Madhya Pradesh High Court
Kallu @ Harisevak vs The State Of Madhya Pradesh on 24 March, 2026
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-3068-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 24th OF MARCH, 2026
CRIMINAL APPEAL No. 2679 of 2016
LOKMAN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jagat Kumar Dehariya - learned counsel for the appellants.
Shri Ajay Tamrakar - learned Government Advocate for the respondent/
State.
WITH
CRIMINAL APPEAL No. 2878 of 2016
RAJKUMAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jagat Kumar Dehariya - learned counsel for the appellants.
Shri Ajay Tamrakar - learned Government Advocate for the respondent/
State.
CRIMINAL APPEAL No. 3068 of 2016
KALLU @ HARISEVAK
Versus
THE STATE OF MADHYA PRADESH
Signature Not Verified
Signed by: VIKRAM SINGH
Signing time: 01-04-2026
17:24:30
2 CRA-3068-2016
Appearance:
Shri Jagat Kumar Dehariya - learned counsel for the appellants.
Shri Ajay Tamrakar - learned Government Advocate for the respondent/
State.
ORDER
Per: Justice Avanindra Kumar Singh All these three appeals have arisen out of a common judgment dated 08.09.2016 passed in Special Case No. 200036/2010 by the learned Special Judge under Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, Katni in the case of State of M.P. through P.S. Reethi / AJAK vs Lokman and 3 others judgement whereby the accused persons were charged and put to trial regarding an offence dated 26.06.2010, at about 5 P.M near Burhena Nala, for causing wrongful restraint by accused Lokman and Rajkumar in common intention of co-accused Bablu and Kallu for causing the death of deceased Suresh and Ummed for which the accused were armed with Farsa, rod, lathi etc. and for trying to commit murder of complainant P.W.1 Jithua Chaudhary and causing simple injury to Munna Kachhi P.W.2 under section 302, 302/34, 307, 323 I.P.C. and under Section 3(2) (5) of the S.C./ S.T. Act.
2. Learned Trial Court as per paragraph 53 of the judgment has acquitted the appellants under section 3(2) (5) of the S.C./ S.T. Act but as per paragraph 54 of the judgment has found that accused Lokman, Rajkumar, Bablu, Kallu formed a common intention to commit murder of Suresh and Ummed and convicted them under section 341, 302, 302/34 (2 counts) I.P.C. In addition, accused Kallu and Bablu were convicted under section 307/34 of Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 3 CRA-3068-2016 IPC and Section 323/34 of IPC regarding Jithua P.W.1 and Munna P.W.2. respectively and punished them as per paragraph 57 of the Trial Court judgment :-
Accused Lokman, Rajkumar, Bablu, Kallu @ Harisevak were convicted under Section 341 of IPC and sentenced to R.I. for 1 month each;
Section 302, 302/34 of IPC (on 2 counts) and sentenced to life imprisonment (on two counts) with fine of Rs. 50,000/- on each count total Rs. 1,00,000/- each on all the accused; in default thereof each accused shall undergo 3-3 years' additional S.I. In addition, accused Bablu and Kallu were convicted under Section 307 read with 34 of IPC and sentenced to 7-7 years' R.I. each with fine of Rs. 10,000/- each; in default thereof additional 1 year S.I. and under Section 323/34 of IPC they were punished with 1 year S.I.
3. As per prosecution case on 26.06.2010 at about 8.30 p.m. Jithua (P.W.1.) lodged a report Ex. P/1 at Police Station Reethi that he along with Suresh Patel, Ummed Patel and Munna Kachhi had gone on two motorcycles to Salaiya. While they were coming back at about 5 p.m. near Budhena naala accused Lokman, Rajkumar Patel, Bablu and Kallu armed with rod, lathi and farsa stopped them and with an intention to kill them assaulted them thus causing injury to the complainant and also to Suresh, Ummed and Munna. At the time of the incident Lokman was having farsa, Bablu and Kallu were carrying lathi and Rajkumar was carrying an iron rod by which they assaulted and after assaulting them they ran away and nearby people came and took them to police station. Report was lodged which is Ex. P/1. They were sent to hospital, Civil Lines, Reethi where Dr. A.M. Navani (P.W.13) Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 4 CRA-3068-2016 examined injured Suresh. Medical report is Ex. P/20. Medical report of Ummed is Ex. P/21 and, thereafter, Ummed was sent to Medical College, Jabalpur. Medical report of Munna (P.W.2) and Jhithua (P.W.1) are Ex. P/22 and Ex. P/23 respectively. After initial treatment at Reethi, they were sent to District Hospital, Katni by reference slip Ex. P/24. Dr. Yashwant Verma (P.W.9) conducted post-mortem examination on the body of Suresh. Report is Ex. P/13. Dr. Chandra Shekhar Waghmare (P.W.16) conducted post-
mortem on the body of the deceased Ummed. Report is Ex. P/24. Dr. Rajesh Kumar (P.W.21) conducted X-ray examination on left hand and chest of Jithua, X-ray report is Ex. P/35. After conducting other investigation including the statement of witnesses, arrest of accused Lakhan on 1.7.10 (Ex. P/20) and accused Kallu alias Harisevak on 26.07.2010 (Ex. P/18) & accused Bablu on 26.07.2010 (Ex. P/19) & accused Rajkumar on 16.11.2010 (Ex. P/30), memorandum of accused persons, recovery of arms in which seized arm and clothes were sent to FSL, Sagar vide Ex. P/31 and F.S.L. report is Ex. P/32, charge-sheet was filed.
4. When put to trial, the accused denied the charges. The prosecution witnesses were examined and when accused persons were examined under Section 313 of Cr.P.C. they stated that they are innocent. Accused Lokman has examined himself as a witness under Section 315 of Cr.P.C. and has also examined D.W.2 Sijju @ Shyamlal.
5. While the prosecution has examined P.W.1 Jithua, P.W.2 Munna, P.W.3 Jawahar (hostile witness), P.W.4 Ginni (hostile witness), P.W.5 Devsingh @ Devi Singh (hostile witness), P.W.6 Dhaniram (hostile witness), Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 5 CRA-3068-2016 P.W.7 Chhotibai (hostile witness), P.W.8 Ghasota (hostile witness), P.W.9 Dr. Yashwant Verma, P.W.10 Narayan Lodhi, P.W.11 Dashrath @ Bangu, P.W12 Arjun, P.W.13 Dr. A.M. Navani, P.W.14 Keshlal Patel (hostile witness), P.W.15 C.L. Patel, P.W.16 Dr. Chandrashekhar Waghmare, P.W.17 Ramesh Choudhary, P.W.18 Lakhan Singh, P.W.19 R.K. Sharma - Dy. Superintendent of Police, P.W.20 Surtilal, P.W.21 Dr. Rajesh Kumar Athiya, P.W.22 Rooplal Patel, P.W.23 Aman Singh, P.W.24 Gayaprasad.
6. Against the conviction and sentence, appellant Lokman and Bablu has raised ground that offence is not made out in the light of statement of P.W.13 Dr. Navani, who conducted MLC of deceased Suresh vide Ex. P/20 and stated that the injuries were caused by hard and blunt object, which is against the prosecution case because P.W.1 stated that Lokman assaulted Suresh by farsa. P.W.13 Dr. Navani prepared MLC of Ummed (Ex. P/21), which is caused by hard and blunt object and the same was not caused by appellant No.2 Bablu because lathi cannot cause such injury. Statement of P.W.1 Jithua is not supported by other witnesses. P.W.13 Dr. Nawani admitted that the injuries found on the body of the injured persons may be caused by motorcycle accident as this admission is supported by other witnesses who were examined by the prosecution. These witnesses admitted that they heard about motorcycle accident. The findings recorded by the Trial Court are perverse. The defence witnesses were disbelieved without any legal reason.
The prosecution story that deceased, Jithua and Munna went to police Chowki on 26.06.2010 and on return this incident happened is not proved as Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 6 CRA-3068-2016 no police officer has been produced to verify.
The prosecution did not examine material witness Bhagwandas. The statement of the prosecution witnesses and FIR was recorded by P.W.15 C.L. Patel, ASI, who could not have conducted investigation under S.C/ S.T. Act. The police did not seize the vehicle. The seized material including the weapons were not deposited in the Malkhana, hence prays for acquitting the appellants.
7. The grounds of appeal in CRA No. 3068 of 2016 filed by Kallu @ Harisevak is that the entire case is based on evidence of P.W.1. It was an accident and injury was caused due to accidental fall. There is contradictory evidence of P.W.9 and P.W.13, hence pray for acquittal.
8. In CRA 2878 of 2016 filed by accused Rajkumar, the grounds of appeal are that P.W.2 Munna, P.W.3 Jawahar, P.W.4 Ginni, P.W.5 Dev Singh @ Devi Singh, P.W.6 Dhaniram, P.W.8 Ghasota, P.W.10 Narayan Lodhi, P.W.11 Dashrath @ Bangu, P.W.12 Arjun, P.W.13 Dr.A.M. Navani, P.W.14 Keshalal Patel have not supported the prosecution case. The evidence of P.W.15 C.L. Patel has not been considered in it's proper perspective. Similarly, statement of P.W. 17 Ramesh Choudhary has unnecessarily been disbelieved. Hence, prays for allowing the appeal and acquitting the accused persons.
9. On the other hand, Shri Ajay Tamrakar, learned Government Advocate supports the impugned judgment and prays for dismissal of the appeals.
10. At the time of final hearing, learned counsel for the objectors -
Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:307 CRA-3068-2016 Shri Ankit Saxena, Shri Pankaj Kumar Dubey, Ms. Shikha Malik and Shri Mohan Singh were not present.
11. At the outset since against the common judgment four accused persons have filed different appeals, they are being disposed of by the common judgment, it is seen that regarding Lokman as per the prosecution case in FIR Ex. P/1 and specifically statement of P.W.1 Jethua, Lokman was armed with a farsa and he assaulted Suresh. Suresh due to injuries expired, as per the post-mortem report of Suresh Ex. P/13 regarding which Dr. Yashwant Verma (P.W.9) has deposed before the Trial Court that deceased had two cut injuries on the left hand each of size 1-1/2 x 1/4 x 1/4 inch. On right leg there were cut wounds of 1 x 1/2 x 1/2 and on left leg 2 x 1/2 x 1/2 and on the head in left parietal region a cut wound of 1 x 1/4 x 1/4 inch by hard and sharp object.
In para 4 of his examination-in-chief Dr. Yashwant Verma (P.W.9) has stated that the deceased had injuries on left forearm (7 in No, - size 4 x 3 to 2 x 1 inches), complete back side of right hand, back side of right wrist (3 x 2 inches), lower back side of right arm (7 x 3 inches), upper side of right arm (3 x 2 inches), right elbow (4 x 3 inches), right arm (6 x 4 inches), left knee (5 x 3 inches), front portion of left leg (7 x 4, 2 x 1 and 2 x 1/2 inches), right knee (4 x 2 inches), front portion of right leg ( 3x 2 and 2 x 1 inches), right hip (5 x 4 inches), left hip ( 6 x 4 inches), the injuries were of the nature of abrasions with swelling.
All these injuries were caused by hard and blunt object and the injuries were caused within 24 hrs of the post-mortem examination. The cause of Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 8 CRA-3068-2016 death was injury in the head inducing coma. P.W.13 Dr. A.M. Navani examined Suresh when he was brought to community health center, Reethi and has stated that Suresh had injuries in both the legs, right hand, blood was oozing out.There was a possibility of fracture. Injuries were caused by hard and blunt object and, therefore, he had advised for X- ray examination. Suresh was not conscious.
12. Learned appellants' counsel argued that Suresh did not have injuries by hard and sharp weapon was on the basis of statement of P.W.13 but statement of P.W.13 Dr. A.M. Navani has to be read with the statement of P.W.9 Dr. Yashwant Verma, who stated that Suresh had both types of injuries; cut injuries as mentioned in paragraph 3 of his deposition caused by hard and sharp object and other injuries mentioned in paragraph 4 caused by hard and blunt object. Regarding the objection that the injuries could have been received on the account of falling by accident from motorcycle is not proved in the facts and circumstances of the case because even in a case of assault on the injured persons when they were returning by motorcycle, obviously, fall from motorcycle is a natural consequence of assault but post- mortem conducting Dr. Yashwant Verma (P.W.9) has not been asked that injuries to Suresh could have been caused by motorcycle accident, therefore, the plea of falling from motorcycle accidentally causing death of Suresh is not proved. It is but natural that when four persons are going on two motorcycles, two persons on each motorcycle and they are suddenly assaulted by four persons in which Lokman was carrying farsa, Rajkumar was carrying iron rod, Bablu and Kallu were carrying lathis as per Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 9 CRA-3068-2016 prosecution case then some injuries would be caused due to assault by arms and, thereafter when Suresh and Ummed (deceased persons) would fall from motorcycle on account of assault then some other injuries may be caused which may seem in the nature of accidental fall injuries.
13. Besides the FIR Ex. P/1 and statement of P.W.1 Jithua, who has stated in paragraph 2 that Rajkumar assaulted Ummed on head with iron rod. P.W.13 Dr. A.M. Navani has stated that Ummed had many injuries on head and on left eye which was protruding out and fracture was possible. Dr. Navani has also stated that Ummed could have received the injuries on account of a fall from motorcycle (cross-examination - paragraphs 10 and
12) but it is precisely the case of the prosecution that the injured persons were assaulted when they were returning by motorcycle, therefore, when P.W.16 Dr. Chandrashekhar Waghmare, who conducted post-mortem on the body of Ummed and has given report Ex. P/21 to the effect that injuries on the body of Ummed were inflicted by hard and blunt object and in cross- examination also he stated that the injuries could have been caused on account of fall from motorcycle (cross-examination paragraph 5), but this argument has been considered in paragraph 11 of this judgment besides there is no reliable evidence on record to believe that this case was not properly investigated and a case of two accidental deaths have been converted into a case of 2 murders. It is also seen that appellant Kallu, Lokman, Bablu and Rajkumar have not stated that death of Suresh and Ummed was accidental in examination under Section 313 of Cr.P.C. on 4.5.2016. It was for the first time that Lokman has given new version of the incident in statement under Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 10 CRA-3068-2016 Section 315 of Cr.P.C. on 8.7.2016 that on 17.09.2007 besides Jithua Chaudhary, Suresh and other persons had caught hold of Laxman, who was shouting for help. When the complainant Jithua (P.W.1) and other persons saw him (accused Lokman) they ran towards him to catch him and threatened him (Lokman) that if he narrates this incident, then they shall kill him. Laxman Patel was never seen. On 27.03.2008 Addl. S.P. , Purushottam Sharma recorded his statement (Ex. D/1). When Laxman was not found then his son Rajkumar filed a Writ Petition (Ex. D/2) before the High Court, therefore, due to this report Jithua and other persons were having enmity with him and the present case which has been lodged against him is false it was a accidental case in which Suresh and Ummed expired. D.W.2 Sijju has also stated that in June, 2010 near Budhena Nala, there was a motorcycle accident in which Suresh and Ummed's motorcycle was thrown off about 10- 15 feet below in trench and, therefore, they received injuries but motorcycle accident is not proved in the light of the evidence of the prosecution witnesses as mentioned above including statement of Investigating Officer P.W.19 R.K. Sharma, Dy. S.P.
14. Regarding appellant Rajkumar as an assaultor of Ummed besides first information report Ex. P/1, P.W.1 Jithua (in Para 2) has clearly stated that Rajkumar assaulted Ummed with iron rod and statement of P.W.13 Dr. A.M. Navani, P.W.16 Dr. Chandrashekhar Waghmare and investigating officer P.W.19 R.K.Sharma,Dy.S.P. confirms the same.
15. Jithua (P.W.1) has stated that he was assaulted by Kallu and Bablu with a lathi due to which his left hand was broken. P.W.13 Dr. A.M. Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 11 CRA-3068-2016 Navani has stated in paragraph 5 of examination-in-chief that he examined Jithua (P.W.1) and there was a possibility of fracture in his left hand. He had advised X-ray of left hand and chest. Medical report is Ex. P/23. P.W.21 Dr. Rajesh Kumar has stated that he is a radiologist and he had conducted X-ray of injured Jithua S/o Feran Choudhary and found that in his left hand, ulna bone was fractured, X-ray report is Ex. P/35.
16. Injured Munna (P.W.2) has turned hostile but he has stated in paragraph 1 of examination in chief that while Suresh and Ummed were going ahead on a motorcycle and he was behind them on a motorcycle, when he reached Budhena Nala, he saw that the vehicle of Suresh was lying. As soon as he reached there, he was assaulted but he could not see by which arm (weapon) who assaulted him. He also stated that he had received injury in head and Jithua was also with him on the motorcycle. Suresh, Jithua & Ummed were injured. Prosecution has declared this witness hostile and asked leading question in which he did not partly support the prosecution case but in cross-examination by defence he admitted that motorcycle of Suresh and Ummed was ahead of him and they (he and Jithua) reached the spot after about 10-15 minutes. Motorcycle had met with an accident and Suresh and Ummed were lying injured he could not see the injuries of Suresh and Ummed. The accused were not present on the spot but defence has not asked him ( P.W.2 Munna) that he was not assaulted by someone as he has stated in examination-in-chief para 1 and even assuming for arguments sake that Munna (P.W.2) reached the spot after few minutes then he cannot say whether the assault took place on Suresh and Ummed due to Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 12 CRA-3068-2016 which they received serious injuries and the motorcycle was lying there or Suresh and Ummed received accidental injuries, it is also pertinent to note that P.W.1 Jithua has not stated either in his examination in chief or cross examination that the motorcycle on which Suresh and Lokman were going was so much ahead that he did not see the incident. On the other hand, in cross-examination in paragraph 7 this witness has stated that his motorcycle was at a distance of 10-15 steps and it is the settled position of law that statement of one witness i.e. P.W.1 Jithua cannot be contradicted with statement of P.W.2 Munna who was riding the same motorcycle on which P.W.1 Jithua was going.
17. P.W.13 Dr. A.M. Navani has mentioned in paragraph 4 that on medical examination of Munna he found that he had abrasion on forehead and swelling on right eye by hard and blunt object. In cross-examination in para 11 this doctor stated that it is correct to say that Munna Kachhi could have received injuries due to fall but he clarified that these type of injuries could be caused either on account of assault or on account of fall.
18. In a criminal trial, the evidence of injured witness carries a great weightage and there is no rule that the evidence of injured witness has to be treated with distrust. The only requirement of law is that it has to be corroborated by other evidence as in the present case, it has been corroborated by the evidence of doctors as mentioned above and medical reports and the statements of P.W.1, P.W.2 and investigating officer P.W.19 and medical evidence are reliable and the only legal requirement is that the evidence of interested injured witness, who would be the last person to Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 13 CRA-3068-2016 implicate a wrong person has to be considered carefully.
19. For consideration of present appeals, the following citations are relevant :-
(i) Balu Sudam Khalde and another Vs. State of Maharashtra; 2023 LiveLaw (SC) 279.
"26. When the evidence of an injured eye-witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
****** 3 8 . Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 14 CRA-3068-2016 the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
******
42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused"
(ii) In R. Baiju v. The State of Kerala [2025 LiveLaw (SC) 441] in paragraphs 7, 13 and 14 Hon'ble Supreme Court has laid down this principle of law that defective investigation does not automatically invalidate a prosecution case if other credible evidence exist and upheld the conviction under Section 304 Part II and 120 B I.P.C and emphasized that flaws in investigation are not fatal when corroborated evidence such as witness testimony and motive establish guilt.
(iii) The Hon'ble Supreme Court recently in the case of Baban Shankar Daphal and others v. The State of Maharashtra (Criminal Appeal No. 1675 of 2015) judgment dated 22.01.2025 has held as below:-
"27. One of the contentions of the learned counsel for the appellants is that the eyewitnesses to the incident were all closely related to the deceased and for prudence the prosecution ought to have examined some other independent eyewitness as well who were present at the time of the unfortunate incident. This was also the view taken by the Trial Court, but the High Court has correctly rejected such an approach and held that merely because there were some more independent witnesses also, who had reached the place of incident, the evidence of the relatives cannot be disbelieved. The law nowhere states that the evidence of the interested witness should be discarded altogether. The law only warrants that their Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 15 CRA-3068-2016 evidence should be scrutinized with care and caution. It has been held by this Court in the catena of judgments that merely if a witness is a relative, their testimony cannot be discarded on that ground alone.
28. In criminal cases, the credibility of witnesses, particularly those who are close relatives of the victim, is often scrutinized. However, being a relative does not automatically render a witness "interested" or biased. The term "interested" refers to witnesses who have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity or personal gain. A "related" witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simply because of their relationship to the victim. Courts must assess the reliability, consistency, and coherence of their statements rather than labelling them as untrustworthy.
29. The distinction between "interested" and "related" witnesses has been clarified in Dalip Singh v. State of Punjab 1954 SCR 145 where this Court emphasized that a close relative is usually the last person to falsely implicate an innocent person. Therefore, in evaluating the evidence of a related witness, the court should focus on the consistency and credibility of their testimony. This approach ensures that the evidence is not discarded merely due to familial ties, but is instead assessed based on its inherent reliability and consistency with other evidence in the case. ......."
(iv) Hon'ble Supreme Court in the case of Karnail Singh v. State of M.P. [(1995) 5 SCC 518] has held that for deficiency in investigation, accused cannot be acquitted.
(v) In Edakkandi Dineshan @ P Dineshsan & Ors. Vs. State of Kerla (Cr.A. No. 118 of 2013) dated 06.01.2025 specific paragraph 22 :-
"22......Hence, the principle of law is crystal clear that on the account of defective investigation the benefit will not inure to the accused persons on that ground alone. It is well within the domain of the courts to consider the rest of the evidence which the prosecution has gathered such as statement of the eyewitnesses, Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 16 CRA-3068-2016 medical report etc. It has been a consistent stand of this court that the accused cannot claim acquittal on the ground of faulty investigation done by the prosecuting agency........."
(vi) In Paras Yadav v. State of Bihar [(1999) 2 SCC 126] it has been held that if investigation officer negligently or unknowingly makes some lapses in investigation even then the trial Court has to consider the case minutely.
(vii) In the case of Sunil Kundu v. State of Jharkhand [(2013) 4 SCC 422] it has been held that unless lapses or faults go into the root of the matter, acquittal cannot be granted on that basis.
(viii) In Dadu @ Ankush & another Vs. State of Madhya Pradesh and another; 2025 LiveLaw (SC) 1178 , Hon'ble Supreme Court in paragraph 19 has held that evidence of hostile witness cannot be rejected entirely but such evidence must be subjected to closer scrutiny and the portions consistent with either the prosecution or the defence case may be accepted and High Court was in error in ignoring the evidence of P.W.4 on the ground that he was declared hostile (Relied on State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360 - para 19 ) .
(ix) An objection is made by learned appellants' counsel that no human blood was detected in FSL report Ex. P/32 on farsa and iron rod and Lathis were not sent for chemical examination but it will not harm the prosecution case because in this case the crime took place on 26.06.2010 whereas the accused were absconding and they were all arrested between 01.07.2010 to 16.11.2010 in which Rajkumar was arrested on 16.11.2010 from whom iron rod was subsequently seized and similarly lathis were also Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 17 CRA-3068-2016 seized belatedly because accused persons were absconding and date of their arrest is mentioned in para 3 of this judgment.
The learned Trial Court has dealt with this aspect correctly in paragraph 29 of the judgment in the light of provision under Section 8 the Evidence Act the subsequent conduct is relevant as held by Hon'ble Supreme Court in para 233 of Sidhartha Vashist alias Manu Sharma Vs. State ( NCT Delhi); (2010) 6 SCC 1.
In case of State of Punjab vs Hakam singh (2005)7SCC 408 fire-arms were not recovered. It was held that even if such articles were recovered then they would have been by way of corroborative evidence, therefore, this lapse is not fatal to the prosecution. The relevant para 13 is as below :-
"13. It was also pointed out by learned counsel for the respondent that no firearms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the firearms and recovering the empties and sending them for examination by the ballistic expert would have only corroborated the prosecution case but by not sending them to the ballistic expert in the present case is not fatal in view of the categorical testimony of PW 3 about the whole incident."
In the case of V.K. Mishra v. State of Uttrakhand (2015) 9 SCC 588 , a 3 Judge Bench in para 38 has held as thus :-
"38. The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions."
In the case of Umesh Singh v. State of Bihar; (2013) 4 SCC 360 , it was held that where there is a difference in medical evidence and evidence of eye witness Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 18 CRA-3068-2016 than the common rule is that evidence of eye witness should be given preference unless the medical evidence is of such nature that it totally eliminates the eye witness account, in that situation only medical evidence should be preferred specific para 23.3 is as below:-
"23.3. Rightly, the learned counsel appearing on behalf of the State has placed reliance upon the judgment of this Court referred to supra that between medical and ocular evidence the ocular evidence must be preferred to hold the charge proved. This is the correct legal position as held by both the learned Additional Sessions Judge as well as the High Court after placing reliance upon the statement of evidence of PW 2, PW 3, PW 5 and PW 7. Therefore, we do not find any erroneous reasoning on this aspect of the matter. There is no substance in the submissions of the learned Senior Counsel on the above aspect of the matter with reference to judgments of this Court referred to supra which decisions have absolutely no application to the fact situation of the case on hand."
In the case of State of Haryana v. Bhagirath (1999) 5 SCC 96 it was held that when there is contradiction in the evidence of two doctors then that evidence should be accepted which is more probable in the facts of the case, specific para 15 is as below :-
"15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."
(x) At the time of arguments, it was argued that no motive is Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 19 CRA-3068-2016 established but generally motive is important in a case of circumstantial evidence but in a case of direct evidence, even if motive is not proved then no interference can be made. In the case of State of Himachal Pradesh Vs. Chaman Lal; 2026 LiveLaw (SC) 48, Hon'ble Supreme Court has held in para 23 as below :-
"23. Motive assumes significance, primarily in cases based on circumstantial evidence. Where there is direct evidence in the form of a credible and trustworthy dying declaration, the absence of strong proof of motive is not fatal to the prosecution case. This position has been consistently affirmed by this Court in State of Andhra Pradesh v. Bogam Chandraiah and another (1986) 3 SCC 637, Dasin Bai @ Shanti Bai v. State of Chhattisgarh 2015 SCCOnline SC107, and Purshottam Chopra v. State (NCT of Delhi) 2020 SCC Online SC 6. In the present case, the evidence on record discloses that the respondent subjected the deceased to frequent quarrels, humiliation and verbal abuse, including branding her a "Kanjri" and repeatedly asking her to leave the matrimonial home. The dying declaration itself refers to persistent matrimonial discord and ill-treatment thereby furnishing a plausible background for the commission of the offence. In any event, the prosecution is not required to establish motive with mathematical precision and failure to conclusively prove motive does not weaken an otherwise reliable and cogent case."
Hon'ble Division Bench of this Court in the case of Nagendra Vs. State of M.P., Criminal Appeal No. 742 / 2017,judgment dated 04.05.2017 in para 13 has held that in a case of direct evidene regarding assault, worthy of credence , the question of motive becomes more or less academic.
(xi) In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat ; (1983) 3 SCC 217, Hon'ble Supreme Court has held as below in paragraph 5 and 6 :-
"5. ......... We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30
20 CRA-3068-2016 discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 21 CRA-3068-2016 defence mechanism activated on the spur of the moment."
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses."
(xii) At the time of arguments, it was also argued by learned appellants' counsel that some witnesses say that they heard Suresh and Ummed died due to accident. In this regard, Hon'ble Karnataka High Court in P. Damodara Raju Vs. R.S. Parameshwari; 2019 SCC OnLine Kar 1976 has held that statement of witness has to be read in whole. Specific paragraph 16 :-
"16. The judgment of the Supreme Court in D.N. Jeevaraju throws some more light on this aspect. It is held that if a statement is found to be an inadvertent error or have been made unintentionally, it is nothing but a stray sentence. In the light of these principles, if it is further analyzed, it can be very well said that a stray answer has no value, but what is of utmost importance is that a clear conclusion must be drawn whether a sentence or statement can be considered as 'stray'. It may be possible that a witness whilst under cross-examination may falter owing to failure to grasp the question posed to him or confusion in understanding a tricky question, the answer to which may possibly be construed disadvantageous to him. Therefore in a situation like this, before drawing any inference, the whole evidence must be scrutinised to examine whether it is possible to separate an answer from the other consistent answers or statements; the tenor of answers must be seen. If it is found that on a particular issue or aspect, a witness has given answers consistently and it is improbable to expect an answer inconsistent with other part of evidence, that particular statement or answer can be considered as stray sentence or statement or admission, otherwise not. It is not every answer that goes against a witness can be considered as stray admission; if this interpretation is given, the purpose of cross examination fails."Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30
22 CRA-3068-2016
(xiii) It was also argued on behalf of the appellants by their learned counsels that FIR is very sketchy. It is not mentioned clearly as to which accused was carrying which weapon and who assaulted whom and on which part of body but in the case of B.N. John Vs. State of U.P. and another; 2025 SCC Online SC 7, Hon'ble Suprme Court in para 25 has held thus :-
"25. ........This Court in CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 observed as follows:
"20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information..........................."
(emphasis added)"
20. It is also argued by learned appellants' counsel that independent Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30
23 CRA-3068-2016 witnesses of memorandum and seizure have not supported the prosecution case but there is no reason to disbelieve the statement of Investigating Officer P.W.19 R.K. Sharma, Dy.S.P. In the case of Girja Prasad (dead) through L.Rs. Vs. State of Madhya Pradesh (2007) 7 SCC 625 in para 25, Hon'ble Supreme Court has laid down this principle regarding police witnesses :-
"25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
21. At the time of arguments, learned counsel for the appellants laid great emphasis on this point that P.W.1 Jithua has stated that he had run away, therefore, he could not see that after Suresh and Ummed had fallen then accused persons assaulted them but this statement has to be read in the context of entire evidence. When Suresh and Ummed were going on a motorcycle, which was at some distance ahead and P.W.1 Jithua and P.W.2 Munna were following them a little behind but at a distance where he (P.W.1 Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 24 CRA-3068-2016 Jithua) could see the assault on Suresh and Ummed and after assaulting Suresh and Ummed when they assaulted Jithua and Munna, which caused fracture injury to Jithua P.W.1 also and simple injury to P.W.2 Munna also then it is but natural that P.W.1 Jithua could not see that what happened after Suresh and Ummed, who had fallen down due to assault by the accused persons because to save oneself is a natural human tendency and injuries after fall may seen like injuries due to accident i.e. falling from motorcycle as given a possibility by P.W.13 Dr. A. M. Navani. If the defence had wanted they could have got this sentence clarified that he did not see that accused persons assaulted Suresh and Ummed or accused persons assaulted Jithua or Munna when this clear unambiguous question in entire context is not asked then no benefit on that account can be given to defence even otherwise it was never suggested to P.W.1 Jithua that he could not see the assault on Suresh and Ummed, therefore, statement of P.W.1 Jithua can be believed that he was an eye-witness besides being an injured eye-witness.
22. Similarly P.W.2 Munna, in cross-examination in para 6 has stated that he had not seen the incident but this statement also has to be read in entire sequence because in examination-in-chief this witness had already stated that as soon as they reached the place of incident then he was also assaulted but he could not see which person assaulted him with which arm (weapon).
It is to be noted that in this case two persons have expired due to homicidal injuries and P.W.1 Jithua also received fracture injuries due to assault. Similarly, Munna has also received simple injuries and when Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 25 CRA-3068-2016 narration of the incident like an electronic recording device is not possible for a human then no benefit on this ground can be given to the appellants when specific question is not asked by defence.
23 P.W.3 Jawahar, P.W.4 Ginni have stated that they heard that there was a motorcycle accident but P.W.6 Dhaniram has stated that he heard that Suresh and Ummed have been murdered by Lokman, Rajkumar, Bablu and Kallu.
24 P.W.7 Chhotibai also stated that Munna had informed her that assault had taken place but he did not see who had assaulted them.When they reached Burhena Nala then Ummed and Suresh told them that they were assaulted by Lokman, Rajkumar, Kallu and Bablu.
25. P.W.5 Devi Singh has stated that at about 5 P.M, Suresh Patel had phoned him that they are lying near Burhena Nala because they have been assaulted. When he reached the place of incident he found Suresh and Ummed but Ummed had already expired and from the body of Suresh, blood was oozing out, therefore, he with the help of other persons took them to hospital. In cross-examination in paragraph 11 this witness denied that he did not inform anybody in the village about this incident. He stated that when the incident happened then he had informed. He also admitted that he had enmity with the accused persons but it is wrong to say that he has given false evidence because of the enmity. As already stated above, the entire evidence by this witness has to be seen in the entire context and simply at one place if it has been mentioned as accident instead of incident then in the light of above mentioned judgment of P. Damodara Raju ( Supra) it seems that Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30 26 CRA-3068-2016 mentioning of accident is a typographical error.
26. P.W.8 Ghasota has stated that he came to know that Suresh and Ummed died in the incident. This witness has not supported the memorandum and seizure documents prepared by the police but investigation has supported the seizure and memorandum during the course of investigation. Therefore, on evaluation of evidence of both the parties, it is proved that Suresh and Ummed did not die due to any accident. Similarly, injuries sustained by P.W.1 Jithua and P.W.2 Munna were also not the result of motorcycle accident. On the other hand, they were caused due to assault by the accused persons as per the prosecution story.
27. Learned Trial Court has very minutely and correctly evaluated the prosecution and defence case and in para 36 of the judgment, correctly relied on the judgment of Chhotanney and Ors Vs.State of Uttar Pradesh and others; (2009)11 SCC 71 in which Hon'ble Supreme Court has held in paragraph 12 as under :-
"12. "9 . It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30
27 CRA-3068-2016
10. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another a learned author says [see "The Mathematics of Proof II" : Glanville Williams :
Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)]:
'The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.'
11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
12. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30
28 CRA-3068-2016 administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928 :
AIR 1988 SC 2154] ."
See State of M.P. v. Dharkole [(2004) 13 SCC 308 : 2005 SCC (Cri) 225] , at SCC pp. 312-13, paras 9-12. Apparently, there was no conflict between the ocular evidence and the medical evidence as contended by learned counsel for the appellant."
Regarding death of Suresh evidence of P.W.9 Dr Yashwant is on record coupled with the statement of eye-witnesses P.W.1 Jithua, therefore, any contrary statement in the nature of possibility of some injury due to accidental fall by P.W.13 Dr. A.N. Navani become immaterial and not acceptable.
28. Regarding common intention in paragraph 45 of the judgment, learned Trial Court has correctly relied on the judgment in State of Rajasthan Vs. Shobharam; (2013) 14 SCC 732 - relevant paragraphs are reproduced below :-
"9. A perusal of Section 34 IPC would clearly indicate that there must be two ingredients for convicting a person with the aid of Section 34 IPC. Firstly, there must be a common intention and secondly, there must be participation by the accused persons in furtherance of the common intention. If the common intention is proved, it may not be necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must be arising out of the same common intention in order to attract the provision. The said principle is reiterated in a three- Judge Bench decision in Suresh v. State of U.P. [(2001) 3 SCC 673 : 2001 SCC (Cri) 601] and Ramaswami Ayyangar v. State of T.N. [(1976) 3 SCC 779 : 1976 SCC (Cri) 518] , wherein the Court has stated that: (Ramaswami Ayyangar case [(1976) 3 SCC 779 : 1976 SCC (Cri) 518] , SCC p. 783, para 12) Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:30
29 CRA-3068-2016 "12. ... The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the [commission of crime]. Such a person also commits an 'act' as much as his co- participants actually committing the planned crime."
In the case of an offence involving physical violence, the person who instigates or aids the commission of the crime must be physically present and such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the "criminal act".
10. Insofar as common intention is concerned, it is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances. As observed in Hari Ram v. State of U.P. [(2004) 8 SCC 146 : 2005 SCC (Cri) 321] (SCC p. 622, para 21), the existence of direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. Therefore, in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence before a person can be vicariously convicted for the act of the other."
29. Therefore, in the ultimate analysis in the light of above factual situation and relevant laws as applicable therein and as discussed in this judgment there is no ground to interfere in the judgment of conviction and sentence passed by the Trial Court in Special Case No. 200036/2010 - judgment dated 8.9.2016 regarding all appellants / accused therefore all the three appeals are dismissed.
30. Let the appellants undergo remaining part of the jail sentence.
Signature Not Verified Signed by: VIKRAM SINGH Signing time: 01-04-2026 17:24:3030 CRA-3068-2016
31. The disposal of the case property shall be as per the judgment of the Trial Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VSG
Signature Not Verified
Signed by: VIKRAM SINGH
Signing time: 01-04-2026
17:24:30