harkishan were
having 12 bore guns. At that time, the accused persons started abusing
his uncle Vinod Balmik (PW-1). The accused persons scolded Vinod
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Balmik (PW-1) whether he would enter into a compromise or not.
Then Chunnilal alias Kadori started assaulting his uncle Vinod by
Lathi. Raju fired a gunshot from his .315 bore Adhiya, causing an
injury near the right eye of Badal. Mukesh fired a gunshot from his
.315 bore Adhiya, causing an injury in the abdominal region of Badal.
Chuttan also fired one gunshot from his .315 bore adhiya, causing an
injury in the abdominal region of the deceased Badal. Sunny gave
multiple sword blows on the head of the deceased Ajay. Furthermore,
Akash Balmik assaulted Shiv kumar by the handle of the gun, as a
result of which he sustained multiple injuries. Harkishan alias Chappa
fired gunshots. Therefore, the witnesses ran away. The incident was
witnessed by Vinod, Shiv kumar, and Anita as well. The blood-stained
earth, plain earth, and one fired .315 empty cartridge were seized from
the spot vide seizure memo (Ex.P/6C). This witness had also given a
Safi, to police, which was tied around the wounds on the head of Ajay.
The said Safi was seized vide seizure memo (Ex.P/7C). This witness
was cross-examined. He stated that he has been working in the
Municipal Council for the last eight to nine years. Deceased Badal had
worked in the Municipal Council for 13 to 14 years. He further stated
that his father was in the service of the Municipal Council but he has
expired. He stated that Badal had not gone to his duty on the date of
the incident. His statement was recorded by the Police after 24-25
days, and prior thereto, he had not disclosed the incident to anybody.
He also stated that he had informed the police that he was returning
from a shop situated on Thandi Sadak towards his house. He could not
explain why this fact was not mentioned in his police statement
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(Ex.D/5C). He further stated that for the last about 3 to 3.5 years, his
duty has been in the Rajghat colony. On the date of the occurrence, he
had gone to the colony, and he was all alone. He had gone to Rajghat
colony on his Motorcycle. He was not in a position to disclose the
name of the shop from where he had purchased pulses. He further
stated that earlier he went to his house, and thereafter he went to the
shop by walking. Certain omissions and contradictions in his police
statement and statement under Section 164, Cr.P.C. were pointed out.
Vinod (PW-1) is his real uncle. He denied that Vinod is also working
in the Municipal Council. He on his own stated that he is working in
the Fisheries Department and he has now taken voluntary retirement.
He further admitted that about 100 to 200 houses are situated in the
colony. He denied that while going from Thandi Sadak towards his
house Bhainroji temple would not fall on the way. However, he
admitted that if he goes from Thandi Sadak to his house via Idgah
Mohalla, then Bhainroji Mandir would not fall on the way. He further
stated that lot of grocery shops are situated near Idgah Mohalla. He
further admitted that pulses can be purchased from any grocery shop.
He denied that he had not returned to his house from Thandi Sadak.
He further stated that there is a lot of traffic on the road. He further
admitted that he had not made any arrangement for providing
immediate treatment to Ajay. He further stated that when the first
gunshot was fired, he did not make any effort to save him and kept
standing. He further admitted that during the trial of the other co-
accused persons, his evidence was recorded, and in his evidence, he
had stated that he ran towards the market after the first gunshot was
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fired. However, he stated that, in fact, he had run away after the
second and third gunshots were fired. He further stated that he had not
taken any objection during the recording of his evidence in the trial of
the other co-accused persons. He further stated that the fact that the
accused persons had started abusing his uncle Vinod (PW1) was
disclosed by him to the police, but he could not explain why that fact
is not mentioned in his police statement (Ex.D/5C) and statement
recorded under Section 164 of the Cr.P.C (Ex.D/6C). He further stated
that he had disclosed to the Police that the accused persons had
challenged his uncle Vinod to compromise, but could not explain as
why the said fact is not mentioned in his police statement (Ex.P/5C).
He also could not explain why that fact is also not mentioned in his
statement under Section 164 of the CrPC (Ex.D/6C). He denied that
none of the accused had challenged Vinod to enter into compromise.
(It is not out of place to mention here that in his police statement
(Ex.D/5C), this witness had stated that his uncle Vinod was
challenged by all the accused persons and since in his Court statement
recorded under section 164 of Cr.P.C. (Ex.D/6C) he had stated that
appellant Raju had challenged his uncle Vinod, therefore, the
omission was pointed out). Gunshots were fired on Badal from the
side of the house of Maharaj Singh, and the firing continued for two to
three minutes. He could not disclose as to whether the persons
residing at nearby place had witnessed the incident or not. He did not
try to call anybody to save his brother because he could not get any
opportunity. He further stated that since he had run away from the
spot, therefore, he did not make any effort to take the injured person to
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Signing time: 22-07-2026
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the hospital. He further stated that at the time of the occurrence, he
was not having any mobile. (Certain omissions and contradictions in
respect of the other two co-accused persons who were tried on an
earlier occasion were pointed out to this witness, which are not
relevant for the disposal of this appeal). He further stated that the
incident in respect of which the accused party was insisting for a
compromise had taken place in the year 2012, and Akash, Mukesh,
and Sevak were the accused persons. The gunshots were fired from a
distance of one and a half feet. He could not recollect that by what
time the police had reached the spot. He returned to the place of
occurrence after the police had already reached to the place of
occurrence, and in the intervening period, he was hiding himself in the
Santoshi Mata temple. He further stated that he had not disclosed to
any bypasser that his brother has been shot. He further stated that
since his father was having 12 bore gun, therefore, he has knowledge
about the types of cartridges. The fired cartridge which was seized by
the police was lying between the houses of Maithili and Maharaj
Singh. The blood of Badal and Ajay was lying at different places. The
blood of Ajay was lying in front of the house of Prakash, whereas the
blood of Badal was lying between the houses of Maithili and Maharaj
Singh. The Safi was handed over by this witness to the police after six
to seven days after the occurrence, and during this period, the Safi was
in his custody. He denied that Raju and Mukesh had not committed
any offence. He further stated that he has no personal enmity with
Raju. He further admitted that Raju had no personal enmity with the
deceased Badal. He further stated that on the date of occurrence, eight
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to ten persons of the members of his family, were residing in his
house. His house is approximately at a distance of 100 to 150 steps
from the place of occurrence. He denied that at the time of occurrence,
the appellant Raju was deploying Safai Karamchari s to different
places.
46. Shiv Kumar (PW4) is the injured witness who stated that the
appellants Raju and Mukesh are known to him. The complainant
Vinod Balmik as well as the deceased Badal Balmik and Ajay Balmik
are also known to him. The incident took place at about 9:00 a.m. on
29/05/2014. At that time, he was returning to his house after
completing his work. As soon as he reached in front of the house of
Maithili, he met with Ajay, Badal, and Vinod. Immediately thereafter,
the accused persons, namely appellant Raju, appellant Mukesh, co-
accused Chuttan, Sunny, Kadori, Akash, and Chappe, arrived on the
spot. Raju, Mukesh, and Chuttan were having Adhias, Sunny was
having a sword, Kadori was having a Lathi, Akash and Chappe were
having 12 bore guns and challenged Vinod as to whether they would
enter into a compromise or not. Immediately thereafter, Kadori started
assaulting Vinod by lathi. Raju fired a gunshot from his Adhiya,
causing an injury near the eye of Badal. Mukesh fired a gunshot from
his Adhiya, causing an injury in the abdominal region of Badal.
Chuttan also fired a gunshot, causing a gunshot injury in the
abdominal region of Badal. Sunny gave sword blow on the head of
Ajay. Akash and Chappe fired from their 12 bore guns. He was
assaulted by Akash by the handle of the gun. Akash and Anita had
also reached the spot. Thereafter, he ran away in order to save his life.
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Safina form (Ex.P/7), was prepared, which contains his signatures.
Lash Panchnama, (Ex.P/8), was also prepared. He had identified the
dead body of Badal in the identification memo is Ex.P/6. He was
medically examined, and his statements were recorded by the police.
47. This witness was also cross-examined. This Court has gone
through the cross-examination of this witness and could not find any
important circumstances which may demolish or make the evidence of
Shiv Kumar (PW-4) vulnerable or doubtful. Thus, it is clear that the
prosecution story is supported by Vinod Balmik (PW-1), who is also
the complainant and an injured witness, Anita (PW-2), Akash (PW-3),
and Shiv Kumar (PW-4), who is also one of the injured persons.
48. Now, the only question for consideration is whether these
witnesses are reliable or not?
49. As already pointed out, this appeal was not argued by the counsel for
the appellant in spite of repeated requests made by the Court, specifically
when this Court in the criminal appeal of Raju had specifically pointed out
that this matter shall be heard finally. Under these circumstances, the
reliability and credibility of these witnesses shall be considered by this
Court in the light of the arguments advanced by Shri Shankar Sharma and
Shri B.K. Sharma, who had argued the connected appeal (which has been
decided on the basis of evidence led in that case), as well as by applying
our own mind.
Related witnesses
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50. Before considering the defence that all the four eye witnesses are
related witnesses, this Court would like to consider the law governing the
field.
51. The Supreme Court in the case of Mahavir Singh v. State of M.P.,
reported in (2016) 10 SCC 220 has held as under :
18. The High Court has attached a lot of weight to the evidence
of the said Madho Singh (PW 9) as he is an independent witness.
On perusal of the record, it appears that the said person already
had deposed for the victim family on a number of previous
occasions, that too against the same accused. This being the fact,
it is important to analyse the jurisprudence on interested witness.
It is a settled principle that the evidence of interested witness
needs to be scrutinised with utmost care. It can only be relied
upon if the evidence has a ring of truth to it, is cogent, credible
and trustworthy. Here we may refer to chance witness also. It is
to be seen that although the evidence of a chance witness is
acceptable in India, yet the chance witness has to reasonably
explain the presence at that particular point more so when his
deposition is being assailed as being tainted.
19. A contradicted testimony of an interested witness cannot be
usually treated as conclusive…….
52. The Supreme Court in the case of Raju v. State of T.N., reported in
(2012) 12 SCC 701 has held as under :
21. What is the difference between a related witness and an
interested witness? This has been brought out in State of
Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7)
“7. … True, it is, she is the wife of the deceased; but she cannot
be called an ‘interested’ witness. She is related to the deceased.
‘Related’ is not equivalent to ‘interested’. A witness may be
called ‘interested’ only when he or she derives some benefit from
the result of a litigation; in the decree in a civil case, or in seeing
an accused person punished. A witness who is a natural one and
is the only possible eyewitness in the circumstances of a case
cannot be said to be ‘interested’.”
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15. In light of the Constitution Bench decision in State of Bihar v.
Basawan Singh, the view that a “natural witness” or “the only
possible eyewitness” cannot be an interested witness may not be,
with respect, correct. In Basawan Singh, a trap witness (who would
be a natural eyewitness) was considered an interested witness since
he was “concerned in the success of the trap”. The Constitution
Bench held: (AIR p. 506, para 15)
“15. … The correct rule is this: if any of the witnesses are
accomplices who are particeps criminis in respect of the actual
crime charged, their evidence must be treated as the evidence of
accomplices is treated; if they are not accomplices but are
partisan or interested witnesses, who are concerned in the success
of the trap, their evidence must be tested in the same way as other
interested evidence is tested by the application of diverse
considerations which must vary from case to case, and in a
proper case, the court may even look for independent
corroboration before convicting the accused person.”
23. The wife of a deceased (as in Kalki), undoubtedly related to
the victim, would be interested in seeing the accused person
punished–in fact, she would be the most interested in seeing the
accused person punished. It can hardly be said that she is not an
interested witness. The view expressed in Kalki is too narrow and
generalised and needs a rethink.
24. For the time being, we are concerned with four categories of
witnesses–a third party disinterested and unrelated witness
(such as a bystander or passer-by); a third party interested
witness (such as a trap witness); a related and therefore an
interested witness (such as the wife of the victim) having an
interest in seeing that the accused is punished; a related and
therefore an interested witness (such as the wife or brother of the
victim) having an interest in seeing the accused punished and
also having some enmity with the accused. But, more than the
categorisation of a witness, the issue really is one of appreciation
of the evidence of a witness. A court should examine the
evidence of a related and interested witness having an interest in
seeing the accused punished and also having some enmity with
the accused with greater care and caution than the evidence of a
third party disinterested and unrelated witness. This is all that is
expected and required.
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25. In the present case, PW 5 Srinivasan is not only a related and
interested witness, but also someone who has an enmity with the
appellants. His evidence, therefore, needs to be scrutinised with
great care and caution.
26. In Dalip Singh v. State of Punjab this Court observed,
without any generalisation, that a related witness would
ordinarily speak the truth, but in the case of an enmity there may
be a tendency to drag in an innocent person as an accused–each
case has to be considered on its own facts. This is what this Court
had to say: (AIR p. 366, para 26)
“26. A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted and
that usually means unless the witness has cause, such as enmity
against the accused, to wish to implicate him falsely. Ordinarily,
a close relation would be the last to screen the real culprit and
falsely implicate an innocent person. It is true, when feelings run
high and there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a witness
has a grudge along with the guilty, but foundation must be laid
for such a criticism and the mere fact of relationship far from
being a foundation is often a sure guarantee of truth. However,
we are not attempting any sweeping generalisation. Each case
must be judged on its own facts. Our observations are only made
to combat what is so often put forward in cases before us as a
general rule of prudence. There is no such general rule. Each case
must be limited to and be governed by its own facts.”
27. How the evidence of such a witness should be looked at was
again considered in Darya Singh v. State of Punjab. This Court
was of the opinion that a related or interested witness may not be
hostile to the assailant, but if he is, then his evidence must be
examined very carefully and all the infirmities taken into
account. It was observed that where the witness shares the
hostility of the victim against the assailant, it would be unlikely
that he would not name the real assailant but would substitute the
real assailant with the “enemy” of the victim. This is what this
Court said: (AIR p. 331, para 6)
“6. There can be no doubt that in a murder case when evidence is
given by near relatives of the victim and the murder is alleged to
have been committed by the enemy of the family, criminal courts
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must examine the evidence of the interested witnesses, like the
relatives of the victim, very carefully. But a person may be
interested in the victim, being his relation or otherwise, and may
not necessarily be hostile to the accused. In that case, the fact that
the witness was related to the victim or was his friend, may not
necessarily introduce any infirmity in his evidence. But where the
witness is a close relation of the victim and is shown to share the
victim’s hostility to his assailant, that naturally makes it
necessary for the criminal courts to examine the evidence given
by such witness very carefully and scrutinise all the infirmities in
that evidence before deciding to act upon it. … [I]t may be
relevant to remember that though the witness is hostile to the
assailant, it is not likely that he would deliberately omit to name
the real assailant and substitute in his place the name of the
enemy of the family out of malice. The desire to punish the
victim would be so powerful in his mind that he would
unhesitatingly name the real assailant and would not think of
substituting in his place the enemy of the family though he was
not concerned with the assault. It is not improbable that in giving
evidence, such a witness may name the real assailant and may
add other persons out of malice and enmity and that is a factor
which has to be borne in mind in appreciating the evidence of
interested witnesses. On principle, however, it is difficult to
accept the plea that if a witness is shown to be a relative of the
deceased and it is also shown that he shared the hostility of the
victim towards the assailant, his evidence can never be accepted
unless it is corroborated on material particulars.”
28. More recently, in Waman v. State of Maharashtra this Court
dealt with the case of a related witness (though not a witness
inimical to the assailant) and while referring to and relying upon
Sarwan Singh v. State of Punjab, Balraje v. State of
Maharashtra, Prahalad Patel v. State of M.P., Israr v. State of
U.P., S. Sudershan Reddy v. State of A.P., State of U.P. v.
Naresh, Jarnail Singh v. State of Punjab and Vishnu v. State of
Rajasthan it was held: (Waman case, SCC p. 302, para 20)
“20. It is clear that merely because the witnesses are related to
the complainant or the deceased, their evidence cannot be thrown
out. If their evidence is found to be consistent and true, the fact
of being a relative cannot by itself discredit their evidence. In
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other words, the relationship is not a factor to affect the
credibility of a witness and the courts have to scrutinise their
evidence meticulously with a little care.”
16. The sum and substance is that the evidence of a related or
interested witness should be meticulously and carefully examined.
In a case where the related and interested witness may have some
enmity with the assailant, the bar would need to be raised and the
evidence of the witness would have to be examined by applying a
standard of discerning scrutiny. However, this is only a rule of
prudence and not one of law, as held in Dalip Singh and pithily
reiterated in Sarwan Singh in the following words: (Sarwan Singh
case, SCC p. 376, para 10)
“10. … The evidence of an interested witness does not suffer
from any infirmity as such, but the courts require as a rule of
prudence, not as a rule of law, that the evidence of such witnesses
should be scrutinised with a little care. Once that approach is
made and the court is satisfied that the evidence of interested
witnesses have a ring of truth such evidence could be relied upon
even without corroboration.”
53. The Supreme Court in the case of State of U.P. v. Kishanpal,
reported in (2008) 16 SCC 73 has held as under :
17. The plea of “interested witness”, “related witness” have been
succinctly explained by this Court in State of Rajasthan v. Kalki.
The following conclusion in para 7 is relevant: (SCC p. 754)
“7. As mentioned above the High Court has declined to rely on
the evidence of PW 1 on two grounds: (1) she was a ‘highly
interested’ witness because she ‘is the wife of the deceased’, and
(2) there were discrepancies in her evidence. With respect, in our
opinion, both the grounds are invalid. For, in the circumstances of
the case, she was the only and most natural witness; she was the
only person present in the hut with the deceased at the time of the
occurrence, and the only person who saw the occurrence. True, it
is, she is the wife of the deceased; but she cannot be called an
‘interested’ witness. She is related to the deceased. ‘Related’ is
not equivalent to ‘interested’. A witness may be called
‘interested’ only when he or she derives some benefit from the
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accused person punished. A witness who is a natural one and is
the only possible eyewitness in the circumstances of a case
cannot be said to be ‘interested’.”
From the above it is clear that “related” is not equivalent to
“interested”. The witness may be called “interested” only when
he or she has derived some benefit from the result of a litigation,
in the decree in a civil case, or in seeing an accused person
punished. A witness, who is a natural one and is the only possible
eyewitness in the circumstances of a case cannot be said to be
“interested”.
18. The plea of defence that it would not be safe to accept the
evidence of the eyewitnesses who are the close relatives of the
deceased, has not been accepted by this Court. There is no such
universal rule as to warrant rejection of the evidence of a witness
merely because he/she was related to or interested in the parties to
either side. In such cases, if the presence of such a witness at the
time of occurrence is proved or considered to be natural and the
evidence tendered by such witness is found in the light of the
surrounding circumstances and probabilities of the case to be
true, it can provide a good and sound basis for conviction of the
accused. Where it is shown that there is enmity and the witnesses
are near relatives too, the court has a duty to scrutinise their
evidence with great care, caution and circumspection and be very
careful too in weighing such evidence. The testimony of related
witnesses, if after deep scrutiny, found to be credible cannot be
discarded.
19. It is now well settled that the evidence of witness cannot be
discarded merely on the ground that he is a related witness, if
otherwise the same is found credible. The witness could be a
relative but that does not mean his statement should be rejected.
In such a case, it is the duty of the court to be more careful in the
matter of scrutiny of evidence of the interested witness, and if, on
such scrutiny it is found that the evidence on record of such
interested witness is worth credence, the same would not be
discarded merely on the ground that the witness is an interested
witness. Caution is to be applied by the court while scrutinising
the evidence of the interested witness.
20. It is well settled that it is the quality of the evidence and not
the quantity of the evidence which is required to be judged by the
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court to place credence on the statement. The ground that the
witness being a close relative and consequently being a partisan
witness, should not be relied upon, has no substance. Relationship
is not a factor to affect credibility of a witness. It is more often
than not that a relation would not conceal actual culprit and make
allegations against an innocent person. Foundation has to be laid
if plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse the evidence to find out
whether it is cogent and credible. (Vide State of A.P. v. Veddula
Veera Reddy, Ram Anup Singh v. State of Bihar, Harijana
Narayana v. State of A.P., Anil Sharma v. State of Jharkhand,
Seeman v. State, Salim Sahab v. State of M.P., Kapildeo Mandal
v. State of Bihar and D. Sailu v. State of A.P.)
21. In Kulesh Mondal v. State of W.B. this Court considered the
reliability of interested/related witnesses and has reiterated the
earlier rulings and it is worthwhile to refer the same which reads
as under: (SCC pp. 580-81, para 11)
“11. ’10. We may also observe that the ground that the [witnesses
being close relatives and consequently being partisan witnesses,]
should not be relied upon, has no substance. This theory was
repelled by this Court as early as in Dalip Singh v. State of
Punjab in which surprise was expressed over the impression
which prevailed in the minds of the members of the Bar that
relatives were not independent witnesses. Speaking through
Vivian Bose, J. it was observed: (AIR p. 366, para 25)
“25. We are unable to agree with the learned Judges of the High
Court that the testimony of the two eyewitnesses requires
corroboration. If the foundation for such an observation is based
on the fact that the witnesses are women and that the fate of seven
men hangs on their testimony, we know of no such rule. If it is
grounded on the reason that they are closely related to the
deceased we are unable to concur. This is a fallacy common to
many criminal cases and one which another Bench of this Court
endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR
at p. 59). We find, however, that it unfortunately still persists, if
not in the judgments of the Courts, at any rate in the arguments of
counsel.”
11. Again in Masalti v. State of U.P. this Court observed: (AIR
pp. 209-10, para 14)
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“14. But it would, we think, be unreasonable to contend that
evidence given by witnesses should be discarded only on the
ground that it is evidence of partisan or interested witnesses. …
The mechanical rejection of such evidence on the sole ground
that it is partisan would invariably lead to failure of justice. No
hard-and-fast rule can be laid down as to how much evidence
should be appreciated. Judicial approach has to be cautious in
dealing with such evidence; but the plea that such evidence
should be rejected because it is partisan cannot be accepted as
correct.”
12. To the same effect is the decision in State of Punjab v. Jagir
Singh, Lehna v. State of Haryana …. As observed by this Court
in State of Rajasthan v. Kalki normal discrepancies in evidence
are those which are due to normal errors of observation, normal
errors of memory due to lapse of time, due to mental disposition
such as shock and horror at the time of occurrence and those are
always there however honest and truthful a witness may be.
Material discrepancies are those which are not normal, and not
expected of a normal person. Courts have to label the category to
which a discrepancy may be categorised. While normal
discrepancies do not corrode the credibility of a party’s case,
material discrepancies do so. These aspects were highlighted
recently in Krishna Mochi v. State of Bihar.’* “
54. The Supreme Court in the case of Sudhakar v. State, reported in
(2018) 5 SCC 435 has held as under :
17. It would be appropriate to have a look at the legal position with
regard to the evidence of related and interested witnesses. In
Sarwan Singh v. State of Punjab, SCC para 10, this Court observed
thus: (SCC p. 376, para 10)
“10. … The evidence of an interested witness does not suffer
from any infirmity as such, but the courts require as a rule of
prudence, not as a rule of law, that the evidence of such witnesses
should be scrutinised with a little care. Once that approach is
made and the court is satisfied that the evidence of interested
witnesses have a ring of truth such evidence could be relied upon
even without corroboration.”
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It is settled law that there cannot be any hard-and-fast rule that
the evidence of interested witnesses cannot be taken into
consideration and they cannot be termed as witnesses. But, the
only burden that would be cast upon the courts in those cases is
that the courts have to be cautious while evaluating the evidence
to exclude the possibility of false implication. Relationship can
never be a factor to affect the credibility of the witness as it is
always not possible to get an independent witness.
17. Then, next comes the question “what is the difference
between a related witness and an interested witness?”. The plea of
“interested witness”, “related witness” has been succinctly
explained by this Court that “related” is not equivalent to
“interested”. The witness may be called “interested” only when
he or she derives some benefit from the result of a litigation in the
decree in a civil case, or in seeing an accused person punished. In
this case at hand PWs 1 and 5 were not only related witnesses,
but also “interested witnesses” as they had pecuniary interest in
getting the accused petitioner punished. [refer State of U.P. v.
Kishanpal]. As the prosecution has relied upon the evidence of
interested witnesses, it would be prudent in the facts and
circumstances of this case to be cautious while analysing such
evidence. It may be noted that other than these witnesses, there
are no independent witnesses available to support the case of the
prosecution.
55. The Supreme Court in the case of Sarwan Singh v. State of
Punjab, reported in (2003) 1 SCC 240 has held as under :
14. The test of creditworthiness and acceptability in our view,
ought to be the guiding factors and if so the requirements as
above, stand answered in the affirmative, question of raising an
eyebrow on reliability of witness would be futile. The test is the
credibility and acceptability of the witnesses available — if they
are so, the prosecution should be able to prove the case with their
assistance.
15. Coming to the contextual facts once again, while it is true that
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able to shake the credibility of the eyewitnesses: there is not even
any material contradiction in the case of the prosecution.
56. Thus, it is clear that there is a distinction between “Related witness”
and “interested witness”. However, Court should examine the evidence of
a related and interested witness having an interest in seeing the accused
punished and also having some enmity with the accused with greater care
and caution. Their evidence cannot be rejected merely on the ground that
either they are related witnesses or interested witnesses.
57. Furthermore, it is also true that now a days, the independent
witnesses donot come forward for multiple reasons. The Supreme Court in
the case of Sadhu Saran Singh v. State of U.P., reported in (2016) 4 SCC
357 has held as under :
58. 29. As far as the non-examination of any other
independent witness is concerned, there is no doubt that the
prosecution has not been able to produce any independent
witness. But, the prosecution case cannot be doubted on this
ground alone. In these days, civilised people are generally
insensitive to come forward to give any statement in respect of
any criminal offence. Unless it is inevitable, people normally
keep away from the court as they find it distressing and stressful.
Though this kind of human behaviour is indeed unfortunate, but it
is a normal phenomena. We cannot ignore this handicap of the
investigating agency in discharging their duty. We cannot derail
the entire case on the mere ground of absence of independent
witness as long as the evidence of the eyewitness, though
interested, is trustworthy.
58. The Supreme Court in the case of Mahesh v. State of
Maharashtra, reported in (2008) 13 SCC 271 has held as under :
55. As regards non-examination of the independent witnesses
who probably witnessed the occurrence on the roadside, suffice it
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injuries in the occurrence, if found to be trustworthy of belief,
cannot be discarded merely for non-examination of the
independent witnesses. The High Court has held in its judgment
and, in our view, rightly that the reasons given by the learned trial
Judge for discarding and disbelieving the testimony of PWs 4, 5,
6 and 8 were wholly unreasonable, untenable and perverse. The
occurrence of the incident, as noticed earlier, is not in serious
dispute. PW Prakash Deshkar has also admitted that he had
lodged complaint to the police about the incident on the basis of
which FIR came to be registered and this witness has supported in
his deposition the contents of the complaint to some extent. It is
well settled that in such cases many a times, independent
witnesses do not come forward to depose in favour of the
prosecution. There are many reasons that persons sometimes are
not inclined to become witnesses in the case for a variety of
reasons. It is well settled that merely because the witnesses
examined by the prosecution are relatives of the victim, that fact
by itself will not be sufficient to discard and discredit the
evidence of the relative witnesses, if otherwise they are found to
be truthful witnesses and rule of caution is that the evidence of
the relative witnesses has to be reliable evidence which has to be
accepted after deep and thorough scrutiny.
59. Furthermore, if the eye witness is also an injured one, then his
presence on the spot becomes un-doubtful. The Supreme Court in the case
of Majju v. State of M.P., reported in (2001) 9 SCC 449 has held as under
:
5. The counsel for the appellants contended that the evidence
adduced by the prosecution was interested and therefore, it cannot
be relied upon. It is important to note that the witnesses examined
on the side of the prosecution were all injured in the incident. PW
6 Ramchandra sustained a grievous injury, in the sense that he
lost one of his teeth. The other witnesses also sustained injuries.
That is proved by the various medical certificates issued by the
doctor who examined them. Therefore, the presence of these
witnesses at the place of occurrence cannot be suspected. All
these witnesses gave evidence to the effect that when they along
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with deceased Bihari Lal were coming from the temple after
performing some ceremony, the accused surrounded and attacked
them. We do not find any infirmity in the evidence of these
witnesses.
60. If the evidence of Vinod Balmik (P.W.1), Anita (P.W.2), Akash
Balmik (P.W.3) and Shiv Kumar (P.W.4) and are considered in the light of
law laid down by Supreme Court, this Court is of the considered opinion
that all of them are reliable witnesses. From plain reading of the entire
evidence, it is clear that Vinod Balmik (PW1) is an injured eye witness and
his presence on the spot is natural because the incident took place near to
the house of this witness. The deceased persons as well as the another
injured Shiv Kumar (P.W.3) are related to this witness. Since this witness
had also suffered injuries, therefore, his presence on the spot is un-
doubtful. Furthermore, the incident took place on 29.05.2014 at about
09:00 a.m. whereas the FIR was lodged within half an hour i.e., at 09:30
a.m. (Ex P/1C). The incident narrated in the FIR was similar to the incident
which was stated by this witness in the court. There is no material omission
or improvement in the FIR and the statement of this witness recorded under
Section 161 of CrPC. The allegations made by this witness against the
accused persons are duly corroborated by the medical evidence because 3
gunshot entry wounds were found on the dead body of the deceased Badal
and similarly incised wounds were found on the head of the
injured/deceased Ajay. Thus this Court is of considered opinion that Vinod
Balmik (PW1) is a reliable witness. Similarly, the evidence of Anita
(P.W.2), injured witness Shiv Kumar (P.W.4) and Akash Balmik (P.W.3)
is reliable.
Discrepancies in the evidence of eye witnesses
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61. Shri Sankalp Sharma, Advocate in appeals of co-accused
persons had tried to highlight certain contradictions/ discrepancies in the
evidence of four eye witnesses. It is the argument of the counsel for Kadori
that the Vinod Balmik (PW1) had stated that as soon as they reached in
front of the house of Maithili, they were way laid and they were threatened
to enter into a compromise otherwise they will be killed. By referring to
the statement of Deceased Ajay @ Ajju recorded under Section 161 of
CrPC, Ex. D/7 ( in appeals of co-accused persons), it was submitted that
Ajay @ Ajju had stated that the incident took place near the house of
Prakash. Thus the witnesses have miserably failed to prove the place of
occurrence beyond reasonable doubt.
62. Considered the aforesaid submission.
63. The spot map is Ex. P/12C. From the spot map it is clear that the
house of Maithili and the house of Prakash Balmik are adjoining to each
other. The spot map was prepared by Patwari Manoj Kumar (P.W.11).
From the spot map, it is clear that the house of Prakash Balmik is adjoining
to the place of occurrence. No cross-examination was done with regard to
the distance of the house of Prakash Balmik from the place of occurrence.
Thus it is clear that the house of Maithili and House of Prakash Balmik are
adjoining to each other. Thus even if it is presumed that there is a slight
discrepancy in the evidence of the witnesses with regard to the place of
occurrence, it is held that unless and until the said discrepancy is shown to
be material going to the root of the case, the minor discrepancies cannot be
given undue importance. Ajay @ Ajju was in an injured condition and he
had disclosed that the incident has taken place near the house of Prakash
According to witnesses, the blood of Ajay was lying in front of the house
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of Prakash, whereas the blood of Badal was lying in front of house of
Maharaj Singh. Thus, it cannot be said that there was any discrepancy in
the evidence of witnesses with regard to place of occurrence.
64. The Supreme Court in the case of State of U.P. v. Naresh, reported
in (2011) 4 SCC 324 has held as under :
27. The evidence of an injured witness must be given due
weightage being a stamped witness, thus, his presence cannot be
doubted. His statement is generally considered to be very reliable
and it is unlikely that he has spared the actual assailant in order to
falsely implicate someone else. The testimony of an injured
witness has its own relevancy and efficacy as he has sustained
injuries at the time and place of occurrence and this lends support
to his testimony that he was present during the occurrence. Thus,
the testimony of an injured witness is accorded a special status in
law. The witness would not like or want to let his actual assailant
go unpunished merely to implicate a third person falsely for the
commission of the offence. Thus, the evidence of the injured
witness should be relied upon unless there are grounds for the
rejection of his evidence on the basis of major contradictions and
discrepancies therein. (Vide Jarnail Singh v. State of Punjab,
Balraje v. State of Maharashtra and Abdul Sayeed v. State of
M.P.)
28. The High Court disbelieved both the witnesses, Subedar (PW
1) and Balak Ram (PW 5) as being closely related to the deceased
and for not examining any independent witnesses. In a case like
this, it may be difficult for the prosecution to procure an
independent witness, wherein the accused had killed one person
at the spot and seriously injured the other. The independent
witness may not muster the courage to come forward and depose
against such accused.
29. A mere relationship cannot be a factor to affect credibility of
a witness. The evidence of a witness cannot be discarded solely
on the ground of his relationship with the victim of the offence.
The plea relating to relatives’ evidence remains without any
substance in case the evidence has credence and it can be relied
upon. In such a case the defence has to lay foundation if plea of
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false implication is made and the court has to analyse the
evidence of related witnesses carefully to find out whether it is
cogent and credible. (Vide Jarnail Singh, Vishnu v. State of
Rajasthan and Balraje.)
30. In all criminal cases, normal discrepancies are bound to occur
in the depositions of witnesses due to normal errors of
observation, namely, errors of memory due to lapse of time or
due to mental disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a contradiction,
creating a serious doubt about the truthfulness of the witness and
other witnesses also make material improvement while deposing
in the court, such evidence cannot be safe to rely upon. However,
minor contradictions, inconsistencies, embellishments or
improvements on trivial matters which do not affect the core of
the prosecution case, should not be made a ground on which the
evidence can be rejected in its entirety. The court has to form its
opinion about the credibility of the witness and record a finding
as to whether his deposition inspires confidence.
“9. Exaggerations per se do not render the evidence brittle. But it
can be one of the factors to test credibility of the prosecution
version, when the entire evidence is put in a crucible for being
tested on the touchstone of credibility.”*
Therefore, mere marginal variations in the statements of a witness
cannot be dubbed as improvements as the same may be
elaborations of the statement made by the witness earlier. The
omissions which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial or core of
the prosecution’s case, render the testimony of the witness liable
to be discredited. [Vide State v. Saravanan, Arumugam v. State,
Mahendra Pratap Singh v. State of U.P. and Sunil Kumar
Sambhudayal Gupta (Dr.) v. State of Maharashtra.]
65. The Supreme Court in the case of Parbata v. State of Rajasthan,
reported in (2005) 13 SCC 398 has held as under :
9. The trial court has really not recorded any convincing reason
for not accepting the testimony of PW 2 and PW 8. We have
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natural having a ring of truth. Much was sought to be made of
minor discrepancies in the evidence of the two eyewitnesses,
which have been described as glaring contradictions. Some
variation in matters of detail is but natural, and much depends
on the capacity of a witness to observe and remember events,
particularly in matters of minor details. Moreover, the two
witnesses came from two different directions, and they may
have observed the incident at different stages, though in quick
succession. However, such minor discrepancies do not warrant
rejection of their evidence. Their deposition is natural and
consistent with the case of the prosecution and we find no
reason why they should be disbelieved.
66. Thus this Court is of considered opinion that in fact there are no
material contradictions and omissions in the evidence of witnesses. The
witnesses are rustic villagers and minor contradictions are bound to take
place.
Whether incident took place all of a sudden
67. As already pointed out, Mukesh, Raju Balmik and Chhuttan were
armed with .315 bore Adhiya, whereas Kadori @ Chunnilal was armed
with Lathi, Sunny was armed with Sword and Aakash and Chappa @
Harkishan were armed with 12 bore guns. Admittedly there was an old
enmity and the accused party was pressurizing the complainant party to
enter into a compromise in a criminal case which was registered on the
allegation of assaulting deceased Ajay. It is not the case of the appellants
that the complainant party was the aggressor. In fact, neither any of the
deceased i.e., Badal and Ajay were armed, nor any witness was armed with
any weapon. No injuries were sustained by any of the accused/appellant.
Thus, it is clear that the incident did not take place all of a sudden but it
was pre-mediated and planned
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Delayed recording of police statements
68. Although the police statement of Vinod Balmik (P.W.1) was
recorded immediately, but the police statements of Anita (P.W.2), Akash
Balmik (P.W.3) and Shivkumar (P.W.4) were recorded belatedly, therefore,
the question is that whether their evidence is not reliable or not?
69. The Police Statement of Anita (P.W.2) was recorded on 23-6- 2014,
Police Statement of Vinod Balmik (P.W.1) was recorded on 29-5-2014, the
Police Statement of Shiv Kumar (P.W.4) was recorded on 23-6-2014 and
Police Statement of Akash Balmik (P.W.3) was recorded on 23-6-2014.
The incident took place on 29-5-2014. Thus, it is clear that the Police
Statement of Vinod Balmik (P.W.1) was recorded on the date of
occurrence, whereas the Police Statement of Anita (P.W.2), Shiv Kumar
(P.W.4) and Akash Balmik (P.W.3) were recorded after 25 days.
70. It is not out of place to mention here that the names of Anita
(P.W.2), Shiv Kumar (P.W.4) and Akash Balmik (P.W.3) are mentioned as
eye-witnesses in the FIR (Ex. P/1C). Shiv Kumar (P.W.4) was also an
injured witness who was medically examined by Dr. D.K. Ujjania (P.W.14)
on 29-5-2014 itself on the requisition sent by police Ex. P/14. Thus, it is
clear that Shiv Kumar (P.W.4) was available with the police, but the
investigating officer, did not record his Police Statement.
71. The Supreme Court in the case of V.K. Mishra v. State of
Uttarakhand, reported in (2015) 9 SCC 588 has held as under :
25……It is pertinent to point out that on the delayed examination
of PW 2, no question was put to the investigating officer (PW 14)
by the defence. Had such question been put to PW 14, he would
have certainly explained the reason for not examining PW 2 from
15-8-1997 to 17-8-1997. Having not done so, the appellants areSignature Not Verified
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not right in contending that there was delay in recording the
statement of PW 2.
26. It cannot be held as a rule of universal application that the
testimony of a witness becomes unreliable merely because there
is delay in examination of a particular witness. In Sunil Kumar v.
State of Rajasthan, it was held that the question of delay in
examining a witness during investigation is material only if it is
indicative and suggestive of some unfair practice by the
investigating agency for the purpose of introducing a core of
witness to falsely support the prosecution case. As such there was
no delay in recording the statement of PW 2 and even assuming
that there was delay in questioning PW 2, that by itself cannot
amount to any infirmity in the prosecution case.
72. The Supreme Court in the case of Sunil Kumar v. State of
Rajasthan, reported in (2005) 9 SCC 283 has held as under :
14. So far as the delayed recording of statement of the witnesses
is concerned, here again no question was put to the investigating
officer specifically as to why there was delay in recording the
statement. On the contrary, the witnesses themselves have
indicated as to why there was delay. The plea of the appellants in
this regard, therefore, has no substance.
73. Thus, it is clear that mere delay in recording of Police Statement will
not make the evidence of such witness doubtful. Furthermore, as already
point, not only the names of Anita (P.W.2), Akash Balmik (P.W.3) and
Shiv Kumar (P.W.4) were mentioned in FIR (Ex. P/1C) as eye witnesses,
but Shiv Kumar (P.W.4) was also medically examined on the date of
occurrence. The Police Statement of another injured eye witness who was
also the complainant, namely Vinod Balmik (P.W.1) was already recorded
on 29-5-2014 i.e., the date of occurrence. Therefore, under these
circumstances, it is held that in view of un-doubtful presence of eye
witnesses on the spot, the delayed recording of Police Statements of Anita
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(P.W.2), Akash Balmik (PW3) and Shiv Kumar (PW4) and will not make
their evidence unreliable.
Enmity
74. It is the case of the prosecution itself, that the accused party was
pressurizing the complainant party to enter into a compromise in a criminal
case which was pending on the allegations of assaulting Ajay. Enmity is a
double edged weapon. If on one hand it provides a motive for falsely
implicating the accused, then on the other hand, it forms the basis for
commission of offence. In the present case, the allegations are that
Mukesh, Raju Balmik and Chhuttan fired three guns shots causing three
gun shot injuries on the face and abdominal region of deceased Badal. The
ocular evidence is fully corroborated by Medical Evidence. Similarly, the
allegations are that Sunny assaulted Ajay on his head repeatedly by sword.
The said allegation was also fully corroborated by the Medical Evidence.
Similarly, Kadori @ Chunnilal assaulted Vinod Balmik (P.W.1) and this
allegation is also supported by medical evidence. Shiv Kumar (P.W.4) was
assaulted by the handles of gun by Aakash. The said allegation is also
corroborated by the medical evidence. Furthermore, this Court has already
found that Vinod Balmik (P.W.1), Anita (P.W.2), Akash Balmik (PW3)
and Shiv Kumar (P.W.4) are reliable witnesses. Thus, in the present case,
it is held that the incident was caused by the appellants only because of
enmity between the parties.
75. The Supreme Court in the case of Anil Rai v. State of Bihar,
reported in (2001) 7 SCC 318 has held as under :
18. There is no doubt that PWs 1, 2, 5 and 6 relied upon and
believed by the trial as well as the High Court are not friendly to
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between them. The admitted position of law is that enmity is a
double-edged weapon which can be a motive for the crime as also
the ground for false implication of the accused persons. In case of
inimical witnesses, the courts are required to scrutinise their
testimony with anxious care to find out whether their testimony
inspires confidence to be acceptable notwithstanding the
existence of enmity. Where enmity is proved to be the motive for
the commission of the crime, the accused cannot urge that despite
proof of the motive of the crime, the witnesses proved to be
inimical should not be relied upon. Bitter animosity, held to be a
double-edged weapon, may be instrumental for false involvement
or for the witnesses inferring and strongly believing that the
crime must have been committed by the accused. Such possibility
has to be kept in mind while evaluating the prosecution witnesses
regarding the involvement of the accused in the commission of
the crime. Testimony of eyewitnesses, which is otherwise
convincing and consistent, cannot be discarded simply on the
ground that the deceased were related to the eyewitnesses or
previously there were some disputes between the accused and the
deceased or the witnesses. The existence of animosity between
the accused and the witnesses may, in some cases, give rise to the
possibility of the witnesses exaggerating the role of some of the
accused or trying to rope in more persons as accused persons for
the commission of the crime. Such a possibility is required to be
ascertained on the facts of each case. However, the mere
existence of enmity in this case, particularly when it is alleged as
a motive for the commission of the crime, cannot be made a basis
to discard or reject the testimony of the eyewitnesses, the
deposition of whom is otherwise consistent and convincing.
76. The Supreme Court in the case of Matibar Singh v. State of U.P.,
reported in (2015) 16 SCC 168 has held as under :
14. That brings us to the question whether there is any room for
our interference with the conviction of Matibar Singh, appellant,
as recorded by the High Court in the impugned judgment1. We
must, at the outset, say that the High Court’s judgment, which has
been read out at length before us, has dealt with the evidence
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counsel for the parties with commendable clarity. We have,
therefore, no hesitation in affirming the reasoning and the
conclusions arrived at by the High Court. The fact that there was
previous enmity between the complainant’s party and the rival
group of which the accused happen to be members or
sympathisers is a factor that need to be taken as adverse to the
prosecution. Enmity is a double-edged weapon. It was because of
the said enmity that the victim was assaulted while he was on his
way to attend the function. The existence of such enmity lends
support to the prosecution case rather than demolish the same.
The trial court was obviously in error in taking a contrary view
which the High Court has rightly corrected by the impugned
judgment. So also, the High Court was, in our opinion, perfectly
justified in holding that the deposition of the victim and the
eyewitnesses examined at the trial had not been shaken in cross-
examinations to render it unsafe for the Court to rest an order of
conviction against the accused persons.
77. Thus, it is held that the incident was caused by appellants, only on
account of enmity and they were not falsely implicated.
Whether appellants were members of Unlawful Assembly and have
committed the offence in furtherance of Common Object
78. It is the case of the prosecution that on account of old enmity, the
appellants with deadly weapons like firearm, sword and lathi were waiting
for the complainant party and three appellants namely, Mukesh, Raju and
Chhuttan caused three gun shot injuries to Badal whereas Sunny assaulted
repeatedly Ajay on his head. Kadori @ Chunnilal assaulted Vinod Balmik
(P.W.1) and Aakash assaulted Shiv Kumar by handle of guns. Thus, not
only all the accused persons were present on the spot but they also actively
participated in the incident by causing injuries to the deceased Badal and
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Ajay but to injured witnesses Vinod Balmik (P.W.1) and Shiv Kumar
(P.W.3).
79. The Supreme Court in the case of Lalji v. State of U.P., reported in
(1989) 1 SCC 437 has held as under :
7. The precise question to be decided in this appeal, therefore, is
whether in view of death caused to Girdhari and Siddhu by the
unlawful assembly which is punishable under Section 302 with
the aid of Section 149 IPC the corroboration as to participation of
each individual member of the assembly would be necessary, and
if so, whether in the instant case there is such corroboration.
8. Section 149 IPC provides that if an offence is committed by
any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of the
assembly knew to be likely to be committed in prosecution of that
object, every person, who at the time of committing of that
offence is a member of the same assembly, is guilty of that
offence. As has been defined in Section 141 IPC, an assembly of
five or more persons is designated an “Unlawful Assembly”, if
the common object of the persons composing that assembly is to
do any act or acts stated in clauses “First”, “Second”, “Third”,
“Fourth”, and “Fifth” of that section. An assembly, as the
Explanation to the section says, which was not unlawful when it
assembled, may subsequently become an unlawful assembly.
Whoever being aware of facts which render any assembly an
unlawful assembly intentionally joins that assembly, or continues
in it, is said to be a member of an unlawful assembly. Thus,
whenever so many as five or more persons meet together to
support each other, even against opposition, in carrying out the
common object which is likely to involve violence or to produce
in the minds of rational and firm men any reasonable
apprehension of violence, then even though they ultimately depart
without doing anything whatever towards carrying out their
common object, the mere fact of their having thus met will
constitute an offence. Of course, the alarm must not be merely
such as would frighten any foolish or timid person, but must be
such as would alarm persons of reasonable firmness and courage.
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The two essentials of the section are the commission of an
offence by any member of an unlawful assembly and that such
offence must have been committed in prosecution of the common
object of that assembly or must be such as the members of that
assembly knew to be likely to be committed. Not every person is
necessarily guilty but only those who share in the common object.
The common object of the assembly must be one of the five
objects mentioned in Section 141 IPC. Common object of the
unlawful assembly can be gathered from the nature of the
assembly, arms used by them and the behaviour of the assembly
at or before scene of occurrence. It is an inference to be deduced
from the facts and circumstances of each case.
9. Section 149 makes every member of an unlawful assembly at
the time of committing of the offence guilty of that offence. Thus
this section created a specific and distinct offence. In other words,
it created a constructive or vicarious liability of the members of
the unlawful assembly for the unlawful acts committed pursuant
to the common object by any other member of that assembly.
However, the vicarious liability of the members of the unlawful
assembly extends only to the acts done in pursuance of the
common objects of the unlawful assembly, or to such offences as
the members of the unlawful assembly knew to be likely to be
committed in prosecution of that object. Once the case of a
person falls within the ingredients of the section the question that
he did nothing with his own hands would be immaterial. He
cannot put forward the defence that he did not with his own hand
commit the offence committed in prosecution of the common
object of the unlawful assembly or such as the members of the
assembly knew to be likely to be committed in prosecution of that
object. Everyone must be taken to have intended the probable and
natural results of the combination of the acts in which he joined.
It is not necessary that all the persons forming an unlawful
assembly must do some overt act. When the accused persons
assembled together, armed with lathis, and were parties to the
assault on the complainant party, the prosecution is not obliged to
prove which specific overt act was done by which of the accused.
This section makes a member of the unlawful assembly
responsible as a principal for the acts of each, and all, merely
because he is a member of an unlawful assembly. While overt act
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and active participation may indicate common intention of the
person perpetrating the crime, the mere presence in the unlawful
assembly may fasten vicariously criminal liability under Section
149. It must be noted that the basis of the constructive guilt under
Section 149 is mere membership of the unlawful assembly, with
the requisite common object or knowledge.
10. Thus, once the court holds that certain accused persons
formed an unlawful assembly and an offence is committed by any
member of that assembly in prosecution of the common object of
that assembly, or such as the members of the assembly knew to
be likely to be committed in prosecution of that object, every
person who at the time of committing of that offence was a
member of the same assembly is to be held guilty of that offence.
After such a finding it would not be open to the court to see as to
who actually did the offensive act or require the prosecution to
prove which of the members did which of the offensive acts. The
prosecution would have no obligation to prove it.
80. The Supreme Court in the case of Manjit Singh v. State of
Punjab, reported in (2019) 8 SCC 529 has held as under :
14.3. We may also take note of the principles enunciated and
explained by this Court as regards the ingredients of an unlawful
assembly and the vicarious/constructive liability of every member
of such an assembly. In Sikandar Singh, this Court observed as
under : (SCC pp. 483-85, paras 15 & 17-18)
“15. The provision has essentially two ingredients viz. (i) the
commission of an offence by any member of an unlawful
assembly, and (ii) such offence must be committed in prosecution
of the common object of the assembly or must be such as the
members of that assembly knew to be likely to be committed in
prosecution of the common object. Once it is established that the
unlawful assembly had common object, it is not necessary that all
persons forming the unlawful assembly must be shown to have
committed some overt act. For the purpose of incurring the
vicarious liability for the offence committed by a member of such
unlawful assembly under the provision, the liability of other
members of the unlawful assembly for the offence committed
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whether the other members knew beforehand that the offence
actually committed was likely to be committed in prosecution of
the common object.
17. A “common object” does not require a prior concert and a
common meeting of minds before the attack. It is enough if each
member of the unlawful assembly has the same object in view
and their number is five or more and that they act as an assembly
to achieve that object. The “common object” of an assembly is to
be ascertained from the acts and language of the members
composing it, and from a consideration of all the surrounding
circumstances. It may be gathered from the course of conduct
adopted by the members of the assembly. For determination of
the common object of the unlawful assembly, the conduct of each
of the members of the unlawful assembly, before and at the time
of attack and thereafter, the motive for the crime, are some of the
relevant considerations. What the common object of the unlawful
assembly is at a particular stage of the incident is essentially a
question of fact to be determined, keeping in view the nature of
the assembly, the arms carried by the members, and the behaviour
of the members at or near the scene of the incident. It is not
necessary under law that in all cases of unlawful assembly, with
an unlawful common object, the same must be translated into
action or be successful.
18. In Masalti v. State of U.P. a Constitution Bench of this Court
had observed that : (AIR p. 211, para 17)
’17. … Section 149 makes it clear that if an offence is committed
by any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that
object, every person who, at the time of the committing of that
offence, is a member of the same assembly, is guilty of that
offence; and that emphatically brings out the principle that the
punishment prescribed by Section 149 is in a sense vicarious and
does not always proceed on the basis that the offence has been
actually committed by every member of the unlawful assembly.'”
14.4. In Subal Ghorai, this Court, after a survey of leading cases,
summed up the principles as follows : (SCC pp. 632-33, paras 52-
53)
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“52. The above judgments outline the scope of Section 149 IPC.
We need to sum up the principles so as to examine the present
case in their light. Section 141 IPC defines “unlawful assembly”
to be an assembly of five or more persons. They must have
common object to commit an offence. Section 142 IPC postulates
that whoever being aware of facts which render any assembly an
unlawful one intentionally joins the same would be a member
thereof. Section 143 IPC provides for punishment for being a
member of unlawful assembly. Section 149 IPC provides for
constructive liability of every person of an unlawful assembly if
an offence is committed by any member thereof in prosecution of
the common object of that assembly or such of the members of
that assembly who knew to be likely to be committed in
prosecution of that object. The most important ingredient of
unlawful assembly is common object. Common object of the
persons composing that assembly is to do any act or acts stated in
clauses “First”, “Second”, “Third”, “Fourth” and “Fifth” of that
section. Common object can be formed on the spur of the
moment. Course of conduct adopted by the members of common
assembly is a relevant factor. At what point of time common
object of unlawful assembly was formed would depend upon the
facts and circumstances of each case. Once the case of the person
falls within the ingredients of Section 149 IPC, the question that
he did nothing with his own hands would be immaterial. If an
offence is committed by a member of the unlawful assembly in
prosecution of the common object, any member of the unlawful
assembly who was present at the time of commission of offence
and who shared the common object of that assembly would be
liable for the commission of that offence even if no overt act was
committed by him. If a large crowd of persons armed with
weapons assaults intended victims, all may not take part in the
actual assault. If weapons carried by some members were not
used, that would not absolve them of liability for the offence with
the aid of Section 149 IPC if they shared common object of the
unlawful assembly.
53. But this concept of constructive liability must not be so
stretched as to lead to false implication of innocent bystanders.
Quite often, people gather at the scene of offence out of curiosity.
They do not share common object of the unlawful assembly. If aSignature Not Verified
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general allegation is made against large number of people, the
court has to be cautious. It must guard against the possibility of
convicting mere passive onlookers who did not share the common
object of the unlawful assembly. Unless reasonable direct or
indirect circumstances lend assurance to the prosecution case that
they shared common object of the unlawful assembly, they
cannot be convicted with the aid of Section 149 IPC. It must be
proved in each case that the person concerned was not only a
member of the unlawful assembly at some stage, but at all the
crucial stages and shared the common object of the assembly at
all stages. The court must have before it some materials to form
an opinion that the accused shared common object. What the
common object of the unlawful assembly is at a particular stage
has to be determined keeping in view the course of conduct of the
members of the unlawful assembly before and at the time of
attack, their behaviour at or near the scene of offence, the motive
for the crime, the arms carried by them and such other relevant
considerations. The criminal court has to conduct this difficult
and meticulous exercise of assessing evidence to avoid roping
innocent people in the crime. These principles laid down by this
Court do not dilute the concept of constructive liability. They
embody a rule of caution.”
14.5. We need not expand on the other cited decisions because
the basic principles remain that the important ingredients of an
unlawful assembly are the number of persons forming it i.e. five;
and their common object. Common object of the persons
composing that assembly could be formed on the spur of the
moment and does not require prior deliberations. The course of
conduct adopted by the members of such assembly; their
behaviour before, during, and after the incident; and the arms
carried by them are a few basic and relevant factors to determine
the common object.
81. Thus, it is held that the appellants were the member of Unlawful
Assembly and they were sharing common object.
Promptness in lodging of FIR
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82. The Supreme Court in the case of Krishnan v. State, reported in
(2003) 7 SCC 56 has held as under :
17. The fact that the first information report was given almost
immediately, rules out any possibility of deliberation to falsely
implicate any person. All the material particulars implicating the
four appellants were given.
83. The Supreme Court in the case of Jarnail Singh v. State of
Haryana, reported in 1993 Supp (3) SCC 91 has held as under :
10. Apart from that if the evidence adduced on behalf of the
prosecution is accepted then whether there was immediate motive
for committing the offence loses all significance. The present
case has many special features which weigh heavily against the
accused persons and it is not easy on their part to dislodge them.
The occurrence took place before noon. The FIR was lodged at
12.30 p.m. within an hour. A copy of the FIR was received by the
concerned Magistrate by 2.15 p.m., the same day. The
Investigating Officer reached the place of occurrence before 4
p.m. Even the post-mortem examinations of the two victims were
held by two doctors mentioned above by 5.30 p.m. the same day.
In cases relating to murder the time taken in lodging the FIR
assumes special significance. The FIR being the first version of
the occurrence disclosed to the police acts as check on the part of
the prosecution. The fact that Surjit Kaur (PW 4) lodged the FIR
within an hour of the occurrence, giving the details of the manner
of occurrence lends corroboration to her testimony in court
regarding the participation of the accused persons in the present
occurrence. The manner of occurrence disclosed by Surjit Kaur
(PW 4) in the FIR was fully corroborated by the post-mortem
examination reports. She stated in the FIR at 12.30 p.m. that
accused persons after having assaulted the two victims with
gandasa and lathis, crushed them with the wheel of the truck. The
two doctors during post-mortem examinations found that injury
No. 7 on the chest of Gurbux Singh and injury No. 11 on Wasava
Singh could have been caused by the wheel of the truck passing
over the chest of Gurbux Singh and any blunt part of the truck
striking against the body of Wasava Singh. This not only
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corroborates the version disclosed by Surjit Kaur (PW 4) in the
FIR but goes a long way to establish the correctness thereof. If
Surjit Kaur (PW 4) had not witnessed the occurrence as suggested
by accused persons then how could she have mentioned in the
FIR that after assaulting the two victims the accused persons
entered into the truck and crushed the victims with the wheel of
the truck, which is supported by the post-mortem examination.
84. The Supreme Court in the case of State of U.P. v. Harban Sahai,
reported in (1998) 6 SCC 50 has held as under :
13…….In such a situation the prompt and early reporting of the
occurrence by PW 1 to the police with all its vivid details gives us
an assurance regarding truth of his version.
85. Since, the FIR was lodged within 30 minutes, therefore, the
promptness in lodging of FIR also lends credibility to the prosecution case.
Dying Declaration of Ajay
86. Vinit Goyal (PW13) is the Naib Tahsildar who had recorded the
dying declaration of Ajay @Ajju. He has stated that on 29.05.2014 he was
posted on the post of Naib Tahsildar. Before recording the dying
declaration he had taken the certificate of fitness of the patient. Then this
witness has reiterated the contents of the dying declaration. The dying
declaration is Ex. P/13C. In cross-examination, this witness has stated that
the identity of Ajay was disclosed by Doctor. In the dying declaration, it is
specifically narrated by Ajay @ Ajju that Sunny had caused injuries by
sword. The Trial Court has rightly held that the Dying declaration is
reliable and minor contradictions are not material.
87. The Supreme Court in the case of Ramesh v. State of Haryana,
reported in (2017) 1 SCC 529 has held as under :
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31. Law on the admissibility of the dying declarations is well
settled. In Jai Karan v. State (NCT of Delhi), this Court explained
that a dying declaration is admissible in evidence on the principle
of necessity and can form the basis of conviction if it is found to
be reliable. In order that a dying declaration may form the sole
basis for conviction without the need for independent
corroboration it must be shown that the person making it had the
opportunity of identifying the person implicated and is
thoroughly reliable and free from blemish. If, in the facts and
circumstances of the case, it is found that the maker of the
statement was in a fit state of mind and had voluntarily made the
statement on the basis of personal knowledge without being
influenced by others and the court on strict scrutiny finds it to be
reliable, there is no rule of law or even of prudence that such a
reliable piece of evidence cannot be acted upon unless it is
corroborated. A dying declaration is an independent piece of
evidence like any other piece of evidence, neither extra strong or
weak, and can be acted upon without corroboration if it is found
to be otherwise true and reliable. There is no hard-and-fast rule of
universal application as to whether percentage of burns suffered
is determinative factor to affect credibility of dying declaration
and improbability of its recording. Much depends upon the nature
of the burn, part of the body affected by the burn, impact of the
burn on the faculties to think and convey the idea or facts coming
to mind and other relevant factors. Percentage of burns alone
would not determine the probability or otherwise of making dying
declaration. Physical state or injuries on the declarant do not by
themselves become determinative of mental fitness of the
declarant to make the statement (see Rambai v. State of
Chhattisgarh).
32. It is immaterial to whom the declaration is made. The
declaration may be made to a Magistrate, to a police officer, a
public servant or a private person. It may be made before the
doctor; indeed, he would be the best person to opine about the
fitness of the dying man to make the statement, and to record the
statement, where he found that life was fast ebbing out of the
dying man and there was no time to call the police or the
Magistrate. In such a situation the doctor would be justified,
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man. At the same time, it also needs to be emphasised that in the
instant case, dying declaration is recorded by a competent
Magistrate who was having no animus with the accused persons.
As held in Khushal Rao v. State of Bombay, this kind of dying
declaration would stand on a much higher footing. After all, a
competent Magistrate has no axe to grind against the person
named in the dying declaration of the victim and in the absence of
circumstances showing anything to the contrary, he should not be
disbelieved by the court (see Vikas v. State of Maharashtra).
Absconsion
88. The incident took place on 29/05/2014. The appellants Raju and
Mukesh were employees, however, they absconded after the incident. The
appellant Raju Balmik was arrested on 27/11/2017 and Mukesh was
arrested on 18/12/2018 vide arrest memos Ex.P/18 and Ex.P/20
respectively. Thus, it is clear that immediately after the incident, both the
accused persons had absconded and could only be arrested after more than
three years and four years respectively.
89. The next question for consideration is as to whether the absconsion
of the accused after the incident is indicative of their guilty mind or not ?
90. Section 8 of the Evidence reads as under:-
Motive, preparation and previous or subsequent conduct.
Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit
or proceeding, in reference to such suit or proceeding, or in
reference to any fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of
any proceeding, is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact, and whether it
was previous or subsequent thereto.
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Explanation 1. – The word “conduct” in this section does not
include statements, unless those statements accompany and
explain acts other than statements, but this explanation is not to
affect the relevancy of statements under any other section of this
Act.
Explanation 2. – When the conduct of any person is relevant, any
statement made to him or in his presence and hearing, which
affects such conduct, is relevant.”
91. Therefore, the post-incident conduct of the accused is a relevant
factor. However, mere absconsion by itself is not indicative of a guilty
mind. Sometimes, under an apprehension of false implication, a person
may abscond. However, in the present case, the names of the appellants
were specifically mentioned in the FIR along with the roles played by
them. The deceased Badal had suffered three gunshot injuries with three
different exit wounds. The first gunshot was fired by Raju
Balmik/Appellant, causing an injury near the right eye of deceased Badal.
The said allegation is supported by medical evidence. Similarly,
Mukesh/Appellant had fired a gunshot causing an injury on the abdominal
region of the deceased Badal, which is also supported by medical evidence.
The FIR was lodged within half an hour, and as already pointed out by this
Court, the promptness of the FIR rules out the possibility of over-
implication. The incident started at about 9:00 a.m. and continued for three
to four minutes. Thereafter, the complainant, who himself was assaulted
and was a witness to the brutal murder of Badal and the brutal assault on
the head of Ajay, would have taken a few minutes to settle himself down
and rush to the Police Station, Kotwali. From the FIR, it is clear that the
police station is situated at a distance of 1 kilometer. The complainant
Vinod Balmik (PW-1) and Shiv Kumar (PW-4) went to the police station
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by running. Therefore, if they took about 10 to 15 minutes to reach the
police station, it cannot be said that while running they were thinking to
over-implicate innocent persons. The FIR was recorded at 9:30 a.m. Under
these circumstances, it is clear that the complainant had no time at all to
rethink about the incident and make a plan to falsely implicate any other
person. Under these circumstances, the absconsion of the appellant Raju
Balmik for more than three years and Mukesh Balmik for more than four
years is also an additional circumstance against them, which has not been
explained by the appellant Raju and Mukesh.
Recoveries
92. Mohit Verma (PW-6) stated that on 31/01/2018, the memorandum of
Raju Balmik was recorded as Ex.P/8.
93. Devendra Singh (PW7) has stated that Raju Balmik was arrested on
27/11/2017 vide arrest memo (Ex.P/9), and one country-made pistol and
two live cartridges were seized from his possession vide seizure memo
(Ex.P/10).
94. Jagdish Prasad Sen (PW8) has stated that on 31/01/2018, the
memorandum of Raju Balmik was recorded, who had voluntarily stated
that he had already handed over the country-made pistol to the police on
27/11/2017. The memorandum is Ex.P/8. From the arrest memo of Raju
Balmik (Ex.P/9), it is clear that he was arrested on 27/11/2017 at 10:50
a.m. From the seizure memo (Ex.P/10), it is clear that one .315 bore
country-made Katta with two live cartridges was seized from his
possession on 27/11/2017 at 10:30 a.m., which is just 20 minutes prior to
his formal arrest. It is clear that at the time of arrest, one .315 bore Katta
and two live cartridges were seized from the possession of the appellant
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Raju Balmik. Therefore, merely because the memorandum (Ex.P/8) was
recorded on 31/01/2018, in which appellant Raju Balmik had stated that the
weapon has already been seized by the police on 27/11/2017, merely shows
that no other weapon was seized on a disclosure made by the appellant
Raju but, the .315 bore katta and two live cartridges were seized from the
physical possession of the appellant himself at the time of his arrest. Thus,
it is clear that one .315 bore Katta and two live cartridges were seized from
the possession of the appellant on 27/11/2017 at the time of his arrest.
95. Ram Singh (PW12) is also a witness to the memorandum of Raju
Balmik (Ex.P/8).
96. Rajpal Singh (PW15), who was the independent witness of arrest of
Raju Balmik (Ex.P/18) and the seizure (Ex.P/19), turned hostile but
admitted that both documents contain his signatures.
97. Dilip Singh (PW-16) is a witness of arrest of Mukesh Balmik. He
turned hostile, but in his examination-in-chief, he admitted his signatures
on the arrest memo of Mukesh Balmik (Ex.P/20). He also turned hostile in
respect of the memorandum and the seizure from Mukesh Balmik.
98. Sher Singh (PW-20) is the Investigating Officer who had arrested
Mukesh Balmik vide arrest memo (Ex.P/20). The memorandum of Mukesh
Balmik is Ex.P/21, and on the disclosure made by Mukesh Balmik, one
.315 bore Adhiya and one live cartridge of .315 bore were seized from the
house of Mukesh Balmik vide seizure memo Ex.P/22. The .315 bore
Adhiya seized from the possession of Mukesh Balmik was identified by
this witness as Article A1, and the cartridge as Article A3, while the chit
affixed on the sealed packet containing both articles is Article A2. This
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witness also stated that he has taken permission from the District
Magistrate for prosecution of the appellant.
99. Thus, it is clear that one .315 bore Aadhiya/country-made pistol with
two live cartridges were seized from the possession of appellant Raju on
27/11/2017 i.e. while he was taken in custody by the police, whereas one
.315 bore Adhiya and one cartridge were seized on a disclosure made by
appellant Mukesh. It is true that the independent witness to the
memorandum and seizure of the weapon and cartridge from Mukesh has
turned hostile, but it is a well-established principle of law that the seizure
can be proved by official police witnesses. Merely because a witness is a
police personnel cannot be a good ground to discard his evidence.
100. The Supreme Court in the case of State, Govt. of NCT of Delhi v.
Sunil, reported in (2001) 1 SCC 652 has held as under :
20. Hence it is a fallacious impression that when recovery is
effected pursuant to any statement made by the accused the
document prepared by the investigating officer contemporaneous
with such recovery must necessarily be attested by the
independent witnesses. Of course, if any such statement leads to
recovery of any article it is open to the investigating officer to take
the signature of any person present at that time, on the document
prepared for such recovery. But if no witness was present or if no
person had agreed to affix his signature on the document, it is
difficult to lay down, as a proposition of law, that the document so
prepared by the police officer must be treated as tainted and the
recovery evidence unreliable. The court has to consider the
evidence of the investigating officer who deposed to the fact of
recovery based on the statement elicited from the accused on its
own worth.
21. We feel that it is an archaic notion that actions of the police
officer should be approached with initial distrust. We are aware
that such a notion was lavishly entertained during the British
period and policemen also knew about it. Its hangover persisted
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least initial trust on the actions and the documents made by the
police. At any rate, the court cannot start with the presumption that
the police records are untrustworthy. As a proposition of law the
presumption should be the other way around. That official acts of
the police have been regularly performed is a wise principle of
presumption and recognised even by the legislature. Hence when a
police officer gives evidence in court that a certain article was
recovered by him on the strength of the statement made by the
accused it is open to the court to believe the version to be correct if
it is not otherwise shown to be unreliable. It is for the accused,
through cross-examination of witnesses or through any other
materials, to show that the evidence of the police officer is either
unreliable or at least unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the truthfulness of such
records of the police the court could certainly take into account the
fact that no other independent person was present at the time of
recovery. But it is not a legally approvable procedure to presume
the police action as unreliable to start with, nor to jettison such
action merely for the reason that police did not collect signatures
of independent persons in the documents made contemporaneous
with such actions.
101. The Supreme Court in the case of Praveen Kumar Vs. State of
Karnataka reported in (2003) 12 SCC 199 has held as under :
21. Section 27 does not lay down that the statement made to
a police officer should always be in the presence of independent
witnesses. Normally, in cases where the evidence led by the
prosecution as to a fact depends solely on the police witnesses,
the courts seek corroboration as a matter of caution and not as a
matter of rule. Thus, it is only a rule of prudence which makes
the court to seek corroboration from an independent source, in
such cases while assessing the evidence of the police. But in
cases where the court is satisfied that the evidence of the police
can be independently relied upon then in such cases there is no
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102. The Supreme Court in the case of Yakub Abdul RazakMemon v.
State of Maharashtra, reported in (2013) 13 SCC 1 has held as under :
1737. Shri Mukul Rohatgi, learned Senior Counsel appearing for
the appellant has submitted that two panch witnesses were there,
whereas one has been examined i.e. Suresh Satam (PW 37). His
evidence cannot be relied upon for the reason that he was the
brother of a Police Constable and thus, cannot be termed as an
independent witness. Factually, it is true that the panch witness
Suresh Satam (PW 37) himself has admitted that his brother was
an employee of the Police Department of Maharashtra. Further,
merely having such a relationship does not make him disqualified
to be a panch witness, nor his evidence required to be ignored. In
Kalpnath Rai, this Court has held that the evidence of police
officials can be held to be worthy of acceptance even if no
independent witness has been examined. In such a fact situation, a
duty is cast on the court to adopt greater care while scrutinising the
evidence of the police official. If the evidence of the police official
is found acceptable it would be an erroneous proposition that the
court must reject the prosecution version solely on the ground that
no independent witness was examined. (See also Paras Ram v.
State of Haryana, Pradeep Narayan Madgaonkar v. State of
Maharashtra, Sama Alana Abdulla v. State of Gujarat, Anil v.
State of Maharashtra, Tahir v. State (Delhi), and Balbir Singh v.
State.)
103. Thus, it is held that the prosecution has successfully proved that one
.315 bore Adhiya and two live cartridges were seized from the possession
of appellant Raju, and one .315 bore Adhiya and one cartridge were seized
from the possession of appellant Mukesh.
104. Khuman Singh (PW-19) is the Armorer who examined the weapon
which was seized from the possession of appellant Mukesh. He stated that
one sealed packet was received by him containing the seal of the SHO,
Police Station Kotwali. On opening the packet, he found one .315 bore
Adhiya and one cartridge of .315 bore. The Adhiya was in firing condition,
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which could have been used for causing injury. The .315 bore cartridge was
a live cartridge. The ballistic report is Ex.P/26. The Adhiya and cartridge
were resealed and handed over to Constable No. 126 Mohit Verma along
with the report.
105. Since the Adhiya was seized after more than four years of the
incident, therefore it cannot be said that the weapon which was seized from
the possession of appellant Mukesh as well as appellant Raju Balmik were
the same weapons which were used for committing the offence.
Now, the question for consideration is that if the prosecution has failed to
prove the recovery of the weapon of offence, then whether it would be fatal
to the prosecution case or not?
106. This case is based on eyewitness account of four persons, out of
whom two are injured witnesses. The appellants Raju Balmik and Mukesh
absconded immediately after the incident, and the weapons were seized
after more than three and four years respectively. Even otherwise, if the
prosecution has failed to prove the recovery of weapon of offence, it would
not be fatal to the prosecution case, specifically when it is supported by
eyewitness accounts. The Supreme Court in the case of Gulab v. State of
U.P., reported in (2022) 12 SCC 677 has held as under:-
20. The deceased had sustained a gunshot injury with a point of
entry and exit. The non-recovery of the weapon of offences would
therefore not discredit the case of the prosecution which has relied
on the eyewitness accounts of PWs 1, 2 and 3. In Sukhwant Singh
v. State of Punjab [Sukhwant Singh v. State of Punjab, (1995) 3
SCC 367 : 1995 SCC (Cri) 524] , Dr A.S. Anand, J. (as the learned
Chief Justice then was) speaking for a two-Judge Bench held :
(SCC p. 377, para 21)
“21. There is yet another infirmity in this case. We find that
whereas an empty [sic] had been recovered by PW 6, ASI
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cartridges were seized from the possession of the appellant at the
time of his arrest, yet the prosecution, for reasons best known to it,
did not send the recovered empty [sic] and the seized pistol to the
ballistic expert for examination and expert opinion. Comparison
could have provided link evidence between the crime and the
accused. This again is an omission on the part of the prosecution
for which no explanation has been furnished either in the trial
court or before us. It hardly needs to be emphasised that in cases
where injuries are caused by firearms, the opinion of the ballistic
expert is of a considerable importance where both the firearm and
the crime cartridge are recovered during the investigation to
connect an accused with the crime. Failure to produce the expert
opinion before the trial court in such cases affects the
creditworthiness of the prosecution case to a great extent.”
(emphasis supplied)
The above extract which has been relied upon by the learned
counsel for the appellant emphasises that in a case where injury
has been caused by a firearm, the opinion of the ballistic expert is
of considerable importance where both the firearm and the crime
cartridge had been recovered during the investigation. Failure to
produce the expert opinion in such a case affects the
creditworthiness of the prosecution case.
21. However, a three-Judge Bench of this Court in Gurucharan
Singh v. State of Punjab [Gurucharan Singh v. State of Punjab,
(1963) 3 SCR 585 : AIR 1963 SC 340] , has analysed the
precedents of this Court and held that examination of a ballistic
expert is not an inflexible rule in every case involving use of a
lethal weapon. Speaking through P.B. Gajendragadkar, J. (as the
learned Chief Justice then was), this Court held : (AIR pp. 346-47,
para 19)
“19. It has, however, been argued that in every case where an
accused person is charged with having committed the offence of
murder by a lethal weapon, it is the duty of the prosecution to
prove by expert evidence that it was likely or at least possible for
the injuries to have been caused with the weapon with which, and
in the manner in which, they have been alleged to have been
caused; and in support of this proposition, reliance has been placed
on the decision of this Court in Mohinder Singh v. State
[Mohinder Singh v. State, 1950 SCC 673] . In that case, this Court
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has held that where the prosecution case was that the accused shot
the deceased with a gun, but it appeared likely that the injuries on
the deceased were inflicted by a rifle and there was no evidence of
a duly qualified expert to prove that the injuries were caused by a
gun, and the nature of the injuries was also such that the shots
must have been fired by more than one person and not by one
person only, and there was no evidence to show that another
person also shot, and the oral evidence was such which was not
disinterested, the failure to examine an expert would be a serious
infirmity in the prosecution case. It would be noticed that these
observations were made in a case where the prosecution evidence
suffered from serious infirmities and in determining the effect of
these observations, it would not be fair or reasonable to forget the
facts in respect of which they came to be made. These
observations do not purport to lay down an inflexible rule that in
every case where an accused person is charged with murder
caused by a lethal weapon, the prosecution case can succeed in
proving the charge only if an expert is examined. It is possible to
imagine cases where the direct evidence is of such an
unimpeachable character and the nature of the injuries disclosed
by post-mortem notes is so clearly consistent with the direct
evidence that the examination of a ballistic expert may not be
regarded as essential. Where the direct evidence is not satisfactory
or disinterested or where the injuries are alleged to have been
caused with a gun and they prima facie appear to have been
inflicted by a rifle, undoubtedly the apparent inconsistency can be
cured or the oral evidence can be corroborated by leading the
evidence of a ballistic expert. In what cases the examination of a
ballistic expert is essential for the proof of the prosecution case,
must naturally depend upon the circumstances of each case.
Therefore, we do not think that Mr Purushottam is right in
contending as a general proposition that in every case where a
firearm is alleged to have been used by an accused person, in
addition to the direct evidence, prosecution must lead the evidence
of a ballistic expert, however good the direct evidence may be and
though on the record there may be no reason to doubt the said
direct evidence.”
(emphasis supplied)
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22. Similarly, a two-Judge Bench of this Court in State of Punjab
v. Jugraj Singh [State of Punjab v. Jugraj Singh, (2002) 3 SCC 234
: 2002 SCC (Cri) 630] had noticed that surrounding circumstances
in the prosecution case are sufficient to prove a death caused by a
lethal weapon, without a ballistic examination of the recovered
weapon. The Court, speaking through R.P. Sethi, J., had noted :
(SCC pp. 243-44, para 18)
“18. In the instant case the investigating officer has categorically
stated that guns seized were not in a working condition and he, in
his discretion, found that no purpose would be served by sending
the same to the ballistic expert for his opinion. No further question
was put to the investigating officer in cross-examination to find
out whether despite the guns being defective the fire pin was in
order or not. In the presence of convincing evidence of two
eyewitnesses and other attending circumstances we do not find
that the non-examination of the expert in this case has, in any way,
affected the creditworthiness of the version put forth by the
eyewitnesses.”
23. The present case is not one where despite the recovery of a
firearm, or of the cartridge, the prosecution had failed to produce a
report of the ballistic expert. Therefore, the failure to produce a
report by a ballistic expert who can testify to the fatal injuries
being caused by a particular weapon is not sufficient to impeach
the credible evidence of the direct eyewitnesses.
107. The Supreme Court in the case of Amit v. State of U.P. reported in
(2012) 4 SCC 107, has held as under:-.
“17. The report of the forensic science laboratory (Ext. A-23)
confirms human blood and human sperm on the underwear of
Monika. Thus, even if the object with which Monika was hit has
not been identified and recovered, the evidence of PW 3, the
recovery of various articles made pursuant to the confession of
the appellant, the evidence of PW 5 and the report of the forensic
science laboratory, Ext. A-23 prove beyond all reasonable doubt
that it is the appellant alone who after having kidnapped Monika
committed unnatural offence as well as rape on her and killed her
and thereafter caused disappearance of the evidence of the
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conviction of the appellant under Sections 364, 376, 377, 302 and
201 IPC.”
108. Under these circumstances, even if this Court holds that the
prosecution has failed to prove the recovery of weapons of offence, still it
will not have any adverse effect on the prosecution case, specifically when
the accused persons were absconding and were arrested after more than 3
years and 4 years of the date of the offence.
109. Ajay Koli (PW-9) is the Arms clerk posted in the office of the
District Magistrate, Datia. He has proved the sanction for prosecution,
(Ex.P/11).
110. Ghanshyam Singh Tomar (PW-10) is the scribe of the FIR, who has
recorded the FIR on the information given by Vinod Balmik in Crime No.
196 of 2014 for offences under Sections 302, 307, 147, 148, 149, 294, and
323 of the IPC (Ex.P/1C).
111. Manoj Kumar Shrivastava (PW-11) is the Patwari, who prepared the
spot map on 24/08/2014 (Ex.P/12C).
112. Ram Singh (PW-12) is the witness who had arrested the appellant
Raju Balmik vide arrest memo (Ex.P/7) and had recorded the memorandum
(Ex.P/8).
Defence of the Appellant Mukesh Balmik
113. The appellant Mukesh Balmik had examined Dr. Ravindra Patel
(DW-1), who stated that he is currently posted as a Medical Officer in the
Community Health Center, Naugaon. Earlier, Dr. K.K. Ravi was posted in
the Rogi Kalyan Samiti, and since he has expired, therefore, this witness
appeared. He further stated that he was directed by the court to produce the
original record of receipt number 2303, OD number 2191 of Rogi Kalyan
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Samiti, PHC Maharajpur, the discharge ticket dated 30/05/2014 issued by
the Rogi Kalyan Samiti, as well as the document dated 01/06/2014 issued
by Dr. K.K. Ravi. He has stated that he had tried to search for the original
record of the documents relied upon by the accused, but he could not find
any register for the year 2014 pertaining to hospitalization. The receipts at
the relevant time were issued by Lakhanlal Soni, who has also expired. He
further stated that although the accused has produced Ex.D/7 (receipt),
Ex.D/8 (registration dated 27/05/2014 of Rogi Kalyan Samiti), Ex.D/9
(discharge ticket), and Ex.D/10 (fitness certificate), but in the absence of
the original documents, he cannot verify or authenticate the documents.
However, he admitted that the documents, Ex.D/7 to Ex.D/10, contain the
signatures of Dr. K.K. Ravi. According to Ex.D/7 to Ex.D/10, Mukesh had
remained hospitalized in CHC Naugaon from 27/05/2014 to 30/05/2014.
He admitted that the letter pad (Ex.D/10) is not the letter pad of the
Government hospital, but it is the private letter pad of Dr. K.K. Ravi. He
denied that a doctor posted in CHC cannot issue a certificate on his private
letter pad. He further admitted that on the fitness certificate (Ex.D/10), at
one place the date is mentioned as 30/05/2014, whereas at the bottom, the
date is mentioned as 01/06/2014. He also admitted that there is an
overwriting on the digit ‘0’ of the date 30/05/2014. He further admitted that
in Ex.D/8, the indoor number is not mentioned, but he claimed that the
registration number is mentioned. He admitted that an indoor number is
given to persons who are hospitalized. He further admitted that on Ex.D/9,
the registration and indoor numbers are not mentioned. He further admitted
that receipts like Ex.D/7 are not issued by the doctor, but claimed that such
receipts are issued by the ward in-charge; however, he admitted that Ex.D/7
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appears to contain the signature of Dr. K.K. Ravi. He further stated that he
cannot say whether Dr. Ravi prepared the documents Ex.D/7 to Ex.D/10 at
a later stage at the behest of the appellant Mukesh or not, but he admitted
that he could not retrieve the original documents from the hospital. Thus, it
is clear that the original records of the documents which were relied upon
by the appellant Mukesh were not found in the hospital. Furthermore, it
was admitted by Dr. Ravindra Patel that receipts are issued by the ward in-
charge and not by doctors, but admitted that receipt (Ex.D/7) contains the
signature of Dr. K.K. Ravi. Therefore, it is clear that Dr. K.K. Ravi must
have prepared false documents at the behest of Mukesh. Furthermore, if
Mukesh was admitted in CHC Naugaon, then there was no occasion for Dr.
K.K. Ravi to issue a fitness certificate on his private letterhead. He should
have issued on his official letterhead with dispatch number. As the original
records of the documents relied upon by the appellant Mukesh (Ex.D/7,
Ex.D/8, Ex.D/9, and Ex.D/10) could not be authenticated by Dr. Ravindra
Patel in absence of the original documents, which could not be recovered in
spite of extensive search in the hospital, this Court is of considered opinion
that the plea of alibi taken by the appellant Mukesh is unreliable.
Furthermore, it is well-established principle of law that burden lies heavily
on the accused who takes a plea of alibi.
114. Plea of alibi is a highly disputed question of fact which has to
be proved by accused by leading cogent evidence. The Supreme Court in
the case of Vijay Pal v. State (Govt. of NCT of Delhi), reported in
(2015) 4 SCC 749 has held as under :
25. At this juncture, we think it apt to deal with the plea of alibi
that has been put forth by the appellant. As is demonstrable, the
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taken by an accused, burden is upon him to establish the same by
positive evidence after onus as regards presence on the spot is
established by the prosecution. In this context, we may profitably
reproduce a few paragraphs from Binay Kumar Singh v. State of
Bihar: (SCC p. 293, paras 22-23)
“22. We must bear in mind that an alibi is not an exception
(special or general) envisaged in the Penal Code, 1860 or any
other law. It is only a rule of evidence recognised in Section 11
of the Evidence Act that facts which are inconsistent with the fact
in issue are relevant. Illustration (a) given under the provision is
worth reproducing in this context:
‘(a) The question is whether A committed a crime at Calcutta on
a certain day. The fact that, on that date, A was at Lahore is
relevant.’
23. The Latin word alibi means ‘elsewhere’ and that word is used
for convenience when an accused takes recourse to a defence line
that when the occurrence took place he was so far away from the
place of occurrence that it is extremely improbable that he would
have participated in the crime. It is a basic law that in a criminal
case, in which the accused is alleged to have inflicted physical
injury to another person, the burden is on the prosecution to
prove that the accused was present at the scene and has
participated in the crime. The burden would not be lessened by
the mere fact that the accused has adopted the defence of alibi.
The plea of the accused in such cases need be considered only
when the burden has been discharged by the prosecution
satisfactorily. But once the prosecution succeeds in discharging
the burden it is incumbent on the accused, who adopts the plea of
alibi, to prove it with absolute certainty so as to exclude the
possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any
counter-evidence to the effect that he was elsewhere when the
occurrence happened. But if the evidence adduced by the accused
is of such a quality and of such a standard that the court may
entertain some reasonable doubt regarding his presence at the
scene when the occurrence took place, the accused would, no
doubt, be entitled to the benefit of that reasonable doubt. For that
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purpose, it would be a sound proposition to be laid down that, in
such circumstances, the burden on the accused is rather heavy. It
follows, therefore, that strict proof is required for establishing the
plea of alibi.”
(emphasis supplied)
The said principle has been reiterated in Gurpreet Singh v.
State of Haryana, Sk. Sattar v. State of Maharashtra and
Jitender Kumar v. State of Haryana.
115. The Supreme Court in the case of S.K.Sattar v. State of
Maharashtra, reported in (2010) 8 SCC 430 has held as under :
35. Undoubtedly, the burden of establishing the plea of alibi lay
upon the appellant. The appellant herein has miserably failed to
bring on record any facts or circumstances which would make the
plea of his absence even probable, let alone, being proved beyond
reasonable doubt. The plea of alibi had to be proved with
absolute certainty so as to completely exclude the possibility of
the presence of the appellant in the rented premises at the
relevant time. When a plea of alibi is raised by an accused it is
for the accused to establish the said plea by positive evidence
which has not been led in the present case. We may also notice
here at this stage the proposition of law laid down in Gurpreet
Singh v. State of Haryana as follows: (SCC p. 27, para 20)
“20. … This plea of alibi stands disbelieved by both the courts
and since the plea of alibi is a question of fact and since both the
courts concurrently found that fact against the appellant, the
accused, this Court in our view, cannot on an appeal by special
leave go behind the abovenoted concurrent finding of fact.”
But it is also correct that, even though the plea of alibi of the
appellant is not established, it was for the prosecution to prove
the case against the appellant. To this extent, the submission of
the learned counsel for the appellant was correct. The failure of
the plea of alibi would not necessarily lead to the success of the
prosecution case which has to be independently proved by the
prosecution beyond reasonable doubt. Being aware of the
aforesaid principle of law, the trial court as also the High Court
examined the circumstantial evidence to exclude the possibility
of the innocence of the appellant.
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116. The Supreme Court in the case of Binay Kumar Singh v. State of
Bihar, reported in (1997) 1 SCC 283 has held as under:
22. We must bear in mind that an alibi is not an exception (special
or general) envisaged in the Indian Penal Code or any other law. It
is only a rule of evidence recognised in Section 11 of the Evidence
Act that facts which are inconsistent with the fact in issue are
relevant. Illustration (a) given under the provision is worth
reproducing in this context:
“The question is whether A committed a crime at Calcutta on a
certain date; the fact that on that date, A was at Lahore is
relevant.”
23. The Latin word alibi means “elsewhere” and that word is
used for convenience when an accused takes recourse to a defence
line that when the occurrence took place he was so far away from
the place of occurrence that it is extremely improbable that he
would have participated in the crime. It is a basic law that in a
criminal case, in which the accused is alleged to have inflicted
physical injury to another person, the burden is on the prosecution
to prove that the accused was present at the scene and has
participated in the crime. The burden would not be lessened by the
mere fact that the accused has adopted the defence of alibi. The
plea of the accused in such cases need be considered only when
the burden has been discharged by the prosecution satisfactorily.
But once the prosecution succeeds in discharging the burden it is
incumbent on the accused, who adopts the plea of alibi, to prove it
with absolute certainty so as to exclude the possibility of his
presence at the place of occurrence. When the presence of the
accused at the scene of occurrence has been established
satisfactorily by the prosecution through reliable evidence,
normally the court would be slow to believe any counter-evidence
to the effect that he was elsewhere when the occurrence happened.
But if the evidence adduced by the accused is of such a quality and
of such a standard that the court may entertain some reasonable
doubt regarding his presence at the scene when the occurrence
took place, the accused would, no doubt, be entitled to the benefit
of that reasonable doubt. For that purpose, it would be a sound
proposition to be laid down that, in such circumstances, the burden
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on the accused is rather heavy. It follows, therefore, that strict
proof is required for establishing the plea of alibi. This Court has
observed so on earlier occasions (vide Dudh Nath Pandey v. State
of U.P.; State of Maharashtra v. Narsingrao Gangaram Pimple.”
117. Considering the totality of the facts and circumstances of the case,
this Court is of the considered opinion, that the prosecution has
successfully established the guilt of the appellants beyond reasonable
doubt. Therefore, their conviction under Section 148, 302 read with
Section 149 (2 Counts) and 323 read with Section 149 of IPC (2 Counts) is
hereby upheld. Conviction of appellant Raju under section 27 of the Arms
Act and that of Mukesh under sections 25(1B)(a) and 27 of the Arms Act
are also upheld.
118. So far as the question of sentence is concerned, the minimum
sentence for offence under Section 302 of IPC is Life Imprisonment.
Hence, no interference is required in the sentence awarded by the Trial
Court, accordingly it is also upheld. The sentences awarded by the trial
Court under sections 148, 323 read with 149 (2 counts) of the IPC,
25(1B)(a) and 27 of the Arms Act are also affirmed.
119. The appellants Raju Balmik and Mukesh are in jail. They shall
undergo the remaining jail sentence.
120. Let a copy of this Judgment be sent to the Trial Court for necessary
information and compliance.
121. The Cr.A. No. 1871/2024 filed by Mukesh and Cr.A. No. 2045 of
2024 filed by Raju Bamik fail and are hereby Dismissed.
(G.S.Ahluwalia) (Anuradha Shukla)
Judge Judge
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