Jagram vs State Of M.P.
2021 Latest Caselaw 6175 MP

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

HIGH COURT OF MADHYA PRADESH GWALIOR BENCH

DIVISION BENCH

G.S. AHLUWALIA & RAJEEV KUMAR SHRIVASTAVA J.J.

Cr.A. No. 790/2009

Jagram & Ors.

Vs.

State of M.P.

Shri A.K. Jain, Counsel for the appellants.

Shri Rajeev Upadhyay, Counsel for the State.

Date of Hearing                    : 17-9-2021
Date of Judgment                   : 29-9-2021
Approved for Reporting             :

                                Judgment

                                29-09-2021
Per G.S. Ahluwalia J.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 26-10-2009 passed by

Additional Sessions Judge, Shivpuri, in Sessions Trial No.40/2009,

by which the appellants have been convicted and sentenced for the

following offence(s) :-

Conviction       under Sentence                     Fine
Section
302/149 I.P.C.            Life Imprisonment         Rs. 2000/-. No default
                                                    imprisonment      has
                                                    been imposed
148 I.P.C.                3 Months R.I.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

2. According to the prosecution story, on 7-12-2008 at about 5:30

P.M., the complainant Devendra Raghuvanshi was in his shop along

with his father Lakhan Singh Raghuvanshi. At that time, the appellant

Rajesh Yadav came there and threatened that they should not go to his

field, which is in possession of the complainant, otherwise, they

would be beheaded. When the father of the complainant objected that

when they have sown the crop, then why he is talking in such terms,

then the appellant Rajesh Yadav, abused them, and also threatened

that the crop would be damaged by driving tractor over it. Thereafter

at about 7:00 P.M., Lakhan Singh Raghuvanshi, went to field along

with Mahavir, to see his crop. After some time, a nearby Dhaba

owner informed the complainant on phone, that the father of the

complainant is being beaten by Sumela Wale. The complainant

immediately went there along with Vishnu Ojha, Mahendra Rajak,

Panchuram and Rajendra Raghuvanshi on his car. When he reached

there, he saw that Jagram, Vir Singh Yadav, Rajesh Yadav, Neeraj

Yadav, Ranjit Singh Yadav and Manoj were fleeing away on a tractor.

At that time, Mahavir informed that while they were returning back

from the field, the appellants assaulted the deceased by Ballam,

Sabbal, Farsa etc. and after Lakhan fell down, the tractor was run

over. Lakhan Raghuvanshi was lying in an injured condition with

multiple injuries on head, ear, mouth, chest, abdomen etc. He was

taken to Badarwas Hospital. The doctors advised him to take to

Shivpuri Hospital. At Shivpuri Hospital, the deceased was declared

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

dead. The F.I.R. was lodged in Police Station Kotwali, at 12:40 A.M.,

in night.

3. As the incident had taken place in the territorial jurisdiction of

Badarwas Police Station, therefore, the F.I.R. was sent to the said

police station, and F.I.R. was registered in Police Station Badarwas.

The spot map was prepared, blood stained and plain earth was seized.

The motorcycle of the deceased was also recovered from the spot and

was brought to police station and was also seized. The statements of

the witnesses were recorded. The appellants were arrested and

weapons were seized. Tractor was seized from the possession of

appellant Neeraj Yadav. The incriminating articles were sent to F.S.L.

Gwalior. The police after completing the investigation, filed the

charge sheet for offence under Sections 147, 148, 149, 302, 341 of

I.P.C.

4. The Trial Court by order dated 9-2-2009 framed charges under

Sections 148, 302 or in the alternative 302/149 of I.P.C.

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

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

@ Deepu (P.W.1), Mahavir (P.W.2), Mahesh Kushwah (P.W.3),

Mahendra Rajak (P.W.4), Rajesh Singh Raghuvanshi (P.W. 5), Badri

Rajak (P.W. 6), Dr. P.K. Dubey (P.W. 7), Hukum Chand (P.W. 8), S.S.

Tomar (P.W.9), Hukum Singh Yadav (P.W.10).

7. The appellants examined Shaym Bai (D.W.1), Jagdish (D.W.2).

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

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

convicted the appellants for the above mentioned offences.

9. Challenging the judgment and sentence passed by the Court

below, it is submitted by Shri A.K. Jain, Advocate, that the

prosecution has failed to prove that there was any source of light on

the spot, the witnesses have stated that tractor was run over the

injured but in the post-mortem report, no such injury was found, and

even Mahavir has also not stated so in his evidence. Motorcycle of

the deceased was not seized from the spot. The evidence of witnesses

is not reliable as they are related and interested witnesses.

10. Per contra, the Counsel for the State has supported the findings

recorded by the Trial Court.

11. Heard the learned Counsel for the parties.

12. Before proceeding further, this Court thinks it apposite to find

out as to whether the death of Lakhan Singh was homicidal in nature

or not?

13. Dr. P.K. Dubey (P.W. 7) had conducted the post-mortem of the

deceased Lakhan Singh and found the following injuries on his

body :

(I) Incised wound on middle of right parietal region vertically

placed 7.5x2.5 cm x brain deep. Brain matter is coming out

from wound. Clotted blood present.

(ii) Incised wound 5 x 2.5 cm x bone deep on right side frontal

region transverse obliquely placed 4 cm above right eyebrow

clotted blood present.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

(iii) Incised wound 5.5 x 2 cm x 2 cm on right side upper part of

Occipital region obliquely present, clotted blood present.

(iv) Incised wound 5 cm x 2.5 x bone deep on left parietal region

anterior posterior placed 5 cm above upper part of lt ear pinn,a

clotted blood present.

(v) Incised wound 2.5x1x1cm left side upper occipital region,

clotted blood present.

(vi) Lacerated wound 4 x 1.5 cm x through and through on middle

of left ear pinna transversely present.

(vii) Lacerated wound 3 x 1 cm x whole thickness lower part of left

ear pinna. Clotted blood in left ear.

(viii) Multiple abrasion parallel and scratch on anterior side of

abdomen in area of 30x 28 cm size.

(ix)    Bruise 7 x 5 cm in between both scapula.

(x)     Bruise 10 x 5 cm on left side back of lumbar region.

(xi)    Bruise 10 x 7 cm above left iliac crest post-lateral side.

(xii) Abrasion 7 x 2 cm on lower side of left leg.

(xiii) Abrasion 7.5 x 5 cm on upper side of right thigh.

(xiv) Bruises on sternum 4 x 2 cm size.

(xv) Lacerated wound 3 x 1/2cm x bone deep on dorsal side

proximal phalanx right ring finger clotted blood present.

All injuries were antemortem in nature.

14. On internal examination, fracture of frontal bone, perital and

occipital bone right side underneath the wound. Clotted blood was

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

present below the fracture site. And under the injury no. 4, fracture of

left perital bone upto temporal bone, clotted blood present. The post-

mortem report is Ex. P.14.

15. Dr. P.K. Dubey (P.W.7) was cross examined and he clarified

that the blood clotting had started. The injuries no.1 and 2 could not

have been caused by same weapon. The injury no.4 was on left perital

region. The weapon used for assaulting the deceased must have got

stained with blood. The injuries no.6 to 15 could have been caused

due to fall on a hard surface, but clarified that all those injuries could

not be sustained on single fall. The deceased could have died

immediately after suffering the injuries. The death had occurred due

to injuries no.1 to 4. Injuries no.1 to 4 cannot be sustained on account

of fall.

16. Since, the cause of death was Coma due to injury to brain,

therefore, it is held that the death of the deceased Lakhan was

homicidal in nature.

17. The next question for consideration is that whether the

appellants are the author of the injuries sustained by the deceased

Lakhan or not?

18. Devendra @ Deepu (P.W.1) is the son of deceased Lakhan. He

has stated that on 7-12-2008, at about 5:30 P.M., he was in his shop at

Badarwas. His cousin brother Mahavir, uncle Rajendra, employees

Vishnu Ojha and Mahendra Rajak were also in the shop. The

deceased Lakhan was also in the shop. At that time the appellant

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

Rajesh Yadav came and threatened the deceased Lakhan that he

should not go to the field which is in possession of Lakhan and also

threatened that if he goes to the field, then he would be beheaded. His

father replied, that they have sown the crop therefore, he should not

talk in that manner. On this issue, the appellant Rajesh Yadav started

abusing. On the same day at about 7 P.M., his father went to the field

along with Mahavir. After some time, this witness received a

telephonic call from the owner of a Dhaba that Jagram, Vir Singh and

other residents of village Sumela are beating his father. Accordingly,

he along with his uncle Rajendra, Vishnu, Mahendra, Panchuram

Chidar went to village Sumela on his car. After noticing this witness,

all the appellants ran away. This witness saw that his father was lying

on the ground. Mahavir informed that the appellants had assaulted

the deceased by means of Lathi, Sabbal, Farsa etc. Thereafter, they

brought the injured to Badarwas Hospital, where they were informed

that the condition is serious, accordingly, they came to Shivpuri

Hospital, where his father was declared dead. The F.I.R. was lodged

at Shivpuri Kotwali, which is Ex. P.1.

19. In cross-examination, this witness clarified that the report of

threatening extended at 5:30 P.M. was not lodged. The field is about

1 to 1.5 kms from his shop and his father had left in his presence.

Mahesh who is the owner of Dhaba was already known to him.

Mahavir is nephew of his father. After receiving the telephonic call

from Mahesh, they all went to field and prior to that all the witnesses

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

were in his shop. The car was also parked in front of the shop. This

witness had driven the car. When his car was about 5-10 steps away

from the appellants, then all the appellants had run away. It was a

twilight, however, the lights of the tractor and car were ON. His

statement was recorded after 4-5 days as he had gone Allahabad. His

father was lying by the side of the road in an injured condition. The

Dhaba of Mahesh is situated at a distance of 100-150 ft.s. He denied

that the Dhaba is situated at a distance of 500 meters. He admitted

that his native village is Dungasara (Nai Sarai) but denied that he

resides in village Dungasara. Village Sumela is at a distance of 1-1.5

Kms. His uncle Rajendra is resident of Dungsara whereas Mahendra,

Vishnu are residents of Badarwas. Panchu is resident of village

Rijoda. Sumela is at a distance of 40 Kms from Guna. He further

stated that all the witnesses who had gone along with him have no

business in Badarwas. Village Dungasara is about 10 Kms away from

Badarwas whereas village Sumela is 40 Kms from Guna. Mahavir

met him on the spot and had no injuries on his body. The father of

this witness and Mahavir had gone on a motorcycle but he had not

seen his motor cycle on the spot. Mahesh had informed him the

names of assailants. He further stated that the field in question was

purchased by them about 5 years back from the mother of the

appellant Rajesh Yadav and denied that it was mortgaged with the

deceased. Badarwas Police Station is about 100-150 ft.s away from

the hospital. Further, Kolaras is in between Badarwas and Shivpuri

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

but admitted that no report was lodged either in Badarwas Police

Station or in Kolaras Police Station.

20. Mahendra Rajak (P.W.4), Rajendra Singh Raghuvanshi (P.W.5),

have also deposed about the threat which was given by appellant

Rajesh Yadav and have also deposed that they also went to field along

with Deependra @ Deepu (P.W.1) and saw that the appellants were

assaulting the deceased and after noticing these witnesses, they

escaped on the tractor. These witnesses were also cross examined in

detail, but nothing could be elicited which may make their evidence

unreliable. However, it is submitted that since, Mahendra Rajak

(P.W.4) was the employee of the deceased, therefore, he is an

interested witness.

21. Mahavir (P.W.2) is the eye witness. He has stated that on 7-12-

2008 at about 5-5:30 P.M., he was in the shop and the deceased

Lakhan, Rajendra, and Deepu were also there. The appellant Rajesh

Yadav came in the shop and threatened the deceased Lakhan that he

should leave the field, otherwise he would be beheaded. The deceased

Lakhan replied that he has sown the crop, therefore, why the

appellant Rajesh Yadav is talking in such a manner. Accordingly, the

appellant Rajesh Yadav retaliated that he would destroy the crop by

running over the tractor. Thereafter, at about 7 P.M., he and the

deceased Lakhan went to the field on a motorcycle. Mahesh, the

Dhaba owner also reached there. Prakash, Bataidar was also called

and the deceased had some talk with Prakash and thereafter, when

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

this witness and the deceased were returning, then they met with the

appellants Rajesh, Jagram, Vir Singh, Ranjit, Manoj, and Neeraj who

were on a tractor. They waylaid the witness and the deceased. After

seeing them, the deceased Lakhan after leaving the motorcycle, ran

towards village Sumela in order to save his life. However, he was

surrounded by the appellants and assaulted him by lathi, Sabbal,

Farsa, as a result he fell down. After some time, Deepu (P.W.1),

Rajendra (P.W.5), Vishnu, Mahendra (P.W.4) came there on a car, and

after noticing them, the appellants flee away from the spot.

Thereafter, they took the injured Lakhan to Badarwas Hospital and

then to Shivpuri Hospital where Lakhan was declared dead. He also

narrated the incident to Deependra @ Deepu (P.W.1). On the next

day, he went to spot along with police and spot map, Ex. P.2 was

prepared. The blood stained and plain earth was seized vide seizure

memo Ex. P.3.

22. This witness was cross-examined. He stated that his birth place

is village Dungasara, however, denied that he resides in village

Dugasara. He claimed that he had disclosed his address as Badarwas

to the police, but could not explain as to how, Dungasara was

mentioned as his address in his police statement, Ex. D.1. He further

admitted that no report of threat extended by Rajesh Yadav was

lodged. Mahesh is known to him. All the appellants had come on a

tractor. After Lakhan tried to run away, then this witness had moved

towards the other side of the road and was at a distance of 14-15 ft.s.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

When Lakhan was being assaulted, he was at a distance of 15-20 ft.s.

When Deepu (P.W.1) and others reached on the spot, only then this

witness came nearer to Lakhan. After Deepu (P.W.1) and others came

on the spot, then the appellants had run away. Although it was already

dark, but the light of the Tractor was ON. However, could not see

that which weapon was used by which accused. As he was frightened

therefore, he was standing at a distance. He did not raise an alarm.

The appellants had escaped towards Guna Road. However, could not

see that who was driving the tractor. He also could not see that who

was sitting on the mudguard. He denied that he had not gone to the

spot along with the deceased. Dhaba was at a distance of 100-150 ft.s

away from the spot. He further stated that he was not the regular

student of College. He could not explain that where Prakash had

gone. He also could not stated that whether Mahesh and Prakash had

also come on the spot or not. When the motorcycle was stopped, he

was sitting on the same along with the deceased. As he could not

understand the situation, therefore, did not try to take help of Mahesh.

There are no houses near the place of incident. He did not raise an

alarm as he was very frightened. Prakash is residing in the same field

after constructing a hut. Dhaba is situated on a Govt. land. He denied

that he had informed Deepu (P.W.1) that the appellants had run over

the tractor in order to kill Lakhan. Badarwas Hospital is at a distance

of approximately 400 meters from Badarwas Police Station. He

denied that he was not present on the spot.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

23. Mahesh Kushwaha (P.W. 3) is the Dhaba owner. He has stated

that Lakhan Raghuvanshi came to his Dhaba along with one boy.

Prakash was also called. Thereafter, the deceased had talk with

Prakash for 10-15 minutes and thereafter, went back towards

Badarwas. After 2-3 minutes thereafter, he heard the noise of attack.

He went towards village Sumela and found that the deceased Lakhan

was lying on the ground and Rajesh, Jgarm, Neeraj, Ranjit, Manoj

and Vir Singh were assaulting the injured by lathi, Farsa and Sabbal.

Thereafter, he moved 10-20 steps away and informed Deepu on

mobile about the incident.

24. This witness was cross examined and stated that the deceased

used to come to his Dhaba. The field of the deceased is nearer to his

Dhaba. He could not name the boy who was accompanying the

deceased. He denied that Mahavir was already known to him. He

denied that Mahavir also used to come to his Dhaba. The deceased

had come to his Dhaba at about 7-7:15 P.M. He had witnessed the

incident, from a distance of 10 steps. It was dark, but could not

specify the weapons carried by each of the appellant. He also could

not specify that who caused injury on which part of the body of

deceased. His Dhaba is about 100-150 ft.s away from the spot. His

Dhaba is situated on a Govt. land and denied that it is situated on the

land of the deceased. He denied that he had informed the police that

the boy who was accompanying the deceased was Kirar of village

Bijrouni. He stated that he do not serve meals in his Dhaba. Prakash

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

is taking the land on Batai from the deceased for the last 2-3 years.

He further stated that he did not hear the conversation of deceased

Lakhan with Prakash. He further stated that the deceased had two

fields out of which, one field is situated towards Guna Road and

another is situated towards Shivpuri road. The movement, Lakhan left

his Dhaba, Prakash also went towards his field. He further stated that

his Dhaba is constructed over Govt. land and his house is also

situated behind the Dhaba. The SIM is in the name of his father and

prior to the incident, he did not have any talks with Deepu (P.W.1).

The mobile number of Deepu was already given by Prakash much

prior to the incident. After informing Deepu (P.W.1) he did not return

to the spot as it was already dark. The field of the deceased, which is

towards Guna road was sold by the appellant Rajesh Yadav whereas

the land of the deceased which is situated on the back side of Dhaba

was sold by his father.

25. Badri Rajak (P.W. 6) is the witness of seizure. This witness has

stated that confessional statements of Rajesh, Vir Singh, Ranjit,

Manoj and Neeraj were recorded in his presence which are Ex. P.4 to

P.8. Thereafter, he went to village Khaikheda along with police party,

where the tractor was seized. Farsa were seized from the possession

of Rajesh, Vir Singh, Jagram, and Ranjit and Lathi was seized from

Neeraj vide seizure memo Ex. P.9 to P.13. In cross-examination, this

witness has stated that he was called by the police while he was going

on the road. The confessional statement of Rajesh was recorded first,

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

thereafter, the confessional statement of Jagram was recorded. After

recording the confessional statements of all the accused persons, the

police party took them to the place of their disclosure. He admitted

that his son was the employee of the deceased Lakhan but denied that

he was on visiting terms with the deceased.

26. Hukumchand (P.W.8) has stated that he was posted as Assistant

Sub-Inspector in police station Badarwas and on the basis of F.I.R.,

Ex. P.1 which was received from Police Station Kotwali, Shivpuri, he

had registered the F.I.R., Ex. P.15. On 10-12-2008, he had recovered

the motorcycle of the deceased which was lying near the place of

incident. The seizure memo is Ex. P.16. In cross-examination, this

witness denied that the motorcycle was not recovered from the spot.

27. S.S. Tomar (P.W. 9) is the investigating officer. He has proved

the seizure of weapons. In cross-examination, this witness has

admitted that none of the witnesses had disclosed that they had seen

any of the appellant in the light of any object. The Dhaba of Mahesh

is situated at a distance 250 ft.s away from the place of incident. The

place of incident is just 5 ft away from the main road. He submitted

that on one side of spot, the Bada of Shyamlal is situated and on other

side, the Bada of Badri Kushwaha is situated but since, both the

Badas were vacant, therefore, he did not interrogated any of the

above mentioned persons. The distance between Badarwas and

Sumela is approximately 3 kms and by car a person can reach within

3-5 minutes, whereas by two wheeler, one can reach within 5

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

minutes. He admitted that some of the witnesses are the relatives of

the deceased and some are employees of deceased and some are

independent witnesses.

28. Hukum Singh Yadav (P.W.10) has stated that Deependra

Raghuvanshi (P.W.1) had lodged F.I.R., Ex P.1 in police station

Shivpuri and a copy of the said F.I.R. was sent to C.J.M. on 8-12-

2008. In cross-examination, this witness informed that since, lot of

persons had gathered in the hospital, therefore, the constable in the

hospital had informed on wireless that the number of people are

increasing, therefore, police force be sent to maintain law and order

situation.

29. The appellants had examined Shyambai (D.W.1) and Jagdish

(D.W.2) to prove that the appellant Manoj and Ranjit are minors.

However, the appellants Manoj and Ranjit were not found to be minor

and even during the course of arguments, no question has been raised

with regard to juvenility of the appellants Manoj and Ranjit.

Source of Light

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

incident is alleged to have taken place at about 7-7:30 P.M. on 7-12-

2008, and in absence of any source of light, it is very difficult to

identify the appellants, thus, the prosecution has failed to prove the

identity of the appellants.

31. Considered the submissions made by the Counsel for the

appellants.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

32. According to prosecution story, Mahavir (P.W.2) was

accompanying the deceased and had witnessed the entire incident

from a distance of 15-20 ft.s. Similarly, Mahesh (P.W. 3) who is the

Dhaba Owner has claimed that he had witnessed the incident from a

distance of 10 ft.s. Deependra @ Deepu (P.W.1), Mahendra Rajak

(P.W. 4) and Rajendra Singh Raghuvanshi (P.W. 5) have stated that

they had seen the appellants fleeing away in the light of their car.

Further, Mahavir (P.W. 2) has also claimed that the light of the

Tractor of the appellants was ON. Thus, it is clear that the witnesses

have specifically pointed out the source of light. Further, the eye

vision of a villager is accustomed to see even in poor light. Mahavir

(P.W.2) as well as Mahesh (P.W. 3) have seen the actual assault from

a very close range. The Supreme Court in the case of Ramesh Vs.

State reported in (2010) 15 SCC 49 has held as under ;

15. As stated earlier, the appellant and these two witnesses (PWs 3 and 4) are neighbours and, therefore, knew the appellant well and their claim of identification cannot be rejected only on the ground that they have identified him in the evening, when there was less light. It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatised to fluorescent light. Visible (sic visual) capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meagre light in the evening. There is nothing on record to show that these two witnesses are in any way interested and inimical to the appellant. Their evidence clearly shows that the deceased was last seen with the appellant and the High Court did not err in relying on their evidence.

33. Since, the witnesses are villager and their eyes are conditioned

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

and they have a capacity to see the things even in meager light

coupled with the fact that Mahavir (P.W. 2) and Mahesh (P.W. 3) have

seen the incident from a close range, whereas Deepu (P.W.1),

Mahendra Singh Rajak (P.W.4) and Rajendra Singh Raghuvanshi

(P.W. 5) had seen the appellants running away in the light of the car,

this Court is of the considered opinion, that there was sufficient light

on the spot to witness the incident.

Related and Interested Witnesses

34. It is submitted by the Counsel for the appellants, that all the

witnesses are related witnesses and since, they are vitally interested in

ensuring conviction of the appellants, therefore, they are not reliable.

35. Considered the submissions made by the Counsel for the

appellants.

36. Before considering the submissions of the Counsel for the

appellants, this Court thinks it apposite to consider the law regulating

the field of "Interested witness" and "Related witness".

37. The Supreme Court in the case of Bhagwan Jagannath

Markad Vs. State of Maharashtra reported in (2016) 10 SCC 537

has held as under :

19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.

20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.

The Supreme Court in the case of State of U.P. Vs. Kishanpal

reported in (2008) 16 SCC 73 has held as under :

17. The plea of "interested witness", "related witness" have been succinctly explained by this Court in State of

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

Rajasthan v. Kalki. The following conclusion in para 7 is relevant: (SCC p. 754) "7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a 'highly interested' witness because she 'is the wife of the deceased', and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. 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'."

From the above it is clear that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she has derived 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".

The Supreme Court in the case of Sudhakar Vs. State reported

in (2013) 5 SCC 435 has held as under :

16. It would be appropriate to have a look at the legal position with regard to the evidence of related and interested witnesses. In Sarwan Singh v. State of Punjab, SCC para 10, this Court observed thus: (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."

It is settled law that there cannot be any hard-and-fast rule

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

that the evidence of interested witnesses cannot be taken into consideration and they cannot be termed as witnesses. But, the only burden that would be cast upon the courts in those cases is that the courts have to be cautious while evaluating the evidence to exclude the possibility of false implication. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness.

17. Then, next comes the question "what is the difference between a related witness and an interested witness?". The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The 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. In this case at hand PWs 1 and 5 were not only related witnesses, but also "interested witnesses" as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal]. As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analysing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution.

The Supreme Court in the case of Vijendra Singh Vs. 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

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

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.

32. Mr Giri, learned Senior Counsel for the appellant has also impressed upon us to discard the testimony of PW 3, Tedha, on the ground that he is a chance witness. According to him, his presence at the spot is doubtful and his evidence is not beyond suspicion. Commenting on the argument of chance witness, a two-Judge Bench in Rana Partap v. State of Haryana was compelled to observe: (SCC p. 329, para 3) "3. ... We do not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."

38. Deependra @ Deepu (P.W.1) is the son of deceased Lakhan.

He was present in his shop along with Lakhan, when a threat was

extended by the appellant Rajesh Yadav. Thus, the presence of

Deependra @ Deepu (P.W.1) and the deceased Lakhan in the shop is

natural and therefore, the evidence of Deependra @ Deepu (P.W. 1)

cannot be discarded merely on the ground that he is the son of the

deceased Lakhan. Further, why the son of the deceased would falsely

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

implicate the appellants, by sparing the real culprits? Further,

Deependra @ Deepu (P.W. 1) did not try to become an eye-witness.

His evidence is only to the effect that threat was extended by

appellant Rajesh Yadav to his father to leave the field, otherwise, the

deceased would be killed and another piece of evidence is that when

he reached on the spot, he saw the appellants fleeing away in the light

of the car. It is not the case of the appellants, that Deependra @

Deepu (P.W. 1) has no car. Furthermore, the distance between

Badarwas and Sumela is approximately 3 Kms, therefore, after

receiving an information about assault on his father, the son would

naturally go by a vehicle and since, the car of this witness was

already parked outside the shop, therefore, it is natural that he would

go by car. Thus, the evidence of Deependra @ Deepu (P.W. 1) cannot

be discarded.

39. So far as Mahavir (P.W.2) is concerned, he is the nephew of

deceased Lakhan. Thus, his evidence, that he was accompanying the

deceased at the time of incident cannot be said to be unnatural. When

an accused has extended a threat, and the deceased wants to see his

field, then if he takes his nephew along with him, then it cannot be

said that the presence of Mahavir (P.W.2) on the spot was unnatural.

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

Mahavir did not try to intervene in the matter, and further no injury

was caused to him, therefore, it is clear that he was not present on the

spot.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

41. Considered the submissions made by the Counsel for the

appellants.

42. According to the prosecution case, the mother of the appellant-

Rajesh Yadav had sold the land to the deceased Lakhan. The

appellant Rajesh Yadav had grudge against Lakhan Yadav and was

insisting that Lakhan should leave the field. The appellants did not

have any grudge against Mahavir (P.W.2). It is not necessary that in

every case, the eye witness must suffer injuries. Even if an eye-

witness was spared by the assailants, then it is difficult to hold that

the eye-witness was not present on the spot. The presence of an eye-

witness on the spot, is to be ascertained from various factors.

43. The Supreme Court in the case of Dharamveer Vs. State of

U.P. reported in (2010) 4 SCC 469 has held as under :

22. Mr Gupta submits that the two eyewitnesses, namely, PW 1 Jaipal Singh and PW 2 Shiv Charan were highly inimical to the accused persons and according to the prosecution itself had both come at a handshaking distance, they would not have been left unharmed and hence their claim to be the eyewitnesses to the incident is highly doubtful.

23. We do not find any substance in this submission of Mr Gupta. Why the appellants did not cause any injury to these witnesses cannot be explained by the prosecution. It will require entering into their mind. Human behaviour is sometimes strange. Merely the fact that these witnesses did not suffer any injury, will not make their evidence untrustworthy. This aspect of the matter has been considered by the High Court in right perspective and it has held as follows:

"The statements of the witnesses show that Sheodan, Ravi Kiran and Jagdish were 30 or 35 steps ahead of other witnesses. On coming out of the crop the accused persons targeted Jagdish and Sheodan. Therefore, if injuries were not caused to other persons of the family

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

of the victims i.e. two eyewitnesses, it does not mean that they were not present on the spot. The entire group could not be targeted by the accused as it was likely to result in the failure of their mission."

44. Thus, in the light of the judgment passed by the Supreme Court

in the case of Dharamveer (Supra), it is held that merely because

Mahavir (P.W.2) was left unharmed by the appellants, is not sufficient

to discard his evidence.

45. So far as Mahesh Kushwaha (P.W.3) is concerned, the said

witness has not only witnessed the incident, but has also informed

Deependra @ Deepu (P.W.1) about the assault. The Dhaba of this

witness is situated at a nearby place. Thus, the presence of this

witness on the spot cannot be doubted. Further, he is not related to the

deceased. Merely because the deceased was known to this witness, it

is not sufficient to discard the evidence of this witness.

46. Mahendra Rajak (P.W. 4) is the employee of deceased Lakhan.

This witness has also stated about the threat extended by Rajesh

Yadav and thereafter, this witness also went to the spot along with

Deependra @ Deepu in the car. This witness also claims to have seen

the appellants fleeing away in the light of the car. The evidence of

this witness cannot be discarded merely on the ground that he was an

employee of Lakhan. On the contrary, the fact that this witness was

the employee of Lakhan shows that the presence of this witness in the

shop, at the time when threat was extended in the shop, appears to be

more natural.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

47. It is submitted by the Counsel for the appellants, that this

witness has admitted that some customers were also present in the

shop, but they have not been arrayed as an eye-witness.

48. Considered the submissions made by the Counsel for the

parties.

49. Nowadays, no independent witness likes to come forward in

order to depose against the accused. The Supreme Court in the case

of Sadhu Saran Singh Vs. State of U.P. reported in (2016) 4 SCC

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 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.

50. Thus, if none of the customer present in the shop at the time of

threat extended by the appellant Rajesh Yadav, was examined, then

that by itself would not be sufficient to discard the other reliable

evidence.

51. Rajendra Singh Raghuvanshi (P.W. 5) is the cousin brother of

the deceased. Therefore, his presence in the shop is natural. Further,

this witness did not try to become an eye-witness of the assault.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

52. Thus, it is held that Deependra @ Deepu (P.W.1), Mahavir

(P.W.2), Mahesh Kushwaha (P.W.3), Mahendra Rajak (P.W. 4) and

Rajendra Singh Raghuvanshi (P.W.5) are reliable witnesses and their

evidence cannot be discarded merely on the ground that either they

are related witnesses or they are known or employee of the deceased.

Why F.I.R. was not lodged in Police Station Badarwas or Kolaras

53. It is submitted by the Counsel for the appellants, that

admittedly, the F.I.R. was lodged in Police Station Shivpuri and was

not lodged in Police Station Badarwas. The witnesses have also

admitted that Kolaras Police Station is also situated on the way to

Shivpuri, but no F.I.R. was lodged in the above mentioned police

stations, thus, it is clear that the F.I.R. was lodged belatedly after due

deliberations.

54. Considered the submissions made by the Counsel for the

appellants.

55. The facts of the case are that the deceased Lakhan was lying in

an injured condition with multiple injuries on his body. Therefore, the

first attempt of the relatives of deceased would be to ensure

immediate medical assistance to the injured. The deceased Lakhan

was immediately taken to Badarwas Hospital, where the witnesses

were informed, that the deceased is in a serious condition, therefore,

he should be taken to Shivpuri. Thereafter, the witnesses rushed to

Shivpuri. Looking to the condition of the deceased, each and every

minute was precious, therefore, if the witnesses did not waste time by

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

stopping at Badarwas Police Station or Kolaras Police Station, then it

cannot be said that the F.I.R. was lodged at Police Station Shivpuri

after due deliberations.

Seizure of Motorcycle of the deceased

56. It is submitted by the Counsel for the appellants that according

to prosecution case, the deceased had gone along with Mahavir to his

field on his motorcycle, but the motorcycle was not seized from the

spot.

57. Hukumchand (P.W.8) has stated that on 10-12-2008, he had

recovered the motorcycle lying in an abandoned condition on A.B.

Road opposite to village Sumela.

58. The incident took place on 7-12-2008 and F.I.R. was lodged in

Police Station Shivpuri on 8-12-2008 at about 00:40, Ex. P.1 and

thereafter, the F.I.R. was sent to Police Station Badarwas on 8-12-

2008, which was received in Police Station Badarwas on 8-12-2008

at 15:30, Ex. P.15. Thus, if the motorcycle was recovered on 9-12-

2008, then it cannot be said that there was any undue delay. However,

it is always expected that the Investigating Officer, must act swiftly in

order to avoid any manipulation. But in the present case, this Court

has already held that the prosecution witnesses, Deependra @ Deepu

(P.W. 1), Mahavir (P.W.2), Mahesh Kushwaha (P.W. 3), Mahendra

Rajak (P.W. 4) and Rajendra Singh Raghuvanshi (P.W.5) are reliable

witnesses, under these circumstances, the delay in recovery of

motorcycle from the spot, will not give any dent to the prosecution

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

case.

Whether the tractor was run over the deceased

59. Originally, it was the case of the prosecution, that after

assaulting the deceased Lakhan, tractor was run over the deceased,

however, in the Court evidence, none of the witness has stated in this

regard and even in the post-mortem report, Ex. P. 14, no such injury

which could have been caused by running over the tractor was found.

Thus, it is submitted that the witnesses had made improvements in

their evidence, which makes their evidence unreliable.

60. Considered the submissions made by the Counsel for the

appellants.

61. It is true that in the F.I.R., Ex. P.1, it was alleged that even the

tractor was run over the deceased, but in the Court evidence, none of

the witness has stated so. Even in the Post-mortem report, Ex. P.14,

no such injury was caused.

62. In India, there is always a possibility of embellishment in order

to make the offence more heinous. The witnesses always tend to

make certain improvements. In the present case, none of the witness

in the Court evidence has stated about running over the tractor.

Merely because there were some allegations which are not

corroborated by the medical evidence, are not sufficient to throw the

prosecution case. The Supreme Court in the case of Sohrab Vs. State

of M.P. reported in (1972) 3 SCC 751 has held as under :

8...It appears to us that merely because there have been

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

discrepancies and contradictions in the evidence of some or all of the witnesses does not mean that the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvement, the Court comes to the conclusion that what can be accepted implicates the appellants it will convict them. This Court has held that falseus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum of the prosecution case or material part of the evidence is disbelievable it will not be permissible for the Court to reconstruct a story of its own out of the rest......

The Supreme Court in the case of Bhajan Singh Vs. State of

Haryana reported in (2011) 7 SCC 421 has held as under :

39. In a case like at hand, where two persons died on the spot and other received grievous injuries, the eyewitnesses also make an attempt to save themselves and rescue the persons under attack. In such a fact situation, the witness is not supposed to be perfectionist to give the exact account of the incident. Some sort of contradiction, improvement, embellishment is bound to occur in his statement. Thus, in view of the above, we have no hesitation to hold that submission of the learned counsel for the appellants in this regard is preposterous.

63. A slight improvement, exaggeration or embellishment is always

possible in the evidence of witnesses, and the Court should not

discard the entire evidence but should make an attempt to remove the

grain from the chaff. Thus, merely because in the F.I.R., Ex. P.1 or in

the statements recorded under Section 161 of Cr.P.C., it was also

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

alleged that the appellants had run over the tractor, but thereafter,

when the witnesses did not allege so in their Court evidence, then it

cannot be said that since, there was some exaggeration in the original

prosecution case and thereafter, the witnesses have tried to bring the

the prosecution case in the line of medical evidence, would make the

entire prosecution case unreliable. Furthermore, the Court evidence is

substantive piece of evidence and F.I.R. and previous statements

recorded under Section 161 of Cr.P.C. can be used for corroboration

purposes.

64. No other argument is advanced on behalf of the appellants.

65. Considering the totality of the facts and circumstances of the

case, this Court is of the considered opinion, that the prosecution has

succeeded in establishing the guilt of the appellants beyond

reasonable doubt. Accordingly, their conviction for offence under

Sections 302/149 and 148 of I.P.C. is hereby maintained.

66. Since, the minimum sentence for offence under Section 302 of

I.P.C. is Life Imprisonment, therefore, the jail sentence awarded by

the Trial Court, does not call for any interference.

67. Ex consequenti, the judgment and sentence dated 26-10-2009

passed by Additional Sessions Judge, Shivpuri in S.T. No.40/2009 is

hereby Affirmed.

68. The appellant Manoj is on bail. His bail bonds are hereby

cancelled. He is directed to immediately surrender before the Trial

Court for undergoing the remaining jail sentence.

Jagram & Ors. Vs. State of M.P. (Cr.A. No.790/ 2009)

69. All other appellants are in jail. They shall undergo the

remaining jail sentence.

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

cost.

71. With aforesaid observations, the appeal is Dismissed.

72. The Registry is directed to immediately send back the record

along with copy of Judgment to the Trial Court, for necessary

information and compliance.

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


                               ARUN KUMAR MISHRA
                               2021.09.29 15:45:18 +05'30'