Madhya Pradesh High Court
Phulle @ Kabuluddin vs The State Of Madhya Pradesh on 7 April, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 2567 of 2018
Phulle @ Kabuluddin
Vs.
State of M.P.
_______________________________________
Shri Shashi Khare Counsel for the Appellant
Shri C.P. Singh Counsel for the State
Date of Hearing : 22-03-2022
Date of Judgment : 07th-04-2022
Approved for Reporting :
Judgment
07th - April -2022
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 10-1-2018 passed by Add. Sessions Judge, Datia in S.T. No.84 of 2008 (Supplementary), by which the appellant has been convicted and sentenced for the 2 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) following offences :
Convicted under Section Sentence Under Section 148 of IPC 3 years R.I.
Under Section 302/149 of IPC Life Imprisonment and fine of (On Two Counts) Rs. 1000/- with default R.I. of 1 month (On Two Counts) All sentences shall run concurrently.
2. It is not out of place to mention here that the co-accused Pappu @ Matiuddin, who was arrested earlier, was tried and was convicted. He too has filed Cr.A. No. 401/2010. The appellant was arrested after the conviction of the co-accused Pappu @ Matiuddin. In the light of the Judgment passed by the Supreme Court in the case of A.T. Mydeen Vs. The Asstt. Commissioner, decided on 29-10-2021 in Cr.A. No. 1306 of 2010, the evidence led in this case, cannot be read in favor or against the co-accused Pappu @ Matiuddin and Vice Versa. Although the Cr.A. No. 401 of 2010 has also been heard simultaneously along with this appeal, but in order to avoid any confusion, Cr.A. No. 401/2010 filed by co-accused Pappu @ Matiuddin shall be decided by a separate judgment.
3. It is also not out of place to mention here that according to the prosecution case, initially, the Appellant Pappu @ Matiuddin along with four other co-accused persons, killed Imambaksh and Jameel, and while fleeing away, they killed their own father Jainuddin. The present case is in relation to murder of Imambaksh and Jameel, whereas Crime No. 78/08 was registered for murder of Jainuddin. 3
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) The appellant was also tried for murder of Jainuddin in S.T. No.125/2008 (Supplementary) and has been convicted and Cr.A. No. 382/2017 arises out of judgment passed in S.T. No.125/2008 (Supplementary). The said Criminal Appeal has also been heard simultaneously and is being decided by separate Judgment.
4. The prosecution story in short is that on 21-4-2008, at 23:50, the complainant Alibaksh lodged a report in Police Station Bhander on the allegations that he is the resident of Sitola Colony and has a tailoring shop. His brother Imambaksh has grocery shop at Sarsai Tiraha. Enmity of Imambaksh with co-accused Pappu @ Matiuddin was going on, and criminal case is pending in the Court of law. On 21-4-2008, at about 7:30 P.M., he, his brother Imambaksh, nephew Jameel, Rajjak, Inder Pandit etc. were sitting and talking to each other. Gas Lantern was burning. On account of old enmity, the co- accused Pappu @ Matiuddin, who was armed with country made pistol, came along with his brother Phulle (Appellant), Lalu, Balle, and Javeli to his shop and Pappu scolded Imambaksh as to why he is not compromising in 307 matter. Before his brother could speak, the co-accused Pappu fired a gun shot causing injuries on chest and abdomen of Imambaksh. His nephew Jameel tried to save Imambaksh, then Appellant Phulle fired a gun shot causing injury to him. Both of them fell down. Thereafter, all the five accused persons ran away from the spot by firing in air. With the help of Basheer, Imambaksh and Jameel were brought to Bhander Hospital, where 4 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) Imambaksh was declared dead and he went to Gwalior for the treatment of Jameel, but he too died on his way to Gwalior. Now he has come back to Bhander along with the dead body of Jameel. The incident has been witnessed by Rajjak, Inder etc. Imambaksh and Jameel have been killed by causing gun shot injuries. Later on he came to know that Pappu has killed his father in his defence.
5. The police registered F.I.R in crime no. 79/08 for offence under Sections 147,148,149, 302 of IPC and prepared spot map. The bloodstained and plain earth were seized from Sarsai Tiraha. One . 315 bore Country made pistol with one bullet of 8 mm housed in it, one 8 mm fired cartridge, three 8 mm empty cartridges, one fired bullet of .315 bore country made pistol were seized from the shop of Imambaksh. Broken piece of glass was also seized. The dead bodies were sent for post-mortem. Before that safina forms were issued and Lash Panchnama were prepared. The statements of witnesses were recorded. The co-accused Pappu was arrested and his memorandum was recorded and .315 bore country made pistol was seized. The police after completing the investigation filed charge sheet against Pappu for offence under Section 147,148,149,302 of IPC and under Section 25/27 of Arms Act, whereas the co-accused Phulle, Lalu, Balle and Javed were absconding. Later on, the Appellant Phulle was also arrested and supplementary charge sheet was filed by the Police.
6. The Trial Court by order dated 13-11-2014 framed charges under Sections 148,302 or in the alternative 302/149 (Two Counts) of 5 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) IPC.
7. The appellant abjured his guilt and pleaded not guilty.
8. It is not out of place to mention here that co-accused Javeli was also arrested and supplementary charge sheet was also filed against him. However, he absconded during the pendency of the Trial.
9. The prosecution examined Ali Baksh (P.W.1), Najeer Khan (P.W.4), Islam (P.W.5), Dr. R.S. Parihar (P.W.6), Dr. M.M. Shakya (P.W.7), Rashid @ Mouzu (P.W.8), Basheer Khan (P.W.10), Shakeel Khan (P.W.11), Atul Singh (P.W.12), Pramod Yadav (P.W.15), and Vijay Singh Tomar (P.W.16). Some of the witnesses who were examined in the Trial of co-accused Pappu @ Matiuddin were not examined in the present trial.
10. The Appellant examined Naseeruddin (D.W.1), Shashikant Budholiya (D.W.2), Guddu @ Shakir (D.W.3) and Trilok Saxena (D.W.4) in his defence.
11. The Trial Court by the impugned judgment, convicted and sentenced the appellant for the offences mentioned above.
12. Challenging the judgment and conviction recorded by the Court below, it is submitted by the Counsel for the Appellant that all the eye-witnesses are related witnesses. There are major omissions and contradictions in the evidence of the witnesses. In fact the co- accused Pappu had lodged FIR in Crime No.78/2008 against the complainant party for committing murder of his father Jainuddin and by way of counterblast the FIR in question was lodged. The FIR was 6 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) lodged belatedly. There was no sufficient light on the spot.
13. Per contra, the Counsel for the State has supported the prosecution case as well as the findings recorded by the Trial Court.
14. Heard the learned Counsel for the parties.
15. Before adverting to the facts of the case, this Court would like to consider as to whether the death of Imambaksh and Jameel was homicidal in nature or not?
16. Dr. R.S. Parihar (P.W. 6) had conducted the Medical Examination of the injured Jameel and also conducted the post- mortem of deceased Jameel. Dr. R.S. Parihar (P.W.6) found the following injuries on the body of injured Jameel :
(i) Lacerated wound (wound of entry) present over right side of neck behind the ear size 2 cm x 1 ½ cm x track (depth not measured), blackening, tattooing present margin of wound inverted, upper part of pinna lost, bone of skull (Illegible) bleeding present;
(ii) A Lacerated wound present over left side of neck below the mustard process of left lateral side of neck (wound of entry) oval in shape size 1 ½ cm diameter, blackening present tattooing present inverted margins
(iii) Lacerated wounds present over left side of cheek margin everted, making L shaped from the left ear to chin size 6 ½ x2 cm
(iv) A Lacerated wound present over left side of face near angle of mouth left size 2 cm x 1 ½ cm x full side of cheek, everted margins
(v) Abrasion over right index finger at base back of palm size ½ cm x ½ cm blackening tattooing
(vi) Abrasion over right hand size ½ cm ½ cm tattooing blackening present (Injuries no. 1 to 4 are caused by gun shot (fire arm) Case referred to J.A. Hospital Gwalior for -ray and needful treatment.
The M.L.C. is Ex.P.16.
7
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018)
17. The post-mortem of Jameel was also conducted by Dr. R.S. Parihar (P.W.6) who found following injuries on the dead body of Jameel :
(i) Wound of entry - A lacerated wound present over right side of neck behind right ear size 2 cm x 1 1/2cm x making a rack. Margin of wound inverted, blackening present around the wound upper part of pinna lost blackening present over margin of injured Pinna (Ear). On opening of wound there is clotted blood present inside the wound, bone of skull missing proceeding forward. Track of the wound is directed slightly downward forward toward face, muscles of face, neck and teeth of upper jaw injured and track is (Illegible) to nasal bone. Bullet present at the end.
(ii) Wound of entry present over left side of neck below mastoid process oval shape 1 ½ cm in diameter, blackening present, collar of (Illegible) present, margin of wound inverted wound is directed slightly upward toward left cheek of face. On opening of track there is injured neck muscles, blood ... of neck, fracture of mandible bone. Teeth of upper and lower jaw broken.
(iii) Wound of Exit - A lacerated wound present over the left ide of cheek making L-shaed start from (Illegible) the left ear to chin margin everted wound is communicated with the tract of wound of entry of injury no.2. Size 6 ½ cm x 1 ½ x communicate with injury no.2.
(iv) Another exit wound - lacerated over left side of mouth 2 ½ cm x 1 ½ x track communicate with injury no.2 and 3. Margin everted and collect (Illegible) left side. Injury no.3 communicate with oral (Illegible).
(v) Abrasion over base of right index giner on back of palm size ½ x 1 ½ cm blackening present
(vi) Abrasion present over right hand below injury no.5.
Blackening present.
All Injuries no. 1 to 6 are caused by gun shot (fire arm) object.
All injuries ante-mortem in nature within 24 hours in duration.
The time since death within 24 hours of P.M. Examination.
Bullet taken from dead body sealed and sealed bullet (Illegible) and sent to S.O., P.S. Bhander.
The cause of death in this case is shock due to extensive hemorrhage from wounds caused by fire arm (gun 8 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) shot) injury.
The Post-mortem report is Ex. P. 17.
18. This witness was cross-examined. In cross-examination, he stated that he had medically examined the injured on 21-4-2008 at 7:40 P.M. Basheer had also come along with the injured as an attender. He denied that the M.L.C. of Jameel, Ex. P.16 was prepared after the death of Jameel. He also stated that Outdoor slip of Jameel was prepared but admitted that serial no. of Outdoor slip is not mentioned in M.L.C.,Ex. P.16. He took about 15 minutes to medically examine Jameel. He denied that he had referred Jameel without examining him. He denied that post-mortem was not conducted in his presence. He denied that post-mortem report, Ex. P.17 is not in his handwriting. The injuries no. 5 and 6 found on the dead body of Jameel were caused by gun shots. There was blackening and tattooing around said injuries and there was a possibility of a foreign body. The injuries no. 5 and 6 were so minor, that it was not possible to write their direction. He had not mentioned the depth of injury no.1. However, he explained on his own that there was a track of bullet. The direction of track and depth of injury no.1 is not mentioned in MLC, Ex. P.16. He denied that the deceased Jameel was not medically examined prior to his death. He stated that injuries no. 3 and 4 are exit wound. The gun shot must have been fired from a distance of 3-4 ft.s. The S.H.O., Bhander had sent Jameel for medical examination. Pre MLC is done in a case, which is 9 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) not referred by the Police. The injuries no. 1 and 2 were caused by separate gun shots. The size of entry wound would be different from the size of exit wound. The entry wound is generally round in shape, whereas the exit wound is generally oval in shape. He had referred the injured to J.A.Hospital. He had not seen any medical documents regarding treatment in J.A. Hospital. In case of continous bleeding, the injury may become dangerous to life and the same was the situation with injury no.2. The dead body of Jameel was received at 10:30 in the morning.
19. Thus, it is clear that the death of Jameel was homicidal in nature.
20. Dr. M.M. Shakya (P.W.7) had conducted the post-mortem of Imambaksh and found the following injuries :
(i) Wound of Entry - Oval shaped on left upper abdomen blackening and tattooing present margin inverted wider of abrasion present size 1.5 cm diameter, multiple dotted abrasion present around the wound. Blackish in colour wound is directed transversely oblique forward toward the back to vertebral column at his back. On opening of the wound (Illegible) of clotted blood inside the wound marking a track (illegible) of the abdomen Spleen injured and reacting to the side of the back right side near vertebral column.
(ii) Wound of Exit - present over at lumber region near the vertebral column size 2 x 2 cm muscle pierced comes out of the wound. Margin of the wound everted. Wounds of track communicate with injury no.1.
(iii) Wound of Entry - Right Lateral Pat of the upper ½ oblique level of the nipple oval in shape - diameter 1 ½ cm margin of the wound entry margin continuous. Blackening wound directed obliquely downward toward (Illegible). On opening of the wound intercostal muscles ribs are injured. Lungs right side are injured diaphragm liver right lobe and (Illegible) the vertebra of lumber region where bullet is 10 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) present.
All injuries are ante-mortem in nature caused by fire arm injury (Gun shot injury) within 24 hours duration time since death within 24 hours.
Bullet taken from dead body one in number are packed sealed and sent to S.O., P.S. Bhander.
Cloths - Whitish check kurta stained with blood and having holes, baniyan white with stained blood and having holes and while paijama with stained with blood, blue colour underwear with stained with blood swab prepared from the wound sealed and sent to S.O. P.S. Bhander.
The post-mortem report is Ex. P.18.
21. This witness was also cross-examined in detail. In cross- examination, he stated that in case if a gun shot is fired in standing condition with straight angle, then the entry wound and exit wound may be parallel to each other. The injury no. 2 might have been caused by different bullet which was recovered from the dead body of Imambaksh. Blackening and Tattooing was not found around injury no. 3. The said injury might have been caused from a distance of 10- 15 ft.s. The cause of death was excessive bleeding. He admitted that he had not mentioned the nature of death as homicidal.
22. Thus, it is held that the death of Imambaksh was homicidal in nature.
23. The next question for consideration is that whether the Appellant has committed the offence or not?
24. Ali Baksh (PW-1) has stated that Phulle and Javeli are known to him. The deceased Imam Baksh and Jameel are also known to him. Imam Baksh is his brother, whereas Jameel was his nephew. On 21/04/2008 at about 07:15-07:30 he was in the shop. Inder Pandit 11 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) was also there. His elder brother Imam Baksh and Jameel were also sitting. Pappu came and started insisting his elder brother Imam Baksh to enter into compromise in Section 307 of IPC matter. His brother took some time to reply and, accordingly, Pappu fired gunshots causing injury on his abdominal and chest region. In the meanwhile, Jameel rushed in order to save him, then Phulle fired gunshots at Jameel causing injury on his cheek. Phulle, Javeli, Lalu, Balla and Pappu were having country made pistol. His brother had expired in the shop itself. Co-accused persons ran towards flour mill of their father and also shot their own father Jainuddin. Jainuddin was the father of Phulle and he also expired by sustaining gunshot injury. Thereafter, he took his brother and nephew to hospital on riskshaw of Rajjak, whereas Imam Baksh was declared dead. Jameel was referred to Gwalior. Thereafter, they went to Gwalior. At Sahara Hospital, Gwalior his nephew Jameel was declared dead. Thereafter, they came back and lodged the FIR at about 01:00 AM which is Ex. P/1. Police did not come to the spot in the night and came in the morning. Spot map Ex. P/2 was prepared. On his information, earth was seized from the spot vide seizure memo Ex. P/3. Blood as well as country made pistol lying near the spot where dead bodies of Imam Baksh was lying was seized vide seizure memo Ex. P/4. Safina forms were issued to him which are Ex. P/5 and P/6. Police has recorded the merg intimation which is Ex. P/7. Dead body of Imam Baksh and Jameel were handed over to him for last rites vide supurdagi panchnama Ex. 12
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) P/8. Lash Panchnama of Imam Baksh is Ex. P/9. Lash Panchnama of Jameel is Ex. P/10. Since the Public Prosecutor was of the view that this witness has forgotten some aspects and, therefore, he was declared hostile and in cross-examination by the Public Prosecutor, he stated that he had disclosed to the Police in Ex. P/1 that when they were sitting in the shop and discussing the matter, at that time, gas lantern was burning and he had also stated in his FIR Ex. P-1 that all the accused persons were having country made pistol with them and were sharing common intention.
25. This witness was cross-examined and in cross-examination, he stated that he does the tailoring work and his shop is behind Tahsil office and is situated by the side of the Middle School. His shop is at a distance of approximately half kilometer from the spot. This incident took place at the junction of Sarsai - Chirgaon road. The incident took place on Monday. Bhander market never remains closed on any particular day. He sits in his shop from 08:00 AM to 06:00 PM. Market of Bhander gets closed up by 08:00 PM. Everyday, he goes to the shop of Jameel after closing his shop. He sits in the shop of Jameel up to 08:00 or 08:30 PM. His elder brother Imam Baksh and his children also sit in the shop of Jameel. Jameel has a shop of foodgrains. He denied that daily there was a load shedding from 06:00 - 09:00 PM. He denied that because of load shedding, he used to close his shop at 06:00 PM. He further stated that even today, he close down his shop by 06:00 PM. He further stated that Jameel 13 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) purchased foodgrains from the villagers. Bhander is a rural area and, therefore, generally the customers come during day hours. He denied that because of that, Jameel used to close his shop at 06:00 PM. Rajjak is a vegetable vendor. The flour mill of Jainuddin is at Chirgaon road. The flour mill of Jainuddin is visible from the shop of Jameel. He further stated that Inder is a partner of Jameel. Imam Baksh was sitting outside the shop when Pappu had come whereas Jameel was sitting inside the shop. Pappu had challenged Imam Baksh as to whether he wants to compromise the matter pending under Section 307 of IPC. Before his brother could reply, Pappu shot Imam Baksh. Pappu was carrying country made pistol in his pocket. Both the gunshots were fired by Pappu from the same country made pistol. Thereafter, Jameel went towards Imam Baksh. He denied that Imam Baksh was sitting by the side of Rajjak. He further stated that the appellant Phulle shot Jameel. All the accused persons ran away towards Kaji Patha Colony, whereas Pappu ran towards the Police Station and general public chased Pappu and he had heard that Pappu was taken by the general public to Police Station. He reached the hospital along with Jameel and Imam by 07:45 PM. Doctors had taken about 15-20 minutes to examine both of them. Imam Baksh was declared dead and no writing work was done. Thereafter, Jameel was treated. They also took about 10-15 minutes to give first aid. They brought Jameel to Gwalior in a Maruti van along with Basheer, Dr. Sahu. They had started from Bhander at about 08:00 PM. They went 14 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) to Sahara Hospital, but Jameel had already expired on his way. They had reached Sahara Hospital at about 10:10 PM. He could not disclosed the name of Doctor who had declared Jameel dead. They started from Sahara Hospital at about 10:15 in the night. Distance from Bhander and Gwalior is approximately 100 km. They came back to Bhander at about 01:00 AM and directly went to Bhander Police Station. The dead body of Imam Baksh was already kept in the hospital. The FIR was lodged at 01:00 AM. When he was lodging the FIR, then the police personnel had not disclosed to him that a report for murder of Jainuddin has been lodged against them. He further admitted that he was not arrested in the murder case of Jainuddin. He was having licensed gun at the time of incident. He had received license about 7-8 months prior to the incident. He admitted that for obtaining gun license, he had given an application to the Collector that he has a threat to his life. He denied that for this reason, he always keeps his gun with him in loaded condition. He denied that on 21.04.2008 at about 07:30 PM, he went to the flour mill of Pappu along with 4-5 persons and had assaulted Pappu. He denied that father of Pappu tried to intervene in the matter and, therefore, he was shot. He denied that Pappu also got injured in the same incident. He denied that the FIR in Crime No. 78/2008 was lodged by Pappu @ Matiuddin against this witness Basheer, Patel, Babba @ Jameel, Shriram, Khunde, Bakar, Jumman, Jamal, Moju, Imam Baksh. He denied that after the murder of Jainuddin, Pappu went to lodge the 15 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) FIR. He denied that accordingly that a dispute arose between the complainant party on the allegations that some of them have committed the offence, but all of them are being implicated and on this issue, gunshots were shared by Imam Baksh and Jameel, as a result, they died. The Police had reached on the spot at 08:00 AM in the morning. He denied for want of knowledge that whether country made pistol which was in the hand of Pappu was the single loaded country made pistol. When the country made pistol was seized, he had not seen it by opening the same. He denied for want of knowledge that when the police opened the said country made pistol, they found one missed fired cartridge of 8 mm housed in the same. He denied for want of knowledge that the said missed fired cartridge was removed and was seized separately. He stated that 2 fired cartridges were not seized from the spot in his presence. He also stated that 3 fired disfigured 8 mm empty rounds were seized not seized in his presence. He stated that .315 bore fired bullet was not seized in his presence. On 22.04.2008 at about 12-01 PM, he had received dead body of Imam for cremation purposes and thereafter dead body of Jameel was also received and they came back to their house and thereafter the dead bodies were buried. He accepted that there was an old enmity between him and family members of Pappu. He admitted that for this reason only, Imam Baksh, Jameel, Shakeel, Bakar and Inder resides jointly. However, he denied that they always remain armed with arms. He was not in a position to say that as to 16 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) whether gunshot was fired from country made pistol which was recovered from the spot and was stained with earth or not. He denied that in order to falsely implicate Pappu, Javeli, Phulle etc. they had deliberately buried country made pistol in front of shop of Jameel. He stated that Javeli had fired in air. Basheer is his brother, whereas Patel is his nephew. Babba @ Jameel is also his nephew. Khunde is the resident of locality and belongs to same society, whereas Rajjak is distantly related to the deceased Imam. Jumman and Jamal are his nephew. He stated that Shriram Nanna was not present till the FIR was lodged and came to Bhander on the next day. He denied that he had killed father of Phulle along with 9 other persons. He denied that Pappu @ Matiuddin was assaulted when he tried to intervene in the matter. He denied for want of knowledge that Pappu had lodged the FIR in Crime No. 78/2008 for offence under Sections 147, 148, 149, 307 and 302 of IPC. He denied that the deceased Jameel had expired in Sahara Hospital in the morning of 22.04.2008. He denied that such entry has been made in the register of Sahara Hospital. He clarified on his own that Jameel had expired at about 12:30 AM while he was on his way to Gwalior. He denied that he has deliberately suppressed the documents/prescriptions of treatment of Jameel at Sahara Hospital, Gwalior. In his FIR Ex. P/1, he had mentioned the presence of himself, his nephew Jameel, Rajjak and Inder Pandit and did not mention the presence of any other person. He denied that about 3-4 months back, deceased Jainuddin had given an application to the 17 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) police that he has a threat to his life from the complainant party. He admitted that on 23.12.2006, Crime No.253/2006 was registered against his brother Imam Baksh, Basheer, Rajjak, Bakar, Patel, Babba @ Shakeel and in the said case, they had gone to jail also, however, he claimed that a false case was registered against them. He admitted that in the year 2006, Phulle had lodged an FIR under Section 307 of IPC against Shakeel and Jameel, but claimed that even the said report was false. He denied that Phulle was assaulted by Rajjak and sons of his brother, as a result, he has suffered fracture of his hand. He denied that on the report of Phulle, one offence under Section 307 of IPC was registered against him and he also denied that only on account of this motive, Jainuddin was killed. He further denied that in order to pressurize the accused party, they had gone to the flour mill of Jainuddin to compromise the matter and had also threatened that in case, if the matter is not compromised, then they would kill them. He denied that his gun was not seized in Crime No.78/2008. He further stated that his gun was called for inspection purposes but, thereafter, it was not returned. He denied that the police had instructed him to produce the gun after cleaning its barrel and that's way he has deposited with delay. He admitted that he had not deposited the empty cartridge of his gun but clarified that since they were not demanded by police, therefore, they were not given. He denied for want of knowledge that as to whether the seized gun was sent for forensic examination or not. He further admitted that the accused 18 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) persons had come towards Sarsai road from the side of Chirgaon road. His brother was towards Sarsai road. Face of Imam Baksh was towards eastern direction and Matiuddin had come from eastern direction only and had fired from the front. He denied that Matiuddin had fired from the back side of Imam Baksh. Phulle had caused injury to Jameel on his cheek from very close range. He denied that FIR Ex. P/1 was not lodged on his instructions. He denied that the police has recorded the FIR as per their own wishes. He denied that the spot map Ex. P/2 was not prepared in his presence. He also stated that Ex. P/3 contains his signatures at A to A. He was not in a position to state the quantity of earth seized by the police. He also stated that Ex. P/4 contains his signature at A to A. On the date of incident, he had taken his brother Imam Baksh and nephew Jameel on one rickshaw only. He accepted that in case of medical examination in government hospital, entry is made in a register, but clarified that no such entry was got done from him. He could not clarify as to why the entry has not been made by the Doctor. He had informed the Doctor about murder. He was not aware of the fact as to whether the Doctor had informed the police or not. The Doctor had medically examined Imam Baksh and Jameel and Imam Baksh was declared dead and first aid was given to Jameel. Jameel was speaking at that time, however, the statement of Jameel was not recorded by the Doctor. He stated that since Jameel had sustained gunshot injury on his mouth, therefore, he was not speaking. Doctor had advised to take him to 19 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) Gwalior as early as possible. He also stated that Jay Arogya and Madhav Dispensary Government Hospital are there at Gwalior, but claimed on his own that he has not seen them. They had gone to Gwalior on the vehicle of Guptaji. Dr. Sahu and Basheer were also accompanying him. Dr. Sahu was aware of J.A. Hospital and Madhav Dispensary, but this witness had told him to go to Sahara Hospital, therefore, they went to Sahara Hospital. This witness was not in a position to disclose the name of the Doctor who had examined Jameel. He denied that in order to save themselves from the charge of murder of Jainuddin, they have killed Imam Baksh and Jameel. He denied that for this reason only, they did not take Imam Baksh to the hospital nor they take Jameel to Sahara Hospital, Gwalior and were hiding themselves. He denied that BSP leader Arvind Boddh and Govind Das Pal had informed him on phone that the police has already registered a crime for murder of Jainuddin. Since they were making arrangement for avoiding their arrest, therefore, they deliberately killed Imam Baksh and it is also denied that for this reason only, he was restraining his family members and Arvind Boddh to lodge an FIR. He denied that he was deposing falsely that Imam Baksh and Jameel were taken to the hospital immediately after the incident.
26. Nazeer Khan (P.W. 4) has also supported the prosecution case and has narrated the incident in the same words. He was cross- examined and in cross-examination he stated that he works along 20 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) with Shakeel in his shop. He admitted that for going to the shop of Jameel (Deceased) one has to pass in front of the shop of this witness. He denied that it was dark. He admitted that they were preparing for closing the shops. He denied that he had not seen the accused persons going towards the shop of Jameel. The first gun shot fired by Pappu had hit on the chest of Imambaksh and second caused injury on abdomen. Pappu had reloaded the Country made pistol, but no one tried to intervene. Jameel came after second gun shot injury was sustained by Imambaksh. He denied that they had beaten Pappu at the shop of his father Jainuddin. He denied that Alibaksh shot Jainuddin when he had come to save co-accused Pappu. He denied that because of this incident, there was so much of quarrel between the complainant party as a result Imambaksh and Jameel sustained injuries due to mutual firing between the complainant party. Since, the incident had taken place about 7 years back, therefore, this witness was unable to state the date of incident. The distance between the shop of Jainuddin and Imambaksh was approximately 40 ft.s.
27. Islam (P.W.5) has stated that he was in his shop and heard the noise of firing. He went to Sarsai Square and found that Imambaksh and Jameel were lying on the ground in injured condition. He was told by bystanders that Phulle, Javeli, Pappu, Lalu and Balle have fired gun shots. Since, he didnot support the prosecution story in toto therefore, he was declared hostile and in cross-examination by public 21 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) prosecutor, he admitted that in his police statement Ex. P.15 he had disclosed to the police that Phulle had shot his father Jainuddin.
28. Thus, it is clear that this witness is not an eye-witness, but is a hearsay witness but he had seen that Imambaksh and Jameel were lying in an injured condition on the spot and had also seen that Phulle shot his father Jainuddin. In cross-examination, he stated that his shop is at a distance of 10-15 steps away from the shop of Jainuddin. He stated that he had seen that Imambaksh was already dead whereas Jameel was in an injured condition. He further stated that after coming back from the spot, he had closed his shop. He further stated that he is the resident of Sitola Colony. He stated that Imambaksh is his maternal uncle. He further stated that he had seen that only Phulle had shot his father Jainuddin, who sustained injuries out side his shop. He denied that he had not seen that who had shot Jainuddin. He denied that Phulle had not killed his father Jainuddin.
29. Mouzu @ Rashid (P.W.8) is the son of Alibaksh (P.W.1). He has supported the prosecution case and has narrated the incident in the same words. This witness was cross-examined and in cross- examination, he admitted that he has a shop in the name and style Khwaja General Store and he was sitting on the Counter of his shop. Sarsai road, Chirgaon Road and Datia Road are visible from the outside of his shop. The shop of Shakeel is adjoining to his shop. He was alone in his shop. Basheer, Alibaksh, Nazeer all were sitting. The assailants had come from the side of Chirgaon road. Pappu had 22 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) scolded as to why he is not compromising in 307 of IPC matter, and before Imambaksh could speak, gun shot was fired by Pappu. He admitted that when Pappu was abusing, then Basheer, Nazeer, Alibaksh and Shareef didnot intervene in the matter. Pappu was standing in front of Imambaksh. He admitted that neither he nor any person present on the spot, tried to catch hold of any of the assailant. Mobile facility in Bhander on the date of incident was not available. He went to Hospital along with Jameel and Imambaksh. He was unable to state as to whether the incident took place in front of his shop or the shop of Basheer or Jameel. The moment gun shots were fired, he closed his shop. When he reached the hospital, he came to know that Imambaksh has expired. He denied that 10-12 persons had killed Jainuddin and thereafter, dispute arose amongst the family members and in mutual firing, Imambaksh and Jameel sustained gun shot injuries. He further stated that since, the incident took place long ago, therefore, he was not in a position to state the date of incident. He had seen five assailants. He denied that on the complaint of Phulle, offence under Section 307 of IPC was registered against Alibaksh etc. He denied for want of knowledge that prior to incident, Phulle and Imambaksh were on visiting terms.
30. Basheer Khan (P.W.10) has also supported the prosecution case and has also narrated the incident in the same terms. He further stated that after the incident, he found that Imambaksh was already dead whereas Jameel was alive, accordingly, they were taken to Govt. 23
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) Hospital, from where Jameel was referred to Gwalior. They took Jameel to Gwalior in the Maruti Van of Gupta ji, however, Jameel died on the way. Thereafter, Alibaksh lodged the report at about 12:00 in the night. This witness was cross-examined. In cross- examination, he admitted that on the report of Phulle, he, Alibaksh and other family members are facing trial for offence under Section 307 of IPC. The said trial was also pending on the date of incident. He denied that there was loadshedding at 5:00 P.M. He stated that it was moon night. He was sitting outside the shop of Imambaksh. Imambaksh was sitting outside his shop. The assailants had come from the side of Chirgaon road. Pappu @ Matiuddin came first and was carrying country made pistol. Phulle was also carrying country made pistol. Matiuddin had scolded Imambaksh as to why he is not compromising in 307 matter. Imambaksh didnot fell after sustaining first gun shot and was standing. Since the incident took place in such a quick succession, therefore, they could not intervene in the matter. After causing gun shot injuries to Imambaksh and Jameel, the accused persons didnot shoot anybody else. He, Alibaksh, Nazeer, Shareef, Sakil had taken the injured Jameel and deceased Imambaksh to hospital. After coming back from Gwalior, he came to know that Phulle has shot his own father in order to create false defence.
31. From the spot map, Ex. P.2, it is clear that the shop of Basheer (P.W.10) is situated quite nearer to the shop of Imambkash, where the incident took place. Further, it is clear from MLC of Jameel, Ex. 24
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) P.16, Basheer had taken the injured Jameel to the hospital. Thus, the presence of Basheer on the spot was natural and the fact that he immediately took Jameel to Hospital, also shows that he was present on the spot.
32. Shakeel Khan (P.W.11) is also an eye-witness and son of the deceased Imambaksh and elder brother of Jameel. He has also supported the prosecution case. In cross-examination, he stated that the accused persons had come from the side of Sankatmochan Temple. He was unable to say as to whether light was ON in his shop or not? However, he denied that it was dark. Pappu and Phulle had come and Pappu had talk with his father Imambaksh. Total 3 gun shots were fired in front of the shop out of which two gun shots were sustained by his father and one was sustained by his brother Jameel. Jameel had sustained injury on his left cheek. One bullet had also hit his counter. The police had seized the fired bullet and pieces of glass in front of I.G. and S.P. Immediately after the incident, Ali, Basheer, Nazeer and this witness took Imambaksh and Jameel to Hospital. He further stated that since his uncle Ali, Basheer had gone to Gwalior for treatment of Jameel, therefore, they informed police that they would lodge the report after they come back. He denied that co- accused Pappu had shot Imambaksh and Jameel by two different country made pistols. He denied that he was not present on the spot and didnot witness the incident.
33. Atul Singh (PW-12) is the Investigating Officer. He has stated 25 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) that on 21.04.2008 he was posted as SHO, Police Station Bhander and on that day, the complainant Ali Baksh lodged a report against Pappu @ Matiuddin, Phulle, Lalu, Balle, Javeli, all sons of Jainuddin for murder of his brother Imam Baksh and nephew Jameel and, accordingly, FIR in Crime No.79/2008 was registered for offence under Sections 147, 148, 149, 302 of IPC. The FIR is Ex. P/1. Nothing was added or subtracted. The counter copy of the FIR was sent to JMFC, Bhander. On 22.04.2008, he had prepared the lash panchnama of Imam Baksh Ex. P/9. The lash panchnama of Jameel was prepared. The blood stained earth and plain earth were seized vide seizure memo Ex. P/3. He had also collected blood stained earth and plain earth from a place where the dead body of Imam Baksh was lying. One .315 bore country made pistol, 2 fired cartridges of 8 mm, 3 fired cartridges of 8 mm, 1 fired bullet of .315 bore and 1 broken piece of glass was lying in the shop of Imam Baksh, were also seized vide seizure memo Ex. P/4. On the date of incident, he had also prepared the spot map Ex. P-2. On the information given by Ali Baksh, safeena forms Ex. P/5 and P/6 were issued. Merg Intimation No. 12 and 13 / 08 Ex. P/7 were prepared. Requisition for postmortem of deceased Jameel is Ex. P/21. His dead body was sent to Bhander Hospital along with constable Balbhadra. Requisition form for postmortem of the dead body of Imam Baksh is Ex. P/22. The statements of the witnesses were recorded. On 25.04.2008, he had arrested Pappu vide arrest memo Ex. P/11. His memo was 26 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) recorded who informed that he has hidden a country made pistol in the Mela Ground behind a Gumti. Thereafter, the country made pistol was recovered at the instance of Pappu vide seizure memo Ex. P/13. Seized articles were sent to FSL, Sagar. The FSL draft is Ex. P/23. The FSL report is Ex. P/24. The other accused persons Javeri, Phulle, Lalu, Ballu were absconding and their absconding panchnama are Ex. P/25, 26 and 27. This witness was cross-examined and in cross- examination, he stated that on 20-4-2008 he was posted as S.H.O., Police Station Bhander, as earlier S.H.O. was placed under suspension. He stated that FIR, Ex. P.1 is in his handwriting. He further stated that in the FIR itself, there is an endorsement with regard to sending the counter copy to the concerning Magistrate. He denied that information was not sent immediately. He stated that Alibaksh had lodged the report at 23:50. He further stated that prior to the report of Alibaksh, Pappu @ Matinuddin had already lodged FIR No. 78/08 against Ali, Basheer, Patel @ Shakir, Jameel, Shriram Nanha, Khunde, Vakar, Jumman, Jamal and Mouzu alleging that they have beaten him and have killed his father Jainuddin. He admitted that Alibaksh had given an application, Ex. P.11 to Superintendent of Police regarding his false implication. The said application was also considered in the investigation of crime no.78/08. The said application was decided during investigation itself. At the first instance, he had tried to maintain law and order situation and also ensured the safety of dead bodies in the hospital. During patrolling 27 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) he had received an information that firing has taken place at Sarsai Tiraha, and there is helter-skelter in Bhander town, therefore, he rushed back to Police Station. He admitted that Inder Singh and Nazeer are residents of Sitola Colony and Sarsai Tiraha is about 1 furlong (Approximately 200 meters) from Sitola Colony. In spot map, Ex. P.2 he had shown the shops of Swamisharan, Ramadhar, Ramdas, Rakesh Sen, Bhunesh, Pankaj and Kalicharan. He also stated that he had interrogated nearby shopkeepers but because of enmity, they didnot agree to give police statements. The omissions and contradictions in the statements of the witnesses were also put to this witness. He further stated that it is true that Doctor Parihar had referred the injured Jameel to J.A. Hospital, but admitted that he didnot enquire from the said hospital because Alibaksh had informed that Jameel had expired on the way. He also stated that he had tried to take information from the family members of Imambaksh but they stated that since they are going to Gwalior therefore, they would talk after coming back. He denied that on 22-4-2008, Alibaksh was not present in between 9 A.M. To 2 P.M.. The dead bodies of Imambaksh and injured Jameel were at a distance of 7-8 ft.s. He admitted that gun of Alibaksh was seized in Crime No. 78/08. He also denied that prior to lodging of FIR, Nazeer had informed him that Pappu was the assailant who shot Imambaksh and Jameel. He denied that the country made pistol which was seized from the spot was that of Basheer. He denied that the said country made pistol was used for 28 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) committing murder of Jainuddin. He denied that Basheer had informed that after hearing the noise of gun shots, he had seen the incident.
Whether there was light on the spot at the time of incident
34. It is submitted by the Counsel for the Appellant that there was no sufficient light to witness the incident.
35. Heard the learned Counsel for the Appellant.
36. The incident had taken place on 21-4-2008, and it is a matter of common knowledge, that at about 7-7:30 P.M., during the during the month of April, it is not complete dark. Further, the incident had not taken place at an isolated place. The incident took place outside the shop of the deceased. The witnesses have stated that gas Lantern was burning. Further, the gun shots were caused from a very close range as blackening and tattooing was found around the wounds of the deceased Imambaksh and Jameel. Further it has come on record that the appellant as well as the deceased and witnesses were known to each other and they had an enmity. The complainant party was facing trial for offence under Section 307 of IPC on the report of accused party and vice versa. Further, Pappu @ Matiuddin had also lodged a report that 11 persons have killed his father Jainuddin. Thus, it is clear that there was sufficient light on the spot. Further more, it has come on record that Bhander is a rural area. The eyes of villagers are already accustomed to poor light. The Supreme Court in the case of Ramesh Vs. State reported in (2010) 15 SCC 49 has held as under ; 29
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018)
15. As stated earlier, the appellant and these two witnesses (PWs 3 and 4) are neighbours and, therefore, knew the appellant well and their claim of identification cannot be rejected only on the ground that they have identified him in the evening, when there was less light. It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatised to fluorescent light. Visible (sic visual) capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meagre light in the evening. There is nothing on record to show that these two witnesses are in any way interested and inimical to the appellant. Their evidence clearly shows that the deceased was last seen with the appellant and the High Court did not err in relying on their evidence.
37. Thus, it is held that there was sufficient light on the spot and the witnesses had full opportunity to see and identify the accused persons.
Related witnesses
38. It is submitted by the Counsel for the Appellant, that all the witnesses are related and interested witnesses.
39. 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.
40. 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 30 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) not to speak the truth and shield the real culprit.............
41. 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 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) 31 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) "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 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.
42. Why a "related witness" would spare the real culprit in order to falsely implicate some innocent person? There is a difference between "related witness" and "interested witness". "Interested witness" is a witness who is vitally interested in conviction of a person due to previous enmity. Further more, why a related witness would spare the original assailant. Even according to the defence, the Appellant Pappu could have inflicted the injuries to himself. The "Interested witness" has been defined by the Supreme Court in the case of Mohd. Rojali Ali v. State of Assam, reported in (2019) 19 SCC 567 as under :
32
Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018)
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"."
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) 33 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) "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."
43. Thus, the testimony of Alibaksh (P.W.1), Nazeer Khan (P.W.4), Islam (P.W.5), Rashid @ Mouzu (P.W.8), Bashir Khan (P.W.10) and Shakeel Khan (P.W.11) cannot be discarded only on the ground that they are related witnesses.
44. The presence of the witnesses on the spot is also natural. The incident took place in front of the shop of the deceased persons. The shops of the witnesses are situated at nearby places. The witnesses have specifically stated that their family is joint and reside in a same house with common kitchen. Some of the witnesses have specifically stated that after closing down their shop, they used to go the shop of Imambaksh as he is the Karta of their family. This conduct of the witnesses is not unnatural. Basheer (P.W. 10) is one of the eye- witness. From the MLC of Jameel, which was prepared at 7:40 P.M.,Ex. P.16, the name of attender has been mentioned as Basheer (P.W.10). The incident had taken place at around 7-7:30 P.M. The fact that the eye-witnesses took the injured to the hospital Bhander, clearly show that they were present on the spot. From, the spot map, Ex. P.2, it is clear that the shop of Basheer is also situated quite 34 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) nearer to the place of incident. Thus, where the presence of the eye- witnesses on the spot is un-doubtful, then merely because they are related to the deceased is not sufficient to discard their testimony. Motive
45. It is submitted that there was an old enmity between the parties. In fact on the report of Pappu @ Matiuddin, the complainant party was facing criminal trial for offence under Section 307 of IPC and accordingly, they went to the floor mill of the father of Appellant and were insisting that the accused party must compromise the matter and when it was not accepted by Pappu @ Matinuddin, then not only his father Jainuddin was killed but gun shot injuries were also caused to Pappu @ Matinuddin.
46. Heard the learned Counsel for the parties.
47. The case of the prosecution is that Pappu @ Matiuddin, Phulle @ Kabuluddin and other co-accused persons were also facing trial for offence under Section 307 of IPC for causing injuries to Imambaksh etc. According to the prosecution case, Pappu @ Matiuddin, Phulle @ Kabuluddin along with other co-accused persons, went to the shop of Imambaksh and Pappu @ Matinuddin challenged Imambaksh to enter into a compromise in 307 IPC matter and fired at him causing two gun shot injuries to Imambaksh and when Jameel came to save his father, then Phulle @ Kabuluddin fired at him causing gun shot injuries to him. Thus, it is clear that both the parties were facing trials for making an attempt on the life of each other and the trial of the 35 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) accused persons pending under Section 307 of IPC was fixed for examination of Imambaksh and accordingly, the Appellant and other co-accused persons went to the shop of Imambaksh for pressurizing him to enter into a compromise.
48. Enmity is a double edged weapon. If a person can be falsely implicated on account of enmity, then enmity also provides a reason for committing offence.
49. The Supreme Court in the case of State of A.P. v. Dr M.V. Ramana Reddy, reported in (1991) 4 SCC 536 has held as under :
16....But as has often been commented bitter animosity can be a double edged weapon which may be instrumental for deliberate false involvement or for the witnesses wrongly inferring and strongly believing (without having actually witnessed it) that the crime must have been committed by the rival group. This possibility has to be kept in mind while evaluating the prosecution evidence regarding the involvement of accused 1 and his companions in the commission of the crime.
50. The Supreme Court in the case of Anil Rai Vs. State of Bihar reported in (2001) 7 SCC 318 has held as under :
18.......The admitted position of law is that enmity is a double-edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity, held to be a double-edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the 36 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) involvement of the accused in the commission of the crime.
Testimony of eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eyewitnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime, cannot be made a basis to discard or reject the testimony of the eyewitnesses, the deposition of whom is otherwise consistent and convincing.
51. The Supreme Court in the case of Sushil Vs. State of U.P. reported in 1995 Supp (1) SCC 363 has held as under :
8....It goes without saying that enmity is a double-edged weapon which cuts both ways. It may constitute a motive for the commission of the crime and at the same time it may also provide a motive for false implication. In the present case there is evidence to establish motive and when the prosecution adduced positive evidence showing the direct involvement of the accused in the crime, motive assumes importance. The evidence of interested witnesses and those who are related to the deceased cannot be thrown out simply for that reason. But if after applying the rule of caution their evidence is found to be reliable and corroborated by independent evidence there is no reason to discard their evidence but it has to be accepted as reliable.
We shall, therefore, examine the prosecution evidence applying the said rule of caution.
52. Further more, this Court by a separate judgment passed in Cr.A. No. 246/2010 which was heard simultaneously, has held that in fact the incident of murder of Imambaksh and Jameel took place prior to the murder of Jainuddin (father of the Appellant) and thereafter, in order to create a false defence, the Appellant killed his own father 37 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) namely Jainuddin. Thus, it is held that the testimony of witnesses cannot be thrown on the ground of enmity but in fact Imambaksh and Jameel were the victims of enmity who unfortunately lost their lives. Non-recovery of weapon of offence
53. It is submitted by the Counsel for the Appellant that the weapon of offence was not seized and hence, it is clear that the allegations that the Appellant was member of Unalwful Assembly and shot Jameel is false.
54. Heard the learned Counsel for the Appellant.
55. The appellant has been arrested in the year 2013, i.e., 5 years after the incident. Therefore, if the police could not seize any weapon from this Appellant, then it would not have adverse effect on the prosecution case.
56. It is suffice to mention here that recovery of weapon is not essential to prove the guilt of the accused. In case if the accused succeeds in hiding the weapon of offence, and police fails to recover the same, then he cannot take advantage of his own cleverness. The Supreme Court in the case of Rakesh Vs. State of U.P. reported in (2021) 7 SCC 188 has held as under :
12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be 38 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) 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.
57. The Supreme Court in the case of Gulab Vs. State of U.P. by order dated 9-12-2021 passed in Cr.A. No. 81/2021 has held as under:
17. The deceased had sustained a gun-shot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution.....
58. The Supreme Court in the case of Krishna Gope v. State of Bihar, (2003) 10 SCC 45 has held as under :
8. Learned counsel further pointed out that the country-
made firearm alleged to have been used by the appellant was not recovered by the police and the same was not sent to the police station. The learned counsel submitted that the investigation was not properly done and that the appellant is entitled to the benefit of doubt. In our view, this plea is not tenable. The house of the appellant was searched immediately after the incident, but the police could not recover the weapon of offence from his house. It appears that the appellant had succeeded in concealing the weapon before the police could search his house. In our opinion, the fact of non-recovery of the weapon from the house of the appellant does not enure to his benefit.
Non-Examination of Independent witnesses
59. It is contended by the Counsel for the Appellant that although the incident had taken place at a public place, but no independent witness was examined, which creates a doubt on the correctness of the related witnesses.
60. Heard the learned Counsel for the Appellant.
61. Now a days, the independent witnesses hesitate to come 39 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) forward. The Supreme Court in the case of Ambika Prasad v. State (Delhi Admn.), reported in (2000) 2 SCC 646 has held as under :
12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW
7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh this Court observed: (SCC pp.
691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
62. No other argument is advanced by the Counsel for the parties.
63. Thus, after considering the evidence of prosecution witnesses, this Court is of the considered opinion, that the prosecution has succeeded in establishing that the Appellant was the member of Unlawful Assembly and went to the shop of Imambaksh and co- accused Pappu tried to pressurize him to enter into a compromise in 40 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) relation to a criminal case which was pending under Section 307 of IPC and fired two gun shots causing injuries on chest and abdomen of deceased Imambaksh who died on the spot, and Appellant Phulle @ Kabuluddin caused gun shot injuries to Jameel, when he tried to intervene in the matter. Accordingly, the Appellant is held guilty for offence under Sections 302/149 of IPC (On two counts) for causing murder of Imambaksh and Jameel. His conviction under Section 148 of IPC is also upheld.
64. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment, therefore, the sentence awarded by the Trial Court doesnot call for any interference.
Whether the sentence awarded in this case i.e., S.T. No. 84/2008 (Supplementary) and S.T. No. 125/2008 can be made concurrent.
65. The Counsel for the Appellant has not argued on this question. However, in order to do complete justice, this Court would consider the said aspect also.
66. Section 427 of IPC reads as under ;
427. Sentence on offender already sentenced for another offence.-- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of 41 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
67. The situation in hand is duly governed by Section 427(2) of Cr.P.C.
68. The Supreme Court in the case of O.M. Cherian v. State of Kerala, reported in (2015) 2 SCC 501 has held as under :
13. Section 31(1) CrPC enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other.
Difficulties arise when the courts impose sentence of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the court does not direct that the sentences shall run concurrently, then the sentences will run consecutively by operation of Section 31(1) CrPC. There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter undergoing the rest of the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, the court has to direct those sentences to run concurrently.
69. The judgment in the present case was pronounced on 10-1- 2018, whereas the judgment in S.T. No. 125/2008 (Supplementary) was pronounced on 21-12-2016.
70. Thus, it is directed that the sentence awarded in the present 42 Phulle @ Kabuluddin Vs. State of M.P. (Cr.A. No. 2567 of 2018) case shall run concurrently with the sentence awarded by Additional Sessions Judge Datia in S.T. No. 125/2008 (Supplementary) on 21- 12-2016.
71. However, it is made clear that in the light of judgment passed by Supreme Court in the case of Sharad Hiru Kolambe v. State of Maharashtra, reported in (2018) 18 SCC 718, the default sentence shall run consecutively.
72. Ex-Consequenti, the judgment and sentence dated 10-1-2018 passed by Add. Sessions Judge, Datia in S.T. No.84 of 2008 (Supplementary), is hereby Affirmed.
73. The Appellant is in jail. He shall undergo the remaining jail sentence.
74. A copy of this judgment be immediately provided to the Appellant free of cost.
75. The record of the Trial Court be send back immediately along with copy of this judgment for necessary information and compliance.
76. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2022.04.07 19:06:08 +05'30'