Madhya Pradesh High Court
Pappu @ Matiuddin vs State Of M.P. on 7 April, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 401 of 2010
Pappu @ Matiuddin
Vs.
State of M.P.
_______________________________________
Shri O.P. Mathur, Yash Saxena and Ayush Saxena Counsel for the
Appellant
Shri C.P.Singh, Counsel for the State
Date of Hearing : 22-03-2022
Date of Judgment : 07th-04-2022
Approved for Reporting :
Judgment
07th - April -2022
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 23-4-2010 passed by Special Judge/Add. Sessions Judge, Datia in S.T. No.84 of 2008, by 2 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) which the appellant has been convicted and sentenced for the following offences :
Convicted under Section Sentence Under Section 148 of IPC 2 years R.I. and fine of Rs.2000 with default RI of 3 months
Under Section 302 of IPC for Life Imprisonment and fine of murder of Imambaksh Rs. 3000/- with default R.I. of 1 year Under Section 302/149 of IPC for Life Imprisonment and fine of murder of Jameel Rs. 3000/- with default R.I. of 1 year Under Section 25 of Arms Act 2 years R.I. and fine of Rs. 2000 with default R.I. of 3 months Under Section 27 of Arms Act 3 years R.I. and fine of Rs.2000 with default R.I. of 3 months All sentences shall run concurrently.
2. It is not out of place to mention here that other co-accused persons were absconding. The co-accused Phulle @ Kabuluddin was arrested after the conviction of the Appellant. The co-accused Phulle @ Kabuluddin was tried separately. He too has been convicted and has filed Cr.A. No. 2567 of 2018. In the light of the judgment passed by the Supreme Court in the case of A.T. Mydeen Vs. The Asstt. Commissioner, decided on 29-10-2021 in Cr.A. No. 1306 of 2021, the evidence led in the present case, cannot be read either in favor or against the co-accused and vice versa. Although the Cr.A. No. 2567 of 2018 has also been heard simultaneously, but in order to avoid any confusion, the Cr.A. No.2567 of 2018 filed by Phulle @ Kabuluddin shall be decided separately.
3. It is also not out of place to mention here that according to the 3 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) prosecution case, initially, the Appellant Pappu @ Matiuddin along with four other co-accused persons, killed Imambaksh and Jameel, and while fleeing away, they killed their own father Jainuddin. The present case is in relation to murder of Imambaksh and Jameel, whereas Crime No. 78/08 was registered for murder of Jainuddin. The appellant was also tried for murder of Jainuddin in S.T. No.125/2008 and has been convicted and Cr.A. No. 246/2010 arises out of judgment passed in S.T. No.125/2008. The said Criminal Appeal has also been heard simultaneously and is being decided by separate Judgment.
4. The prosecution story in short is that on 21-4-2008, at 23:50, the complainant Alibaksh lodged a report in Police Station Bhander on the allegations that he is the resident of Sitola Colony and has a tailoring shop. His brother Imambaksh has grocery shop at Sarsai Tiraha. Enmity of Imambaksh with Appellant Pappu @ Matiuddin was going on, and criminal case is pending in the Court of law. On 21-4-2008, at about 7:30 P.M., he, his brother Imambaksh, nephew Jameel, Rajjak, Inder Pandit etc. were sitting and talking to each other. Gas Lantern was burning. On account of old enmity, the Appellant who was armed with country made pistol, came along with his brother Phulle, Lalu, Balle, and Javeli to his shop and Pappu scolded Imambaksh as to why he is not compromising in 307 matter. Before his brother could speak, the Appellant Pappu fired a gun shot causing injuries on chest and abdomen of Imambaksh. His nephew 4 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) Jameel tried to save Imambaksh, then Phulle fired a gun shot causing injury to him. Both of them fell down. Thereafter, all the five accused persons ran away from the spot by firing in air. With the help of Basheer, Imambaksh and Jameel were brought to Bhander Hospital, whereas Imambaksh was declared dead and he went to Gwalior for the treatment of Jameel, but he too died on his way to Gwalior. Now he has come back to Bhander along with the dead body of Jameel. The incident has been witnessed by Rajjak, Inder etc. Imambaksh and Jameel have been killed by causing gun shots. Later on he came to know that Pappu has killed his father in his defence.
5. The police registered F.I.R in crime no. 79/08 for offence under Sections 147,148,149, 302 of IPC and prepared spot map. The bloodstained and plain earth were seized from Sarsai Tiraha. One . 315 bore Country made pistol with one bullet of 8 mm housed in it, one 8 mm fired cartridge, three 8 mm empty cartridges, one fired bullet of .315 bore country made pistol were seized from the spot i.e., in front of the shop of Imambaksh. Broken piece of glass was also seized. The dead bodies were sent for post-mortem. Before that safina forms were issued and Lash Panchnama were prepared. The statements of witnesses were recorded. The Appellant Pappu was arrested and his memorandum was recorded and .315 bore country made pistol was seized. The police after completing the investigation filed charge sheet against Pappu for offence under Section 5 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) 147,148,149,302 of IPC and under Section 25/27 of Arms Act, whereas the co-accused Phulle, Lalu, Balle and Javed were absconding.
6. The Trial Court by order dated 26-8-2008 framed charges under Sections 148,302 or in the alternative 302/149 (Two Counts) of IPC and under Section 25/27 of Arms Act.
7. The appellant abjured his guilt and pleaded not guilty.
8. The prosecution examined Ali Baksh (P.W.1), Nawab Khan (P.W.2), Munnu @ Rafik Khan (P.W.3), Najeer Khan (P.W.4), Islam (P.W.5), Dr. R.S. Parihar (P.W.6), Dr. M.M. Shakya (P.W.7), Rashid @ Mouzu (P.W.8), Biharilal (P.W.9), Basheer Khan (P.W.10), Shakeel Khan (P.W.11), Atul Singh (P.W.12), Hotam Singh Narvariya (P.W.13), and Madhav Rao Shinde (P.W. 14).
9. The appellant examined Mohd. Muslim Khan (D.W.1), in his defence.
10. The Trial Court by the impugned judgment, convicted and sentenced the appellant for the offences mentioned above.
11. Challenging the judgment and conviction recorded by the Court below, it is submitted by the Counsel for the Appellant that all the eye-witnesses are related witnesses. There are major omissions and contradictions in the evidence of the witnesses. In fact the Appellant had lodged FIR in Crime No.78/2008 against the complainant party for committing murder of his father Jainuddin and by way of counterblast the FIR in question was lodged. The FIR was 6 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) lodged belatedly. There was no sufficient light on the spot.
12. Per contra, the Counsel for the State has supported the prosecution case as well as the findings recorded by the Trial Court.
13. Heard the learned Counsel for the parties.
14. Before adverting to the facts of the case, this Court would like to consider as to whether the death of Imambaksh and Jameel was homicidal in nature or not?
15. Dr. R.S. Parihar (P.W. 6) had conducted the Medical Examination of the injured Jameel and also conducted the post- mortem of deceased Jameel. Dr. R.S. Parihar (P.W.6) found the following injuries on the body of injured Jameel :
(i) Lacerated wound (wound of entry) present over right side of neck behind the ear size 2 cm x 1 ½ cm x track (depth not measured), blackening, tattooing present margin of wound inverted, upper part of pinna lost, bone of skull (Illegible) bleeding present;
(ii) A Lacerated wound present over left side of neck below the mustard process of left lateral side of neck (wound of entry) oval in shape size 1 ½ cm diameter, blackening present tattooing present inverted margins
(iii) Lacerated wounds present over left side of cheek margin everted, making L shaped from the left ear to chin size 6 ½ x2 cm
(iv) A Lacerated wound present over left side of face near angle of mouth left size 2 cm x 1 ½ cm x full side of cheek, everted margins
(v) Abrasion over right index finger at base back of palm size ½ cm x ½ cm blackening tattooing
(vi) Abrasion over right hand size ½ cm ½ cm tattooing blackening present (Injuries no. 1 to 4 are caused by gun shot (fire arm) Case referred to J.A. Hospital Gwalior for -ray and needful treatment.
The M.L.C. is Ex.P.16.
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Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010)
16. The post-mortem of Jameel was also conducted by Dr. R.S. Parihar (P.W.6) who found following injuries on the dead body of Jameel :
(i) Wound of entry - A lacerated wound present over right side of neck behind right ear size 2 cm x 1 1/2cm x making a rack. Margin of wound inverted, blackening present around the wound upper part of pinna lost blackening present over margin of injured Pinna (Ear). On opening of wound there is clotted blood present inside the wound, bone of skull missing proceeding forward. Track of the wound is directed slightly downward forward toward face, muscles of face, neck and teeth of upper jaw injured and track is (Illegible) to nasal bone. Bullet present at the end.
(ii) Wound of entry present over left side of neck below mastoid process oval shape 1 ½ cm in diameter, blackening present, collar of (Illegible) present, margin of wound inverted wound is directed slightly upward toward left cheek of face. On opening of track there is injured neck muscles, blood ... of neck, fracture of mandible bone. Teeth of upper and lower jaw broken.
(iii) Wound of Exit - A lacerated wound present over the left ide of cheek making L-shaed start from (Illegible) the left ear to chin margin everted wound is communicated with the tract of wound of entry of injury no.2. Size 6 ½ cm x 1 ½ x communicate with injury no.2.
(iv) Another exit wound - lacerated over left side of mouth 2 ½ cm x 1 ½ x track communicate with injury no.2 and 3. Margin everted and collect (Illegible) left side. Injury no.3 communicate with oral (Illegible).
(v) Abrasion over base of right index giner on back of palm size ½ x 1 ½ cm blackening present
(vi) Abrasion present over right hand below injury no.5.
Blackening present.
All Injuries no. 1 to 6 are caused by gun shot (fire arm) object.
All injuries ante-mortem in nature within 24 hours in duration.
The time since death within 24 hours of P.M. Examination.
Bullet taken from dead body sealed and sealed bullet (Illegible) and sent to S.O., P.S. Bhander.
The cause of death in this case is shock due to extensive hemorrhage from wounds caused by fire arm (gun 8 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) shot) injury.
The Post-mortem report is Ex. P. 17.
17. This witness was cross-examined. In cross-examination, he stated that he is posted in Bhander since 2002. His emergency duty is from 8 A.M. to 8 A.M. of next morning. His duty in OPD is from 8 A.M. to 1 P.M. and from 5 P.M. to 7 P.M. Emergency Duty is assigned as per Roster fixed by B.M.O. The Doctor on duty performs MLC and Post-mortem, or by that Doctor who is assigned the said work by special order. He was on Emergency Duty on 21-4-2008. the copy of FIR as well as the weapons were not sent to him. By mistake, he had not mentioned the identification mark. He denied that he had not conducted the medical examination of the patient, prior to his death. He had medically examined the injured at 7:40 P.M. He had conducted M.L.C. and referred the patient to Gwalior. The patient was not admitted and he was immediately referred to Gwalior. The injured was not kept under observation. It is incorrect to say that his MLC was not done. He did not enquire from Basheer as well as Police as to how the patient sustained injuries. Since, Jameel was unconscious, therefore, he could not enquire from him as to how he sustained gun shot injuries. He must have taken 15-20 minutes to examine and refer the injured. The photo copy of MLC of Pappu @ Matiuddin was shown to this witness who admitted that he had done his MLC at 10-50 P.M. The injury no. 1 to Jameel was caused from a distance of 5 to 10 ft.s. Bullet was found stuck in the 9 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) body. Since, there was bleeding, therefore, he had not measured the depth of injury no.1. He denied that blackening was not present around wound no.1. Fracture was visible in injury no.1. The fired bullet was sealed and was handed over to police. The distance between injury no.1 and 2 was not mentioned. However, injury no. 2 was near to injury no.1. The injury no. 2 was towards left direction, whereas injury no.1 was towards right direction. Both the injuries were near to ear. Blackening was present around injury no.2. Injury no.2 had wound of exit. The injury no.3 is the wound of exit. He denied that his duty was over by the time, he had conducted the post- mortem. He denied that he had not conducted the Post-mortem. Some time, 3-4 postmortems are to be done. He has to discharge duty as per the directions of his seniors. He had found broken teeth in post-mortem but not mentioned in M.L.C. He stated that while doing MLC some things are not noticed, whereas the injuries are mentioned in detail in post-mortem. He further stated that he cannot say as to whether the deceased had sustained any injury after the MLC and his post-mortem. Dr. Shakya is senior to him. The post-mortem was done by him and Dr. Shakya jointly. The cloths and bullet were sealed in different packets. He had not mentioned that the death was homicidal in nature. He further stated that since, both the chambers of his heart were empty, therefore, the conclusion can be drawn.
18. Thus, from the MLC, Ex. P. 16 of Jameel and Post-mortem report of Jameel, Ex. P.17, it is clear that similar injuries were found 10 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) and the death of Jameel was homicidal in nature.
19. Dr. M.M. Shakya (P.W.7) had conducted post-mortem of Imambaksh. He stated that on 22-4-2008, he was on Emergency Duty. He had started post-mortem of Imambaksh at 1:30 P.M. the dead body was identified by Jumman son of Asraf Khan, Alibaksh and found following injuries on his body :
(i) Wound of Entry - Oval shaped on left upper abdomen blackening and tattooing present margin inverted wider of abrasion present size 1.5 cm diameter, multiple dotted abrasion present around the wound. Blackish in colour wound is directed transversely oblique forward toward the back to vertebral column at his back. On opening of the wound (Illegible) of clotted blood inside the wound marking a track (illegible) of the abdomen Spleen injured and reacting to the side of the back right side near vertebral column.
(ii) Wound of Exit - present over at lumber region near the vertebral column size 2 x 2 cm muscle pierced comes out of the wound. Margin of the wound everted. Wounds of track communicate with injury no.1.
(iii) Wound of Entry - Right Lateral Pat of the upper ½ oblique level of the nipple oval in shape - diameter 1 ½ cm margin of the wound entry margin continuous. Blackening wound directed obliquely downward toward (Illegible). On opening of the wound intercostal muscles ribs are injured. Lungs right side are injured diaphragm liver right lobe and (Illegible) the vertebra of lumber region where bullet is present.
All injuries are ante-mortem in nature caused by fire arm injury (Gun shot injury) within 24 hours duration time since death within 24 hours.
Bullet taken from dead body one in number are packed sealed and sent to S.O., P.S. Bhander.
Cloths - Whitish check kurta stained with blood and having holes, baniyan white with stained blood and having holes and while paijama with stained with blood, blue colour underwear with stained with blood swab prepared from the wound sealed and sent to S.O. P.S. Bhander. The post-mortem report is Ex. P.18.
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Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010)
20. This witness was cross-examined. In cross-examination, he stated that he had not mentioned that the injuries are homicidal in nature. However, this witness explained that as per Post-mortem report, the death was homicidal in nature due to injuries caused to vital part of the body. He is posted as Medical Officer from 17-7- 2004 in Hospital, Bhander. He further stated that neither the copy of FIR nor the weapons were sent to him. He was not in a position to clarify that by which weapon, the injuries were caused. If the injury is caused from a close range, then blackening and tattooing would be found around the wound and not on other parts of the body. The injury no.1 and 3 are on the right side of the body.
21. Thus, it is clear from the evidence of this witness that the death of Imambaksh was homicidal in nature.
22. Now the next question for consideration is that whether the Appellant was the member of unlawful assembly and the author of injuries to Imambaksh or not?
23. Ali Baksh (PW-1) is the brother of the deceased Imam Baksh and uncle of deceased Jameel. On 21.04.2008 at about 07:30 PM, his elder brother Imam Baksh was in his Shop situated at Sarsai Road, Bhander. This witness was also in the shop of his brother. At that time, accused Pappu @ Matiuddin along with 4 other persons, namely, Phulle, Balla, Javeli and Lalu came there. All of them were armed with country made pistol. The appellant Pappu challenged his brother as to whether he would compromise in Section 307 of IPC 12 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) matter or not. Imam Baksh replied that it would be done. At that time, appellant fired gunshot causing one injury on the chest and another on the abdomen of the deceased Imam Baksh who died on the spot. When his nephew Jameel tried to intervene in the matter, then the accused Phulle fired gunshot causing injury on his lift cheek. The bullet stuck inside his mouth. Jameel remained alive. He was shifted to Bhander hospital. His brother Basheer also came on the spot. Inder Pandit and others were also present there. His Sadu Bhai Rajjak also came there. Thereafter, they took Imam Baksh and Jameel to hospital on a rickshaw. They reached Gwalior at 10:00 PM and took Jameel to Sahara Hospital, Gwalior as he was referred from hospital Bhander, but he was declared dead. Thereafter, they came back to Bhander and it was about 12:00 or 01:00 AM in the night and thereafter he lodged the report Ex. P/1. The police prepared a spot map Ex. P/2. Initially, the witness stated that no earth was seized, but thereafter he immediately corrected himself and stated that earth was seized vide Ex. P/3. When he came on 22nd, one police personnel came along with a country made pistol. When this witness enquired that from which place the police personnel had brought the country made pistol, then he informed that it was lying on the spot and was stained with earth. At the time of incident, he was approximately 15-20 ft. away from the spot. The country made pistol was seized vide seizure memo Ex. P/4. Safina forms for Imam Baksh and Jameel Ex. P/5 and Ex. P/6 were issued. Merg Intimation was registered as Ex. P/7. The 13 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) dead bodies of Imam Baksh and Jameel were received after their postmortem vide Ex. P/8 and lash panchnama Ex. P/9 and P/10 of Imam Baksh and Jameel were prepared. In cross-examination, he stated that they are 5 brother. The elder brother is Imam Baksh who has died in the incident. This witness was second in number, whereas Basheer is third, Nazeer is fourth and Sharif is his fifth brother. The families of all the brothers reside together and have single kitchen. Although all the brothers have different businesses, but Imam Baksh is the leader of the family. This witness has tailoring shop, whereas Basheer and Sharif are running grocery shop. Nazeer and son of Imam Baksh namely Shakeel are also jointly running a grocery shop. Jameel had a shop of foodgrains, in which the deceased Imam Baksh was also sitting and at the time of the incident, he was sitting in the shop of Jameel. The distance between the shop of this witness and Imam Baksh is 1 km, but this witness on his own clarified that at about 07:00 PM, he and Basheer generally comes to the shop of Imam Baksh. He also stated that the market of Bhander starts closing from 06:00 PM and by 07:00-08:00 PM it gets closed completely. He generally closes his shop in between 7-8 PM and then goes to the shop of Imam Baksh and sometimes, Imam Baksh also comes to his shop. He further stated that in a matter registered under Section 307 of IPC, appellant Pappu @ Matiuddin, Balla, Lalu, Kullu, Javeli, Khalid etc. are accused persons and in the said case, the deceased Imam Baksh was the complainant and the case was fixed for 14 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) recording of his evidence on 25th, whereas the incident took place prior to that i.e., 21st. He further stated that he was not a witness in the said case but clarified that because of his conversation with his other brothers, he knows that the evidence of his brother Imam Baksh in a criminal case registered under Section 307 of IPC was yet to be recorded. All the accused persons involved in the present case were also an accused in a criminal case registered under Section 307 of IPC. He further stated that Khalid who is an accused in a criminal case registered under Section 307 of IPC was not involved and, therefore, he has not disclosed the name of Khalid in the FIR. He further stated that there is a load shedding in Bhander at about 06:00 PM. Accordingly, the Court asked a question as to whether at the time of the incident, it was dark or there was a light and this witness clarified that it was not dark and there was a light. He denied that Imam Baksh used to close his shop at 06:00 PM because of load shedding. He further stated that he had already visited the shop of his brother prior to the incident and at that time, Inder Pandit, Basheer and Rajjak were there. Rajjak is distantly related to this witness, whereas Inder Pandit is a partner of his brother Imam Baksh and since Imam Baksh has expired therefore partnership has come to an end and the shop has been closed. His brother Imam Baksh has his separate grocery shop and the shop of foodgrains is different and there is a distance of 30 ft. between both the shop. He denied that nothing beyond 5 ft. was visible, but he clarified that there was 15 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) sufficient light to see the things at a distance of 100 ft. He had seen the appellant coming when he was at a distance of 15 - 20 ft. He had also seen that they had a country made pistol. When gunshot were being fired, there was nobody except them. By the time other shopkeepers came on spot, his brother had already expired and the accused persons had already ran away. While fleeing away, the accused persons had also fired 8-10 gunshots. He admitted that he is having a licensed gun, but clarified that had he been carrying the licensed gun, then this incident would have been averted. They brought the deceased Imam Baksh and injured Jameel to the hospital at about 07:45 PM. About 10-15 minutes were consumed in Bhander hospital. First aid was given in Bhander and Imam Baksh was declared dead. Thereafter, they took Jameel in a Maruti Van to Sahara Hospital, Gwalior. Jameel was not admitted in Sahara Hospital and was declared dead on arrival. Till they did not return back, no member of their family had gone to Bhander to lodge the FIR. He stated that they had returned from Gwalior at about 11:30 PM and they went directly to the Police Station along with the dead body. The FIR was lodged and the dead bodies of Imam Baksh and Jameel were handed over after postmortem. Imam Baksh was also having a gun license and his gun was kept in his house and he denied that his brother Imam Baksh was having gun at the time of incident. When he came to Police Station, he was not aware that the appellant Pappu had already lodged a report regarding murder of his father by 11 persons. 16
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) He denied that the false FIR has been lodged in order to get over the FIR lodged by the appellant for the murder of his father. He did not try to find out the fired cartridges as well as country made pistols in the night because he had gone to Gwalior. All the accused persons were having .315 bore pistols. He stated that he had read the lash panchnama but could not explain as to why the fact of causing injury is not mentioned in the same.
24. Nawab Khan (PW-2) is a witness of arrest of appellant vide Ex. P/11. His memorandum Ex. P/12 was recorded and a country made pistol was seized vide seizure memo Ex. P/13. In cross-examination, he denied that he has come to Court along with Ali Baksh, but he admitted that Ali Baksh has come to the Court premises. Shop of Ali Baksh is about 8-10 shops away from the shop of this witness. He further stated that on the date of incident, he had closed his shop at 06:00 and while he was preparing to go back to his house, then he heard the noise that murder has taken place. He denied that he is a false witness.
25. Punnu @ Rafik Khan (PW-3) has turned hostile and did not support the prosecution case.
26. Nazeer Khan (PW-4) has stated that Imam Baksh is his brother and Jameel is his nephew. He has again narrated the incident which was stated by Ali Baksh (PW-1). This witness was cross-examined. In cross-examination, he stated that at the time of incident, he was residing at Bhander and the incident had taken place in his presence. 17
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) He further stated that there used to be load shedding, but claimed that the deceased Imam Baksh was having gas lantern and it was not dark so that anything cannot be seen. He denied that the market gets closed by 05:30 - 06:00 due to load shedding. The shutter was not closed at the time of incident. Shakeel was sitting at the counter. He denied that there was no load shedding at the time of incident, but he also denied that it was so dark that nothing was visible. He further stated that lanterns were burning in other shops also. Imam Baksh was at the distance of 15 ft. from the place where he was sitting. Imam Baksh and Jameel were at the spot, but he did not notice that who were the other persons who were on the spot. The moment the accused persons abused Imam Baksh, he looked towards the said direction. He reached on the spot after the gunshots were fired. He had seen Imam Baksh sustaining two gunshot injuries and after Jameel was caused gunshot injury. This witness all of a sudden stood up and got frightened. He denied that he reached on the spot after the accused persons ran away, but he clarified that he had seen the accused persons running away from the spot. He had identified all the accused persons. Ali and Basheer had taken Jameel to Gwalior. Rajjak did not go there. He went to Bhander hospital. Rajjak is not his brother and is his neighbour and belongs to the same caste. Till 01:00 AM, he did not have any talk with Ali Baksh and Basheer. Pappu had fired on Imam Baksh from the distance of 5-6 ft. He did not fell down after sustaining first injury but fell down after sustaining second injury. 18
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) Jameel had sustained gunshot injury on his left cheek. All the accused persons had fired multiple gunshots in air. About 8-10 gunshots were fired. When the accused persons were firing in air, he had come to the shop of deceased Imam Baksh. Jameel was standing by the side of Imam Baksh when he sustained injury. He denied for want of knowledge that a criminal case was registered against him and other 11 persons for committing murder of Jainuddin, father of the appellant. He denied that appellant was in Police Station Bhander at 08:30. He denied that police had taken Pappu to the hospital for treatment as he had sustained gunshot injury.
27. Islam (PW-5) has stated that he has automobile repair shop. It was about 07:30 in the night and he was repairing vehicle in his shop. At that time, he heard the noise of gunshots. He saw that Phulle and 4-5 persons were coming and were firing. Phulle shot his father Jainuddin and thereafter Phulle and his 4-5 companions ran away from the back side of temple. When he reached Sarsai Tiraha, then he found that Jameel and Imam Baksh were lying on the road in an injured condition. As he got frightened, therefore, he came back to his shop and closed the same and thereafter went back to his house. This witness was declared hostile and he denied that when he reached on the spot, then people had informed him that Pappu, Phulle, Balle, Lalu and Javeri had killed Imam Baksh and Jameel. He denied that he informed that Pappu has lodged a report against 11 persons for causing murder of Jainuddin. Thus, it is clear that he is not an 19 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) eyewitness of the murder of Imam Baksh and Jameel.
28. Rashid @ Mouzu (PW-8) has also narrated the incident. He was cross-examined. In cross-examination, he stated that his father Ali Baksh are 5 brothers and some of them have separate shops. Basheer and Sharif run a grocery shop jointly which is adjoining to the shop of this witness. The incident took place at the place which is quite nearer to his shop. His father has a tailoring shop, whereas Imam Baksh has a shop of foodgrains. At the time of incident, Imam Baksh, Jameel and Inder Pandit were sitting in the shop. All the five brothers including his father are residing in the same house and have common kitchen and partition has not taken place. The owner of the entire house and the leader is Imam Baksh. There are 25-30 members in his family. If somebody goes from the side of Chirgaon, then he would cross his shop first. He did not shout that the accused persons are going along with country made pistol. He denied that after noticing the country made pistol in the hands of the appellant, he has closed his shop, but clarified that after the incident he had closed his shop. All the five persons who had come along with country made pistol did not come to his shop, but they have passed in front of his shop. He accepted that no gunshot was fired at him. Inder Pandit was in the shop. At about 08:15, dead body of Imam Baksh and injured Jameel had reached to the hospital. Jameel died on his way to the hospital and his dead body was brought to Bhander at 12:00-01:00 AM.
20
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010)
29. Bihari Lal (PW-9) was posted as Head Constable and on 22.04.2008 constable Balbhadra Singh brought a sealed packet containing clothes of deceased Jameel, bullet recovered from his body at the time of postmortem, swab of wound of Jameel, clothes of deceased Imam Baksh, bullets recovered from the body of Imam Baksh, swab of wound and 2 specimen seals, which were seized by seizure memo Ex. P/20. In cross-examination, he admitted that neither he nor Balbhadra are the Investigating Officer.
30. Basheer Khan (PW-10) has also supported the prosecution case and has narrated the same story. He was cross-examined. He also stated that Imam Baksh was his elder brother, whereas Jameel was his nephew. Ali Baksh is his real brother and families of all brothers are residing in the same house and his house is at a distance of 100 steps from his shop and the shop of this witness is situated at a distance of 100 ft. from the shop of Imam Baksh. He denied that at the time of incident, he was in his shop, but stated that after closing down his shop, he had come to the shop of his elder brother. He further stated that every day, he closes down his shop at 06:00 PM and then goes to the shop of Imamaksh. The shop of Imamaksh is never closed at 06:00 PM, but it is closed at 09:00 PM. Ali Baksh has a tailoring shop. The shop of Ali Baksh is also at a distance of 100 ft. from the shop of Imam Baksh. He denied that shop of Imam Baksh is not visible from the shop of Ali Baksh, but also clarified that Ali Baksh was already present in the shop of Imam Baksh. He denied that 21 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) Rajjak and Inder Pandit had not come. He denied that he is deposing because of enmity. Some shops were open, whereas some shops were closed, but could not specify the names of the shopkeepers whose shops were open. He also admitted that Imam Baksh has a licensed gun, but claimed that his gun was at his house. He denied that Imam Baksh was having gun in the shop itself. He further stated that whenever Imam Baksh goes to his field, only then he takes his gun with him and he has never seen his gun in the shop of Imam Baksh. He denied that Imam Baksh had challenged the appellant to compromise the matter and also denied that the appellant Pappu denied to compromise the matter and only because of that, Ali Baksh had shot Jainuddin father of Pappu. He further denied that Ali Baksh caused gun shot injury on the shoulder of Pappu @ Matiuddin. On the next day, he came to know that Pappu @ Matiuddin has lodged a report against 11 persons including Ali Baksh. He admitted that in the said case, the gun of Ali Baksh was seized. He admitted that Ali Baksh, Jameel and Imam Baksh had enmity with lot of persons. He denied that he and his brother has killed father of Pappu, therefore, he is making a false statement. He denied that his brother and Jameel had already sustained gunshot injury prior to his arrival on the spot. Initially, gunshot injuries were caused to Imam Baksh and thereafter Jameel was shot. The shop of Imam Baksh and Jameel are at a distance of 10 steps only. No other person except Imam Baksh and Jameel had sustained gunshot injury. He denied that he did not go to 22 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) Gwalior along with Jameel. He also denied that he did not go to Sahara Hospital, Gwalior. He denied that only Ali Baksh had gone to Gwalior. He stated that he, Ali and Dr. Chaturbhuj Sahu had gone to Gwalior along with driver of the vehicle. When his nephew Jameel was referred, he was alive. He and Ali came back to Bhander at about 12:00 PM along with dead body of Jameel and directly went to Bhander Police Station, where FIR was lodged by Ali Baksh.
31. Shakeel Khan (PW-11) is the son of deceased Imam Baksh. He has also supported the prosecution case. He further stated in his examination that Pappu @ Matiuddin, Phulle etc. were facing trial under Section 307 of IPC and in that case, Pappu was absconding. In cross-examination, he stated that his father is 5 brothers. His father is the eldest one, whereas Ali Baksh, Basheer, Nazeer and Salim are the other four brothers of his father. All the brothers of his father have separate shops. His father is having shop of foodgrains, whereas this witness runs a grocery shop along with his uncle Nazeer. At the time of the incident, his uncle Nazeer was also sitting in his shop along with this witness. The shop of this witness is at a distance of 15 ft. from the place of incident. He denied that the distance is of 50 ft. He claimed that the agriculture fields and houses are joint. The shop of Imam Baksh is easily visible from his shop. His father was lying in a loading rickshaw. His father was having a licensed gun. Ali Baksh was also having a licensed gun. He denied that due to handsome amount of income from the shop, his father used to keep his licensed 23 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) gun in the shop. He further stated that his father had enmity with lot of persons. He denied that he was not on the spot. He denied that he had not seen the incident. He admitted that there was a load shedding at the time of incident. He denied that by 07:30 PM, it gets dark. He further stated that lantern was burning in his shop. His father has sustained 2 gunshot injuries, whereas his brother had also sustained 2 gunshot injuries and apart from that, 8-10 gunshots were fired. The accused persons ran away by firing gunshots. He denied that he had closed his shop at 06:00 PM. He denied that thereafter he had gone to his house. He further admitted that his father was facing criminal trial for offence under Section 307 of IPC in which Pappu was the complainant. He denied that on the date of incident, his father had asked Pappu to enter into compromise, on the contrary, it was clarified that it was the appellant Pappu who was pressurizing for compromise. The shop of his father is at a distance of about 50 ft. from the flour mill of Jainuddin. He denied that at about 07:00 - 07:30 PM, his father, Ali, Basheer etc., 11 persons went to the flour mill of Jainuddin. He also denied that they had a talk with Pappu on the question of compromise. He also denied that Pappu refused to enter into compromise. He also denied that Ali Baksh fired gunshot, as a result, Jainuddin died. He further denied that Ali Baksh had fired another gunshot on the left shoulder of Pappu. He clarified that after the murder of his father and brother, local residents got agitated. He further stated that after the incident, did not go to lodge the FIR, but 24 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) the FIR was lodged by his uncle Ali Baksh. He had reached the hospital at about 08:00-08:30 PM and police had also come. Police had asked him to lodge the FIR but he had informed that let the elder members of the family come and, thereafter, they would lodge the FIR.
32. Atul Singh (PW-12) is the Investigating Officer. He has stated that on 21.04.2008 he was posted as SHO, Police Station Bhander and on that day, the complainant Ali Baksh lodged a report against Pappu @ Matiuddin, Phulle, Lalu, Balle, Javeli, all sons of Jainuddin for murder of his brother Imam Baksh and nephew Jameel and, accordingly, FIR in Crime No.79/2008 was registered for offence under Sections 147, 148, 149, 302 of IPC. The FIR is Ex. P/1. Nothing was added or subtracted. The counter copy of the FIR was sent to JMFC, Bhander. On 22.04.2008, he had prepared the lash panchnama of Imam Baksh Ex. P/9. The lash panchnama of Jameel was prepared. The blood stained earth and plain earth were seized vide seizure memo Ex. P/3. He had also collected blood stained earth and plain earth from a place where the dead body of Imam Baksh was lying. One .315 bore country made pistol, 2 fired cartridges of 8 mm, 3 fired cartridges of 8 mm, 1 fired bullet of .315 bore and 1 broken piece of glass was lying in the shop of Imam Baksh, were also seized vide seizure memo Ex. P/4. On the date of incident, he had also prepared the spot map Ex. P-2. On the information given by Ali Baksh, safeena forms Ex. P/5 and P/6 were issued. Merg Intimation 25 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) No. 12 and 13 / 08 Ex. P/7 were prepared. Requisition for postmortem of deceased Jameel is Ex. P/21. His dead body was sent to Bhander Hospital along with constable Balbhadra. Requisition form for postmortem of the dead body of Imam Baksh is Ex. P/22. The statements of the witnesses were recorded. On 25.04.2008, he had arrested Pappu vide arrest memo Ex. P/11. His memo was recorded who informed that he has hidden a country made pistol in the Mela Ground behind a Gumti. Thereafter, the country made pistol was recovered at the instance of Pappu vide seizure memo Ex. P/13. Seized articles were sent to FSL, Sagar. The FSL draft is Ex. P/23. The FSL report is Ex. P/24. The other accused persons Javeri, Phulle, Lalu, Ballu were absconding and their absconding panchnama are Ex. P/25, 26 and 27. This witness was cross-examined and in cross- examination, he stated that on 21.04.2008, he had recorded the FIR at 11:50 in the night. Prior to that, it had already come to his knowledge that one more murder has taken place and FIR in Crime No. 78/08 has been registered in which Ali Baksh etc. have been implicated as accused persons. He went to the hospital in connection with the offence. He further admitted that on the very same day, at about 08:30 PM, Pappu had lodged the FIR in Crime No.78/08 for offence under Sections 147, 148, 149, 307, 302 of IPC against 11 persons in which the deceased Imam Baksh and Jameel were also implicated as accused. He further admitted that FIR in Crime No.78/08 was also registered by him. He further admitted that Pappu who is an accused 26 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) in the present case was the complainant. He further stated that in Crime No.78/08 he had registered the case against 11 persons including two deceased Imam Baksh and Jameel. The FIR in Crime No.78/08 is Ex. D/3. Merg Intimation Ex. D/4 was prepared. Pappu @ Matiuddin had lodged the FIR on 21.04.2008 at about 08:00-08:30 PM against Ali Baksh etc. On the very same day, he had sent Pappu for medical examination. He further stated that FIR in Crime No.78/08 was registered on the information given by the Appellant and he also admitted that prior to lodging of FIR, he did not go to see the dead body of Jainuddin (father of appellant Pappu @ Matiuddin). In the police case diary, he has mentioned that he had seen the dead body of Imam Baksh in Bhander Hospital and Jameel has been taken to Gwalior and he too has expired. The family members of the complainant party were chanting slogans which is mentioned in the case diary. He further stated that no family members of Imam Baksh had lodged any Dehati Nalishi at the time when he was in the hospital. Nobody had informed in the hospital that who had killed Imam Baksh and Jameel. He was posted in Bhander Police Station on 20.04.2008 and the incident took place on the very next date. The counter copy of the FIR in Crime No.79/08 was sent to JMFC, Bhander on 22.04.2008. Lash Panchnama of dead body of Imam Baksh was prepared on 22.04.2008 at about 07:00 AM in the courtyard of Government Hospital, Bhind which is Ex. P/9. Lash Panchnama of dead body of Jameel was prepared at 07:45 AM. He 27 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) denied that he did not go to the spot in the night of 21st. When he reached to the spot, it was already dark and he did not verify that what incriminating articles were lying there and, therefore, he decided to secure the spot. The spot map was prepared on 22.04.2008 at about 11:30 in the morning. One .315 bore country made pistol was seized from the spot. He denied that 2 country made pistols were seized from the spot. He stated that in the spot map only one country made pistol was mentioned and thereafter one more country made pistol was recovered from a different place which was seized separately. The second country made pistol was recovered after the spot map was prepared but he could not disclose the distance at which the second country made pistol was lying. He had seized two fired rounds, two fired cartridges, three fired rounds from the spot and had also seized one .315 bore bullet. The shop of Imam Baksh and Basheer are adjoining to each other which is also reflected in the spot map. He had also mentioned at Sr.No.6 that the shop of Basheer is adjoining to the shop of Imam Baksh and there was a gunshot mark on the shutter and a bullet was recovered from the carton lying inside the shop which was seized separately. Since there was no hole in the shutter therefore he did not verify as to how bullet reached inside the shop of Basheer. The house of Imam Baksh is situated in Sitola Colony. However, there is a residential accommodation above the shop of Imam Baksh and another house is situated in Sitola Mohalla. He also admitted that when blood stained and plain earth were seized, 28 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) the dead body of Imam Baksh was not there but he was informed by Ali Baksh that at that place the dead body of Imam Baksh was lying. He denied that he has lodged the false FIR at the instance of Ali Baksh. On 21.04.2008 Pappu @ Matiuddin was admitted in the Gwalior hospital and he was discharged on 24/04/2008 and during his hospitalization one police personnel was deputed because there was already a perpetual warrant of arrest against him. Since he had already recorded the statement of Pappu, therefore he did not record the statement in the hospital. However, the record of his medical treatment was taken on record. Pappu @ Matiuddin was arrested on 25/04/2008 at 07:00AM in the police station and nothing was seized at the time of his arrest. He denied that no country made pistol was seized behind the Gumti at the instance of Pappu @ Matiuddin. He denied that no country made pistol was seized and he had made false seizure memo in the police station. He had entered the concerning country made pistol in the Muddemal register but admitted that copy has not been produced. He denied that he did not seize two country made pistol behind the Gumti but thereafter he clarified that only one country made pistol was seized vide seizure memo Ex.P/13. Two country made pistols were seized from the spot and one country made pistol was seized at the instance of Pappu. He had sent the requisition through Superintendent of Police to District Magistrate, Datia for grant of sanction for prosecution. The sanction was received. For obtaining sanction for prosecution he had sent two country made 29 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) pistols of .315 bore, one round, six cartridges, one country made pistol which was seized from the spot and another country made pistol which was seized at the instance of appellant Pappu and one country made pistol was not sent. It is further submitted that for FSL examination he sent the country made pistol which was seized at the instance of the appellant. The country made pistol which was seized at the instance of the appellant is article A. He had seized the country made pistol at the instance of Pappu and had obtained signatures of Pappu @ Matiuddin as well as witnesses namely, Nawab Khan and Balkishan. Article B is the country made pistol which he has seized on 22/04/2008 from the spot and the paper slip was affixed containing the signatures of Ali Baksh and this witness. Jamal Khan and Hamid Khan had also signed as witnesses. The cartridge which was found stuck in article B is article C which is a fired cartridge. In all three fired cartridges of .315 bore were seized which are article D, E and F. Two fired cartridges of .315 bore were seized which were not disfigured and they are article G and H. Article I is a missed fire of .315 bore round and article J is a .315 bore bullet which was found stuck in carton kept in the shop of Imam Baksh. Article B which is a . 315 bore country made pistol is not in a working condition. He also admitted that during investigation he had found that the presence of accused Balle and Lalu was found in HPCL factory Bhandana. He had also stated that on earlier occasion also, in police station Karera these persons were detained on 11/04/2008 and they have committed 30 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) an offence in a most planned manner and accordingly an offence under Section 120-B of IPC was added in respect of Balle and Lalu. He denied that this fact was told to him by any witness.
33. Hotam Singh Narwariya (PW-13) has stated that he is an Armourer and he had examined two country made pistols of .315 bore, one round of .315 bore, six empty cartridges of .315 bore, one bullet of .315 bore which were brought to him in a sealed condition. He had checked both the country made pistols and had found that they were in a working position. This witness has also given the details of the marks present on the fired cartridges. In cross- examination he has stated that all the articles were brought in a sealed condition. It is his duty to verify as to whether the weapons are in working condition or not and he has taken the training for testing the arms. He denied that on earlier occasion he had never tested the country made pistol or the cartridges and he denied that he has prepared the false report.
34. Madhav Rao Shinde (PW-14) is working as Assistant Grade-3 and is posted in the office of District Magistrate, Datia. He has stated about the sanction for prosecution granted by District Magistrate, Datia.
35. Mohd. Muslim Khan (DW-1) has spoken about the presence of co-accused Lalu and Balle at HPCL Mandana.
Whether there was light on the spot at the time of incident
36. It is submitted by the Counsel for the Appellant that there was 31 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) no sufficient light to witness the incident.
37. Heard the learned Counsel for the Appellant.
38. The incident had taken place on 21-4-2008, and it is a matter of common knowledge, that at about 7-7:30 P.M., during the during the month of April, it is not complete dark. Further, the incident had not taken place at an isolated place. The incident took place outside the shop of the deceased. The witnesses have stated that gas Lantern was burning. Further, the gun shots were caused from a very close range as blackening and tattooing was found around the wounds of the deceased Imambaksh and Jameel. Further it has come on record that the appellant as well as the deceased and witnesses were known to each other and they had an enmity. The complainant party was facing trial for offence under Section 307 of IPC on the report of accused party and vice versa. Further, Pappu @ Matiuddin had also lodged a report that 11 persons have killed his father Jainuddin. Thus, it is clear that there was sufficient light on the spot. Further more, it has come on record that Bhander is a rural area. The eyes of villagers are already accustomed to poor light. The Supreme Court in the case of Ramesh Vs. State reported in (2010) 15 SCC 49 has held as under ;
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 32 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) 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.
39. Thus, it is held that there was sufficient light on the spot and the witnesses had full opportunity to see and identify the accused persons.
Related witnesses
40. It is submitted by the Counsel for the Appellant, that all the witnesses are related and interested witnesses.
41. The Supreme Court in the case of Rupinder Singh Sandhu v. State of Punjab, reported in (2018) 16 SCC 475 has held as under :
50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits.
42. The Supreme Court in the case of Shamim Vs. State (NCT of Delhi) reported in (2018) 10 SCC 509 has held as under :
9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.............
43. The Supreme Court in the case of Rizan v. State of Chhattisgarh, reported in (2003) 2 SCC 661 has held as under :
6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect 33 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In Dalip Singh v. State of Punjab it has been laid down as under: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25) "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 34 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
10. Again in Masalti v. State of U.P. this Court observed:
(AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
11. To the same effect is the decision in State of Punjab v.
Jagir Singh and Lehna v. State of Haryana.
44. Why a "related witness" would spare the real culprit in order to falsely implicate some innocent person? There is a difference between "related witness" and "interested witness". "Interested witness" is a witness who is vitally interested in conviction of a person due to previous enmity. Further more, why a related witness would spare the original assailant. Even according to the defence, the Appellant Pappu could have inflicted the injuries to himself. The "Interested witness" has been defined by the Supreme Court in the case of Mohd. Rojali Ali v. State of Assam, reported in (2019) 19 SCC 567 as under :
13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested"
witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the 35 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani v. Rayapati Venkat Reddy). Recently, this difference was reiterated in Ganapathi v. State of T.N., in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki:
(Ganapathi case, SCC p. 555, para 14) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v.
State of Punjab, wherein this Court observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person."
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or 36 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) thrown out solely because it comes from the mouth of a person who is closely related to the victim."
45. Thus, the testimony of Alibaksh (P.W.1), Nazeer Khan (P.W.4), Islam (P.W.5), Rashid @ Mouzu (P.W.8), Bashir Khan (P.W.10) and Shakeel Khan (P.W.11) cannot be discarded only on the ground that they are related witnesses.
46. The presence of the witnesses on the spot is also natural. The incident took place in front of the shop of the deceased persons. The shops of the witnesses are situated at nearby places. The witnesses have specifically stated that their family is joint and reside in a same house with common kitchen. Some of the witnesses have specifically stated that after closing down their shop, they used to go the shop of Imambaksh as he is the Karta of their family. This conduct of the witnesses is not unnatural. Basheer (P.W. 10) is one of the eye- witness. From the MLC of Jameel, which was prepared at 7:40 P.M.,Ex. P.16, the name of attender has been mentioned as Basheer (P.W.10). The incident had taken place at around 7-7:30 P.M. The fact that the eye-witnesses took the injured to the hospital Bhander, clearly show that they were present on the spot. Thus, where the presence of the eye-witnesses on the spot is un-doubtful, then merely because they are related to the deceased is not sufficient to discard their testimony.
Motive
47. It is submitted that there was an old enmity between the parties. 37
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) In fact on the report of Pappu @ Matiuddin, the complainant party was facing criminal trial for offence under Section 307 of IPC and accordingly, they went to the floor mill of the father of Appellant and were insisting that the accused party must compromise the matter and when it was not accepted by Pappu @ Matinuddin, then not only his father Jainuddin was killed but gun shot injuries were also caused to Pappu @ Matinuddin.
48. Heard the learned Counsel for the parties.
49. The case of the prosecution is that Pappu @ Matiuddin, Phulle @ Kabuluddin and other co-accused persons were also facing trial for offence under Section 307 of IPC for causing injuries to Imambaksh etc. According to the prosecution case, Pappu @ Matiuddin, Phulle @ Kabuluddin along with other co-accused persons, went to the shop of Imambaksh and Pappu @ Matinuddin challenged Imambaksh to enter into a compromise in 307 IPC matter and fired at him causing two gun shot injuries to Imambaksh and when Jameel came to save his father, then Phulle @ Kabuluddin fired at him causing gun shot injuries to him. According to Alibaksh (P.W.1), the trial of 307 of IPC was fixed for 25-4-2008 and the incident took place on 21-4- 2008. This aspect of the matter was not challenged by the Appellant. Thus, it is clear that both the parties were facing trials for making an attempt on the life of each other and the trial of the accused persons pending under Section 307 of IPC was fixed for examination of Imambaksh on 25-4-2008 and accordingly, the Appellant and other 38 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) co-accused persons went to the shop of Imambaksh for pressurizing him to enter into a compromise.
50. Enmity is a double edged weapon. If a person can be falsely implicated on account of enmity, then enmity also provides a reason for committing offence.
51. The Supreme Court in the case of State of A.P. v. Dr M.V. Ramana Reddy, reported in (1991) 4 SCC 536 has held as under :
16....But as has often been commented bitter animosity can be a double edged weapon which may be instrumental for deliberate false involvement or for the witnesses wrongly inferring and strongly believing (without having actually witnessed it) that the crime must have been committed by the rival group. This possibility has to be kept in mind while evaluating the prosecution evidence regarding the involvement of accused 1 and his companions in the commission of the crime.
52. The Supreme Court in the case of Anil Rai Vs. State of Bihar reported in (2001) 7 SCC 318 has held as under :
18.......The admitted position of law is that enmity is a double-edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity, held to be a double-edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime.
Testimony of eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eyewitnesses or 39 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime, cannot be made a basis to discard or reject the testimony of the eyewitnesses, the deposition of whom is otherwise consistent and convincing.
53. The Supreme Court in the case of Sushil Vs. State of U.P. reported in 1995 Supp (1) SCC 363 has held as under :
8....It goes without saying that enmity is a double-edged weapon which cuts both ways. It may constitute a motive for the commission of the crime and at the same time it may also provide a motive for false implication. In the present case there is evidence to establish motive and when the prosecution adduced positive evidence showing the direct involvement of the accused in the crime, motive assumes importance. The evidence of interested witnesses and those who are related to the deceased cannot be thrown out simply for that reason. But if after applying the rule of caution their evidence is found to be reliable and corroborated by independent evidence there is no reason to discard their evidence but it has to be accepted as reliable.
We shall, therefore, examine the prosecution evidence applying the said rule of caution.
54. Further more, this Court by a separate judgment passed in Cr.A. No. 246/2010 which was heard simultaneously, has held that in fact the incident of murder of Imambaksh and Jameel took place prior to the murder of Jainuddin (father of the Appellant) and thereafter, in order to create a false defence, the Appellant killed his own father namely Jainuddin. Thus, it is held that the testimony of witnesses cannot be thrown on the ground of enmity but in fact Imambaksh and 40 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) Jameel were the victims of enmity who unfortunately lost their lives. Weapon seized from the possession of Pappu @ Matiuddin
55. The police had seized a .315 bore country made pistol from Pappu @ Matiuddin vide seizure memo Ex. P. 13. The said country made pistol was sent for Forensic Examination. As per F.S.L. Report, Ex. P.24, evidence of firing was found and so far as the fired cartridges are concerned, in absence of percussion cap, the same could not be matched with the country made pistol seized from the possession of Pappu @ Matiuddin. It is submitted that the FSL report, Ex. P.24, doesnot give any conclusive evidence to show that the empty cartridges seized from the spot,were fired from the country made pistol seized from the possession of Pappu @ Matiuddin, therefore, the weapon of offence was not seized which gives deep dent to the prosecution story.
56. Heard the learned Counsel for the Appellant.
57. Even if it is held that the FSL report, Ex. P.24 doesnot give conclusive evidence to support the prosecution case, then at the most it can be said that the weapon of offence was not recovered.
58. It is suffice to mention here that recovery of weapon is not essential to prove the guilt of the accused. In case if the accused succeeds in hiding the weapon of offence, and police fails to recover the same, then he cannot take advantage of his own cleverness. The Supreme Court in the case of Rakesh Vs. State of U.P. reported in (2021) 7 SCC 188 has held as under :
41
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010)
12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non.
59. The Supreme Court in the case of Gulab Vs. State of U.P. by order dated 9-12-2021 passed in Cr.A. No. 81/2021 has held as under:
17. The deceased had sustained a gun-shot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution.....
60. The Supreme Court in the case of Krishna Gope v. State of Bihar, (2003) 10 SCC 45 has held as under :
8. Learned counsel further pointed out that the country-
made firearm alleged to have been used by the appellant was not recovered by the police and the same was not sent to the police station. The learned counsel submitted that the investigation was not properly done and that the appellant is entitled to the benefit of doubt. In our view, this plea is not tenable. The house of the appellant was searched immediately after the incident, but the police could not recover the weapon of offence from his house. It appears that the appellant had succeeded in concealing the weapon before the police could search his house. In our opinion, the fact of non-recovery of the weapon from the house of the appellant does not enure to his benefit.
Non-Examination of Independent witnesses
61. It is contended by the Counsel for the Appellant that although the incident had taken place at a public place, but no independent 42 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) witness was examined, which creates a doubt on the correctness of the related witnesses.
62. Heard the learned Counsel for the Appellant.
63. Now a days, the independent witnesses hesitate to come forward. The Supreme Court in the case of Ambika Prasad v. State (Delhi Admn.), reported in (2000) 2 SCC 646 has held as under :
12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW
7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh this Court observed: (SCC pp.
691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
64. No other argument is advanced by the Counsel for the parties. 43
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010)
65. Thus, after considering the evidence of prosecution witnesses, this Court is of the considered opinion, that the prosecution has succeeded in establishing that the Appellant was the member of Unlawful Assembly and went to the shop of Imambaksh and tried to pressurize him to enter into a criminal case which was pending under Section 307 of IPC and fired two gun shots causing injuries on chest and abdomen of deceased Imambaksh who died on the spot, and co- accused Phulle @ Kabuluddin caused gun shot injuries to Jameel, when he tried to intervene in the matter. Accordingly, the Appellant is held guilty for offence under Section 302,302/149 of IPC for causing murder of Imambaksh and Jameel. His conviction under Section 148 of IPC and under Section 25 and 27 of Arms Act is also upheld.
66. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment, therefore, the sentence awarded by the Trial Court doesnot call for any interference.
Whether the sentence awarded in this case i.e., S.T. No. 84/2008 and S.T. No. 125/2008 can be made concurrent.
67. The Counsel for the Appellant has not argued on this question. However, in order to do complete justice, this Court would consider the said aspect also.
68. Section 427 of IPC reads as under ;
427. Sentence on offender already sentenced for another 44 Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) offence.-- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
69. The situation in hand is duly governed by Section 427(2) of Cr.P.C. and a person who is already underoing a sentence for life is sentenced on a subsequent conviction for Life, then the subsequent sentence shall run concurrently with such previous sentence.
70. The Supreme Court in the case of O.M. Cherian v. State of Kerala, reported in (2015) 2 SCC 501 has held as under :
13. Section 31(1) CrPC enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other.
Difficulties arise when the courts impose sentence of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the court does not direct that the sentences shall run concurrently, then the sentences will run consecutively by operation of Section 31(1) CrPC. There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter undergoing the rest of the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. 45
Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010) In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, the court has to direct those sentences to run concurrently.
71. The judgment in the present case was pronounced on 23-4- 2010, whereas the judgment in S.T. No. 125/2008 was pronounced on 9-3-2010.
72. Thus, it is directed that the sentence awarded in the present case shall run concurrently with the sentence awarded in S.T. No. 125/2008 awarded by 2nd Additional Sessions Judge (Fast Track) Datia.
73. However, it is made clear that in the light of judgment passed by Supreme Court in the case of Sharad Hiru Kolambe v. State of Maharashtra, reported in (2018) 18 SCC 718, the default sentence shall run consecutively.
74. Ex-Consequenti, the judgment and sentence dated 23-4-2010 passed by Special Judge/Add. Sessions Judge, Datia in S.T. No.84 of 2008 is hereby Affirmed.
75. The Appellant is in jail. He shall undergo the remaining jail sentence.
76. A copy of this judgment be immediately provided to the Appellant free of cost.
77. The record of the Trial Court be send back immediately along with copy of this judgment for necessary information and compliance.
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Pappu @ Matiuddin Vs. State of M.P. (Cr.A. No. 401 of 2010)
78. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2022.04.07 19:05:24 +05'30'