Miyan John @ Sheikh Mohd. Israil vs The State Of Madhya Pradesh on 18 November, 2022

[Cites 43, Cited by 47]

Madhya Pradesh High Court

Miyan John @ Sheikh Mohd. Israil vs The State Of Madhya Pradesh on 18 November, 2022

Bench: Sujoy Paul

                    1

IN THE HIGH COURT OF MADHYA PRADESH : AT JABALPUR
                   BEFORE
            SHRI JUSTICE SUJOY PAUL
                        AND

        SHRI JUSTICE PRAKASH CHANDRA GUPTA

            CRIMINAL APPEAL NO.1735/2014
Between:-

  MIYAN JOHN @ SHEIKH MOHD. ISRAIL
  S/O. LATE MOHD. ISMILE, AGED ABOUT
  69 YEARS, R/O. HOUSE NO.18, PATRA
  ROAD    NEAR    BARKHEDI    MASZID
  JAHANGIRABAD,      DISTRICT-BHOPAL
  (M.P.)
                                       ...APPELLANT

(BY SHRI MANISH DATT - SENIOR COUNSEL WITH SHRI
SIDDHARTH DATT, ADVOCATE)

AND

  STATE OF MADHYA PRADESH,
  THROUGH POLICE STATION TALAIYA,
  DISTRICT BHOPAL (M.P.)
                                       ..RESPONDENT

(BY SHRI AKHILENDRA SINGH- GOVERNMENT ADVOCATE
FOR THE STATE)

            CRIMINAL APPEAL NO.1941/2014
Between:-

1. ABID ALI KHAN S/O. DR. WAJID ALI,
                     2

   PRESENTLY AGED ABOUT 86 YEARS,
   R/O. HOUSE NO.1, GALI NO.2, NEAR
   KMC LODGE P.S. MANGALWARA,
   DISTRICT-BHOPAL (M.P.) (DEAD)
2. RAGIQ KHAN S/O. BASIR KHAN, AGED
   ABOUT    24   YEARS,      PRESENTLY
   RESIDING AT HOUSE OF CHAND BHAI,
   GANDA NALA P.S. TALAIYA, DISTRICT-
   BHOPAL (M.P.)
3. ILIYAS KHAN @ ACHCHHI S/O. ABID
   ALI, PRESENTLY AGED ABOUT 24
   YEARS, R/O. HOUSE NO.1, GALI NO.2
   NEAR KMC LODGE P.S. MANGALWARA,
   DISTRICT BHOPAL (M.P.)
4. FAZIL KHAN S/O. ABID ALI KHAN,
   PRESENTLY AGED ABOUT 23 YEARS,
   R/O. HOUSE NO.1 GALI NO.2, NEAR
   KMC LODGE, P.S. MANGALWARA,
   DISTRICT-BHOPAL (M.P.)
                                         ...APPELLANT

(BY SHRI ADITYA ADHIKARI- SENIOR COUNSEL WITH SHRI
SATISH CHATURVEDI -ADVOCATE FOR APPELLANT NO.2.

BY SHRI SANJAY MALVIYA - ADVOCATE            FOR   THE
APPELLANTS NO.3 AND 4.)


AND

 STATE OF MADHYA PRADESH,
 THROUGH POLICE STATION TALAIYA,
 DISTRICT BHOPAL (M.P.)
                                         ..RESPONDENT

(BY SHRI AKHILENDRA SINGH - GOVERNMENT ADVOCATE
FOR THE STATE )
                                  3

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       Reserved on                            :       02/11/2022
       Delivered on                           :       18/11/2022
--------------------------------------------------------------------------------------
Prakash Chandra Gupta, J. :-

                                     JUDGMENT

This judgment will dispose of Criminal Appeal No.1735/2014 and Criminal Appeal No.1941/2014. Since the court below passed the impugned judgment dated 24.06.2014, which are arising of the same incident, on the joint request of the parties, these appeals were analogously heard and decided by this common judgment.

2. These criminal appeals are directed against the judgment dated 24.06.2014 passed in Sessions Trial No.398/2010 passed by IVth Additional Sessions Judge, Bhopal. The Court below convicted the appellant Miyan John (Mia Jaan) (Criminal Appeal No.1735/2014) under section 147 of the IPC and sentenced to undergo R.I for six months, under section 148 of the IPC and sentenced to undergo R.I. for 1 year, under section 302/149 of the IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- and under section 25(1-B)(b) of the Arms Act and sentenced to undergo R.I. for six months and fine of Rs.500/-, with default stipulation. The Court below convicted appellants (in Criminal Appeal No.1941/2014) under section 147 of the IPC and sentenced to undergo imprisonment of 6 months, under section 148 of the IPC and sentenced to undergo imprisonment of 1 year, under section 4 302/149 of IPC and sentenced to undergo life imprisonment and fine of Rs.1000/-, appellants No.1, 2 and 4 are convicted under section 25(1-B)

(b) of the Arms Act and sentenced to undergo R.I. for a term of 6 months and fine of Rs.500/-, appellant No. 3 is convicted under section 25(1-B)

(a) of the Arms Act and sentenced to undergo R.I. for 1 year and fine of Rs.1,000/-, under section 27 of the Arms Act and sentenced to undergo R.I.for terms of 3 years and fine of Rs.500/-, with default stipulation to each of the appellants.

3. The prosecution story in short is that on 26/03/2010 deceased Arif alongwith his wife Farzana (PW-7), Mohammad Arshad (PW-6) and son Asif (aged 5 years) went to dental clinic of Dr. Naziya (PW-1) at Ginnouri Road, Police Station Talaiya, Distt.- Bhopal for dental treatment of Asif. At about 08:15 PM after treatment of his son Asif, they came out of clinic then accused persons Noor Ali Khan (died), Iliyas Khan alias Achchhi and Fazil Khan came there by motorcycle from Hathikhana and accused persons Abid Ali Khan (died), Rafiq Khan, Mansoor Ali Khan (acquitted), Mia Jaan Alias Sheikh Mohammad Israil came from Mazar by motorcycle. Accused Noor Khan was having a katta, Iliyas Khan alias Achchhi was having a pistol, Fazil Khan was having a sword and Abid Ali Khan, Rafiq Khan, Mansoor Ali Khan were having knife in their hand respectively. The accused persons had started firing from out side of the clinic.

4. Further the prosecution story is that the accused persons with intent to kill the deceased Arif and his wife Farzana (PW-7) from the aforementioned weapons gave blows upon them, because of which the 5 deceased sustained injuries on his neck, stomach, hands, feet, back and waist, and Farzana (PW-7) sustained injury on both of her hands. Deceased Arif and Farzana (PW-7) in order to save themselves from the assailants went inside the clinic. Then accused persons also entered in the clinic and fired with katta and assaulted with sword and knives on deceased Arif. At the time of incident Mohammad Irshad (PW-4) and Shera (PW-3) were also present there. Police came soon after the incident. Mohammad Arshad (PW-6) took the deceased and injured Farzana (PW-7) in a vehicle i.e Magic Van to hospital. At 08:50 PM Constable Omprakash (PW-11) brought the injured persons before Dr. Yash Saraf (PW/ 16). After examination it was found by Dr. Yash Saraf (PW-16) that injured Arif was dead. Dr. Yash Saraf (PW-16) also examined Farzana (PW-7) and gave MLC report (Ex.P/34). On the same day at 9.30 pm Mohammad Arshad (PW-6) gave information of the incident to Police Station Talaiya. Assistant Sub-Inspector V.K. Soni (PW-17) wrote an FIR (Ex.P/9) against the accused persons. Dr. Yash Saraf (PW-16) also sent telephonic message through his office attendant Yashwant Singh to Police Station Talaiya and on the basis of aforementioned telephonic message Head Constable Ramgarib Tripathi (PW-15) lodged a Marg intimation (Ex.P/30) on the same day at 09:45 PM.

5. During investigation ASI V.K. Soni (PW-17) proceeded to the place of incident, he also intimated Senior Scientific Officer, Scene of crime Mobile Unit (FSL) Police Control Room, Bhopal, O.P. Dixit (PW-

20), therefore, O.P. Dixit (PW-20) also proceeded to the place of 6 incident. O.P. Dixit (PW-20) inspected the spot and prepared a spot map (Ex.P/37). He also prepared a report (Ex.P/36) and gave it to the Investigating Officer.

6. ASI V.K. Soni (PW-17) inspected the spot and prepared spot map (Ex.P/10) at the instance of Mohammad Arshad (PW-6). He seized sample of blood stained soil and plain soil from the place of incident. A country-made pistol (Katta) from outside of the reception counter of the clinic. A pistol from doctor's room, lying on the floor. An empty cartridge was lying on the floor. A small fired bullet lying outside the room of clinic at the roadside. A gent's sleeper, a pair of lady's sleeper, a lady's purse, a piece of skin along with hair, a broken bangle whose pieces were lying in doctor's room, a plain piece of glass and a blood stained piece of glass in doctor's room, a fired bullet partially deformed lying on the floor of doctor's room. He sealed and seized them all vide seizure memo (Ex.P/32) on 26/03/2010 at 10:10 PM. ASI V.K. Soni (PW-17) seized a mobile phone, two motorcycles bearing number MP- 05-Y-9586; and MP-04-NV-2175 respectively, from the spot, vide seizure memo (Ex.P/33). He inspected dental clinic of Dr. Naziya (PW-

1) namely Dentisoft Dental Clinic, Ginnouri Road, Bhopal and found that partition glass wall was broken, equipments of the clinic were damaged, there were blood stains on the wall of clinic and there was a pool of blood on floor and prepared Nuksani Panchnama (Ex.P/3).

7. On 27/03/2010 Sub-Inspector K.S.Singh (PW-21) went to mortuary in Gandhi Medical College, Bhopal. He gave notice (Ex.P/5) to the witnesses and prepared a lash panchnama (Ex.P/6) of deceased 7 Arif Khan. He sent the body of deceased for post-mortem. Dr. Murli Lalwani (PW-19) conducted the autopsy and gave a post-mortem report (Ex.P/35). During the post-mortem Dr. Murli Lalwani (PW-19) swab and tissue were collected from the place near the injuries inflicted upon by the means of firearm, viscera were preserved and sealed. Clothes of the deceased and the bullet found inside the injury were sealed and handed over to the concerning Constable for further examination. Head Constable Lakhan Lal (PW-12) seized the aforementioned sealed packets from Constable Fahim Khan, produced by him from the hospital, vide seizure memo (Ex.P/15).

8. Assistant Sub-Inspector K.S. Singh (PW-21) on 28/03/2010 arrested the accused person Mia Jaan alias Sheikh Mohammad Israil and Abid Ali Khan vide arrest memo Ex.P/38 and Ex.P/39 respectively. On 31/03/2010 he arrested accused person Iliyas alias Achchhi, Rafiq alias Raqeeb, and Fazil Khan and prepared arrest memo (Ex.P/25-27 respectively), and on 02/04/2010, he arrested Mansoor Ali Khan and prepared arrest memo (Ex.P/40). On 29/03/2010 he interrogated the accused persons Mia Jaan alias Sheikh Mohammad Israil and Abid Ali Khan and prepared disclosure memo Ex.P/11 and Ex.P/12 respectively. On the same day he seized 2 knives at the instance of Abid Ali and Mia Jaan alias Sheikh Mohammad Israil and prepared seizure memo Ex.P/13 and Ex.P/14 respectively. On 31/03/2010 he interrogated with the accused persons, Iliyas alias achchhi, Fazil Khan and Rafiq and prepared disclosure memo Ex.P/16, 17 and 18 respectively. On 02/04/2010 he 8 seized 2 knives at the instance from accused Rafiq and Fazil Khan and prepared seizure memo Ex.P/19 and Ex.P/20 respectively.

9. ASI K.S. Singh (PW-21) on 31/03/2010, seized a banyan from Fazil Khan, blood stained T-shirt and jeans pant from Rafiq Khan, a T- shirt and a jeans pant from Iliyas alias achchhi, a motorcycle bearing number- MP-04-ME-5812 from Fazil and prepared seizure memo Ex.P/21, 22, 23 and 24. On 03/04/2010 he interrogated the accused Mansoor Ali Khan and prepared disclosure memo (Ex.P/28) on the same day, he seized a knife at the instance of accused Mansoor Ali Khan and prepared a seizure memo (Ex.P/29). Though on the basis of disclosure memo of accused Iliyas alias achchhi pistol could not be recovered because the pistol had been recovered earlier from the place of incident. District Magistrate, Bhopal, after examination of report of SP Bhopal, case diary and arms, issued order of prosecution sanction (Ex.P/45) on 22/07/2010.

10. ASI K.S. Singh (PW-21) sent the seized articles to FSL Sagar for chemical examination alongwith letter (Ex.P/42). After examination of articles, FSL report (Ex.P/43, 44 and 46) were received. Statement u/s 161 of CrPC was recorded. On completion of investigation charge-sheet has been filed.

11. Learned trial Court has framed charges against the accused persons. Accused persons have abjured the guilt and sought trial.

12. The prosecution in order to prove the case has examined eye- witnesses, Farzana (PW-7), who is wife of the deceased, Mohammad 9 Arshad (PW-6), who is a nephew of the deceased, Shera (PW-3), Mohammad Irshad (PW/-4), Dr. Naziya (PW-1) and other witnesses- Dr.S.M. Aagaznur (PW-2), Nizamuddin (PW-5), Samiul Hasan (PW-8), Shahzad Khan (PW-9), Rafiq (PW-10), Omprakash (PW-11), Lakhan Lal (PW-12), Abdul Sajid (PW-13), Mohammad Rizwan (PW-14), Ram Garib Tripathi (PW-15), Dr. Yash Saraf (PW-16), V.K. Soni (PW-17), Dr. Riddhivardhan (PW-18), Dr. Murli Lalwani (PW-19), O.P. Dixit (PW-

20), K.S. Singh (PW-21), Sarbat Akhtar Khan (PW-22) and Harish Sheetlani (PW-23).

13. Accused persons have been examined under section 313 of the Code of Criminal Procedure, 1973 and have taken defence that accused persons have not committed any offence and have been falsely implicated in the case. Accused Mia Jaan has taken further defence that at the time of incident, he went to the Masjid situated at Nayi Basti Mandi Bhopal, to offer Isha Namaz along with Abdul Waheed Khan, Siddique Mohammad Khan and other Namazis. After offering Namaz he went for dinner along with Siddique Mohammad Khan to the House of Abdul Waheed Khan. He returned to his house at 11:00 PM. He also took defence that he is aged about 70-71 years and is suffering from urinary problem since 1980-1981. His angiography was done in 2005. He is also suffering from cancer and blood pressure for which his treatment is being carried on in Tata Hospital. He is unable to walk properly.

14. Accused Rafiq further took defence that on the date of incident he went for work along with his co-worker. He is completely unaware 10 about the incident. Co-accused Abid Ali Khan further had taken defence that, the police called him for interrogation when he had gone to offer Namaz. He is suffering from blood pressure and sugar and he is aged about 85 years. Accused Mansoor Ali Khan had taken defence that there was fracture in his left leg and he was treated in jail after arrest. Accused Fazil Khan further had taken defence that he is truck driver, his brother Noor Ali Khan was not in Bhopal on the date of incident. Similarly accused Iliyas alias Achchhi took defence that the complainant has also falsely implicated him previously and he has been acquitted in those cases.

15. At the time of trial, the co-accused Noor Ali had died which led to abatement of trial against him. The learned trial Court after hearing the parties acquitted accused Mansoor Ali from all the charges and convicted and sentenced the appellants/ accused persons for the offences as aforementioned. During pendency of the appeal, appellant accused Abid Ali Khan has died.

16. Learned counsel for the appellants (Appeal No. 1941/2014) submits that as alleged by the prosecution, that there are six eye- witnesses of the incident namely Dr. Naziya (PW-1), Shera (PW-3), Mohammad Irshad (PW-4), Mohammad Arshad (PW-6) and Farzana (PW-7). Dr. Naziya (PW-1), Shera (PW/ 3) and Mohammad Irshad (PW-

4) have not supported the case of prosecution and they were declared hostile by the prosecution. The trial Court has relied on the statement of Mohammad Arshad (PW-6) and Farzana (PW-7) as eye-witnesses respectively. Mohammad Arshad (PW-6) and Farzana (PW-7) were not 11 present at the time of incident on spot and they have not seen the incident, they have been falsely arranged as eye-witnesses. Both the witnesses are close relative of the deceased and there are so many omissions and contradictions in their statement. Farzana (PW-7) has not stated anything about overtact of accused Rafiq. There was crowd on the spot at the time of incident, but no independent witnesses were examined in the case. The complainant has falsely implicated the accused persons due to prior enmity. ASI K.S. Singh (PW-21) accepted that he wrote statement of witnesses in his handwriting but thereafter he typed the statement and then he destroyed the handwritten statement. Seized weapons were not sent to the doctor for his opinion that whether the injuries which were present on the body of the deceased could be caused by alleged weapons or not. Therefore the offence is not proved against the appellants beyond reasonable doubt. He relied on Eknath Ganpat Aher And Ors. V. State of Maharashtra And Ors. [2010] 6 SCC 519; Harjinder Singh V State of Punjab (2004) 11 SC 253, Ishwar Singh V State of Uttar Pradesh, AIR 1976 SC 2423 and Maruti Rama Naik V State of Maharashtra (2003) 10 SCC 670.

17. Counsel for the appellants further submits that cloth of the appellant which they were wearing on the 5th day of the incident was the same one which they were wearing at the time of incident which is contrary to human behaviour and unnatural. Blood stains on the weapons recovered from the accused persons could not be linked to the deceased due to no conclusive grouping. He relied on Khalil Khan V 12 State Of M.P. (2003) 11 SCC 19 and State Of M.P. V. Nisar (2007) 5 SCC 658.

18. Learned counsel for the appellant (Appeal No. 1735/2014) submits that overtact of the appellant has not been clarified by the witnesses in their statement and mere presence of a person on the spot at the time of incident, does not make him a member of unlawful assembly. He relied on Amrika Bai v. State of Chhattisgarh, (2019) 4 SCC 620, Vijay Pandurang Thakre v. State of Maharashtra, (2017) 4 SCC 377, Kuldip Yadav and Others v. State of Bihar, (2011) 5 SCC 324, Baladin and Others v. State of U.P., AIR 1956 SC 181 and State of Punjab v. Sanjiv Kumar & Ors., AIR 2007 SC 2430.

19. Shri Datt, learned Senior Counsel further submits that as per case of prosecution it has not been alleged that the appellant came with any weapon but Farzana (PW-7) stated in her Court statement that the appellant Mia Jaan alias Sheikh Mohammad Israil was carrying a knife. Therefore, it is clear that Farzana (PW-7) was trying to make a new case against the appellant. He relied upon Bhagirath v. State of M.P, AIR 1976 SC 975 and Ugar Ahir and others v. State of Bihar, AIR 1965 SC

277. Shri Datt, learned Senior Counsel further submits that Mohammad Arshad (PW-6) and Farzana (PW-7) are interested and chance witnesses, there are so many contradictions and omissions in their statements, hence their statement is not reliable. Learned counsel has relied upon Mst. Dalbir Kaur and others v. State of Punjab, AIR 1977 SC 472, Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Ladha Shamji Dhanani and others v. State of Gujarat, 1993 13 Supp (1) SCC 20 and Guli Chand and others v. State of Rajasthan, AIR 1974 SC 276.

20. Shri Datt, learned Senior Counsel submits that copy of the FIR has not been sent to the Magistrate, hence prosecution case is doubtful. The counsel has relied upon Thanedar Singh v. State of M.P., (2002) 1 SCC 487 and Arjun Marik and others v. State of Bihar, 1994 Supp (2) SCC

372. Weapons seized from the open place and immediate after the seized weapons were not sent for chemical examination, proper sealing and custody is not proved by the prosecution, hence, seizure of weapons is not reliable. The counsel has placed reliance upon Santa Singh v. State of Punjab, AIR 1956 SC 526, Valsala v. State of Kerala, AIR 1994 SC 117 and Sattatiya alias Satish Rajanna Kartalla v. State of Maharashtra, (2008) 3 SCC 210.

21. Per contra learned Government Advocate for the State opposed the submissions and stated that the prosecution has proved its case beyond all the reasonable doubt. The statement of witnesses is also supported by medical evidence, therefore, the learned trial Court has rightly convicted and sentenced the appellants. Hence, no case is made out for interference.

22. No other points is pressed by the counsel for the parties.

23. We have heard learned counsel for the parties and perused the record.

24. Entering upon the merits of the cases, this court thinks it apposite to find out as to whether the death of deceased Arif Khan was homicidal in nature ?

25. Dr. Murli Lalwani (PW-19) has deposed that on 27/03/2010 Constable Suresh Singh and Constable Fahim Khan Police Station Talaiya took body of the deceased for post-mortem. He received body of deceased at 11:50 AM and found that clotted blood was present on face, neck and other parts of body. There were several sharp cut injuries on the body. Rigor mortis was present. He has found following injuries on the body of the deceased:-

"EXTERNAL INJURIES (1) Chop wound on anterolateral aspect of neck, situated 7.2 cm below cheek in middle extending from midline to right side. (11.5 cm & to left side (6.8 cm), total size 18.3 cm deeper on middle area (left side) tailing evident on right side width 3.8 cm, depth 5 cm. Underneath thyroid cartilage, traches and vessels, muscles sharply cut. (2) Incised wound below chin size 3 X 1.5 cm, horizontal 2 cm below chin midline to right side tailing at midline. Margins sharply cut. (3) Incised wound on just above and right to injury no. (2) size 2.3 cm X 1.2 cms.

(4) Chop wound just lateral to injury no. (3) size 4.4 X 4.8 cm ; 3cm deep, right side.

(5) Chop wound on right side neck situated 1 cm infero-lateral to right angle of mandible, size 11.4 cm X 1.9 cm X 5 cm. (6) Superficial lacerated wound 1 cm below injury no. (5), size 6.5 cm X 0.9 cm horizontal in serrated fasion.

(7) Incised wound below injury no. (1), size 4.2 X 1.3 cm horizontal in midline on neck, right end tailing.

(8) Incised stab wound left shoulder 0.6 cm above lateral end of clavicle size 1.7 X 0.8 cm muscle deep.

(9) Incised stab wound left side chest lateral aspect situated 20cm left to midline and 3.8 cm above left nipple size 5.2 X 1.7 X 6 cm obliquely vertical upper end medial and narrow.

(10) Stab wound lateral aspect left side chest situated 13.3 cm left to left nipple and just below it size 2.2 X 1.2 cm vertical, upper and narrow, 4 cm deep, has pierced chest wall.

(11) Stab wound left side anterior aspect of trunk situated 9.6 cm to nipple 4.2 cm left to nipple 2.4 cm deep, pierced chest wall. (12) Stab wound left side abdomen situated 15.3 cm below nipple vertical below, 12.3 cm left to midline, peritoneum deep size 3.8 X 1.2 cm obliquely horizontal upper end medial and narrow. (13) Incised stab wound on right side abdomen situated 13.6 cm below nipple and 9.6 cm right to midline size 4 X 0.9 cm horizontal lateral end narrow and tilted downwards injury directed below upwards anterior to posterior, depth in 5.8 cm.

(14) Incised stab wound just medial to injury no (13) size 4.1 X 0.4 cm, nearly horizontal, lateral end narrow.

(15) Stab wound right side abdomen situated 12.4 cm below nipple, 4.2 cm right to nipple size 3 X 1 cm, entered abdominal cavity. (16) Stab wound right side abdomen situated 14.8 cm vertical below the nipple size 5.7 X 2 cm obliquely, horizontal lateral end below and narrow. Injury directed anterior to posterior, right to left. (17) Stab wound on right side abdomen situated 19.6 cm below nipple and 11.6 cm right to middle size 3.5 X 1 cm, nearly horizontal medial end slightly lower and narrow, direction anterior to posterior, below upward 13 cm deep.

(18) Stab wound right side abdomen situated just below and 9.5 cm right to umbilicus size 3.9 X 0.5 X 6.5 cm, directed below upwards anterior to posterior, horizontal lateral end narrow. (19) Stab wound right side abdomen, lateral aspect situated 17 cm right and 0.5 cm below umbilicus size 3.2 cm X 0.5 cm horizontal, lateral end narrow 2.5 cm deep.

(20) Stab wound 0.5 cm infero-lateral to injury no (19) size 4.2 X 0.6 cm horizontal lateral end narrow, muscle deep. (21) Stab wound right side posterio-lateral aspect of trunk size 2.5 X 0.5 cm obliquely vertical 12.5 cm deep, directed right to left slightly below upwards.

(22) Stab wound right side abdomen laterally situated 20.5 below and 15.5 cm right to right nipple size 3.5 x 0.6 cm obliquely horizontal medial end below and narrow 3.5 cm deep directed below upwards, left to right.

(23) Stab wound right side inguinal region situated 7.5 cm infero-

medial to right anterior superior iliac spine size 3.4 X 0.8 cm, muscle deep, horizontally oblique literal end above and narrow. (24) Stab wound one cm below umbilicus size 3.5 X 0.5 cm, obliquely horizontal, left end above and narrow.

(25) Incised stab wound right thigh upper anterior aspect situated 10.8 cm below right anterior superior iliac spine size 5.4 X 0.7 cm obliquely vertical upper end lateral and narrow, muscle deep. (26) Incised stab wound right thigh laterally nearly at mid 3.7 cm X 1 cm vertical upper end narrow.

(27) Chop wound postero-lateral aspect of right upper limb over and above elbow size 7.5 X 5cm horizontal. Lateral and of humerus above lateral epicondyle sharply cut.

(28) Incised wound lateral aspect of left elbow size 7 X 2.5 cm vertical muscle deep lower end narrow.

(29) Incised stab wound left forearm lateral aspect situated 5 cm below injury no. (28) size 3 X 0.5 X muscle deep nearly horizontal lateral end narrow.

(30) Incised wound left thigh lateral aspect situated 2 cm above upper end of patella size 13.2 X 2.2 cm oblique muscle deep. (31) Incised stab wound left arm postero medial aspect situated 8 cm above medial epicondesle of humerus size 3.4 X 0.5 cm vertical upper end narrow, muscle deep.

(32) Inside stab wound over left cheek size 2.4 cm muscle deep. (33) Superficial incised wound over dorsolateral aspect of right index finger 3.5 cm.

(34) Incised wound on left thumb proximal digit anteromedially size 2 X 0.5 cm.

(35) Stab wound posterior aspect of trunk left side, 1 cm left to midline situated 16.5 cm above gluteal fold (lumbar gluteal fold) size 3.5 X 0.5 cm lateral end lower and narrow.

(36) Incised wound right side posterior aspect of trunk situated 6 cm right to injury number (35) size 1.1 X 0.4 cm horizontal, 5 cm right to midline.

(37) Incised wound left leg posterior aspect at junction of upper 2/3rd lower 1/3rd size 2 X 0.5 cm vertical, lower end narrow. (38) Multiple incised wounds on left side posterolateral aspect of neck and back upper aspect in an area of 14.2 X 9.1 cm vertical size from 3 cm linear to 6 X 4cm.

(39) Multiple superficial incised wounds on left forearm anterior aspect proximal 2/3rd and dissect 1/3rd junction in an area of 5 X 2.7 cm oblique.

(40) Multiple small sized incised wounds on left side neck.

(41) Tangential chop wound on right parietal region size 5.6 X 4.8 cm horizontal with skin soft tissue missing, margins clean cut. (42) Shop wound on frontal region of forehead midline situated 15cm above 2 glabella size 3.8 X 2.7 X 1.1 cm.

(43) Firearm entry wound:- puncture wound on right side posterior aspect of trunk at 54.4 cm below nape of neck, 8cm right to midline; 99.8 cm above heel. Oval shaped size 1.6 X 1 cm nearly horizontal, margins abraded more over upper aspect, directed postero-anteriorly oozing of blood evident, gone to iliac bone right side embedded bone and fracture. Bullet recovered embedded in right iliac bone, size 0.6 X 1.2 cm, oval headed in shape. (The witness has made diagram of the bullet in his post-mortem report.) INTERNAL INJURIES:-

(1) Intercostal space between 7th and 8th ribs left side penetrated (Injury no.12), has extended into abdomen after piercing peritoneum and left dome of diaphragm. Intestines on left side with vessels and mesentery penetrated.

(2) Peritoneum penetrated them peritoneum after intercostal space between 8th and 9th ribs on right side (Injury no. 16), right side lower aspect Dome of diaphragm, vessel, and ascending colon penetrated. (3) 6th rib sharply cut right side diaphragm perforated them right libe of liver over anterior aspect penetrated. (4) Intestines mesentrior penetrated at multiple places. Abdominal cavity contain about 1000CC blood."

26. Dr. Murli Lalwani (PW-19) has further said that he preserved viscera, swab and tissue from the site of firearm entry wound, bullet recovered from body and clothing worn by the deceased, sealed them and handed over to the concerning Constable for further examination.

27. On the basis of aforementioned analysis, Dr. Murli Lalwani (PW-

19) has opined that death of the deceased was due to shock and 19 haemorrhage as a result of multiple penetrating injury in the body. Evidence of firearm injury present. Injuries have been caused by hard, sharp and penetrating objects. Injuries are homicidal and sufficient to cause death in ordinary course of nature. Duration of death is within 24 hours prior to post-mortem examination.

28. In paragraph 7 of cross-examination, Dr. Murli Lalwani (PW-19) stated that he had not found blackening on entry wound caused by the firearm. No amount of cross-examination could cause any dent on his statement, thus, his statement is worthy of credence. Therefore, it is clear that there were 43 ante-mortem injuries on the body of the deceased and deceased died due to aforementioned injuries. Hence, it is certain that the death of the deceased is homicidal in nature.

29. Now it is considerable that whether Farzana (PW-7) sustained injuries in the same incident ?

30. Farzana (PW-7) deposed that the deceased and this witness have received injuries on their body in the same incident. As per Farzana (PW-7), she got unconscious due to injuries and she came to consciousness after 2 days in Hamidiya Hospital, Bhopal. Dr. Yash Saraf (PW-16) stated that on 26/03/2010 at 08:50 PM Constable Omprakash (PW-11) took deceased Arif and Farzana (PW-7) to Hamidiya Hospital, Bhopal. He referred Farzana (PW-7) to room no. 4 of orthopaedic ward. His report is Ex.P/ 31. Dr. Riddhivardhan (PW-18) stated that on 26/03/2010, he examined Farzana (PW-7) and found that there was a cut wound, sized 5 X 3 cm on right wrist over dorsal aspect, tendon was cut 20 and expanded bone muscle, bleeding. A lacerated wound size 1 X 2 cm over base of left thumb. Expanded muscle. There was swelling and tenderness in this injury. No amount of cross-examination could cause a scratch on the correctness of his statement. Hence, statement of Farzana (PW-7) being supported by Dr. Riddhivardhan (PW-18) is reliable and it is clear that Farzana (PW-7) had received injury in the same incident.

31. Next question arises that whether the appellants/ accused persons had assembled unlawfully, caused riot and being members of unlawful assembly and inflicted injuries on the body of deceased to cause his death in pursuance of common object.

32. Section 141 and 142 of The Indian Penal Code, 1860, defines unlawful assembly and its member respectively, therefore, it is apposite to reproduce the aforementioned definitions here, which runs as under:-

"141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-- First.--To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.--To resist the execution of any law, or of any legal process; or Third.--To commit any mischief or criminal trespass, or other offence; or Fourth.--By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of 21 which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

142. Being member of unlawful assembly.--Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly."

33. In the case of Dev Karan @ Lambu v. State of Haryana, (2019) 8 SCC 596, the Apex Court has held as under :

"14. The concept of unlawful assembly under Section 149 IPC was, thus, as per para 31, opined to have two elements: (Vinubhai Ranchhodbhai Patel case7, SCC p.

756) "(i) The assembly should consist of at least five persons; and

(ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein."

34. The Supreme Court in the case of Eknath Ganpat Aher (supra) has held as under :

"26. It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. In such situations, the courts 22 are called upon to be very cautious and sift the evidence with care. Where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them."

35. The Supreme Court in the case of Harjinder Singh (supra) has held as under :

"14. The foregoing discussion leads us to conclude that the trial court and the High Court did not consider certain material aspects apparent from the evidence and there was almost a mechanical acceptance of the evidence of the two chance witnesses whose evidence should have been evaluated with greater care and caution. As pointed out by this Court in Satbir v. Surat Singh a "cautious and close scrutiny" of the evidence of chance witnesses should inform the approach of the Court. In these circumstances, this Court need not feel bound to accept the findings. The overall picture we get on a critical examination of the prosecution evidence is that PWs 3 and 4 were introduced as eyewitnesses only after the dead body was found."

36. In the case of Baladin (supra), following was held :

"18. The learned counsel for the appellants raised four questions before us, namely, (1) that the courts below were in error in relying upon the evidence of the four eye-witnesses aforesaid when their statements in court were at variance with their statements as recorded by the investigating Sub-Inspector; (2) that the courts below were in error in convicting and sentencing the appellants on the testimony of those four eyewitnesses when their evidence had not been acted upon in respect of the other 23 accused who had been acquitted by the courts below; (3) that the evidence of those four eyewitnesses having been disbelieved by the lower appellate court, particularly in respect of some of those accused persons to whom they had attributed specific parts, should not have been accepted in respect of those accused to whom no such parts had been assigned; and (4) that the courts below had erred in law in convicting those accused persons against whom no specific parts had been deposed to and whose mere presence in the assembly had been penalized."

37. The counsel has placed reliance upon the case of Sanjiv Kumar (supra), where the following has been held :

"8. The pivotal question is applicability of Section 149, IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be 24 shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly."

38. The counsel has placed reliance upon the case of Kuldip Yadav and Others v. State of Bihar, (2011) 5 SCC 324, where the Supreme Court has observed as under :

"37. In Ranbir Yadav v. State of Bihar this Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the 25 guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court."

39. In the case of Vijay Pandurang (supra), the Supreme Court has held as under :

"14. After going through the evidence in detail, we are of the opinion that the prosecution evidence is not sufficient to conclude that any conspiracy was hatched by the appellants with common object to cause the death of Ashok or the appellants are charged members of the other group with such an objective. Even as per the prosecution, the convicted persons were not carrying any deadly weapons. They were armed with ubharis which are small sticks and ubharis are used by the farmers for disciplining the bullocks. This itself would be sufficient to negate the prosecution version that there was a conspiracy and common object to cause fatal harm to the members of the opposite group. At the most, the appellants wanted to inflict some physical harm to the members of the Deshmukh family in order to "teach them a lesson". Significantly, while discussing the charge under Section 307 IPC, the High Court itself has gone by the nature of injuries inflicted on other persons and concluded that there was no intention to cause death of any of those who got injured at the time of the incident. However, while dealing with the case of death of Ashok, the High Court went by the injuries on his person and on that basis concluded that there was a premeditative motive on the part of the appellants to murder him. Except the above, there is no clear evidence of any conspiracy or common objective. In these circumstances, the accused persons, at worst, could be held responsible for their individual acts."

40. The Supreme Court has held in the case of Amrika Bai (supra) as below :

"12. The above observations cast a serious doubt on the involvement of the appellant in the incident in which the deceased was beaten to death and she suffered unexplained injuries. Thus, she cannot be termed to be a member of the unlawful assembly, much less one which was alleged to have been constituted with the common object of murdering the deceased. The law is well settled on the aspect that mere presence in an unlawful assembly cannot render a person liable unless there was a common object, being one of those set out in Section 141 IPC and she was actuated by that common object. [See Dani Singh v. State of Bihar.]"

41. In the case of Ugar Ahir (supra), the Supreme Court has held as under :

"5. Mr Nuruddin Ahmed, learned counsel for the appellants, contended that the learned Additional Sessions Judge and the High Court, having concurrently found that the prosecution witnesses were partisans and that they had actually taken part in the incident and having disbelieved their complete version of the way in which the incident had taken place, erred in reconstructing a case for the prosecution different from that with which it had come to the court and also different from that which the prosecution witnesses deposed in the court."

42. The counsel has placed reliance in the case of Bhagirath (supra) where the following has been held :

"10A. It appears to us that the approach of the courts below in reconstructing a story different from the one propounded by the prosecution and then convicting the appellant on that basis, was clearly erroneous. It was never the prosecution case that there was a fight or pitched battle between two parties. According to the 27 prosecution, the occurrence was only a one-sided affair, that PW Kashiram was forcibly pulled out and taken from his house by the three accused to a distance of 80 feet, and there assaulted. In the FIR, Devisingh made no mention whatever of the injuries received by the accused side. At the trial also, the prosecution witnesses brazenly refused to concede that the appellant or his companion Manohar had received any injury at the time of occurrence. Contrary to what these prosecution witnesses had stated, the courts have come to the conclusion that these injuries, three of which were incised wounds, were received by the accused side in the course of a free fight, at the hands of the complainant party."

43. The Supreme Court in the case of Guli Chand (supra) has held as under :

"11. The High Court had certainly given sufficiently good reasons for distrusting the evidence of witnesses who did not belong to village Timava although, even out of these, Shri Das, PW 1, and Basantilal, PW 2, are mentioned in the FIR, Courts have held that the testimony of a chance witness, although not necessarily false, is proverbially unsafe. In the case before us, however, there is the evidence of Banwarilal, PW 7, son of the deceased, and of Lohde PW 6, who seems to belong to the party of Brijmohan, as well as of Champoli, PW 5, who are residents of village Timava. It has been held by this Court that the mere fact that a witness is a relation of a victim is not sufficient to discard his testimony. In Dalip Singh v. State of Punjab,this Court said:

"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 28 implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

This is not to say that in a given case, a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course, that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices."

44. The counsel has placed reliance upon the case of Sharad Birdhichand (supra), where the Supreme Court has held as under :

"48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may 29 not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."

45. The counsel has placed reliance in the case of Mst. Dalbir Kaur (supra), where the following has been held :

"13. The defence pleaded innocence and Ajit Singh particularly pleaded alibi and stated that he had never gone to the Village Marrar Kalan where the occurrence had taken place. It might be mentioned here that the appellant Puran Singh was a full brother of Bhiro while Ajit Singh was her cousin. The central evidence against the appellants consists of the statements of PW 3 Jaswant Kaur and PW 4 Shiv Kaur who have given a complete narrative of the prosecution case as indicated above. These two eyewitnesses have been described as interested witnesses by counsel for the appellants but we do not subscribe to this view. There can be no doubt that having regard to the fact that the incident took place at midnight inside the house of Ajaib Singh, the only natural witnesses who could be present to see the assault would be Jaswant Kaur and her mother Shiv Kaur. No outsider can be expected to have come at that time because the attack by the appellants was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness. The term "interested" postulates that the person concerned must 30 have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. Such is not the case here. In the instant case there is absolutely no evidence to indicate that either Jaswant Kaur or Shiv Kaur bore any animus against the accused. This Court had an occasion to decide as to whether a relative could be treated as an interested witness. In Dalip Singh v. State of Punjab this Court expressed its surprise over the impression which prevailed in the minds of the members of the bar that relatives were not independent witnesses and in order to dispel the same the qualities of independent witnesses were clearly elucidated. In this connection, Vivian Bose, J. speaking for the Court observed as follows :

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but 31 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."

46. In the case of Anup Lal Yadav and another v. State of Bihar, (2014) 10 SCC 275, the following was held :

"19. In Lalji v. State of U.P., this Court observed:

(SCC pp. 141-42, para 9) "9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial.

He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When 32 the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section

149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge."

47. Now the evidence produced by the prosecution in the case is to be considered in the light of legal provisions and principles laid down by the Apex court in the aforementioned judgments.

48. Eye-witness of the incident Dr. Naziya (PW-1), Shera (PW-3) and Mohammad Irshad (PW-4) have not supported the case of prosecution. Learned trial Court has relied on the statement of eye-witnesses Mohammad Arshad (PW-6) and Farzana (PW-7) as well as learned trial court partially relied on the statement of Dr. Naziya (PW-1). Mohammad Arshad (PW-6) is nephew and Farzana (PW-7) is wife of the deceased Arif.

49. Farzana (PW-7) stated that on the date of incident at 07:30 PM, she went for treatment of her son Arish alongwith her husband/ deceased Arif and nephew Mohammad Arshad (PW-6) to the clinic of Dr. Naziya (PW-1) at Ginnouri. She further said that after treatment of her son when 33 she came out from the clinic at that time accused persons Achchhi Alias Iliyas (Anshi), Fazil, Rafiq Khan, Mia Jaan alias Sheikh Mohammad Israil, Mohammad Abid and Noor Ali (died) came. She heard the sound of gunfire, then, deceased party ran towards clinic, accused persons also entered in the clinic. Achchhi alias Iliyas, Noor Khan were carrying revolver, Fazil had a sword, Mia Jaan and Abid had knives. The accused persons had started to beat the deceased by means of revolver, knives and sword. She was intervening, then she also received injury on right wrist and left thumb by knives. she could not see that who inflicted those injuries on her. Thereafter she became unconscious. After 2 days at Hamidiya hospital, Bhopal, she came to consciousness and then she came to know that her husband, deceased Arif died.

50. Mohammad Arshad (PW-6) stated that on the date of incident at about 08:15 PM, deceased Arif and Farzana (PW-7), had gone for treatment of their son Arish to the dental clinic of Dr. Naziya (PW-1) at Ginnour by motorcycle, and this witness had also gone alongwith them on a different motorcycle. After treatment of Arish, they were leaving the clinic, at that time accused persons Achchhi alias Iliyas (Anshi), Noor Ali Khan and Fazil came by motorcycle from Hathikhana and accused persons Rafiq Khan, Abid Ali, Mia Jaan and another person came by motorcycle from Mazar. They started firing as soon as they reached closer. They were carrying revolvers, sword and knives. He ran outside from the clinic. Deceased Arif and Farzana (PW-7) ran inside the clinic and closed the door. The accused persons enterred in the clinic and 34 started assaulting physically. Deceased Arif had died due to injuries inflicted upon him, and Farzana (PW-7) sustained injuries on her hand.

51. Mohammad Arshad (PW-6) in paragraph 17 of cross-examination has admitted that police had not come after gunfires and until he was there at the place of incident. He brought policemen alongwith him. In paragraph 18 of cross-examination he contradicted A-A part of his case diary statement (Ex.D/1) that "at the same time police came with their magic van and took deceased Arif and Farzana (PW-7) alongwith them". There is omission in his case diary statement (Ex.D/1) that 'the accused persons started firing as they reached and deceased Arif had closed the door of the clinic'. There is further omission in his case diary statement that 'the accused persons broke the door and enterred inside the clinic' and 'took deceased to the street, beating him and Farzana (PW-7) came alongwith them to save him'.

52. There is omission in case diary statement (Ex.D/2) of Farzana (PW-7) that 'at 07:30 PM they had reached the clinic of Dr. Naziya (PW-

1)' but it is mentioned in the case diary statement (Ex.D/2) that 'they had reached clinic at 07:15 PM.' there is also omission in the case diary statement (Ex.D/2) that 'after treatment they came out of the clinic, then they heard gunfires and they rushed towards clinic, then all the accused persons enterred the clinic as well.' there is omission in the case diary statement (Ex.D/2) of this witness that 'she sustained knife cuts while intervening in between' but it is mentioned in (Ex.D/2) that she received injuries on both of her hands.

53. Mohammad Arshad (PW-6) and Farzana (PW-7) were examined in the court after 1 year and 4 months of the incident. Therefore, such type of omission and contradiction is natural. As per statement of both the witnesses, number of assailants was 7 and suddenly they started firing outside clinic and started inflicting injuries on the deceased in a very cruelsome manner. Apart from that, the incident started all of a sudden by firing and the deceased was being beaten brutally by more than 5 assailants. In this situation any person cannot be expected to give minutes of the incident. Therefore statement of witnesses cannot be disbelieved on the basis of common type of omission, contradiction and discrepancies.

54. In the case of Bhagchandra vs The State Of Madhya Pradesh, AIR 2022 SC 410, the following was observed :

"30. No doubt that there are minor discrepancies in the evidence of these PWs. It will be relevant to refer to the following observations of this Court in the case of State of Uttar Pradesh v. Krishna Master and Others:-

"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the 36 earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole."

55. Dr. Naziya (PW-1) has stated that her dental clinic is situated at Ginnouri. On the date of incident, a child aged about 5 years came to her clinic alongwith his parents. She treated the child, thereafter, the child and his parents had gone from the clinic. She had gone to offer Namaz to her home situated in the next floor of the clinic. While she was offering Namaz, she heard cries, and heard the sound of bomb and cracker. Later she came to know that her clinic was vandalised, when she came downstairs, crowd had gathered, she tried to look from outside but because of crowd she could not see. She also stated that prescription (Ex.P/1) is in her handwriting, which is related to treatment of Arish. As per prescription (Ex.P/1), Dr. Naziya (PW-1) firstly treated Mohammad Arish on 23/03/2010, thereafter, on the date of incident i.e. 26/03/2010 at 07:30 PM, she again gave dental treatment to Mohammad Arish.

56. ASI V.K. Soni (PW-17) stated that on 26/03/2010 at 09:30 PM, he lodged an FIR (Ex.P/9) on the basis of information given by Mohammad Arshad (PW-6). It appears from the FIR (Ex.P-9) that the incident is of 26/03/2010 at 08:15 PM and FIR was lodged on the same day at 09:30 37 PM i.e. within 1:15 hrs of the incident in Police Station Talaiya, which is 1 KM away from the place of incident.

57. ASI V.K. Soni (PW-17) further stated that he went to the place of incident, clinic on Ginnouri Road and prepared a spot map (Ex.P/10). Mohammad Arshad (PW-6) stated that he had told about the place of incident to police and police had prepared spot map (Ex.P/10) before him. V.K. Soni (PW-17) stated that he has marked in spot map (Ex.P/10) as LP- Ladies purse; LC- Ladies sleeper, EB1- Bullet ; EB2- Bullet; EC1- Empty cartridge and BS- blood stain.

58. Senior Scientific Officer of State Forensic Science, Mobile Unit Bhopal, O.P. Dixit (PW-20) stated that on 26/03/2010 at 09:45 PM, after receiving intimation from police control room, he went to the clinic of Dr. Naziya (PW-1) situated in front of Government Yunani College, Ginnouri. Photographer Shivcharan Sharma had accompanied him. He met ASI V.K. Soni (PW-17) on the place of incident. He further stated that he enquired the place of incident. There was blood in an area of 3 X 3 feet in front of the clinic beside the road. At a distance of 6 feet from the entrance of the clinic a fired bullet in a partial distorted state was present. Inside the clinic, broken pieces of glass was scattered. At several places inside the clinic blood was present including walls and chair. 2 pistol, a fired bullet and an empty cartridge were lying on the floor of the clinic. A piece of flesh alongwith skin and hair was lying on the floor. A ladies bag, a pair of ladies sleeper, pieces of bangle was lying inside clinic, outside clinic a black coloured slipper and two- wheeler vehicles were present. He gave some necessary direction to 38 investigating officer for further investigation. He prepared a report (Ex.P/36) and spot map (Ex.P/37).

59. ASI V.K. Soni (PW-17) stated that he has prepared a Nuksani Panchnama (Ex.P/3) at the instance of Sarbat Akhtar Khan (PW-22). He found that partition glasses of clinic were broken. Machines were damaged by falling. Blood was present on walls, floor and machines. Dr. S.M. Agaznur (PW-2), who is husband of Dr. Naziya (PW-1) stated that clinic of his wife is situated at Ginnouri, where an incident of murder took place and her clinic was vandalised. Police had prepared Nuksani Panchnama (Ex.P/3) in presence of this witness. Sarbat Akhtar Khan (PW-22), who is father of Dr. Naziya (PW-1) has not supported the prosecution case. Prosecution declared him hostile in paragraph 11 of cross-examination. He admitted the suggestion of prosecution that after 2 days of incident, the police opened the shutter then he saw that glasses of clinic were broken but he was not aware that why the glasses were broken, therefore, statement of this witness does not help the prosecution. Though Dr. S.M. Agaznur (PW-2) stated in paragraph 2 of cross-examination that after 3-4 days of incident, the police prepared Nuksani Panchnama but as per Nuksani Panchnama (Ex.P/3) it was prepared on 26/03/2010 at 10:50 PM. Hence, statement of ASI V.K. Soni (PW-17) appears to be reliable.

60. Dr. Yash Saraf (PW-16) stated that Farzana (PW-7) told him that she received injuries due to physical assault by unknown person and in paragraph 3 of cross-examination has admitted that Farzana (PW-7) did not tell the name of assailants but Farzana (PW-7) in paragraph 26 stated 39 that she does not know if she told the names of the assailants to the doctor at Hamidiya Hospital. It is not mentioned in the prescription (Ex.P/31) given by Dr. Yash Saraf (PW-16) that Farzana (PW-7) told him that she sustained injuries by unknown assailants. Therefore, aforementioned statement of Dr. Yash Saraf (PW-16) is not reliable. Though as per statement of Farzana (PW-7) during incident, she became unconscious and after two days she come to consciousness at Hamidiya Hospital, while as per statement of Dr. Yash Saraf (PW-16) and prescription (Ex.P/31), when she was brought at Hamidiya Hospital, she was not unconscious, but looking to the nature of the gruesome incident it does not appear that Farzana (PW-7) would have been in a normal state. Therefore, on the basis of aforementioned her statement cannot be disbelieved.

61. Dr. Riddhivardhan (PW-18) stated that Farzana (PW-7) had told him that she was assaulted at Kazi camp but in paragraph 26 of cross- examination Farzana (PW-7), denied that she told the doctor that she was assaulted at Kazi camp. Statement of Farzana (PW-7) and Mohammad Arshad (PW-6) and other witnesses it appears that the place of incident is clinic of Dr. Naziya (PW-1) situated at Ginnouri. Therefore, on the basis of statement of Dr. Riddhivardhan (PW-18), place of incident cannot be doubted.

62. SI K.S. Singh (PW-21) stated that he wrote statement of Sarbat Akhtar Khan (PW-22), Farzana (PW-7), Nizamuddin (PW-5), Samiul Hasan (PW-8) and Dr. Naziya (PW-1). In paragraph 54 and 55 of cross- examination admitted that he wrote statement of Farzana (PW-7) and 40 Dr. Naziya (PW-1) in his handwriting, after getting the statement typed in computer, destroyed the handwritten statement of both the witnesses. Though handwritten statement of both the witnesses, were important and should have been kept safely. But Investigating Officer SI K.S. Singh (PW-21) had destroyed them and neither filed with the case nor kept in the case-diary and it is a matter of gross negligence on the part of this witness. It is a gross mistake of this witness. But on the basis of his aforementioned mistake, statement of both the eye-witnesses cannot be discarded.

63. Appellant Mia Jaan alias Sheikh Mohammad Israil examined Siddique Mohammad (DW-2), Wahid Khan (DW-3) and Dr. V.C. Choudhary (DW-4) and filed document (Ex.D-5 to D-77) related to his illness and treatment. Dr. V.C. Choudhary (DW-4) stated that he is posted as Radiologist at Jaiprakash Government Hospital, Bhopal. He has treated the accused Mia Jaan alias Sheikh Mohammad Israil, his last prescription is Ex.D/5. His shoulder has been surged because of Cancer. He is suffering from Coronary Arteries, High blood Pressure and Diabetes. His card (Ex.D/6) issued by Tata Memorial Hospital Mumbai in 1981. Due to Cancer muscle of right shoulder has been taken out by surgery. Therefore, his right hand does not work properly. The accused is being given regular medication for Hyper-tension and Diabetes. In paragraph 5 of cross-examination, he admitted that he is not a specialist of Cancer disease and he issued prescription (Ex.D/5) from his private clinic. He also admitted that he has issued it after taking into consideration all the prescription of other doctors. Therefore, it appears 41 that this witness has given this statement on the basis of document (Ex.D/6 to D/77) related to treatment of accused Mia Jaan. Therefore, his statement is not reliable.

64. Siddique Mohammad (DW-2) and Wahid Khan (DW-3) have stated that on 26/03/2010 at 07:00 PM to 10:00 PM, accused Mia Jaan was alongwith them. At 7:00 PM both the witnesses and accused Mia Jaan went to Betul Masjid to offer Isha Namaz. After offering Namaz they had gone to the house of Wahid Khan (DW-3). After taking dinner at 10:00 PM, he went to his home. Both the witnesses further stated that the right hand of accused is not functioning properly because of Cancer and he has been falsely implicated in the case. In paragraph 5 of cross- examination both the witnesses have admitted that after arrest of accused Mia Jaan they have not made any complaint to police that the accused Mia Jaan has been falsely arranged in the case. It appears that Wahid Khan (DW-3) is an advocate and in paragraph 5 of cross-examination he stated that after arrest of accused he went to police station Talaiya and told the police that on the day of incident, accused Mia Jaan was with him, but there is no such statement in this case. He further admitted that he had not made any written complaint to the police. It also appears that for the first time both the witnesses are deposing as alibi of accused Mia Jaan on 28/05/2014 i.e. more than 4 years after the incident. Therefore, their statement is not reliable. Apart from that statement of eye- witnesses of the incident are found to be reliable, this being the reason as well, the aforementioned statements of the defence witnesses are not believable.

65. The appellants/accused persons also examined Salil Sharma (DW-

1) in their defence. This witness has stated that on the basis of complaint filed by accused Noor Ali (died), he inquired the complaint and filed his report (Ex.D/3). He further stated that a person namely Noor Ali was admitted in Rajiv Gandhi Medical Institute Kadappa Andhra Pradesh on 26/03/2010 but during the trial accused Noor Ali had died, therefore, consideration of statement of this witness is not necessary.

66. In view of foregoing discussion, it is clear that Farzana (PW-7) had also received injuries in the incident. Mohammad Arshad (PW-6) had lodged the FIR (Ex.P/9) promptly within 1:15 hrs. of the incident against the appellant/accused persons. His statement is supported by FIR (Ex.P/9). Statement of Mohammad Arshad (PW-6) and Farzana (PW-7) is also supported by statement of Dr. Murli Lalwani (PW-19) and partially supported by Dr. Naziya (PW-1), therefore, at the time of incident the presence of both the eye witnesses at the place of incident appears to be natural and reliable. There is no material contradictions and omissions in their statement, therefore, their statement is trustworthy.

67. So far as the question of articles recovered from the spot, body of the deceased and from the accused persons is concerned, in this respect learned senior counsel for the appellants has placed reliance upon the judgment passed in the case of Khalil Khan (supra), where the following was observed:-

"7. If this part of the evidence of the prosecution is to be excluded then, in our opinion, there is no sufficient 43 material to hold the appellant guilty. Be that as it may, we may refer to the recovery part relied upon by the courts below. We notice that one of the witnesses to the recovery has not supported the prosecution case. That apart the incident in question had taken place on 6th April, 1986 and the accused was arrested only on 11th April, 1986, nearly four days thereafter. We find it extremely difficult to believe that a person who is involved in such a serious crime like murder would still be wearing clothes which are blood stained even four days after the murder which fact we find is opposed to normal human conduct. In this background, the evidence of the hostile witness that the recoveries were made at the police station assumes importance. We think it is not safe to place reliance on this part of the prosecution case also."

68. In the case of Sattatiya (supra), the Supreme Court has observed as under :

"26. The next thing which is to be seen is whether the evidence relating to the recovery of clothes of the appellant and the half blade, allegedly used for commission of crime, is credible and could be relied on for proving the charge of culpable homicide against the appellant. In this context, it is important to note that the prosecution did not produce any document containing the recording of statement allegedly made by the appellant expressing his desire to facilitate recovery of the clothes and half blade. The prosecution case that the accused volunteered to give information and took the police for recovery of the clothes, half blade and purchase of handkerchief is highly suspect. It has not been explained as to why the appellant gave information in piecemeal on three dates i.e. 3-10-1994, 5- 10-1994 and 6-10-1994. Room No. 45 of "Ganesh Bhuvan" from which the clothes are said to have been recovered was found to be unlocked premises which could be accessed by anyone. The prosecution could not explain as to how the room allegedly belonging to the appellant 44 could be without any lock. The absence of any habitation in the room also casts serious doubt on the genuineness and bona fides of recovery of clothes. The recovery of half blade from the roadside from beneath the wooden board in front of "Ganesh Bhuvan" is also not convincing. Undisputedly, the place from which half blade is said to have been recovered is an open place and everybody had access to the site from where the blade is said to have been recovered. It is, therefore, difficult to believe the prosecution theory regarding recovery of the half blade. The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the chemical examiner's report the bloodstains found on the shirt, pants and half blade were those of human blood, the same could not be linked with the blood of the deceased. Unfortunately, the learned Additional Sessions Judge and the High Court overlooked this serious lacuna in the prosecution story and concluded that the presence of human bloodstains on the clothes of the accused and half blade were sufficient to link him with the murder."

69. The Supreme Court in the case of Maruti Rama (supra) has held as under :

"7. .........The only other piece of evidence relied on by the prosecution to support its case against these two appellants is that of recovery which even according to the prosecution, was made from a place which was not in the exclusive possession of the appellants and the said place was easily accessible by other people and also the fact that recovery was made almost 9 days after the incident in question, in our opinion, this piece of evidence also would not at all be sufficient to base a conviction of these appellants without further acceptable corroboration, Therefore, we are of the opinion that these appeals must succeed, The conviction and sentence imposed on the appellants are set aside and the appeals are allowed."

70. The counsel has relied upon the case of Nisar (supra), where the following was observed:-

"7. The High Court found that there was no eyewitness to the incident. Two factors which weighed with the trial court were the so-called recovery of an axe and the extra- judicial confession. It was noticed by the High Court that there was no reference to the extra-judicial confession in the FIR and though blood was stated to have been found on the axe recovered, the blood grouping was not done. Accordingly, the trial court's judgment was set aside and acquittal was directed."

71. Learned counsel for the appellants has relied upon the case of Ishwar Singh (supra), where the observation has been held as under:-

"8. .........It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice. In this case it is impossible to say with certainty whether the injury was caused by the ballam or the bhala that were seized, and, therefore, whether it was Ishwar Singh or Harpal who was responsible for it, even if one believed that on the day of the occurrence the former carried a ballam and the latter a bhala. Ishwar Singh's conviction under Section 302 of the Indian Penal Code cannot also be sustained in these circumstances."

72. In the case of Madhav V State of Madhya Pradesh AIR 2021 SC 4031 the following was observed:-

"31. In R. Shaji vs. State of Kerala, [(2013) 14 SCC 266], this court took note of almost previous decisions starting from Prabhu Babaji Navle V State of Bombay, [AIR 46 1956 SC 51] and including those in Raghav Pranappa Tripathi (supra); Teja Ram (supra), Gura Singh (supra); John Pandian vs. State, [(2010) 14 SCC 129]; Sunil Clifford Daniel vs. State of Punjab [(2012) 11 SCC 205] and came to the conclusion that once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non matching of blood groups loses significance.

73. The Supreme Court in the case of Santa Singh (supra) has held as under :

"12. There is another element in the case which creates even greater difficulty. An empty cartridge case is alleged to have been recovered from the place of occurrence by the police on the 10th of September when they went there for investigation after receipt of the first information from Uttam Singh (PW 16); so also some bloodstained earth.

They were carefully packed and sealed in two separate packets and despatched to the Police Station. The sealed parcel of the earth was sent to the Chemical Examiner at Kasauli on 11-10-1954, and the sealed parcel of the empty cartridge case was sent to Dr Goyle as late as 27- 10-1954.

Even if we accept the explanation given by the Sub- Inspector of Police that the empty cartridge case had to be kept at the police station till the rifle used was recovered so that both might be sent to the expert for his opinion, nothing has been stated why after the rifle was recovered on 26-9-1954, along with 24 cartridges from the house of the accused, it was incumbent for the police to retain the parcels of rifle and empty cartridge case with them till 11-10-1954.

Naturally this inordinate delay, raises much suspicion and has given rise to the suggestion on the part of the 47 accused made in the course of the cross-examination of the Sub-Inspector that the empty cartridge case ultimately sent to the expert relates to a cartridge that was fired by them at the Police Station and is not the one recovered at the spot.

The memo relating to the recovery of the empty cartridge case is not attested by any independent witness but only by Uttam Singh and Mohinder Singh (PW 16 and PW 17)."

74. The Apex Court in the case of Valsala (supra) has observed as under :

"4. We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on January 14, 1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW 6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the mahazar Ex. P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW 6 does not say that he continued to keep it in his custody 48 under seal till it was produced in the court on January 14, 1988. The evidence given by PW 6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. PW 3, A.S.I. is supposed to have produced the same in the court. But PW 3 does not say anything about this. It is only PW 7 the Circle Inspector who comes into the picture at a later date, who admitted in the cross- examination that the seized article was sent by PW 3 (A.S.I.) to the court and PW 7 in his cross-examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW 7 that the Chemical Examiner's report is marked. PW 7 further admitted that he did not even know when it reached the court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts cannot convict."

75. In this respect ASI V.K. Soni (PW-17) stated that he recovered blood stained and plain soil, a country made Katta, a pistol with magazine, two fired bullet, an empty cartridge, a gents sleeper, a pair of ladies sleeper, a piece of skin with hair, broken glass bangle, a plain piece of glass and a blood stained piece of glass, a partially deformed 49 fired bullet from the spot and sealed them and prepared seizure memo (Ex.P/32). Sarbat Akhtar Khan (PW-22) has not supported the case of prosecution, hence, prosecution declared him hostile and cross- examined him. In paragraph 12 of cross-examination he denied the suggestion of prosecution that police had seized article from the spot but he admitted his signature on seizure memo (Ex.P/32). Statement of ASI V.K. Soni (PW-17) could not be demolished in cross-examination. Therefore his statement is reliable and it is clear that aforementioned Articles were recovered from the spot.

76. ASI V.K. Soni (PW-17) stated that he seized a reliance company made mobile phone and 2 motorcycles bearing registration number MP- 05-Y-9586 and MP-04-NV-2175 respectively from the spot vide seizure memo (Ex.P/33). In paragraph 31 of cross-examination he stated that both the motorcycles were seized from a little distance from the clinic near road and denied that he did not seize motorcycles and mobile phone from the spot. Though prosecution has not examined any other witness in this respect but statement of ASI V.K. Soni (PW-17) could not be demolished in cross-examination, therefore, his statement is reliable.

77. SI K.S. Singh (PW-21) stated that on 29/03/2010 he took custody of accused Abid Ali Khan and Mia Jaan alias Sheikh Mohammad Israil and interrogated them. Abid Ali disclosed that he threw the knife in sewage near the spot and accused Mia Jaan disclosed that he threw the knife near garbage trolly, near wall in Yunani Safa Khana vide disclosure memo (Ex.P/12 and P/11 respectively) and the same was seized by the witness at the instance of Abid Ali and Mia Jaan and prepared seizure 50 memo (Ex.P/ 13 and P/14 respectively). He further said that on the same day, he arrested Mia Jaan and Abid Ali Khan and prepared arrest memo (Ex.P/ 38 and P/39 respectively). Shahzad Khan (PW-9) and Rafiq (PW-

10) supported the statement of SI K.S. Singh (PW-21).

78. As per disclosure memo (Ex.P/11), accused Mia Jaan intimated that he threw the knife near sewage situated near the place of incident (Dental Clinic) and seizure memo (Ex.P/14) shows that the knife was not found on the place as stated by Mia Jaan and after searching nearby, it was found near the municipality garbage trolley standing next to the boundary wall of Yunani hospital. In this respect Shahzad Khan (PW-9) stated that the knife was recovered from the garbage trolley at the instance of Mia Jaan. SI K.S. Singh (PW-21), in paragraph 26 and 27 of cross-examination, clarified that Yunani Hospital is situated at Ginnouri Talaiya which is in front of the spot while Yunani Safa Khana is 1 Km far from Yunani Hospital. He further said that at the time of interrogation, Mia Jaan had stated the place Yunani Safa Khana but he took them to Yunani Hospital for seizure. His statement is supported with seizure memo (Ex.P/14). Therefore, his clarification appears to be believable. Hence it appears that aforesaid knives were recovered at the instance of Abid Ali and Mia Jaan @ Sheikh Mohammad Israil.

79. SI K.S. Singh (PW-21) stated that on 31/03/2010 he took custody of accused Iliyas alias Achchhi, Fazil and Rafiq, he interrogated them and prepared disclosure memos (Ex.P/16, P/17 and P/18 respectively). He further said that accused Achchhi alias Iliyas disclosed that a pistol was left in clinic. Abdul Sajid (PW-13) supported his statement but no 51 pistol has been seized on the basis of aforementioned disclosure statement, because the pistol had already been seized from the place of incident as per seizure memo (Ex.P/32). Therefore, disclosure statement (Ex.P/16) of accused Achchhi alias Iliyas lost its significance. SI K.S. Singh (PW-21) further stated that on 31/03/2010, he arrested Achchhi alias Iliyas and prepared arrest memo (Ex.P/25).

80. SI K.S. Singh (PW-21) stated that 02/04/2010 he seized a knife at the instance of accused Rafiq, produced by him from Machli ghar in the bushes of small pond vide seizure memo (Ex.P/19), on the basis of his disclosure statement vide (Ex.P/18) dated 31/03/2010. He further said that on 02/04/2010 he seized a knife at the instance of accused Fazil Khan produced by him from Machli ghar vide seizure memo (Ex.P/20), on the basis of his disclosure statement vide (Ex.P/17) dated 31/03/2010.

81. SI K.S. Singh (PW-21) further stated that he arrested accused Rafiq and Fazil khan and prepared arrest memo (Ex.P/26 and P/27 respectively). His statement is supported by Abdul Sajid (PW-13). In paragraph 83 of cross-examination SI K.S. Singh (PW-21) admitted that all panchnamas are prepared by him but not in his handwriting. In this respect he said that Lash Panchnama was written by ASI Dubey and remaining other panchnamas are written by ASI Suresh Singh on the basis of his direction, therefore, it appears that all the panchnamas prepared and signed by this witness are not in his handwriting but on his direction are written by other police officers. Therefore, on the basis of this, his statement cannot be discarded. Statement of this witness is supported by Abdul Sajid (PW-13), there is nothing in cross-examination 52 to disbelieve the witnesses, hence their statement is reliable. Therefore, it appears that knives were recovered from the accused persons Rafiq Khan and Fazil Khan on the basis of their disclosure statement. Case laws produced by the appellants in this respect are based on different facts and circumstances, hence not pressed into service in the present case.

82. SI K.S. Singh (PW-21) stated that on 31/03/2010 he seized a baniyan from Fazil Khan, a blood stained shirt and pant from Rafiq Khan, a blood stained T-shirt and pant from Achchhi alias Iliyas worn by them at the time of incident and prepared seizure memos (Ex.P/21, P/22 and P/23 respectively). His statement is supported by Abdul Sajid (PW/13).

83. Head Constable Lakhanlal (PW-12) stated that on 27/03/2010, he seized sealed packets (3 sealed packets) containing clothes, shoes and other articles which were sealed by doctor, from Constable Fahim Khan, produced by him from the hospital vide seizure memo (Ex.P/15). Though prosecution has not examined other witnesses of seizure, but statement of Head Constable Lakhanlal (PW-12) has not been challenged in his cross-examination. Hence, his statement is reliable.

84. SI K.S. Singh (PW-21) stated that he sent the seized articles to Forensic Science Laboratory Sagar for chemical examination. After examination of articles, FSL report (Ex.P/43 and P/44) were received. As per FSL report (Ex.P/43), 2 country made pistol as marked by FSL article A1 and A2 are in working condition. There is evidence of them 53 being used prior. A pistol article A2 was with magazine, (Article- M1), filled with 7 bullets of 9mm in size (Article LR 1 - LR 7 as marked by the FSL). Those bullets can be fired from the seized pistol Article A2. Magazine (Article M1) fits properly magazine slot of pistol (Article A2) leading it to be the one of pistol (Article A2). Empty cartridge (Article EC1), recovered from spot, is of a 0.315" calibre gun. This cartridge could have been fired from pistol (Article A1). Empty cartridge (Article EC2) recovered from the spot, could have been fired by pistol (Article A2). A small bullet (Article EB1) damaged in condition and a bullet (Article EB3) recovered from the body of the deceased are fired bullets, which are bullet of 7.65mm calibre pistol. Regular rifling marks are not present. They have been fired from the same 7.65mm calibre smooth bore weapon, like country made pistol. No firearm entry hole was found on the clothes recovered from the body of the deceased a shirt, baniyan, full pant and an underwear (Article C1 - C4).

85. As per FSL report (Ex.P/44) the cut marks present on the clothes of deceased were tested to have been inflicted by the knives (Article- M, N, O and P) recovered from accused person Mia Jaan @ Sheikh Mohammad Israil, Abid Ali Khan, Rafiq Khan and Fazil. As per FSL report (Ex.P/46) human blood was found on shirt and pant (Article R1 and R2) of accused Achchhi alias Iliyas on the shirt and pant (Article S1 and S2) recovered from Rafiq Khan. In baniyan (Article T) recovered from Fazil as well as knives (Article- N, M, O and P) recovered from accused persons Abid Ali Khan, Mia Jaan alias Sheikh Mohammad Israil, Rafiq and Fazil Khan. Blood stain was found on shirt, pant, 54 baniyan, underwear, elastic, shoes and socks (Article- U1 to U7) recovered from the body of the deceased. It also appears that 'A' Group blood was found on shirt (R-1), pant (R-2) and pant (S-2) recovered from accused Achchhi @ Iliyas Khan and Rafiq Khan respectively.

86. In respect of delay in sending the seized articles for chemical- examination and their safe custody is concerned SI K.S. Singh (PW-21), in paragraph 72 of cross-examination, he stated that after sealing the seized articles, he deposited them in malkhana of Police Station. He admitted that he has not produced copy of malkhana register to show that when the seized articles were sent to FSL for chemical examination, but it shows from the perusal of FSL report (Ex.P/43) that the seized articles alongwith letter (Ex.P/42) were received from the Forensic Science Laboratory, Sagar on 26/05/2010 and seized articles were properly sealed, therefore, it appears that the packets were properly sealed and no tempering was caused. Hence, non-production of malkhana register does not affect the prosecution case adversely.

87. In the view of foregoing discussion, it appears that the clothes recovered from the accused persons Fazil Khan, Rafiq Khan and Achchhi alias Iliyas on 31/03/2010 i.e. on the 5 th day of the incident, is the same which they had worn at the time of incident. It does not appear to be normal that any person after committing crime keeps on wearing the same blood stained clothes straight in a row for 5 days. Therefore, recovery of blood stained clothes from the accused persons Fazil Khan, Rafiq Khan and Achchhi alias Iliyas is not reliable. So far as the question of recovery of blood stained weapon at the instance of accused 55 persons Mia Jaan alias Sheikh Mohammad Israil, Rafiq Khan, Fazil Khan and Abid Ali (died) is concerned, the accused persons have not given any explanation, as to how human blood came to their weapon. Therefore, it appears that the aforementioned weapons had been used in the crime and this circumstance also supports the statement of Mohammad Arshad (PW-6) and Farzana (PW-7).

88. Learned trial Court in paragraph 62 of the impugned judgment rightly held that, knives recovered from accused persons Mia Jaan alias Sheikh Mohammad Israil, Abid Ali (died), Rafiq Khan, Fazil Khan. Achchhi alias Iliyas Khan illegally possessed a firearm/pistol without holding a licence and he used the pistol. The learned trial Court further rightly held that the accused Achchhi alias Iliyas possessed and used firearm, hence, prosecution sanction under Section 39 of the Arms Act, 1959, is required only for him but accused persons who possessed and used knives/sharp edged weapons, for them prosecution sanction is not required, while, prosecution sanction (Ex.P/45) is issued for all the accused persons. Size of the seized weapons i.e. knives, were more than 6 inches in length and 1 inch in width. On perusal of statement of Harish Sheetlani (PW-23), it appears that the competent authority, District Magistrate Bhopal, Nikunj Shrivastava, has properly considered the fact and circumstances of the case and perused the pistol/firearm and after applying his mind, has properly issued prosecution sanction.

89. Compliance of Section 156 of the Code of Criminal Procedure, in the case of Thanedar Singh (supra), the Supreme Court has held as under :

"5.2 ........

"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations 57 and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8. ..."

90. The Supreme Court in the case of Arjun Marik (supra) has observed as under :

"24. The matter does not stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial court as well as the High Court and it is with regard to the sending of occurrence report (FIR) to the Magistrate concerned on 22-7-1985 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Section 157, CrPC thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 CrPC envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined 58 reading of Sections 157 and 159 CrPC. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation."

91. So far as the submission made by learned Senior Counsel for the appellants that counter-copy was not sent to the magistrate is related, in this respect ASI V.K. Soni (PW-17) is the writer of the FIR (Ex.P/9), he has not stated anything with regard to sending the counter-copy of the FIR to the magistrate. He could have given an explanation in this respect, but the accused person has not asked anything about sending the counter-copy of the FIR to magistrate. It also appears that the accused person had not raised this point before the trial court. In the case of Dheerendra Singh alias Dheeru and anr. V State of Madhya Pradesh [CRA no. 07/12 and 2979/13; judgment dated 05/09/2019] Division Bench of this court has observed as under:-

"37. We are not oblivious of the fact that in the present case the argument of learned senior counsel for the appellants was that the prosecution has failed to establish that FIR was ever sent to the court concerned. Interestingly, this point was not raised by appellants even feebly before the Court below. However, this point is no more res integra. In 1995 MPLJ 439 (Naniya Vs. State of M.P.), This court opined that there were six eye-witnesses against the appellants. It is not the case of defence that they were in any way on inimical terms with the accused persons and, therefore, the entire testimony of all the six eyewitnesses cannot be rejected merely because the fact of information being sent to the Magistrate under section 157 Cr.P.C. has not been proved.

38. Similarly, in 2002 (5) MPLJ 359 (State of M.P. Vs. Pattu @ Pratap Singh) also it was held that "mere non compliance of section 157 Cr.P.C. shall not led to throwing out the case of the prosecution. Compliance of this provision is an external check provided in Code of Criminal Procedure to prevent ante-dating of FIR."

92. In the light of aforementioned observation of Division Bench of this Court, it appears that the submission of learned Senior Counsel for appellants on this ground has no force.

93. Farzana (PW-7) stated that accused persons used to say that her husband, deceased Arif got Raja killed, brother of Achchhi alias Iliyas. This was the reason for killing the deceased. SI K.S. Singh (PW-21) admitted in paragraph 99 of cross-examination that there was animosity between both the parties. Therefore, it appears that there was prior enmity between both the parties therefore, the accused persons had motive to kill the deceased.

94. It appears from the statement of Mohammad Arshad (PW-6) and Farzana (PW-7) that the accused persons had come on the place of incident together with deadly weapons and started using them as soon as they came and with the aid of their respective weapons started to give blows to the deceased. It also appears that when the deceased enterred inside the dental clinic, accused persons followed him and inside the clinic they had beaten him brutally by their respective weapons. The deceased had died due to several injuries inflicted upon him by the accused persons. Number of accused was more than 5. Therefore, it is 60 also clear that the accused persons had assembled unlawfully with the intent to kill the deceased in furtherance of their common object. The accused persons used criminal force on deceased with deadly weapons and in furtherance of their common object killed the deceased.

95. In view of foregoing analysis, the prosecution has established its case beyond all reasonable doubt. In our considered opinion the court below has appreciated the evidence on legal parameters and same is not based on any surmises and conjectures. Therefore, the court below has rightly convicted and sentenced the appellants in the offence. Hence, no interference of this Court is warranted.

96. Accordingly, appeal fails and is hereby dismissed. The conviction and sentence passed by the learned trial Court is affirmed. The appellants who are in the jail, be intimated about the outcome of their appeal through the Jail Superintendent concerned. A copy of this order alongwith the record of trial Court be also sent back to the trial Court for information and compliance.

      (SUJOY PAUL )                                         (PRAKASH CHANDRA GUPTA)
         JUDGE                                                      JUDGE
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