Madhya Pradesh High Court
Kallu @ Harisevak vs The State Of Madhya Pradesh on 24 March, 2026
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-3068-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 24th OF MARCH, 2026
CRIMINAL APPEAL No. 2679 of 2016
LOKMAN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jagat Kumar Dehariya - learned counsel for the appellants.
Shri Ajay Tamrakar - learned Government Advocate for the respondent/
State.
WITH
CRIMINAL APPEAL No. 2878 of 2016
RAJKUMAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jagat Kumar Dehariya - learned counsel for the appellants.
Shri Ajay Tamrakar - learned Government Advocate for the respondent/
State.
CRIMINAL APPEAL No. 3068 of 2016
KALLU @ HARISEVAK
Versus
THE STATE OF MADHYA PRADESH
Signature Not Verified
Signed by: VIKRAM SINGH
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2 CRA-3068-2016
Appearance:
Shri Jagat Kumar Dehariya - learned counsel for the appellants.
Shri Ajay Tamrakar - learned Government Advocate for the respondent/
State.
ORDER
Per: Justice Avanindra Kumar Singh
All these three appeals have arisen out of a common judgment dated
08.09.2016 passed in Special Case No. 200036/2010 by the learned Special
Judge under Scheduled Casts and Scheduled Tribes (Prevention of
Atrocities) Act, Katni in the case of State of M.P. through P.S. Reethi /
AJAK vs Lokman and 3 others judgement whereby the accused persons
were charged and put to trial regarding an offence dated 26.06.2010, at about
5 P.M near Burhena Nala, for causing wrongful restraint by accused
Lokman and Rajkumar in common intention of co-accused Bablu and Kallu
for causing the death of deceased Suresh and Ummed for which the accused
were armed with Farsa, rod, lathi etc. and for trying to commit murder of
complainant P.W.1 Jithua Chaudhary and causing simple injury to Munna
Kachhi P.W.2 under section 302, 302/34, 307, 323 I.P.C. and under Section
3(2) (5) of the S.C./ S.T. Act.
2. Learned Trial Court as per paragraph 53 of the judgment has
acquitted the appellants under section 3(2) (5) of the S.C./ S.T. Act but as per
paragraph 54 of the judgment has found that accused Lokman, Rajkumar,
Bablu, Kallu formed a common intention to commit murder of Suresh and
Ummed and convicted them under section 341, 302, 302/34 (2 counts) I.P.C.
In addition, accused Kallu and Bablu were convicted under section 307/34 of
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IPC and Section 323/34 of IPC regarding Jithua P.W.1 and Munna P.W.2.
respectively and punished them as per paragraph 57 of the Trial Court
judgment :-
Accused Lokman, Rajkumar, Bablu, Kallu @ Harisevak were
convicted under Section 341 of IPC and sentenced to R.I. for 1 month each;
Section 302, 302/34 of IPC (on 2 counts) and sentenced to life
imprisonment (on two counts) with fine of Rs. 50,000/- on each count total
Rs. 1,00,000/- each on all the accused; in default thereof each accused shall
undergo 3-3 years’ additional S.I. In addition, accused Bablu and Kallu were
convicted under Section 307 read with 34 of IPC and sentenced to 7-7 years’
R.I. each with fine of Rs. 10,000/- each; in default thereof additional 1 year
S.I. and under Section 323/34 of IPC they were punished with 1 year S.I.
3. As per prosecution case on 26.06.2010 at about 8.30 p.m. Jithua
(P.W.1.) lodged a report Ex. P/1 at Police Station Reethi that he along with
Suresh Patel, Ummed Patel and Munna Kachhi had gone on two motorcycles
to Salaiya. While they were coming back at about 5 p.m. near Budhena naala
accused Lokman, Rajkumar Patel, Bablu and Kallu armed with rod, lathi and
farsa stopped them and with an intention to kill them assaulted them thus
causing injury to the complainant and also to Suresh, Ummed and Munna. At
the time of the incident Lokman was having farsa, Bablu and Kallu were
carrying lathi and Rajkumar was carrying an iron rod by which they
assaulted and after assaulting them they ran away and nearby people came
and took them to police station. Report was lodged which is Ex. P/1. Theywere sent to hospital, Civil Lines, Reethi where Dr. A.M. Navani (P.W.13)
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examined injured Suresh. Medical report is Ex. P/20. Medical report of
Ummed is Ex. P/21 and, thereafter, Ummed was sent to Medical College,
Jabalpur. Medical report of Munna (P.W.2) and Jhithua (P.W.1) are Ex. P/22
and Ex. P/23 respectively. After initial treatment at Reethi, they were sent to
District Hospital, Katni by reference slip Ex. P/24. Dr. Yashwant Verma
(P.W.9) conducted post-mortem examination on the body of Suresh. Report
is Ex. P/13. Dr. Chandra Shekhar Waghmare (P.W.16) conducted post-
mortem on the body of the deceased Ummed. Report is Ex. P/24. Dr. Rajesh
Kumar (P.W.21) conducted X-ray examination on left hand and chest of
Jithua, X-ray report is Ex. P/35. After conducting other investigation
including the statement of witnesses, arrest of accused Lakhan on 1.7.10 (Ex.
P/20) and accused Kallu alias Harisevak on 26.07.2010 (Ex. P/18) & accused
Bablu on 26.07.2010 (Ex. P/19) & accused Rajkumar on 16.11.2010 (Ex.
P/30), memorandum of accused persons, recovery of arms in which seized
arm and clothes were sent to FSL, Sagar vide Ex. P/31 and F.S.L. report is
Ex. P/32, charge-sheet was filed.
4. When put to trial, the accused denied the charges. The prosecution
witnesses were examined and when accused persons were examined under
Section 313 of Cr.P.C. they stated that they are innocent. Accused Lokman
has examined himself as a witness under Section 315 of Cr.P.C. and has also
examined D.W.2 Sijju @ Shyamlal.
5. While the prosecution has examined P.W.1 Jithua, P.W.2 Munna,
P.W.3 Jawahar (hostile witness), P.W.4 Ginni (hostile witness), P.W.5
Devsingh @ Devi Singh (hostile witness), P.W.6 Dhaniram (hostile witness),
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P.W.7 Chhotibai (hostile witness), P.W.8 Ghasota (hostile witness), P.W.9
Dr. Yashwant Verma, P.W.10 Narayan Lodhi, P.W.11 Dashrath @ Bangu,
P.W12 Arjun, P.W.13 Dr. A.M. Navani, P.W.14 Keshlal Patel (hostile
witness), P.W.15 C.L. Patel, P.W.16 Dr. Chandrashekhar Waghmare,
P.W.17 Ramesh Choudhary, P.W.18 Lakhan Singh, P.W.19 R.K. Sharma –
Dy. Superintendent of Police, P.W.20 Surtilal, P.W.21 Dr. Rajesh Kumar
Athiya, P.W.22 Rooplal Patel, P.W.23 Aman Singh, P.W.24 Gayaprasad.
6. Against the conviction and sentence, appellant Lokman and Bablu
has raised ground that offence is not made out in the light of statement of
P.W.13 Dr. Navani, who conducted MLC of deceased Suresh vide Ex. P/20
and stated that the injuries were caused by hard and blunt object, which is
against the prosecution case because P.W.1 stated that Lokman assaulted
Suresh by farsa. P.W.13 Dr. Navani prepared MLC of Ummed (Ex. P/21),
which is caused by hard and blunt object and the same was not caused by
appellant No.2 Bablu because lathi cannot cause such injury. Statement of
P.W.1 Jithua is not supported by other witnesses. P.W.13 Dr. Nawani
admitted that the injuries found on the body of the injured persons may be
caused by motorcycle accident as this admission is supported by other
witnesses who were examined by the prosecution. These witnesses admitted
that they heard about motorcycle accident. The findings recorded by the Trial
Court are perverse. The defence witnesses were disbelieved without any
legal reason.
The prosecution story that deceased, Jithua and Munna went to police
Chowki on 26.06.2010 and on return this incident happened is not proved as
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6 CRA-3068-2016
no police officer has been produced to verify.
The prosecution did not examine material witness Bhagwandas. The
statement of the prosecution witnesses and FIR was recorded by P.W.15 C.L.
Patel, ASI, who could not have conducted investigation under S.C/ S.T. Act.
The police did not seize the vehicle. The seized material including the
weapons were not deposited in the Malkhana, hence prays for acquitting the
appellants.
7. The grounds of appeal in CRA No. 3068 of 2016 filed by Kallu @
Harisevak is that the entire case is based on evidence of P.W.1. It was an
accident and injury was caused due to accidental fall. There is contradictory
evidence of P.W.9 and P.W.13, hence pray for acquittal.
8. In CRA 2878 of 2016 filed by accused Rajkumar, the grounds of
appeal are that P.W.2 Munna, P.W.3 Jawahar, P.W.4 Ginni, P.W.5 Dev
Singh @ Devi Singh, P.W.6 Dhaniram, P.W.8 Ghasota, P.W.10 Narayan
Lodhi, P.W.11 Dashrath @ Bangu, P.W.12 Arjun, P.W.13 Dr.A.M. Navani,
P.W.14 Keshalal Patel have not supported the prosecution case. The
evidence of P.W.15 C.L. Patel has not been considered in it’s proper
perspective. Similarly, statement of P.W. 17 Ramesh Choudhary has
unnecessarily been disbelieved. Hence, prays for allowing the appeal and
acquitting the accused persons.
9. On the other hand, Shri Ajay Tamrakar, learned Government
Advocate supports the impugned judgment and prays for dismissal of the
appeals.
10. At the time of final hearing, learned counsel for the objectors –
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7 CRA-3068-2016
Shri Ankit Saxena, Shri Pankaj Kumar Dubey, Ms. Shikha Malik and Shri
Mohan Singh were not present.
11. At the outset since against the common judgment four accused
persons have filed different appeals, they are being disposed of by the
common judgment, it is seen that regarding Lokman as per the prosecution
case in FIR Ex. P/1 and specifically statement of P.W.1 Jethua, Lokman was
armed with a farsa and he assaulted Suresh. Suresh due to injuries expired, as
per the post-mortem report of Suresh Ex. P/13 regarding which Dr.
Yashwant Verma (P.W.9) has deposed before the Trial Court that deceased
had two cut injuries on the left hand each of size 1-1/2 x 1/4 x 1/4 inch. On
right leg there were cut wounds of 1 x 1/2 x 1/2 and on left leg 2 x 1/2 x 1/2
and on the head in left parietal region a cut wound of 1 x 1/4 x 1/4 inch by
hard and sharp object.
In para 4 of his examination-in-chief Dr. Yashwant Verma (P.W.9) has
stated that the deceased had injuries on left forearm (7 in No, – size 4 x 3 to
2 x 1 inches), complete back side of right hand, back side of right wrist (3 x
2 inches), lower back side of right arm (7 x 3 inches), upper side of right arm
(3 x 2 inches), right elbow (4 x 3 inches), right arm (6 x 4 inches), left knee
(5 x 3 inches), front portion of left leg (7 x 4, 2 x 1 and 2 x 1/2 inches), right
knee (4 x 2 inches), front portion of right leg ( 3x 2 and 2 x 1 inches), right
hip (5 x 4 inches), left hip ( 6 x 4 inches), the injuries were of the nature of
abrasions with swelling.
All these injuries were caused by hard and blunt object and the injuries
were caused within 24 hrs of the post-mortem examination. The cause of
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8 CRA-3068-2016
death was injury in the head inducing coma. P.W.13 Dr. A.M. Navani
examined Suresh when he was brought to community health center, Reethi
and has stated that Suresh had injuries in both the legs, right hand, blood was
oozing out.There was a possibility of fracture. Injuries were caused by hard
and blunt object and, therefore, he had advised for X- ray examination.
Suresh was not conscious.
12. Learned appellants’ counsel argued that Suresh did not have
injuries by hard and sharp weapon was on the basis of statement of P.W.13
but statement of P.W.13 Dr. A.M. Navani has to be read with the statement
of P.W.9 Dr. Yashwant Verma, who stated that Suresh had both types of
injuries; cut injuries as mentioned in paragraph 3 of his deposition caused by
hard and sharp object and other injuries mentioned in paragraph 4 caused by
hard and blunt object. Regarding the objection that the injuries could have
been received on the account of falling by accident from motorcycle is not
proved in the facts and circumstances of the case because even in a case of
assault on the injured persons when they were returning by motorcycle,
obviously, fall from motorcycle is a natural consequence of assault but post-
mortem conducting Dr. Yashwant Verma (P.W.9) has not been asked that
injuries to Suresh could have been caused by motorcycle accident, therefore,
the plea of falling from motorcycle accidentally causing death of Suresh is
not proved. It is but natural that when four persons are going on two
motorcycles, two persons on each motorcycle and they are suddenly
assaulted by four persons in which Lokman was carrying farsa, Rajkumar
was carrying iron rod, Bablu and Kallu were carrying lathis as per
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prosecution case then some injuries would be caused due to assault by arms
and, thereafter when Suresh and Ummed (deceased persons) would fall from
motorcycle on account of assault then some other injuries may be caused
which may seem in the nature of accidental fall injuries.
13. Besides the FIR Ex. P/1 and statement of P.W.1 Jithua, who has
stated in paragraph 2 that Rajkumar assaulted Ummed on head with iron rod.
P.W.13 Dr. A.M. Navani has stated that Ummed had many injuries on head
and on left eye which was protruding out and fracture was possible. Dr.
Navani has also stated that Ummed could have received the injuries on
account of a fall from motorcycle (cross-examination – paragraphs 10 and
12) but it is precisely the case of the prosecution that the injured persons
were assaulted when they were returning by motorcycle, therefore, when
P.W.16 Dr. Chandrashekhar Waghmare, who conducted post-mortem on the
body of Ummed and has given report Ex. P/21 to the effect that injuries on
the body of Ummed were inflicted by hard and blunt object and in cross-
examination also he stated that the injuries could have been caused on
account of fall from motorcycle (cross-examination paragraph 5), but this
argument has been considered in paragraph 11 of this judgment besides there
is no reliable evidence on record to believe that this case was not properly
investigated and a case of two accidental deaths have been converted into a
case of 2 murders. It is also seen that appellant Kallu, Lokman, Bablu and
Rajkumar have not stated that death of Suresh and Ummed was accidental in
examination under Section 313 of Cr.P.C. on 4.5.2016. It was for the first
time that Lokman has given new version of the incident in statement under
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Section 315 of Cr.P.C. on 8.7.2016 that on 17.09.2007 besides Jithua
Chaudhary, Suresh and other persons had caught hold of Laxman, who was
shouting for help. When the complainant Jithua (P.W.1) and other persons
saw him (accused Lokman) they ran towards him to catch him and threatened
him (Lokman) that if he narrates this incident, then they shall kill him.
Laxman Patel was never seen. On 27.03.2008 Addl. S.P. , Purushottam
Sharma recorded his statement (Ex. D/1). When Laxman was not found then
his son Rajkumar filed a Writ Petition (Ex. D/2) before the High Court,
therefore, due to this report Jithua and other persons were having enmity
with him and the present case which has been lodged against him is false it
was a accidental case in which Suresh and Ummed expired. D.W.2 Sijju has
also stated that in June, 2010 near Budhena Nala, there was a motorcycle
accident in which Suresh and Ummed’s motorcycle was thrown off about 10-
15 feet below in trench and, therefore, they received injuries but motorcycle
accident is not proved in the light of the evidence of the prosecution
witnesses as mentioned above including statement of Investigating Officer
P.W.19 R.K. Sharma, Dy. S.P.
14. Regarding appellant Rajkumar as an assaultor of Ummed besides
first information report Ex. P/1, P.W.1 Jithua (in Para 2) has clearly stated
that Rajkumar assaulted Ummed with iron rod and statement of P.W.13 Dr.
A.M. Navani, P.W.16 Dr. Chandrashekhar Waghmare and investigating
officer P.W.19 R.K.Sharma,Dy.S.P. confirms the same.
15. Jithua (P.W.1) has stated that he was assaulted by Kallu and
Bablu with a lathi due to which his left hand was broken. P.W.13 Dr. A.M.
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11 CRA-3068-2016
Navani has stated in paragraph 5 of examination-in-chief that he examined
Jithua (P.W.1) and there was a possibility of fracture in his left hand. He had
advised X-ray of left hand and chest. Medical report is Ex. P/23. P.W.21 Dr.
Rajesh Kumar has stated that he is a radiologist and he had conducted X-ray
of injured Jithua S/o Feran Choudhary and found that in his left hand, ulna
bone was fractured, X-ray report is Ex. P/35.
16. Injured Munna (P.W.2) has turned hostile but he has stated in
paragraph 1 of examination in chief that while Suresh and Ummed were
going ahead on a motorcycle and he was behind them on a motorcycle, when
he reached Budhena Nala, he saw that the vehicle of Suresh was lying. As
soon as he reached there, he was assaulted but he could not see by which arm
(weapon) who assaulted him. He also stated that he had received injury in
head and Jithua was also with him on the motorcycle. Suresh, Jithua &
Ummed were injured. Prosecution has declared this witness hostile and
asked leading question in which he did not partly support the prosecution
case but in cross-examination by defence he admitted that motorcycle of
Suresh and Ummed was ahead of him and they (he and Jithua) reached the
spot after about 10-15 minutes. Motorcycle had met with an accident and
Suresh and Ummed were lying injured he could not see the injuries of
Suresh and Ummed. The accused were not present on the spot but defence
has not asked him ( P.W.2 Munna) that he was not assaulted by someone as
he has stated in examination-in-chief para 1 and even assuming for
arguments sake that Munna (P.W.2) reached the spot after few minutes then
he cannot say whether the assault took place on Suresh and Ummed due to
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12 CRA-3068-2016
which they received serious injuries and the motorcycle was lying there or
Suresh and Ummed received accidental injuries, it is also pertinent to note
that P.W.1 Jithua has not stated either in his examination in chief or cross
examination that the motorcycle on which Suresh and Lokman were going
was so much ahead that he did not see the incident. On the other hand, in
cross-examination in paragraph 7 this witness has stated that his motorcycle
was at a distance of 10-15 steps and it is the settled position of law that
statement of one witness i.e. P.W.1 Jithua cannot be contradicted with
statement of P.W.2 Munna who was riding the same motorcycle on which
P.W.1 Jithua was going.
17. P.W.13 Dr. A.M. Navani has mentioned in paragraph 4 that on
medical examination of Munna he found that he had abrasion on forehead
and swelling on right eye by hard and blunt object. In cross-examination in
para 11 this doctor stated that it is correct to say that Munna Kachhi could
have received injuries due to fall but he clarified that these type of injuries
could be caused either on account of assault or on account of fall.
18. In a criminal trial, the evidence of injured witness carries a great
weightage and there is no rule that the evidence of injured witness has to be
treated with distrust. The only requirement of law is that it has to be
corroborated by other evidence as in the present case, it has been
corroborated by the evidence of doctors as mentioned above and medical
reports and the statements of P.W.1, P.W.2 and investigating officer P.W.19
and medical evidence are reliable and the only legal requirement is that the
evidence of interested injured witness, who would be the last person to
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implicate a wrong person has to be considered carefully.
19. For consideration of present appeals, the following citations are
relevant :-
(i) Balu Sudam Khalde and another Vs. State of Maharashtra; 2023
LiveLaw (SC) 279.
“26. When the evidence of an injured eye-witness is to
be appreciated, the undernoted legal principles
enunciated by the Courts are required to be kept in
mind:
(a) The presence of an injured eye-witness at the time
and place of the occurrence cannot be doubted unless
there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it
must be believed that an injured witness would not
allow the real culprits to escape and falsely implicate
the accused.
(c) The evidence of injured witness has greater
evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted
on account of some embellishment in natural conduct or
minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or embellishment
should be discarded from the evidence of injured, but
not the whole evidence.
(f) The broad substratum of the prosecution version
must be taken into consideration and discrepancies
which normally creep due to loss of memory with
passage of time should be discarded.
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3 8 . Thus, from the above it is evident that the
suggestion made by the defence counsel to a witness in
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the cross-examination if found to be incriminating in
nature in any manner would definitely bind the accused
and the accused cannot get away on the plea that his
counsel had no implied authority to make suggestions in
the nature of admissions against his client.
******
42. Therefore, we are of the opinion that suggestions
made to the witness by the defence counsel and the
reply to such suggestions would definitely form part of
the evidence and can be relied upon by the Court along
with other evidence on record to determine the guilt of
the accused”
(ii) In R. Baiju v. The State of Kerala [2025 LiveLaw (SC) 441]
in paragraphs 7, 13 and 14 Hon’ble Supreme Court has laid down this
principle of law that defective investigation does not automatically invalidate
a prosecution case if other credible evidence exist and upheld the conviction
under Section 304 Part II and 120 B I.P.C and emphasized that flaws in
investigation are not fatal when corroborated evidence such as witness
testimony and motive establish guilt.
(iii) The Hon’ble Supreme Court recently in the case of Baban
Shankar Daphal and others v. The State of Maharashtra (Criminal Appeal
No. 1675 of 2015) judgment dated 22.01.2025 has held as below:-
“27. One of the contentions of the learned counsel for the
appellants is that the eyewitnesses to the incident were all closely
related to the deceased and for prudence the prosecution ought to
have examined some other independent eyewitness as well who
were present at the time of the unfortunate incident. This was also
the view taken by the Trial Court, but the High Court has correctly
rejected such an approach and held that merely because there were
some more independent witnesses also, who had reached the place
of incident, the evidence of the relatives cannot be disbelieved.
The law nowhere states that the evidence of the interested witness
should be discarded altogether. The law only warrants that theirSignature Not Verified
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evidence should be scrutinized with care and caution. It has been
held by this Court in the catena of judgments that merely if a
witness is a relative, their testimony cannot be discarded on that
ground alone.
28. In criminal cases, the credibility of witnesses, particularly
those who are close relatives of the victim, is often scrutinized.
However, being a relative does not automatically render a witness
“interested” or biased. The term “interested” refers to witnesses
who have a personal stake in the outcome, such as a desire for
revenge or to falsely implicate the accused due to enmity or
personal gain. A “related” witness, on the other hand, is someone
who may be naturally present at the scene of the crime, and their
testimony should not be dismissed simply because of their
relationship to the victim. Courts must assess the reliability,
consistency, and coherence of their statements rather than
labelling them as untrustworthy.
29. The distinction between “interested” and “related” witnesses
has been clarified in Dalip Singh v. State of Punjab 1954 SCR 145
where this Court emphasized that a close relative is usually the last
person to falsely implicate an innocent person. Therefore, in
evaluating the evidence of a related witness, the court should focus
on the consistency and credibility of their testimony. This
approach ensures that the evidence is not discarded merely due to
familial ties, but is instead assessed based on its inherent
reliability and consistency with other evidence in the case. …….”
(iv) Hon’ble Supreme Court in the case of Karnail Singh v. State of
M.P. [(1995) 5 SCC 518] has held that for deficiency in investigation,
accused cannot be acquitted.
(v) In Edakkandi Dineshan @ P Dineshsan & Ors. Vs. State of Kerla
(Cr.A. No. 118 of 2013) dated 06.01.2025 specific paragraph 22 :-
“22……Hence, the principle of law is crystal clear that on the
account of defective investigation the benefit will not inure to the
accused persons on that ground alone. It is well within the domain
of the courts to consider the rest of the evidence which the
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medical report etc. It has been a consistent stand of this court that
the accused cannot claim acquittal on the ground of faulty
investigation done by the prosecuting agency………”
(vi) In Paras Yadav v. State of Bihar [(1999) 2 SCC 126] it has been
held that if investigation officer negligently or unknowingly makes some
lapses in investigation even then the trial Court has to consider the case
minutely.
(vii) In the case of Sunil Kundu v. State of Jharkhand [(2013) 4 SCC
422] it has been held that unless lapses or faults go into the root of the
matter, acquittal cannot be granted on that basis.
(viii) In Dadu @ Ankush & another Vs. State of Madhya Pradesh
and another; 2025 LiveLaw (SC) 1178 , Hon’ble Supreme Court in paragraph
19 has held that evidence of hostile witness cannot be rejected entirely but
such evidence must be subjected to closer scrutiny and the portions
consistent with either the prosecution or the defence case may be accepted
and High Court was in error in ignoring the evidence of P.W.4 on the ground
that he was declared hostile (Relied on State of U.P. Vs. Ramesh Prasad
Mishra (1996) 10 SCC 360 – para 19 ) .
(ix) An objection is made by learned appellants’ counsel that no
human blood was detected in FSL report Ex. P/32 on farsa and iron rod and
Lathis were not sent for chemical examination but it will not harm the
prosecution case because in this case the crime took place on 26.06.2010
whereas the accused were absconding and they were all arrested between
01.07.2010 to 16.11.2010 in which Rajkumar was arrested on 16.11.2010
from whom iron rod was subsequently seized and similarly lathis were also
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seized belatedly because accused persons were absconding and date of their
arrest is mentioned in para 3 of this judgment.
The learned Trial Court has dealt with this aspect correctly in
paragraph 29 of the judgment in the light of provision under Section 8 the
Evidence Act the subsequent conduct is relevant as held by Hon’ble Supreme
Court in para 233 of Sidhartha Vashist alias Manu Sharma Vs. State ( NCT
Delhi); (2010) 6 SCC 1.
In case of State of Punjab vs Hakam singh (2005)7SCC 408 fire-arms
were not recovered. It was held that even if such articles were recovered then
they would have been by way of corroborative evidence, therefore, this lapse
is not fatal to the prosecution. The relevant para 13 is as below :-
“13. It was also pointed out by learned counsel for the respondent
that no firearms were recovered and no seizure has been made of
empties. It would have been better if this was done and it would
have corroborated the prosecution story. Seizure of the firearms
and recovering the empties and sending them for examination by
the ballistic expert would have only corroborated the prosecution
case but by not sending them to the ballistic expert in the present
case is not fatal in view of the categorical testimony of PW 3
about the whole incident.”
In the case of V.K. Mishra v. State of Uttrakhand (2015) 9 SCC 588 , a 3 Judge
Bench in para 38 has held as thus :-
“38. The investigating officer is not obliged to anticipate all
possible defences and investigate in that angle. In any event, any
omission on the part of the investigating officer cannot go against
the prosecution. Interest of justice demands that such acts or
omission of the investigating officer should not be taken in favour
of the accused or otherwise it would amount to placing a premium
upon such omissions.”
In the case of Umesh Singh v. State of Bihar; (2013) 4 SCC 360 , it was held
that where there is a difference in medical evidence and evidence of eye witness
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than the common rule is that evidence of eye witness should be given preference
unless the medical evidence is of such nature that it totally eliminates the eye
witness account, in that situation only medical evidence should be preferred
specific para 23.3 is as below:-
“23.3. Rightly, the learned counsel appearing on behalf of the
State has placed reliance upon the judgment of this Court referred
to supra that between medical and ocular evidence the ocular
evidence must be preferred to hold the charge proved. This is the
correct legal position as held by both the learned Additional
Sessions Judge as well as the High Court after placing reliance
upon the statement of evidence of PW 2, PW 3, PW 5 and PW 7.
Therefore, we do not find any erroneous reasoning on this aspect
of the matter. There is no substance in the submissions of the
learned Senior Counsel on the above aspect of the matter with
reference to judgments of this Court referred to supra which
decisions have absolutely no application to the fact situation of the
case on hand.”
In the case of State of Haryana v. Bhagirath (1999) 5 SCC 96 it was held
that when there is contradiction in the evidence of two doctors then that
evidence should be accepted which is more probable in the facts of the case,
specific para 15 is as below :-
“15. The opinion given by a medical witness need not be the last word
on the subject. Such an opinion shall be tested by the court. If the
opinion is bereft of logic or objectivity, the court is not obliged to go
by that opinion. After all opinion is what is formed in the mind of a
person regarding a fact situation. If one doctor forms one opinion and
another doctor forms a different opinion on the same facts it is open to
the Judge to adopt the view which is more objective or probable.
Similarly if the opinion given by one doctor is not consistent with
probability the court has no liability to go by that opinion merely
because it is said by the doctor. Of course, due weight must be given
to opinions given by persons who are experts in the particular
subject.”
(x) At the time of arguments, it was argued that no motive is
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established but generally motive is important in a case of circumstantial
evidence but in a case of direct evidence, even if motive is not proved then
no interference can be made. In the case of State of Himachal Pradesh Vs.
Chaman Lal; 2026 LiveLaw (SC) 48, Hon’ble Supreme Court has held in
para 23 as below :-
“23. Motive assumes significance, primarily in cases based on
circumstantial evidence. Where there is direct evidence in the form
of a credible and trustworthy dying declaration, the absence of
strong proof of motive is not fatal to the prosecution case. This
position has been consistently affirmed by this Court in State of
Andhra Pradesh v. Bogam Chandraiah and another (1986) 3 SCC
637, Dasin Bai @ Shanti Bai v. State of Chhattisgarh 2015
SCCOnline SC107, and Purshottam Chopra v. State (NCT of
Delhi) 2020 SCC Online SC 6. In the present case, the evidence
on record discloses that the respondent subjected the deceased to
frequent quarrels, humiliation and verbal abuse, including
branding her a “Kanjri” and repeatedly asking her to leave the
matrimonial home. The dying declaration itself refers to persistent
matrimonial discord and ill-treatment thereby furnishing a
plausible background for the commission of the offence. In any
event, the prosecution is not required to establish motive with
mathematical precision and failure to conclusively prove motive
does not weaken an otherwise reliable and cogent case.”
Hon’ble Division Bench of this Court in the case of Nagendra Vs.
State of M.P., Criminal Appeal No. 742 / 2017,judgment dated 04.05.2017 in
para 13 has held that in a case of direct evidene regarding assault, worthy of
credence , the question of motive becomes more or less academic.
(xi) In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of
Gujarat ; (1983) 3 SCC 217, Hon’ble Supreme Court has held as below in
paragraph 5 and 6 :-
“5. ……… We do not consider it appropriate or permissible to enter upon a
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discrepancies painstakingly highlighted by learned Counsel for the
appellant. Overmuch importance cannot be attached to minor
discrepancies. The reasons are obvious :
“(1) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It
is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the occurrence
which so often has an element of surprised. The mental
faculties therefore cannot be expected to be attuned to absorb
the details.
(3) The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person’s mind,
whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a
human tape-recorder.
(5) In regard to exact time of an incident, or the time duration
of an occurrence, usually, people make their estimates by
guess-work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again, it depends
on the time-sense of individuals which varies from person to
person.
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which takes place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed
by the court atmosphere and the piercing cross-examination
made by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, or fill up details from
imagination on the spur of the moment. The sub-conscious
mind of the witness sometimes so operates on account of the
fear of looking foolish or being disbelieved though the witness
is giving a truthful and honest account of the occurrence
witnessed by him — Perhaps it is a sort of a psychological
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defence mechanism activated on the spur of the moment.”
6. Discrepancies which do not go to the root of the matter
and shake the basic version of the witnesses therefore cannot
be annexed with undue importance. More so when the all
important “probabilities factor” echoes in favour of the version
narrated by the witnesses.”
(xii) At the time of arguments, it was also argued by learned
appellants’ counsel that some witnesses say that they heard Suresh and
Ummed died due to accident. In this regard, Hon’ble Karnataka High Court
in P. Damodara Raju Vs. R.S. Parameshwari; 2019 SCC OnLine Kar 1976
has held that statement of witness has to be read in whole. Specific paragraph
16 :-
“16. The judgment of the Supreme Court in D.N. Jeevaraju throws
some more light on this aspect. It is held that if a statement is
found to be an inadvertent error or have been made
unintentionally, it is nothing but a stray sentence. In the light of
these principles, if it is further analyzed, it can be very well said
that a stray answer has no value, but what is of utmost importance
is that a clear conclusion must be drawn whether a sentence or
statement can be considered as ‘stray’. It may be possible that a
witness whilst under cross-examination may falter owing to failure
to grasp the question posed to him or confusion in understanding a
tricky question, the answer to which may possibly be construed
disadvantageous to him. Therefore in a situation like this, before
drawing any inference, the whole evidence must be scrutinised to
examine whether it is possible to separate an answer from the
other consistent answers or statements; the tenor of answers must
be seen. If it is found that on a particular issue or aspect, a witness
has given answers consistently and it is improbable to expect an
answer inconsistent with other part of evidence, that particular
statement or answer can be considered as stray sentence or
statement or admission, otherwise not. It is not every answer that
goes against a witness can be considered as stray admission; if this
interpretation is given, the purpose of cross examination fails.”
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(xiii) It was also argued on behalf of the appellants by their
learned counsels that FIR is very sketchy. It is not mentioned clearly as
to which accused was carrying which weapon and who assaulted whom
and on which part of body but in the case of B.N. John Vs. State of U.P.
and another; 2025 SCC Online SC 7, Hon’ble Suprme Court in para 25
has held thus :-
“25. ……..This Court in CBI v. Tapan Kumar Singh, (2003) 6
SCC 175 observed as follows:
“20. It is well settled that a first information report is not
an encyclopaedia, which must disclose all facts and
details relating to the offence reported. An informant
may lodge a report about the commission of an offence
though he may not know the name of the victim or his
assailant. He may not even know how the occurrence
took place. A first informant need not necessarily be an
eyewitness so as to be able to disclose in great detail all
aspects of the offence committed. What is of
significance is that the information given must disclose
the commission of a cognizable offence and the
information so lodged must provide a basis for the
police officer to suspect the commission of a cognizable
offence. At this stage it is enough if the police officer on
the basis of the information given suspects the
commission of a cognizable offence, and not that he
must be convinced or satisfied that a cognizable offence
has been committed. If he has reasons to suspect, on the
basis of information received, that a cognizable offence
may have been committed, he is bound to record the
information and conduct an investigation. At this stage
it is also not necessary for him to satisfy himself about
the truthfulness of the
information………………………”
(emphasis added)”
20. It is also argued by learned appellants’ counsel that independent
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witnesses of memorandum and seizure have not supported the prosecution
case but there is no reason to disbelieve the statement of Investigating
Officer P.W.19 R.K. Sharma, Dy.S.P.
In the case of Girja Prasad (dead) through L.Rs. Vs. State of Madhya
Pradesh (2007) 7 SCC 625 in para 25, Hon’ble Supreme Court has laid down
this principle regarding police witnesses :-
“25. In our judgment, the above proposition does not lay down
correct law on the point. It is well settled that credibility of witness
has to be tested on the touchstone of truthfulness and
trustworthiness. It is quite possible that in a given case, a court of
law may not base conviction solely on the evidence of the
complainant or a police official but it is not the law that police
witnesses should not be relied upon and their evidence cannot be
accepted unless it is corroborated in material particulars by other
independent evidence. The presumption that every person acts
honestly applies as much in favour of a police official as any other
person. No infirmity attaches to the testimony of police officials
merely because they belong to police force. There is no rule of law
which lays down that no conviction can be recorded on the
testimony of police officials even if such evidence is otherwise
reliable and trustworthy. The rule of prudence may require more
careful scrutiny of their evidence. But, if the court is convinced
that what was stated by a witness has a ring of truth, conviction
can be based on such evidence.”
21. At the time of arguments, learned counsel for the appellants laid
great emphasis on this point that P.W.1 Jithua has stated that he had run
away, therefore, he could not see that after Suresh and Ummed had fallen
then accused persons assaulted them but this statement has to be read in the
context of entire evidence. When Suresh and Ummed were going on a
motorcycle, which was at some distance ahead and P.W.1 Jithua and P.W.2
Munna were following them a little behind but at a distance where he (P.W.1
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Jithua) could see the assault on Suresh and Ummed and after assaulting
Suresh and Ummed when they assaulted Jithua and Munna, which caused
fracture injury to Jithua P.W.1 also and simple injury to P.W.2 Munna also
then it is but natural that P.W.1 Jithua could not see that what happened after
Suresh and Ummed, who had fallen down due to assault by the accused
persons because to save oneself is a natural human tendency and injuries
after fall may seen like injuries due to accident i.e. falling from motorcycle
as given a possibility by P.W.13 Dr. A. M. Navani. If the defence had
wanted they could have got this sentence clarified that he did not see that
accused persons assaulted Suresh and Ummed or accused persons assaulted
Jithua or Munna when this clear unambiguous question in entire context is
not asked then no benefit on that account can be given to defence even
otherwise it was never suggested to P.W.1 Jithua that he could not see the
assault on Suresh and Ummed, therefore, statement of P.W.1 Jithua can be
believed that he was an eye-witness besides being an injured eye-witness.
22. Similarly P.W.2 Munna, in cross-examination in para 6 has
stated that he had not seen the incident but this statement also has to be read
in entire sequence because in examination-in-chief this witness had already
stated that as soon as they reached the place of incident then he was also
assaulted but he could not see which person assaulted him with which arm
(weapon).
It is to be noted that in this case two persons have expired due to
homicidal injuries and P.W.1 Jithua also received fracture injuries due to
assault. Similarly, Munna has also received simple injuries and when
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narration of the incident like an electronic recording device is not possible
for a human then no benefit on this ground can be given to the appellants
when specific question is not asked by defence.
23 P.W.3 Jawahar, P.W.4 Ginni have stated that they heard that there
was a motorcycle accident but P.W.6 Dhaniram has stated that he heard that
Suresh and Ummed have been murdered by Lokman, Rajkumar, Bablu and
Kallu.
24 P.W.7 Chhotibai also stated that Munna had informed her that
assault had taken place but he did not see who had assaulted them.When they
reached Burhena Nala then Ummed and Suresh told them that they were
assaulted by Lokman, Rajkumar, Kallu and Bablu.
25. P.W.5 Devi Singh has stated that at about 5 P.M, Suresh Patel
had phoned him that they are lying near Burhena Nala because they have
been assaulted. When he reached the place of incident he found Suresh and
Ummed but Ummed had already expired and from the body of Suresh, blood
was oozing out, therefore, he with the help of other persons took them to
hospital. In cross-examination in paragraph 11 this witness denied that he did
not inform anybody in the village about this incident. He stated that when the
incident happened then he had informed. He also admitted that he had enmity
with the accused persons but it is wrong to say that he has given false
evidence because of the enmity. As already stated above, the entire evidence
by this witness has to be seen in the entire context and simply at one place if
it has been mentioned as accident instead of incident then in the light of
above mentioned judgment of P. Damodara Raju ( Supra) it seems that
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mentioning of accident is a typographical error.
26. P.W.8 Ghasota has stated that he came to know that Suresh and
Ummed died in the incident. This witness has not supported the
memorandum and seizure documents prepared by the police but investigation
has supported the seizure and memorandum during the course of
investigation. Therefore, on evaluation of evidence of both the parties, it is
proved that Suresh and Ummed did not die due to any accident. Similarly,
injuries sustained by P.W.1 Jithua and P.W.2 Munna were also not the result
of motorcycle accident. On the other hand, they were caused due to assault
by the accused persons as per the prosecution story.
27. Learned Trial Court has very minutely and correctly evaluated
the prosecution and defence case and in para 36 of the judgment, correctly
relied on the judgment of Chhotanney and Ors Vs.State of Uttar Pradesh and
others; (2009)11 SCC 71 in which Hon’ble Supreme Court has held in
paragraph 12 as under :-
“12. “9 . It is trite that where the eyewitnesses’ account is found
credible and trustworthy, medical opinion pointing to alternative
possibilities is not accepted as conclusive. Witnesses, as Bentham
said, are the eyes and ears of justice. Hence the importance and
primacy of the quality of the trial process. Eyewitnesses’ account
would require a careful independent assessment and evaluation for
their credibility which should not be adversely prejudged making
any other evidence, including medical evidence, as the sole
touchstone for the test of such credibility. The evidence must be
tested for its inherent consistency and the inherent probability of
the story; consistency with the account of other witnesses held to
be creditworthy; consistency with the undisputed facts; the ‘credit’
of the witnesses; their performance in the witness box; their power
of observation, etc. Then the probative value of such evidence
becomes eligible to be put into the scales for a cumulative
evaluation.
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10. A person has, no doubt, a profound right not to be convicted
of an offence which is not established by the evidential standard of
proof beyond reasonable doubt. Though this standard is a higher
standard, there is, however, no absolute standard. What degree of
probability amounts to ‘proof’ is an exercise particular to each
case. Referring to the interdependence of evidence and the
confirmation of one piece of evidence by another a learned author
says [see “The Mathematics of Proof II” : Glanville Williams :
Criminal Law Review, 1979, by Sweet and Maxwell, p. 340
(342)]:
‘The simple multiplication rule does not apply if the separate
pieces of evidence are dependent. Two events are dependent when
they tend to occur together, and the evidence of such events may
also be said to be dependent. In a criminal case, different pieces of
evidence directed to establishing that the defendant did the
prohibited act with the specified state of mind are generally
dependent. A junior may feel doubt whether to credit an alleged
confession, and doubt whether to infer guilt from the fact that the
defendant fled from justice. But since it is generally guilty rather
than innocent people who make confessions and guilty rather than
innocent people who run away, the two doubts are not to be
multiplied together. The one piece of evidence may confirm the
other.’
11. Doubts would be called reasonable if they are free from a zest
for abstract speculation. Law cannot afford any favourite other
than truth. To constitute reasonable doubt, it must be free from an
overemotional response. Doubts must be actual and substantial
doubts as to the guilt of the accused persons arising from the
evidence, or from the lack of it, as opposed to mere vague
apprehensions. A reasonable doubt is not an imaginary, trivial or a
merely possible doubt; but a fair doubt based upon reason and
common sense. It must grow out of the evidence in the case.
12. The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be mathematically
enumerated as to how many of such units constitute proof beyond
reasonable doubt. There is an unmistakable subjective element in
the evaluation of the degrees of probability and the quantum of
proof. Forensic probability must, in the last analysis, rest on a
robust common sense and, ultimately, on the trained intuitions of
the Judge. While the protection given by the criminal process to
the accused persons is not to be eroded, at the same time,
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administration of criminal justice. This position was illuminatingly
stated by Venkatachaliah, J. (as His Lordship then was) in State of
U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928 :
AIR 1988 SC 2154] .”
See State of M.P. v. Dharkole [(2004) 13 SCC 308 : 2005 SCC
(Cri) 225] , at SCC pp. 312-13, paras 9-12. Apparently, there was
no conflict between the ocular evidence and the medical evidence
as contended by learned counsel for the appellant.”
Regarding death of Suresh evidence of P.W.9 Dr Yashwant is on
record coupled with the statement of eye-witnesses P.W.1 Jithua, therefore,
any contrary statement in the nature of possibility of some injury due to
accidental fall by P.W.13 Dr. A.N. Navani become immaterial and not
acceptable.
28. Regarding common intention in paragraph 45 of the judgment,
learned Trial Court has correctly relied on the judgment in State of Rajasthan
Vs. Shobharam; (2013) 14 SCC 732 – relevant paragraphs are reproduced
below :-
“9. A perusal of Section 34 IPC would clearly indicate that there
must be two ingredients for convicting a person with the aid of
Section 34 IPC. Firstly, there must be a common intention and
secondly, there must be participation by the accused persons in
furtherance of the common intention. If the common intention is
proved, it may not be necessary that the acts of the several persons
charged with commission of an offence jointly must be the same
or identically similar. The acts may be different in character, but
must be arising out of the same common intention in order to
attract the provision. The said principle is reiterated in a three-
Judge Bench decision in Suresh v. State of U.P. [(2001) 3 SCC
673 : 2001 SCC (Cri) 601] and Ramaswami Ayyangar v. State of
T.N. [(1976) 3 SCC 779 : 1976 SCC (Cri) 518] , wherein the
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“12. … The acts committed by different confederates in
the criminal action may be different but all must in one
way or the other participate and engage in the criminal
enterprise, for instance, one may only stand guard to
prevent any person coming to the relief of the victim, or
may otherwise facilitate the [commission of crime].
Such a person also commits an ‘act’ as much as his co-
participants actually committing the planned crime.”
In the case of an offence involving physical violence, the person
who instigates or aids the commission of the crime must be
physically present and such presence of those who in one way or
the other facilitate the execution of the common design, is itself
tantamount to actual participation in the “criminal act”.
10. Insofar as common intention is concerned, it is a state of
mind of an accused which can be inferred objectively from his
conduct displayed in the course of commission of crime and also
from prior and subsequent attendant circumstances. As observed
in Hari Ram v. State of U.P. [(2004) 8 SCC 146 : 2005 SCC (Cri)
321] (SCC p. 622, para 21), the existence of direct proof of
common intention is seldom available and, therefore, such
intention can only be inferred from the circumstances appearing
from the proved facts of the case and the proved circumstances.
Therefore, in order to bring home the charge of common intention,
the prosecution has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of mind of all the
accused persons to commit the offence before a person can be
vicariously convicted for the act of the other.”
29. Therefore, in the ultimate analysis in the light of above factual
situation and relevant laws as applicable therein and as discussed in this
judgment there is no ground to interfere in the judgment of conviction and
sentence passed by the Trial Court in Special Case No. 200036/2010 –
judgment dated 8.9.2016 regarding all appellants / accused therefore all the
three appeals are dismissed.
30. Let the appellants undergo remaining part of the jail sentence.
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31. The disposal of the case property shall be as per the judgment of
the Trial Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VSG
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