Madhya Pradesh High Court
Monu Sharma vs State Of M.P. on 31 January, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 938 of 2010
Monu Sharma & Anr.
Vs.
State of M.P.
Cr.A. No. 940 of 2010
Kamlesh & Ors
Vs.
State of M.P.
Cr.A. No. 1031 of 2010
Rajesh
Vs.
State of M.P.
Shri Pradeep Katare, Counsel for the Appellants in Cr.A. No. 938 of
2010.
Shri R.K. Sharma, Senior Counsel with Shri V.K. Agrawal for
Appellants in Cr.A. No. 940 of 2010.
Shri Prashant Sharma, Counsel for Appellant in Cr.A. No. 1031 of
2010
Shri R.K. Awasthy, Counsel for the State.
2
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
Date of Hearing : 20-1-2022
Date of Judgment : 31st-January-2022
Approved for Reporting :
Judgment
31st -January-2022
Per G.S. Ahluwalia J.
1. By this common Judgment, Cr.A.s No. 938 of 2010, filed by
Monu Sharma and Sonu Sharma, Cr.A. No. 940 of 2010 filed by
Kamlesh, Pejram and Mahesh @ Pappu and Cr.A. No. 1031 of 2010
filed by Rajesh shall be decided.
2. It is not out of place to mention here that co-accused Kallu @
Brajesh Sharma, was absconding and was arrested at a later stage and
was tried separately. He too has filed his Cr.A. No. 710/2012, and the
said appeal has also been heard simultaneously. However, the said
appeal shall be decided by separate Judgment, as evidence led in the
Trial of the co-accused has to be appreciated independently. It is also
not out of place to mention here that co-accused Bablesh was also
convicted and had filed Cr.A.No. 951/2010, but he died during the
pendency of the appeal and accordingly, by order dated 15-12-2016,
his appeal was dismissed as abated.
3. The three Criminal Appeals have been filed against the
judgment and sentence dated 30-10-2010 passed by 1 st Additional
Sessions Judge, Bhind in S.T. No. 181 of 2009 by which the
3
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
appellants have been convicted and sentenced as under :
Conviction Sentence
Under Section 148 of IPC 2 years R.I.
Under Section 302/149 of IPC on Life Imprisonment and fine of
two counts Rs. 5000/- in default 1 year R.I.
Under Section 307/149 of IPC 7 years R.I. and fine of Rs. 2000/-
in default 3 months R.I.
Under Section 323/149 of IPC on 6 months R.I.
three counts
4. According to the prosecution case, the complainant Kaptan
Singh, lodged a Dehati Nalishi on 27-4-2008, at about 15:00, on the
allegations that at about 10:00 A.M., his uncle Darru Singh was
beaten by Ramautar, Neeraj, Santosh, Guddu, Pejram, Rajesh, Sonu,
Monu, Kamlesh and Mahesh, all residents of Gauram and Kallu
Brahmin, Balu Brahmin and Moni, all residents of Bilav, on the
question of fetching water from the hand-pump, and his utensils were
thrown. They had also extended a threat to leave the village.
Thereafter, his uncle came to his house and informed the entire
incident and was taking rest under a Neem Tree. On that issue, at
about 1:30 A.M., Ramautar with .12 bore double barrel gun, Neeraj
with .315 bore Adhiya, Santosh with Mouser gun, Guddu with .315
bore Adhiya, Pejram with .12 bore double barrel gun, Rajesh with .
315 bore gun, Sonu with .12 bore single barrel gun, Monu with
Mouse, Kamlesh with .12 bore single barrel gun, Mahesh with
Mouser, Kallu with licensed Mouser, Ballu with .12 bore gun, Moni
with .315 bore pistol came near to the house with an intention to
4
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
attack. They started abusing. Thereafter, the complainant, Rai Singh,
Ravindra, Dilip, Prem Singh, Shyamveer requested them with folded
hands not to behave in such a manner, but they did not stop. Rajesh
and Kallu fired gun shots. Gun shot fired by Kallu hit Rai Singh on
his ribs whereas gun shot fired by Rajesh hit in abdominal region of
Ravindra as a result, both of them fell down and blood started oozing
out. Thereafter, all the accused persons started firing indiscriminately
causing injuries on shoulder of Prem Singh, thumb of Dilip Singh,
and on the back side of the shoulder of Shyamveer Singh. Rai Singh
and Ravindra have expired.
5. On this information, the police registered FIR in crime No.
10/2008 for offence under Sections 147,148,149,294,302 of IPC. The
dead bodies of the deceased Rai Singh and Ravindra Singh were sent
for post-mortem. The spot map was prepared. The statements of
witnesses were recorded. The appellants were arrested and after
completing the investigation, police filed charge sheet for offence
under Sections 302,147,148,149,294 of IPC.
6. The Trial Court by order dated 8-10-2009 framed charges
under Sections 148, 302/149 of IPC for murder of Rai Singh and
Ravindra Singh, under Section 307/149 for making an attempt to kill
Prem Singh, Kaptan Singh and also under Section 323/149 of IPC for
causing injuries to Kaptan Singh, Prem Singh, Dilip and Shyamveer.
7. The appellants abjured their guilt and pleaded not guilty.
5
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
8. The prosecution examined Kaptan Singh (P.W.1), Binda
(P.W.2), Dilip (P.W.3), Darru Singh (P.W.4), Dr. U.P.S. Kushwaha
(P.W.5), Prem Singh (P.W.6), Pooran (P.W.7), Shrikrishna (P.W.8), Dr.
R.N. Rajouria (P.W.9), Shyamveer (P.W.10), Jaiprakash (P.W.11),
Ramesh Kumar (P.W. 12), Hargovind Singh (P.W. 13), Dr. K.K. Dixit
(P.W.14) and Sanjeev Kumar (P.W. 15).
9. The appellants examined Najra (D.W.1), and Kedarnath
(D.W.2) in their defence.
10. The Trial Court by the impugned judgment convicted and
sentenced the appellants for the offences mentioned above.
11. Challenging the judgment and sentence passed by the Court
below, the Counsel for the appellants submitted that all eye-witnesses
are related witnesses, and from admissions made by them, it is clear
that they are "Interested witnesses." The appellants Ramautar,
Pejram, Rajesh, Kamlesh and Mahesh are sons of Ramlakhan,
whereas the appellants Sonu and Monu are sons of Appellant Pejram.
Similarly, Neeraj, Santosh and Guddu are sons of Appellant
Ramautar. Thus, it is clear that entire family members were falsely
implicated. The prosecution has suppressed the very first information
which was lodged by Darru, therefore, the very genesis of the
incident has been suppressed. There are material discrepancies in the
ocular and medical evidence. The incident is alleged to have taken
place only on the question of fetching water from the hand-pump.
6
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
Even according to the prosecution case, the appellants had some
grudge against Darru, and although Darru was also present on the
spot, but no attempt was made to cause any injury to him, therefore,
the motive attributed by the prosecution is unreliable. The weapons
of offence have not been recovered. Neither any fired bullet was
recovered, nor any gun shot marks were found on the walls, which
clearly indicates that the allegations of indiscriminate firing by
Appellants Monu, Sonu, Kamlesh, Prejram and Mahesh is false. FIR
was lodged after due deliberations. No independent witness was
examined. Since the direction of gun shot injury sustained by Rai
Singh and Ravindra was downward therefore, it is clear that the
assailant was standing at a height, but the spot map doesnot show any
high place from where the gun shots could have been fired. The
distance between the dead bodies and the place from where the empty
cartridges were seized was 65 ft., which donot corroborate the ocular
as well as documentary evidence. Or in the alternative, since, the
firing was alleged to have taken place all of a sudden, without any
premeditation and the appellants did not act in cruel manner,
therefore, their act is punishable under Section 304 Part I of IPC. The
co-accused Ramautar, Neeraj, Santosh and Guddu were arrested at a
later stage and accordingly they were tried separately, and the
witnesses turned hostile and did not support the prosecution case,
therefore, it is clear that they had adopted the policy of pick and
7
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
choose. It is further submitted that Moni was juvenile and although
he was convicted by Juvenile Justice Board, but he was acquitted in
appeal.
12. Per contra, the Counsel for the State has supported the
prosecution case as well as the findings recorded by the Trial Court.
13. Heard the learned Counsel for the parties.
14. Before adverting to the facts of the case, this Court would like
to find out as to whether the death of Rai Singh and Ravindra Singh
was homicidal in nature or not?
15. Dr. R.N. Rajouria (P.W. 9) had conducted the post-mortem of
dead bodies of Ravindra and Rai Singh and found the following
injuries on the body of Ravindra :
(i) Wound of Entry - 1 cm in diameter on left costal
margin 6 cm away from midline of chest margins are
inverted.
(ii) Wound of Exit - Size 3 cm x 2 cm in size on right
side of back below the lowest lower rib, 12 cm away from
midline of back.
Both wounds are interconnected through and
through. Direction of trace is left to right anterior to
posterior and above to downward. Margins of exit wound
are everted. Soft tissue protruded out.
On internal examination, lower part of stomach was
found ruptured, loops of small and long intestine ruptured,
liver was massively ruptured and right kidney was ruptured.
The cause of death was shock due to extensive
hemorrhage caused by gun shot. Homicidal in nature
duration of death within 12 hours.
The post-mortem report is Ex. P.12.
16. The following injuries were found on the dead body of Rai
Singh :
8
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
(i) Wound of Entry - 2 cm in diameter on left side of
chest in anterior axillary line at the level of nipple. Margins
are inverted.
(ii) Wound of Exit - 3 cm x 2 ½ cm on right side of back
at the level of 12th vertebra just below the 12th rib. Margins
are everted. Soft tissue protruded out. Blood coming out.
Both wounds are interconnected, direction of track is left to
right, anterior to posterior and above downward.
On Internal Examination : Lower lobe of Left lung was
ruptured, left pleura was ruptured
Cause of death was shock due to extensive hemorrhage and
damage to vital organs caused by gun shot. Duration is
within 12 hours.
17. The post-mortem report is Ex. P.13.
18. This witness was cross-examined. In cross-examination, this
witness admitted that the gun shots were fired from a distance of
more than 6 ft.s because neither blackening nor charring was present.
Both the deceased had suffered one injury each. The post-mortem of
both the dead persons was conducted one by one. Half an hour is
required for conducting post-mortem of one dead body. This witness
was not in a position to say that since, the diameter of entry wound
found on both the dead persons was different, therefore, whether gun
shots were fired from two different weapons and from different
distance or not? Since, the direction was downward, therefore, this
witness was not in a position to say as to whether the assailant was
standing at a height or the barrel was downward. He denied that the
gun shots were fired from a distance of more than 12 ft.s.
19. Thus, it is clear that although the direction of bullet track was
downward, but the angle was not so steep, therefore, it cannot be said
9
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
that the gun shots were fired from a height, but the accused might be
taller than deceased.
20. Thus, it is clear that the deaths of Ravindra and Rai Singh was
homicidal in nature.
21. Now the next question for determination is that whether the
appellants have committed any offence or not?
22. The present appeals have been filed by 6 accused persons, and
therefore, they can be placed in two different categories :
(i) Accused who caused injuries to the deceased persons:
(ii) Accused who were the members of Unlawful Assembly and
allegedly fired indiscriminately causing injuries to Prem Singh
(P.W.6), Dilip (P.W.3) and Shyamveer (P.W.10).
23. Appellant Rajesh in Cr.A. No. 1031 of 2010 is the accused,
against whom the allegations are that he had caused gun shot injury
to the deceased Ravindra ;
Appellants Sonu, Monu, Kamlesh, Pejram and Mahesh @
Pappu were allegedly armed with firearms and were the members of
Unlawful Assembly and fired indiscriminately.
Appellants Sonu, Monu, Kamlesh, Pejram and Mahesh @ Pappu
24. As already pointed out, in the Dehati Nalishi, Ex. P.1, it was
alleged by Kaptan Singh (P.W.1) that Appellants Sonu, Monu,
Kamlesh, Pejram and Mahesh @ Pappu were also armed with
firearms, and after the deceased Rai Singh and Ravindra were shot by
10
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
Rajesh and Kallu, gun shots were fired by these five appellants
causing injuries to Prem Singh, Dilip and Shyamveer. Thus, there
was no allegation of causing any gun shot injury to the deceased
persons.
25. Prem Singh (P.W.6) was medically examined by Dr. U.P.S.
Kushwaha (P.W.5) and found following injuries on his body :
Contusion 3 x 1 cm shoulder hard and blunt object.
The MLC is Ex.P.10.
26. Shyamveer Singh (P.W. 10) was also medically examined by
Dr. U.P.S. Kushwaha (P.W.5) and found following injuries on his
body :
(i) Contusion 6 x 4 cm right calf
(ii) Contusion 3 x 2 cm on right thigh
(iii) Contusion 2 x 1 cm over left shoulder
All injuries were caused by hard and blunt object.
The M.L.C. is Ex. P.11.
27. In cross-examination, this witness admitted that the injuries
found in M.LC., Ex. P.10 and P.11 were not caused by any
firearm. The injuries were caused within 12 hours.
28. Dilip (P.W.3) was medically examined by Dr. K.K. Dixit
(P.W.14) and found following injuries on his body :
(i) Lacerated wound with size of 1.5x5x.5 healing on
anterior side of right thumb;
(ii) Contusion with abrasion with healing sign on left leg
below knee 4 x 3 cm
This witness was medically examined on 29-4-2008 and the
duration of injuries was 2 to 3 days.
11
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
The M.L.C. report is Ex. P.19
29. This witness was cross-examined and in his cross-examination,
this witness specifically admitted that the injuries were not caused
by bullet or pellets.
30. Thus, it is clear that although in the Dehati Nalishi (Ex. P.1), it
was alleged that the Appellants Sonu, Monu, Kamlesh, Pejram and
Mahesh @ Pappu also fired gun shots causing injuries to Prem Singh
(P.W.6), Shyamveer (P.W.10) and Dilip (P.W. 3) but no gun shot
injuries were found on their body.
31. Kaptan Singh (P.W.1) in his examination-in-chief has stated
that Kamlesh assaulted his brother Prem Singh (P.W.6) by the handle
of the gun, Ballu caused gun shot injury on the thumb of Dilip
(P.W.3), and Mahesh caused gun shot injury to Shyamveer (P.W.10).
In para 12 of his cross-examination, this witness had stated that
although he had disclosed that Kamlesh had assaulted Prem Singh
(P.W. 6) by handle of the gun, but could not explain as to why that
fact was not mentioned in the Dehati Nalishi, Ex. P.1 and his police
statement, Ex. D.1.
32. Binda (P.W.2) has stated that Prem Singh (P.W.6), Shyamveer
(P.W.10) and Dilip (P.W.3) had also sustained gun shot injuries.
33. Dilip (P.W.3) has stated that Mahesh caused him gun shot
injury on his thumb by his .12 bore gun, whereas Ballu caused gun
shot injury to Shyamveer (P.W.10) and Kamlesh hit Prem Singh
12
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
(P.W.6) by handle of the gun. However, in para 10 of his cross-
examination, this witness has claimed although he had informed the
police that Kamlesh had hit Prem Singh (P.W.6) by the handle of the
gun and Mahesh had caused him injury by .12 bore gun and Ballu had
caused gun shot injury to Shyamveer (P.W. 10), but could not explain
as to why this fact is not mentioned in his police statement, Ex. D.2.
34. Darru (P.W.4) has stated that Dilip (P.W.3) suffered a pellet
injury on his thumb whereas his son Shyamveer (P.W.10) suffered
injury on his shoulder. In cross-examination, this witness stated that
Mahesh had caused gun shot injury on the thumb of Dilip (P.W.3),
whereas Prem Singh was assaulted by Kamlesh by handle of the gun.
However, stated that he had informed the police about causing gun
shot injury to Dilip but could not explain as to why such fact is not
mentioned in his police statement, Ex. D.3. He further claimed that
he had informed the police that Shyamveer had sustained gun shot
injury on his shoulder, but could not explain as to why that fact was
not mentioned in his police statement, Ex. D.3. However, he
admitted that he had informed the police that Shyamveer had
sustained gun shot injury on his calf.
35. Prem Singh (P.W.6) has stated that he was assaulted by handle
of the gun for 4-5 times, similarly Shyamveer (P.W.10) had sustained
gun shot injury and Dilip (P.W.3) had also sustained gun shot injuries.
He claimed that he had informed the police, but could not explain as
13
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
to why this fact was not mentioned in his police statement, Ex. D.4.
36. Pooran (P.W.7) had turned hostile and did not support the
prosecution story.
37. Shrikrishna (P.W.8) has stated that Appellants Kamlesh,
Rajesh, Kallu, Ballu, Pejram, Mahesh reached near Pooran and this
witness requested Pooran to somehow pacify the situation, however,
the gunshots were fired. The gun shots were fired by accused
persons. However, this witness has not stated that any injury was
caused to Prem Singh (P.W.6), Shyamveer (P.W.10) and Dilip (P.W.3).
38. Shyamveer (P.W.10) has stated that gun shot fired by Mahesh
hit him on his shoulder, Dilip (P.W.3) sustained injury on his thumb,
and Kamlesh hit Prem Singh (P.W.6) on his shoulder by handle of the
gun. In cross-examination, this witness stated that he had sustained
injuries i.e., two on shoulder and one injury on his left leg and both
the injuries were gun shot injuries. Thereafter, he said that one injury
was gunshot injury and another was caused by handle of the gun.
Kamlesh had assaulted him by handle of the gun. He admitted that he
had not disclosed to police that Ballu had caused injury to Dilip
(P.W.3). He also could not explain as to why the fact of causing
injury to this witness by handle of the gun is not mentioned in his
police statement Ex. D.5. Similarly he could not explain as to why
the fact that Mahesh caused gun shot injury to him is not mentioned
in his police statement, Ex. D.5. He also could not explain as to why
14
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
the fact that Kamlesh had assaulted Prem Singh (P.W.6) by handle of
the gun is not mentioned in his police statement, Ex. D.5.
39. Thus, it is clear that the case of the prosecution is that the
Appellants Monu Sharma, Sonu Sharma, Kamlesh, Pejram and
Mahesh fired indiscriminately thereby causing gun shot injuries to
Prem Singh (P.W.6), Shyamveer (P.W.10) and Dilip (P.W.3), but no
gun shot injury was found in their M.L.C., Ex. P.10, P.11 and P.19.
Further, there is material contradictions and improvements in the
evidence of the witnesses, Kaptan Singh (P.W.1), Dilip (P.W.3), Prem
Singh (P.W.6) and Shyamveer (P.W.10) in this regard. Thus, it is held
that the prosecution has failed to prove that any gun shot injury was
sustained by Prem Singh (P.W. 3), Shyamveer (P.W.10) and Dilip
(P.W.3). Further, the prosecution has failed to prove that
indiscriminate firing was done by Monu Sharma, Sonu Sharma,
Kamlesh, Pejram and Mahesh @ Pappu.
Whether the names of Sonu, Monu, Kamlesh, Pejram and Mahesh
were included after due deliberations?
40. Binda (P.W.2) in para 10 of her cross-examination, has
specifically admitted that before lodging the F.I.R., her husband and
all the three sons namely Prem Singh (P.W.6), Kaptan (P.W.1) and
Dilip (P.W.3) had discussed with each other about whose names are to
be mentioned in the FIR. The relevant part of her cross-examination
reads as under :
15
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
10----------fjiksZV gksus ls igys esjs ifr vkSj rhuksa iq= dIrku] izse
flag vkSj fnyhi us lHkh us lykg e'kojk fd;k Fkk fd fdu fdu
ds uke fjiksZV es fy[kkuh gSA fQj iqfyl okys vk;s vkSj lcdh
fjiksZV fy[kkbZA iqfyl okyksa us dgk Fkk fd fcyko ds dYyw vkSj
Fks muds uke vkSj fy[kkvks rHkh dYyw dk uke fy[kk;k gSA
41. Dilip (P.W.3) has also admitted that the names of 13 persons
were mentioned in the FIR after due discussion. In para 13 of his
cross-examination, he has stated as under :
;g ckr lgh gS fd ge yksxksa us lykg djds rsjg vknfe;ksa ds
uke fjiksZV fy[kkbZ FkhA
42. Prem Singh (P.W.6) has also admitted that the names of the
accused persons were disclosed after due deliberations. The relevant
part of his evidence is as under :
17. >xMk gksus ds ckn fjiksZV djus pkpk M: dks Hkstk FkkA Pkkpk
M: fjiksZV djds iqfyl dks ysdj vk;sA ;g ckr lgh gS fd fQj
ge yksxksa es lykg gqbZ fd jkey[ku ds ifjokj ds fdu fdu
yksxksa ds uke fy[kkus gS vkSj blds ckn jkey[ku ds iwjs ifjokj
dk yMdk ukrh vkSj fcyko okys dYyw lfgr muds uke fjiksZV
fy[kkbZ A
43. Thus, three witnesses namely Binda (P.W.2), Prem Singh
(P.W.6) and Dilip (P.W.3) have specifically admitted that the names of
the assailants were disclosed in the FIR after due deliberations.
Whether Police has suppressed the initial FIR
44. Kaptan Singh (P.W.1) in para 11 of his cross-examination has
stated that he had sent his uncle Darru (P.W.4) to lodge the FIR. By
the time his uncle started for lodging the report, the police reached
there and accordingly Dehati Nalishi was written.
45. Dilip (P.W.3) in para 13 of his cross-examination has stated
16
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
that his uncle Darru (P.W.4) went to lodge the report, and he brought
the police and then after due deliberations they lodged the report.
46. Darru (P.W.4) has stated that after the incident, he went to
lodge the report and he was asked by the police to sit in the police
station. In the police station, he had disclosed that Rajesh and Kallu
have killed his nephews. Thereafter, he said that he met with the
police party on his way. However, he further stated that he was made
to sit in the police station, on the pretext that S.H.O. would register
the report.
47. Prem Singh (P.W.6) in para 17 of his cross-examination, has
stated that after the incident, he had sent his uncle Darru to lodge the
F.I.R and his uncle Darru brought the police after lodging FIR.
48. Shyamveer (P.W.10) in para 16 of his cross-examination has
also admitted that his father Darru (P.W.4) had gone to police station
to lodge the FIR and came along with the police.
49. Thus, it is clear that all the material witnesses namely Kaptan
Singh (P.W.1), Dilip (P.W.3), Darru (P.W.4), Prem Singh (P.W.6) and
Shyamveer (P.W.10) specifically admitted that after the incident,
Darru (P.W.4) went to Police Station for lodging the FIR and came
back along with the police. However, Sanjeev Kumar Tiwari (P.W.
15), who is the investigating officer, has stated that he was informed
by Constable Keshav Singh on wireless that gun shots have been
fired in village Goram and accordingly, said information was
17
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
recorded in Rojnamchasanha No. 536 at 14:11. However, the
prosecution has not examined Keshav Singh. Keshav Singh was the
best person to disclose that what information was given and who had
given the information. Thus, it is clear that the prosecution has
suppressed the information which was given by Darru (P.W.4) for the
first time.
50. Now the next question is that whether, there is anything on
record to suggest that what information was given by Darru (P.W.4)
to the police ?
51. Darru (P.W.4) in para 12 of his cross-examination, has
specifically stated that he had informed the police that Kallu and
Rajesh have killed his nephews. Thus, it is clear that the names of the
Appellants i.e., Monu, Sonu, Kamlesh, Pejram and Mahesh @ Pappu
were not disclosed to the police at the first possible opportunity and
the names of the above mentioned 5 persons were disclosed to the
police after due deliberations by the witnesses. Further, it is not out
of place to mention here that Darru (P.W. 4) in his cross-examination
has stated that he had disclosed that Rajesh and Kallu have killed his
nephews. Rajesh is son of Ramlakhan. Ramautar, Pejram, Kamlesh
and Mahesh @ Pappu are sons of Ramlakhan/real brothers of Rajesh.
Similarly, Monu and Sonu are sons of Pejram i.e., Nephews of
Rajesh. Similarly, Neeraj, Santosh and Guddu are sons of Ramautar.,
again nephews of Rajesh. Thus, it is clear that all near and dear
18
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
relatives of Rajesh were implicated by the witnesses and they have
specifically admitted that it was done after due deliberations.
52. Similarly, Binda (P.W.2) has admitted that Prem Singh (P.W.6),
Kaptan (P.W.1), Dilip (P.W.3) and deceased Rai Singh and Ravindra
are her sons, whereas Darru (P.W.4) is her younger brother-in-law
(nsoj ). Shyamveer (P.W.10) is the son of Darru (P.W.4) and Shanti is
wife of Darru (P.W.4). Thus, all the witnesses namely Kaptan Singh
(P.W.1), Binda (P.W.2), Dilip (P.W.3), Darru (P.W.4), Prem Singh
(P.W.6) and Shyamveer (P.W.10) are the members of one family.
53. Thus, it is clear that the evidence of Kaptan (P.W.1), Dilip
(P.W.3), and Shyamveer (P.W.10) that they sustained injuries by gun
shots is not corroborated by medical evidence and Dr. U.P.S.
Kushwaha (P.W.5) and Dr. K.K. Dixit (P.W. 14) have specifically
stated that Prem Singh (P.W.6), Dilip (P.W.3) and Shyamveer (P.W.10)
did not sustain gun shot injuries.
54. It is submitted by the Counsel for the State that causing injury
is not a sine qua non for ascertaining as to whether the accused
persons were members of Unlawful Assembly or not and whether
they had acted in furtherance of Common Object or not. It is
submitted that the witnesses have specifically stated about their
presence on the spot and they all were abusing the complainant party,
therefore, it is clear that they had not only formed an Unlawful
Assembly but had also acted in furtherance of Common Object
19
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
55. Considered the submissions made by the Counsel for the State.
It is true that causing injury is not sine qua non for ascertaining that
whether an accused was a member of Unlawful Assembly or not and
whether he acted in furtherance of common object or not, but in the
present case, the overt act alleged against the Appellants Monu, Sonu,
Kamlesh, Pejram and Mahesh @ Pappu assumes importance in the
light of the admissions made by Binda (P.W.2), Dilip (P.W.3) and
Prem Singh (P.W.6). As already pointed out, the prosecution has
suppressed the information which was given for the first time, but
Darru (P.W. 4) in para 12 of his cross-examination has admitted that
he had disclosed to the police that Rajesh and Kallu have killed his
nephews. Thus, it is clear that at the earliest point of time,the only
information which was given by Darru (P.W.4) to the police was
against Rajesh and Kallu only. Further, Binda (P.W.2), Dilip (P.W.3)
and Ram Singh (P.W.6) have specifically stated that they had
disclosed the names of all the family members of Ramlakhan after
due deliberations. Thus, it is clear that the prosecution has failed to
prove that Kamlesh, Pejram, Mahesh @ Pappu, Monu and Sonu were
also present on the spot and had participated in the incident. Further,
the prosecution has failed to prove that Prem Singh (P.W. 6),
Shyamveer (P.W.10) and Dilip (P.W.3) sustained any injury in the
incident. Thus, it is held that the prosecution has failed to prove that
Monu, Sonu, Kamlesh, Pejram and Mahesh @ Pappu were the
20
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
members of Unlawlful Assembly or caused any injury to Prem Singh
(P.W.6), Shyamveer (P.W.10) and Dilip (P.W.3) in furtherance of
Common Object. Accordingly, Monu Sharma, Sonu Sharma,
Kamlesh, Pejram and Mahesh @ Pappu are acquitted of all the
charges.
Appellant Rajesh
56. Challenging the conviction of Rajesh, it is submitted by the
Counsel for the Appellant Rajesh that all the witnesses are related
witnesses and therefore, they are not reliable. The track of gun shot
injury was downward therefore, the assailant must have fired a gun
shot from a height. According to Sanjeev Kumar Tiwari (P.W.15), the
gun shots were fired from a distance of 65 ft.s whereas Dr. R.N.
Rajouria (P.W.9) has specifically denied the suggestion that the gun
shots were fired from a distance of more than 12 ft.s. Further more,
the witnesses have stated that two gun shots each were fired at each
of the deceased, but only gun shot injury each was found on the dead
body of Rai Singh and Ravindra. It is further submitted that since,
the evidence of the prosecution witnesses is not corroborated by
medical evidence therefore, their entire evidence should be discarded.
Therefore, it is submitted that the witnesses are not reliable.
Whether Kaptan (P.W.1), Binda (P.W.2), Dilip (P.W.3),
Darru(P.W.4), Prem Singh (P.W.6) and Shyamveer (P.W.10) are
reliable witnesses or not?
21
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
57. Before considering the submissions made by the Counsel for
the Appellant Rajesh, this Court would like to consider the law
governing the field.
58. It is well established principle of Law that the maxim Falsus in
uno Falsus in Omnibus has no application in India. The Supreme
Court in the case of Shakila Abdul Gafar Khan v. Vasant
Raghunath Dhoble, reported in (2003) 7 SCC 749 has held as
under :
25. It is the duty of the court to separate the grain from the
chaff. Falsity of a particular material witness or a material
particular would not ruin it from the beginning to end. The
maxim "falsus in uno falsus in omnibus" has no application
in India and the witnesses cannot be branded as liars. The
maxim "falsus in uno falsus in omnibus" has not received
general acceptance nor has this maxim come to occupy the
status of rule of law. It is merely a rule of caution. All that it
amounts to is that in such cases testimony may be
disregarded, and not that it must be disregarded. The
doctrine merely involves the question of weight of evidence
which a court may apply in a given set of circumstances,
but it is not what may be called "a mandatory rule of
evidence". (See Nisar Ali v. State of U.P.)
26. The doctrine is a dangerous one especially in India for if
a whole body of the testimony were to be rejected, because
the witness was evidently speaking an untruth in some
aspect, it is to be feared that administration of criminal
justice would come to a dead stop. Witnesses just cannot
help in giving embroidery to a story, however true in the
main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance, and
merely because in some respects the court considers the
same to be insufficient for placing reliance on the testimony
of a witness, it does not necessarily follow as a matter of
law that it must be disregarded in all respects as well. The
evidence has to be sifted with care. The aforesaid dictum is
not a sound rule for the reason that one hardly comes across
a witness whose evidence does not contain a grain of
untruth or at any rate an exaggeration, embroideries or
22
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
embellishment. (See Sohrab v. State of M.P. and Ugar Ahir
v. State of Bihar.) An attempt has to be made to, as noted
above, in terms of felicitous metaphor, separate the grain
from the chaff, truth from falsehood. Where it is not
feasible to separate the truth from falsehood, because grain
and chaff are inextricably mixed up, and in the process of
separation an absolutely new case has to be reconstructed
by divorcing essential details presented by the prosecution
completely from the context and the background against
which they are made, the only available course to be made
is to discard the evidence in toto. (See Zwinglee Ariel v.
State of M.P. and Balaka Singh v. State of Punjab.) As
observed by this Court in State of Rajasthan v. Kalki
normal discrepancies in the evidence are those which are
due to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition such
as shock and horror at the time of occurrence and those are
always there, however honest and truthful a witness may be.
Material discrepancies are those which are not normal, and
not expected of a normal person. Courts have to label the
category to which a discrepancy may be categorized. While
normal discrepancies do not corrode the credibility of a
party's case, material discrepancies do so. These aspects
were highlighted recently in Krishna Mochi v. State of
Bihar, Gangadhar Behera v. State of Orissa and Rizan v.
State of Chhattisgarh.
59. The Supreme Court in the case of State of A.P. Vs.
Pullagummi Kasi Reddy Krishna Reddy, reported in (2018) 7 SCC
623 has held as under :
11. The principle of "falsus in uno falsus in omnibus" has
not been accepted in our country. Even if some accused are
acquitted on the ground that the evidence of a witness is
unreliable, the other accused can still be convicted by
relying on the evidence of the same witness. Minor
contradictions and omissions in the evidence of a witness
are to be ignored if there is a ring of truth in the testimony
of a witness. The High Court was oblivious to this settled
position of law.
60. The Supreme Court in the case of Bhagwan Jagannath
Markad v. State of Maharashtra, reported in (2016) 10 SCC 537
23
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
has held as under :
19. While appreciating the evidence of a witness, the court
has to assess whether read as a whole, it is truthful. In doing
so, the court has to keep in mind the deficiencies,
drawbacks and infirmities to find out whether such
discrepancies shake the truthfulness. Some discrepancies
not touching the core of the case are not enough to reject
the evidence as a whole. No true witness can escape from
giving some discrepant details. Only when discrepancies
are so incompatible as to affect the credibility of the version
of a witness, the court may reject the evidence. Section 155
of the Evidence Act enables the doubt to impeach the
credibility of the witness by proof of former inconsistent
statement. Section 145 of the Evidence Act lays down the
procedure for contradicting a witness by drawing his
attention to the part of the previous statement which is to be
used for contradiction. The former statement should have
the effect of discrediting the present statement but merely
because the latter statement is at variance to the former to
some extent, it is not enough to be treated as a
contradiction. It is not every discrepancy which affects the
creditworthiness and the trustworthiness of a witness. There
may at times be exaggeration or embellishment not
affecting the credibility. The court has to sift the chaff from
the grain and find out the truth. A statement may be partly
rejected or partly accepted. Want of independent witnesses
or unusual behaviour of witnesses of a crime is not enough
to reject evidence. A witness being a close relative is not
enough to reject his testimony if it is otherwise credible. A
relation may not conceal the actual culprit. The evidence
may be closely scrutinised to assess whether an innocent
person is falsely implicated. Mechanical rejection of
evidence even of a "partisan" or "interested" witness may
lead to failure of justice. It is well known that principle
"falsus in uno, falsus in omnibus" has no general
acceptability. On the same evidence, some accused persons
may be acquitted while others may be convicted, depending
upon the nature of the offence. The court can differentiate
the accused who is acquitted from those who are convicted.
61. The Supreme Court in the case of Yogendra Vs. State of
Rajasthan reported in (2013) 12 SCC 399 has held as under :
13. The argument advanced by Shri Altaf Hussain, learned
24
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
counsel for the appellants, stating that the evidence which
has been disbelieved in respect of certain accused, cannot
be enough to convict the present appellants, has no force.
This Court, in Ranjit Singh v. State of M.P. has dealt with a
similar issue. The Court herein, considered its earlier
judgments in Balaka Singh v. State of Punjab, Ugar Ahir v.
State of Bihar and Nathu Singh Yadav v. State of M.P. and
has referred to the doctrine falsus in uno, falsus in omnibus
and held, that the same has no application in India. The
court must assess the extent to which the deposition of a
witness can be relied upon. The court must make every
attempt to separate falsehoods from the truth, and it must
only be in exceptional circumstances, when it is entirely
impossible to separate the grain from the chaff, for the same
are so inextricably intertwined, that the entire evidence of
such a witness must be discarded.
62. Thus, it is clear that even if a witness is not found reliable in
respect of one accused, but still after removing grain from chaff,
another accused can be convicted on the basis of evidence of said
witness.
63. The Counsel for the Appellant Rajesh also argued that the
prosecution has suppressed the initial information which was
received by it, however, this Court has already considered this aspect
and has held that although it is true that the initial information given
by Darru (P.W.4) has been suppressed by the Police, but Darru
(P.W.4) in reply to a question put by defence Counsel, stated that he
had informed the police that Rajesh (Appellant) and Kallu have killed
his nephews. Thus, it is clear that the initial information which was
given by Darru (P.W.4) to police was that Rajesh (Appellant) and
Kallu have killed his both nephews.
64. Further more, the allegations against Rajesh are that he fired a
25
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
gun shot causing injuries to one of the deceased. In Dehati Nalishi,
Ex. P.1, it was alleged by Kaptan Singh (P.W.1) that Rajesh caused
injury to Ravindra. Kaptan Singh (P.W.1), Dilip (P.W.3), Darru
(P.W.4), Prem Singh (P.W.6) and Shyamveer (P.W. 10) have stated in
their Court evidence that Rajesh caused injury to Ravindra, whereas
Binda (P.W.2), has stated that Rajesh caused injury to Rai Singh.
This variance in the evidence of Binda (P.W.2) with the evidence of
other prosecution witnesses cannot be said to be a major
contradiction, specifically when the incident took place in a quick
succession and Binda (P.W.2) had lost her two sons. Thus, there is no
discrepancy in the evidence of witnesses regarding act of Appellant
Rajesh.
65. It is next contended by the Counsel for the Appellant Rajesh
that some of the witnesses have stated that two gun shot injuries each
were caused to deceased Ravindra and Rai Singh, whereas in the
post-mortem reports, Ex. P. 12 and P.13, only one entry wound was
found, thus, the ocular evidence is contrary to medical evidence.
66. Considered the submissions made by the Counsel for the
Appellant Rajesh.
67. In case if there is a variance in ocular evidence and medical
evidence, then ocular evidence has to be given preference over
medical evidence, unless and until, the medical evidence completely
rules out the ocular evidence.
26
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010)
Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010)
Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
68. The Supreme Court in the case of Bhajan Singh v. State of
Haryana, reported in (2011) 7 SCC 421 has held as under :
38. Thus, the position of law in such a case of contradiction
between medical and ocular evidence can be crystallised to
the effect that though the ocular testimony of a witness has
greater evidentiary value vis-à-vis medical evidence, when
medical evidence makes the ocular testimony improbable,
that becomes a relevant factor in the process of the
evaluation of evidence. However, where the medical
evidence goes so far that it completely rules out all
possibility of the ocular evidence being true, the ocular
evidence may be disbelieved. (Vide Abdul Sayeed.)
69. The Supreme Court in the case of CBI v. Mohd. Parvez
Abdul Kayuum, reported in (2019) 12 SCC 1 has held as under :
65. Even otherwise as submitted on behalf of the
prosecution that in case of any discrepancy between the
ocular or medical evidence, the ocular evidence shall
prevail, as observed in Yogesh Singh v. Mahabeer Singh:
(SCC pp. 217-18, para 43)
"43. The learned counsel appearing for the
respondents has then tried to create a dent in the
prosecution story by pointing out inconsistencies between the ocular evidence and the medical evidence. However, we are not persuaded with this submission since both the courts below have categorically ruled that the medical evidence was consistent with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence proffered by the eyewitnesses. We hold that there is no material discrepancy in the medical and ocular evidence and there is no reason to interfere with the judgments of the courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai v. State of Gujarat, Mani Ram v. State of Rajasthan, State of U.P. v. Krishna Gopal, State of Haryana v. Bhagirath, 27 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, Thaman Kumar v. State (UT of Chandigarh), Krishnan v. State, Khambam Raja Reddy v. Public Prosecutor, State of U.P. v. Dinesh, State of U.P. v. Hari Chand, Abdul Sayeed v. State of M.P. and Bhajan Singh v. State of Haryana.]"
66. The ocular evidence to prevail has also been observed in Sunil Kundu v. State of Jharkhand thus: (SCC p. 432, para 24) "24. In Kapildeo Mandal v. State of Bihar, all the eyewitnesses had categorically stated that the deceased was injured by the use of firearm, whereas the medical evidence specifically indicated that no firearm injury was found on the deceased. This Court held that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get priority as medical evidence is basically opinionative. But, when the evidence of the eyewitnesses is totally inconsistent with the evidence given by the medical experts then evidence is appreciated in a different perspective by the courts. It was observed that when medical evidence specifically rules out the injury claimed to have been inflicted as per the eyewitnesses' version, then the court can draw adverse inference that the prosecution version is not trustworthy. This judgment is clearly attracted to the present case."
(emphasis supplied)
67. Similarly, in Bastiram v. State of Rajasthan, it was observed: (SCC pp. 407 & 408, paras 33 & 36) "33. The question before us, therefore, is whether the "medical evidence" should be believed or whether the testimony of the eyewitnesses should be preferred? There is no doubt that ocular evidence should be accepted unless it is completely negated by the medical evidence. This principle has more recently been accepted in Gangabhavani v. Rayapati Venkat Reddy.
* * *
36. Similarly, a fact stated by a doctor in a post- mortem report could be rejected by a court relying on eyewitness testimony, though this would be quite infrequent. In Dayal Singh v. State of Uttaranchal, the post-mortem report and the oral testimony of the doctor who conducted that examination was that no 28 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) internal or external injuries were found on the body of the deceased. This Court rejected the "medical evidence" and upheld the view of the trial court (and the High Court) that the testimony of the eyewitnesses supported by other evidence would prevail over the post-mortem report and testimony of the doctor. It was held: (SCC p. 286, para 41) '41. ... [T]he trial court has rightly ignored the deliberate lapses of the investigating officer as well as the post-mortem report prepared by Dr C.N. Tewari. The consistent statement of the eyewitnesses which were fully supported and corroborated by other witnesses, and the investigation of the crime, including recovery of lathis, inquest report, recovery of the pagri of one of the accused from the place of occurrence, immediate lodging of FIR and the deceased succumbing to his injuries within a very short time, establish the case of the prosecution beyond reasonable doubt. These lapses on the part of PW 3 [doctor] and PW 6 [investigating officer] are a deliberate attempt on their part to prepare reports and documents in a designedly defective manner which would have prejudiced the case of the prosecution and resulted in the acquittal of the accused, but for the correct approach of the trial court to do justice and ensure that the guilty did not go scot-free. The evidence of the eyewitness which was reliable and worthy of credence has justifiably been relied upon by the court.'"
(emphasis supplied)
70. It is submitted that since, some of the prosecution witnesses have stated that two gun shot injuries were caused to each of the deceased, whereas only one entry wound was found therefore, the entire evidence has to be discarded. This submission made by the Counsel for the Appellant Rajesh is liable to be rejected.
71. The prosecution story in short is that in the earlier part of the day of incident, some dispute arose at the hand-pump between Rajesh and Darru (P.W.4) and it was alleged that Rajesh had not only abused 29 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) Darru (P.W.4) but had also thrown his utensils. Thereafter, Darru (P.W. 4) came to the house of the complainant and informed the incident. He was resting under a Neem Tree, when all the accused persons came there and the complainant party pleaded for mercy but Rajesh fired gun shot causing injury to Ravindra and Kallu fired gun shot causing injury to Rai Singh. The same story has been narrated by Kaptan Singh (P.W.1), Binda (P.W.2), Dilip (P.W.3), Darru (P.W.4), Prem Singh (P.W.6), Shyamveer (P.W.10) in their Examination-in-
chief.
72. In Dehati Nalishi, Ex. P.1, it was mentioned that the Appellant Rajesh has shot Ravindra whereas Kallu has shot Rai Singh. Kaptan (P.W.1) stated in para 2 of his examination-in-chief that the Appellant Rajesh shot Ravindra, whereas Kallu shot Rai Singh. However, in para 8 of his cross examination, he claimed that two gun shots were fired by Appellant Rajesh causing two injuries to Ravindra. Similarly, in para 9 of his cross-examination, he claimed that Kallu had fired two gun shots causing two injuries to Rai Singh.
73. Binda (P.W.2) in para 1 of her examination-in-chief has stated that one gun shot was fired by Rajesh and one by Kallu. However, in para 4 of her cross-examination, She stated that Ravindra had sustained two gun shots.
74. Dilip (P.W.3) has stated that Rajesh shot Ravindra and Kallu shot Rai Singh. In para 7 of his cross-examination, he specifically 30 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) stated that Ravindra and Rai Singh had sustained one injury only and not two injuries each. He specifically stated that the Appellant Rajesh had fired only one gun shot from his .315 bore gun.
75. Darru (P.W.4) has also stated that Rajesh fired at Ravindra whereas Kallu shot Rai Singh. However, in para 5 of his cross-
examination, he claimed that Ravindra had sustained one gun shot on his chest and another on abdominal region, whereas Rai Singh had sustained one gun shot injury on his chest and another near shoulder.
76. Prem Singh (P.W. 6) has stated in his examination-in-chief that one gun shot injury was caused by Appellant Rajesh to Ravindra and one gun shot injury was caused to Rai Singh by Kallu. However, in cross-examination, he claimed that Ravindra had sustained two gun shot injuries i.e., one below and one above Umbilicus, whereas Rai Singh also sustained two gun shot injuries i.e., one on chest and another near shoulder.
77. Shyamveer (P.W.10) has stated in his examination-in-chief that Appellant Rajesh shot Ravindra and Kallu shot Rai Singh. In para 6 of his cross-examination, he specifically stated that only one gun shot was fired at Ravindra and Rajesh did not fire second shot. However, claimed that Kallu had fired two gun shots at Rai Singh, thereby causing two injuries.
78. Thus, it is clear that so far as the Appellant Rajesh is concerned, all the witnesses had stated in their examination-in-chief 31 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) that one gun shot was fired by Rajesh causing injury to Ravindra and one gun shot was fired by Kallu causing injury to Rai Singh. It appears that only during cross-examination, Kaptan (P.W.1), Binda (P.W.2), Darru (P.W.4) and Prem Singh (P.W.6) claimed that two gun shots were fired at Ravindra and Rai Singh whereas Dilip (P.W.3) could succeed the rigors of cross-examination whereas Shyamveer (P.W.10) also stated that only one gun shot was fired by Appellant Rajesh.
79. In the post-mortem reports of Ravindra and Rai Singh, Ex. P. 12 and P.13, only one Entry wound was found on their bodies and the another injury was Exit wound. In view of the fact that some of the witnesses tried to improve their version in their cross-examination by claiming that two gun shots were fired at Ravindra and Rai Singh by the Appellant Rajesh and Kallu, this Court is of the considered opinion, that it cannot be held that the Medical Evidence completely rules out the possibility of Ocular Evidence, specifically when Dilip (P.W.3) and Shyamveer (P.W.10) have specifically stated that only one gun shot was fired by the Appellant Rajesh.
Whether evidence of Kaptan (P.W.1), Binda (P.W.2), Dilip (P.W.3), Darru (P.W.4), Prem Singh (P.W.6) and Shyamveer (P.W.10) are liable to be disbelieved only on the ground that they are "related witnesses"?
80. It is well established principle of law that a witness cannot be 32 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) disbelieved merely on the ground that he is related witness. There is a difference between "Related witness" and "Interested witness".
81. 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.
82. 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.............
83. 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 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 33 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) 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 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 34 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) 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.
84. 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. 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) "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"."
35Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
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."
85. As already pointed out, Kaptan (P.W.1), Prem Singh (P.W.6) and Dilip (P.W.3) are sons of Binda (P.W.2), whereas Darru (P.W.4) is the younger-brother-in-law (Devar) of Binda (P.W.2) and Shyamveer is son of Darru (P.W.4). The deceased Ravindra and Rai Singh are also the sons of Binda (P.W.2). The evidence of a witness cannot be rejected merely on the ground that he is "Related witness", unless 36 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) and until it is proved that he is "Interested witness". However, the evidence of such a witness is liable to be scrutinized minutely. This Court after considering the various aspect of the matter has already held that the prosecution evidence against Monu, Sonu, Kamlesh, Pejram and Mahesh @ Pappu is not reliable, but the evidence of these witnesses against the Appellant Rajesh is corroborated by ocular and medical evidence. Even at the earliest point of time, Darru (P.W.4) had informed the police, that Appellant Rajesh and Kallu have killed his two nephews. Merely because there is only discrepancy as to whether one gun shot was fired by Appellant Rajesh and Kallu or two gun shots were fired as suggested by defence in their cross-examination, this Court is of the considered opinion, that the evidence of Kaptan (P.W.1), Binda (P.W.2), Dilip (P.W.3), Darru (P.W.4), Prem Singh (P.W.6), Shyamveer (P.W.10) cannot be rejected merely on the ground that they are "Related witnesses" and there is some embellishment in their evidence.
86. The Supreme Court in the case of Leela Ram v. State of Haryana, reported in (1999) 9 SCC 525 has held as under :
12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment -- sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary.
The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to 37 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.
87. The Supreme Court in the case of State of M.P. v. Dal Singh, reported in (2013) 14 SCC 159 has held as under :
Discrepancies
13. So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation i.e. errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings of shock or horror that existed at the time of occurrence. The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence.
"Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements, as the same may be elaborations of a statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars i.e. which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited. Where such omission(s) amount to contradiction(s), raising serious doubts about the truthfulness of a witness, and other witnesses also make material improvements before the court in order to make their evidence acceptable, it cannot be said that it is safe to rely upon such evidence. (Vide A. Shankar v. State of Karnataka.)
88. The Supreme Court in the case of Babulal v. State of M.P., reported in (2003) 12 SCC 490 has held as under :
8......The Court in a case where relatives are witnesses has to test their version on the touchstone of acceptability and 38 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. (See: Munshi Prasad v. State of Bihar, Hukam Singh v. State of Rajasthan and Bhagwan Singh v. State of M.P.) The High Court has precisely done that. The trial court had entertained a shadow of doubt merely on account of their relationship. As rightly observed by the High Court, the approach is indefensible. That being the position, the evidence of eyewitnesses which has a ring of truth deserves acceptance, which the High Court has done. Though the evidence of PW 11 was attacked on the ground of having traces of tutoring, yet his whole evidence does not get wiped out even if it is assumed, as urged, that it contains exaggerations and embellishment.
89. The Supreme Court in the case of Dinesh Kumar Vs. State of Rajasthan reported in (2008) 8 SCC 270 has held as under :
11.....Law is fairly well settled that even if acquittal is recorded in respect of the co-accused on the ground that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is found cogent, credible and truthful in respect of another accused. The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence.
90. The Supreme Court in the case of Jeevan Vs. State of Uttarakhand reported in (2012) 13 SCC 598 has held as under :
26. This Court has also expressed the view that it is a fair and settled position of law that even if there are some omissions, contradictions or discrepancies, the entire evidence cannot be discarded. After exercising care and caution and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvements, the Court can come to the conclusion as to whether the residual evidence is sufficient to convict the accused.
Whether gun shots were fired from a distance of 65 ft.s or less
91. It is submitted that Kaptan (P.W.1) has stated that the Appellant Rajesh fired the gun shot from a distance of 4-6 ft.s and Kallu also 39 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) fired from the same distance. Similarly, Binda (P.W. 2) has stated that the Appellant Rajesh and Kallu fired the gun shots from a distance of 3-4 ft.s. Dilip (P.W.3) has stated that the Appellant Rajesh and Kallu had fired gun shots from a distance of 15-20 ft.s and not from a distance of 3-4 ft.s. Darru (P.W.4) has stated that the gun shots were fired from close range from the distance of 2-3 hands. It is submitted that Dr. R.N. Rajouria (P.W.9) who had conducted Post-mortem of deceased Ravindra and Rai Singh has stated in para 15 of his cross-
examination that the gun shots were fired from a distance of more than 6 feets, however, in para 18 of his cross-examination, he has further stated that it is incorrect to say that the gun shots were fired from a distance of more than 12 ft.s. Thus, it is the claim of the prosecution witnesses that the gun shots were not fired from a distance of more than 12 ft.s, however, Sanjeev Kumar Tiwari (P.W.
15) in para 5 of his cross-examination, has stated that at the time of preparation of spot map, he was told that the gun shots were fired from a distance of more than 66 ft.s, therefore, the witnesses are not reliable.
92. Thus, the Counsel for the Appellant Rajesh tried to dislodge the evidence of prosecution witnesses on the basis of distance disclosed by Sanjeev Kumar Tiwari (P.W.15) in his evidence.
93. The pivotal question for consideration is that whether the evidence of Sanjeev Kumar Tiwari (P.W. 15) to the effect that at the 40 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) time of preparation of spot map, he was told that the gun shots were fired from a distance of 66 ft.s is admissible in law or not?
94. The Supreme Court in the case of Tori Singh Vs. State of U.P. reported in (1962) 3 SCR 580 has held as under :
8. This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of offence, the draftsman put down the places in the map, in Santa Singh v. State of Punjab. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure. In that case there was another sketch prepared by the Sub-Inspector which was ruled out as inadmissible under Section 162. The sketch-map in the present case has been prepared by the Sub-Inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the incident were obviously marked by him on the map on the basis of the statements made to him by the witnesses. In the circumstances these marks on the map based on the statements made to the Sub-Inspector are inadmissible under Section 162 of the Code of Criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch-map.
95. The Supreme Court in the case of Sant Kumar Vs. State of Haryana reported in (1974) 3 SCC 643 has held as under :
11.....It is clear that this site plan, which shows Mark No. 1 as the place of occurrence, is in consequence of a statement made during investigation to the ASI by some witness whose name even has not been disclosed. Since the ASI had already registered the case under Section 154 of the Criminal Procedure Code, after obtaining the first information report from Suraj Bhan and proceeded to the spot in the course of investigation, any statement made by witnesses during the course of investigation would be hit 41 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) by Section 162(1) of the Criminal Procedure Code, and inadmissible in evidence except for the purpose of contradiction of the witness when examined in Court either by the accused or by prosecution with the leave of Court. A plan prepared in the way done showing the place of occurrence cannot be admissible in law and no reliance can be placed on the place of occurrence as indicated therein....
96. The Supreme Court in the case of State of Rajasthan Vs. Bhawani reported in (2003) 7 SCC 291 has held as under :
11...Many things mentioned in the site plan have been noted by the investigating officer on the basis of the statements given by the witnesses. Obviously, the place from where the accused entered the nohara and the place from where they resorted to firing is based upon the statement of the witnesses. These are clearly hit by Section 162 CrPC. What the investigating officer personally saw and noted alone would be admissible......
97. The Supreme Court in the case of Rameshwar Dayal Vs. State of U.P. Reported in (1978) 2 SCC 518 has held as under :
36......In our opinion, the argument of the learned counsel is based on misconception of law laid down by this Court.
What this Court has said is that the notes in question which are in the nature of a statement recorded by the Police Officer in the course of investigation would not be admissible. There can be no quarrel with this proposition. Note No. 4 in Ex. Ka-18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself found and observed at the spot. Such a statement does not fall within the four corners of Section 162 CrPC. In fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.
42Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) For these reasons, therefore, we are of the opinion that the decision cited by the counsel for the appellants has no application to this case.
98. Thus, any marking in the spot map made by I.O., on the instructions of a witness would be hit by Section 162 of Cr.P.C. and would not be admissible and can be used only for the purposes of contradicting the witness, but any thing which was marked/noticed by the Investigating Officer, on his own would be admissible.
99. In the present case, Sanjeev Kumar Tiwari (P.W.15) has specifically stated that he was told that gun shots were fired from a distance of 64 ft.s. Thus, the distance of 64 ft. shown by Sanjeev Kumar Tiwari (P.W. 15) in his spot map, Ex. P.2 is not admissible.
Further, no witness was confronted with this information which was given to Sanjeev Kumar Tiwari (P.W.15). Thus, by relying on the evidence of Sanjeev Kumar Tiwari (P.W.15), this Court cannot hold that the gun shots were actually fired from a distance of 64 ft.s.
Non-Recovery of weapon of offence
100. It is submitted by the Counsel for the appellant, that no weapon was seized from the possession of the Appellant Rajesh, therefore, it indicates that the Appellant Rajesh has been falsely implicated.
101. Considered the submissions made by the Counsel for the Appellant Rajesh.
102. The Supreme Court in the case of Gulab Vs. State of U.P. by judgment dated 09-12-2021 passed in Cr.A. No. 81 of 2021 has held 43 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) 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 which has relied on the eyewitness accounts of PWs 1, 2 and 3....
103. 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.....
104. The Supreme Court in the case of Nankaunoo v. State of U.P., reported in (2016) 3 SCC 317 has held as under :
9. The learned counsel for the appellant contended that the courts below failed to take note of the fact that the alleged weapon "country-made pistol" was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non-recovery of "country-made pistol" does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency.
Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice......
44Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
105. The Supreme Court in the case of Yogesh Singh Vs. Mahabeer Singh reported in (2017) 11 SCC 195 has held as under :
47. The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel no need to address this issue since it had already been validly discarded by the trial court while convicting the respondents. In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. (See Lakhan Sao v. State of Bihar, State of Rajasthan v. Arjun Singh and Manjit Singh v.
State of Punjab.)
106. Therefore, merely because the investigating officer, could not recover weapon of offence from the Appellant Rajesh, would not adversely effect the credibility and reliability of witnesses.
Non-Examination of Independent witnesses
107. It is submitted by the Counsel for the appellant that Kaptan (P.W.1), Binda (P.W.2), Dilip (P.W.3), Darru (P.W.4), Prem Singh (P.W.6), and Shyamveer (P.W.10) are closely related witnesses and no independent witness was examined by the prosecution, thus, it is clear that concocted story has been developed by the prosecution.
108. Considered the submissions made by the Counsel for the appellant.
109. From the spot map, Ex. P.2, it is clear that the house of the complainant is situated at an isolated place and the houses of Pappu Yadav, Bacchu Musalman, Ajab Singh and Shishupal are situated far away from the house of the complainant. Thus, the chances of presence of independent witnesses was also remote. Further, now a 45 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) days, the independent witnesses are afraid of coming forward to depose in a criminal case.
110. The Supreme Court in the case of Mahesh Vs. State of Maharashtra reported in (2008) 13 SCC 271 has held as under :
54. This Court in Salim Sahab v. State of M.P. held that:
(SCC pp. 701 & 703, paras 11 & 14-15) "11. ... [mere relationship] is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
* * *
14. ... 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 the sole ground that it is partisan would invariably lead to failure of justice. No hard- and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.'
15. To the same effect are the decisions in State of Punjab v. Jagir Singh, Lehna v. State of Haryana and Gangadhar Behera v. State of Orissa."
55. As regards non-examination of the independent witnesses who probably witnessed the occurrence on the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses.
The High Court has held in its judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse.
46Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) The occurrence of the incident, as noticed earlier, is not in serious dispute. PW Prakash Deshkar has also admitted that he had lodged complaint to the police about the incident on the basis of which FIR came to be registered and this witness has supported in his deposition the contents of the complaint to some extent. It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.
111. The Supreme Court in the case of Sarwan Singh v. State of Punjab, reported in (2003) 1 SCC 240 has held as under :
13. As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad v. State (Delhi Admn.) wherein this Court in para 12 observed: (SCC pp. 653-54) "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 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 47 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) 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.' "
14. The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available -- if they are so, the prosecution should be able to prove the case with their assistance.
15. Coming to the contextual facts once again, while it is true that there is no independent witness, but the evidence available on record does inspire confidence and the appellant has not been able to shake the credibility of the eyewitnesses: there is not even any material contradiction in the case of the prosecution.
112. The Supreme Court in the case of Sadhu Suran Singh Vs. State of U.P. reported in (2016) 4 SCC 357 has held as under :
29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the 48 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) eyewitness, though interested, is trustworthy.
113. The Court while appreciating the evidence, has to consider the quality of evidence and not quantity of witnesses. The evidence is to be appreciated and not counted. Further, in the present case, even the spot map, Ex. P.2, clearly indicates that the house of the complainant was situated at an isolated place, away from the village and is not closely surrounded by any other house. Thus, the non-
examination of independent witness would not give any dent to the prosecution case.
Nature of offence committed by Appellant Rajesh
114. It is submitted by the Counsel for the Appellant Rajesh, that according to the prosecution story itself, some hot talk took place between the Appellant Rajesh and Darru (P.W.4) at the hand-pump on the question of fetching water, and it is alleged that the appellant Rajesh not only abused Darru (P.W.4) but also threw his Utensils. It is submitted that the witnesses have admitted that the incident took place on the issue of quarrel at the hand-pump otherwise, there was no enmity between the parties. Thus, it is submitted that since, the incident took place all of a sudden without any pre-meditation, therefore, the act of the Appellant Rajesh would not be murder but at the most his act shall be punishable under Section 304 Part I of IPC.
115. Considered the submissions made by the Counsel for the Appellant Rajesh.
49Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010)
116. According to the prosecution case, in the early hours of the day of incident, Darru (P.W.4) had gone to fetch water from the hand-
pump installed in front of the house of Rajesh. His utensils were thrown by Rajesh and also pressed his neck and threatened him to kill. Thereafter, Darru (P.W.4) came back to the house of Kaptan (P.W.1) and narrated the incident to them. At the time of incident, Darru (P.W.4) was resting under a Neem Tree and at that time, the Appellant came there along with gun and fired gun shot resulting in death of Ravindra whereas it is alleged that the gun shot fired by Kallu resulted in death of Rai Singh. There was no provocation by the complainant party. In fact the incident took place in front of the house of complainant party. Thus, it is clear that the incident did not take place all of a sudden. In fact it was the Appellant Rajesh and others who came on the spot. Rajesh was armed with firearm and shot Ravindra, whereas it is alleged that Kallu shot Rai Singh. Thus, it is clear that the incident was committed in a pre-planned manner.
The Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, reported in (2018) 4 SCC 329 has held as under :
7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from 50 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
117. If the facts of the case are considered, then it is clear that it was the Appellant Rajesh who picked up quarrel in the earlier hours of day by throwing the utensils of Darru (P.W. 4) and pressed his neck on the question of fetching water from the hand-pump. Thereafter, there was no retaliation from the side of Darru (P.W.4). The Appellant Rajesh armed with gun came along with other co-accused to the house of Kaptan (P.W.1) and fired gun shot, resulting in death of Ravindra and co-accused Kallu fired another gun shot resulting in death of Rai Singh. Thus, it is clear that the incident was pre-
meditated, otherwise, there was no reason for the Appellant Rajesh to come to the house of deceased Ravindra and Rai Singh and to fire gun shots. There is nothing on record that there was any provocation on the part of the complainant party. There is nothing on record to suggest that any fight took place between the parties. Two guns were used, which is clear from the post-mortem reports of Ravindra and Rai Singh, Ex. P.12 and P.13, as entry wound of different diameters 51 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) were found and the defence itself had put a question to autopsy surgeon Dr. R.N. Rajouria (P.W. 9) in this regard. There is nothing on record, that the deceased Ravindra and Rai Singh or the witnesses had participated in the incident in any manner. The incident cannot be said to have taken place in a heat of passion. Thus, the act of the appellant Rajesh would not fall within the ambit of Section 304 of IPC and would be an act punishable under Section 302 of IPC.
In absence of charge under Section 34 of IPC, whether Appellant can be convicted with aid of Section 34 of IPC
118. The next question for consideration is that when charge under Section 149 of IPC was framed, then whether the Appellant Rajesh can be convicted with the aid of Section 34 of IPC. The Supreme Court in the case of Mala Singh v. State of Haryana, reported in (2019) 5 SCC 127 has held as under :
32. Four questions arise for consideration in this appeal:
32.1. First, whether the High Court was justified in convicting the appellants under Section 302 read with Section 34 IPC when, in fact, the initial trial was on the basis of a charge under Section 302 read with Section 149 IPC?
32.2. Second, whether the High Court was justified in altering the charge under Section 149 to one under Section 34 in relation to three accused (the appellants herein) after acquitting eight co-accused from the charges of Sections 302/149 IPC and then convicting the three accused (the appellants herein) on the altered charges under Sections 302/34 IPC?
32.3. Third, whether there is any evidence to sustain the charge under Section 34 IPC against the three accused (the appellants herein) so as to convict them for an offence under Section 302 IPC?52
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) 32.4. And fourth, in case the charge under Section 34 IPC is held not made out for want of evidence and further when the charge under Section 149 is already held not made out by the High Court, whether any case against the three accused persons (the appellants herein) is made out for their conviction and, if so, for which offence?
33. Before we examine the facts of the case, it is necessary to take note of the relevant sections, which deal with alter of the charge and powers of the court/appellate court in such cases.
34. Section 216 CrPC deals with powers of the court to alter the charge. Section 386 CrPC deals with powers of the appellate court and Section 464 CrPC deals with the effect of omission to frame, or absence of, or error in framing the charge. These sections are quoted below:
"216. Court may alter charge.--(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the accused in his defence or the Prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
* * *
386. Powers of the appellate court.--After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the appellate court may, if it considers that there is no sufficient ground for interfering, 53 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) dismiss the appeal, or may--
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence--
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the appellate court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the court passing the order or sentence under appeal.
* * *
464. Effect of omission to frame, or absence of, or error in, charge.--(1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.54
Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) (2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may--
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
35. A combined reading of Sections 216, 386 and 464 CrPC would reveal that an alteration of charge where no prejudice is caused to the accused or the prosecution is well within the powers and the jurisdiction of the court including the appellate court.
36. In other words, it is only when any omission to frame the charge initially or till culmination of the proceedings or at the appellate stage results in failure of justice or causes prejudice, the same may result in vitiating the trial in appropriate case.
37. The Constitution Bench of this Court examined this issue, for the first time, in the context of old Criminal Procedure Code in a case in Willie (William) Slaney v. State of M.P.
38. The learned Judge Vivian Bose, J. speaking for the Bench in his inimitable style of writing, held: (Willie Slaney case, AIR p. 124, para 23) "23. ... Therefore, when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact: (1) the accused has "in fact" been misled by it "and" (2) it has occasioned a failure of justice. That, in our opinion, is reasonably plain language."
39. In Kantilal Chandulal Mehta v. State of Maharashtra, this Court again examined this very issue arising under the present Code of Criminal Procedure with which we are concerned in the present case. Justice P. Jaganmohan Reddy, speaking for the Bench after examining the scheme of the Code held inter alia: (SCC p. 171, para 4) "In our view the Criminal Procedure Code gives ample 55 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) power to the courts to alter or amend a charge whether by the trial court or by the appellate court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him."
40. Now coming to the question regarding altering of the charge from Section 149 to Section 34 IPC read with Section 302 IPC, this question was considered by this Court for the first time in Lachhman Singh v. State where Fazl Ali, J. speaking for the Bench held as under: (AIR p. 170, para 13) "13. It was also contended that there being no charge under Section 302 read with Section 34, Penal Code, the conviction of the appellants under Section 302 read with Section 149 could not have been altered by the High Court to one under Section 302 read with Section 34, upon the acquittal of the remaining accused persons. The facts of the case are however such that the accused could have been charged alternatively, either under Section 302 read with Section 149 or under Section 302 read with Section 34. The point has therefore no force."
41. This question was again examined by this Court in Karnail Singh v. State of Punjab wherein the learned Judge Venkatarama Ayyar, J. elaborating the law on the subject, held as under: (AIR p. 207, para 7) "7. Then the next question is whether the conviction of the appellant under Section 302 read with Section 34, when they had been charged only under Section 302 read with Section 149 was illegal. The contention of the appellants is that the scope of Section 149 is different from that of Section 34, that while what Section 149 requires is proof of a common object, it would be necessary under Section 34 to establish a common intention and that therefore when the charge against the accused is under Section 149, it cannot be converted in appeal into one under Section 34. The following observations of this Court in Dalip Singh v. State of Punjab were relied on in support of this position: (AIR p. 366, para 24) '24. Nor is it possible in this case to have recourse to Section 34 because the appellants have not been charged with that even in the alternative and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing.' 56 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) It is true that there is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v. King Emperor, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. If the common object which is the subject-matter of the charge under Section 149 does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34, then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to be a formal matter.
We do not read the observations in Dalip Singh v. State of Punjab as an authority for the broad proposition that in law there could be no recourse to Section 34 when the charge is only under Section 149. Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken by this Court in Lachhman Singh v. State, where the substitution of Section 34 for Section 149 was upheld on the ground that the facts were such 'that the accused could have been charged alternatively either under Section 302 read with Section 149, or under Section 302 read with Section 34' (AIR p. 170, para 13)."
42. The law laid down in Lachhman Singh and Karnail Singh was reiterated in Willie (William) Slaney wherein Vivian Bose, J. speaking for the Bench while referring to these two decisions, held as under: [Willie (William) Slaney case, AIR p. 129, para 49] "49. The following cases afford no difficulty because they directly accord with the view we have set out at length above. In Lachhman Singh v. State, it was held that when there is a charge under Section 302 of the Penal Code read with Section 149 and the charge under Section 149 disappears because of the acquittal of some of the accused, a conviction under Section 302 of the Penal Code read with Section 34 is good even though there is no separate charge under Section 302 read with Section 34, provided the accused could have been so charged on the facts of the case.
57Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) The decision in Karnail Singh v. State of Punjab is to the same effect and the question about prejudice was also considered."
43. This principle of law was then reiterated after referring to law laid down in Willie (William) Slaney in Chittarmal v. State of Rajasthan in the following words: (Chittarmal case, SCC p. 273, para 14) "14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non- applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar Ghosh v. King Emperor; Mannam Venkatadari v. State of A.P.; Nethala Pothuraju v. State of A.P. and Ram Tahal v. State of U.P.)"
119. Thus, if charge under Section 149 of IPC was framed, and if it is found that in fact less than 5 persons were involved in the offence, then still an accused can be punished with the aid of Section 34 of 58 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) IPC.
120. So far as the offence under Section 307/149 of IPC is concerned, this Court has already come to a conclusion that the prosecution has failed to prove that any injuries were sustained by Prem Singh (P.W.6), Shyamveer (P.W.10) and Dilip (P.W.3) in the incident, or any attempt was made on the life of Kaptan (P.W.1).
Further, this Court has also come to a conclusion that the appellants Monu, Sonu, Kamlesh, Pejram and Mahesh @ Pappu were falsely implicated after due deliberations.
121. Therefore, the Appellant Rajesh is acquitted of charges under Sections 148, 307/149 of IPC, 323/149 of IPC (on three counts).
However, the Appellant Rajesh is held guilty of offence under Section 302/34 of IPC on two counts for committing murder of Ravindra and Rai Singh.
122. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment, therefore, the Life Imprisonment (On two counts) awarded by Trial Court does not call for any interference and is accordingly Affirmed.
Both the sentences shall run concurrently.
123. The Appellants in Cr.A.s No. 938/2010 and 940/2010 namely Monu Sharma, Sonu Sharma, Kamlesh, Pejram and Mahesh @ Pappu are acquitted of all the charges.
124. Accordingly, the judgment and sentence dated 30-10-2010 59 Monu Sharma & Anr. Vs. State of M.P. (Cr.A. No. 938 of 2010) Kamlesh & Ors. Vs. State of M.P. (Cr.A. No. 940 of 2010) Rajesh Vs. State of M.P. (Cr.A. No. 1031 of 2010) passed by 1st Additional Sessions Judge, Bhind, in S.T. No. 181/2009 is hereby Set Aside so far as it relates to Monu Sharma, Sonu Sharma, Kamlesh, Pejram and Mahesh @ Pappu and it is affirmed so far as it relates to Rajesh.
125. The Appellants Monu Sharma, Sonu Sharma, Kamlesh, Pejram and Mahesh @ Pappu are on bail. Their bail bonds are discharged.
They are no more required in the present case.
126. The Appellant Rajesh is in jail. He shall undergo the remaining jail sentence.
127. Let a copy of this Judgment be immediately provided to Appellant Rajesh, free of cost.
128. The record of the Trial Court be send back immediately for necessary information and compliance.
129. Accordingly, the Criminal Appeals No. 938/2010 and 940/2010 filed by Monu Sharma, Sonu Sharma, Kamlesh, Pejram and Mahesh @ Pappu are hereby Allowed and Cr.A. No. 1031/2010 filed by Rajesh is hereby Dismissed.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
ABHISHEK
CHATURVEDI
2022.01.31
18:36:48
+05'30'