Madhya Pradesh High Court
Phulle @ Kabuluddin vs The State Of Madhya Pradesh Thr on 7 April, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 382 of 2017
Phulle @ Kabuluddin
Vs.
State of M.P.
_______________________________________
Shri Shashi Khare Counsel for the Appellant
Shri C.P. Singh Counsel for the State
Date of Hearing : 22-3-2022
Date of Judgment : 07th - April -2022
Approved for Reporting :
Judgment
07th - April -2022
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 21-12-2016 passed by Additional Sessions Judge, Datia in S.T. No.125/2008 (Supplementary), thereby convicted the Appellant Phulle @ 2 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) Kabaluddin for offence under Section 148,302/149 of IPC and sentenced for Rigorous Imprisonment of 3 years for offence under Section 148 of I.P.C. and Life Imprisonment and fine of Rs. 5000/- in default R.I. for 6 months for offence under Section 302/149 of IPC.
2. It is not out of place to mention here that the Appellant Phulle @ Kabuluddin and co-accused Javed @ Javeli were arrested and therefore, supplementary charge sheet was filed against them. Javed @ Javeli did not appear before the Trial Court on 2-5-2016 i.e., at the stage of examination of accused and accordingly by order dated 19-5- 2016 he was declared hostile.
3. It is not out of place to mention here that the co-accused Pappu @ Matiuddin was arrested at the earliest therefore, he was tried and was convicted by judgment and sentence dated 9-3-2010. The Appellant Phulle @ Kabuluddin and co-accused Javed @ Javeli were arrested after the conviction of co-accused Pappu @ Matinuddin and accordingly, the Appellant was tried separately. The appeal i.e., Cr.A. No. 246 of 2010 has been filed by Pappu @ Matiuddin has also been heard simultaneously. In the light of the judgment passed by Supreme Court in the case of A.T. Mydeen Vs. The Asstt. Commissioner, decided on 29-10-2021 in Cr.A. No. 1306 of 2021, the evidence led in the case of Appellant Phulle @ Kabuluddin cannot be read either in favor or against the co-accused Pappu @ Matiuddin and vice versa, therefore, in order to avoid any confusion, the appeal filed by the Appellant Phulle @ Kabuluddin shall be 3 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) decided by a separate judgment.
4. It is also not out of place to mention here that according to the prosecution case, initially, the Appellant Pappu @ Matiuddin along with four other co-accused persons, killed Imambaksh and Jameel, and while fleeing away, they killed their own father Jainuddin. The present case is in relation to murder of Jainuuddin, whereas Crime No. 79/08 was registered for murder of Imambaksh and Jameel. The appellant was also tried for murder of Imambaksh and Jameel in S.T. No. 84/2008 and has been convicted and Cr.A. No. 2567/2018 arises out of judgment passed in S.T. No.84/2008. The said Criminal Appeal has also been heard simultaneously and is being decided by separate Judgment.
5. The necessary facts for disposal of the present appeal in short are that the co-accused Pappu @ Matiuddin lodged an FIR on 21-4- 2008 at about 20:30 that he is the resident of Boran Colony. He is a labourer by profession. At about 19:00, his father Jainuddin was sitting outside his shop. The complainant/co-accused Pappu @ Matiuddin has an enmity with Imambaksh and the case is pending in the Court. At that time, Imambaksh with Ali, Basheer, Patel @ Shakeel, Baksha @ Jameel, Shriram, Khunde, Bakar, Jumman, Jamal and Mouzu came there and started assaulting him. At that time, Ali fired a gun shot with an intention to kill the complainant, thereby causing injuries on his left shoulder and back. Bakar, Jamal, Mouzu and Shriram started assaulting him by lathi and danda. Basheer fired 4 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) a gun shot and his father Jainuddin came rushing in order to save him. Then Ali fired a gun shot from his .12 bore gun causing gun shot injury to Jainuddin, who died on the spot. Thereafter, with great difficulties, he has come to the police station and the dead body of his father Jainuddin is lying on the spot. The incident has been witnessed by Nathu, Saleem, Shashi, Guddu etc.
6. Accordingly, the police registered crime No. 78/2006 against Ali, Basheer, Patel @ Shakeel, Babba @ Jameel, Shriram, Khunde, Bakar, Jumman, Jamal, Mouzu and Shyam Baksh. The co-accused Pappu @ Matinuddin was sent for medical examination and it was found that he had suffered simple injuries. Alibaksh also lodged FIR against the co-accused Pappu @ Matiuddin, Appellant Phulle @ Kabuluddin, Javeli on the allegations that they have killed Imambaksh and Jameel and in order to create a false defence, the Appellant Phulle @ Kabuluddin and others have killed their own father Jainuddin. Accordingly, co-accused Pappu @ Matinuddin was arrested in Crime No. 79/2008 lodged by Alibaksh for murder of Imambaksh and Jameel. The injuries found on the body of co- accused Pappu @ Matiuddin were found to be self inflicted. Although in FIR, it was alleged that Ali had killed his father by his . 12 bore gun, whereas in Post Mortem it was found that the deceased had suffered gun shot fired by .315 bore gun. Accordingly, the charge sheet was filed against the co-accused Pappu @ Matiuddin and since the Appellant Phulle @ Kabuluddin was absconding, therefore, 5 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) charge sheet was filed under Section 299 of Cr.P.C. by showing him absconding. After the Appellant was arrested, Supplementary charge sheet was filed for offence under Sections 147,148,149,302,120B,182,211,137,194 of IPC and under Section 25/27 of Arms Act.
7. The Trial Court by order dated 13-11-2014 framed charges under Sections 148,302/149,194,182,211,120B of IPC.
8. The Appellant abjured his guilt and pleaded not guilty.
9. The prosecution examined Anupam Shrivastava (P.W.1), Gayadeen Sahu (P.W.2), Dr. M.M. Shakya (P.W.3), Naseeruddin (P.W.4), Balbhadra Singh (P.W.5), Biharilal (P.W.6), Ali Baksh (P.W.7), Gurudayal (P.W.9), Hariram (P.W.11), Mahendra Kumar Tiwari (P.W. 12), Habib Khan (P.W.15), Mauzu @ Rashi Manjoori (P.W. 16), and Atul Kumar Singh (P.W.18).
10. It is not out of place to mention here that the prosecution gave up Rajjak, Shareef, Umesh Dantare, Dr. R.S. Parihar, Islam and Ramjisharan, whereas except Shareef all other witnesses were examined in the Trial of co-accused Pappu @ Matiuddin, although Dr. R.S. Parihar was examined as defence witness.
11. The Appellant examined Shashikant Budholiya (D.W.1) Naseeruddin (D.W.2) and Guddu @ Shakir (D.W.3) in his defence.
12. The Trial Court by the impugned judgment, convicted and sentenced the appellant for the above mentioned offences.
13. Being aggrieved by the judgment and sentence passed by the 6 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) Trial Court, it is submitted by the Counsel for the Appellant Phulle @ Kabaluddin that the weapon of offence has not been seized and there was no sufficient light. The witnesses are related or they are chance witnesses.
14. Per contra, the Counsel for the State has supported the prosecution story.
15. Heard the learned Counsel for the Parties.
16. Before adverting to the facts of the case, this Court would like to consider as to whether the death of Jainuddin was homicidal in nature or not?
17. Dr. M.M. Shakya (P.W.3) has conducted the Post-mortem of the dead body of the deceased Jainuddin and found the following injuries on his body :
Dead body of a male lying supine on P.M. Table wearing whitish colour kurta with blood stains having hole at the site of the injury. Face, eyes are closed, mouth fully open, rigor mortis pass in upper limb and present in lower limb. Following injuries were present :
(I) Wound of Entry : present over the left side on chest just below nipple oval in shape 1 cm in diameter margin of the wound inverted. Multiple dotted abrasion present around the wound. Blackening is present around the wound. Wound is directed forward slightly down ward towards the right (Illegible) lateral part of the back of the lower chest at level of rib 9 th, 10th and 11th ribs. On opening of the wound is piercing subcostal muscle and ribs (6 th) along with left lung and pierce of (illegible) part of the (illegible) lateral part of the chest.
(ii) Wound of the Exit : Lacerated wound present margin of the wound everted. On opening of wound 9 th and 10th ribs fractured, muscles of subcostal injured directed towards left communicate with the trace injury no.1.
(iii) A lacerated wound gutter shaped present over the right upper anterior shoulder size 4 x 2 cm x ½ cm from 7 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) below to upward margins of the lower part of the inverted and upper part of the wound everted. Blackening present over the lower part of the wound.
(iv) Abrasion wound present over the right ear lower part of ear lobe black in colour ½ x ½ cm.
The deceased was very linear thin body built.
All injuries were ante-mortem in nature caused by gun shot fire arm injury. Time since death within 2 hours from P.M. Examination.
Bullet present inside cloth kurta at the injury site no. 3 taken out, sealed and handed over to the above P.C., P.S. Bhander.
Kurta with blood stained having holes sealed and sent to S.O., P.S. Bhander. Swab taken from wound sealed and sent to S.O., P.S. Bhander along with seal sample.
In the opinion cause of death is shock due to excessive hemorrhage from the injured heard caused by fire arm injury. Duration time since death within 2 hours from P.M. Examination. The Post-mortem report is Ex. P.3.
18. This witness was cross-examined and in his cross-examination, this witness stated that he relies on Modi's Medical Jurisprudence. Police had not informed that at what time, the deceased had died. The gun shot was fired from front from the distance of 3 to 10 ft.s. The deceased had two entry wounds. He further stated that injury no. 3 had blackening but did not find any bullet inside the injury. There was no exit wound for injury no.3. The deceased had taken food about 2 to 4 hours prior to his death. Balbhadra had brought the dead body of Jainuddin on 22-4-2003 at 15:00 and post-mortem was started immediately after receiving the dead body. The age of the deceased was around 65 years. He stated that the injury no. 3 could not have been caused by pellet. If the bullet passes by touching the body, then injury no. 4 could have been caused.
19. Thus, it is clear that the death of Jainuuddin was homicidal in 8 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) nature.
20. Now the next question for consideration is that whether the Appellant Phulle @ Kabuluddin had killed his father Jainuuddin or not?
21. Naseeruddin (P.W.4) who is related to the Appellant turned hostile and did not support the prosecution case.
22. Ali Baksh (P.W. 7) has stated that the co-accused Javeli and the Appellant Phulle are known to him. On 21-4-2008 at about 7:45- 7:30 P.M., he was in the shop of Imambaksh. At that time, Inder, Jameel, Imam and Rajjak were also there, however, Rajjak went to take polythene. The co-accused Pappu came there and challenged as to whether Imambaksh is ready to compromise the matter in 307 matter or not, however, his brother Imambaksh did not reply immediately and on this the co-accused Pappu fired at Imambaksh as a result he sustained injuries on his chest and abdomen. Jameel tried to intervene in the matter, then the Appellant and his companions came forward and Phulle fired at Jameel causing injury on his cheek. Thereafter, their companions fired in the air. Jameel also fell down. He raised an alarm and Rajjak etc came running there and started picking up Imambaksh and Jameel. Imambaksh had expired on the spot. Imambaksh and Jameel were taken to hospital on the Rickshaw. All other accused persons were telling the Appellant Pappu that they have done their work, and now the Appellant Pappu should do his work. When he reached to the hospital, he was informed by the 9 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) Doctor that Imambaksh has expired, and Jameel should be immediately taken to Gwalior. Thereafter, they brought Jameel to Gwalior in a maruti car. Jameel breathed his last on his way to Gwalior. He was declared dead in Sahara Hospital. Thereafter, they brought back the dead body of Jameel to Bhander. He lodged the report at Bhander. Later on he came to know that the Appellant Phulle, Balle, Lalu, Javeli, Pappu etc. have killed their father Jainuddin. The police had interrogated him in connection with murder of Jainuddin. The police had seized his gun and license vide seizure memo E. P.12. He further stated that police papers, etc were also seized from him vide seizure memo Ex. P.13. This witness was cross-examined.
23. In cross-examination, this witness stated that the spot at which Jainuddin was shot is visible from the spot where Imambaksh had died. He admitted that he had not seen anybody causing gun shot injury to Jainuddin. On 22-4-2008 at 1:00, when he went to Police Station Bhander in order to lodge report regarding murder of Imambaksh and Jameel, then he came to know that Jainuddin has been killed. He had given an application to S.P. Datia for free and fair investigation. When the co-accused Pappu had shot Imambaksh, he was not having any injury. He denied that Jainuuddin died due to gun shot fired from .12 bore gun. He admitted that he had lodged the FIR after 6-7 hours of the incident. He denied that he had killed Jainuddin. On the date when his gun was seized, he was having 8 10 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) live cartridges and 2 empty cartridges. He stated that at the time of purchasing the gun, the shopkeeper had fired twice in order to check the gun. He admitted that there is no endorsement on his license, that 2 shots were fired at the time of sale of gun. Thus, it is clear that this witness has not seen the incident of murder of Jainuddin, but he is the witness of murder of Imambaksh and Jameel.
24. Gurudayal (P.W.9) has stated that he knows the Appellant Phulle. It was about 7-7:30 P.M. He was near the shop of Imambaksh. Co-accused Pappu, Appellant Phulle and 2-3 more persons came there along with country made pistol, and co-accused Pappu fired a gun shot in the abdomen of Imambaksh. Imam fell down, thereafter, his son came, who was shot by Appellant Phulle causing injury on temporal region. Thereafter, co-accused Phulle ran towards Bhander and others including Appellant Phulle ran towards Sankatmochan. Thereafter, he went back to his house. This witness was cross-examined.
25. Although this witness had stated about the incident of murder of Imambaksh and Jameel, but did not utter a single word regarding murder of Jainuddin. The only inference which can be drawn from the evidence of this witness is that at the time of murder of Imambaksh and Jameel, the co-accused Pappu was not having any injury and the Appellant Phulle along with others ran towards Sankatmochan.
26. Hariram (P.W. 11) has stated that it was 7-7:30 P.M. He was 11 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) purchasing grocery from the grocery shop. He heard the noise of gun shot. He hide himself near Sankatmochan Temple. He saw that the Appellant Phulle and 3-4 persons were having country made pistol. Appellant Phulle shot his father. Since, this witness was unable to disclose the name of father of the Appellant, therefore, he was declared hostile and on cross-examination by the public prosecutor, he admitted that in his police statement, Ex. D.3, he had disclosed the name of father of the Appellant as Jainuuddin. He on his own clarified that since, incident had taken place long back, therefore, he had forgotten the name of the father of the Appellant Phulle. This witness was cross-examined. He admitted that he is the resident of Mustara which is approximately 20 Km.s away from Bhander. He had come in the morning on a tractor. However, was not in a position to disclose the name of the owner of the tractor. He further stated that after the incident, he went back on different tractor, but stated that he doesnot want to disclose the name of owner of the said tractor. He admitted that he had not given any information to the police about the incident. He specifically denied that he had not seen the Appellant causing gun shot injury to his own father.
27. Mahendra Kumar Tiwari (P.W. 12) has stated that he knows the Appellant Phulle. Jainuddin, Imambaksh and Jameel were also known to him. It was around 7 P.M. He was going towards Sankatmochan temple. He saw that the Appellant Phulle along with 3-4 persons was coming from the side of the shop of Imam and they 12 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) were having country made pistols. Earlier, co-accused Pappu had shot Imam and Appellant Phulle had shot Jameel. Co-accused Pappu ran towards the Police Station, whereas Appellant Phulle and his companions ran towards temple. The Appellant Phulle shot his father Jainuddin as a result he fell down and died on the spot. Thereafter, the assailants ran towards Ghasiyana from the side of the Temple. He went to his house. When Imambaksh and Jameel were shot, they were in their shop. Imambaksh and Jameel were taken to the Hospital by their family members. Jameel was referred to Gwalior. This witness was cross-examined.
28. In cross-examination, he stated that he was going to Temple for burning incense stick. He denied that the place of incident is not in between his house and temple. He denied that he was not mentally fit on the date of incident and his treatment was going on. He had seen that the assailants were going to the shop of Imambaksh from the side of Sankatmochan Temple. He admitted that if some body is going towards the shop of Imambaksh from the side of Sankatmochan Temple, then only his back would be visible. He admitted that he did not go to the shop of Imambaksh. He denied that Jainuddin was killed by Ali and his family members and stated on his own that Jainuddin was killed by Appellant Phulle. Jainuddin was in his shop at the time of incident. Gun shot was fired from the front. Jainuddin was shot after 5-6 minutes of murder of Imambaksh. After causing gun shot injury to Jainuddin, the Appellant Phulle and his 13 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) companions ran towards Sankatmochan Temple. Thereafter, he went back to his house.
29. Habib Khan (P.W. 15) has stated that he was standing at Sarsai Square along with handcart for labour purposes. He saw that the co- accused Pappu came and shot Imambaksh, thereafter, his son Jameel came in order to save him, then the Appellant Phulle shot him. Then he ran away from the spot and went towards the house of Inder Ghosi. Jainuuddin, who was aged about 80-90 old was shot by the Appellant Phulle. This witness was cross-examined.
30. In cross-examination, he admitted that the house of Imambaksh is adjoining to his house and this witness is a labourer and shifts items on his handcart. He is doing labour work for the last 14-15 years. There is no shop near the shop of Jainuddin. Jainuddin was dragged out and was shot by the Appellant Phulle. Jainuddin was shot while he was standing. Only the Appellant Phulle had shot Jainuuddin, no other person had fired at Jainuddin. He had seen the appellant Phulle firing at Jainuddin. As the market had remained closed for 2 days, therefore, he went to market after 2 days of incident. He denied that he was not present on the spot. He also denied that he had not seen the incident. He denied that co-accused Pappu and Appellant Phulle had not killed Imambaksh and Jameel.
31. Mouzu @ Rashid (P.W.16) has stated about the murder of Imambaksh and Jameel and stated that later on he came to know that the assailants had killed their father Nange Chacha also. Thus, it is 14 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) clear that he is not the witness of incident of murder of Jainuddin.
32. Atul Kumar Singh (P.W. 18) is the investigating officer.
33. Thus, it is clear from the evidence of Hariram (P.W.11), Mahendra Kumar Tiwari (P.W. 12) and Habib Khan (P.W.15), the Appellant Phulle shot his father Jainuddin. It is clear from the evidence of Ali Baksh (P.W.7), Gurudayal (P.W.9) and Mouzu @ Rashid Manzoori (P.W. 16), that the co-accused Pappu, Appellant Phulle and 3-4 persons killed Imambaksh and Jameel and while fleeing away, the Appellant shot his father Jainuddin and co-accused Pappu went to the police station, and lodged a report against 11 persons including the deceased Imambaksh and Jameel, alleging that they have killed Jainuddin.
Whether all the Eye-witnesses are Related witnesses
34. It is submitted by the Counsel for the Appellant, that all the witnesses are related and interested witnesses.
35. The aforesaid submissions made by the Counsel for the Appellant is not correct. Naseeruddin (P.W.4) who is related to the Appellant has turned hostile and did not support the prosecution case. Alibaksh (P.W.7) is the brother of deceased Imambaksh, whereas Mouzu @ Rashi Manzoori (P.W. 16) is the son of Alibaksh. Gurudayal (P.W.9), Hariram (P.W.11), Mahendra Kumar Tiwari (P.W.12) and Habib Khan (P.W.15) are independent witnesses. Hariram (P.W.11) is also. So far as Alibaksh (P.W.7) and Mouzu @ Rashi Manzoori (P.W.16) are concerned, their testimony cannot be 15 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) rejected merely because they are brother and nephew of the deceased Imambaksh. Further, both these witnesses were in their shop and the incident took place in their shop. Therefore, their presence on the spot is natural. Further more, merely because a witness is a related witness, would not mean that he would spare the real culprit. The Supreme Court in the case of Rupinder Singh Sandhu v. State of Punjab, reported in (2018) 16 SCC 475 has held as under :
50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits.
36. The Supreme Court in the case of Shamim Vs. State (NCT of Delhi) reported in (2018) 10 SCC 509 has held as under :
9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.............
37. The Supreme Court in the case of Rizan v. State of Chhattisgarh, reported in (2003) 2 SCC 661 has held as under :
6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In Dalip Singh v. State of Punjab it has been laid down as under: (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 16 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) 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 generalization. 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."
8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case 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."
10. Again in Masalti v. State of U.P. this Court observed:
(AIR pp. 209-10, para 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 17 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) the sole ground that it is partisan would invariably lead to failure of justice. No hardand-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."
11. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana.
38. Why a "related witness" would spare the real culprit in order to falsely implicate some innocent person? There is a difference between "related witness" and "interested witness". "Interested witness" is a witness who is vitally interested in conviction of a person due to previous enmity. Further more, why a related witness would spare the original assailant. Even according to the defence, the Appellant Pappu could have inflicted the injuries to himself. The "Interested witness" has been defined by the Supreme Court in the case of Mohd. Rojali Ali v. State of Assam, reported in (2019) 19 SCC 567 as under :
13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested"
witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani v. Rayapati Venkat Reddy). Recently, this difference was reiterated in Ganapathi v. State of T.N., in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki: (Ganapathi case, SCC p. 555, para 14) 18 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) "14. "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"."
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, wherein this Court observed: (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 relative would be the last to screen the real culprit and falsely implicate an innocent person."
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
39. Thus, the testimony of Alibaksh (P.W.7) and Mouzu @ Rashi Manzoori (P.W.16) cannot be discarded only on the ground that they are related witnesses. Further more they are not the eye-witnesses of 19 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) incident of murder of Jainuddin. They are the witnesses of the murder of Imambaksh and Jameel.
Whether the testimony of independent witnesses is not reliable as they did not immediately narrated the incident to the police on their own.
40. It is next contended by the Counsel for the Appellant that other witnesses did not approach the police on their own, and narrated the incident only when they were called by the police, therefore, they appear to be tutored and created witnesses.
41. Considered the submissions made by the Counsel for the Appellants.
42. The Supreme Court in the case of Nirpal Singh v. State of Haryana, reported in (1977) 2 SCC 131 has held as under :
10. The last of the eyewitnesses is PW 22 Rattan Singh whose evidence has also been believed by the Sessions Judge who observed as follows:
"The fact that his name was not recorded in the first information report in a way shows that it was not a case of planned first information report otherwise his name would have been mentioned therein. After going through the statement of Ratan PW I feel inclined to hold that it also inspires confidence and is true."
The High Court also came to a similar finding as follows:
"Because of his disinterestedness the evidentiary value of the testimony of Rattan Singh deserves a considerable weight."
Counsel for the appellants vehemently contended that as the name of Rattan Singh was not mentioned in the first information report, although the eyewitnesses Sadhu Ram and Inder Kaur have categorically stated that another Rattan Singh of Siria was present at the occurrence, the Court should hold that Rattan Singh is a made-up witness. To begin with, this is essentially a question of fact which was fully noticed by the two courts of fact and in spite of that 20 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) the courts of fact have believed the evidence of PW 22 Rattan Singh. Secondly, the mere fact that his name was not given in the FIR, though of some relevance, would not be sufficient by itself to entail rejection of the testimony of this witness. We must realise that five persons had been killed and the informant Sadhu Ram must have been stunned and stupefied at the ghastly murders that took place in his presence and had picked up sufficient courage to run to the Police Station to lodge the FIR. It may be that in view of that agitated mental condition he may have omitted to mention the name of Rattan Singh. The mere fact that Rattan Singh s/o Siri, Ram is not mentioned in the FIR does not establish that Rattan Singh PW 22 could not have seen the occurrence. It is possible that both these persons may have witnessed the occurrence and the informant mentioned the name of one and not the other. Other comments were also made against Rattan Singh which have been considered by both the trial court and the High Court. Both the courts have held that the evidence of this witness inspires confidence. Strong reliance was placed on the conduct of the witness in not reporting to the police officer immediately when he came to the spot. The witness was, according to the findings of the Sessions Judge and the High Court, an independent one and was not at all connected with the litigations between the appellants and the deceased. He, therefore, must have disclosed the version before the police only when he was asked to do so, because he had no interest in the matter at all. For these reasons, we do not see any reason to take a view different from the one taken by the Courts below regarding the credibility of this witness.
(Underline supplied)
43. Even otherwise, now a days, independent witnesses hesitate in coming forward to depose for various reasons. The Supreme Court in the case of Ambika Prasad v. State (Delhi Admn.), reported in (2000) 2 SCC 646 has held as under :
12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW
7. This submission also deserves to be rejected. It is a 21 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh this Court observed: (SCC pp.
691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
44. Therefore, if the independent witnesses did not come forward on their own, and narrated the incident only when they were summoned by the police, this Court is of the considered opinion, that no adverse inference can be drawn against such witnesses. Further more, as per Section 179 of IPC, a person is under obligation to state the truth on any subject to any public servant, otherwise, his refusal to do so would be punishable under Section 179 of IPC. Chance witnesses
45. It is submitted by the Counsel for the Appellant that according to the prosecution case, Gurudayal (P.W.9), Hariram (P.W.11), Mahendra Kumar Tiwari (P.W.12) and Habib Khan (P.W.15) were not 22 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) related to the family of deceased, but Gurudayal (P.W.9), Hariram (P.W.11), are the residents of different villages, whereas Mahendra Kumar Tiwari (P.W. 12) is not the resident of place of incident. Habib Khan (P.W.15) is resident of Sitola Colony, Bhander. Thus, it is clear that none of the witness examined by the prosecution is the resident of the locality where incident took place. Thus, it is clear that all the independent eye-witnesses are chance witnesses.
46. Heard the learned Counsel for the Appellant.
47. The Supreme Court in the case of State of U.P. Vs. Anil Singh reported in 1988 Supp SCC 686 has held as under :
24. The reason given by the High Court for disbelieving the evidence of Chhotey Lal PW 2 is fanciful. PW 2 is a resident of the Village Astiya. The village is at a distance of two miles from Pukhrayan town. It will be seen from his evidence that he along with Baijnath and Manuwa Maharaj
-- all residents of the same village had gone to the town for their requirements. PW 2 wanted iron nails, Manuwa required vegetables and Baijnath had to purchase iron rods.
After purchasing the respective goods, they proceeded towards their village. When they reached the tehsil, they came across 3-4-5 boys who told them that there was Bal Mela and cultural programme in the Normal School. It was natural for them to stay on to see the cultural programme. They came to their grain dealer. They kept their articles at his place and after some time they started towards the Normal School at about 7.30 or 7.45 p.m. When they were approaching the Khazanchi hotel, they saw the accused assaulting KK. The evidence of PW 2 receives corroboration from PW 1. He figures as an eyewitness in the FIR. He cannot, therefore, be categorised as a chance witness.
(Underline supplied)
48. The Supreme Court in the case of Dargahi v. State of U.P., reported in (1974) 3 SCC 302 has held as under :
23
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017)
12. The prosecution has examined four witnesses of the occurrence and they have all supported the prosecution case. Out of the four eyewitnesses, Harihar Nath (PW 1) is the brother of Lachhman Prasad deceased. Harihar Nath admits enmity with the accused and that fact would make the Court scrutinise his evidence more closely. If that evidence can stand that test, it can be acted upon in spite of the inimical relations of Harihar Nath with the accused. Gur Saran PW and Behari PW, the other two eyewitnesses, have no enmity with the accused and we find no particular reason as to why they should depose falsely against the accused.
The submission made on behalf of the appellants that Gur Saran and Behari are chance witnesses and that the Court should not therefore place much reliance upon their testimony, in our opinion, is not well founded. The occurrence took place on the road going to Fatehpur. In the very nature of things the occurrence could have been witnessed by the persons going on that road. In a sense any one going on the road in question at the time of the occurrence would be a chance witness but that fact by itself would not be enough to discredit his testimony.
(Underline supplied)
49. The Supreme Court in the case of Ramvir v. State of U.P., reported in (2009) 15 SCC 254 has held as under :
14. The eyewitnesses examined in the trial cannot be said to be chance witnesses as they were the residents of the same village and at about 6.15 p.m. these eyewitnesses were moving around, some were going to their agricultural field while some were coming from their respective agricultural fields. The incident had happened near a sugarcane crop which is near the agricultural field. The time 6.15 p.m., being broad daylight, the presence of the eyewitnesses at the place of occurrence is quite natural. The witnesses being the residents of the locality, their presence at the place of occurrence could not be considered unnatural. They had no cause to give false evidence. Accordingly, their testimonies cannot be discarded.
50. The Supreme Court in the case of Harbeer Singh v. Sheeshpal, reported in (2016) 16 SCC 418 has held as under :
23. The defining attributes of a "chance witness" were explained by Mahajan, J., in Puran v. State of Punjab. It 24 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence.
51. The Supreme Court in the case of Jarnail Singh Vs. State of Punjab reported in (2009) 9 SCC 719 has held as under :
21. In Sachchey Lal Tiwari v. State of U.P. this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passerby had deposed that he had witnessed the incident, observed as under:
If the offence is committed in a street only a passerby will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.
The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh, Harjinder Singh v. State of Punjab, Acharaparambath Pradeepan v. State of Kerala and Sarvesh Narain Shukla v. Daroga Singh). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan).
23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N.).
52. The Supreme Court in the case of Baby v. Inspector of Police, reported in (2016) 13 SCC 333 has held as under :
30......The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must 25 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
53. The Supreme Court in the case of Vijendra Singh Vs. State of U.P. reported in (2017) 11 SCC 129 has held as under :
32. Mr Giri, learned Senior Counsel for the appellant has also impressed upon us to discard the testimony of PW 3, Tedha, on the ground that he is a chance witness. According to him, his presence at the spot is doubtful and his evidence is not beyond suspicion. Commenting on the argument of chance witness, a two-Judge Bench in Rana Partap v. State of Haryana was compelled to observe: (SCC p. 329, para 3) "3. ... We do not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passers-by will be witnesses.
Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."
33. Tested on the anvil of the aforesaid observations, there is no material on record to come to the conclusion that PW 3 could not have accompanied PW 2 while he was going to the shed near the tubewell. What has been elicited in the cross-examination is that he was not going daily to the tubewell. We cannot be oblivious of the rural milieu. No adverse inference can be drawn that he was not going daily and his testimony that he had accompanied PW 2 on the fateful day should be brushed aside. We are convinced that his evidence is neither doubtful nor create any suspicion in the mind.
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Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017)
34. Thus, the real test is whether the testimony of PWs 1 to 3 are intrinsically reliable or not. We have already scrutinised the same and we have no hesitation in holding that they satisfy the test of careful scrutiny and cautious approach. They can be relied upon.
54. If the evidence of Gurudayal (P.W.9) and Hariram (P.W.11) is considered, then it is clear that they are the residents of villages which are only few Km.s away from Bhander. Bhander is a Tahsil and therefore, if a person who is residing in a nearby village, comes to a Tahsil to purchase goods, then it cannot be said that his conduct is unnatural. The Appellant has failed to prove that Gurudayal (P.W.9) and Hariram (P.W. 11) are interested witnesses. The incident is alleged to have taken place in the mid of market, therefore, the presence of independent witnesses at the spot or at a nearby place of incident is natural and it cannot be said that they are chance witnesses.
55. Further more, Mahendra Kumar Tiwari (P.W. 12) is resident of Hanumantpura Colony, Bhander. Habib Khan (P.W.15) is the resident of Bhander and his house is adjoining to the house of Imambaksh. The shop of deceased Jainuuddin is situated quite nearer to Hanuman temple and the house of Mahendra Kumar Tiwari (P.W. 12) is situated near Hanuman Temple. Further, lot of persons visit temples regularly to offer their prayers. If Mahendra Kumar Tiwari (P.W. 12) was in the Hanuman Temple to burn incense stick, then his presence on the spot is natural. Habib Khan (P.W.15) is also the resident of Sitola Colony, Bhander. Thus, these witnesses are the resident of nearby locality 27 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) and Bhander is a Tahsil and not a big town. Thus, the presence of independent witnesses on the spot is natural and it cannot be said that they are created witnesses.
Whether the Prosecution deliberately diverted the investigation and whether the FIR lodged by Appellant was correct?
56. It is submitted by the Counsel for the Appellant Phulle, that the prosecution has deliberately diverted the investigation in order to save the complainant party, and therefore, the investigation is tainted and biased.
57. Considered the submissions made by the Counsel for the Appellant Pappu.
58. The co-accused Pappu in his FIR, Ex. P. 21 had alleged that 11 persons namely Ali, Basheer, Patel @ Shakeel, Babba @ Jameel, Shriram Nanha, Khunde, Bakar, Jumman, Jamal, Mouzu, and Imambaksh have killed his father Jainuddin.
59. In fact the Appellant Phulle has tried his level best to bring some evidence on record to suggest that the incident of murder of Imambaksh and Jameel took place after the murder of Jainuddin, but all the witnesses have specifically stated that the incident of murder of Jainuddin took place after the murder of Imambaksh and Jameel. Although Imambaksh had expired on the spot, but Jameel was seriously injured and his condition was critical and he was taken to hospital, therefore, the presence of Imambaksh and Jameel at the time of murder of Jainuddin was impossible. It is the prosecution case, 28 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) that the co-accused Pappu had lodged a false report against 11 persons in order to create a false case against the complainant party. Therefore, the allegation made by the co-accused Pappu in his FIR, Ex. P.21 that Imambaksh and Jameel were also amongst the assailants, clearly falsify his stand because Imambaksh was already dead and Jameel was lying in an injured condition and his condition was critical.
60. Thus, it is incorrect to say, that the prosecution has deliberately diverted the investigation in order to save the complainant party. Whether the medical evidence is consistent with the allegations made in FIR, Ex. P.21 or not?
61. According to Post-mortem report, the deceased had suffered a bullet injury. The co-accused Pappu had alleged in his FIR, Ex. P.21 that Ali (P.W.7) had fired from his .12 bore gun. The police had seized one .12 bore gun from Alibaksh (P.W. 7) vide seizure memo Ex. P. 12.
62. Bullet Cartridge is used in .315 bore gun, whereas pellet cartridge is used in .12 bore gun. A bullet injury was found on the dead body of Jainuddin and even a fired bullet was also recovered from the dead body of Jainuddin. In the F.S.L. report, Ex. P.30, it has been specifically opined that the fired bullet matches with authentic . 315 caliber cartridge and it was also specifically opined that the fired bullet is not a part of .12 bore cartridge. Thus, the allegation of the co-accused Pappu in his FIR, Ex. P.21 that Alibaksh (P.W.7) caused 29 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) gun shot injury to Jainuddin by his .12 bore gun is false and is contrary to medical evidence. Thus, it is clear that false FIR, Ex. P.21 was lodged by the co-accused Pappu.
Why the sons would kill their own father
63. From the post-mortem report, Ex. P. 3, it is clear that the dead body of the deceased was very linear thin body built. Further, from Photographs, Ex. P.36, the deceased was a very thin person and was wearing Kurta and not even lower or underwear. In the post-mortem report, Ex. P.3 also, Dr. M.M. Shakya (P.W. 3) had mentioned that dead body was wearing whitish colour kurta with stains of blood having hole at the site of injury. No other cloth was found on the body of the deceased. Further, Mouzu @ Rashid (P.W.16) has said that he came to know that the Appellant had killed his father Nanga Chacha. Thus, it is clear that the deceased was not even getting nutritious and sufficient food, therefore, he was a linear thin personality which is also visible from his photographs Ex. P.36. Therefore, it is clear that his sons were not looking after him. Thus, it is clear that the sons of deceased Jainuddin had no affection and attachment with him.
Non-Recovery of Weapon
64. It is submitted by the Counsel for the Appellant that the weapon allegedly used in this offence has not been recovered, therefore, the prosecution has failed to prima facie prove that it was the Appellant who shot his father Jainuddin.
30
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017)
65. Heard the learned Counsel for the parties.
66. It is true that the prosecution has not proved the seizure of gun from the Appellant Phulle in this case, but that would not give any dent to the prosecution case.
67. It is suffice to mention here that recovery of weapon is not essential to prove the guilt of the accused. In case if the accused succeeds in hiding the weapon of offence, and police fails to recover the same, then he cannot take advantage of his own cleverness. The Supreme Court in the case of Rakesh Vs. State of U.P. reported in (2021) 7 SCC 188 has held as under :
12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non.
68. The Supreme Court in the case of Gulab Vs. State of U.P. by order dated 9-12-2021 passed in Cr.A. No. 81/2021 has held as under :
17. The deceased had sustained a gun-shot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution.....
69. The Supreme Court in the case of Krishna Gope v. State of Bihar, (2003) 10 SCC 45 has held as under :
31
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017)
8. Learned counsel further pointed out that the country-made firearm alleged to have been used by the appellant was not recovered by the police and the same was not sent to the police station. The learned counsel submitted that the investigation was not properly done and that the appellant is entitled to the benefit of doubt. In our view, this plea is not tenable. The house of the appellant was searched immediately after the incident, but the police could not recover the weapon of offence from his house. It appears that the appellant had succeeded in concealing the weapon before the police could search his house. In our opinion, the fact of non-recovery of the weapon from the house of the appellant does not enure to his benefit.
70. Thus, the non-recovery of weapon of offence would not make the direct evidence unreliable.
71. No other argument is advanced by the Counsel for the Appellant.
72. From the evidence which has come on record, it is clear that initially, the Appellant Phulle @ Kabaluddin along with 4 other persons shot Imambaksh and Jameel and while fleeing away they killed their own father Jainuuddin, thus, it is held that the Appellant Phulle @ Kabaluddin was the member of Unlawful Assembly and in furtherance of Common Object, the deceased Jainuddin was killed.
73. Accordingly, the Appellant Phulle @ Kabuluddin is held guilty of committing offence under Sections 148 and 302/34 of IPC.
74. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment, therefore, the sentence awarded by the Trial Court doesnot call for any interference.
75. Ex-Consequenti, the Judgment and Sentence dated 21-12-2016 32 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 382 of 2017) passed by Additional Sessions Judge, Datia in S.T. No. 125 of 2008 (Supplementary) is hereby Affirmed.
76. The Appellant Phulle is in jail. He shall undergo the remaining jail sentence.
77. Let a copy of this judgment be immediately provided to the Appellant Pappu, free of cost.
78. The record of the Trial Court be send back along with the copy of this judgment for necessary information and compliance.
79. The Appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2022.04.07 19:06:45 +05'30'