Madhya Pradesh High Court
Randhir vs State Of M.P. on 3 August, 2021
Author: Gurpal Singh Ahluwalia
1
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
DIVISION BENCH
G.S. Ahluwalia and Rajeev Kumar Shrivastava J.J.
(Cr.A. No. 464 of 2008)
Jagdish & Anr Vs. State of M.P
&
(Cr.A. No. 461 of 2008)
Kamlesh & Anr Vs. State of M.P.
&
(Cr.A. No. 462 of 2008)
Teerath Vs. State of M.P.
&
(Cr.A. No. 471 of 2008)
Radheshyam Meena & Anr Vs. State of M.P.
&
(Cr.A. No. 526 of 2008)
Randhir & Ors. Vs. State of M.P.
Shri Anand Gupta, Counsel for Appellants in Cr.A. No. 461/2008 and
Cr.A. No. 462 of 2008
Shri V.D. Sharma, Counsel for Appellants in Cr.A. No. 464 of 2008
and for Appellant No.2 in Cr.A. No. 471 of 2008
Shri Ashok Jain, Counsel for Appellant No. 1 in Cr.A. No. 471 of
2008
Shri Atul Gupta, Counsel for Appellants in Cr.A. No. 526 of 2008)
Shri C.P. Singh, Counsel for the State.
2
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Date of Hearing : 28/July/2021
Date of Judgment : 03 / Aug / 2021
Approved for reporting :
Heard through Video Conferencing
Judgment
03/ Aug / 2021
Per G.S. Ahluwalia J.
1. By this Common Judgment, Cr.A. No. 464/2008 (Jagdish and
another Vs. State of M.P.), Cr.A. No. 461/2008 (Kamlesh and another
Vs. State of M.P.), Cr.A. No. 462/2008 (Teerath Vs. State of M.P.),
Cr.A. No. 471 of 2008 (Radheshyam Meena and another Vs. State of
M.P.) and Cr.A. No. 526/2008 (Randhir and others Vs. State of M.P.
(Cr.A. No. 526 of 2008) shall be decided.
2. According to prosecution case, the complainant Raghuvir
(P.W.2), lodged a F.I.R. on 12-4-2006 at 10:30 A.M., on the
allegations that about 2 years back, one Ramcharan Meena was
killed. In that case, Lakhan son of brother of complainant, nephew
Rambabu and Sonu, son of Dharat Singh were going a motor cycle to
attend the Court date. The complainant Raghuvir, his brother
Badrilal and nephew Ganpat were on another motor cycle. The
Tractor of Teerath Meena was already parked near village Umarma.
The motor cycle of Randhir was parked in front of the Tractor. The
movement, motor cycle of Lakhan passed by the side of Tractor, at
3
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
that time, Radheshyam fired a gun shot from his .12 bore single barrel
licensed gun causing injury to Lakhan as a result he fell down from
the motor cycle. Randhir, Jitendra and Kamlesh amputated the neck
of Lakhan. Sonu and Rambabu tried to run away in order to save their
lives. Teerath Meena fired a gun shot causing injury to Sonu, as a
result he also fell down. Rameshwar and Ghasilal caused multiple
injuries on neck and other parts of the body of Sonu. Pritam
assaulted on the back side of his head by means of Lohangi, Hemraj
Meena assaulted Lakhan by Farsi, Badri assaulted by lathi with
intention to cause death. Randhir fired a gun shot causing injury to
Rambabu. Jagdish, Satish, Ramdayal, Vishnu, Gopal and Asgar Khan
were following them and were armed with Farsi, lathi. The
complainant, by turning his motor cycle, went towards his village.
When the assailants went away, he again came back to the place of
incident, and found that Lakhan and Sonu were dead. Head of
Lakhan was missing. The fingers of right hand of Sonu were
amputated and one finger was missing. Four deep wounds of gun
shots were on the right side of the shoulder of Lakhan. Rambabu
while running away had fallen in a field. He had sustained gun shot
injuries on his back. Accordingly, the complainant came to the police
station with the dead bodies of Lakhan and Sonu as well as also the
injured Rambabu on a tractor trolley. Accordingly, the police
4
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
registered F.I.R. in Crime No. 130,131 of 2006 at Police Station
Kumbhraj, Distt. Guna against Radheshyam Meena, Teerath Meena,
Badrilal, Gajraj Meena, Rameshwar Meena, Vishal Meena, Pritam
Meena, Jitendra Meena, Randhir Meena, Raghuvir Meena, Kamlesh
@ Dublya, Jagdish, Satish, Hemraj, Ramdayal, Ghasilal, and Vishnu
Meena.
3. The spot map was prepared. The dead bodies of Lakhan and
Sonu were sent for Postmortem, Rambabu was sent for medical
examination, the statements of the witnesses were recorded, the
accused persons were arrested, weapons were seized, the
incriminating articles were sent to F.S.L., Sagar, the head of Lakhan
was recovered, and after completing the investigation, the police filed
Charge-sheet against Randhir, Vishnu Prasad, Gopal, Dhapobai,
Pritam, Jitendra, Kamlesh, Raghuvir, Ghasilal, Ramdayal, Gajraj,
Rameshwar, Vishal, Jagdish, Hemraj and Teerath Singh for offence
under Sections 147, 148,149,341,307,302,201,109 of I.P.C. and
under Sections 25/27, 25B,30 of Arms Act. The co-accused
Radheshyam, Satish and Asgar Khan were absconding. Later on
Radheshyam Meena and Satish were arrested on 6-11-2006 and
Asgar Khan surrendered on 23-5-2007. Accordingly, supplementary
charge-sheets were also filed against Radheshyam Meena, Satish and
Asgar Khan for offence under Sections 147,
5
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
148,149,341,307,302,201,109 of I.P.C. and under Sections 25/27,
25B,30 of Arms Act.
4. The Trial Court by order dated 4-10-2006, framed charges
under Sections 147,148, 302/149 (For murder of Lakhan), 302/149
(For murder of Sonu), 307/149 of I.P.C., 27, 25(1)(A), 25(1)(A), 27,
and 30 of Arms Act against Gajraj Singh, Raghuvir, Ghasilal,
Ramdayal, Teerath Singh, Hemraj Meena, and Jagdish Meena. By
order dated 4-10-2006 framed charges under Sections 148, 149,
302/149 (For murder of Lakhan) 302/149 (For murder of Sonu),
307/149, of IPC, 27, 25(1)(A), 25(1)(A), 27, and 30 of Arms Act
against Vishnu Prasad (Acquitted), Kamlesh Meena, Vishal
(Acquitted), Rameshwar Meena, Randhir Meena, Pritam Meena,
Gopal Meena (Acquitted), Jitendra Meena, Dhapobai (Acquitted),
By order dated 1-2-2007, Charges under Sections 147,148,302/149
(For murder of Lakhan), 302/149 (For murder of Sonu), 307/149 of
I.P.C. and under Sections 27, 25(1)(A), 25(1)(A), 27, and 30 of Arms
Act were framed against Radheshyam and Satish. By order dated 16-
7-2007 framed charges against Asgar Khan, under Sections
147,148,302/149 (For murder of Lakhan), 302/149 (For murder of
Sonu), 307/149 of I.P.C. and under Sections 27, 25(1)(A), 25(1)(A),
27, and 30 of Arms Act.
5. All the appellants and acquitted persons, abjured their guilt
6
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
and pleaded not guilty.
6. The prosecution, in order to prove its case, examined Surya
Prakash Sharma (P.W.1), Raghuvir Singh (P.W.2), Rambabu (P.W.3),
Ramdayal (P.W.4), Ganpat Singh (P.W.5), Badrilal (P.W.6),
Radheshyam (P.W.7), Ramswaroop Meena (P.W.8), Majboot Singh
(P.W.9), Sandeep Kumar (P.W.10), Haricharan (P.W.11), Babulal
(P.W.12), Jamni Lal (P.W. 13), Radheshyam (P.W. 14), Girraj (P.W.
15), Kailashchandra Kabra (P.W. 16), Harnam Singh (P.W. 17), Dr.
Yogesh Shakya (P.W. 18), S.S. Tomar (P.W.19), Anil Sharma (P.W.
20), Dr. D.S. Badkur (P.W. 21), Kailash (P.W.22), and Kanhaiyalal
(P.W. 23).
7. The accused persons examined Jai Kumar Jain (D.W.1),
Kaluram (D.W.2), Shyamlal (D.W.3), Bhutilal (D.W.4), Dr.
Jawaharlal Dwivedi (D.W.5), Pooranlal (D.W.6), and Naval Kishore
(D.W.7).
8. The Trial Court by judgment dated 24-5-2008, acquitted
Vishnu Prasad, Gopal, Asgar, Dhapobai, Gajraj and Vishal, and
convicted the appellants Randhir, Pritam, Jitendra, Kamlesh,
Raghuvir, Ghasilal, Satish, Radheshyam, Ramdayal, Rameshwar,
Jagdish, Hemraj, and Teerath Singh for the following offences :
Name of Accused Conviction under Sentence
Section
7
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
All Appellants 302/149 I.P.C. for Life Imprisonment
committing murder of and fine of Rs. 1000/-
Lakhan in default 1 year R.I.
All Appellants 302/149 I.P.C. for Life Imprisonment
committing murder of and fine of Rs. 1000/-
Sonu in default 1 year R.I.
All Appellants 307/149 of I.P.C. for R.I. For 7 years and
attempting to murder fine of Rs. 700/- with
Rambabu default sentence of 1
year R.I.
All Appellants 147 and 148 (No R.I. For 1 year and a
separate sentence for fine of Rs. 500/- with
each of offence) default sentence of 3
Months R.I.
9. Challenging the impugned judgment and sentence passed by
the Trial Court, it is submitted by the Counsel for the appellants, that
there are material omissions and contradictions in the evidence of the
witnesses. The evidence of the witnesses is not corroborated by
forensic examination. Admittedly there was an enmity between the
parties, and the complainant party was facing trial for murder of
Ramcharan, therefore, the appellants have been falsely implicated.
10. Per contra, the Counsel for the State has supported the findings
recorded by the Trial Court. It is submitted that enmity is a double
edged weapon and on one hand, if enmity provides a motive to
falsely implicate a person, but at the same time, it also provides
motive to commit the offence. The manner in which both the
deceased persons were beheaded by the appellants, clearly indicates,
that the offence was committed with a solitary intention to take
8
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
revenge. The case is based on direct evidence and every minor
omission would not be a contradiction.
11. Heard the learned Counsel for the parties.
12. Before adverting to the facts of the case, this Court thinks it
apposite to consider as to whether the death of Lakhan and Sonu was
homicidal in nature or not?
13. Dr. Yogesh Shakya (P.W.18) has conducted the Postmortem of
Dead body of Lakhan and found the following injuries :
(I) An incised wound cutting whole of the neck
separating head with rest of the body (Head Absent) 20 cm
X 15 cm X 7cm, all soft and hard tissues cut.
(ii) An incised lacerated wound 8 X 4 X 2 Cm at right
shoulder upper area
(iii) A punctured wound 3 X 2 X 4 Cm at right shoulder
front side
(iv) A punctured wound 2 X 2 X 3 Cm below and right to
3rd one.
(v) A punctured wound 2 X 2 X 3 Cm below and Medial
to 3rd one.
(vi) A punctured wound 2 X 2 X 3 Cm below 3 rd and 4th
wound.
(vii) An incised wound at back of Lt. Palm 5 X 1 X 1 Cm.
(viii) An incised wound at right elbow 3 X 1 X 1 Cm.
(ix) An incised wound at right elbow 3 X 1 X 1 Cm below
8th wound.
(Punctured wounds No. 3 to 6 were caused by pallets injury,
rest all wounds by hard and sharp cutting object).
Pallets in four number, found in right upper shoulder chest
wall were packed and sealed and were handed over to
police.
14. The Post Mortem Report is Ex. P.42.
15. The severed head of the deceased Lakhan was seized
subsequently on the confessional statements of Jagdish, Teerath and
9
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Hemraj.
16. The severed head of the deceased Lakhan was examined by Dr.
D.S. Badkur (P.W. 21) and found the following injuries :
"On opening it contains a human head in decomposed
state. Scalp hair black, slightly curly about 2 to 2.5 inches
long. The head is deformed on right parietal and temporal
region due to fracture and fractured fragments are present
within the cranial cavity. The right of head is smudged with
blood. Both eye balls are decomposed and have collapsed.
The nose is flattened, mouth closed and tongue is inside and
liquefied. The soft tissues including skin is decomposed
and is blackish in colour. Left pinna (Outer ear) present but
is decomposed. An incised wound on left side of fact
extending from the left angle of mandible to chin. The skin
margin are sharply cut at the level of neck region.
Examination of Skull
Male in character. Superciliary arches and muscular
attachments are prominent. 4 cervical vertebra (C1 to C4)
are still attached at the base of skull by means of
decomposed tissues and ligaments.
Injuries present are (i) Incised wound sharp cut 4 1/2
inches long on right side of Occipital bone just posterior to
the Lambdoid suture starting from the junction of coronal
and lambdoid suture directed towards and laterally.
Sharp cut 2.0 inches long on right side of frontal bone just
above the right orbital margin. In between, the 1 & 2
incised wounds the right tempero-parietal and frontal bone
is also fragments into multiple pieces and the coronal and
sagittal sutures are separated. The fractured bone pieces are
lying in the cranial cavity. The right side spheroid bone is
also fracture. The right side condylar process of mandible
is also fractured at the level of notch (Mandibular). Clotted
blood present inside cranial cavity.
Multiple sharp cuts also present on the right ramus of the
mandible with most of the bone fragments are missing.
Multiple sharp cuts present on the anterior aspect of body of
3rd and 4th cervical vertebra i.e., C3 and C4 size 1.5 to 2.0
Cm, transverse directed slightly downwards towards right.
Al teeth in both skull and mandible are present. The upper
last molars of both side are impacted.
Opinion
10
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
1. Bones/Skull, mandible and 4 cervical vertibra i.e., C1
to C4 are human region i.e., head and face along with soft
bones belong to same individual is male
Age about 25 to 30 years
Cause of death - Death could have been due to head injuries
caused by hard, sharp and heavy object and was homicidal
in nature. The sharp cuts in the cervical vertebra are also
caused by hard, sharp and heavy object.
Duration of death with one to two months approximately
from the date of examination i.e., 29-5-2006 and 30-5-2006.
However, circumstantial evidences and findings on the
remaining parts of the decapated body i.e., trunk and limbs
should also be taken into consideration.
17. The examination report is Ex. P.85.
18. In cross-examination, Dr. D.S. Badkur (P.W.21) has clarified
that the head of the deceased was having 4 major injuries, which can
be caused by 4 assaults and cannot be caused to a single assault.
19. The Post-mortem of the dead body of Sonu was conducted by
Dr. Yogesh Shakya (P.18) and found the following injuries :
(i) An incised wound 15 cm X 3 cm X 1.5 cm over head
scalp back side horizontally placed spindle shaped.
(ii) An incised wound 9 cm X 2 cm X 1.5 cm over head
scalp right side below and back to right ear obliquely
placed.
(iii) A huge incised wound over middle of neck in which
7 cm part with back skin tissue intact rest all the neck soft
and hard tissues cut 15 X 12 X 10 cm
(iv) An incised wound 7 cm X 1.5 cm X 1 cm over back
of right hand cuttings fingers with bones and joints
proximally the index finger absent by cut, thumb intact.
(v) Entry wound on the back side of the chest size 5 cm
X 4 Cm
(vi) Exit wound size 3 cm X 3 cm : there was a canal
between injury no. 5 and 6 size 18 cms in length
(vii) Fracture of bone on the upper part of right thigh
caused by hard and blunt object size 8 cm X 8 Cm.
11
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
The injuries no. 5 and 6 are gun shot injuries whereas injury
no. 7 was caused by hard and blunt object. Other injuries
were caused by sharp cutting weapon.
The cause of death was cardio respiratory failure by Coma
and Shock due to fractures and wounds.
Time since death - within 6 to 12 hours before completion
of P.M. and P.M. was finished at 5:15 P.M.
20. The post-mortem report of Sonu is Ex. P.45.
21. Dr. Yogesh Shakya (P.W. 18) had medically examined
Rambabu (P.W.3) and found the following injuries :
(i) Multiple punctured wounds at left back, buttock,
waist and front of abdomen with foreign body in form of
pallets removed from the wounds (6) in numbers (Pallets).
Sizing 1 cm X .5 cm X .5 cm with contused margins.
Patient conscious and alert.
22. The M.L.C. is Ex. P.46. Pallets were given to the constable.
23. Dr. Yogesh Shakya (P.W. 18) was cross examined by the
appellants. It was clarified that this witness has not specified the
number of punctured wound sustained by injured Rambabu (P.W.3).
There was no exit wound on the body of Rambabu (P.W.3). This
witness also clarified that he cannot clarify that which injury
sustained by Lakhan and Sonu was antemortem in nature and which
injury was postmortem. He further clarified that he did not find any
exit wound on the body of deceased Lakhan. He further clarified that
neither he has seen .12 gun nor has used it. He further clarified that
since, Rambabu had sustained gun shot injuries on his back as well as
12
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
on his front, therefore, atleast two gun shots must have been fired,
i.e., one from back and one from front. He further submitted that he
had found 9 injuries on the body of Rambabu, therefore, it is clear
that at the most maximum 9 persons were involved in causing injury
to injured Rambabu (P.W.3) and not more than that.
24. Thus, from the evidence of Dr. Yogesh Shakya (P.W. 18) and
Dr. D.S. Badkur (P.W.21) and post-mortem reports of Lakhan, Ex. P.
42 and Sonu, Ex. P.45, as well as Examination report of head of
Lakhan, Ex. P. 85, it is clear that their deaths were Homicidal in
nature. It is further clear from M.L.C. report of Rambabu (P.W. 3),
Ex. P.46, he had sustained gun shot injuries.
25. Now the question for consideration is that who have caused the
above mentioned injuries. For the convenience, this Court would
consider the case of each appellant separately.
26. On the complaint of Raghuvir (P.W.2), F.I.R., Ex P.3 was
written. Report under Section 174 of Cr.P.C., Ex. P.4 was written.
Notice under Section 175 of Cr.P.C., Ex. P.11 and P.12 were given to
witnesses. Naksha Panchayatnama, Ex. P.13 of the dead body of
Sonu, P.14 of the dead body of Lakhan, Spot Map, Ex. P.5 was
prepared. Vide Seizure Memo Ex. P.31, Blood stained earth, Plain
earth, Two broken pieces of handle of gun lying near the dead body
of Lakhan, Empty Cartridge of .12 bore gun "SKY NOCH Express",
13
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Empty Cartridge of .12 bore gun "SKY NOCH Express Shot" from
the field of Champalal, One Shaktiman Cartridge at a distance of 145
steps from the place of incident, Plain earth near the dead body of
Sonu, Blood stained earth near the dead body of Sonu, One empty
Cartridge Shaktiman found near the dead body of Sonu, another
cartridge found near the dead of Sonu, One live Cartridge of .12 bore
gun from the field of Shivlal Ahirwar, Handle of a Sword near the
dead body of Lakhan, one pair of chappals of Sonu, chappals of
Rambabu, One belt of 15 cartridges were seized from the spot. One
Steel utensil was found at a distance of 1 Km away from the place of
incident, on which the name of accused Ghasilal was engraved was
seized vide seizure memo P.29. The dead bodies were sent for post-
mortem vide requisition Ex. P.42 and P.44. The post-mortem reports
of Lakhan and Sonu are Ex. P.43 and P.45. The appellant Randhir
was arrested on 13-4-2006 vide Arrest Memo Ex. P.32, Pritam,
Jitendra, Kamlesh, Raghuvir were arrested on 22-4-2006 vide arrest
Memo Ex. P. 51, 52, 53, and 54. Ghasilal, Ramdayal, Rameshwar,
were arrested on 25-4-2006 vide arrest memo Ex. P. 55, 56, and 58
and Jagdish, Hemraj and Teerath Singh were arrested on 20-5-2006
vide arrest memo Ex. 60, 61, and 62. Radheshyam, and Satish were
arrested at a later stage.
27. It is not out of place to mention here that the complainant
14
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Raghuvir (P.W.2), Injured Rambabu (P.W.3), Ramdayal (P.W.4),
Ganpat (P.W. 5), Badrilal (P.W. 6), Radheshyam (P.W. 7),
Ramswaroop (P.W.8) and Jamnalal (P.W. 13) are eye-witnesses and
they have identified all the accused persons in the Court.
Radheshyam
28. In F.I.R., Ex. P.3, it is specifically mentioned that Radheshyam,
fired gun shot which was sustained by Lakhan and therefore, he fell
down. The evidence of Raghuvir (P.W.2), Injured Rambabu (P.W.3),
Ramdayal (P.W.4), Ganpat (P.W. 5), Badrilal (P.W. 6), Radheshyam
(P.W. 7), Ramswaroop (P.W.8) and Jamnalal (P.W. 13) is consistent
about the act of causing gun shot to the Deceased Lakhan.
Ramswaroop (P.W.8) has also stated that Radheshyam had also
assaulted Lakhan and also amputated the fingers of Sonu. He also
stated that Radheshyam had also chased Rambabu. Jamnalal (P.W.
13) has stated that Radheshyam also amputated the neck of Lakhan.
Further, the Defence Witnesses, namely Kaluram (D.W.2) and
Bhutilal (D.W.4) have claimed that they had witnessed the incident,
and the deceased Lakhan and Sonu were killed by Radheshyam, his
sons i.e., Jagdish, Hemraj and brother (must be Satish, as he is the
brother of Radheshyam. Thus, even the defence has claimed that the
offence was committed by Radheshyam and others.
Randhir
15
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
29. In F.I.R., Ex. P.3, it has been alleged by the complainant
Raghuvir (P.W.2) that Randhir amputated the neck of Lakhan. He
also caused gun shot injury to Rambabu (P.W.3). Raghuvir Singh
(P.W.2), Rambabu (P.W.3), Badrilal (P.W. 6), Radheshyam (P.W.7),
Ramswaroop (P.W.8), and Jamnalal (P.W. 13) have stated in their
Court evidence that Randhir amputated the neck of Lakhan and also
fired a gun shot on Rambabu (P.W.4). Ramdayal (P.W.4) has stated
that after Lakhan suffered gun shot injury and fell down, then
Randhir along with all other accused persons started assaulting
Lakhan. It is further alleged that Randhir also caused gun shot injury
to Rambabu (P.W.4). Ganpat Singh (P.W.5) have not stated that
Randhir had amputated the neck of Lakhan, but specifically stated
that Randhir fired a gun shot causing injury to Rambabu (P.W.4).
Similarly, Ramswaroop (P.W.8) also stated that Randhir fired at
Rambabu. Thus, except Ganpat Singh (P.W.5), all other eye-
witnesses have specifically stated that Randhir had also amputated
the neck of Lakhan. Further, all the eye witnesses have stated that
Randhir caused a gun shot injury to Rambabu (P.W.4).
30. As per F.S.L. report, the barrel of the firearm seized from
Randhir was having Nitrate, which shows that it was used.
31. Further as per F.S.L. report, blood was found on the handle of
sword seized from the possession of Randhir.
16
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Jitendra
32. In F.I.R., Ex. P.3, it is mentioned that Jitendra had severed
head of Lakhan. Raghuvir (P.W.2) and Rambabu (P.W.3) have stated
that all the accused had caused injuries to Lakhan. Ramdayal (P.W.4),
Ganpat Singh (P.W.5), Badrilal (P.W.6), Radheshyam (P.W.7), and
Ramswaroop (P.W.8) have stated that Jitendra assaulted the deceased
by means of Sword. Similarly, Rambabu (P.W.3) also stated that
Jitendra had also fired at him and Ganpat Singh (P.W.5) has stated
that Jitendra had also chased him. Ramdayal (P.W.4) and
Radheshyam (P.W.7) have stated that all the accused persons had
assaulted the deceased Sonu.
Kamlesh
33. In F.I.R., Ex. P.3, it is alleged that Kamlesh had severed head of
Lakhan. Raghuvir (P.W.2), Rambabu (P.W.3), Ramdayal (P.W. 4)
Badrilal (P.W. 6) and Ramswaroop (PW.8) have stated that Kamlesh
had caused injuries to deceased Lakhan. Raghuvir (P.W.2) has
further stated that Kamlesh after exhorting to kill Sonu, assaulted him
by means of Sword, whereas Ganpat Singh (P.W. 5) has stated that
Kamlesh after chasing Sonu, assaulted the deceased Sonu by Farsi,
whereas Ramdayal (P.W.4) and Badrilal (P.W. 6) have stated that all
the accused persons had assaulted Sonu.
Pritam
17
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
34. In F.I.R., Ex. P.3, it is alleged that Pritam had assaulted Sonu by
Lohangi, whereas Ramdayal (P.W.4) has stated that all the accused
persons assaulted Sonu and Badrilal (P.W.6) has stated that injuries
were caused by Pritam to deceased Sonu. Radheshyam (P.W. 7) has
stated that all the accused persons assaulted Sonu. Raghuvir (P.W.2),
Rambabu (P.W.3), Badrilal (P.W.6) and Radheshyam (P.W. 7) have
stated that all the accused persons had assaulted Lakhan.
Teerath
35. In F.I.R., Ex. P.3, it is specifically mentioned that Teerath
caused gun shot injury to Sonu. All the eye-witnesses, namely
Raghuvir (P.W.2), Rambabu (P.W.3), Ramdayal (P.W.4), Ganpat
Singh (P.W.5), Badrilal (P.W. 6), Radheshyam (P.W7), Ramswaroop
(P.W.8) and Jamnalal (P.W.13) have stated in same voice that Teerath
caused gun shot injury to Sonu. Ganpat Singh (P.W. 5) has stated that
Teerath also assaulted Lakhan, whereas Raghuvir (P.W.2), Rambabu
(P.W.3), Badrilal (P.W.6) and Radheshyam (P.W.7) have stated that all
the accused persons assaulted the deceased Lakhan. Ramswaroop
(P.W. 8)has also stated that Teerath also chased Rambabu.
36. Further according prosecution story, two broken pieces of
handles of firearm were seized from the spot. In the F.S.L. report,
one broken piece was marked as Article G and the single barrel gun
seized from the possession of Teerath was marked as A/2. On
18
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
examination it was found that Article G had physically fit in the
broken space of handle of the gun seized from the possession of
Teerath. Similarly, one fired cartridge which was seized from the
spot was marked as EC4 and it was found that the said cartridge was
fired from the single barrel gun, A2, which was seized from the
possession of Teerath. Thus, apart from ocular evidence, it was also
found that the gun seized from the possession of Teerath was used in
the incident. Further, Nitrate was found in the barrel of Single Barrel
gun as well as in the country made pistol seized from the possession
of Teerath, which clearly shows that the said fire arms were used.
Further the head of Lakhan was also seized vide seizure memo Ex.
P.21 on the disclosure statement made by Teerath.
Rameshwar
37. In F.I.R, Ex. P.3, it is mentioned that Rameshwar caused injury
to Sonu by Farsi. Raghuvir (P.W.2) has stated that Rameshwar
caused injury to Sonu by Farsi, whereas Rambabu (P.W.3) has stated
that Rameshwar had caused injury on the neck of Sonu by Sword.
Ramdayal (P.W.4) has stated that all the accused persons, assaulted
the deceased Sonu, whereas Badrilal (P.W.6) and Ramswaroop
(P.W.8) have stated that Rameshwar caused injuries to Sonu.
Radheshyam (P.W.7) has stated that Rameshwar along with others
surrounded Sonu and caused injuries. It was also stated by Rambabu
19
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
(P.W.3) that Rameshwar had also chased him. Raghuvir (P.W.2),
Rambabu (P.W.3) and Badrilal (P.W. 6) have stated that all the
accused persons had caused injuries to Lakhan and had cut him into
pieces. Further, the Defence Witnesses, namely Kaluram (D.W.2) and
Bhutilal (D.W.4) have claimed that they had witnessed the incident,
and the deceased Lakhan and Sonu were killed by Radheshyam, his
sons i.e., Jagdish, Hemraj and brother (must be Satish, as he is the
brother of Radheshyam. Thus, even the defence has claimed that the
offence was committed by Hemraj and others.
Ghasiram
38. In F.I.R, Ex. P.3, it is mentioned that Ghasiram after exhorting
caused injuries to Sonu by Farsi. Rambabu (P.W.3) has stated that
Ghasiram caused injury on the thigh of Sonu. Ramdayal (P.W.4) has
stated that all the accused persons caused injuries to Sonu. Badrilal
(P.W.6) and Ramswaroop (P.W.8) have stated that Ghasiram caused
injuries to Sonu and Radheshyam (P.W.7) has stated that Ghasiram
and others surrounded the deceased Sonu and assaulted him.
Raghuvir (P.W.2), Rambabu (P.W.3), and Badrilal (P.W.6) have stated
that all the accused persons had assaulted the deceased Lakhan by
cutting him into pieces whereas Ganpat Singh (P.W. 5) has stated that
Ghasiram had assaulted Lakhan by Sword.
Hemraj
20
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
39. In F.I.R., Ex. P.3, it is alleged that Hemraj caused injury to
Lakhan by Farsi. Whereas Raghuvir (P.W.2) and Rambabu (P.W. 3)
have stated that all the accused persons, cut the deceased Lakhan into
pieces. Ramdayal (P.W.4), Badrilal (P.W.6) Radheshyam (P.W.7) and
Ramswaroop (P.W.8) have stated that Hemraj assaulted Lakhan by
Sword. It is further alleged by Raghuvir (P.W. 2) that Hemraj
amputated the fingers of Sonu whereas Ramdayal (P.W.4), and
Radheshyam (P.W.7) have stated that all the accused persons
assaulted the deceased Sonu. Ramswaroop (P.W.8) has stated that
Hemraj also assaulted the deceased Sonu. Raghuvir (P.W.2),
Rambabu (P.W.3), Ramdayal (P.W.4), Badrilal (P.W.6) and
Radheshyam (P.W.7) have stated that Hemraj had fired a gun shot on
Rambabu, whereas Ganpat Singh (P.W.5) Ramswaroop (P.W.8) and
Jamnalal (P.W.13) have stated that Hemraj had also chased Rambabu.
Further the head of Lakhan was also seized vide seizure memo Ex.
P.21 on the disclosure statement made by Hemraj.
Jagdish
40. In F.I.R., Ex. P.3, it is alleged that Jagdish along with others
chased the witnesses, whereas Raghuvir (P.W.2) and Rambabu (P.W.
3) have stated that all the accused persons, cut the deceased Lakhan
into pieces, whereas Badrilal (P.W. 6) and Radheshyam (P.W.7) have
stated that all the accused persons assaulted the deceased Lakhan.
21
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Ramswaroop (P.W.8) has stated that Jagdish had also assaulted
Lakhan. Raghuvir (P.W.2) has also stated that Jagdish had amputated
the fingers of Sonu. Ramdayal (P.W.4), Ganpat Singh (P.W.5) and
Radheshyam (P.W.7) have stated that all the accused persons had
assaulted Sonu, whereas Ramswaroop (P.W.8) has stated that Jagdish
had also assaulted Sonu. Ganpat Singh (P.W.5) has also stated that
Jagdish had also chased Rambabu. Further the head of Lakhan was
also seized vide seizure memo Ex. P.21 on the disclosure statement
made by Jagdish. Further, the Defence Witnesses, namely Kaluram
(D.W.2) and Bhutilal (D.W.4) have claimed that they had witnessed
the incident, and the deceased Lakhan and Sonu were killed by
Radheshyam, his sons i.e., Jagdish, Hemraj and brother (must be
Satish, as he is the brother of Radheshyam. Thus, even the defence
has claimed that the offence was committed by Jagdish and others.
Satish
41. In F.I.R., Ex. P.3, it is alleged that Satish had chased the
witnesses. Raghuvir (P.W.2) and Rambabu (P.W.3) have stated that
all the accused persons had cut the deceased Lakhan into pieces.
Radheshyam (P.W.7) has stated that Satish had assaulted Lakhan by
Sword. It is further stated by Rambabu (P.W.3) that Satish had
amputated the fingers of Sonu, whereas Ramdayal (P.W.4) has stated
that all the accused persons assaulted Sonu. Ganpat Singh (P.W.5)
22
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
has stated that Satish had assaulted Sonu by Farsi, whereas Badrilal
(P.W.6) and Ramswaroop (P.W.8) have stated that Satish had caused
injuries to Sonu. Radheshyam (P.W.7) has stated that all the accused
persons had assaulted the deceased Sonu.
Ramdayal
42. In F.I.R., Ex. P.3, it is alleged that Ramdayal, had chased the
witnesses. Raghuvir (P.W.2) and Rambabu (P.W.3) have stated that
all the accused persons had cut the deceased Lakhan into pieces.
Similarly Ramdayal (P.W.4) has stated that all the accused persons
had assaulted Sonu. Ganpat Singh (P.W.5) has stated that Ramdayal
had chased and assaulted Sonu by farsi, whereas Badrilal (P.W.6) has
stated that Ramdayal also caused injuries to Sonu. Radheshyam
(P.W.7) has stated that all the accused persons had assaulted Sonu.
Further, the Defence Witness Bhutilal (D.W.4) has claimed that he
had witnessed the incident, and the deceased Lakhan and Sonu were
killed by Radheshyam, his sons i.e., Jagdish, Hemraj and brother
(must be Satish, as he is the brother of Radheshyam). Thus, even the
defence has claimed that the offence was committed by Satish and
others.
Raghuvir
43. Ganpat Singh (P.W.5) has stated that Raghuvir had also chased
the deceased Sonu and Radheshyam (P.W.7) has stated that Raghuvir
23
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
had also chased and surrounded the deceased Sonu, and all accused
persons assaulted the deceased Sonu.
Seizure of Head of Lakhan.
44. On the confessional statements of Teerath Singh, Ex. P.20, of
Hemraj, Ex. P.22 and of Jagdish, Ex. P.23, the head of Lakhan was
recovered from a hill which was kept in a plastic bag.
45. It is submitted by the Counsel for the appellants that since, the
head was recovered from an open area, therefore, it cannot be said
that the recovery of head of Lakhan was on the discovery statement
made by Teerath, Jagdish and Hemraj.
46. Considered the submissions made by the Counsel for the
appellants.
47. Radheshyam (P.W.14) is a seizure witness. He has stated that
confessional statements, Ex. P.20, Ex.P.22 and P.23 were made by
Teerath, Jagdish and Hemraj and on their disclosur,e the severed head
of Lakhan, which was wrapped in a plastic bag was recovered. It is
submitted by the Counsel for the appellants that since, the severed
head of Lakhan was seized from an open space, therefore, it cannot
be said that the recovery of severed head of Lakhan was on the
disclosure made by Teerath, Jagdish and Hemraj.
48. Unless and until it is pointed out from the evidence of the
witnesses, that the head of Lakhan was visible from naked eye and
24
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
could have been easily noticed by any by-passer, the recovery from
an open area cannot be ignored, as it is within the knowledge of the
appellants that where they have kept the head of Lakhan. Further, the
severed head of Lakhan was recovered from the forest area of a Hill,
which was not easily accessible to general public. Further, the
severed head of Lakhan was wrapped in a plastic bag.
The Supreme Court in the case of State of Maharashtra Vs.
Bharat Fakira Dhiwar reported in (2002)1 SCC 622 has held as
under :
22. In the present case the grinding stone was found in tall
grass. The pants and underwear were buried. They were out
of visibility of others in normal circumstances. Until they
were disinterred, at the instance of the respondent, their
hidden state had remained unhampered. The respondent
alone knew where they were until he disclosed it. Thus we
see no substance in this submission also.
49. The Supreme Court in the case of Yakub Abdul Razak
Memon v. State of Maharashtra, reported in (2013) 13 SCC 1 has
held as under :
1844. On the issue of recovery, this Court in State of H.P. v.
Jeet Singh, held: (SCC p. 378, para 26)
"26. There is nothing in Section 27 of the Evidence
Act which renders the statement of the accused
inadmissible if recovery of the articles was made from
any place which is 'open or accessible to others'. It is
a fallacious notion that when recovery of any
incriminating article was made from a place which is
open or accessible to others, it would vitiate the
evidence under Section 27 of the Evidence Act. Any
object can be concealed in places which are open or
accessible to others. For example, if the article is
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
buried in the main roadside or if it is concealed
beneath dry leaves lying on public places or kept
hidden in a public office, the article would remain out
of the visibility of others in normal circumstances.
Until such article is disinterred, its hidden state would
remain unhampered. The person who hid it alone
knows where it is until he discloses that fact to any
other person. Hence, the crucial question is not
whether the place was accessible to others or not but
whether it was ordinarily visible to others. If it is not,
then it is immaterial that the concealed place is
accessible to others."
(emphasis supplied)
1845. In State of Maharashtra v. Bharat Fakira Dhiwar,
this Court also dealt with this issue.
1846. Thus, in view of the above, the submission made by
Mr Mushtaq Ahmed, stating that as the recovery had been
made from an open place to which all persons had access,
cannot be relied upon and is not worth acceptance.
1847. Undoubtedly, the appellant's disclosure statement had
been made before the police, as well as the panch witness.
The fact that he did not disclose the place where the
contraband had been hidden remains entirely insignificant,
for the reason that he had led the police party to the said
place, and that the said recovery had been made at his
behest. The open space from where the recovery had been
made though was accessible to anybody, it must be
remembered that the contraband had been hidden, and that
it was only after digging was done at the place shown by
the appellant, that such recovery was made. Hence, it would
have been impossible for a normal person having access to
the said place, to know where the contraband goods were
hidden.
50. It is next contended by the Counsel for the appellants that
since, the recovery of the severed head of Lakhan was on the joint
disclosure by three appellants, therefore, it cannot be said that the
severed head of Lakhan was recovered from the discovery
information given by any of them.
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
51. The submission made by the Counsel for the appellants is
misconceived and is hereby rejected.
52. The Supreme Court in the case of Kishore Bhadke Vs. State
of Maharashtra, reported in AIR 2017 SC 279 has held as under :
19. It was contended by the counsel for the accused No.3
that the evidence regarding discovery of the dead body of
Raman cannot be used against accused No.3. Inasmuch as,
when accused No.3 gave his statement and recorded in the
form of Memorandum under Section 27 of the Evidence
Act, the Police already knew about the spot where the dead
body was thrown as it was disclosed by accused No.2. It
was contended that the statement made by accused No.2 can
be used only against accused No.2. This argument has been
negatived by the Trial Court after analyzing the decisions
which were brought to its notice, as can be discerned from
para 46 to para 53 of the judgment. The Trial Court found
that in the present case the accused Nos.2 and 3 made
disclosure (about the spot where dead body of Raman was
thrown by them) one after another in quick succession and
that their statement came to be recorded separately. The only
thing that had happened was a joint discovery made at the
instance of both the accused Nos.2 and 3, on proceeding to
the spot along with the police. Section 27 of the Evidence
Act is an exception to Section 25 of the Act. Section 25
mandates that no confession to a Police Officer while in
police custody shall be proved as against a person accused
of any offence. Section 27, however, provides that any fact
deposed to and discovered in consequence of information
received from a person accused of any offence, in the
custody of a Police Officer, so much of such information,
whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved. The
fact where the dead body of deceased Raman was disposed,
was disclosed by both the accused Nos.2 and 3 to the
Investigating Officer in the presence of SK Idris (PW 2) one
after another on 12th May, 2003 at 3.05 hrs. and 3.25 hrs.
respectively. The discovery was made only after accused
Nos.2 and 3 were taken together by the police to the spot in
the neighbouring State (Madhya Pradesh), where the
recovery Panchnama was recorded bearing Exh.76A. In
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
other words, the disclosure of the relevant fact by accused
No.3 to the Investigating Officer preceeded the discovery of
dead body from the disclosed spot at the instance of both the
accused Nos. 2 and 3. It was not a case of recording of
statement of accused No.3 after discovery nor a joint
statement of accused Nos.2 and 3, but disclosure made by
them separately in quick succession to the Investigating
Officer, preceding the discovery of the fact so stated. The
fact disclosed by them, therefore, and the discovery made at
their instance, was admissible against both the accused in
terms of Section 27 of the Evidence Act.
20. In the case of State (NCT of Delhi) v. Navjot
Sandhu,20this Court has held that a joint disclosure or
simultaneous disclosures, per se, are not inadmissible under
Section 27. A person accused need not necessarily be a
single person, but it could be a plurality of the accused. The
Court held that a joint or simultaneous disclosure is a myth,
because two or more accused persons would not have
uttered informatory words in chorus. When two persons in
custody are interrogated separately and simultaneously and
both of them may furnish similar information leading to the
discovery of fact which was reduced into writing, such
disclosure by two or more persons in police custody do not
go out of the purview of Section 27 altogether. What is
relevant is that information given by one after the other
without any break, almost simultaneously, as in the present
case and such information is followed up by pointing out
the material things by both of them then there is no good
reason to eschew such evidence from the regime of Section
27. Whether that information is credible is a matter of
evaluation of evidence. The Courts below have accepted the
prosecution version in this behalf, being credible. Suffice it
to say that the disclosure made by Accused No. 3 about the
relevant fact, per se, is not inadmissible.
53. Thus, the recovery of head of Lakhan on the disclosure
statements made by Teerth, Jagdish and Hemraj is proved beyond
reasonable doubt.
Seizure of Weapons
54. On the memorandum, Ex. P.18 of Randir, one katta and sword
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
was seized vide seizure memo P.19/75. One Rajdoot Motor cycle
was also seized vide seizure memo Ex. P.30.
55. On memorandum Ex. P.67 of Pritam, one Lohangi was seized
vide seizure meme Ex. P.71.
56. On memorandum, Ex. P.69, of Jitendra, one Sword was seized
vide seizure memo Ex. P. 72.
57. On memorandum, Ex. P.68 of Kamlesh, one Sword was seized
vide seizure memo Ex. P.73.
58. On memorandum Ex. P.70 of Raghuvir, one lathi was seized
vide seizure memo P.74.
59. On memorandum, Ex. P.23 of Jagdish, the severed head of
Lakhan was seized vide seizure memo Ex. P.21
60. On memorandum, Ex. P.22 of Hemraj, the severed head of
Lakhan was seized vide seizure memo Ex. P.21.
61. On memorandum, Ex. P.20 of Teerath, the severed head of
Lakhan was seized vide seizure memo Ex. P.21
62. On memorandum, Ex. P.26 of Jagdish, one lathi was seized
vide seizure memo P.63.
63. On memorandum, Ex. P.24 of Hemraj, one lathi was seized
vide seizure memo P.64.
64. On memorandum Ex. P.25 of Teerath, one .12 single barrel
with with broken handle and one .12 bore pistol with broken handles
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
were seized.
65. On memorandum Ex. P.70 of Raghuvir, Lathi was seized vide
seizure memo P.74.
66. By letter dated 14-6-2006, Ex. P.80, the severed head of
Lakhan with his 3 photographs were sent to F.S.L. Sagar to give a
report as to whether the severed head is of Lakhan or not?
67. By letter dated 4-7-2006, Ex. P.81 the incriminating articles
were sent to F.S.L. Sagar and F.S.L. Report was admitted in the light
of Section 293 of Cr.P.C.
68. Two broken pieces of handles of guns were seized from the
spot. In the F.S.L. report, one broken piece of handle was marked as
Article G and the single barrel gun seized from the possession of
Teerath is marked as Article A2. As per F.S.L., Article G which is a
broken piece of handle of a gun got physically fit at the broken area
of handle of gun Article A2 (seized from Teerath).
69. As per F.S.L. report, one fired cartridge EC4, was fired from
the gun seized from the possession of Teerath, Article A2.
70. The .12 live cartridge could have been fired from gun/pistol A1
to A3 i.e., seized from Randhir A1, and Teerath A2 and A.3. Nitrate
was found in the barrel of pistol A1 (Seized from Randhir), Single
Barrel gun A2 (Seized from Teerath) and Country made pistol A3
(Seized from Teerath). Thus, it is clear that in all the fire arms, the
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
presence of Nitrate in their barrels was found, which is indicative of
fact, that gun shots were fired.
71. It was also held that the pallets recovered from the body of
Rambabu could have been fired from A1,A2 and A3.
72. As per the F.S.L., no blood was found on any of the weapon
seized from the possession of the accused persons, except on the
handle of Sword seized from the possession of Randhir.
73. Challenging the veracity of the evidence of the witnesses, it is
submitted by the Counsel for the appellants, that since, the witnesses
and their relatives are facing trial for killing Ramcharan, therefore,
they are interested and related witnesses and thus, are not reliable.
74. Considered the submissions made by the Counsel for the
parties.
75. Appellant Radheshyam who is alleged to have killed Lakhan
by causing gun shot injury, is the son of Ramcharan, whereas
Appellants Jagdish, Hemraj are sons of Appellants Radheshyam.
Appellants Randhir Singh, Pritam and Jitendra are sons of Appellant
Ramdayal. Appellant Rameshwar is the son of Appellant Ghasilal.
Shrivallabh was one of the witness of murder case of Ramcharan and
Appellant Raghuvir and Kamlesh are sons of Shrivallabh. Deceased
Lakhan Singh is the son of Dharat Singh who was also facing trial for
committing murder of Ramcharan. Raghuvir (P.W.2), Badrilal
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
(P.W.6), Ramswaroop (P.W.8), Ramdayal (P.W.7) and Rambabu
(P.W.3) were also accused for committing murder of Ramcharan.
Deceased Lakhan Singh was also one of the accused of committing
murder of Ramcharan. The appellants have relied upon judgment
dated 3-4-2007, Ex. D.17, passed by Add. Sessions Judge, Chachoda,
Distt. Guna in S.T. No. 99/2005, by which all the accused persons
have been convicted.
76. From the judgment, Ex. D.17, it is clear that Ramcharan had
died because of incised wound on his head. In Sessions Trial No.
99/2005, Radheshyam, Jagdish, Hemraj, Ramdayal, Pritam Singh,
were also the witnesses.
77. In the F.I.R., Ex. P.3, it has been specifically mentioned by
Raghuvir (P.W.2) that they were going to attend the Court case. This
witness in his Court evidence has stated that Appellant Randhir had
abducted Karibai, a girl of the family of this witness. After the death
of grand mother of this witness, it was decided that they will not
invite the family of accused persons, and therefore, enmity started
between both the families and on earlier occasions also, fight had
taken place between both the parties. In Sessions Trial No. 99/2005,
Ex. D.17, the Trial Court in para 62 of the judgment has observed
that both the parties have accepted enmity with each other. Thus, it is
clear that the complainant and accused persons were on inimical
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
terms. However, enmity is a double edged weapon. On one hand, if
enmity provides a ground for falsely implicating the accused persons,
then at the same time, it also provides reason for committing the
offence. Therefore, it is necessary to appreciate the evidence of
witnesses carefully and meticulously.
78. As already pointed out, the deceased Ramcharan (S.T. No.
99/2015, Ex.D.17) had died due to head injury which was allegedly
caused by Dharat Singh, father of the deceased Lakhan. Dharat
Singh was in jail, whereas Lakhan was on bail. Thus, in order to take
revenge, the appellants had valid reason to attack Lakhan. Further,
Rambabu (P.W.3) was also an accused in S.T. No. 99/2015, Ex.D.17,
therefore, the appellants had reason to attack Rambabu (P.W.3). Sonu
was a boy of 12 years and he was not involved in any litigation
between the parties, but he was son of Dharat Singh. But the
witnesses have stated that since, the appellants were inclined to kill
every body who could have carried forwarded the lineage of the
complainant party, therefore, he too was killed.
79. As already pointed from the Post-mortem reports of Lakhan
and Sonu, their heads were severed by the accused persons. Why the
heads of Lakhan and Sonu were severed, specifically when, both of
them had already suffered gun shot injuries. The answer lies in the
post-mortem report of Ramcharan (Deceased in S.T. No. 99/2005,
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Ex. D.17). He had suffered a solitary injury on his head. Therefore,
the intention of the appellants was not only to kill Lakhan Singh who
was not only an accused in S.T. No. 99/2005, but was also the son of
Dharat Singh, who was alleged to be the main accused in S.T. No.
99/2005, but their intentions were to behead the sons of Dharat
Singh. The appellants could not get satisfaction by chopping of the
head of Lakhan, but the same was taken away by them and was
thrown in forest area of Madagan Hill which was recovered on 20-5-
2006, Ex. P.21 i.e., after 36 days of the incident, on the confessional
statements of Teerath, Ex. P.20, Hemraj, Ex.P. 22 and Jagdish Ex.
P.23. From the examination of the head of Lakhan, it was found that
various incised wounds were caused on the head of Lakhan. Even the
fingers of a 12 year old boy, Sonu, were chopped off. The brutality
shown by the appellants, clearly indicate that they were full of feeling
of revenge and accordingly, they acted in a such a brutal and ghastly
manner. Thus, it is clear that old enmity between the parties,
provided motive to the appellants to commit the offence in a most
brutal and ghastly manner. The Supreme Court in the case of Suresh
Chandra Bahri Vs. State of Bihar reported in 1995 Supp (1) SCC
80 has held as under ;
21. At the very outset we may mention that sometimes
motive plays an important role and becomes a compelling
force to commit a crime and therefore motive behind the
crime is a relevant factor for which evidence may be
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
adduced. A motive is something which prompts a person to
form an opinion or intention to do certain illegal act or even
a legal act but with illegal means with a view to achieve that
intention. In a case where there is clear proof of motive for
the commission of the crime it affords added support to the
finding of the court that the accused was guilty of the
offence charged with. But it has to be remembered that the
absence of proof of motive does not render the evidence
bearing on the guilt of the accused nonetheless
untrustworthy or unreliable because most often it is only the
perpetrator of the crime alone who knows as to what
circumstances prompted him to a certain course of action
leading to the commission of the crime.
The Supreme Court in the case of Bakshish Singh Vs. State of
Punjab reported in (2013) 2 SCC 187 has held as under :
40......When a high degree of animosity is established the
existence of the motive may be taken to be established.
80. Further, it is the case of the prosecution, that the deceased,
injured and the witnesses were coming to the Court in order to attend
the date. This fact has not been controverted by the appellants. Thus,
it is clear that the presence of the witnesses on the spot was natural.
Further, Rambabu is also an injured witness, therefore, his presence
on the spot cannot be doubted. Further, the defence witnesses,
Kaluram (D.W.2) and Bhutilal (D.W.4) have not denied that the
prosecution witnesses were not present on the spot.
The Supreme Court in the case of Mohd. Ishaque v. State of
W.B., reported in (2013) 14 SCC 581 has held as under :
16......It is trite law that the testimony of injured witnesses
is entitled to great weight and it is unlikely that they would
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
spare the real culprit and implicate an innocent person. Of
course, there is no immutable rule of appreciation of
evidence that the evidence of injured witnesses should be
mechanically accepted, it should also be in consonance with
probabilities (Ref: Makan Jivan v. State of Gujarat, Machhi
Singh v. State of Punjab, Jangir Singh v. State of Punjab).
81. Whether the related witnesses are untrustworthy or not?
82. The Supreme Court in the case of Vijendra Singh v. State of
U.P., reported in (2017) 11 SCC 129 has held as under :
31. In this regard reference to a passage from Hari Obula
Reddy v. State of A.P. would be fruitful. In the said case, a
three-Judge Bench has ruled that: (SCC pp. 683-84, para 13)
"[it cannot] be laid down as an invariable rule that interested
evidence can never form the basis of conviction unless
corroborated to a material extent in material particulars by
independent evidence. All that is necessary is that the evidence
of the interested witnesses should be subjected to careful
scrutiny and accepted with caution. If on such scrutiny, the
interested testimony is found to be intrinsically reliable or
inherently probable, it may, by itself, be sufficient, in the
circumstances of the particular case, to base a conviction
thereon."
It is worthy to note that there is a distinction between a witness
who is related and an interested witness. A relative is a natural
witness. The Court in Kartik Malhar v. State of Bihar has
opined that a close relative who is a natural witness cannot be
regarded as an interested witness, for the term "interested"
postulates that the witness must have some interest in having
the accused, somehow or the other, convicted for some animus
or for some other reason.
The Supreme Court in the case of Raju v. State of T.N.,
reported in (2012) 12 SCC 701 has held as under :
20. The first contention relates to the credibility of PW 5
Srinivasan. It was said in this regard that he was a related
witness being the elder brother of Veerappan and the son of
Marudayi, both of whom were victims of the homicidal attack.
It was also said that he was an interested witness since
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Veerappan (and therefore PW 5 Srinivasan) had some enmity
with the appellants. It was said that for both reasons, his
testimony lacks credibility.
21. What is the difference between a related witness and an
interested witness? This has been brought out in State of
Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7)
"7. ... True, it is, she is the wife of the deceased; but she
cannot be called an 'interested' witness. She is related to the
deceased. 'Related' is not equivalent to 'interested'. A witness
may be called 'interested' only when he or she derives some
benefit from the result of a litigation; in the decree in a civil
case, or in seeing an accused person punished. A witness who
is a natural one and is the only possible eyewitness in the
circumstances of a case cannot be said to be 'interested'."
22. In light of the Constitution Bench decision in State of
Bihar v. Basawan Singh, the view that a "natural witness" or
"the only possible eyewitness" cannot be an interested witness
may not be, with respect, correct. In Basawan Singh, a trap
witness (who would be a natural eyewitness) was considered
an interested witness since he was "concerned in the success of
the trap". The Constitution Bench held: (AIR p. 506, para 15)
"15. ... The correct rule is this: if any of the witnesses are
accomplices who are particeps criminis in respect of the actual
crime charged, their evidence must be treated as the evidence
of accomplices is treated; if they are not accomplices but are
partisan or interested witnesses, who are concerned in the
success of the trap, their evidence must be tested in the same
way as other interested evidence is tested by the application of
diverse considerations which must vary from case to case, and
in a proper case, the court may even look for independent
corroboration before convicting the accused person."
23. The wife of a deceased (as in Kalki), undoubtedly related to
the victim, would be interested in seeing the accused person
punished--in fact, she would be the most interested in seeing
the accused person punished. It can hardly be said that she is
not an interested witness. The view expressed in Kalki is too
narrow and generalised and needs a rethink.
24. For the time being, we are concerned with four categories
of witnesses--a third party disinterested and unrelated witness
(such as a bystander or passer-by); a third party interested
witness (such as a trap witness); a related and therefore an
interested witness (such as the wife of the victim) having an
interest in seeing that the accused is punished; a related and
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
therefore an interested witness (such as the wife or brother of
the victim) having an interest in seeing the accused punished
and also having some enmity with the accused. But, more than
the categorisation of a witness, the issue really is one of
appreciation of the evidence of a witness. A court should
examine the evidence of a related and interested witness
having an interest in seeing the accused punished and also
having some enmity with the accused with greater care and
caution than the evidence of a third party disinterested and
unrelated witness. This is all that is expected and required.
25. In the present case, PW 5 Srinivasan is not only a related
and interested witness, but also someone who has an enmity
with the appellants. His evidence, therefore, needs to be
scrutinised with great care and caution.
26. In Dalip Singh v. State of Punjab this Court observed,
without any generalisation, that a related witness would
ordinarily speak the truth, but in the case of an enmity there
may be a tendency to drag in an innocent person as an accused
--each case has to be considered on its own facts. This is what
this Court had to say: (AIR p. 366, para 26)
"26. A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted
and that usually means unless the witness has cause, such as
enmity against the accused, to wish to implicate him falsely.
Ordinarily, a close relation would be the last to screen the real
culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause for enmity,
that there is a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere fact
of relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any
sweeping generalisation. Each case must be judged on its own
facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts."
27. How the evidence of such a witness should be looked at
was again considered in Darya Singh v. State of Punjab. This
Court was of the opinion that a related or interested witness
may not be hostile to the assailant, but if he is, then his
evidence must be examined very carefully and all the
infirmities taken into account. It was observed that where the
witness shares the hostility of the victim against the assailant,
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
it would be unlikely that he would not name the real assailant
but would substitute the real assailant with the "enemy" of the
victim. This is what this Court said: (AIR p. 331, para 6)
"6. There can be no doubt that in a murder case when evidence
is given by near relatives of the victim and the murder is
alleged to have been committed by the enemy of the family,
criminal courts must examine the evidence of the interested
witnesses, like the relatives of the victim, very carefully. But a
person may be interested in the victim, being his relation or
otherwise, and may not necessarily be hostile to the accused. In
that case, the fact that the witness was related to the victim or
was his friend, may not necessarily introduce any infirmity in
his evidence. But where the witness is a close relation of the
victim and is shown to share the victim's hostility to his
assailant, that naturally makes it necessary for the criminal
courts to examine the evidence given by such witness very
carefully and scrutinise all the infirmities in that evidence
before deciding to act upon it. ... [I]t may be relevant to
remember that though the witness is hostile to the assailant, it
is not likely that he would deliberately omit to name the real
assailant and substitute in his place the name of the enemy of
the family out of malice. The desire to punish the victim would
be so powerful in his mind that he would unhesitatingly
name the real assailant and would not think of substituting in
his place the enemy of the family though he was not concerned
with the assault. It is not improbable that in giving evidence,
such a witness may name the real assailant and may add other
persons out of malice and enmity and that is a factor which has
to be borne in mind in appreciating the evidence of interested
witnesses. On principle, however, it is difficult to accept the
plea that if a witness is shown to be a relative of the deceased
and it is also shown that he shared the hostility of the victim
towards the assailant, his evidence can never be accepted
unless it is corroborated on material particulars."
28. More recently, in Waman v. State of Maharashtra this
Court dealt with the case of a related witness (though not a
witness inimical to the assailant) and while referring to and
relying upon Sarwan Singh v. State of Punjab, Balraje v. State
of Maharashtra, Prahalad Patel v. State of M.P., Israr v. State
of U.P., S. Sudershan Reddy v. State of A.P., State of U.P. v.
Naresh, Jarnail Singh v. State of Punjab and Vishnu v. State of
Rajasthan it was held: (Waman case SCC p. 302, para 20)
"20. It is clear that merely because the witnesses are related to
the complainant or the deceased, their evidence cannot be
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
thrown out. If their evidence is found to be consistent and true,
the fact of being a relative cannot by itself discredit their
evidence. In other words, the relationship is not a factor to
affect the credibility of a witness and the courts have to
scrutinise their evidence meticulously with a little care."
29. The sum and substance is that the evidence of a related or
interested witness should be meticulously and carefully
examined. In a case where the related and interested witness
may have some enmity with the assailant, the bar would need
to be raised and the evidence of the witness would have to be
examined by applying a standard of discerning scrutiny.
However, this is only a rule of prudence and not one of law, as
held in Dalip Singh and pithily reiterated in Sarwan Singh in
the following words: (Sarwan Singh case, SCC p. 376, para
10)
"10. ... The evidence of an interested witness does not suffer
from any infirmity as such, but the courts require as a rule of
prudence, not as a rule of law, that the evidence of such
witnesses should be scrutinised with a little care. Once that
approach is made and the court is satisfied that the evidence of
interested witnesses have a ring of truth such evidence could
be relied upon even without corroboration."
The Supreme Court in the case of Jodhan v. State of M.P.,
reported in (2015) 11 SCC 52 has held as under :
24. First, we shall deal with the credibility of related witnesses.
In Dalip Singh v. State of Punjab, it has been observed thus:
(AIR p. 366, para 25)
"25. We are unable to agree with the learned Judges of the
High Court that the testimony of the two eyewitnesses requires
corroboration. If the foundation for such an observation is
based on the fact that the witnesses are women and that the fate
of seven men hangs on their testimony, we know of no such
rule. If it is grounded on the reason that they are closely related
to the deceased we are unable to concur. This is a fallacy
common to many criminal cases and one which another Bench
of this Court endeavoured to dispel in Rameshwar v. State of
Rajasthan."
In the said case, it has also been further observed: (AIR p. 366,
para 26)
"26. A witness is normally to be considered independent unless
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
he or she springs from sources which are likely to be tainted
and that usually means unless the witness has cause, such as
enmity against the accused, to wish to implicate him falsely.
Ordinarily a close relative would be the last to screen the real
culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause for enmity,
that there is a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere fact
of relationship far from being a foundation is often a sure
guarantee of truth."
25. In Hari Obula Reddy v. State of A.P., the Court has ruled
that evidence of interested witnesses per se cannot be said to
be unreliable evidence. Partisanship by itself is not a valid
ground for discrediting or discarding sole testimony. We may
fruitfully reproduce a passage from the said authority: (SCC
pp. 683-84, para 13)
"13. ... an invariable rule that interested evidence can never
form the basis of conviction unless corroborated to a material
extent in material particulars by independent evidence. All that
is necessary is that the evidence of interested witnesses should
be subjected to careful scrutiny and accepted with caution. If
on such scrutiny, the interested testimony is found to be
intrinsically reliable or inherently probable, it may, by itself, be
sufficient, in the circumstances of the particular case, to base a
conviction thereon."
26. The principles that have been stated in number of decisions
are to the effect that evidence of an interested witness can be
relied upon if it is found to be trustworthy and credible.
Needless to say, a testimony, if after careful scrutiny is found
as unreliable and improbable or suspicious it ought to be
rejected. That apart, when a witness has a motive or makes
false implication, the court before relying upon his testimony
should seek corroboration in regard to material particulars.
The Supreme Court in the case of Yogesh Singh v. Mahabeer
Singh, reported in (2017) 11 SCC 195 has held as under :
24. On the issue of appreciation of evidence of interested
witnesses, Dalip Singh v. State of Punjab is one of the earliest
cases on the point. In that case, it was held as follows: (AIR p.
366, para 26)
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
"26. A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted
and that usually means unless the witness has cause, such as
enmity against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen the real
culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause for enmity,
that there is a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere fact
of relationship far from being a foundation is often a sure
guarantee of truth."
25. Similarly, in Piara Singh v. State of Punjab, this Court
held: (SCC p. 455, para 4)
"4. ... It is well settled that the evidence of interested or
inimical witnesses is to be scrutinised with care but cannot be
rejected merely on the ground of being a partisan evidence. If
on a perusal of the evidence the Court is satisfied that the
evidence is creditworthy there is no bar in the Court relying on
the said evidence."
26. In Hari Obula Reddy v. State of A.P., a three-Judge Bench
of this Court observed: (SCC pp. 683-84, para 13)
"13. ... it is well settled that interested evidence is not
necessarily unreliable evidence. Even partisanship by itself is
not a valid ground for discrediting or rejecting sworn
testimony. Nor can it be laid down as an invariable rule that
interested evidence can never form the basis of conviction
unless corroborated to a material extent in material particulars
by independent evidence. All that is necessary is that the
evidence of interested witnesses should be subjected to careful
scrutiny and accepted with caution. If on such scrutiny, the
interested testimony is found to be intrinsically reliable or
inherently probable, it may, by itself, be sufficient, in the
circumstances of the particular case, to base a conviction
thereon."
27. Again, in Ramashish Rai v. Jagdish Singh, the following
observations were made by this Court: (SCC p. 501, para 7)
"7. ... The requirement of law is that the testimony of inimical
witnesses has to be considered with caution. If otherwise the
witnesses are true and reliable their testimony cannot be
thrown out on the threshold by branding them as inimical
witnesses. By now, it is well-settled principle of law that
enmity is a double-edged sword. It can be a ground for false
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
implication. It also can be a ground for assault. Therefore, a
duty is cast upon the court to examine the testimony of inimical
witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on
this point leads to the inescapable conclusion that the evidence
of a closely related witness is required to be carefully
scrutinised and appreciated before any conclusion is made to
rest upon it, regarding the convict/accused in a given case.
Thus, the evidence cannot be disbelieved merely on the ground
that the witnesses are related to each other or to the deceased.
In case the evidence has a ring of truth to it, is cogent, credible
and trustworthy, it can, and certainly should, be relied upon.
(See Anil Rai v. State of Bihar, State of U.P. v. Jagdeo,
Bhagaloo Lodh v. State of U.P., Dahari v. State of U.P., Raju v.
State of T.N., Gangabhavani v. Rayapati Venkat Reddy and
Jodhan v. State of M.P.)
The Supreme Court in the case of Mohd. Aslam Vs. State of
U.P. reported in (1993) 3 SCC 10 has held as under :
6......The mere fact that there was enmity and bitterness
between the two groups, by itself, does not establish that
the eyewitnesses falsely implicated the accused/appellant.
83. Thus, it is clear that the evidence of a witness cannot be
thrown overboard only on the ground that he is related witness,
however, his evidence is liable to be scrutinized carefully and if his
evidence is found trustworthy, then he should be relied upon.
84. It is true that most of the witnesses were facing trial for
committing murder of Ramcharan and most of the appellants were
witnesses in the said Trial, but the manner in which the deceased
persons were killed, that clearly shows that the gruesome and ghastly
act was done with a solitary intention to take revenge. Further, all
the witnesses were going to Court to attend the Court proceedings.
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Therefore, their presence on the spot is also not doubtful. Further,
the F.I.R. was lodged within 30 minutes of the incident. Two persons
including one minor boy aged about 12 years, were brutally murder
by the accused persons in the presence of the witnesses. Both the
deceased were beheaded. The witnesses after witnessing the
incident, rushed back to their village, in order to save their lives.
Thereafter, they came back and took the dead bodies as well as the
injured Rambabu (P.W.3) to the police station on the tractor trolley
and lodged the F.I.R. within 30 days. Thus, it is clear that the
witnesses did not have any time to cook up a false story. The
promptness in lodging the F.I.R., indicates that the same was not
lodged after any deliberation. The Supreme Court in the case of Sat
Kumar Vs. State of Haryana reported in (1974) 3 SCC 643 has
held as under :
9.........The fact that Suraj Bhan has lodged the first
information report within half an hour at a place twelve
miles away from Uchana travelling in truck leaves no
possibility for any concoction of a false case against any of
the accused persons.
The Supreme Court in the case of Krishnan Vs. State reported
in (2003) 7 SCC 56 has held as under ;
17. The fact that the first information report was given
almost immediately, rules out any possibility of
deliberation to falsely implicate any person.
85. Now the next question for consideration is that whether the
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
evidence collected against the appellants is sufficient to hold them
guilty or not and whether they had constituted Unlawful Assembly
and were sharing common object or not?
86. Before considering the allegations made against the appellants,
this Court think it apposite to consider the law governing the field of
Unlawful Assembly and Common Object.
87. The Supreme Court in the case of Bhagwan Jagannath
Markad v. State of Maharashtra,reported in (2016) 10 SCC 537
has held as under :
21. An offence committed in prosecution of common object
of an unlawful assembly by one person renders members of
unlawful assembly sharing the common object vicariously
liable for the offence. The common object has to be
ascertained from the acts and language of the members of
the assembly and all the surrounding circumstances. It can
be gathered from the course of conduct of the members. It is
to be assessed keeping in view the nature of the assembly,
arms carried by the members and the behaviour of the
members at or near the scene of incident. Sharing of
common object is a mental attitude which is to be gathered
from the act of a person and result thereof. No hard-and-fast
rule can be laid down as to when common object can be
inferred. When a crowd of assailants are members of an
unlawful assembly, it may not be possible for witnesses to
accurately describe the part played by each one of the
assailants. It may not be necessary that all members take
part in the actual assault. In Gangadhar Behera, this Court
observed: (SCC pp. 398-99, para 25)
"25. The other plea that definite roles have not been
ascribed to the accused and therefore Section 149 is not
applicable, is untenable. A four-Judge Bench of this Court in
Masalti case observed as follows: (AIR p. 210, para 15)
'15. Then it is urged that the evidence given by the
witnesses conforms to the same uniform pattern and since
no specific part is assigned to all the assailants, that
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
evidence should not have been accepted. This criticism
again is not well founded. Where a crowd of assailants who
are members of an unlawful assembly proceeds to commit
an offence of murder in pursuance of the common object of
the unlawful assembly, it is often not possible for witnesses
to describe accurately the part played by each one of the
assailants. Besides, if a large crowd of persons armed with
weapons assaults the intended victims, it may not be
necessary that all of them have to take part in the actual
assault. In the present case, for instance, several weapons
were carried by different members of the unlawful assembly,
but it appears that the guns were used and that was enough
to kill 5 persons. In such a case, it would be unreasonable to
contend that because the other weapons carried by the
members of the unlawful assembly were not used, the story
in regard to the said weapons itself should be rejected.
Appreciation of evidence in such a complex case is no doubt
a difficult task; but criminal courts have to do their best in
dealing with such cases and it is their duty to sift the
evidence carefully and decide which part of it is true and
which is not.'"
88. The Supreme Court in the case of Vinubhai Ranchhodbhai
Patel v. Rajivbhai Dudabhai Patel, reported in (2018) 7 SCC 743
has held as under :
24. To understand the true scope and amplitude of Section
149 IPC it is necessary to examine the scheme of Chapter
VIII (Sections 141 to 160) IPC which is titled "Of the
offences against the public tranquility". Sections 141 to 158
deal with offences committed collectively by a group of 5
or more individuals.
25. Section 141 IPC declares an assembly of five or more
persons to be an "unlawful assembly" if the common object
of such assembly is to achieve any one of the five objects
enumerated in the said section. One of the enumerated
objects is to commit any offence. "The words falling under
Section 141, clause third "or other offence" cannot be
restricted to mean only minor offences of trespass or
mischief. These words cover all offences falling under any
of the provisions of the Penal Code or any other law." The
mere assembly of 5 or more persons with such legally
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
impermissible object itself constitutes the offence of
unlawful assembly punishable under Section 143 IPC. It is
not necessary that any overt act is required to be committed
by such an assembly to be punished under Section 143.
26. If force or violence is used by an unlawful assembly or
any member thereof in prosecution of the common
objective of such assembly, every member of such assembly
is declared under Section 146 to be guilty of the offence of
rioting punishable with two years' imprisonment under
Section 147. To constitute the offence of rioting under
Section 146, the use of force or violence need not
necessarily result in the achievement of the common object.
In other words, the employment of force or violence need
not result in the commission of a crime or the achievement
of any one of the five enumerated common objects under
Section 141.
27. Section 148 declares that rioting armed with deadly
weapons is a distinct offence punishable with the longer
period of imprisonment (three years). There is a distinction
between the offences under Sections 146 and 148. To
constitute an offence under Section 146, the members of the
"unlawful assembly" need not carry weapons. But to
constitute an offence under Section 148, a person must be a
member of an unlawful assembly, such assembly is also
guilty of the offence of rioting under Section 146 and the
person charged with an offence under Section 148 must
also be armed with a deadly weapon.
28. Section 149 propounds a vicarious liability in two
contingencies by declaring that (i) if a member of an
unlawful assembly commits an offence in prosecution of
the common object of that assembly, then every member of
such unlawful assembly is guilty of the offence committed
by the other members of the unlawful assembly, and (ii)
even in cases where all the members of the unlawful
assembly do not share the same common object to commit a
particular offence, if they had the knowledge of the fact that
some of the other members of the assembly are likely to
commit that particular offence in prosecution of the
common object.
29. The scope of Section 149 IPC was enunciated by this
Court in Masalti: (AIR p. 211, para 17)
"17. ... The crucial question to determine in such a case is
whether the assembly consisted of five or more persons and
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
whether the said persons entertained one or more of the
common objects as specified by Section 141. While
determining this question, it becomes relevant to consider
whether the assembly consisted of some persons who were
merely passive witnesses and had joined the assembly as a
matter of idle curiosity without intending to entertain the
common object of the assembly. It is in that context that the
observations made by this Court in Baladin assume
significance; otherwise, in law, it would not be correct to
say that before a person is held to be a member of an
unlawful assembly, it must be shown that he had committed
some illegal overt act or had been guilty of some illegal
omission in pursuance of the common object of the
assembly. In fact, Section 149 makes it clear that if an
offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to
be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that
offence, is a member of the same assembly, is guilty of that
offence; and that emphatically brings out the principle that
the punishment prescribed by Section 149 is in a sense
vicarious and does not always proceed on the basis that the
offence has been actually committed by every member of
the unlawful assembly."
30. It can be seen from the above, Sections 141, 146 and
148 create distinct offences. Section 149 only creates a
vicarious liability. However, Sections 146, 148 and 149
contain certain legislative declarations based on the
doctrine of vicarious liability. The doctrine is well known in
civil law especially in the branch of torts, but is applied
very sparingly in criminal law only when there is a clear
legislative command. To be liable for punishment under
any one of the provisions, the fundamental requirement is
the existence of an unlawful assembly as defined under
Section 141 made punishable under Section 143 IPC.
31. The concept of an unlawful assembly as can be seen
from Section 141 has two elements:
(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.
32. For recording a conclusion, that a person is (i) guilty of
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
any one of the offences under Sections 143, 146 or 148 or
(ii) vicariously liable under Section 149 for some other
offence, it must first be proved that such person is a
member of an "unlawful assembly" consisting of not less
than five persons irrespective of the fact whether the
identity of each one of the 5 persons is proved or not. If that
fact is proved, the next step of inquiry is whether the
common object of the unlawful assembly is one of the 5
enumerated objects specified under Section 141 IPC.
33. The common object of assembly is normally to be
gathered from the circumstances of each case such as the
time and place of the gathering of the assembly, the conduct
of the gathering as distinguished from the conduct of the
individual members are indicative of the common object of
the gathering. Assessing the common object of an assembly
only on the basis of the overt acts committed by such
individual members of the assembly, in our opinion is
impermissible. For example, if more than five people gather
together and attack another person with deadly weapons
eventually resulting in the death of the victim, it is wrong to
conclude that one or some of the members of such assembly
did not share the common object with those who had
inflicted the fatal injuries (as proved by medical evidence);
merely on the ground that the injuries inflicted by such
members are relatively less serious and non-fatal.
34. For mulcting liability on the members of an unlawful
assembly under Section 149, it is not necessary that every
member of the unlawful assembly should commit the
offence in prosecution of the common object of the
assembly. Mere knowledge of the likelihood of commission
of such an offence by the members of the assembly is
sufficient. For example, if five or more members carrying
AK 47 rifles collectively attack a victim and cause his death
by gunshot injuries, the fact that one or two of the members
of the assembly did not in fact fire their weapons does not
mean that they did not have the knowledge of the fact that
the offence of murder is likely to be committed.
35. The identification of the common object essentially
requires an assessment of the state of mind of the members
of the unlawful assembly. Proof of such mental condition is
normally established by inferential logic. If a large number
of people gather at a public place at the dead of night armed
with deadly weapons like axes and firearms and attack
another person or group of persons, any member of the
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
attacking group would have to be a moron in intelligence if
he did not know murder would be a likely consequence.
89. The Supreme Court in the case of Mahendran v. State of T.N.,
reported in (2019) 5 SCC 67 has held as under :
51. In Gangadhar Behera case, while considering Section
141 IPC, it was held that common object is not common
intention as the 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. Common
object does not require a prior concert and a common
meeting of minds before the attack. It is enough if each has
the same object in view if the five or more act as an
assembly to achieve that object. The "common object" of an
assembly is to be ascertained from the acts and language of
the members composing it, and from a consideration of all
the surrounding circumstances. The Court while considering
the plea that definite roles ascribed to the accused and
therefore Section 149 is not applicable was not accepted. It
is held as under: (SCC pp. 398-99, paras 25-28)
"25. The other plea that definite roles have not been
ascribed to the accused and therefore Section 149 is not
applicable, is untenable. A four-Judge Bench of this Court in
Masalti case observed as follows: (AIR p. 210, para 15)
"15. Then it is urged that the evidence given by the
witnesses conforms to the same uniform pattern and since
no specific part is assigned to all the assailants, that
evidence should not have been accepted. This criticism
again is not well founded. Where a crowd of assailants who
are members of an unlawful assembly proceeds to commit
an offence of murder in pursuance of the common object of
the unlawful assembly, it is often not possible for witnesses
to describe accurately the part played by each one of the
assailants. Besides, if a large crowd of persons armed with
weapons assaults the intended victims, it may not be
necessary that all of them have to take part in the actual
assault. In the present case, for instance, several weapons
were carried by different members of the unlawful assembly,
but it appears that the guns were used and that was enough
to kill 5 persons. In such a case, it would be unreasonable to
contend that because the other weapons carried by the
members of the unlawful assembly were not used, the story
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
in regard to the said weapons itself should be rejected.
Appreciation of evidence in such a complex case is no doubt
a difficult task; but criminal courts have to do their best in
dealing with such cases and it is their duty to sift the
evidence carefully and decide which part of it is true and
which is not."
26. To similar effect is the observation in Lalji v. State of
U.P. It was observed that: (SCC p. 441, para 8)
"8. ... Common object of the unlawful assembly can be
gathered from the nature of the assembly, arms used by them
and the behaviour of the assembly at or before the scene of
occurrence. It is an inference to be deduced from the facts
and circumstances of each case."
27. In State of U.P. v. Dan Singh it was observed that it is
not necessary for the prosecution to prove which of the
members of the unlawful assembly did which or what act.
Reference was made to Lalji case where it was observed
that: (SCC p. 442, para 9)
"9. ... 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."
28. Above being the position, we find no substance in the
plea that evidence of eyewitnesses is not sufficient to fasten
guilt by application of Section 149. So far as the
observations made in Kamaksha Rai case are concerned, it
is to be noted that the decision in the said case was rendered
in a different factual scenario altogether. There is always
peril in treating the words of a judgment as though they are
words in a legislative enactment, and it is to be remembered
that judicial utterances are made in the setting of the facts of
a particular case. Circumstantial flexibility, one additional or
different fact may make a world of difference between
conclusions in two cases (see Padma Sundara Rao v. State
of T.N.). It is more so in a case where conclusions relate to
appreciation of evidence in a criminal trial, as was observed
in Krishna Mochi case."
90. It is submitted by the Counsel for the appellants, that in the
F.I.R., Ex. P.3, although in the column of names of accused, the
names of all the appellants were mentioned, but in the body of the
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
F.I.R., specific roles were assigned to Radheshyam, Randhir, Jitendra,
Kamlesh, Teerath Meena, Rameshwar, Ghasilal, Pritam, Hemraj
Meena, Jagdish, Satish, Ramdayal and absconding accused Badri
only. It is submitted that it is clear that Raghuvir has been falsely
implicated.
91. Considered the submissions made by the Counsel for the
appellants.
92. S.S. Tomar (P.W.19) has recorded the F.I.R., Ex. P.3. No
question was put to him to the effect that when the name of Raghuvir
was not in the body of the F.I.R. then why his name was mentioned in
the column of accused persons? S.S. Tomar (P.W.19) has specifically
stated that a mob had come to the Police Station. This witness was in
the best position to clarify that even in absence of name of Raghuvir
in the body of F.I.R., why the name of Raghuvir was mentioned in the
column of names of accused persons. Thus, it is clear that the
complainant Raghuvir Singh (P.W.2) must have disclosed the name of
Raghuvir in the F.I.R., Ex. P.3. Further more, F.I.R. is not an
encyclopaedia. Each and every minute detail is not required to be
disclosed in the F.I.R. The Supreme Court in the case of Motiram
Padu Joshi Vs. State of Maharashtra, reported in (2018) 9 SCC
429 has held as under :
14. Furthermore, as pointed out by the High Court, FIR is
not an encyclopaedia which should contain all the details of
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
the incident. FIR is not an encyclopaedia which is expected
to contain all the details of the prosecution case. It may be
sufficient if the broad facts of the prosecution case about
the occurrence appear. Omission as to the names of the
assailants or the witnesses may not all the times be fatal to
the prosecution, if the FIR is lodged without delay. Unless
there are indications of fabrication, the court cannot reject
the prosecution case as given in the FIR merely because of
omission. In the present case, FIR was registered without
delay and prompt registration of FIR itself lends assurance
to the prosecution case. The object of the FIR is to set the
law in motion. Omission to give the names of assailants or
the names of witnesses in the FIR is not fatal to the
prosecution case. The High Court was right in observing
that non-mention of the names of eyewitnesses in the FIR
can hardly be fatal to the prosecution case.
93. Thus, merely because no role was assigned to Raghuvir in the
F.I.R., Ex. P.3, this Court is of the considered opinion, that the
evidence of the witnesses against Raghuvir cannot be discarded only
on this ground.
94. It is next contended by the Counsel for the appellants, that at
every step, the witnesses have assigned different roles to the
appellants, and their evidence is not consistent so far as the role
played by each and every appellant, therefore, the evidence of
prosecution witnesses is not reliable, and the prosecution has failed to
prove that the appellants were the members of Unlawful Assembly or
they had acted in furtherance of common object.
95. Considered the submissions made by the Counsel for the
appellants.
96. In the present case, 14 accused persons (13 Appellants and
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Badri (Absconding), by surrounding the deceased and injured
witness, had committed the offence in a most ghastly manner. Both
the deceased persons were beheaded and multiple injuries were
caused to them, which is evident from the post-mortem reports of
Lakhan, Ex. P. 43 and of Sonu, Ex. P.45. From the Examination
Report of head of Lakhan, Ex. P.85, it is clear that multiple injuries
were caused on the head of Lakhan before beheading him. Under
these circumstances, minor variations in the evidence of the
witnesses, with regard to the role played by each and every appellant,
would not give any dent to the prosecution. On the contrary, it
indicates, that the witnesses have not deposed after consulting each
other and they are not tutored witnesses. Further, the defence witness
Kaluram (D.W.2) and Bhutilal (D.W 4) have stated about the
presence of atleast 5 appellants on the spot. The Supreme Court in
the case of Rohtas Vs. State of Haryana reported in (2019) 10 SCC
554 has held as under ;
26. In a recent decision in Dilawar Singh v. State of
Haryana, the Court restated that while analysing the
evidence of eyewitnesses, it must be borne in mind that
there is bound to be variations and difference in the
behaviour of the witnesses or their reactions from situation
to situation and individual to individual. There cannot be
uniformity in the reaction of witnesses. The Court must not
decipher the evidence on unrealistic basis. There can be no
hard-and-fast rule about the uniformity in human reaction.
The difference in the statements of the prosecution
witnesses about the conditions of Mohar Pal when he was
admitted in the hospital, therefore, does not take the matter
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
any further especially when the medical reports clearly
indicate that he was admitted in the hospital in semi-
conscious state and was declared dead by the doctor only
thereafter.
97. The Supreme Court in the case of Sukhdev Yadav Vs. State of
Bihar reported in (2001) 8 SCC 86 has held as under :
1. It is now well settled that the court can sift the chaff
from the grain and find out the truth from the testimony of
the witnesses. The evidence is to be considered from the
point of view of trustworthiness and once the same stands
satisfied, it ought to inspire confidence in the mind of the
court to accept the stated evidence. This Court in Leela
Ram v. State of Haryana relying upon an earlier decision of
this Court in State of U.P. v. M.K. Anthony observed: (SCC
p. 532, para 9)
"There are bound to be some discrepancies between
the narrations of different witnesses when they speak
on details, and unless the contradictions are of a
material dimension, the same should not be used to
jettison the evidence in its entirety. Incidentally,
corroboration of evidence with mathematical niceties
cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by reason
therefor should not render the evidence of
eyewitnesses unbelievable. Trivial discrepancies ought
not to obliterate an otherwise acceptable evidence."
98. Thus, where the F.I.R. was lodged within 30 minutes, and the
names of all the appellants were mentioned in the F.I.R., and the
ocular evidence is corroborated by the Medical Evidence as well as
Forensic Evidence, then it is clear that minor discrepancies in the
testimonies of the witnesses would not make the prosecution story
untrustworthy or unreliable. Thus, in view of the impeccable
evidence available on record, it is held that all the appellants had
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
participated in the commission of brutal murder of Lakhan and Sonu
as well as in making an attempt to murder Rambabu (P.W.3). They all
were not only present on the spot, but the number of injuries found
on the bodies of the deceased Lakhan and Sonu, it is held that the
presence of each and every appellant on the spot was in furtherance
of common object and all of them were the members of Unlawful
Assembly.
99. It is next contended by the Counsel for the appellants that the
swords or lathis seized from some of the appellants were not having
any blood stains, therefore, it is clear that the appellants are innocent
persons.
100. Considered the submissions made by the Counsel for the
appellants.
101. The dates of arrest of appellants have already been mentioned
in para 26 of this judgment. Thus it is clear that although the incident
had taken place on 12-4-2006, but the accused persons were arrested
after two weeks thereafter. Thus, every appellant had ample
opportunity to either wash out their weapons, or to ensure that the
weapon used by them in the offence is not handed over to the police.
At the most, it can be said that the weapon of offence i.e., swords and
lathis, luhangi were not seized. Mere non-recovery of weapon of
offence would not make the prosecution case false. The Supreme
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Court in the case of Krishna Gope Vs. State of Bihar reported in
(2003) 10 SCC 45 has held as under ;
8. Learned counsel further pointed out that the country-
made firearm alleged to have been used by the appellant
was not recovered by the police and the same was not sent
to the police station. The learned counsel submitted that the
investigation was not properly done and that the appellant is
entitled to the benefit of doubt. In our view, this plea is not
tenable. The house of the appellant was searched
immediately after the incident, but the police could not
recover the weapon of offence from his house. It appears
that the appellant had succeeded in concealing the weapon
before the police could search his house. In our opinion, the
fact of non-recovery of the weapon from the house of the
appellant does not enure to his benefit.
(Underline supplied)
102. It is submitted by the Counsel for the appellants, that the Trial
Court had come to a conclusion that the co-accused Vishal was not
present on the spot and has acquitted him, therefore, it is clear that
the witnesses have tried to over implicate the innocent person(s). It is
further submitted that in the F.I.R., Ex. P.3, the names of Vishnu,
Gopal and Asgar Khan were also mentioned, but thereafter, the
prosecution witnesses, disowned the said part of their information,
and claimed that the above three accused persons were not present on
the spot. Thus, it is submitted that the prosecution witnesses have
adopted the policy of pick and choose.
103. Considered the submissions made by the Counsel for the
appellants.
104. The Latin Maxim Falsus in uno, Falsus in omnibus has no
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
application in India. The Supreme Court in the case of Shakila
Abdul Gafar Khan v. Vasant Raghunath Dhoble, reported in
(2003) 7 SCC 749 has held as under :
25. It is the duty of the court to separate the grain from the
chaff. Falsity of a particular material witness or a material
particular would not ruin it from the beginning to end. The
maxim "falsus in uno falsus in omnibus" has no application
in India and the witnesses cannot be branded as liars. The
maxim "falsus in uno falsus in omnibus" has not received
general acceptance nor has this maxim come to occupy the
status of rule of law. It is merely a rule of caution. All that it
amounts to is that in such cases testimony may be
disregarded, and not that it must be disregarded. The
doctrine merely involves the question of weight of evidence
which a court may apply in a given set of circumstances,
but it is not what may be called "a mandatory rule of
evidence". (See Nisar Ali v. State of U.P.)
26. The doctrine is a dangerous one especially in India for if
a whole body of the testimony were to be rejected, because
the witness was evidently speaking an untruth in some
aspect, it is to be feared that administration of criminal
justice would come to a dead stop. Witnesses just cannot
help in giving embroidery to a story, however true in the
main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance, and
merely because in some respects the court considers the
same to be insufficient for placing reliance on the testimony
of a witness, it does not necessarily follow as a matter of
law that it must be disregarded in all respects as well. The
evidence has to be sifted with care. The aforesaid dictum is
not a sound rule for the reason that one hardly comes across
a witness whose evidence does not contain a grain of
untruth or at any rate an exaggeration, embroideries or
embellishment. (See Sohrab v. State of M.P. and Ugar Ahir
v. State of Bihar.) An attempt has to be made to, as noted
above, in terms of felicitous metaphor, separate the grain
from the chaff, truth from falsehood. Where it is not feasible
to separate the truth from falsehood, because grain and chaff
are inextricably mixed up, and in the process of separation
an absolutely new case has to be reconstructed by divorcing
essential details presented by the prosecution completely
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
from the context and the background against which they are
made, the only available course to be made is to discard the
evidence in toto. (See Zwinglee Ariel v. State of M.P. and
Balaka Singh v. State of Punjab.) As observed by this Court
in State of Rajasthan v. Kalki normal discrepancies in the
evidence are those which are due to normal errors of
observation, normal errors of memory due to lapse of time,
due to mental disposition such as shock and horror at the
time of occurrence and those are always there, however
honest and truthful a witness may be. Material discrepancies
are those which are not normal, and not expected of a
normal person. Courts have to label the category to which a
discrepancy may be categorized. While normal
discrepancies do not corrode the credibility of a party's
case, material discrepancies do so. These aspects were
highlighted recently in Krishna Mochi v. State of Bihar,
Gangadhar Behera v. State of Orissa and Rizan v. State of
Chhattisgarh.
105. It is next contended by the Counsel for the appellants that the
Trial Court has wrongly rejected the evidence of Defence witnesses.
106. Considered the submissions made by the Counsel for the
appellants.
107. Appellant Ghasilal has examined Jai Kumar Jain (D.W.1) in
order to prove his plea of alibi.
108. Appellants Ghasilal, Ramdayal, Kamlesh, Raghuvir, Badrilal,
Randhir, Pritam, Jitendra and Rameshwar have examined Kaluram
(D.W.2) to prove that they were not present on the spot.
109. Appellant Rameshwar has examined Shyamlal (D.W.3) to
prove his plea of alibi.
110. Bhutilal (D.W.4) has claimed that he has witnessed the incident
and Ghasilal and his three sons, Ramdayal and his three sons, both
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
the sons of Shrivallabh were not present on the spot, and the incident
was committed by five person. It is stated that Radheshyam and his
three sons have committed the offence.
111. Puranlal (D.W. 6) has been examined to prove plea of alibi of
Randhir.
112. It is well established principle of law that plea of alibi has to be
proved beyond reasonable doubt.
113. The Supreme Court in the case of Vijay Pal v. State (Govt. of
NCT of Delhi), reported in (2015) 4 SCC 749 has held as under :
25. At this juncture, we think it apt to deal with the plea of
alibi that has been put forth by the appellant. As is
demonstrable, the trial court has discarded the plea of alibi.
When a plea of alibi is taken by an accused, burden is upon
him to establish the same by positive evidence after onus as
regards presence on the spot is established by the
prosecution. In this context, we may profitably reproduce a
few paragraphs from Binay Kumar Singh v. State of Bihar:
(SCC p. 293, paras 22-23)
"22. We must bear in mind that an alibi is not an exception
(special or general) envisaged in the Penal Code, 1860 or
any other law. It is only a rule of evidence recognised in
Section 11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant. Illustration
(a) given under the provision is worth reproducing in this
context:
'(a) The question is whether A committed a crime at
Calcutta on a certain day. The fact that, on that date, A was
at Lahore is relevant.'
23. The Latin word alibi means 'elsewhere' and that word is
used for convenience when an accused takes recourse to a
defence line that when the occurrence took place he was so
far away from the place of occurrence that it is extremely
improbable that he would have participated in the crime. It
is a basic law that in a criminal case, in which the accused
is alleged to have inflicted physical injury to another
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
person, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in the
crime. The burden would not be lessened by the mere fact
that the accused has adopted the defence of alibi. The plea
of the accused in such cases need be considered only when
the burden has been discharged by the prosecution
satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who
adopts the plea of alibi, to prove it with absolute certainty
so as to exclude the possibility of his presence at the place
of occurrence. When the presence of the accused at the
scene of occurrence has been established satisfactorily by
the prosecution through reliable evidence, normally the
court would be slow to believe any counter-evidence to the
effect that he was elsewhere when the occurrence
happened. But if the evidence adduced by the accused is of
such a quality and of such a standard that the court may
entertain some reasonable doubt regarding his presence at
the scene when the occurrence took place, the accused
would, no doubt, be entitled to the benefit of that
reasonable doubt. For that purpose, it would be a sound
proposition to be laid down that, in such circumstances, the
burden on the accused is rather heavy. It follows, therefore,
that strict proof is required for establishing the plea of
alibi."
(emphasis supplied)
The said principle has been reiterated in Gurpreet Singh v.
State of Haryana, Sk. Sattar v. State of Maharashtra and
Jitender Kumar v. State of Haryana.
The Supreme Court in the case of Sk. Sattar v. State of
Maharashtra, reported in (2010) 8 SCC 430 has held as under :
35. Undoubtedly, the burden of establishing the plea of alibi
lay upon the appellant. The appellant herein has miserably
failed to bring on record any facts or circumstances which
would make the plea of his absence even probable, let
alone, being proved beyond reasonable doubt. The plea of
alibi had to be proved with absolute certainty so as to
completely exclude the possibility of the presence of the
appellant in the rented premises at the relevant time. When
a plea of alibi is raised by an accused it is for the accused to
establish the said plea by positive evidence which has not
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
been led in the present case. We may also notice here at this
stage the proposition of law laid down in Gurpreet Singh v.
State of Haryana as follows: (SCC p. 27, para 20)
"20. ... This plea of alibi stands disbelieved by both the
courts and since the plea of alibi is a question of fact and
since both the courts concurrently found that fact against
the appellant, the accused, this Court in our view, cannot on
an appeal by special leave go behind the abovenoted
concurrent finding of fact."
36. But it is also correct that, even though the plea of alibi
of the appellant is not established, it was for the prosecution
to prove the case against the appellant. To this extent, the
submission of the learned counsel for the appellant was
correct. The failure of the plea of alibi would not
necessarily lead to the success of the prosecution case
which has to be independently proved by the prosecution
beyond reasonable doubt. Being aware of the aforesaid
principle of law, the trial court as also the High Court
examined the circumstantial evidence to exclude the
possibility of the innocence of the appellant.
The Supreme Court in the case of Binay Kumar Singh v.
State of Bihar, reported in (1997) 1 SCC 283 has held as under:
22. We must bear in mind that an alibi is not an exception
(special or general) envisaged in the Indian Penal Code or
any other law. It is only a rule of evidence recognised in
Section 11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant. Illustration
(a) given under the provision is worth reproducing in this
context:
"The question is whether A committed a crime at Calcutta
on a certain date; the fact that on that date, A was at Lahore
is relevant."
23. The Latin word alibi means "elsewhere" and that word
is used for convenience when an accused takes recourse to a
defence line that when the occurrence took place he was so
far away from the place of occurrence that it is extremely
improbable that he would have participated in the crime. It
is a basic law that in a criminal case, in which the accused is
alleged to have inflicted physical injury to another person,
the burden is on the prosecution to prove that the accused
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
was present at the scene and has participated in the crime.
The burden would not be lessened by the mere fact that the
accused has adopted the defence of alibi. The plea of the
accused in such cases need be considered only when the
burden has been discharged by the prosecution
satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who
adopts the plea of alibi, to prove it with absolute certainty
so as to exclude the possibility of his presence at the place
of occurrence. When the presence of the accused at the
scene of occurrence has been established satisfactorily by
the prosecution through reliable evidence, normally the
court would be slow to believe any counter-evidence to the
effect that he was elsewhere when the occurrence happened.
But if the evidence adduced by the accused is of such a
quality and of such a standard that the court may entertain
some reasonable doubt regarding his presence at the scene
when the occurrence took place, the accused would, no
doubt, be entitled to the benefit of that reasonable doubt.
For that purpose, it would be a sound proposition to be laid
down that, in such circumstances, the burden on the accused
is rather heavy. It follows, therefore, that strict proof is
required for establishing the plea of alibi. This Court has
observed so on earlier occasions (vide Dudh Nath Pandey v.
State of U.P.; State of Maharashtra v. Narsingrao
Gangaram Pimple.
114. Thus, the burden to prove the plea of alibi is heavy on the
accused and the plea of alibi cannot be proved by preponderance of
probabilities.
Jai Kumar Jain (D.W.1)
115. The incident in question took place at 10:00 A.M. This witness
has stated that he had seen Ghasilal in the school. In para 4 of his
cross-examination, this witness has admitted that he reached School
at 12:00 P.M. Thus, from the evidence of this witness, it can not be
held that the appellant Ghasilal could not have been on spot at 10:00
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
A.M. Further, this witness has proved a certificate issued by Head
Master regarding the presence of Ghasilal as Ex. D.9. Undisputedly,
this witness has not executed the said document, and the appellant
Ghasilal has not examined Head Master who had issued the
certificate, Ex. D.9. Further, the School in which Ghasilal was a
teacher is situated in Kumbhraj, and the place of incident is only 4
Kms away from Kumbhraj, as is evident from F.I.R. Ex P.3, as the
distance of police station Kumbhraj is only 4 Km. Further one Dolchi
(an utensil) was also recovered from a place near about 1 Km away
from the place of incident which had the name of the appellant
Ghasilal engraved on it. Thus, it is clear that one utensil of appellant
Ghasilal was also found from a place nearer to the place of incident.
Thus, this Court is of the considered opinion, that this witness has
failed to prove that the appellant Ghasilal was in the school at the
time of incident.
Kaluram (D.W.2)
116. This witness has claimed himself to be an eye-witness of the
incident. He has stated that Sonu was killed by Appellant
Radheshyam, Teerath and Hemraj and all other appellants were not
there. This witness has expressed his ignorance about the murder of
Lakhan. He also admitted that he is on visiting terms with the
appellants.
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Bhutilal (D.W.4)
117. This witness has stated that the incident was committed by
Appellant Radheshyam, his three sons and one more person i.e., his
brother (as mentioned in para 5). Thus, there is a discrepancy with
regard to number of assailants. Further, this witness has claimed that
only one person had died and he had not seen any incident with Sonu.
He has further admitted that Sonu had died near his house, but
claimed that he could not see the assailants. Thus, it is clear that this
witness is not narrating the complete truth. When this witness can
watch an incident which took place at a distance of 40-50 ft away
from his house in which Lakhan lost his life, then how it is possible
that this witness would not be in a position to witness the assault on
Sonu, which took place quite nearer to his house. This witness has
further admitted that the appellants are in habit of creating terror in
the locality.
118. Thus it is clear these two defence witnesses have admitted that
atleast 5 appellants namely Radheshyam, his three sons i.e., Jagdish,
Hemraj, and third son and Satish (brother of Radheshyam) were
involved in the brutal murder of Lakhan and Sonu. However, as
these witnesses have expressed that they did not witness the entire
incident, therefore, it cannot be said that the other appellants were not
present on the spot.
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
Shyamlal (D.W.3)
119. This witness has stated that Rameshwar was in the school till
11:00 A.M. This witness claims himself to be the President of
Shikshak Palak Sangh. He is neither the employee nor the Head
Master of the School. Further, the School attendance Register, Ex.
D.11C doesnot contain attestation by any authority/head master. It is
really surprising that in the school, at the relevant time, no other
teacher was present. Under these circumstances, this Court is of the
considered opinion, that this witness is not trustworthy and cannot be
relied upon to discard the reliable and trustworthy evidence of the
prosecution witnesses.
Puranlal (D.W.6)
120. This witness has stated that on 12-4-2006, Randhir was in the
School from 8:00 till 10 A.M. This witness has produced the
attendance register Ex D.16. However, could not identity the
signatures of the authority, who had attested the register. This
witness has admitted that the attendance register doesnot contain his
attestation. Further, the President of Palak Shikshak Sangh have no
authority to mark the attendance of the teachers. Since, the appellant
Rameshwar has not examined the witness, who had attested the
attendance register, therefore, it is held that the appellant Rameshwar
has failed to prove that he was present in the school at the time of
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
incident.
121. Thus, it is held that the appellants have failed to prove that the
Appellants Ghasilal, Rameshwar, Randhir, Pritam, Jitendra,
Ramdayal, Kamlesh, Raghuvir and Teerath were not on the spot.
122. Thus, considering the totality of the facts and circumstances of
the case, this Court is of the considered opinion, that the Prosecution
has succeeded in establishing the fact that the appellants namely
Jagdish, Hemraj, Radheshyam, Satish, Randhir, Pritam, Jitendra,
Ghasilal, Ramdayal, Rameshwar, Kamlesh, Raghuvir and Teerath
have committed the murder of Lakhan and Sonu and caused gun shot
injuries to Rambabu (P.W.3) and all were the members of Unlawful
Assembly and have committed the offence in furtherance of common
object. Accordingly, their conviction for offence under Sections
147,148, 302/149,302/149,307/149 of I.P.C. is hereby affirmed.
123. Since, the minimum sentence for offence under Section 302 of
I.P.C. is Life Imprisonment, therefore, the Life Sentence and a fine of
Rs. 1000/- with default imprisonment of R.I. For 1 year (on two
counts) for offence under Section 302/149 of I.P.C. (on two counts),
Rigorous Imprisonment of 7 years and a fine of Rs. 700/- with default
sentence of Rigorous Imprisonment for 1 year for offence under
Section 307/149, and Rigorous Imprisonment Of 1 year and fine of
Rs. 500/- with default imprisonment of R.I. for 3 months for offence
Jagdish & Anr Vs. State of M.P. (Cr.A. No. 464 of 2008)
Kamlesh & Anr Vs. State of M.P. (Cr.A. No. 461 of 2008)
Teerath Vs. State of M.P. (Cr.A. No. 462 of 2008)
Radheshyam Meena & Anr Vs. State of M.P. (Cr.A. No. 471 of 2008)
Randhir & Ors. Vs. State of M.P. (Cr.A. No. 526 of 2008)
under Sections 147,148 of I.P.C. awarded by the Trial Court are
hereby affirmed. All the sentences shall run concurrently.
124. Ex Consequenti, the judgment and sentence dated 24-5-2008
passed by Add. Sessions Judge, Chachoda, Distt. Guna in S.T. No.
243/2006 is hereby Affirmed.
125. The appellants Kamlesh, Raghuvir, Satish, Ramdayal, Pritam,
Ghasilal, Jagdish and Hemraj are on bail. Their bail bonds are
canceled. They are directed to immediately surrender before the Trial
Court. The appellants Teerath, Radheshyam, Jitendra, Rameshwar
and Randhir are in jail. All the appellants shall under go the
remaining jail sentence.
126. A copy of judgment, free of cost, be provided to the appellants.
127. The Criminal Appeals No. 464/2008, 461/2008, 462/2008,
471/2008 and 526/2008 fail and are hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.08.05 14:16:29 +05'30'
