Madhya Pradesh High Court
Kadori @ Chunnilal 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. 6252/2017, 5631/2017,
6250/2017, 6251/2017
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. 6252 of 2017
SUNNY
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. 5631 of 2017
AKASH AND ANOTHER
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri B.K.Sharma - Advocate for appellants.
Shri Rajesh Shukla - Additional Advocate General for the State.
Shri Abhishek Tiwari - Advocate for complainant.
CRIMINAL APPEAL No. 6250 of 2017
CHUTTAN
Versus
THE STATE OF MADHYA PRADESH
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017
Appearance:
Ms. Nikita Jain - Advocate for appellant.
Shri Rajesh Shukla - Additional Advocate General for the State.
Shri Abhishek Tiwari - Advocate for complainant.
CRIMINAL APPEAL No. 6251 of 2017
KADORI @ CHUNNILAL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sankalp Sharma - Advocate for appellant.
Shri Rajesh Shukla - Additional Advocate General for the State.
Shri Abhishek Tiwari - Advocate for complainant.
JUDGMENT
Per: Justice Gurpal Singh Ahluwalia
1. By this common judgment, 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 shall be decided. It is
not out of place to mention here that two co-accused namely Mukesh and
Raju were arrested after the impugned judgment and sentence was passed
and they were tried separately. Although Cr.A. No. 2045/2024 filed by
co-accused Raju Balmik and Cr.A. No. 1871/2024 filed by Mukesh are
also listed for analogous hearing but in the light of judgment passed by
the Supreme Court in the case of A.T. Mydeen Vs. The Asstt.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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Cr.A. Nos. 6252/2017, 5631/2017,
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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, shall be
decided separately by a separate judgment.
2. All the four appeals have been filed against the judgment and
sentence dated 25.10.2017 passed by Additional Sessions Datia in ST No.
131/2014 by which the appellants have been convicted and sentenced for
the following offences :
S.No. Name of Conviction under Sentence Fine
Appellant Section
1. Aakash 148 of IPC R.I. for three
Balmik years
302/149 of IPC (2 Life Rs. 1,000/-
Counts) Imprisonment for each
(2 Counts) count in
default 1
year‟s R.I.
323/149 of IPC (2 1 year R.I. (2 Rs. 500/- for
Counts) Counts) each count
in default 3
months‟ R.I.
2. Chappa @ 148 of IPC R.I. for three
Harkishan years
302/149 of IPC (2 Life Rs. 1,000/-
Counts) Imprisonment for each
(2 Counts) count in
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017
default 1
year‟s R.I.
323/149 of IPC (2 1 year R.I. (2 Rs. 500/- for
Counts) Counts) each count
in default 3
months‟ R.I.
3. Kadori @ 148 of IPC R.I. for three
Chunnilal years
302/149 of IPC (2 Life Rs. 1,000/-
Counts) Imprisonment for each
(2 Counts) count in
default 1
year‟s R.I.
323/149 of IPC (2 1 year R.I. (2 Rs. 500/- for
Counts) Counts) each count
in default 3
months‟ R.I.
4. Sunny 148 of IPC R.I. for three
years
302/149 of IPC (2 Life Rs. 1,000/-
Counts) Imprisonment for each
(2 Counts) count in
default 1
year‟s R.I.
323/149 of IPC (2 1 year R.I. (2 Rs. 500/- for
Counts) Counts) each count
in default 3
months‟ R.I.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017
5. Chhuttan 148 of IPC R.I. for three
years
302/149 of IPC (2 Life Rs. 1,000/-
Counts) Imprisonment for each
(2 Counts) count in
default 1
year‟s R.I.
323/149 of IPC (2 1 year R.I. (2 Rs. 500/- for
Counts) Counts) each count
in default 3
months‟ R.I.
(All sentences to run concurrently)
3. The facts necessary for disposal of the present appeal, in short, are
that appellants and 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
District Datia that the accused party was on inimical terms 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 co-accused
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 co-accused Raju
Balmik, Mukesh, Akash, Chappa @ Harkishan, Chhuttan, Sunny and
Chunnilal @ Kadori. The accused persons were armed with weapons.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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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. Co-accused 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 @ Akku, his wife Anita and other
persons who had also reached on the spot have also witnessed the
incident. Shiv Kumar had also sustained injury in the incident. On the
basis of the FIR, Crime No. 196/2014 was registered for offence under
Sections 147, 148, 149, 302, 307, 323 and 294 of Indian Penal Code. The
complainant/injured Vinod Balmik, (PW1), and Shiv Kumar (PW3) were
sent for medical examination. The Investigating Officer prepared the spot
map. A merg intimation under Section 174 of Cr.P.C 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 was seized from the spot vide
seizure memo (Ex.P/6A). The injured Ajay was referred to District
Hospital, Datia. An information in that regard was also sent by Dr.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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Ujjania to the police. Dr. Ujjania had also conducted the MLC of Ajay @
Ajju. The MLC 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. On 03.06.2014, Chhuttan, Akash
Balmik and Sunny were arrested vide Arrest memo Exhibit P22 to P24.
On 04.06.2014, 0.315 Bore Adhiya with two live cartridges were seized
from Chhuttan Balmik. One 12 bore gun was seized from accused Akash.
One sword was seized from Sunny Balmik. On 27.02.2014 the co-accused
Kadori Balmik @ Chunnilal was arrested and on his memorandum Lathi
was seized. Rohit @ Golu Balmik was arrested on 11.02.2015. Chappa @
Harkishan was arrested on 25.03.2015. His memorandum was recorded
and on his disclosure one 12 bore double barrel gun with a live cartridge
as well as license of the gun were seized. The incriminating articles were
sent to the FSL, Sagar. The FSL report (Ex. P/44 to Ex. P/47) was
received. Permission was also taken from the District Magistrate, Datia,
under Section 39 of Arms Act. The statements of the witnesses under
Section 161 and 164 of CrPC were recorded. Accordingly, the police filed
a charge sheet against the appellants Aakash, Sunny and Chhuttan for
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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offence under Section 302, 307, 323, 294, 147, 148, 149 of IPC and
under Section 25 and 27 of Arms Act.
4. The appellants Rohit @ Golu, Chappa @ Harkishan and Kadori @
Chunnilal were arrested during the pendency of trial against Aakash,
Sunny and Chhuttan, and accordingly, supplementary charge sheet was
filed against them also.
5. The trial Court by order dated 13.03.2015 framed charges against
Aakash, Sunny and Chhuttan under Section 148, 294, 302 or in the
alternative 302 r/w Section 149 (2 counts), 323 or in the alternative 323,
r/w Section 149 (2 counts). By order dated 8-7-2015 similar charges were
framed against Chappa @ Harkishan, Rohit @ Golu, and Kadori @
Chunnilal. Additional charge under Section 30 of Arms Act was also
framed against Chappa @ Harkishan.
6. The accused persons abjured their guilt and pleaded not guilty.
7. The prosecution, in order to prove its case, examined Vinod Balmik
(PW1), Smt Anita, (PW2), Shiv Kumar Balmik, (PW3), Akash @ Akku
(PW4), Dr. A.K. Ojha (PW5), Manoj Kumar (PW6), Ajay Kumar Kori
(PW7), Dr. D.K.Ujjania (PW8), Hotam Singh (PW9), Vinod Tiwari
(PW10), Ghanshyam Singh Tomar (PW11), Vinit Goyal (PW12),
Narendra Balmik (PW13), Kuber Singh Rajput (PW14), Rajesh Satanakar
(PW15), Ramsia (PW16), Munna Singh Tomar (PW17), Keshav Singh
Yadav (PW18), and R. K. Singh (PW19).
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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8. Chappa @ Harkishan examined Dr. Omkar Singh Rai (DW1) in his
defence, whereas the other appellants did not examine any witnesses in
their defence.
9. The trial court by the Impugned Judgment and Sentence acquitted
Rohit @ Golu for all the offences. Similarly, Harkishan @ Chappa was
also acquitted for offence under Section 30 of Arms Act. Accordingly, the
appellants Akash, Chappa @ Harkishan, Chhuttan Balmik, Chunnilal @
Kadori and Sunny Balmik were convicted under Section 148, 302 r/w
Section 149 (2 Counts) and 323 r/w Section 149 (2 Counts) and have been
sentenced as already mentioned above.
10. It is fairly conceded by counsel for State that no appeal against the
acquittal of Rohit @ Golu has been filed. Accordingly, it is made clear
that if any reference is made in respect of Rohit @ Golu, then it would be
only with an intention to put forward the case of the prosecution only.
11. In connected Criminal Appeal No. 2045/2024, this Court while
refusing to grant bail to co-accused Raju had directed the listing of this
case for final hearing in the month of July 2026. Accordingly, counsel for
appellants were directed to argue the matter finally, but the counsel for
appellants did not argue on the pretext that they were not aware of order
dated 1-4-2026 passed in connected Cr.A. No. 2045/2024. However,
they accepted that all the Criminal Appeals are being listed together for
analogous hearing. Thus, the excuse made by counsel for appellants that
they were not aware of the order dated 1-4-2026 passed in Cr.A. No.
2045/2024 is false. However, Shri Sankalp Sharma and Shri B.K.
Sharma, counsel for Aakash, Chappa @ Harkishan and Kadori @
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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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
order to put forward the case of 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, but 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. 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? In the considered opinion of this court,
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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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 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.”
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
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13. 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
appeal by itself. In spite of that information, the counsel for appellant
Chhuttan neither uttered a single word nor filed written submission, and
all the time she 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 appellants namely Shri
Sushant Tiwari (Counsel in Cr.A. No. 2045/2024) and Shri Ashok
Jain/Ms. Nikita Jain (Cr.A. No. 6250/2017), 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.
14. 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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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some 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).
15. Accordingly this court has gone through the entire record of the
Court below as well as the written submissions provided by Shri Sankalp
Sharma, counsel for Kadori and Shri B.K. Sharma, counsel for Aakash
and Chappa @ Harkishan.
16. Shri Sankalp Sharma, counsel for Kadori @ Chunnilal filed his
written submissions, and relied upon judgments passed by the Supreme
Court in the cases of Ranvir Yadav Vs. State of Bihar, reported in
(2009) 6 SCC 595, Arif Vs. State of Rajasthan reported in 2023 INSC
947, Ganesh Bhavan Patel and another Vs. State of Maharashtra
reported in AIR 1979 SC 135, Parminder Kaur Vs. State of Punjab
reported in 2020 INSC 467, Kishore and others vs. State of Punjab
reported in 2024 INSC 91, and Vijay Singh Vs. State of M.P. reported in
2004(4) MPLJ 543. Similarly, Shri B.K. Sharma, Counsel for Aakash
and Chappa @ Harkishan (Criminal Appeal No. 5631 of 2017,) has relied
upon judgment passed by Supreme Court in the case of Murugesan and
Ors v. State through Inspector of Police reported in AIR 2013 SC 274 ,
Zainul v. State of Bihar 2025 INSC 1192, Arvind Kumar @
Nemichand Vs. State of Rajasthan decided by Supreme Court in
Criminal Appeal No. 753 of 2017. In a written submission filed by Shri
Sankalp Sharma who has appeared on behalf of appellant Kadori it has
been mentioned that there are discrepancies in the evidence of the
witnesses. The spot map does not specify as to where the incident took
place. In fact, there are material contradictions in relation to the place or
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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the spot where the entire incident took place. It is mentioned that Vinod
(PW1) has stated that as soon as they reached in front of the house of
Maithili, Raju, Aakash, Mukesh and all in furtherance of common object
insisted for compromise, whereas Sunita (P.W.2) has stated that as soon
as they reached in front of the house of Maithili, they were surrounded by
the accused persons. Shiv Kumar (PW3) has stated that as soon as they
reached in front of the door of Maithili, the accused persons were there
along with their respective weapons. Aakash @ Akku (PW4) has stated
that as soon as they reached near the triangle situated near the house of
Maithili, the accused persons met them. Thus, it is the submission of the
counsel for Kadori that there are material contradictions in the statements
of witnesses with regard to the place of incident. It is submitted that in
view of the prior animosity, the aforesaid discrepancies assume
importance. It is further submitted that the deceased Ajay, in his statement
(Ex. D/7 and Ex. D/6) had narrated that the place of incident is near the
door of house of Prakash. It is the case of appellant Kadori that Ajay had
not stated that Chunnilal @ Kadori had caused any injury to Vinod.
According to Shri Sankalp Sharma, Advocate, there was no pre-planned
incident or intent on the part of the accused persons. The name of Kadori
was involved at a later stage just in order to involve all the family
members. It is further submitted that there is a serious discrepancy about
the presence of the witnesses on the spot. It is further claimed in the
written submission that as the witnesses are related to each other,
therefore, minute scrutiny of their evidence is required. It is further
submitted that the prosecution has failed to prove that the accused persons
were a member of Unlawful Assembly and they were sharing any
common object. It is further submitted that the death of Ajay was not on
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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account of injury caused to him, but he died on account of complications
due to injury. It is further submitted that the statements of the witnesses
except Vinod (PW1) were recorded after 25 days and the delay in
recording the statement of the witnesses assumed importance in the light
of the fact that all the witnesses were related to the deceased persons. The
counsel for appellant has also submitted that conviction under Section 148
and 149 of IPC cannot be upheld in absence of 5 persons. Shri B.K.
Sharma, Advocate in his written submission has stated that there are
material discrepancies in the evidence of the witnesses. No 12 bore fired
cartridge was seized from the spot. No injury was sustained by anybody
from a gunshot fired from 12 bore gun. The independent witnesses who
were the residents of the locality were not examined. In fact Chappa @
Harkishan was admitted in hospital and the trial court has not considered
his plea of alibi.
17. Per contra, it is submitted by counsel for State that the prosecution
has proved its case beyond 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.3) are the injured witnesses. Therefore their presence
on the spot is un-doubtful. It is further submitted that the appellants could
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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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.
18. 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 Aakash, Chappa @ Harkishan and filed by Shri Sankalp Sharma,
Counsel for Kadori.
19. The first question for consideration is as to whether the death of
Badal and Ajay is homicidal in nature or not?
20. Dr. D. K. Ujjania (PW8) 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 :
(1) Incised wound transversally mid parietal region size 5 x ½ x bone
deep over the skull bleeding present left side;
(2). Incised wound size 6 x ½ x bone deep over the right parietal region of
scalp, transversely obliquely bleeding present;
(3). Incised wound size 4 x ½ x ½ cm left side of parietal region. Pain &
tenderness of the left leg;
(4) Contusion size 5 x 3 inch over the right forearm wrist .
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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21. The MLC report of Ajay @ Ajju is Ex. P/10. According to Dr.
Ujjania (PW8), the injuries no. 1, 2 and 3 were caused by hard and sharp
object, whereas injury no. 4 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. It was further
stated by him that the dying declaration of the injured was recorded by
Tahsildar Vinit Goyal and he had given the fitness certificate of Ajay @
Ajju. The signature of this witness on the dying declaration Ex. P/16 were
at A to A. This witness was cross-examined.
22. In cross examination, he had stated that it took about 5 to 10
minutes to medically examine the injured Ajay and prepare the MLC. He
also stated that he had not enquired from the person who had brought the
injured Ajay to hospital about the history of the case. He has further stated
that he had not given any opinion about the nature of the injuries and he
had merely advised X-ray. He also stated that before the arrival of the
police, he did not try to record the statement of Ajay, although he was free
to do so. He further stated that the injury no. 1 was present over the left
side of the parietal region of the injured Ajay. When a specific question
was put to this witness as to whether the injuries nos. 1 and 2 can be
caused to Ajay in case if the assault is made from the front or not, then it
was submitted by this witness that in case if the injured bends down, then
he can sustain injuries no. 1 and 2. He further admitted that all the 3
incised wounds cannot be caused by a single blow. Later on this witness
also proved the X-ray report of the injured Ajay and accordingly he had
stated that he had not found any a fracture on the wrist of the left hand of
Ajay whereas he had found a Fracture of occipital bone and of right
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
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forearm. In cross examination, he admitted that the x-ray plates were
brought to him and on that basis he had given the x-ray report. Thus it is
clear that 3 incised wounds, pain and tenderness and one contusion were
found on the body of injured Ajay.
23. Later on, Ajay expired on 08.06.2014 and accordingly Dr. A. K.
Ojha (PW5) conducted post mortem of the dead body of the deceased. In
the post mortem report Exhibit P6, the following injuries were found :
(i) Healed wound found at occipital region 5 x 4 cm in measuring,
conical in shape (V shape).
(ii) 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. Mother 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.
24. In cross examination, it was stated by this witness that he
does not know as to whether any CT scan of the deceased was done or
not. The deceased was referred from Datia to Gwalior and his
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treatment was done at Gwalior. Healed wound means that the upper
part of the injury had started getting healed. However, he further stated
that the weapon was not sent by the police and the callous formation
was not found. No question with regard to the cause of death was put
to this witness. Thus this Court is of the considered opinion that
looking to the nature of injuries which were sustained by the deceased
Ajay as well as the cause of death disclosed by Dr. A. K. Ojha (PW5),
it is clear that Ajay died a homicidal death on account of injuries
caused to him by means of a sharp and aged weapon.
25. 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.8). Dr. D. K. Ujjania found
the following injuries on the body of the deceased Badal:
1. Entrance wound size 2.5 x 2 cm situated over abdominal in
umbilicus region in the left side 0.3 cm away from umbilicus. Inferio
lateral from umbilicus margin of the wound inverted, lacerated.
Blackening of the margin are present around the wound. Wound track
deep directed upward and laterally containing exit wound No. 1.
Clotted blood present inside the track of wound.
2. 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 seen. Track
direction upward and medially continued exit wound no.2. Clotted
blood was present inside the track.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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(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). The first exit wound was of 4 into 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) The 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 x 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 continued with
the entrance wound no. 3. Structure like eye wall was absent.
On internal examination plastic cap was found on wound No. 2 of Exit
Wound 2.5 cm long diameter 2 cm which was preserved and handed
over to the police constable. According to Dr. D. K. Ujjania (P.W.8),
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/15. This witness was cross
examined and in cross examination this witness has stated that the
plastic cap was not found from the cloths of the deceased but it was
found by the side of the exit wound. He further stated that the injuries
no. 1, 2 and 3 which were sustained by the deceased were not caused
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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from front. 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.3) had
sustained injuries?
26. Dr. D.K. Ujjania (P.W.8) had medically examined Shiv Kumar
(P.W.3) and found following injuries on his body :
(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/13.
27. Dr. D.K. Ujjania (P.W.8) had examined Vinod Balmik (P.W.1) and
found following injuries on his body:
(i) Contusion 4x4 cm on the left elbow joint
(ii) Pain @ Tenderness of left knee joint, but not swelling and redness
seen;
(iii) Abrasion middle finger 2x1/4x1/4 cm with redness.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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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/12
28. Thus, it is clear that Vinod Balmik (P.W.1) and Shiv Kumar
(P.W.3) had also sustained injuries.
29. The next question for consideration is that who are the author of the
injuries caused to deceased Ajay and deceased Badal as well as to the
injured Vinod Balmik (P.W.1) and Shiv Kumar (P.W.3)?
30. Vinod Balmik (PW1), has stated that Chhuttan, Sunny and Aakash,
who are present in the Court (the remaining accused persons were
absconding at that time), were known to him. He has also stated that the
deceased Badal, Ajay and injured Shiv Kumar are also known to him. 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, Shiv Kumar, Akku 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. In furtherance of common
object, they came nearer to the witness and the deceased and by abusing
them started scolding. At that time 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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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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. Incident was also witnessed
by Shiv Kumar, Akash, Akku and Anita. He had further stated that he and
Shiv Kumar had also sustained injuries. The accused party had attacked
the complainant party on account of old enmity. This witness has also
stated that one case was pending in the court of CJM in which their
evidence was to be recorded. The accused party was pressurizing this
witness to enter into a compromise. The FIR is Ex. P/1. The spot map is
Ex. P/2. It was further stated that the accused party had killed his nephew
Badal in respect of which a merg intimation Ex. P/3 was given by him.
This witness was sent for medical examination. His statement under
Section 164 of CrPC was recorded. This witness was not cross examined
on 21.04.2015. However, he was cross examined on 05.06.2015 as the
case was adjourned at the request of the accused Sunny, Chhuttan and
Akash. On 5-6-2015, this witness was cross examined in detail. In cross
examination, this witness has stated that as soon as they reached in front
of the house of Maithili, they were scolded and challenged by the accused
party and it was stated by them that in case if they do not enter into a
compromise, then they will be killed. When this witness refused to enter
into compromise then Chunnilal @ Kadori started assaulting him. He was
medically examined at about 11:00 a.m. It was further stated that after he
refused to enter into compromise, the first gunshot was fired by Raju
causing injury to Badal. Ajay was assaulted by sword by Sunny. Ajay and
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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Badal had also refused to enter into a compromise. All the three persons
had fired gunshot in furtherance of common object. The gunshots were
fired from a distance of 2 to 4 feet. Although he had shouted for help but
nobody came forward to help them out. As he too was being assaulted
therefore he could not save the deceased persons. Since the gunshots were
being fired therefore, how his wife and other persons could have
intervened in the matter. When Raju had fired at Badal, this witness was
at a distance of 10 to 15 feet. First gunshot was fired by Raju causing
injury to Badal and immediately thereafter Mukesh and Chhuttan had
fired gunshot causing gunshot injuries in the abdominal region of Badal.
Ajay was lying on the spot in an unconscious condition. The incident
continued for 1.5 to 2 minutes. The Lash panchanama of Badal was
prepared which was signed by this witness and Ajay was taken away by
the police. He further denied that they have falsely implicated the accused
on account of enmity. In further cross examination on 06.06.2015 this
witness stated that he was not having any mobile phone. Ajay, Balmik and
Badal were already married. However they are his nephews. Ajay is the
grandson of his Tau (elder brother of father of this witness) and
accordingly he was his nephew by relation. This witness were five
brothers out of which only two are surviving and remaining three have
expired. He further stated that the families of three brothers reside jointly
whereas the family of two brothers reside separately. He further stated
that he had informed the police that Sunny had assaulted on the head of
Ajay for 3 to 4 times but he could not explain as to why the said fact is not
mentioned in his police statement. The injured Ajay was taken to Gwalior
Hospital by his mother. However, he could not disclose the names of the
other attendants. He further stated that after Ajay was discharged from
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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Gwalior hospital, he came back to Datia. However, 10 to 11 days
thereafter, Ajay had died. At the time of occurrence, he, his wife Anita,
Shiv Kumar and Akash were standing at some distance. When the gun
shots were being fired, they were standing at a distance of 10 to 12 feets.
This witness was further cross examined. He further stated that he rushed
towards the police station to lodge the FIR. He reached to the police
station at about 09:25 a.m. He denied the suggestion that the SHO had
advised him that before lodging of FIR, they will look at the place of
occurrence. He denied that he had not lodged the FIR. He further stated
that he is also having a licensed gun and at the time of occurrence it was
in his house. Although his house is situated at a distance of 200 meters,
but as he too was being assaulted therefore he could not rush to the house
to take the gun. Thereafter on 19.11.2015 the accused Rohit @ Golu,
Chappa @ Harkishan and Kadori @ Chunnilal were arrested. On
19.11.2015 this witness was once again examined and cross examined in
respect of co-accused Rohit @ Golu (acquitted accused), Chappa @
Harkishan and Kadori @ Chunnilal. He reiterated the incident once again
and claimed that when he refused to enter into a compromise then Raju,
Mukesh and Chhuttan had fired gunshot from their .315 Bore Adhiya
causing injury near the eye and the abdominal region of Badal. Sunny had
assaulted Ajay by sword thereby causing injuries to him. This witness and
Shiv Kumar had also sustained injuries. This witness was cross examined.
He admitted that the injured Shiv Kumar is his nephew. However claimed
that Shiv Kumar does not reside with him, but he resides in a separate
house which is situated nearby. Although this witness was cross examined
in detail but from reading of the cross examination, it appears that the
accused Chappa @ Harkishan and Kadori @ Chunnilal could not elicit
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SHRIVASTAVA
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any circumstance which may make the evidence of this witness
unreliable. In cross examination, he had stated that Ajay and Badal were
lying at a distance of 15 feet. At the time of preparation of the spot map,
Ex. P/2, he had disclosed the place where Badal and Ajay were lying. At
the time of preparation of spot mark Ex. P/2, Badal and Ajay were already
lying on the spot. While the police was taking away Ajay, he did not
noticed as to whether he was accompanied by his family member or not.
He denied that by the time, the police reached on the spot, Ajay was
already shifted to district hospital, Datia. When the police reached to the
spot, Shiv Kumar was not present. He further stated that he and Shiv
Kumar were not medically examined at the same time. He stated that Shiv
Kumar was medically examined after his medical examination. Ajay was
referred to Gwalior on the same day. He admitted that he did not go to
Gwalior to see Ajay. He also admitted that he did not make any
arrangement for shifting Ajay to hospital, but explained that he had gone
to police station to lodge the FIR. He further stated that he had seen
Chappa and other co-accused persons from a distance of distance of 5 to 7
feet. His wife was about 5 to 10 steps back. Akku @ Akash was at a
distance of 5 to 10 feet from this witness. Whereas Shiv Kumar was
walking ahead of this witness. He did not try to run or take a shelter
because he could not get any time for the same. He further admitted that
Chappa and his family members were not an accused in the case in which
the accused persons were pressurizing the complainant to enter into
compromise. However, he claimed that all the accused persons are related
to each other. He further admitted that his brother Chandra Prakash was
killed in the year 2004 in which Rajkumar, Mukesh and Raju were
accused. He denied that police had found that Raju was not involved. The
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SHRIVASTAVA
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wife of Ajay had expired about 3 years prior to the death of Ajay. He
further admitted that about 4 to 5 years back he was prosecuted for
assaulting one Parakh Adivasi.
31. Anita (PW2) is another eyewitness. She had stated that there was
old enmity between them and accused. However, she is not aware of the
fact as to whether any criminal case is pending or not. She further stated
that on 29.05.2014 at about 09:00 a.m., she was returning back from
market along with her husband Vinod, Badal, Akku @, Akash, 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 incident was witnessed by Vinod, Shiv Kumar,
Badal, Akko and Ajay. Her statement under Section 164 (Ex. P/5) was
also recorded.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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32. The cross examination of this witness was deferred at the request of
accused Sunny, Chhuttan and Akash. This witness had also stated that
Chhuttan, Sunny and Akash are known to her. On 05.06.2015 she was
cross examined. She has stated that on account of sad demise of her
mother-in-law she was on leave. Her mother-in-law had expired on
25.05.2014. Ajay, Badal are the sons of her Jeth and accordingly they are
her nephew. Shiv Kumar is also nephew. Akku is also her nephew. The
house of Maithili is approximately 100 to 200 steps away from the house
of this witness. Shiv Kumar does not reside with them. The house of Shiv
Kumar is in her neighbourhood. The accused party is not related to this
witness. She further stated that on the date of occurrence she had left her
house at about 08:00 to 08:30 a.m. to purchase vegetables. It took about
10 to 15 minutes to reach to the vegetable Market. Her husband had
already left the house. While she was coming back she met with her
husband near Bhairav Mandir. It took about 10 to 15 minutes for her to
reach to vegetable Market and again took 5 to 10 minutes for purchasing
vegetables and 10 to 15 minutes for returning back. All these persons
were returning back together. When she met with her husband, Shiv
Kumar and Akku were also there. She further stated that initially Raju had
abused Vinod and insisted for compromise with a threat that otherwise
they will be killed. Chunnilal had assaulted Vinod causing injury on his
hand and leg. Thereafter Raju fired gunshot causing injury near the eye of
Badal. She could not run away as they were already surrounded by the
accused persons. No one residing in the vicinity came out of their house.
It was stated that prior to abusing the witnesses, no gunshot was fired in
air. Since the accused persons had started assaulting them, therefore they
could not run away. Sunny had assaulted Ajay from the front. She further
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stated that after the incident she rushed to her house and did not go to the
police to lodge the FIR.
33. Thereafter it appears that accused Rohit @ Golu, Chappa @
Harkishan and Kadori @ Chunnilal were arrested and accordingly the
evidence of this witness was once again recorded on 23.09.2015 and in
the examination-in-chief as well as the cross-examination she narrated the
same theory. This Court has gone through the cross-examination of this
witness and does not find any material omissions or contradictions or
improvement in the evidence of this witness. She had stated that she did
not go to Gwalior to see Ajay @ Ajju. She further stated that after the
first gunshot was fired, she did not try to run away from the spot or did
not try to save herself by lying down on the ground. She explained that
she did not get any opportunity or time for the same. She further stated
that she had narrated to the police that Raju had abused her husband and
had threatened to enter into a compromise, but could not explain as to
why that fact was not mentioned in a police statement Ex D1.
34. Shiv Kumar (PW3) is also an injured witness. He has also narrated
the incident in the same manner. It was stated by Shiv Kumar that on
29.05.2014 at about 09:00 a.m. he was returning back to his house. He
met with Badal, Ajay and Vinod near Chungar Fatak. As soon as they
reached near the door of the house of Maithili, Raju, Mukesh and
Chhuttan were having Adhiya, Akash and Chappa were having 12 bore
gun, Sunny was having sword, Kadori was having lathi. All the accused
persons scolded Vinod and threatened him to enter into a compromise
otherwise they will be killed. Immediately thereafter Kadori @ Chunnilal
started assaulting Vinod by Lathi. As a result he sustained injuries on the
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SHRIVASTAVA
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elbow and knee of his hand and leg. Raju fired a gunshot causing injury
near the eye of the deceased Badal. Mukesh also fired a gunshot causing
injury on the abdominal region of Badal. Chuttan also fired causing injury
on abdominal region of Badal. Badal fell down on the spot. Sunny
assaulted Ajay by means of sword. Chappa @ Harkishan and Akash
assaulted this witness by the handle of the gun. The incident was also
witnessed by Anita and Akash. The complainant party was attacked by the
accused persons on account of old enmity. He had identified the dead
body of Badal in the hospital. The requisition for post mortem is Ex P/6.
Safina form for lash panchanama of Badal (Ex P/7) contains his
signature. The lash panchanama of the dead body of Badal (Ex. P/8) was
prepared. He was also got medically examined.
35. This witness was cross examined by Chhuttan, Sunny and Kadori.
He admitted that Vinod is his real maternal uncle, whereas Ajay is his
cousin brother being the son of his maternal uncle. Vinod Ajay and this
witness reside in different houses, but in the same vicinity. The house of
Vinod is approximately 200 to 250 feet away from the house of this
witness. The house of Ajay is approximately 100 feet away from the
house of this witness. On the date of incident he was on his duty and he is
a Safai Karamchari. He claimed that he was a witness in a case which
was registered against the accused party on the allegation of assaulting
Ajay. He further stated that till the date of incident he had not received
any summons from the Court. He further stated that he and Vinod (PW1)
went to the police station to lodge the FIR. Since he was in pain, therefore
he was sitting outside the police station and the FIR was lodged by Vinod.
He further stated that till 23.06.2014 he did not make any complaint to the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 16-07-2026
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police to the effect that he is also an eyewitness therefore and the police is
not recording his statement. He did not go to the place where the dead
body of Badal was lying and clarified that he had gone to the police
station. He further stated that his statement under Section 161 of CrPC
was recorded on 23.06.2014. However, he could not explain as to why the
allegation that he was assaulted by Chappa and Akash by the handle of
the gun was not mentioned in his police statement Ex D/3 and statement
under Section 164, Ex. D/4. He further stated that the house of Maithili is
not visible from Chungar Fatak as it is slightly on the side. About 2 to 3
minutes are required for reaching to the house of Maithili from Chunagar
Fatak. He denied that lot of houses and shops are situated between
Chungar Fatak and the house of Maithili. But he later on clarified that
shops are not situated but houses are situated. He further stated that when
they reached in front of the door of the house of Maithili, Vinod was
ahead of them and other witnesses were along with him. He could not
count that how many Lathi blows were given by Chunnilal to Vinod. He
did not try to catch the sword. He further claimed that nobody got any
time to save each other. He did not try to shift Ajay to the hospital.
However, he claimed that they had rushed to the police station by saving
themselves. He could not explain as to why the presence of Anita and
Akash was not mentioned in his police statement under Section 161 of
CrPC. Ex D/3. He further stated that after noticing the accused persons, he
did not run away as they were surrounded by the accused. He further
admitted that during the on-going assault, he did not rush to police station,
Kotwali. He further stated that he too was assaulted. The entire incident
took place in a single transaction. Akash had assaulted him by the handle
of the gun for five or six times. He had suffered contusions. He was not
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hospitalized and he had not suffered any fractures. He denied that he was
not assaulted by Akash and he did not receive any injury. The incident
took place in front of the door of the house of Maithili.
36. Akash @ Akko (PW4) is the another eyewitness. This witness has
also narrated the incident in the same manner in which it has been
narrated by Vinod (PW1)), Anita (PW2) and Shiv Kumar (PW3). He has
stated that on 29.05.2014 at about 09:00 a.m. he was returning back from
Thandi Sadak. He met with Badal, Vinod Ajay and Shiv Kumar near the
Bhairavji temple. Anita was following them. As soon as they reached in
front of the door of the house of Maithili, they met with the accused
persons. Raju, Mukesh and Chhuttan were having 0.315 bore Adhiya
whereas Sunny was having sword. Chunnilal was having lathi and Chappa
@ Harkishan and Akash were having 12 bore guns. Raju fired a gunshot
from his 0.315 bore adhia causing injury on the face of Badal whereas
Chhuttan fired a gunshot from his 0.315 bore adhia causing injury on the
abdominal region of Badal. Mukesh also fired a gunshot from 0.315 bore
Adhiya causing another injury on the abdominal region of Badal.
Chunnilal had assaulted his uncle Vinod causing injury on his hand and
leg and finger of his right hand. Sunny had assaulted Ajay by means of a
sword causing injury on his head. The blood had started oozing out and
accordingly he fell down. Akash had assaulted Shiv Kumar on his chest
by means of the handle of his gun. Akash and Chappa @ Harkishan had
fired gunshots from their 12 bore gun towards the witnesses. However the
witnesses ran away for saving their lives. The accused persons were
insisting to compromise in the matter and only on that issue the incident
was committed by the accused persons. Badal expired on the spot. This
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witness was also cross examined in detail by the accused persons.
However they also could not elicit any material circumstance to show that
this witness is not reliable.
37. Thus it is clear that the prosecution has examined four eyewitnesses
namely Vinod, (PW1), Anita (PW2), Shiv Kumar (PW3) and Akash @
Akku (PW4). Vinod (PW1) and Shiv Kumar ((PW3)) are the injured
eyewitnesses whereas Anita is the wife of Vinod (PW1) and Akash is also
the relative of Vinod (PW1).
38. Challenging the reliability and credibility of the above mentioned
four eye witnesses, it is the stand of the appellants that since, all of them
are related witnesses, therefore, they are not reliable. It is also the stand
of the appellants that except Vinod (P.W.1), the police statements of Anita
(P.W.2), Shiv Kumar (P.W.3) and Akash @ Akku (P.W.4) were recorded
after 25 days, therefore, they are not reliable witnesses. It is also the stand
of the appellants that there are material discrepancies in the evidence of
these witnesses regarding the place of occurrence. There was an admitted
enmity between the parties, therefore, the witnesses are not reliable. The
presence of the witnesses on the spot is doubtful.
39. Considered the stand/defence taken by the appellants.
Related witnesses
40. Before considering the defence that all the four eye witnesses are
related witnesses, this Court would like to consider the law governing the
field.
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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…….
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‟.”
22. 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
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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.
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
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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 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
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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 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.”
29. The sum and substance is that the evidence of a related or
interested witness should be meticulously and carefully
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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.”
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 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‟.”
From the above it is clear that “related” is not equivalent to
“interested”. The witness may be called “interested” only when
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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 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
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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)
“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
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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.‟* “
The Supreme Court in the case of Sudhakar v. State, reported in
(2018) 5 SCC 435 has held as under :
16. 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.”
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
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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.
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 there is no independent witness, but the evidence available
on record does inspire confidence and the appellant has not been
able to shake the credibility of the eyewitnesses: there is not
even any material contradiction in the case of the prosecution.
41. Thus, it is clear that there is a distinction between “Related witness”
and “interested witness”. However, Court should examine the evidence of
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6250/2017, 6251/2017a 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.
42. Furthermore, it is also true that now a days, the independent
witnesses do not 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 :
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.
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 to say that testimony of PW Sanjay, an eyewitness, who
received 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 andSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017perverse. 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.
43. 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 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.
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44. If the evidence of Vinod Balmik (P.W.1), Anita (P.W.2), Shiv
Kumar (P.W.3) and Akash @ Akku (P.W.4) 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 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/1). 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 Cr.P.C. 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.3) and Akash @ Akku
(P.W.4) is reliable.
Discrepancies in the evidence of eye witnesses
45. Shri Sankalp Sharma, Advocate has tried to highlight certain
contradictions/ discrepancies in the evidence of four eye witnesses. It isSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017the 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 waylaid and they were threatened to enter into a compromise
otherwise they will be killed. It is submitted that Sunita @ Anita (PW2)
has stated that as soon as they reached in front of the house of Maithili,
they were surrounded by the accused persons. Shiv Kumar Balmik (PW3)
has stated that as soon as they reached in front of the door of the house of
Maithili the accused persons came there. Akash @ Akku (PW4) has stated
that as soon as they reached near the tri-junction situated near the house of
Maithili, the accused persons met them. By referring to the statement of
Deceased Ajay @ Ajju recorded under Section 161 of CrPC (Ex.D/7), it is
submitted that Ajay @ Ajju had stated that the incident took place near
the house of Prakash. Thus, it is submitted that the witnesses have
miserably failed to prove the place of occurrence beyond reasonable
doubt.
46. Considered the aforesaid submission.
47. The spot map is Ex. P/8. 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.6 ). In
his examination-in-chief he has stated 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, theSignature Not Verified
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47
NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017minor 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. It was never stated by Ajay that the
incident took place in front of the house of Prakash Balmik. Thus in the
considered opinion of this Court there is no discrepancy in the evidence of
the witnesses with regard to the place of occurrence. Furthermore, it is
well established principle of law that minor discrepancies are not to be
given undue importance.
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.
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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
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.]Signature Not Verified
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49
NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017The 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
carefully perused their evidence. Their evidence appears to be
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.
Thus the submission made by counsel for Kadori that there is a
material discrepancy with regard to the place of incident is misconceived
and is hereby rejected.
Whether incident took place all of a sudden
48. It is the defence of the appellant Kadori @ Chunnilal, that the
incident took place all of a sudden without any premeditation.
49. Considered the submissions made by Counsel for the appellant
Kadori @ Chunnilal.
50. 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 toSignature Not Verified
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50
NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017enter 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 and accordingly, the submission that the incident took place
all of a sudden fails and is hereby rejected.
Delayed recording of police statements
51. It is next contended by counsel for appellants that although the
police statement of Vinod Balmik (P.W.1) was recorded immediately, but
the police statements of Anita (P.W.2), Shiv Kumar (P.W.3) and Akash @
Akku (P.W.4) were recorded belatedly, therefore, their evidence is not
reliable as they had sufficient time to falsely implicate the appellants.
52. Considered the submission made by Counsel for appellants.
53. The Police Statement of Anita (P.W.2) was recorded on 23-6- 2014
(Ex. D.1), Police Statement of Vinod Balmik (P.W.1) was recorded on 29-
5-2014 (Ex. D.2), the Police Statement of Shiv Kumar (P.W.3) was
recorded on 23-6-2014 (Ex. D.3) and Police Statement of Akash @ Akku
(P.W.4) was recorded on 23-6-2014 (Ex. D.4). 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.3) and Akash @ Akku
(P.W.4) were recorded after 25 days.
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54. It is not out of place to mention here that the names of Anita
(P.W.2), Shiv Kumar (P.W.3) and Akash @ Akku (P.W.4) are mentioned
as eye-witnesses in the FIR (Ex. P/1). Shiv Kumar (P.W.3) was also an
injured witness who was medically examined by Dr. D.K. Ujjania (P.W.8)
on 29-5-2014 itself on the requisition sent by police (Ex. P/13). Thus, it is
clear that Shiv Kumar (P.W.3) was available with the police, but the
investigating officer, did not record his Police Statement.
55. Munna Singh Tomar (P.W.17) is the Investigating Officer. No
question was put to this witness with regard to delayed recording of Police
Statements of Anita (P.W.2), Shiv Kumar (P.W.3) and Akash @ Akku
(P.W.4).
56. 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 are 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.
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017The 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.
57. 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), Shiv Kumar (P.W.3)
and Akash @ Akku (P.W.4) were mentioned in FIR (Ex. P/1) as eye
witnesses, but Shiv Kumar (P.W.3) 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 29-5-2015 i.e., the date of occurrence. Therefore,
under these circumstances, it is held that in absence of any question to the
Investigating officer Munna Singh Tomar (P.W.17) as well as the un-
doubtful presence of eye witnesses on the spot, the delayed recording of
Police Statements of Anita (P.W.2), Shiv Kumar (P.W.3) and Akash @
Akku (P.W.4) will not make their evidence unreliable.
Enmity
58. It is submitted by counsel for the appellants that since, there was an
enmity between the parties, therefore, the appellants have been falsely
implicated.
59. Considered the submissions made by Counsel for appellants
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60. 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.3) was assaulted by the handles of gun by Aakash and
Chappa @ Harkishan. 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), Shiv Kumar (P.W.3) and Akash @ Akku
(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.
61. 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
the accused persons on account of previous existing enmity
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
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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.
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 judgment 1. 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
adduced at the trial as also the submissions made by the learned
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 wasSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017previous 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.
Whether appellants were members of Unlawful Assembly and have
committed the offence in furtherance of Common Object
62. 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 and Chappa @ Harkishan 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 Sunny but to injured witnesses
Vinod Balmik (P.W.1) and Shiv Kumar (P.W.3).
63. 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 theSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017unlawful 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. 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
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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 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
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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.
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 during the continuance of
the occurrence, rests upon the fact 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
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6250/2017, 6251/2017assembly 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)
“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
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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 a 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
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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.
64. Thus, the contention of the counsel for the appellants that the
appellants were not the member of Unlawful Assembly and they were not
sharing common object is rejected being misconceived.
Promptness in lodging of FIR
65. 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
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6250/2017, 6251/2017falsely implicate any person. All the material particulars
implicating the four appellants were given.
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 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
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truck and crushed the victims with the wheel of the truck, which
is supported by the post-mortem examination.
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.
Dying Declaration of Ajay
66. Vinit Goyal (PW12) 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. At the
time of recording of evidence nobody else was present. Then this witness
has reiterated the contents of the dying declaration. The fitness certificate
after the conclusion of the dying declaration was also obtained. The dying
declaration is Ex.P/16. In cross-examination, this witness has stated that
he had received the requisition from police at about 10-10.30 AM. He had
received the requisition from the office of Town Inspector, Kotwali. As
soon as he received the requisition, he went to record the statement. He
reached the District Hospital, Datia, at about 11:00-11: 15 A.M. He had
informed the doctor that he has come to record the dying declaration of
the deceased. He admitted that when he reached to the patient, lot of
persons were standing there. Ajay Balmik had not disclosed that on which
part of his body, sword blows were given by Sunny. It is not out of place
to mention here that none of the counsel for the appellants has challenged
the dying declaration of deceased Ajay @ Ajju. Furthermore, Dr. Ujjania
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(P.W.8) had medically examined the deceased Ajay @ Ajju twice i.e.,
prior and after recording of dying declaration. The injured/deceased Ajay
@ Ajju was found to be in fit state of mind. 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.
67. The Supreme Court in the case of Ramesh v. State of Haryana,
reported in (2017) 1 SCC 529 has held as under :
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
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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,
rather duty-bound, to record the dying declaration of the dying
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).
Recovery of weapons
68. Vinod Tiwari (PW10) is a constable posted in Police Station,
Kotwali District Datia. He had brought the plastic cap which was
recovered from the dead body of Badal from District Hospital, Datia and
handed over to Head Constable Ramsia which was seized vide seizure
memo (Ex. P/21). This witness has also proved the arrest of Chhuttan,
Akash and Sunny on 03.06.2014 vide arrest memo Exhibits P/22, P/23
and P/24. The memorandum of Chappa @ Harkishan is Ex.P/25 and
Ex.P/26. On the disclosure made by Chappa @ Harkishan, 12 Bore gun
was seized vide seizure memo Ex.P/27. This witness has also proved the
arrest of Appellant Kadori and Rohit vide arrest memo Ex. P/28 and P/29.
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The memorandum of appellant Kadori is Ex. P/30. The memorandum of
Chhuttan is Ex. P/31. The memorandum of Akash is Ex.P/32. The
Memorandum of Sunny is Ex.P/33.
69. Narendra Balmik, (PW13), is a witness of recording of
memorandum of appellant Sunny Ex.P/34. He has also proved the
recovery of sword on the disclosure made by Sunny which was seized
vide seizure memo Ex.P/35. This witness has also stated about the
confessional statement made by Appellant Chhuttan who informed that he
has kept his 0.315 Bore Adhiya and 2 live cartridges in his house. The
memorandum is Ex. P/36. The 0.315 Bore Adhiya with 2 live cartridges
were seized on the disclosure made by Chhuttan vide seizure memo Ex. P/
37. This witness was cross-examined. He admitted that the deceased
Badal is the cousin brother of this witness. He also admitted that he is the
nephew of complainant Vinod Balmik. He further stated that initially
Appellant Chhuttan was interrogated which took about 20 to 25 minutes
and thereafter Sunny was interrogated for 20 to 25 minutes. They left the
police station at about 05:00 p.m. The door of the house of the appellant,
Chhuttan and Sunny were bolted from outside, but they were not locked.
He admitted that anybody could have gone inside the house by unbolting
the doors. He further stated that he reached to the house of Chhuttan at
about 05:30 p.m. He denied that .315 bore Adhiya was not seized on the
disclosure made by Chhuttan.
70. Munna Singh Kumar (PW17) is the Investigating Officer. He has
stated that on 29.05.2014, he was posted on the post of Sub Inspector in
Police Station, Kotwali, District Datia. As soon as he received the
information regarding murder of Badal Balmik, he went to the spot and
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issued the Safina Form, Ex.P/41. The Lash Panchnama of the dead body
of Badal, Ex.P/42 was prepared. The requisition for post mortem of the
dead body of Badal is Ex.P/43. The dead body was sent to District
Hospital Datia for post mortem. The blood stained and plain earth and a
fired empty cartridge of 0.315 bullet was recovered from spot and was
seized vide seizure memo Ex.P/6. On the information given by the
complainant Vinod Balmik spot map, Ex.P/2 was prepared. The
statements of witnesses were recorded and the appellants Chhuttan
Balmik, Akash Balmik and Sunny Balmik were arrested vide arrest memo
Ex.P/22 to P/24. On the disclosure made by the appellant Sunny, a sword
was seized from his possession. The Memorandum of Sunny is Ex. P/34
and the seizure memo of sword is Ex.P/35. He also stated that the
memorandum of Chhuttan (Ex. P/36) was prepared and on the disclosure
made by Chhuttan, one .315 Bore Adhiya and two live cartridges were
seized vide seizure memo (Ex.P/37). The confessional statement of Akash
(Ex.P/38) was recorded and on a disclosure made by Akash, one 12 bore
Country Made Pistol with two live cartridges were seized vide seizure
memo Ex.P/39. The 12 bore gun which was seized from the possession of
Akash is Article A1. The live cartridges seized from the accused Akash is
Article A2. .315 Bore gun seized from Appellant Chhuttan is Article A3.
The two live cartridges seized from possession of Chhuttan are Article
A4. The fire bullet which was seized from the spot is Article A5. The iron
sword which was seized from the possession of Sunny is Article A6. The
plain earth seized from the spot is Article A7 and the blood stain earth
seized from the spot is Article A8. The blood stained Safi of the injured
Akash is Article A9. He stated that he had received the case diary at about
09:30 to 10:00 A.M.. He was already on the spot when he received the
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copy of the FIR. Since he had already received an information that an
incident has taken place, therefore, he had reached there. When he
reached on the spot, lot of persons were standing there. As soon as he
noticed the dead body of the deceased Badal, he prepared the Safina Form
and also prepared the Lash Panchnama. Witness Sunita, Shiv Kumar, and
Akash Balmik were not present on the spot. The house of the deceased
Badal is approximately 100 meters away from the place of incident. He
further admitted that witnesses Sunita, Shiv Kumar and Akash are the
family members of deceased Badal. He further stated that police force was
deployed near the house of deceased Badal. He further stated that the
house of the appellant, Chhuttan and Sunny are situated approximately 75
meters away from the house of Badal. He had gone in search of Chhuttan
and Sunny on number of occasions, but they were not found.
71. Keshav Singh Yadav of (PW18) had examined one 12 bore double
barrel gun as well as two light cartridges of 12 bore. His report is Ex.P/41.
72. RK Singh (PW19) has also partially conducted the investigation on
account of transfer of the previous investigating officer. He has stated that
he had formally arrested the accused Chunnilal @ Kadori vide arrest
memo (Ex. P/28), the memorandum of Kadori is Ex.P/30 and on his
memorandum Lathi was seized. On 26.03.2015 he had recorded the
memorandum of appellant Chappa @ Harkishan who had informed that
he has kept the 12-bore gun in the house of his sister Shanti Balmik. His
memorandum is Ex.P/25. On 27.03.2015 the aforesaid appellant once
again gave another memorandum which is Ex.P/26 and on his
memorandum the gun and two live cartridges were seized vide seizure
memo Ex.P/27. The FSL report received from the FSL Sagar are Exhibits
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P/44, P/45, P/46 and P/47. This witness had filed the charge sheet against
accused Chhuttan, Akash and Sunny and charge sheet under Section 299
of CrPC was filed against Mukesh, Chunnilal, Chappa and Rohit @ Golu.
Supplementary charge sheet filed against Kadori and Rohit is Ex.P/49 and
the supplementary charge sheet filed against appellant Chappa @
Chunnilal is Ex.P/50.
73. Thus, it is clear that the weapons of offence were also seized from
the possession of appellants.
Whether death of Ajay was on account of injuries caused to him or not?
74. It is the case of the appellants, 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.
75. Considered the submissions made by Counsel for appellants.
76. It is the case of the appellants that Ajay @ Ajju died on account of
complications which were developed due to injuries sustained by him.
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
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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.
77. 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 intention and knowledge to cause murder and the
injuries were sufficient in the ordinary course of nature to cause death.
Defence of Chappa @ Harkishan
78. Accused Harkishan @ Chappa examined Dr. Omkar Singh Rai
DW1 in his defence. He has stated that the indoor patient card is Ex. D/9.
As per indoor patient card Ex.D/9, the appellant Chappa @ Harkishan was
admitted in PHC, Maharajpur, District Chhatarpur from 27.05.2014 to
30.05.2014. However, he admitted that on that day he was not posted in
the hospital. At the relevant time Dr. K. K. Ravi was posted who has
expired. He further stated that only Dr. Ajay Singh Yadav can throw some
light on the documents because at the relevant time Dr. Ajay Singh was
posted as medical officer. In cross examination, he admitted that he
cannot identify that who had signed Ex. D/8 to D/10. He further stated
that he had come to the Court to give his evidence on his own.
79. From the plain reading of evidence of Dr. Omkar Singh Rai
(D.W.1) it is clear that neither he was posted in the hospital at the relevant
time, nor he could identify the signature of the Doctor who had prepared
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medical documents of Chappa @ Harkishan. Thus, it is held that the
appellant Chappa @ Harkishan has failed to prove his plea of alibi.
80. The burden to prove plea of alibi is heavy on the accused. It has to
be proved by accused beyond reasonable doubt. 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
trial court has discarded the plea of alibi. When a plea of alibi is
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 theSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167Cr.A. Nos. 6252/2017, 5631/2017,
6250/2017, 6251/2017prosecution 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 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.
81. 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.
82. 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.
83. The appellants Aakash, Chappa @ Harkishan, Chhuttan, Kadori @
Chunnilal are on bail. Their bail bond and surety bonds are hereby
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21167
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cancelled. They are directed to surrender before the Trial Court within a
period of one month for undergoing the remaining jail sentence. The
appellant Sunny is already in jail as he was not granted bail. He shall
undergo the remaining jail sentence.
84. Let a copy of this Judgment be sent to the Trial Court for necessary
information and compliance.
85. The Cr.A. No. 5631/2017 filed by Aakash and Chappa @
Harkishan, Cr.A. No. 6250/2017 filed by Chhuttan, Cr.A. No. 6251/2017
filed by Kadori @ Chunnilal and Cr.A. No. 6252/2017 filed by Sunny fail
and are hereby Dismissed.
(G.S.Ahluwalia) (Anuradha Shukla)
Judge Judge
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SHRIVASTAVA
Signing time: 16-07-2026
18:27:03
