Madhya Pradesh High Court
Ramgopal vs State Of M.P. on 23 November, 2021
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 235 of 2010
Ram Sewak & Ors.
Vs.
State of M.P.
&
Cr.A. No. 373 of 2010
Ramgopal & Ors.
Vs
State of M.P.
Shri Ashok Jain and Shri Sushil Goswami Counsels for the
Appellants in both the appeals.
Shri C.P. Singh Counsel for the State
Date of Hearing : 16-11-2021
Date of Judgment : 23-11-2021
Approved for Reporting :
2
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
Judgment
23- November -2021
Per G.S. Ahluwalia J.
1. By this common judgment, Cr.A. No.235 of 2010 and 373 of
2010 shall be decided. Appellants Ramsewak, Lal Singh, Ajmer and
Hardaul have filed Cr.A. No.235 of 2010 whereas Ramgopal, Ram
Singh, Rambahadur, Ramprakash, and Akhilesh have filed Cr.A. No.
373 of 2010.
2. Criminal Appeals No. 235 of 2010 and 373 of 2010 arise out of
judgment and sentence dated 8-3-2010 passed by VIth Additional
Sessions Judge (Fast Track Court), Lahar, Distt. Bhind in S.T. No.
5/2008, by which the appellants Ramsewak, Ramgopal,
Rambahadur, Ajmer and Hardaul have been convicted for offence
under Sections 148, 302/149 of I.P.C. for murder of Rameshwar,
302/149 of I.P.C. for murder of Mungaram, 307/149 of I.P.C. for
attempt to murder Kamlesh, 307/149 of I.P.C. for attempt to murder
Buddhe and 323/149 of I.P.C. for causing simple injuries to Suraj and
have been sentenced to undergo the Rigorous Imprisonment of One
year R.I. for offence under Section 148, Life Imprisonment and fine
of Rs. 5000 in default 1 year R.I., for offence under Section 302 of
I.P.C. on two counts (for murder of Rameshwar and Mungaram), 7
years R.I. and fine of Rs. 2500 in default 6 months R.I. For offence
under Section 307 of I.P.C., on two counts ( for making an attempt to
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Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
kill Kamlesh and Buddhe) and Six months S.I. for causing simple
injuries to Suraj. Whereas Ram Singh has been convicted under
Sections 148 of I.P.C., 302/149 of I.P.C. for causing murder of
Rameshwar, 302 of I.P.C. for causing murder of Mungaram, 307/149
of I.P.C. on two counts (for attempt to kill Kamlesh and Buddhe),
323/149 for causing simple injuries to Suraj and sentenced to undergo
the Rigorous Imprisonment of One year R.I. for offence under
Section 148, Life Imprisonment and fine of Rs. 5000 in default 1
year R.I. For offence under Section 302/149 of I.P.C. (for murder of
Rameshwar), Life Imprisonment and fine of Rs. 5000 in default 1
year R.I. for offence under Section 302 of I.P.C. ( for murder of
Mungaram), 7 years R.I. and fine of Rs. 2500 in default 6 months R.I.
on two counts (for making an attempt to kill Kamlesh and Buddhe)
and Six months S.I. for causing injuries to Suraj. Lal Singh and
Rampakash have been convicted under Sections 148 of I.P.C., 302
of I.P.C. for causing murder of Rameshwar, 302/149 of I.P.C. for
causing murder of Mungaram, 307/149 of I.P.C. on two counts (for
attempt to kill Kamlesh and Buddhe), 323/149 for causing simple
injuries to Suraj and sentenced to undergo the Rigorous
Imprisonment of One year R.I. for offence under Section 148, Life
Imprisonment and fine of Rs. 5000 in default 1 year R.I. for offence
under Section 302 of I.P.C. for murder of Rameshwar, Life
Imprisonment and fine of Rs. 5000 in default 1 year R.I. for offence
4
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
under Section 302/149 of I.P.C. (for murder of Mungaram), 7 years
R.I. and fine of Rs. 2500 in default 6 months R.I. On two counts (for
making an attempt to kill Kamlesh and Buddhe), and Six months S.I.
for causing injuries to Suraj. Akhilesh has been convicted for
offence under Sections 148, 302/149 of I.P.C. for murder of
Rameshwar and Mungaram, 307 of I.P.C. on two counts (for attempt
to kill Kamlesh and Buddhe), and 323/149 of I.P.C. for causing
simple injuries to Suraj and has been sentenced to undergo the
Rigorous Imprisonment of One year R.I. for offence under Section
148, Life Imprisonment and fine of Rs. 5000 in default 1 year R.I.,
on two counts (for murder of Rameshwar and Mungaram), 7 years
R.I. and fine of Rs. 2500 in default 6 months R.I., on two counts (for
making an attempt to kill Kamlesh and Buddhe) and Six months S.I.
for causing simple injuries to Suraj.
3. The prosecution story in short is that on 28-8-2007, at about
7:30, the injured Buddhe and Kamlesh were returning back after
tying Bhujaria (Paddy ear). [According to the Counsel for the
appellants, Bhujarias are tied after the Rakhi festival, and the person
tying Bhujaria tenders his apology for his misdeeds]. The appellants
Akhilesh with axe, Prakash with Ballam, Pawan with Lathi, Lal
Singh with Lathi, Ram Singh with axe, Ramsewa with Lathi, Ajmer
with Lathi Bahadur with lathi, Ramgopal with lathi and Hardaul with
lathi were standing near the platform of the house of Ramsewa, and
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Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
challenged that they would not allow to tie Bhujarias and started
abusing. Mungaram, Ramesh, Suraj also came on the spot after
hearing noise. The appellants started assaulting the injured and
deceased persons. Akhilesh assaulted by means of axe causing injury
to the complainant Buddhe on his head, and also caused injuries to
Kamlesh and Rameshwar. Ram Singh gave an axe blow to Buddhe,
Suraj suffered injury on his hand. Mungaram had suffered injuries on
his both hands. Prakash assaulted by Ballam causing injury on the
forehead of Mungaram. Lal Singh assaulted on the forehead of
Rameshwar by means of Barchhi. Pawan, Ramsewa, Ajmer, Bahadur,
Ramgopal and Hardaul assaulted the injured and the deceased by
lathis. The incident was witnessed by Ram Singh and Janak Singh. It
was also alleged that last year, a fight had taken place with the
accused party, therefore, there is an enmity. It was further alleged
that Mungaram died after some time, whereas Rameshwar has died
on his way to the police station. On the above mentioned
information, the police registered the F.I.R. for offence under
Sections 147,148, 149, 302 and 307 of I.P.C.
4. The dead bodies of Ramehswar and Mungaram were sent for
post-mortem. The injured Buddhe, Suraj and Kamlesh were sent for
medical examination. The statements of witnesses were recorded.
The appellants were arrested and weapons were seized from their
possession, and after completing the investigation, the police filed the
6
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
charge sheet for offence under Sections147,148,149,307,302 of I.P.C.
5. The Trial Court by order dated 2-4-2008 framed charges under
Sections 148, 302 or in the alternative 302/149 of I.P.C. on two
counts, under Section 307 or in the alternative 307/149 of I.P.C. on
two counts, and under Section 323/149 of I.P.C. for causing simple
injuries to Suraj.
6. The appellants abjured their guilt and pleaded not guilty.
7. The prosecution examined Janak Singh (P.W.1), Kamlesh
(P.W.2), Buddhe (P.W. 3), Dayanand (P.W.4), Ram Singh (P.W.5),
Gaura (P.W.6), Suraj (P.W.7), Kamal Singh (P.W.8), Nathuram
(P.W.9), Sitaram (P.W.10), Raghunath (P.W.11), Jahar Singh (P.W.
12), Dr. Dinesh Kumar Gupta (P.W.13), R.N. Singh Bhadauria (P.W.
14), and Dr. S.C. Gupta (P.W. 15).
8. The appellants examined Dinesh (D.W.1), Sughar Singh (D.W.
2), Rameshwar (D.W.3), Rajiv Singh (D.W.4), Chatrapal (D.W.5),
Ram Sewak (D.W.6), Rambeti (D.W.7) and Dr. Devendra Kumar
Gupta (D.W.8) in their defence.
9. The Trial Court by the impugned judgment and sentence,
convicted and sentenced the appellants for the offences mentioned
above.
10. Challenging the impugned judgment, it is submitted by the
Counsel for the appellants that the incident took place all of a sudden.
There was no pre-meditation on the part of the appellants. The
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Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
independent witnesses have not been examined. No specific act has
been assigned to the appellants. No injury which could have been
caused by sharp edged weapon was found on the body of the
deceased, thus there is a material variance in the ocular and medical
evidence. It is further submitted that no blood was found on the spot.
The weapons were not shown to the Doctor and there is nothing on
record to suggest the source of light. The statements of the witnesses
were recorded belatedly. In the alternative it is submitted by the
Counsel for the parties, that the allegations made against the
appellants, would make out an offence under Section 304 Part I of
I.P.C. and not under Section 302 of I.P.C.
11. Per contra, the Counsel for the State has supported the
prosecution case as well as the findings recorded by the Court below.
12. Before adverting to the facts of the case, this Court would like
to find out as to whether the death of Mungaram and Rameshwar was
homicidal in nature or not?
13. Dr. Dinesh Kumar Gupta (P.W. 13) has conducted the Post-
mortem of Rameshwar and Mungaram. Following injuries were
found on the dead body of Mungaram :
(i) One Incised wound 3 x 1 size between Index Finger and thumb
of left hand vertical in direction, clotted blood seen inside the wound
(ii) Lacerated wound over metacarpal 2 x 1 cm size, two in number
over index finger and middle ring skin deep
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Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
(iii) Incised wound 3 x 1 size over right arm on lower 1/3 rd anterior
(iv) Contusion 9 x 1 size over right sub coastal margin
(v) Incised wound 2 cm x 1 cm x skin deep lateral to right hand
On internal examination, 5th rib was found fractured, liver was found
lacerated.
The cause of death was excessive hemorrhage due to laceration of
liver. The post-mortem report is Ex. P.12.
14. The following injuries were found on the dead body of
Rameshwar :
(i) One incised wound 2 cm x 1 cm x skin deep over right side of
forehead. Clotted blood seen inside and out side the wound
(ii) Incised wound 1 cm x ½ cm over nose at base skin deep
(iii) Incised wound 3 x 2 x skin deep over scalp in occipital region
on left side clotted blood seen in and around the wound
(iv) Contusion over left shoulder 4 x 2 size transverse in direction
(v) Contusion 4 x 2 size back of chest below left scapula
transverse in direction
(vi) Incised wound 2 cm x ½ cm size skin deep over right arm
(vii) Incised wound 2 cm x ½ cm x skin deep over right arm on
posterior aspect
On internal examination, fracture of occipital bone was found. The
cause of death was injury on head.
15. The post-mortem report of Rameshwar is Ex. P.11.
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Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
16. This witness was cross-examined by the appellants. It was
stated by this witness that the small intestine of the deceased
Rameshwar was empty. The post-mortem had started at 7-40. The
post-mortem of Rameshwar was done after completing the post-
mortem of Mungaram. He further stated that the injuries were seen
by him by his naked eye and had not used any magnifying glass. He
denied that the depth of the injuries cannot be ascertained with naked
eye. He admitted that he had not found any punctured wound.
17. Thus, from the post-mortem report, Ex. P. 11 and P.12 as well
as from the evidence of Dr. Dinesh Kumar Gupta (P.W.13), it is clear
that the death of Mungaram and Rameshwar was homicidal in nature.
18. Further, this witness had examined Suraj and found the
following injuries on his body :
(i) Incised wound 2 x ½ size between little and ring finger over
right hand
(ii) Contusion 3 x 1 size over left thigh.
The M.L.C. report of Suraj is Ex. P.31.
19. Following injuries were found on the body of Buddhe :
(i) Incised wond 6 x ½ x skin deep over scalp in right perital
region
(ii) Contusion 3 x ½ size over right forearm in lower part
(iii) Contusion 6 x 2 size over left forearm on posterior aspect
(iv) Contusion 3 x 1 over left arm on lateral aspect
10
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
(v) Contusion 3 x l size over right leg on posterior aspect
(vi) Contusion 4 x 1 size over left leg between knee joint on lateral
aspect
(vii) Contusion 4 x 1 size over right supra scapula region
(viii) Contusion 3 x 1 size over left supra scapula
The M.L.C. is Ex. P. 32. No bony injury was found and x-ray report
is Ex. P.34.
20. Following injuries were found on the body of Kamlesh :
(i) Incised wound 3 x 1 size over occipital region of scalp
(ii) Contusion 3 x 1 over right hand over little finger on dorsal
aspect
(iii) Contusion 5 x 2 size over right shoulder on superior aspect
horizontal
(iv) Contusion 6 x 2 size over left shoulder on superior aspect
horizontal
(v) Lacerated wound 2 x 1 x skin deep vertical in direction situated
over mi of right leg vertical in direction
(vi) Contusion 6 x 3 over right leg on posterior aspect
(vii) Contusion 3 x 2 over left leg on anterior aspect
The M.L.C. of Kamlesh is Ex. P.33. In x-ray, fracture of 1 st phalange
of little finger of right hand and fracture of lateral end of clavicle
bone were found. The x-ray report is Ex. P.35.
21. Thus, it is clear that Rameshwar and Mungaram lost their lives
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Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010)
Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
and Suraj, Buddhe and Kamlesh sustained injuries and Kamlesh also
sustained two fractures.
22. Now the question is that whether the appellants are the author
of the offence or not?
23. The prosecution has examined 6 eye witnesses, out of which
three are injured witnesses. Janak Singh (P.W. 1), Ram Singh (P.W.
5) and Gaura (P.W.6) are eye witnesses, whereas Kamlesh (P.W.2),
Buddhe (P.W.3) and Suraj (P.W.7) are injured eye witnesses.
Facts of the case
24. Kamlesh (P.W.2) who is an injured witness has stated that on 28-8-2007, he and his brother Buddhe had gone to the house of Ramsewak for tying Bhujaria. The appellants were standing there with arms. Akhilesh was having Axe, Lal Singh was having Barchhi , Prakash was having Ballam, Ram Singh was having Axe, whereas Pawan, Ramsewa, Gopal, Ajmer, Hardaul, and Bahadur were having Lathi and they challenged, that they will not allow this witness to tie Bhujaria. Akhilesh gave an axe blow on the head of Buddhe (P.W.3). After hearing noise, his father Mungaram and uncle Rameshwar also came on the spot. Suraj was also with them. They requested the appellants to stop quarrel. The appellant Prakash caused an injury near the right eye of Mungaram by Barchhi, as a result Mungaram fell down on the ground. Thereafter, the appellants assaulted Mungaram by lathis. Ram Singh assaulted on both hands by means of Axe, 12 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) whereas Ramsewa, Gopal, Bahadur, Ajmer, Hardaul and Pawan assaulted by lathi. Akhilesh also gave an axe blow on the head of Rameshwar. When he tried to save his uncle, then he was assaulted by Akhilesh by axe and by lathis by Ram Sewa, Gopal, Hardaul, Bahadur, Ajmer and Pawan. Akhilesh had given an axe blow on his head. His uncle also fell on the ground and thereafter, all the appellants assaulted him by lathis. Lal Singh assaulted on the nose/forehead of Rameshwar by Ballam. Ram Singh gave an axe blow on the hand of Suraj. His father Mungaram died on the spot, whereas his uncle Rameshwar died on the way. This witness was cross-examined in detail.
25. In cross-examination, it was admitted by this witness that Ramvir, Ramgopal, Bahadur, Prakash and Ram Singh are real brothers. Whereas Lal Singh is the son of Ramsewa and Ajmer is the son in law of Ramsewa and Ramgopal. He further stated that Rameshwar (deceased) was his uncle whereas Buddhe is his cousin brother and Suraj is his nephew. The prosecution witness Ram Singh is not his cousin brother but is the resident of same village. Similarly, Janak Singh is also the resident of same village and is not related to this witness. He stated that he had left his house at about 7-7:30 P.M. for tying Bhujaria. The village is a small one. He had already tied Bhujaria to Bhagwan Singh and Jaswant. He reached to the house of Ramsewak at 7:30 P.M. and all the accused persons were present 13 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) there. He further stated that his police statement was recorded after 2 months i.e., when he returned back after getting treatment. He further stated that in the year 2005, he was elected as Panchayat President, therefore, the accused persons were having grudge. He also stated that since, he had constructed an additional room on the land of the school, therefore also, the accused persons were carrying ill will against him. Suraj, Mungaram and Rameshwar had requested the accused persons not to quarrel. The other villagers had not come at the time of assault. He denied that it was dark. The assault continued for 15 minutes. This witness and Buddhe went back to their house after the assault. The report was lodged on the very same day. He denied that Rameshwar remained in his house for the whole night. He denied that the incident did not take place near the house of the Sarpanch. The house of Sarpanch is at a distance of 30-35 meters away from School. He and Buddhe had sustained injuries on their heads. He denied that his house is situated at a distance of 1 ½ Kms from the place of incident. He further clarified that Mungaram, Rameshwar and Suraj had reached on the spot, within 2-3 minutes. Rameshwar and Mungaram were assaulted after they reached on the spot. He further stated that he had sustained 6 injuries and did not fell down. He denied that some unidentified persons had assaulted them. He admitted that it was rainy season, but denied that it was cloudy. He denied that no one was visible on account of darkness. 14
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) He further stated that Ballam and Barchhi are same. One has groves and another doesnot have. He was sent for treatment by the police.
26. Buddhe (P.W. 3) has also stated in the same line. He has stated that on 28-8-2007 at about 7-7:30 P.M., he had gone to the house of Sarpanch Ramsewak (appellant) to tie Bhujaria. All the accused persons were standing with their arms. All the accused persons started abusing and Akhilesh gave an axe blow on his head. Another axe blow was given by Akhilesh to Kamlesh. He also assaulted by axe on the head of Rameshwar. Prakash gave a ballam blow on the nose of Rameshwar. Lal Singh assaulted on the forehead by Barchhi. An injury by ballam was caused to Mungaram near his eye. Ramsingh Singh assaulted Mungaram by blunt side of axe. Mungaram also fell on the ground. All the remaining accused persons assaulted Mungaram by lathis. Mungaram died on the spot. The accused persons also assaulted this witness by lathis. Kamlesh was also beaten. This witness went to police station to lodge F.I.R. which is Ex. P.1. When he was taking his uncle, then he died on the way. This witness was got medically examined. This witness was cross examined.
27. In cross-examination, he has stated that two criminal trials are pending against him, whereas there was no criminal case against the deceased Mungaram and Rameshwar. He had tied Bhujarias to various persons. The accused persons did not allow him to tie 15 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) Bhujaria. He had sustained 8 injuries. Since, he was assaulted by various persons, therefore, he expressed his inability to specify that which injury was caused by whom. At the time of incident, Janak Singh and Ram Singh were at the well. He denied that it was dark at the time of incident. The police station is about 2-2 ½ Kms away from his house. He reached to the police station at about 10 P.M. He went in the tractor of Sitaram. On the day of incident, all the villagers were celebrating the program of tying Bhujarias. He did not become unconscious. He further admitted that he is being tried for assaulting , Ramkumari, daughter in law of Ramgopal. He further stated that Ajmer had deposed against him. He denied that Ajmer was not present on the spot. He further denied that Ajmer, Akhilesh and Ramgopal had not assaulted the injured or deceased persons. He further stated that enmity was going on account of construction of new building. He stated that there was no village on the way to police station. The incident continued till 8 P.M.
28. Suraj (P.W.7) is aged about 12 years and is a child witness, but he is also an injured witness. This witness has also stated about the incident in detail. He has stated that Akhilesh had assaulted his uncle Buddhe and also assaulted Kamlesh by axe. Akhilesh also assaulted Rameshwar by axe, therefore, he fell down. Thereafter, Ram Singh assaulted him by axe. Initially, the accused persons assaulted Rameshwar and thereafter, they assaulted Mungaram. Lal 16 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) Singh had given a ballam blow on forehead of Rameshwar and gave another blow on his nose. He further submitted that in the assault, he, Buddhe, Rameshwar and Mungaram had sustained injuries. Since, this witness did not name Kamlesh as injured, therefore, the Public Prosecutor sought permission to declare him hostile, but the Trial Court refused to grant permission.
29. In cross-examination, this witness clarified that when the incident started, he was in his house. Buddhe and Kamlesh had left their house at about 7-7:30 P.M. for tying Bhujarias. When he reached on the spot, Janak Singh, Ram Singh and Gaura (all Prosecution witnesses) were also there, and no other person was present. Janak Singh was hiding himself, whereas Gaura had followed this witness. Buddhe and Kamlesh had head injuries. He also stated that Mungaram and Rameshwar had injuries on their head, back and on other parts of the body, but stated that he had not counted the numbers of assault. No body had tried to save Mungaram and Rameshwar. He returned to the village after two months and thereafter, his statement was recorded. He denied that he has been tutored by his uncle and father. He further stated that he had seen the incident. He had gone to the spot along with Mungaram and Rameshwar. He was standing at the place where incident was taking place. Janak Singh and Ram Singh (Prosecution witnesses) had come together.
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Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
30. Janak Singh (P.W.1) is an independent eye witness. He has also narrated the entire incident. In cross-examination, this witness has stated that being the resident of same village, he is related to Rameshwar. He further admitted that his house is situated in different colony of the same village. He also admitted that last year, a quarrel had taken place between the accused persons and Kamlesh and Buddhe. He denied that he was in Ahmedabad at the time of incident. He also admitted that a dispute is also going on between the accused party and the complainant party on the question of school. Kamlesh was elected as President and during his tenure he had got a new building constructed and on this issue, the accused persons were having enmity.
31. Ram Singh (P.W.5) is also the eye witnesses. He has also supported the prosecution case. The spot map was prepared by the police in the presence of Ram Singh (P.W.5),Ex P.7. Naksha Panchnama of dead body of Rameshwar, Ex. P.8 was also prepared. Safina form Ex. P.9 in respect of Rameshwar was issued by police. The dead body of Rameshwar was identified by this witness by identification memo Ex. P.11. Naksha Panchnama of dead body of Mungaram, Ex. P.10 was also prepared. Safina form Ex. P.9 in respect of Mungaram was issued by police. The dead body of Mungaram was identified by this witness by identification memo Ex. P.12. The police had seized blood stained and plain earth from the 18 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) spot, vide seizure memo Ex. P.13. Thus, it is clear that Ram Singh (P.W. 5) was there at the time of police investigation. In cross- examination, this witness has admitted that the deceased persons, and injured persons are his relatives. The police statement of this witness was recorded on the next date of incident.
32. A specific suggestion was given to this witness that it was a full moon night, which was admitted by this witness. He further stated that the well is situated at a distance of 10 ft.s from the house of Sarpanch. The incident had started at about 7 P.M. He further stated that Buddhe had suffered 7-8 injuries whereas Kamlesh had suffered multiple injuries. Buddhe and Kamlesh had suffered incised wound on their head. Mungaram and Rameshwar had reached on the spot, within 5 minutes of starting of incident. He further admitted that he did not intervene in the matter. He on his own explained that he could not have saved them. He also did not try to call other villagers, because the assailants could have captured him also. The incident continued for near about 30 minutes. The police had reached on the spot at about 8:30 P.M. The spot map was prepared on the next day. He admitted that the fingers of Lal Singh got amputated in an accident, but denied that he cannot hold anything. He denied that he had not seen the incident. He further stated that he too was going to tie Bhujaria and since, the incident started therefore, he stood there. He was watching the incident from the well. He denied that 19 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) there is no well. Initially, there was a hot talk between the parties. The accused persons were abusing the complainant party and were challenging that they will not allow them to tie Bhujaria. Mungaram and Rameshwar had come after the assault on Buddhe and Kamlesh started. The police had recorded his statement on the next day of incident.
33. Gaura (P.W.6) is also an eye witness and She is the widow of Mungara. Buddhe and Kamlesh are her sons and Suraj is her grand son. This witness has also supported the prosecution case. This witness was also cross-examined in detail, but nothing could be elicited from her cross-examination,which could make her evidence unreliable.
34. Thus, all the prosecution witnesses i.e., Buddhe (P.W.3), Kamlesh (P.W.2) and Suraj (P.W.7) who are the injured witnesses, and Janak Singh (P.W.1), Ram Singh (P.W. 5) and Gaura (P.W.6) who are also eye witnesses have also supported the prosecution case. Related witnesses
35. It is submitted by the Counsel for the appellants, that all the eye witnesses are related to each other, therefore, they are not reliable.
36. Considered the submissions made by the Counsel for the appellants.
37. It is true that all the witnesses, including injured witnesses are 20 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) related to each other, but the presence of Buddhe (P.W.3), Kamlesh (P.W.2) and Suraj (P.W.7) on the spot cannot be doubted because they are injured witnesses.
38. The Supreme Court in the case of Mohar Vs. State of U.P. Reported in (2002) 7 SCC 606 has held as under :
11. The testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and has seen the occurrence by himself.
Convincing evidence would be required to discredit an injured witness.......
39. The Supreme Court in the case of State of U.P. Vs. Naresh reported in (2011) 4 SCC 324 has held as under :
27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.
The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)
40. The Supreme Court in the case of Baleshwar Mahto v. State of Bihar, reported in (2017) 3 SCC 152 has held as under :
12. Here, PW 7 is also an injured witness. When the eyewitness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer 21 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) to the following observations in Abdul Sayeed v. State of M.P.: (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
[Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- 22
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
13. In this very judgment, relationship between the medical evidence and ocular evidence was also discussed, based on a number of earlier precedents, as under: (Abdul Sayeed case, SCC pp. 272-73, paras 33-35) "33. In State of Haryana v. Bhagirath it was held as follows: (SCC p. 101, para 15) '15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.'
34. Drawing on Bhagirath case, this Court has held that where the medical evidence is at variance with ocular evidence, 'it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 23 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) "variable" keeping the medical evidence as the "constant"'.
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
'21. ... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.' [Vide Thaman Kumar v. State (UT of Chandigarh) and Krishnan v. State at SCC pp. 62-63, para 21.]"
(emphasis in original)
41. Thus, it is clear that where three injured persons had sustained injuries, out of which two had sustained incised wounds on vital part of their body i.e., head, and it has not been disputed by the Counsel for the appellants that the incident took place on a public way in front of the house of the accused persons, and without there being any convincing reason to disbelieve the evidence of injured eye witnesses, it is held that they cannot be disbelieved only on the ground that they are not only related to each other, but are also related to the deceased persons.
42. So far the other witnesses namely Janak Singh (P.W.1), Ram Singh (P.W.5) and Gaura (P.W.6) are concerned, their evidence also 24 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) corroborates the evidence of injured eye witnesses, as well as medical evidence. The Counsel for the appellants could not point out any reason, so that the above mentioned three witnesses can be branded as "interested witnesses". There is a difference between "Related witnesses" and "interested witnesses".
43. The Supreme Court in the case of Mahavir Singh Vs. State of M.P. reported in (2016) 10 SCC 220 has held as under :
18. The High Court has attached a lot of weight to the evidence of the said Madho Singh (PW 9) as he is an independent witness. On perusal of the record, it appears that the said person already had deposed for the victim family on a number of previous occasions, that too against the same accused. This being the fact, it is important to analyse the jurisprudence on interested witness. It is a settled principle that the evidence of interested witness needs to be scrutinised with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted.
19. A contradicted testimony of an interested witness cannot be usually treated as conclusive.
44. The Supreme Court in the case of Harbeer Singh Vs. Sheeshpal reported in (2016) 16 SCC 418 has held as under :
18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony was not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
19. In Darya Singh v. State of Punjab, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be 25 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) taken into account. This is what this Court said: (AIR p. 331, para 6) "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. ... But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. ... If the criminal court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised."
20. However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.
21. Further, in Raghubir Singh v. State of U.P., it has been held that: (SCC p. 84, para 10) "10. ... the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. ... In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when spirits on both sides are running high has to be borne in mind."
45. The Supreme Court in the case of Vijendra Singh Vs. State of U.P. Reported in (2017) 11 SCC 129 has held as under :
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. would be fruitful. In the said case, a 26 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
46. The Supreme Court in the case of Raju v. State of T.N., reported in (2012) 12 SCC 701 has held as under :
20. The first contention relates to the credibility of PW 5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi, both of whom were victims of the homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore PW 5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.
21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7) "7. ... True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be 'interested'."
22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, the view that a "natural witness"27
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) or "the only possible eyewitness" cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was "concerned in the success of the trap". The Constitution Bench held: (AIR p. 506, para 15) "15. ... The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person."
23. The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished--in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalised and needs a rethink.
24. For the time being, we are concerned with four categories of witnesses--a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorisation of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.
25. In the present case, PW 5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinised with great care and caution.
26. In Dalip Singh v. State of Punjab this Court observed, 28 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) without any generalisation, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused--each case has to be considered on its own facts. This is what this Court had to say: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
27. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the "enemy" of the victim. This is what this Court said: (AIR p. 331, para 6) "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that 29 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. ... [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
28. More recently, in Waman v. State of Maharashtra this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, Balraje v. State of Maharashtra, Prahalad Patel v. State of M.P., Israr v. State of U.P., S. Sudershan Reddy v. State of A.P., State of U.P. v. Naresh, Jarnail Singh v. State of Punjab and Vishnu v. State of Rajasthan it was held: (Waman case, SCC p. 302, para 20) "20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care."
29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in 30 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) Sarwan Singh in the following words: (Sarwan Singh case, SCC p. 376, para 10) "10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
47. The Supreme Court in the case of Jodhan v. State of M.P., reported in (2015) 11 SCC 52 has held as under :
24. First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab, it has been observed thus: (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."
In the said case, it has also been further 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. 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."
25. In Hari Obula Reddy v. State of A.P., the Court has ruled that evidence of interested witnesses per se cannot be said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduce a passage from the said 31 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) authority: (SCC pp. 683-84, para 13) "13. ... an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the court before relying upon his testimony should seek corroboration in regard to material particulars.
48. The Supreme Court in the case of Yogesh Singh v. Mahabeer Singh, reported in (2017) 11 SCC 195 has held as under :
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v. State of Punjab is one of the earliest cases on the point. In that case, it was held as follows: (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. 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."
25. Similarly, in Piara Singh v. State of Punjab, this Court held: (SCC p. 455, para 4) "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan 32 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy v. State of A.P., a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13) "13. ... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai v. Jagdish Singh, the following observations were made by this Court: (SCC p. 501, para 7) "7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault.
Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar, State of U.P. v. Jagdeo, Bhagaloo Lodh v. State of U.P., Dahari v. State of U.P., Raju v. State of T.N., Gangabhavani v. Rayapati Venkat Reddy and Jodhan v. State of M.P.)
49. Although the evidence of a related witness should be subject to 33 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) meticulous scrutiny, but his testimony cannot be discarded only on the ground that he is a related witness. There is a vital difference between "related witness" and "interested witness". An "interested witness" is a witness who is personally interested in false prosecution of a person.
Motive
50. It is submitted by the Counsel for the appellants, that one year back, Kamlesh and Buddhe had assaulted Ramvati and her daughter- in-law, therefore, a criminal case was registered and Kamlesh and Buddhe along with other accused persons. They were being tried for offence under Section 323, 324 and 506 of I.P.C. and since, the said criminal trial was pending therefore, the complainant party has a motive to falsely implicate the appellants.
51. Considered the submissions made by the Counsel for the appellants.
52. Enmity is a double edged weapon. On one hand, if the enmity provides a motive for false implication, then on the other hand, it also provides motive for committing offence.
53. The Supreme Court in the case of Kunwarpal v. State of Uttarakhand, reported in (2014) 16 SCC 560 has held as under :
16.....Animosity is a double-edged sword. While it can be a basis for false implication, it can also be a basis for the crime (Ruli Ram v. State of Haryana and State of Punjab v.
Sucha Singh).....
54. The Supreme Court in the case of Ruli Ram v. State of 34 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) Haryana, reported in (2002) 7 SCC 691 has held as under :
7. So far as the acceptability of evidence is concerned, the trial court and the High Court analysed the evidence in detail and have held it to be plausible and acceptable, and that it suffers from no infirmity. It has been noted that in a faction-ridden village, independent witnesses, as submitted by the learned counsel for the accused-appellant, are difficult to get. Enmity is a double-edged sword. While it can be a basis for false implication, it can also be a basis for the crime. The court has to weigh the evidence carefully and if after doing so, holds the evidence to be acceptable, the accused cannot take the plea that it should not be acted upon. When a plea of false implication is advanced by the accused, foundation for the same has to be established. We do not find any reason to differ from the courts below on the factual aspects.
55. The Supreme Court in the case of State of U.P. Vs. Kishan Chand reported in (2004) 7 SCC 629 has held as under :
9. The submission of the counsel for the accused that the testimony of PWs cannot be acted upon as they are interested witnesses is to be noted only to be rejected. By now, it is well-settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the given facts of the present case, they are but natural witnesses. We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished.
56. According to the appellants, Buddhe (P.W.3) and Kamlesh (P.W.2) had assaulted Rajkumari and Rambeti (daughter and wife of Ramgopal (Appellant). The offence was registered under Section 323 and 324 of I.P.C. The said incident took place on the question of 35 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) cattles of Ramgopal. It is not the case of the appellants, that the complainant party was pressurizing them to compromise the matter. On the contrary, it appears that as Buddhe and Kamlesh had beaten the daughter and wife of Ramgopal, therefore, the accused persons must be having grudge against Buddhe and Kamlesh. It is the prosecution case, that when Buddhe and Kamlesh went for tying Bhujarias, then it was objected by the appellants and Buddhe and Kamlesh were assaulted. The accused party was certainly having grudge against Buddhe and Kamlesh. Since, the appellants were not ready to accept the apology of Buddhe and Kamlesh, therefore, did not allow them to tie Bhujaria. Accordingly, it is held that in fact, the appellants had a reason/motive for assaulting Buddhe and Kamlesh and when Mungaram, Rameshwar and Suraj tried to pacify the situation, then they too were assaulted, resulting in death of Rameshwar and Mungaram.
57. It is submitted by the Counsel for the appellants, that it is not the case of the prosecution, that the appellants had assaulted the injured and deceased on account of enmity.
58. Considered the submissions made by the Counsel for the appellants.
59. In the F.I.R., it is specifically mentioned that in the previous year, a quarrel had taken place, and therefore, on account of said enmity, the accused persons have assaulted. Further more, the 36 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) appellants themselves have taken the said defence by proving F.I.R., Ex. D.16 and the order-sheets of the Trial Court, Ex. D.17. Although the stand of the appellants was that they have been falsely implicated on account of said enmity, but this Court after considering the totality of the facts and circumstances of the case, has come to a conclusion that the incident also took place on account of old enmity as Buddhe and Kamlesh had assaulted Rajkumari and Rambeti on earlier occasion.
Whether the incident took place all of a sudden without any pre- meditation or it was a pre-planned
60. It is submitted by the Counsel for the appellants, that as the complainant party wanted to tie Bhujaria and the accused party was opposing the same, therefore, the incident took place all of a sudden.
61. Considered the submission made by the Counsels for the appellants.
62. In the F.I.R., Ex. P.1, it is specifically mentioned that last year, a dispute/quarrel had taken place between the complainant and accused party, therefore, on that issue, the appellants have killed two persons and have caused injuries to three. The appellants themselves have taken a defence, that on 10-8-2006, the complainant Rajkumari lodged a report, that her buffalo had entered inside the fields of Buddhe and when She went to take her out, then She was assaulted by Buddhe by means of an axe on her head. When her mother 37 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) Ramvati, tried to save her, then they were assaulted by Kamlesh, Naresh and Kamal Singh and crime no.85/2006 was registered against them for offence under Sections 323,506,324 of I.P.C., and the Trial is still pending. The copy of the F.I.R. has been marked as Ex. D.16 and the copies of the order sheets of the Trial Court are Ex. D.17. The appellants have examined Ramvati (D.W.7) to prove the enmity between the parties.
63. As submitted by the Counsel for the parties, Bhujarias are exchanged by tying to each other with a solitary intention to tender apology for the mistakes committed on earlier occasion. The complainant party had gone to tender their apology, which is the soul and purpose of exchanging or tying Bhujaria, however, that gesture, did not find favor and all the appellants came there and started challenging that they will not allow the complainant party to tie Bhujarias and without there being any provocation by the complainant party, the appellants assaulted five persons with Lathis, Axe, Ballam and Barchhi thereby killing two persons and causing multiple injuries to three persons.
64. Thus, it is held that the submission made by the Counsel for the appellants, that the incident took place all of a sudden without any pre-meditation is misconceived and is hereby rejected. No specific role has been assigned to the appellants
65. It is submitted by the Counsel for the appellants that no 38 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) specific role has been assigned to the appellants.
66. The submission made by the Counsel for the appellants is false and misconceived. So far as the injuries caused by sharp and pointed weapons are concerned, each and every witness have stated about the role played by the appellants. So far as the lathis are concerned, in this case, total 29 injuries were sustained by the injured and deceased persons i.e.,
(i) Buddhe - One Incised Wound Seven Contusions
(ii) Suraj - One Incised Wound One Contusion
(iii) Kamlesh - One Incised wound One Lacerated wound Five Contusions With fracture
(iv) Mungaram - Three Incised Wounds One Lacerated wound One Contusion
(v) Rameshwar - Five Incised wounds Two Contusions
67. As many as 9 persons were assaulting 5 persons and every one was armed with deadly weapon. In this situation, it becomes difficult for the witnesses to specify the assault made by each and every assailant. In the present case, the witnesses have specifically disclosed the assault made by those assailants who were armed with sharp edged weapons. This shows that they are truthful witnesses. Minute description of incident, where multiple accused persons and multiple injured/deceased are involved, may indicate that the witness is giving a parrot like evidence. In fact parrot like deposition smacks 39 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) of tutoring. The Supreme Court in the case of Abdul Sayeed Vs. State of M.P. reported in (2010) 10 SCC 259 has held as under :
40. In the instant case as referred to hereinabove, a very large number of assailants attacked one person, thus the witnesses cannot be able to state as how many injuries and in what manner the same had been caused by the accused.......
68. Further, all the witnesses have stated that Hardaul, Gopal, Ajmer, Bahadur, Pawan and Ramsewak were having lathi and they also assaulted the injured and deceased. As already pointed out, each and every injured and deceased has suffered injuries which could have been caused by hard and blunt object. Thus the evidence of the witnesses is corroborated by medical evidence. Further, the Supreme Court in the case of CBI v. Mohd. Parvez Abdul Kayuum, reported in (2019) 12 SCC 1 has held as under :
57....The witness is not supposed to give all these minute details. It is not a case where medical evidence completely improbabilises the ocular evidence; only in that case the ocular evidence has to be discarded, not otherwise.
Reliance has been placed on behalf of the accused on Abdul Sayeed v. State of M.P. thus: (SCC p. 274, para 39) "39. Thus, the position of law in cases where there is a contradiction between medical evidence 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."
(emphasis supplied) No independent witness 40 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
69. It is next contended by the Counsel for the appellants, that although the incident had taken place in the village, but no independent eye witness has been examined by the prosecution, therefore, the related witnesses should not be relied upon.
70. Now a days, it is being observed, that generally, no independent witness dares to come forward. The independent witnesses are hesitant to come forward, may be they are afraid of police or Court Proceedings or may be afraid of spoiling their relationship with either of the party. Further if the atmosphere in the locality is full of fraction or in a fraction-ridden village, even then the independent witnesses donot come forward. The Supreme Court in the case of Gian Singh (Supra) has held as under :
14. So far as non-examination of other witnesses and an adverse inference drawn by the High Court therefrom is concerned, here again we find ourselves not persuaded to subscribe to the view taken by the High Court. The prosecutrix, PW 7 has stated that soon before the incident she was playing with three girl-children of the same age as hers and they were present when the accused committed rape on her. One of the girls picked up a broom and had tried to scare away the accused by striking the broom on him. This little friend of the victim had also raised a hue and cry but none from the neighbourhood came to the spot.
These girls were none else than daughters of her uncle. What the High Court has failed to see is that these girls were of tender age and could hardly be expected to describe the act of forcible sexual intercourse committed by the accused on PW 7. Secondly, these girls would obviously be under the influence of their parents. We have already noted the co-sister of PW 1 turning hostile and not supporting the prosecution version. How could these little girls be expected to be away from the influence of their parents and depose freely and truthfully in the court? Non-examination of a material witness is again not a mathematical formula 41 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for being examined in the court and were yet withheld by the prosecution. The court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence, which though available has been withheld from the court, then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on.
71. The Supreme Court in the case of Mahesh v. State of Maharashtra, reported in (2008) 13 SCC 271 has held as under :
55. As regards non-examination of the independent witnesses who probably witnessed the occurrence on the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses.
The High Court has held in its judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse. 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 42 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) 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.
72. The Supreme Court in the case of Vijendra Singh v. State of U.P., (2017) 11 SCC 129 has held as under :
35. The next plank of argument of Mr Giri is that since Nepal Singh who had been stated to have accompanied PW 2 and PW 3 has not been examined and similarly, Ram Kala and Bansa who had been stated to have arrived at the tubewell as per the testimony of PW 2, have not been examined, the prosecution's version has to be discarded, for it has deliberately not cited the independent material witnesses. It is noticeable from the decision of the trial court and the High Court, that reliance has been placed on the testimony of PWs 1 to 3 and their version has been accepted. They have treated PW 2 and PW 3 as natural witnesses who have testified that the accused persons were leaving the place after commission of the offence and they had seen them quite closely. The contention that they were interested witnesses and their implication is due to inimical disposition towards accused persons has not been accepted and we have concurred with the said finding. It has come out in evidence that witnesses and the accused persons belong to the same village. The submission of Mr Giri is that non-examination of Nepal Singh, Ramlal and Kalsa is quite critical for the case of the prosecution and as put forth by him, their non-examination crucially affects the prosecution version and creates a sense of doubt. According to Mr Giri, Nepal Singh is a material witness. In this regard we may refer to the authority in State of H.P. v. Gian Chand wherein it has been held that: (SCC p. 81, para 14) "14. Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled 43 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses were available for being examined in the court and were yet withheld by the prosecution."
The Court after so holding further ruled that it is the duty of the court to first assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on and deserves acceptance, then non-examination of any other witnesses available who could also have been examined but were not examined, does not affect the case of the prosecution.
36. In Takhaji Hiraji v. Thakore Kubersing Chamansing, it has been held that: (SCC p. 155, para 19) "19. ... if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. ... If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses."
37. In Dahari v. State of U.P., while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been expressed in Manjit Singh v. State of Punjab and Joginder Singh v. State of Haryana.
44
Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010)
73. In the present case, the incident took place on the public way, in front of the house of the appellant. The appellant Ramsewak was the Sarpanch of the village. Therefore, if no independent witness could dare to come forward to depose in the matter, then the non- examination of independent witness would not be sufficient to disbelieve the evidence of injured as well as eye-witnesses, specifically when, weightage is to be given to the injured witness. Whether blood was found on the spot or not?
74. It is next contended by the Counsel for the appellants that since, no blood was shown in the spot map, Ex. P.7, therefore, it has to be presumed that no blood was found on the spot, which indicates, that the incident might have taken place at some other place.
75. R.N.S. Bhadauria (P.W. 14) has admitted that in the spot map, Ex.P.7, he has not written that blood is lying on the spot, but clarified that by alphabet "X" he has marked the place the incident.
76. Further, vide seizure memo, Ex. P. 13, blood stained earth was seized from the place of incident. By referring to F.S.L. report, Ex. P. 45, it is submitted that although in Article A, which is earth seized from the spot, blood was found, but since, in the report, it is not mentioned that Article A is the blood stained earth seized from the place of incident, therefore, it cannot be said that Article A is the blood stained earth which was seized vide seizure memo Ex. P.13.
77. Unfortunately, no such question was asked to the investigating 45 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) officer. Further more, the draft which was sent to R.F.S.L., Gwalior along with Articles has not been proved by the prosecution. But, the accused can always take advantage of an un-exhibited prosecution document in their defence. The appellants could have pointed out from the draft that Article A was not the blood stained earth, however, that was also not done. Further more, no suggestion was given to any of the witness that they have changed the place of incident.
Weapons not shown to the Doctor
78. It is submitted by the Counsel for the appellants, that since, the weapons seized from the possession of the appellants were never shown to the Doctor, therefore, the recovery of weapons and assault by the appellants comes under dense cloud.
79. So far as the above mentioned submission is concerned, the case of the prosecution is that Akhilesh and Ram Singh were armed with Axe, whereas Prakash was having Ballam and Lal Singh was having Barchhi. According to the post-mortem reports as well as M.L.C.s of the injured witnesses, incised wounds were found on their body. Thus, the allegations of assault by Akhilesh and Ram Singh by their respective weapons is fully corroborated by the medical evidence. So far as the injury caused by Prakash and Lal Singh by Ballam and Barchhi is concerned, it is submitted by the Counsel for the appellants, that since, no penetrating wound was found on the 46 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) body of deceased persons, therefore, it is clear that allegation against Prakash and Lal Singh is not corroborated by medical evidence.
80. According to the witnesses, Lal Singh and Prakash had caused injuries by means of Ballam and Barchhi on the head and forehead of deceased persons. Even if the above mentioned weapons are used from their pointed side, still no penetrating wound would be caused on the head of the deceased, because the skull bone is the hardest bone of the body and the skin is attached with the skull bone. There is no gap between skin and skull bone. Therefore, if an injury is caused by ballam and barchhi on the head, then no penetrating wound would be caused, although the pointed end of both the weapons would cause penetrating wound on the remaining part of the body. Thus, it cannot be said that the allegations made against Prakash and Lal Singh are contrary to medical evidence. Further, if the investigating officer, did not sent the weapons to the Doctor for its opinion, then that by itself would not be sufficient to discard the direct evidence.
Source of Light
81. It is next contended by the Counsel for the appellants, that the prosecution has failed to prove that there was any source of light.
82. The submission made by the Counsel for the appellants is misconceived and is liable to be rejected. The incident had taken place on 28-8-2007. It took place in front of the house of Sarpanch 47 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) Ramsewak. Further, a suggestion was given to Ram Singh (P.W. 5) by the Counsel for the appellants themselves, that it was a full moon night. Further more, since, the incident took place in the village itself, therefore, every house must be having bulbs or tube lights. Even otherwise, three witnesses had suffered injuries. The assailants were already known to them, being the resident of the same village. The eyes of villagers get acclimatised to identify the fellow villager even in poor light. The Supreme Court in the case of Ramesh Vs. State reported in (2010) 15 SCC 49 has held as under ;
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.
Delayed statements under Section 161 of Cr.P.C.
83. It is submitted by the Counsel for the appellants that the statements of some of the witnesses were recorded belatedly, therefore, they are not reliable.
84. R.N.S. Bhadauria (P.W.14) has stated that he had recorded the statements of Sitaram, Janak Singh, Suraj and Kamlesh on 29-10- 48 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) 2007. Whereas the statement of Buddhe, Ram Singh and Gaura were recorded on 29-8-2007 i.e., on the next date of incident.
85. No question was put to R.N.S. Bhadauria (P.W. 14) as to why the statements of Sitaram, Janak Singh, Suraj and Kamlesh were recorded after two months of incident. However, Kamlesh and Suraj have clarified that since, they returned to the village after two months of the incident, therefore, their statements were recorded after their return to village. Kamlesh and Suraj are injured witnesses, and Suraj is a child aged about 12 years only.
86. The Supreme Court in the case of Banti Vs. State of M.P. reported in (2004) 1 SCC 414 has held as under :
17. As regards the delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion (See Ranbir v. State of Punjab and Bodhraj v. State of J&K). Consequently, we find no justifying reason or ground substantiated on behalf of the appellants to interfere with the concurrent findings recorded by both the courts based on relevant, cogent and trustworthy evidence adduced by the prosecution to prove the guilt of the appellants beyond reasonable doubt.
87. The Supreme Court in the case of Prithvi (Minor) v. Mam Raj, reported in (2004) 13 SCC 279 has held as under :
10......This more than adequately explains the delay in recording the statement of Prithvi. Unexplained delay in 49 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) recording the statement may render it suspect, but the High Court cannot make a fetish out of a rule of prudence. In Mohd. Khalid v. State of W.B., SCC at p. 349, para 12, this Court observed that: (SCC p. 349, para 12) "Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the court can act on the testimony of the witness if it is found to be cogent and credible."
88. The Supreme Court in the case of Sunil Kumar v. State of Rajasthan, reported in (2005) 9 SCC 283 has held as under :
14. So far as the delayed recording of statement of the witnesses is concerned, here again no question was put to the investigating officer specifically as to why there was delay in recording the statement. On the contrary, the witnesses themselves have indicated as to why there was delay. The plea of the appellants in this regard, therefore, has no substance.
89. The Supreme Court in the case of State of U.P. v. Satish, reported in (2005) 3 SCC 114 has held as under :
18. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. (See Ranbir v. State of Punjab, Bodhraj v. State of J&K and Banti v. State of M.P.)
90. In the present case, the F.I.R. was lodged by an injured witness. Further, on the very next day of incident, the police statements of Buddhe (Injured), Ram Singh and Gaura were 50 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) recorded. Kamlesh and Suraj have explained as to why their statements were recorded after two months. Under these circumstances, this Court is of the considered opinion, that merely because there was a delay of 2 months in recording of police statements of some of the witnesses, it would not make their testimony unreliable.
Defence of the appellants.
91. The appellants examined Dinesh (P.W.1) and Sughar Singh (P.W.2) to prove the plea of alibi of appellant Akhilesh and Ramgopal. It is stated by Dinesh (P.W.1) that Akhilesh, his father Ramgopal and wife of Akhilesh, who is the sister of this witness had come to his house to attend a function which was organized on the occasion of birth of child. It is submitted that the appellants Akhilesh and Ramgopal reached to his house on 28-8-2007 at about 11 A.M. and went back on the next date. To prove the presence of Akhilesh and Ramgopal in village Katha, the witness has produced a photograph Ex. D.3. It is the case of the witness that the appellant Akhilesh is visible in the photograph. However, fairly admitted that the goods/gifts brought by Akhilesh and Ramgopal are not visible. Even the 1 month old child of this witness is not visible. During the course of arguments, it was stated by the Counsel for the appellants, that the village Katha is about 35 Km.s away from the place of incident. According to this witness, the photograph, Ex. D.3 was 51 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) taken at about 3 P.M. No other document has been filed to show that Akhilesh and Ramgopal had stayed back in the village. Even for the sake of arguments, if it is accepted that the photograph, Ex. D.3 was taken at 3 PM., but still the appellants Akhilesh and Ramgopal could have come back to their house within 45 minutes. Further, except the ocular statement, there is nothing on record to show that Ramgopal had also gone to village Katha. As the appellants could have come back to their village by 7-7:30 P.M., therefore, the plea of alibi taken on behalf of Akhilesh and Ramgopal cannot be accepted.
92. Rameshwar (D.W.3) and Chhatrapal (D.W.5) have stated that Ajmer had come to his house on 28-8-2007 and stayed back in the night. He has filed three photographs, Ex. D. 9 to D.11 to show that the appellant Ajmer was in his village. In photographs Ex.D.9 to D.11, the appellant Ajmer is visible with other villagers, but the appellants have not examined any person, who is visible in the photographs. Further, those photographs were taken during day time, and no photograph taken at the time of incident has been filed. Thus, it is clear that the plea of alibi could not be proved by Ajmer also.
93. Rajeev Singh (D.W.4) is a painter by profession. He claims to have clicked the photographs Ex. D. 9 to D. 11. In cross- examination, it was admitted by this witness that he had sent the roll for preparation of photographs. But neither the receipt of amount paid for development and printing of photograph has been filed, nor 52 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) the person, who had developed and printed the photograph has been examined. Therefore, it is difficult to hold that the photographs Ex. D. 9 to D. 11 were clicked on the date of incident.
94. The appellant Ramsewak (D.W. 6) has stated that on 28-8- 2007, he was taking rest in house as he had suffered injuries. He submitted that on 26-8-2007, he had fallen down from his cycle, therefore, he had sustained injuries. This witness has relied upon his M.L.C., Ex. D.13 and x-ray report, Ex. D.14. From MLC and x-ray report, Ex. D.13 and D.14 respectively, it is clear that this witness was medically examined on 4-9-2007 i.e., when he was arrested. This witness has not filed any document to show that after sustaining injury on 26-8-2007, he had taken any treatment. Further, Dr. D.K. Gupta (D.W. 8) has proved injuries on Ramsewak. This witness had examined Ramsewak on 4-9-2007. Thus, this witness has failed to show that he was taking rest in his house on 28-8-2007, or had received any injury on 26-8-2007.
95. Ramveti (D.W. 7) has stated that Buddhe and Kamlesh had beaten her and her daughter. In the said case, Amjer was one of the witness. The appellant Hardaul had also given his statement. This Court has already considered the registration of criminal case against Buddhe and Kamlesh on the report of this witness. Whether offence under Section 302 or 304 Part I of I.P.C.
96. It is contended by the Counsel for the appellants that since, the 53 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) incident took place all of a sudden and without pre-meditation, therefore, the conviction of the appellants for offence under Section 302 of I.P.C. on two counts is bad and they should be convicted under Section 304 Part 1 of I.P.C.
97. Considered the submissions made by the Counsel for the appellants.
98. The prosecution story in short is that one year back, as the buffalo of Ramsewak had entered in the field of Kamlesh and Buddhe, therefore, Buddhe and Kamlesh had assaulted Ram Kumari and Ramveti, for which trial was pending. On the date of incident, they went to the house of appellant Ramsewak to tie Bhujaria. However, not only the appellants did not accept the apology of Buddhe and Kamlesh but also started assaulting them. When Rameshwar and Mungaram tried to intervene in the matter, then they were killed by giving repeated blows. Thus, it is clear that although the incident might have taken place all of a sudden, but it was a revengeful act, and thus, it was pre-meditated. Even otherwise, merely by submitting that the incident took place all of a sudden, the appellants would not be able to take out the case out of the purview of Section 302 of I.P.C., unless and until they show that they did not act in a cruel manner and did not take undue-advantage. Number of injuries sustained by the deceased persons as well as injured persons, clearly show that the appellants had taken undue advantage and had 54 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) also acted in a cruel manner.
99. The Supreme Court in the case of Surain Singh v. State of Punjab, reported in (2017) 5 SCC 796 has held as under :
14. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case.
For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
100. Considering the totality of the facts and circumstances of the case, the appellant Akhilesh is held guilty of committing offence under Section 148, 302/149 (Two Counts), 307 (Two Counts), 323/149 of IPC. Appellants Ram Singh, Ramprakash and Lal Singh are held guilty of committing offence under Section 148, 302/149, 302, 307/149 (On two counts) and under Section 323/149 of I.P.C. and the Appellants Ramsewak, Ajmer, Hardaul, Ramgopal, and Rambahadur are held guilty of committing offence under 55 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) Sections 148, 302/149 (On two counts), 307/149 (on two counts) and 323/149 of I.P.C. Accordingly, the conviction recorded by the Trial Court is hereby Affirmed.
101. 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.
102. All the sentences shall run concurrently.
103. Ex-Consequenti, the judgment and sentence dated 8-3-2010 passed by VIth Additional Sessions Judge (Fast Track Court), Lahar, Distt. Bhind in S.T. No. 5/2008 is hereby affirmed.
104. The appellant Ramprakash (Cr.A. No. 373/2010) and appellant Hardaul (Cr.A. No. 235/2010) are on bail. Their bail bonds are hereby cancelled. They are directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
105. All other appellants are in jail. They shall undergo the remaining jail sentence.
106. The Registry is directed to immediately provide a copy of this judgment, free of cost to every appellant.
107. The record of the Trial Court be send back along with copy of this judgment, for necessary information and compliance.
108. The Criminal Appeals No. 235/2010 and 373/2010 filed by Ramsewak, Lal Singh, Ajmer, Hardaul, Ramgopal, Ram Singh, 56 Ramsewak & Ors. Vs. State of M.P. (Cr.A. No.235 of 2010) Ramgopal & Ors. Vs. State of M.P. (Cr.A. No. 373 of 2010) Rambahadur, Ramprakash and Akhilesh, fail and they are hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.11.23 18:11:10 +05'30'