Pancham vs The State Of Madhya Pradesh
2021 Latest Caselaw 6773 MP

                                    1
                                                             Cr.A.No.763-2006


        HIGH COURT OF MADHYA PRADESH AT JABALPUR


                    CRIMINAL APPEAL NO.763/2006

Narbad Ahirwar and another...............................................Appellants
                                     Versus
The State of Madhya Pradesh................................................ Respondent


                    CRIMINAL APPEAL NO.899/2006

Ramma @ Rama and another.................................................appellants

                                  Versus

The State of Madhya Pradesh................................................. Respondent


                    CRIMINAL APPEAL NO.929/2006
Pancham............................................................................appellant
                                     Versus
The State of Madhya Pradesh.................................... ............ Respondent


                    CRIMINAL APPEAL NO.1144/2006

Veer Singh and four others....................................................appellants
                                     Versus
The State of Madhya Pradesh................................................ Respondent

                    CRIMINAL APPEAL NO.592/2009
Veer Singh and three ors.......................................................appellants

                                     Versus
The State of Madhya Pradesh..................................................Respondent


.............................................................................................
For the appellants       : Shri Aseem Dixit, Advocate assisted with Shri
                            Shri S. D. Mishra, Advocate appeared as Amicus
                            Curiae (Criminal Appeal Nos.763/2006 &
                            Criminal Appeal No.899/2006)
                            Shri A. Usmani, Advocate appeared as Amicus
                            Curiae(Criminal Appeal No.929/2006, Criminal
                            Appeal No.1144/2006 & Criminal Appeal
                            No.592/2009)
For the respondent/State : Shri Manhar Dixit, Panel Lawyer
...............................................................................................
                                2                   Cr.A.No.763-2006




                             ******
                            Present:
      HON'BLE MR. JUSTICE ATUL SREEDHARAN
       HON'BLE MRS. JUSTICE SUNITA YADAV

                             ******
                         JUDGMENT

(25-10-2021)

Per : Sunita Yadav, J.

The appellants have filed these appeals being aggrieved by

the judgment and order dated 12.04.2006 passed in Sessions Trial

No.394/2004 by the learned Additional Sessions Judge, Khurai

Distt. Sagar (M.P.) whereby each appellant has been convicted

for the offence punishable under Sections 302/149 of the Indian

Penal Code (three counts) for committing the murder of Shribai,

Ram Singh and Pratham Singh and sentenced to undergo life

imprisonment and a fine of Rs.1,000/-(three counts), failing to

pay fine, additional rigorous imprisonment for one year and also

committing the offence under Section 148 of the Indian Penal

Code and sentenced to undergo rigorous imprisonment for 1 year

and a fine of Rs.500/-, in default of payment of fine, to undergo

further six months additional imprisonment.

2. As per letter dated 25.08.2021, the Office Of SHO, Khurai

District Sagar and postmortem report dated 09/09/2019 it appears

that appellant no.1 Narbad Ahirwar S/o Ganesh Ahirwar

(Criminal Appeal No.763/2006) and appellant no.2 Kammod

Ahirwar S/o Munna Ahirwar (Criminal Appeal No.899/2006)

have died during the pendency of appeals on 24.10.2014 and

09/9/2019 respectively. Therefore, these appeals so far it relate to

appellant no.1 Narbad Ahirwar S/o Ganesh Ahirwar and appellant

no.2 Kammod Ahirwar S/o Munna Ahirwar, stand abated.

3. The prosecution case in nutshell is that a civil case

regarding the Patta of a piece of land was running between

deceased Ram Singh and the accused persons/appellants at

Tehsil Court, Khurai. Deceased Shribai was the mother and

deceased Pratham Singh was the father of Ram Singh. On

30/06/2004 Ram Singh was returning home after attending the

court hearing of the said civil case. The complainant Janki (PW-

1) along with her family members was sitting in front of their

house and waiting for Ram Singh to come home. At about 9:30

PM the complainant saw her brother coming towards their house.

At that very moment accused Veer Singh came and hit Ram Singh

with an axe on his neck. Co-accused Bhuvani Singh also gave a

blow of axe over Ram Singh's chest. When Ram Singh raised an

alarm, his parents Shribai and Pratham Singh rushed to rescue

him. Immediately thereafter other accused persons armed with

axes and lathis arrived and started hitting Shri Bai, Pratham

Singh and Ram Singh. With the blows of lathis and axes injured

Ram Singh, Shri Bai and Pratham Singh fell down dead on the

spot.

4. The further story of the prosecution is that one Kunjan

Singh (PW-13) went to the Police Station Khurai and informed

the SHO J.D. Bhosle (PW-16) about the incident. PW-16 J.D.

Bhosle arrived at the place of occurrence and registered the

Dehati Nalishi Exhibit-P/1 at the instance of the complainant

Janki Bai who is the daughter of Shribai and Pratham Singh and

sister of Ram Singh and thereafter registered the FIR Exhibit-P/9

on the basis of Dehati Nalishi. After conclusion of the

investigation a charge sheet under Sections 147,148,149,302 of

IPC was filed against the appellants.

5. The trial Court framed charges under Sections 148, 302,

302/149 of IPC. The appellants denied the charges and claimed to

be tried. Trial was conducted and evidence were led by the

parties. Trial Court convicted the appellants for the offences

under Sections 302/149 (three counts) and 148 of the IPC and

sentenced them as referred therefore.

6. The learned counsel for the appellants submitted that the

trial Court grossly erred in holding the appellants guilty for

committing the murder of Ram Singh, Shribai and Pratham

Singh. Learned trial Court should have seen that the evidence of

prosecution witnesses Janki (PW-1), Savitri bai (PW-2), Onkar

(PW-7) and Girwar (PW-10) ought not to have been believed

because they are interested witnesses being the family members

of the deceased persons. Investigation is faulty and the

conviction based on such faulty investigation as well as evidence

of interested witnesses is perverse and liable to be set aside. The

learned counsel for the appellants further submitted that the trial

Court has also erred in relying upon the testimony of Kunjan

(PW-13) and Puran Singh (PW-14) as they are not the eye

witnesses of the incident.

7. On the contrary, learned Panel Lawyer for the State

submitted that the impugned judgment and order is just and

proper. Learned trial Court has not erred in holding the appellants

guilty for the offences as mentioned above because the evidence

of eye witnesses Janki (PW-1), Savitri bai (PW-2), Onkar (PW-7)

and Santosh (PW-8) is natural and trustworthy and is also

supported by the medical evidence. He further submitted that the

prosecution has successfully proved the motive behind the crime

and therefore no error is committed by the trial court in

convicting the appellants for the offences under Sections 148,

302/149 of the Indian Penal Code.

8. We have heard the counsels for the parties and perused the

record.

9. The first and foremost question for consideration in the case

in hand is about the nature of death of deceased persons namely

Ram Singh, Pratham Singh and Shri Bai. Postmortem report

Exhibit-P/11, P/12 and P/13 coupled with the testimony of Dr.

Yatnesh Tripathi indicate that the cause of death was of

homicidal in nature because of the injuries sustained by the

deceased persons as referred in the report. Now the question for

consideration is the involvement of the appellants in murder of

the deceased persons.

10. According to the prosecution story, complainant Janki (PW-

1), (PW-2) Savitri Bai, (PW-7) Omkar, (PW-8) Santosh, (PW-10)

Girwar Singh, (PW-13) Kunjan Singh and (PW-14) Puran Singh

are the eye witnesses to the incident.

11. PW-1 Janki has deposed that Ram Singh was her brother,

Pratham Singh was her father and Shribai was her mother. Savitri

Bai (PW-2) is the wife of Ram Singh. Her father had a piece of

land in village Giltora. Patta of the said land was allotted to

accused Veer Singh and Hardas, and for the aforesaid land

dispute, a case was pending in Khurai. About 8 months ago, his

brother Ram Singh went to Khurai to attend the hearing of that

case. She along with her parents and other family members was

sitting outside the house and waiting for Ram Singh to come

back. At about 9 PM she saw her brother Ram Singh coming

toward their house. At that moment Veer Singh inflicted a blow

of an axe on the neck of Ram Singh upon which her brother cried

for help. After that, all the accused persons namely Pancham,

Ramma, Bhuvani, Hardas, Natthau, Narwar, Kammod, Santosh

and Gorelal, armed with sticks and axes, arrived and ran behind

Ram Singh. When her father and mother rushed towards Ram

Singh to save him, all the accused persons started inflicting

blows of axes and sticks upon them. Accused Veer Singh hit her

mother on her neck with an axe. Her father also received injury

on his chest by an axe blow. Her brother, mother and father fell

on the ground and died after receiving such injuries. This witness

has further stated that her sister-in-law Savitri Bai (PW-2),

brothers Onkar (PW-7) and Santosh (PW-8), were also present at

the time of incident and saw the entire incident. Girwar (PW-10)

and Kunjan (PW-13) arrived on the spot to rescue her brother

and parents and saw the whole incident.

12. PW-1 Janki has further deposed that the police arrived on

the spot after half an hour and noted down her report and

registered Dehati Merg Intimation Ex.P/2 as well as Merg

Intimation (inquest report) Ex.P/10 regarding the death of her

brother and parents. Next day, the police prepared spot map

Ex.P/3. Patwari has also prepared spot map as per Ex.P/4.

13. PW-16-J. D. Bhosle, the Investigating Officer, has deposed

that on 30/06/2004 one Kunjan Singh came to the police station

and informed that in village Giltora, Ram Singh, Shribai and

Pratham Singh were assaulted by Gajju, Veer Singh, Bhuvani

Singh, Narbad, Kammod and Raja etc with the axes. Ram Singh

was lying injured on the spot. At about 22:10 PM the said

information was registered in Roznamcha Sanha (daily diary) at

No.1868. PW-16 J.D. Bhosle has further stated that he

immediately informed the SDOP about the intimation he had

received and recorded the same in Sanha No.1870. Thereafter he

left for village Giltora along with the police force to verify the

intimation received. Upon reaching the place of incident, he had

registered Dehati Naleshi Ex.P/1 and Merg Intimation on the

basis of the report of Janki (PW-1).

14. PW-5 Asharam Chourasiya has corroborated the statement

of PW-16-J. D. Bhosle and deposed that on 01/07/2004 he was

posted as Head Constable at Police Station Khurai. He received

Dehati Naleshi Ex.P/1 and Dehati Merg Intimation Ex.P/2 and on

the basis of it, First Information Report Ex.P/9 and Merg

Intimation Ex.P/10 were registered.

15. Upon joint perusal of the statements of Janki Bai (PW-1), J

D Bhosle (PW-16) and Santosh (PW-8), it is proved that soon

after the incident, Merg Intimation, Dehati Nalishi and First

Information Report were registered on the basis of the report of

Janki Bai (PW-1).

16. After going through the Dehati Naleshi Ex.P/1 which was

registered at about 11:30 PM on 30/06/2004 it reveals that the

names of all the accused persons are mentioned on it. The time

gap between the incident and registration of Dehati Naleshi

(Ex.P/1) is too short to concoct a false story against the accused

persons, especially when the complainant Janki Bai (PW-1) was

just a 16 year old rustic villager at the time of incident. In Dehati

Nalishi (Ex.P/1), the involvement of accused persons for

inflicting injuries to Ram Singh, Shribai and Pratham Singh is

mentioned and names of Savitri Bai (PW-2), Onkar (PW-7) and

Santosh (PW-8) as eye witnesses is also mentioned. Therefore,

the presence of above witnesses on the spot at the time of

incident cannot be disbelieved.

17. Savitri Bai (PW-2) has stated in her Court evidence that

around 8 months ago, her husband Ram Singh went to Khurai to

attend the case regarding Patta of land. She and other family

members were at their home in Giltora and were waiting for Ram

Singh to come back. She further stated that her sister-in-law

Janki Bai, mother-in-law Shribai, father-in-law Pratham Singh

and brothers-in-law Onkar and Santosh were sitting in their

courtyard. At about 9 PM, her husband Ram Singh arrived at the

door of house shouting that Veer Singh had inflicted an axe on

his shoulder. Upon which her mother-in-law reached near Ram

Singh who was about 7-8 meter away from the house. Thereafter

accused Hardas caught hold of her mother-in-law and accused

Veer Singh inflicted an axe blow on her neck. After that, Veer

Singh, Hardas, Gajju, Bhuvani, son-in-law of Bhuvani, Pancham,

Narbad, Gorelal, Kammod and Rama started beating her husband

Ram Singh with axes and sticks. This witness has further stated

that when her father-in-law rushed to save Ram Singh all accused

persons started hitting her husband Ram Singh, father-in-law

(Pratham Singh) and mother-in-law (Shri Bai). Her husband and

in-laws fell down dead on account of injuries.

18. Eye witnesses, Onkar (PW-7) and Santosh (PW-8) have also

supported the case of the prosecution in their Court statements

and deposed in the same line as Janki Bai (PW-1) and Savitri Bai

(PW-2) stating that accused persons who were armed with axes

and sticks, assaulted Ram Singh, Pratham Singh and Shri Bai

who died on the spot.

19. During the cross-examination of above mentioned witnesses

nothing significant had transpired that goes to the root of the

prosecution story. They all are family members of the deceased Ram

Singh, Pratham Singh and Shribai and were residing jointly in the house

near the place on incident. Therefore, their presence in the scene of

occurence is normal. Involvement of all the accused persons is also

mentioned in promptly registered Dehati Nalishi which

corroborates their statements.

20. Puran Singh (PW-14) has not fully supported the case of the

prosecution. According to this witness at about 8 PM when he

was having dinner at his home, Girwar Singh came to his house

and told that Ram Singh and his parents were being assaulted by

Veer Singh, Gajju, Hardas and Bhuvani. On arrival at the place of

incident, he saw that Ram Singh, Pratham Singh and Shribai were

lying dead on the ground. He only saw Veer Singh, Hardas Singh,

Bhuvani, Gajju and Narwar on the spot armed with sticks, axes

and ballams. This witness has further stated that the incident took

place near the house of Bhuvani. and the quarrel between the

parties was due to some land dispute. He saw the injuries

inflicted upon the bodies of dead persons.

21. Girwar Singh (PW-10) has deposed that around one year

ago at about 8 PM he was standing near the place of occurrence.

At that moment Veer Singh, Hardas, Gajju who were wielding

sticks and axes with them, started assaulting Ram Singh, Pratham

Singh and Shribai. Veer Singh inflicted an axe blow on the neck

of Ram Singh. Due to darkness, he could not recognize the other

persons. Veer Singh, Hardas and Gajju also assaulted Pratham

Singh and Shribai with sticks and axes. All the injured persons

died on the spot.

22. Kunjan Singh (PW-13) who said to have informed the

police about the incident has deposed that about one year ago at

about 7:30 PM he was sleeping at his home. Upon hearing some

noise he went to the place of occurence and saw that Pradeep

Singh and Gajju Singh were assaulting Ram Singh. Veer Singh

was wielding an axe in his hand and Gajju was wielding some

sharp cutting weapon which he could not recognize properly.

Due to darkness, he could not see who are the other persons. This

witness has further stated that parents of Ram Singh were already

dead when he arrived. According to this witness there was a land

dispute between the two parties.

23. Kunjan Singh (PW-13) was declared as hostile by the

prosecution, but during his cross-examination, he did not support

the case of the prosecution that along with Pradeep Singh, Veer

Singh and Gajju Singh other accused persons were also present

on the spot and participated to commit the crime.

24. Learned counsel for the appellants have challenged the

evidence of the prosecution witnesses Janki Bai (PW-1), Savitri

Bai (PW-2), Onkar (PW-7) and Santosh (PW-8) on the ground

that they are interested witnesses being the family members of

the deceased and independent witnesses PW-10 Girwar Singh,

PW-13 Kunjan Singh and PW-14 Puran Singh, have not

completely corroborated the prosecution version.

25. The above argument has no weight because ordinarily a

close relation would be the last to screen the real culprit and

falsely implicate an innocent person. The relationship or the

partisan nature of the evidence only puts the court on its guards

to scrutinize the evidence more carefully. Interestedness of the

witness has to be considered and not just that he is interested.

26. Learned counsel for the appellants have further argued that

the statements of Janki Bai (PW-1), Savitri Bai (PW-2), Onkar

(PW-7) and Santosh (PW-8) are not reliable as there are

contradictions and omissions regarding the part played by each

one of the appellant. Aforesaid argument again is not well-

founded. Where a crowd of several assailants who are members

of unlawful assembly proceed 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 assailant or to remember each and

every blow delivered to victim. Eye witness namely Janki Bai

(PW-1), Savitri Bai (PW-2), Onkar (PW-7) and Santosh (PW-8)

are rustic villagers; therefore, some omissions and contradictions

are normal considering the lapse of time, their state of trauma

and shock while watching their brother/husband and parents

being killed. The above witnesses were natural and most probable and

their presence at the place of occurrence is expected being close

relatives.

27. The medical evidence adduced by the prosecution has great

corroborative value to asses the veracity of prosecution

witnesses. In this case the prosecution has examined PW-6 Dr.

Yatnesh Tripathi who is the writer of post-mortem report of

deceased Shribai, Pratham Singh and Ram Singh to prove its

case. This witness has stated that on 01/07/2004 he conducted the

post-mortem of deceased Shribai and found following ante-

mortem injuries on her body.

"1. A large chop laceration wound present over right side of face and neck, directed downwards and medially size- 10cm x 3cm x 5.5cm.

2. Extending from right side mastoid process, anteriorly and forwards and slightly upwards open with clean and sharp massive destruction of underlying tissue seen.

3. From right side mandible showing slice fracture over inferior border extensive bruising seen around the surrounding tissues vessels in neck on right side namely common carotid artery and

external & internal jugular veins are cut.

28. This witness has further stated that the cause of death of

Shri Bai is shock due to external hemorrhage as a result of chop

lacerated wound which appears to be caused by heavy weapon

with sharp cutting edge. Injury is homicidal in nature and

duration of death is within 12 to 24 hours from postmortem

examination.

29. According to PW-6 Dr. Yatnesh Tripathi while conducting

the post-mortem of deceased Pratham Singh following injuries

are found on his body.

"1. Lacerated wound size 4.5cm x 1cm bone deep present over posterior aspect of scalp, appears to be cause by hard and blunt object underlying bone intact.

2. Lacerated wound size 5cm x 2 cm seen over from right side temporal region of scalp, bone deep, obliquely placed dried stains of blood is present underlying bone is showing hair line fracture in temporal bone caused by hard and blunt object.

3. A chop laceration wound sized 8cm x 3cm is present transversely over the anterior aspect of chest, over the lower sternum and from right side of chestwall, depth is about 9cm marked destructive of underlying soft tissues. Stain of blood present around the wound with vomiting material seen in wound. Trachea exposed, lacerated with right from branches filled with vomiting.

4. Trachea of body of sternum seen hole body cut fracture split of Rib No.3rd from right side seen dividing Rib to upper and lower portion.

5. Laceration of Ascending Aorta seen complete laceration.

6. Heart intact small amount of blood + in both chambers right lung chopped off. Wound is diverted posteriorly and slightly upward caused by hard and sharp and heavy object homicidal in nature.

30. This witness has further stated that the cause of death of

Pratham Singh is due to shock as a result of injury to vital organs

of body caused by hard and sharp and heavy object. Injury is

homicidal in nature and duration of death is within 12 to 24 hours

from time of postmortem examination.

31. According to this witness he has also conducted post-

mortem of deceased Ram Singh and found the following injuries

on his body.

"1. Chop lacerated wound seen over fronto parietal region of scalp on right side. Size 10cm x 1.5cm x 4cm up to the cranial cavity within brain matter exposed to exterior margins clean and sharp fracture seen over frontal and parietal bones of scalp. Direction of wounds is inferiorly and laterally.

2. Chop laceration wound present over occipital region from right side of scalp transversely placed size 8cm x 2cm x 4cm penetrating x cranial cavity, directed anteriorly and slightly inferiorly brain matter exposed to exterior, fracture seen over right from occipital bone scalp.

3. Chop lacerated wound present over post aspect of neck obliquely blade at lower neck level, size 6.5cm x 3cm x 3cm bone deep. Bone exposed, fracture seen over C5 and C6 pedicles with bone pieces hanging with soft tissue attaching spinal cord visible direction of wound is anteriorly and medially located over from left side of neck.

4. Lacerated wound size 5cm x 2cm x 3cm deep located over upper back 1cm below inferior angle of left scapula longitudinally placed soft tissue deep diverted forwards and laterally margin sharp.

5. Chop lacerated wound present over from left side of face size 4.5cm x 1.5cm x 2cm bone deep margin sharp extending from 1cm below medial canthus of left eye obliquely up to 2cm above and lateral to left corner of mouth. Bones exposed nasal cavity and maxillary sinus visible.

6. Lacerated wound 2cm x 1cm soft tissue deep present over from right forearm, lower 3rd, radial border. No fracture of underlying bone seen.

7. Incised wound 2cm x 1cm is present over left specular region

superficial skin deep.

8. Incised wound 1cm x 1cm skin deep present over post surface of shoulder.

32. The cause of death of Ram Singh is as a result of injury to

vital organs of body which are caused by heavy weapon with

sharp cutting edge. Injuries are homicidal in nature. Duration of

death is within 12 to 24 hours from time of postmortem.

33. The above statement of Dr. Yatnesh Tripathi (PW-6) which

remained unchallenged in his cross examination proves the

statements of the eye witnesses (PW-1) Janki Bai, (PW-2) Savitri

Bai, (PW-7) Onkar, (PW-8) Santosh being truthful that the

injuries have been caused in the manner alleged by them and the

deaths of deceased persons could have been caused by such

injuries.

34. Learned counsel for the appellants further argued that the

site plan prepared by the Investigating Officer does not indicate

the places where accused persons and eye witnesses were

standing and from where the eye witnesses saw the incident,

therefore, the statements of eye witnesses cannot be relied upon.

But the above argument is not tenable in the light of the principle

laid down by Supreme Court in the case of Tori Singh and

Another Vs. State of Uttar Pradesh reported in AIR 1962 SC

399 in which it is held that the marking of the spot on the sketch-

map would not be admissible in view of the provisions of Section

162 of the Cr.P.C. The relevant para of the judgment is as below:

"7................In the second place, the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eye- witness to the incident. He could only have put it there after taking the statements of the eye witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of S. 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of S. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the Police during investigation............"

35. In the case of Santa Singh Vs. The State of Punjab as

reported in AIR 1956 SC 526 it was held as under:

The sketch-map in the present case has been prepared by the Sub-inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the incident were obviously marked by him on the map on the basis of the statements made to him by the witnesses. In the circumstances these marks on the map based on the statements made to the Sub-inspector are inadmissible under S. 162 of the Code of Criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch-map."

36. The same view has been adopted in the case of Jagdish

Narain & Anr. Vs. State of U.P. reported in 1996 (8) SCC 199.

In the light of above we do not find that omission of giving the

distance or even the place where the witnesses were standing in

the site plan would create doubt on the presence of eye witnesses

after they have been examined by the prosecution on oath in the

Court.

37. Learned counsel for the appellants also argued that the

incident occurred at about 9 to 9:30 in the night therefore it was

not possible for the witnesses to see the assailants. The said

argument does not carry any weight as PW-1 Janki at para 37 of

her statement has specifically deposed that a bulb was burning in

the house of one Harising Adiwasi near the place of occurrence

and they saw the incident in the light of that bulb.

38. The learned counsel for the appellants further argued that

the bulb is not shown in the site plan; therefore, the evidence of

eye witnesses are not trustworthy that they saw the accused

persons assaulting the deceased persons in the light of a bulb.

But the above argument again has no substance as in the case of

State of UP Vs. Babu and Ors. reported in 2003 (11) SCC 280,

the Supreme Court in paragraph 5 has observed that:

" A bare perusal of the High Court's Judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs. 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that

in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location gaslight in the site plan was fatal. This Court in Shakti Patra and another v. State of West Bengal 1981CriLJ645 held that where prosecution witness testified that he had identified the accused in the light of the torch, held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat 1983 CriLJ 1049. It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr. 1998 CriLJ 2034 regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigation Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short 'Cr. P.C.'). The position is no different in case of site plan."

39. Learned counsels for the appellants have further argued that

the prosecution story becomes doubtful as the FIR was not

registered immediately after receiving the information about the

incident. However, the above argument is not acceptable in the

light of the statement of Investigating Officer, PW-16 J. D.

Bhosle at para 12 where he has deposed that the informer

described the state of victims being very critical and he wanted to

provide medical aid to the victims at the earliest; therefore, he

considered it proper to leave the police station immediately after

receiving the information. Moreover in the case of Allarakha K.

Mansuri Vs. State of Gujarat reported in [(2002) 3 SCC

57:2002 SCC (Cri) 519], it is observed by the Supreme Court

that defective investigation by itself cannot be a ground for

disbelieving the eye witnesses and acquitting the accused if their

testimony is found trustworthy. In this case, the evidence of eye

witnesses is found to be trustworthy and natural, therefore,

merely on the ground that there is some defect in investigation,

does not create doubt over the statements of eye witnesses.

40. The learned Counsel for the appellants have further argued

that since the prosecution has failed to produce the documents of

the civil case allegedly pending between the parties; therefore,

motive behind the crime is not proved. We don't agree with the

above contention because this case is based on ocular evidence

and the issue of motive becomes totally irrelevant when there is direct

evidence of trustworthy witnesses regarding the commission of the

crime. In fact, motive is a thing which is primarily known to the

accused himself and it may not be possible for the prosecution to

explain what actually prompted or excited him to commit a particular

crime. In Shivji Genu Mohite Vs. State of Maharashtra, AIR 1973

SC 55, the Supreme Court held that in a case where the prosecution is

not able to discover an impelling motive, that could not reflect upon the

credibility of a witness proved to be a reliable eye-witness. Evidence as

to motive would, no doubt, go a long way in cases wholly dependent on

circumstantial evidence. Such evidence would form one of the links in

the chain of circumstantial evidence in such a case. But that would not

be so in cases where there are eye-witnesses of credibility, though even

in such cases if a motive is properly proved, such proof would

strengthen the prosecution case and fortify the court in its ultimate

conclusion. But that does not mean that if motive is not established, the

evidence of an eye-witness is rendered untrustworthy. In the instant

case, the ocular evidence which is also corroborated by the medical

evidence is found to be trustworthy; therefore, merely on the ground

that the document relating to the civil case has not been produced, the

statements of eyewitnesses can not be disbelieved.

41. Learned counsel for the appellants have further argued that the

prosecution story is unreliable for the simple reason that one has to

cross the jungle and fields to reach Giltora from Khurai and had the

accused persons wanted to kill Ram Singh they would have killed him

on way while coming back from Khurai to Giltora after attending the

hearing in the civil matter. In the light of above submission when we

see the prosecution evidence, it reveals that the appellants had a better

plan to kill Ram Singh that is why Ram Singh was assaulted near the

houses of appellants in a lane. The appellants waited for the night to fall

so they could easily hide in their houses while waiting for the deceased

to come and after completing the task.

42. In the light of discussion above, the case of the prosecution is

found to be proved beyond reasonable doubts. There is nothing on

record to show that the appellants had received any grave or sudden

provocation from the victims or that the appellants had lost their power

of self control from any action of the victims. Therefore, the impugned

judgment and order by which the appellants are convicted for the

offences under Sections 148, 302/149 is found to be in accordance with

facts and law.

43. Consequently, the appeals are found to be without substance,

hence, dismissed and appellants' conviction and sentence under

Sections 148, 302/149 of the Indian Penal Code is affirmed.

44. As per Jail report dated 28/03/2021 it appears that appellant

Veer Singh has completed 24 years, 7 months and 2 days,

appellant Gajju has completed 24 years, 4 months and 21 days,

appellant Hardas has completed 24 years, 8 months and 28 days

and appellant Santosh has completed 25 years and 1 month of

imprisonment on the said date and they are still in jail.

45. The appellants Gorelal Ahirwar, Pancham, Ramma @ Rama

and Bhuwani are on bail. Their bail bonds stand cancelled. They

are directed to surrender forth with before the trial court on

29/11/2021 and the trial Court shall send them to jail for serving

out remaining part of their jail sentence, in accordance with law.

The appellants who are on bail are directed to surrender forth

with before the trial court on 29/11/2021 and the trial Court shall

send them to jail for serving out remaining part of their jail

sentence, in accordance with law. In case the appellants do not

surrender on the aforesaid date, the trial Court shall take

appropriate steps for securing their presence in compliance of

this order.

46. However, we make it clear that dismissal of this appeal shall

not come in the way of State Government to exercise its

discretion for granting remission to the appellants as and when

the State feels it just and proper.

47. Before parting with this case, we would like to record our

appreciation to Shri Aseem Dixit, Shri S.D. Mishra, and Shri A.

Usmani, Advocates, who have appeared as Amicus Curiae in

these cases and have amply assisted this Court.

         (Atul Sreedharan)                                (Sunita Yadav)
             Judge                                           Judge
Astha




              Digitally signed by
              ASTHA SEN
              Date: 2021.10.28
              16:49:23 +05'30'