Pancham vs State Of M.P.
2021 Latest Caselaw 4281 MP

                                   1
                                    Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009)
                                    Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009)
              Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

            HIGH COURT OF MADHYA PRADESH
                   GWALIOR BENCH

                          DIVISION BENCH

       G.S. Ahluwalia and Rajeev Kumar Shrivastava J.J.

                            Cr.A.No.225/2009

                 Albel & another Vs. State of M.P.

                           Cr.A. No. 247/2009

                     Pancham Vs. State of M.P.

                           Cr.A. No. 253/2009

     Amar Singh (Dead) & Kamal Kishore Vs. State of M.P.

Shri Shailendra Singh Sengar with Shri Anoop Nigam, Counsel for
the Appellants in Cr.A. No. 225/2009
Shri Atul Gupta with Shri Anoop Nigam, Counsel for the Appellants
in Cr.A. No. 247/2009 and Cr.A. No.253/2009
Shri Lokendra Shrivastava, Counsel for the State

Date of Hearing        : 11-Aug-2021
Date of Judgment       : 13-Aug-2021
Approved for Reporting :

                                 Judgment

                               13-Aug-2021

Per G.S. Ahluwalia J.

1.

By this Common Judgment, Cr.A. No. 225/2009, Cr.A. No.

247/2009 and Cr.A. No.253/2009 shall be decided.

2. These Criminal Appeals have been filed against the judgment

and sentence dated 7-3-2009 passed by 1 st Additional Sessions Judge,

Dabra, Distt. Gwalior in Sessions Trial No.380/2007, and convicted

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

and sentenced the appellants for the following offences :

Appellants       Conviction               under Sentence
                 Section

All Appellants Under Section 302/149 Life Imprisonment and of I.P.C. fine of Rs. 100/- in default 1 month S.I.

All Appellants Under Section 148 IPC 2 years R.I. and fine of Rs.

100/- in default 1 month S.I.

(All sentences to run concurrently)

3. According to the prosecution case, the complainant Ashok

Singh Rawat, lodged a F.I.R. on 11-8-2007 at 7:15 A.M., on the

allegations that he is the resident of village Baraua. Yesterday he and

his brother Bharat Singh (Deceased) had gone to the house of

Laxman Singh to attend 13 th day rituals. After having their meals,

they went to their fields for irrigating the crop of paddy and his

brother was sleeping on the cot. The field of Gabbar is adjoining to

their field. He saw that Albel with axe, Gabbar Singh with Ballam,

Amar Singh (died during the pendency of this appeal and his appeal

has been dismissed as abated) with lathi, Pancham Singh with lathi,

and Kamal Kishore with axe came there. He saw in the light of the

bulb that Amar Singh and Pancham Singh pressed the neck of his

brother Bharat Singh by a lathi, Albel assaulted him by axe, Gabbar

assaulted him by ballam and Kamal Kishore assaulted him by axe.

His brother had shouted. It was around 12-1:00 P.M. As the

complainant got frightened and therefore hide himself. After the

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

sunrise, he went to his house and informed his family members about

the incident. Thereafter they came back to the field, then they noticed

that blood was there on the cot and there were trails of blood in front

of the Madaiya (eMb;k) and the dead body of his brother was lying

in the well. All the accused persons have killed his brother on the

property dispute.

4. The police after recording the F.I.R., prepared Naksha

Panchayatnama, sent the dead body for post-mortem, spot map was

prepared, arrested Albel, Amar Singh and Pancham Singh on 11-8-

2021 itself and seized axe from Albel, Lathi from Amar Singh, Lathi

from Pancham Singh. Arrested Gabbar and Kamal Kishore on 3-10-

2007 and seized Ballam from Gabbar, and axe from Kamal Kishore.

The seized articles were sent to F.S.L. Gwalior. The statements of the

witnesses were recorded and after completing the investigation, filed

charge sheet for offence under Sections 302, 147, 148 and 149 of

I.P.C.

5. The appellants abjured their guilt and pleaded not guilty.

6. The prosecution in order to prove its case, examined Hotam

Singh (P.W.1), Dr. B.L. Yadav (P.W.2), Bhagwan Lal (P.W.3), Kaptan

Singh (P.W.4), Poshan Singh (P.W.5), Laxman Singh (P.W.6), Ashok

(P.W.7), Jitendra (P.W.8), Hawaldar (P.W.9), Mardan Singh (P.W.10),

S.K. Paliwal (P.W.11) and J.P.S. Kushwaha (P.W.12).

7. The appellants examined Balwant Singh (D.W.1) in their

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

defence.

8. The Trial Court by the impugned judgment and sentence,

convicted the appellants for the above mentioned offences.

9. Amar Singh (Appellant No.1 in Cr.A. No.253/2009) expired

during the pendency of the appeal and accordingly, by order dated

27-6-2013, his appeal was dismissed as abated.

10. Challenging the judgment passed by the Court below, it is

submitted by the Counsel for the appellants that the Trial Court has

itself disbelieved Kaptan Singh (P.W.4), Poshan Singh (P.W.5) and

Hawaldar (P.W.9). Similarly, the Trial Court has held that the seizure

of weapons from the possession donot take the prosecution case any

further. All the appellants are the members of same family and there

was a motive to falsely implicate them. The eye witness Ashok

(P.W.7) has changed the spot from where he is claimed to have seen

the incident. F.I.R. is ante-dated and ante-timed. Independent

witnesses Jawahar and Keshav have not been examined. Ashok

(P.W.7) who is the sole eye-witness is not a reliable witness as he has

not explained as to why he did not rush to house to inform his family

members and why he stayed back in the field till sunrise. Further, this

witness has stated that he directly went to his house, without trying to

find out the condition of his brother. Ashok (P.W.7) has stated that

after the incident, he went to his house, and again came back to the

spot before lodging the F.I.R., whereas Mardan Singh (P.W.10) has

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

stated that Ashok (P.W.7) never came to the spot. As per the post-

mortem report, semi digested food was found with pieces of Chapati

whereas Ashok (P.W.7) has stated that he and the deceased had eaten

Puri. The mandatory provision of Section 157 of Cr.P.C. has not been

complied with. Balwant (D.W.1) has proved that Ashok (P.W.7) has

not witnessed the incident.

11. Per contra, the Counsel for the State has supported the

prosecution case, and submitted that Ashok (P.W.7) is a reliable

witness and the prosecution has proved its case beyond reasonable

doubt.

12. Heard the learned Counsel for the parties.

13. Before considering the merits of the case, this Court thinks it

apposite to find out as to whether the death of Bharat Singh was

homicidal in nature or not?

14. Dr. B.L. Yadav (P.W.2) had conducted the post-mortem of the

dead body of Bharat Singh and found the following injuries :

(i) Incised wound 6 ½ cm x 1 ½ cm over left side of face, below left eye lower lid, directed lateral to medial side obliquely, cutting skin, Sep. Facia, facial muscles, Lt. Maxila bone, Lt. Mandible in line of wound clotted, blood present, over wound and surrounding tissues, margins of wound are clean cut, regular;

(ii) Incised/Penetration wound 4 cm x 01 cm over root of nose upto nasal bone deep, nasal bone broken into pieces, both nasal cavity opened, clotted blood present over wound margins not cleaned by water, margins regular clean cut;

(iii) Incised wound over right side of forehead touching hair line at lower end directed, obliquely above downward, cutting, skin, subcut tissue, muscle, skull bone, dura matter in the line of cut, brain tissue exposed. The edges are clean

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

cut, well defined everted, clotted bloos present over wound margin and surrounding tissues;

(iv) Incised wound 3 cm x 1 cm over left side of chin, cutting skin, subcutaneous tissue, margin regular, clean cut;

(v) Incised wound 7 cm x 1 ½ cm over right upper parietal area, skull directed post. to Ant. Side cutting skin and cut. Clotted blood present over wound margins, Dura (Teared cut) in the lline of wound, brain tissue exposed, clotted, blood present over brain tissue,fractured in the line of wound ;

(vi) Contusion 7 ½ cm x 9 ½ cm over front of neck directed transversely colour red, clotted blood present beneath the subcutaneous tissue, platysma contusion (Neck muscles) teared, Trachea broken into two parts with fracture of Larynx, thyroid cricoid bone, clotted blood present in lower end of trachea upto bifurcation. left Carotid Artery eroded. Massive blood present in neck area.

(vii) Burn wound 4 cm x 1 cm over right of neck, no line of redness, colour of wound brownish only skin is burnt (Post-mortem burn).

(viii) Burn wound 1 ½ cm x 1 cm over left side of lower lip with depressed floor, but line of redness not seen (PM abrasion)

(ix) Abrasion 3 cm x 1cm over right thigh medial aspect, (PM Abrasion)no line of redness

(x) Abrasion 4 ½ cm x 1 cm over right patella, no line of redness (PM Abrasion)

(xi) Abrasion 1 cm x 2 cm over let. Patella, no line of redness (PM Abrasion)

(xii) Abrasion 1 cm x 2 cm over left knee joint lateral aspect, no line of redness seen

(xiii) 2 ½ cm x 1 ½ cm over right foot dorsum over 1 st toes (angutha) Stomach full of semi digested food material i.e., chapati (Roti), brownish in colour, amount is about 300-400 gms with water and gases, Mucosa healthy.

(1) Mode of death Asphyxia and syncopal shock, coma (2) Cause of death - Injuries over head, skull, neck area he had died immediately due to laceration of trachea (Air way), supported by head injury, tear of (Laceration) of major blood vessels in neck area leads to massive loss of blood, blood in trachea.

(3) Time since death 2 - 24 hours of P.M. Examination (4) Mentioned injuries are homicidal in nature. The post-mortem report is Ex. P.4.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

15. In cross-examination, this witness had admitted that the copy

of F.I.R. and weapons were not sent along with the dead body. He

further stated if neck is pressed by Lathi with force, then he can

sustain one of the injury. He further stated that he was not aware of

the names of the accused persons, even otherwise, he would not have

mentioned it as it is not his job. He further stated that the injury no. 5

could be caused due to fall.

16. As no effective cross-examination of this witness was done,

therefore, in the light of the evidence of Dr. B.L. Yadav (P.W.2), it is

held that the death of the deceased Bharat Singh was homicidal in

nature.

17. Now the question for consideration is that whether the

appellants are the perpetrator of the offence or not?

18. The Trial Court has discarded, Kaptan Singh (P.W.4), Poshan

Singh (P.W.5) and Hawaldar (P.W.9) on the ground that they are the

hearsay witnesses, and the prosecution has not examined those

witnesses, who had informed these witnesses about the incident.

Therefore, it has been held that their evidence is of no value.

19. Similarly for the reasons mentioned in para 29 to 34, the Trial

Court has held that the weapons seized from the appellants donot

carry forward the case of the prosecution as neither they were sealed

on the spot, nor any blood has been found on them.

20. Now the prosecution case is dependent upon the evidence

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

Ashok Singh (P.W.7) who has been examined as an Eye-witness.

Therefore, the pivotal question is as to whether Ashok Singh (P.W.7)

is a reliable witness or not?

21. The appellants have challenged his testimony on the following

grounds :

(i) He has stated that he and Bharat Singh had eaten Puri, sweets

etc. in the 13th day ritual, but pieces of Roti were found in his

stomach.

(ii) This witness has changed the place from where he claims to

have seen the incident.

(iii) This witness claims to have remained in a hidden condition till

sunrise, which is an abnormal conduct, because had he witnessed the

incident, then he would have immediately rushed to his house and

would have informed his family members and also did not try to find

out the condition of his brother while going to his house.

(iv) There is a motive to falsely implicate all the male members of

one family.

(v)     He is a related witness.

(vi)    Ashok Singh (P.W.7) was present at the time of preparation of

Naksha Panchayatnama and there is no mention that who had caused

the injuries.

Conduct of Ashok Singh (P.W.7) immediately after the incident

22. It is the case of the prosecution that the incident took place in

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

between 12-1:00 A.M. in the night, and Ashok Singh (P.W.7) has

stated that after witnessing the incident, he hide himself and stayed

there till 7:00 in morning and thereafter he went to his house and

informed his family members about the incident. It is submitted that

it is a most unnatural conduct of a witness, as it was expected from

him, that immediately after the incident, he should have gone to his

house, to inform his family members and thus, it is clear that Ashok

Singh (P.W.7) had not witnessed the incident and it appears that in

the morning when he came to the field, then he must have found the

dead body of his brother Bharat Singh and on account of old enmity,

he has falsely implicated all the male members of a family, so that the

agricultural fields of the appellants can be grabbed by them.

23. On the face of the argument that the stay of Ashok Singh

(P.W.7) for the whole night on the place of incident is an unnatural

conduct, appears to be very impressive, but on deeper scrutiny of

evidence, it is clear that the conduct of Ashok Singh (P.W.7) in

staying back in the field for the whole night was natural.

24. If Spot map, Ex. P.12 and the evidence of Balwant (D.W.1) are

considered conjointly, then the picture would be clear. As per spot

map, Ex. P.12, on the right side of the fields of the deceased Bharat

Singh/Ashok Singh (P.W.7), the field of the appellants is situated.

Thereafter, village Baraua is situated. After the village, the field of

Balwant (D.W.1) is situated.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

25. The appellants themselves have given a suggestion to Mardan

Singh (P.W.10) that there was no alternative way to go their fields by

tractor or bullock cart except to go through the fields of the

appellants and the appellants used to stop them on the ground that it

damages their crop and that is why, the complainant party was forced

to take their crops manually. Further, Ashok Singh (P.W.7) in para 1

of his examination-in-chief has stated that since, the appellants used

to obstruct their way, therefore, the offence was committed by them.

It is the submission of the Counsel for the appellants, that this dispute

is the cause of false implication. However, if the above mentioned

defence is considered in the light of spot map, Ex. P.12 and evidence

of Balwant (D.W.1), then the picture would be clear as noon day.

26. Balwant (D.W.1) has stated that after his field, a town is

situated and thereafter, the field of Gabbar (Appellant) is situated and

thereafter the field of deceased Bharat Singh/Ashok Singh (P.W.7) is

situated. It appears that Balwant (D.W.1) is referring the village

Baraua as Town. Ashok Singh (P.W.7) and the deceased Bharat

Singh were in their fields and immediately after the incident, Ashok

Singh (P.W.7) was hiding in his field for 5-6 hours and waited till

sunrise. From the spot map, Ex. P.12 and the evidence of Balwant

(D.W.1), it is clear that in order to go to the village, Ashok Singh

(P.W.7) was required to cross the field of the appellants. Under these

circumstances, if he was apprehensive of the fact that in case if he

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

goes to the village in the night itself, then it is also possible that the

appellants may also kill him, then such an apprehension was not

baseless and cannot be said to be abnormal.

27. Faced with such a situation, Shri Atul Gupta, Counsel for the

appellants submitted, that Ashok Singh (P.W.7) could have taken

some alternative though long route, for going to his house.

Considered the submissions made by Shri Gupta. One brother was

killed brutally in his presence. Ashok Singh (P.W.7) has stated in

para 11 of his cross-examination that when he was hiding himself, he

was crying. By no stretch of imagination, it can be said that the

aforesaid conduct of a real brother was unnatural or abnormal. Under

these circumstances, it was not expected that Ashok Singh (P.W.7)

could dare to take any alternative and long route in the night. Further,

no suggestion was given relating to availability of any alternative

route. Thus, it is held that if Ashok Singh (P.W.7) stayed back in the

field for 5-6 hours and was waiting for sunrise, then this conduct of

Ashok Singh (P.W.7) was natural. Further, the F.I.R., Ex. P.2 was

lodged at 07:15 A.M. Thus, it is held that the evidence of Ashok

Singh (P.W.7) cannot be held to be untrustworthy or unreliable on

this ground.

Change of spot from where the incident was witnessed by Ashok

Singh (P.W.7)

28. It is submitted by Shri Sengar, that in the spot map, Ex. P.12,

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

it is shown that Ashok Singh (P.W.7) was at the second bore which is

150 ft.s away from the place where the deceased was sleeping.

However, in the Court evidence, this witness has stated that he had

witnessed the incident from a distance of 10 ft.s therefore, it is clear

that Ashok Singh (P.W.7) had not witnessed the incident.

29. Considered the submissions made by Shri Sengar, Counsel for

the appellants.

30. The appellants have not challenged the source of light on the

spot. In the F.I.R., Ex. P.2, it is clearly mentioned that in the light of

the bulb, Ashok Singh (P.W.7) had seen the incident. It is not the

case of the appellants that in case if Ashok Singh (P.W.7) was at his

bore, then he could not have witnessed the incident. The distance

between bore and the place of incident is only 150 ft.s. It is not the

case of the appellants, that there was some obstruction between the

bore and the place of incident. On the contrary undisputed fact is that

the incident took place in an agricultural field and Ashok Singh

(P.W.7) was also in the field. The appellants have not put any

question to Ashok Singh (P.W.7) regarding the height of the paddy

crop. The field of Ashok Singh (P.W.7)/deceased Bharat Singh and of

the appellants are adjoining to each other. The villagers are

conditioned to identify the fellow villager even under poor light. The

Supreme Court in the case of Ramesh Vs. State reported in (2010)

15 SCC 49 has held as under ;

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

15. As stated earlier, the appellant and these two witnesses (PWs 3 and 4) are neighbours and, therefore, knew the appellant well and their claim of identification cannot be rejected only on the ground that they have identified him in the evening, when there was less light. It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatised to fluorescent light. Visible (sic visual) capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meagre light in the evening.......

31. Thus, it is clear that discrepancy, as to whether Ashok Singh

(P.W.7) had seen the incident from a distance of 10 ft.s or 150 ft.s

would not give any deep dent to the prosecution case. Accordingly, it

is held that change of place from where Ashok Singh (P.W.7) had

witnessed the incident can not be given undue weightage, as Ashok

Singh (P.W.7) could have seen the incident even from the distance of

150 ft.s also.

Nature of semi digested food

32. It is submitted that Ashok Singh (P.W.7) has stated that Puri,

Sweets and Halwa was served in the dinner on occasion of 13 th day

ritual, whereas semi digested food with pieces of roti were found in

the stomach of the deceased Bharat Singh, therefore, it is clear that

the contention of Ashok Singh (P.W.7) that after having dinner in the

13th ritual in the house of Laxman, he and the deceased had gone to

the fields is false.

33. Considered the submissions made by the Counsel for the

appellants.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

34. It is a matter of common knowledge that in a dinner organized

due to some occasion, various eatables are prepared and served. It is

not expected that each and every invitee would eat each and every

item prepared and served. Every body eats only those eatables which

are to his liking. Therefore, the submission made by the Counsel for

the appellants cannot be accepted and hence rejected.

Non-mention of names of assailants and the manner of incident in

inquest report.

35. It is submitted by Shri Sengar that since, Ashok Singh (P.W.7)

was present at the time of Naksha Panchayatnama, Ex. P.11 and is

also one of the signatory of the said document, but still he did not

disclose the names of the assailants and the manner of commission of

offence, therefore, it is clear that he had not witnessed the incident.

36. Heard the learned Counsel for the appellants.

37. The purpose of preparing inquest report is to find out the

apparent cause of death. The said document is not supposed to

contain the names of the assailants or the manner in which the

offence is committed. The Supreme Court in the case of Guiram

Mondal Vs. State of W.B., reported in (2013) 15 SCC 284 has held

as under :

12. The inquest report normally would not contain the manner in which the incident took place or the names of eyewitnesses as well as the names of accused persons. The basic purpose of holding an inquest is to report regarding the cause of death, namely, whether it is suicidal, homicidal, accidental, etc. Reference may be made to the judgments of

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

this Court in Pedda Narayana v. State of A.P. and Amar Singh v. Balwinder Singh.

13. In Radha Mohan Singh v. State of U.P. this Court held that the scope of inquest is limited and is confined to ascertainment of apparent cause of death. Inquest is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report. The High Court has rightly held that the manner and approach of the trial court in disbelieving the prosecution story by placing reliance on the inquest report was erroneous and bad in law.

38. S.K. Paliwal (P.W.11) has investigated the case. In para 25 of

his cross-examination, this witness has clarified that he had recorded

the statement of Ashok Singh (P.W.7) at 12:30 P.M. Ashok Singh

(P.W.7) in para 25 of his cross-examination, has stated that Post-

mortem was completed by 3-4:00 P.M. In the post-mortem report,

Ex. P.4, the time of Post-mortem is -3:25 P.M. Thus, it is clear that

the police statement of Ashok Singh (P.W.7) was already recorded

prior to beginning of Post-mortem of the dead body of Bharat Singh.

It is not the case of the appellants that Ashok Singh (P.W.7) had not

given minute details of the incident. Thus, even prior to the receipt

of post-mortem report, Ashok Singh (P.W.7) had already disclosed the

incident in his F.I.R., Ex. P.9 and police statement,Ex.D.3 with minute

details, which corroborates the medical evidence. Thus, viewed from

every angle, it is held that due to non mention of names of assailants

and the manner of incident in inquest report/Naksha Panchayatnama,

Ex. P.11, no adverse inference can be drawn against the prosecution.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

Whether evidence of Ashok Singh (P.W.7) finds corroboration

from Medical evidence or not?

39. The injuries sustained by the deceased Bharat Singh have

already been reproduced in the earlier part of this judgment.

40. It is the allegation of Ashok Singh (P.W.7) that Amar Singh and

Pancham Singh pressed the neck of the deceased Bharat Singh by a

lathi and Gabbar Singh assaulted the deceased by Ballam. In the

post-mortem report, Ex. P.4, injury no.2 was incised/penetrating

wound which could have been caused by Ballam. Similarly, injury

no. 6 could have been caused only by exerting excessive pressure on

the neck which was possible by pressing a lathi. It is the case of the

prosecution that Amar Singh and Pancham Singh had pressed the

neck of the deceased. Thus, if both the accused have pressed the neck

of the deceased by a lathi by holding the lathi from both the sides,

then the injury no. 6 could have been caused. Furthermore, 4 other

incised wounds were found on the body of the deceased. The

allegations are that Albel and Kamal Kishore had assaulted the

deceased by axe. Therefore, it is clear that ocular evidence of Ashok

Singh (P.W.7) finds full corroboration from the medical evidence.

Related Witness

41. It is submitted by the Counsel for the appellants that since,

Ashok Singh (P.W.7) is the real brother of the deceased and in view

of admitted enmity between the complainant party and the accused

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

party, therefore, his evidence is not reliable.

42. Considered the submissions made by the Counsel for the

appellants.

43. Ashok Singh (P.W.7) is the real brother of deceased Bharat

Singh, therefore, his presence on the spot at 12-1:00 A.M. in the

intervening night of 10/11-Aug-2007 was natural presence. Further,

it is a trite law that the evidence of a witness cannot be disbelieved

only on the ground that he is "related witness". 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.

44. The Supreme Court in the case of Raju v. State of T.N.,

reported in (2012) 12 SCC 701 has held as under :

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

20. The first contention relates to the credibility of PW 5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi, both of whom were victims of the homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore PW 5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.

21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7) "7. ... True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be 'interested'."

22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, the view that a "natural witness" 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

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

needs a rethink.

24. For the time being, we are concerned with four categories of witnesses--a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorisation of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.

25. In the present case, PW 5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinised with great care and caution.

26. In Dalip Singh v. State of Punjab this Court observed, 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

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

own facts."

27. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the "enemy" of the victim. This is what this Court said: (AIR p. 331, para 6) "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that 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

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, Balraje v. State of Maharashtra, Prahalad Patel v. State of M.P., Israr v. State of U.P., S. Sudershan Reddy v. State of A.P., State of U.P. v. Naresh, Jarnail Singh v. State of Punjab and Vishnu v. State of Rajasthan it was held: (Waman case, SCC p. 302, para 20) "20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care."

29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in 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."

45. 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

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan."

In the said case, it has also been further observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

25. In Hari Obula Reddy v. State of A.P., the Court has ruled that evidence of interested witnesses per se cannot be said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduce a passage from the said 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.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

46. The Supreme Court in the case of Yogesh Singh v. Mahabeer

Singh, reported in (2017) 11 SCC 195 has held as under :

24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v. State of Punjab is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

25. Similarly, in Piara Singh v. State of Punjab, this Court held: (SCC p. 455, para 4) "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan 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)

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

"7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."

28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar, State of U.P. v. Jagdeo, Bhagaloo Lodh v. State of U.P., Dahari v. State of U.P., Raju v. State of T.N., Gangabhavani v. Rayapati Venkat Reddy and Jodhan v. State of M.P.)

47. Thus, it is clear that if the evidence of Ashok Singh (P.W.7) can

withstand careful appreciation, then he can be relied upon. As

already held, the presence of Ashok Singh (P.W.7) on the spot is

natural. His conduct of staying back in the field for the whole night

has also been found to be natural. It has also been found that Ashok

Singh (P.W. 7) could have seen the incident as there was sufficient

light on the spot and the incident could have been witnessed even

from the distance of 150 ft.s (Although in evidence Ashok Singh

(P.W.7) has claimed that he had witnessed the incident from a

distance of 10 ft.s) Thus, the evidence of Ashok Singh (P.W.7) cannot

be discarded only on the ground that he is a related witness.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

Interested witness

48. Interested witnesses are those witness who derives some

benefit out of the litigation or they want to falsely implicate the

accused persons.

49. In the present case, Ashok Singh (P.W.7) has stated that since,

the appellants were not giving a way to their fields therefore, on that

account, the offence was committed. Similarly, Mardan Singh

(P.W.9) has stated that since, the appellants were not giving them way

to their field, therefore, they were forced to take their crops manually.

Motive is a double-edged weapon. On one hand, if it provides a

basis for false implication, and on the other hand, it also provides

basis for committing offence, therefore, this aspect has to be

determined by appreciating the surrounding circumstances. The

Supreme Court in the case of State of U.P. Vs. Moti Ram reported in

(1990) 4 SCC 389 has held as under :

21.......As repeatedly said, motive is a double-edged weapon and that it could be made use of by either party to wield that weapon of motive against each other. Therefore, the key question for consideration is whether the prosecution had convincingly and satisfactorily established guilt of all or any of the accused beyond all reasonable doubt by letting in reliable and cogent evidence.

The Supreme Court in the case of Kunwarpal Vs. State of

Uttarakhand reported in (2014) 16 SCC 560 has held as under :

16. According to the complainant there was litigation between them and the accused persons leading to enmity. PW 3 Atmaram has also stated that there was litigation between them and it culminated in the occurrence.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

Animosity is a double-edged sword. While it can be a basis for false implication, it can also be a basis for the crime (Ruli Ram v. State of Haryana and State of Punjab v. Sucha Singh). In the instant case there is no foundation established for the plea of false implication advanced by the accused and on the other hand evidence shows that enmity has led to the occurrence.

From the facts of the case this Court has already found that

Ashok Singh (P.W.7) has witnessed the incident and he is a reliable

witness. Under these circumstances, it is held that in fact enmity was

the cause for committing offence.

Compliance of Section 157 of Cr.P.C.

50. It is submitted by the Counsel for the appellants that the F.I.R.,

Ex. P.9 is an ante-dated and ante-timed document which is also

evident from the fact that the mandatory provisions of Section 157 of

Cr.P.C. were not complied in its true spirit. The incident is alleged to

have taken place at about 12-1:00 A.M. in the intervening night of

10/11-Aug-2007 and the F.I.R. Ex. P.9 was lodged at 7:15 A.M., but

the copy of F.I.R. was sent to the Magistrate on 12-8-2007 and

further there is an overwriting in the date of receipt of copy of report.

51. S.K. Paliwal (P.W. 11) was cross-examined in detail about the

steps taken by him 11-8-2007. He has stated that after completing his

investigation, he returned back to the police station at 9:30 PM.

Under these circumstances, if the copy of the F.I.R, Ex. P.9 was sent

to the Magistrate on the next day, then it cannot be said that there was

any undue delay, thereby giving an opportunity to the investigating

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

officer to create an ante-dated and ante-timed document. Further,

appellant Albel, Pancham and Amar Singh were arrested on the same

day. If the F.I.R, Ex. P.9 was an ante-dated document then there was

no occasion for the investigating officer to arrest three accused

persons on the very same day. It is submitted by Shri S.K. Paliwal

(P.W.11) that he had arrested the above-mentioned three accused

persons at about 5:00 P.M. Thus, the very fact that the investigating

officer was busy in investigating the matter and he had already

reached on the spot at about 8:05 A.M. as stated by him in para 24 of

his cross-examination and he came back to the police station at 9:30

P.M., as stated by him in para 16 of his cross-examination there was

no occasion for the witnesses to create a false story to create ante-

dated and ante-timed document. Thus, if the investigating officer

committed a mistake in not sending the copy of the F.I.R., Ex. P.9 to

the concerning Magistrate immediately after returning back to the

police station, then it cannot be said that such a mistake would make

the entire prosecution story unreliable. The Supreme Court in the

case of Anil Rai Vs. State of Bihar reported in (2001) 7 SCC 318

has held as under :

20. This provision is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR, the delay in sending the copy of the report to the Magistrate cannot by itself justify the

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

conclusion that the investigation was tainted and the prosecution insupportable (Pala Singh v. State of Punjab). Extraordinary delay in sending the copy of the FIR to the Magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded on a much later day than the stated day, affording sufficient time to the prosecution to introduce improvements and embellishment by setting up a distorted version of the occurrence. The delay contemplated under Section 157 of the Code of Criminal Procedure for doubting the authenticity of the FIR is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial. This Court in Sarwan Singh v. State of Punjab held that delay in despatch of first information report by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when it is found on facts that the prosecution had given a very cogent and reasonable explanation for the delay in despatch of the FIR.

21. In the present case the FIR is shown to have been lodged within 15 minutes after the occurrence and most of the accused apprehended immediately. There does not appear to be any possibility of falsely implicating the accused persons. On facts also the courts below did not find any delay in despatch of the copy of the FIR to the Area Magistrate. Learned counsel for the appellant Subhash Chand Rai (A-2) has not referred to any evidence to convince us that there was any unexplained inordinate delay in sending the copy of the FIR to the Area Magistrate.

52. So far as the overwriting in the date of receipt of copy of

F.I.R.,Ex. P.9 is concerned, the Counsel for the appellants have drawn

the attention of this Court to Dak Book,Ex. D5C to show that there is

an interpolation in the date of receipt of copy of F.I.R..

53. Considered the submission made by the Counsel for the

appellants.

54. The appellants did not try to requisition the record of the

concerning Magistrate to find out that on what date the copy of the

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

F.I.R.,Ex. P.9 was actually received by the Magistrate. The

appellants have also not examined the concerning person, who had

given the acknowledgment of receipt of copy of F.I.R.,Ex. P.9. It was

for the person receiving copy of F.I.R., to explain the overwriting on

the date of receipt in Ex.D5C.

55. It is submitted that it is also clear from Ex.D.5C is that no

document was sent to any Court on 13-8-2007, therefore, the register

is doubtful.

56. The submission made by the Counsel for the appellants cannot

be accepted. If no offence was committed on 13-8-2007, then there

was no question of sending copy of any F.I.R. to the concerning

Magistrate.

57. Accordingly, it is held that since, the F.I.R. was lodged

promptly after sunrise and three of the accused persons were also

arrested on the very same day, therefore, the delay in sending the

copy of F.I.R., Ex. P.9 is not fatal and the prosecution case cannot be

thrown overboard. Accordingly, it cannot be held that the F.I.R.,Ex.

P.9 was an ante-dated and ante-timed document.

Non-Examination of Independent witnesses

58. It is submitted that Ashok Singh (P.W.7) in para 13 of his

cross-examination has stated that Jawahar Singh and Keshav Singh

were also irrigating their fields but they have not been examined by

the prosecution.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

59. Heard the learned Counsel for the appellants.

60. It is matter of common knowledge that now a days,

independent witnesses donot come forward for various reasons.

Further corroboration of evidence of a related witness by independent

witness is not the requirement of law. If the evidence of "related

witness" is found to be trustworthy, then he can be relied. The

Supreme Court in the case of Mahesh Vs. State of Maharashtra

reported in (2008) 13 SCC 271 has held as under :

55......It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons.

The Supreme Court in the case of Ashok Kumar Chaudhary

Vs. State of Bihar reported in (2008) 12 SCC 173 has held as

under :

7. We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 p.m. on 17-7-1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence...........

The Supreme Court in the case of Sadhu Saran Singh Vs.

State of U.P., reported in (2016) 4SCC 357, has held as under :

29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

The Supreme Court in the case of Ambika Prasad Vs. State

(Delhi Admn.) reported in (2000) 2 SCC 646 has held as under :

12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW

7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh this Court observed: (SCC pp. 691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

out is otherwise true and acceptable."

61. Further, it is clear from the evidence of S.K. Paliwal (P.W.11)

that he had gone to the house of Keshav and Jawahar but it appeared

that they had not witnessed the incident. Thus, it is clear that no body

was coming forward to depose in the matter. Under these

circumstances, where the independent witnesses donot come forward

under the apprehension of developing enmity with either of the party,

or in order to avoid his/their participation in police investigation or in

order to avoid the Court proceedings, then it cannot be said that non-

examination of independent witness would give any dent to the

prosecution story.

62. It is next contended by the Counsel for the appellants that

Mardan Singh (P.W.9) has stated specifically that Ashok Singh

(P.W.7), after coming back to the house, didnot go to the spot,

therefore, it is clear that there is a material variance in the evidence of

Ashok Singh (P.W.7) and Mardan Singh (P.W.10).

63. Considered the submissions made by the Counsel for the

appellants.

64. While appreciating the evidence, the Court is required to take a

holistic view and stray sentence from here and there, cannot be

picked up to unsettle the reliable prosecution case. The dead body of

the deceased was lying in the well. Ashok Singh (P.W.7) after

watching the condition of the dead body immediately went to the

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

police station to lodge the report. Therefore, it is clear that Ashok

Singh (P.W.7) had not wasted any time on the spot and immediately

after noticing the situation, immediately went to the police station,

and if Mardan Singh (P.W.10) could not notice Ashok Singh (P.W.7)

on spot, then it cannot be said that the evidence of Ashok Singh

(P.W.7) is unreliable.

Whether defence witness Balwant Singh (D.W.1) is a reliable

witness.

65. Balwant Singh (D.W.1) has stated that in the morning, he was

in his field. He saw that Ashok Singh (P.W.7) was going towards his

field. After some time, he saw that Ashok Singh (P.W.7) was coming

back and was crying. On enquiry he informed that some body has

killed Bharat Singh.

66. In cross-examination, this witness has admitted that he doesnot

know the Survey Number of his field. He clearly admitted that after

his field, town (Must be referring village as town) is situated. After

the town, the field of Gabbar Singh (Appellant) is situated and

thereafter the field of the deceased Bharat Singh/Ashok Singh (P.W.7)

is situated. If Ashok Singh (P.W.7) has to go to his field from his

house situated in the village, then he is not required to cross the field

of Balwant Singh (D.W.1). Since, the field of Balwant Singh (D.W.1)

is on the other side of the village, therefore, there would not be any

occasion for Balwant Singh (D.W.1) to have a talk with Ashok Singh

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

(P.W.7). Although, in the spot map, the field of Balwant Singh

(D.W.1) is not shown, but the spot map is in accordance with the

evidence of Balwant Singh (D.W.1). As per spot map, the field of

Gabbar Singh (Appellant) is situated on the right side of the field of

the deceased Bharat Singh/Ashok Singh (P.W.7) and thereafter, the

village Baraua is situated. Thus, it is clear that the field of Balwant

Singh (D.W.1) is on the other side of village. Thus, it is clear that

defence witness Balwant Singh (D.W.1) is not a reliable witness. On

the contrary, he clearly supports the spot map, Ex. P.12.

67. No other argument is advanced by the Counsel for the

appellants.

68. 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 beyond reasonable doubt, that the

appellants had killed the deceased Bharat Singh, by causing multiple

injuries to him by Axe, Ballam and Lathi. Accordingly, it is held that

all the appellants are guilty of committing murder of the deceased

Bharat Singh. Accordingly, their conviction for offence under

Sections 148, 302/149 of I.P.C. is hereby affirmed.

69. So far as the question of sentence is concerned, the minimum

sentence for offence under Section 302 of I.P.C., is Life

Imprisonment. Accordingly, the sentence awarded by the Trial Court

for offence under Section 148, 302/149 of I.P.C. is hereby affirmed.

Albel & anr. Vs. State of M.P. (Cr.A. No. 225/2009) Pancham Vs. State of M.P. (Cr.A. No. 247 of 2009) Amar Singh (Dead) & Kamal Kishore Vs. State of M.P. (Cr.A. No. 253/2009)

68. Ex Consequenti, the Judgment and sentence dated 7-3-2009

passed by 1st Additional Sessions Judge, Dabra, Distt. Gwalior in

Sessions Trial No.380/2007 is hereby Affirmed.

69. The appellants Albel, Gabbar, and Pancham are in jail. They

shall undergo the remaining jail sentence.

70. The appellant Kamal Kishore is on bail. His bail bonds are

cancelled, and he is directed to immediately surrender before the Trial

Court for undergoing the remaining jail sentence.

71. A copy of this judgment be provided to the appellants, free of

cost.

72. The record of the Trial Court along with copy of this Judgment

be sent back to the Trial Court for necessary information and

compliance.

73. The appeal fails and is hereby Dismissed.

(G.S. Ahluwalia)                                  (Rajeev Kumar Shrivastava)
          Judge                                                       Judge


                                   ARUN KUMAR MISHRA
                                   2021.08.13 17:04:15 +05'30'