Madhya Pradesh High Court

Kallu @ Brijesh Sharma vs State Of M.P. on 31 January, 2022

Author: Gurpal Singh Ahluwalia

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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH

DIVISION BENCH

G.S. AHLUWALIA

DEEPAK KUMAR AGARWAL J.J.

Cr.A. No. 710 of 2012

Kallu @ Brajesh Sharma

Vs.

State of M.P.

Shri R.K. Sharma, Senior Counsel with Shri V.K. Agrawal, Counsel
for the appellant
Shri R.K. Awasthy, Counsel for the State

Date of Hearing : 24-January-2022
Date of Judgment : 31st-January-2022
Approved for Reporting :

Judgment

31st - January -2022

Per G.S. Ahluwalia J.

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

filed against the judgment and sentence dated 4-9-2012 passed by

First Additional Sessions Judge, Bhind in S.T. No.181/2009, by
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

which the appellant Kallu @ Brajesh Sharma has been convicted

under Section 302/149 of IPC and has been sentenced to undergo Life

Imprisonment and a fine of Rs. 5000/- and under Section 148 of IPC

and has been sentenced to undergo 2 years Rigorous Imprisonment.

Both the sentences shall run concurrently.

2. It is not out of place to mention here that 7 co-accused persons,

namely Monu Sharma, Sonu Sharma, Kamlesh, Pejram, Mahesh @

Pappu, Rajesh and Bablesh were arrested and they were tried. All of

them were convicted under Section 302/149 (On two Counts),

307/149, 323/149 (On three Counts) and 148 of IPC. Cr.A. No.

938/2010, 940/2010 and 1031/2010 were filed by Monu Sharma,

Sonu Sharma, Kamlesh, Prejram, Mahesh @ Pappu, and Rajesh

whereas Cr.A. No.951/2010 was filed by Bablesh. Bablesh has died

during the pendency of his appeal and accordingly, his appeal was

dismissed as abated. Although Cr.A. Nos. 938/2010, 940/2010 and

1031/2010 have also been heard simultaneously, but since, the

appellant was tried separately hence, the evidence in the case of the

present Appellant cannot be read in favor or against co-accused Monu

Sharma, Sonu Sharma, Kamlesh, Pejram, Mahesh @ Pappu and

Rajesh, and vice versa, therefore, this appeal is being decided by a

separate judgment.

3. According to the prosecution case, the complainant Kaptan

Singh, lodged a Dehati Nalishi on 27-4-2008, at about 15:00, on the

allegations that at about 10:00 A.M., his uncle Darru Singh was
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

beaten by Ramautar, Neeraj, Santosh, Guddu, Pejram, Rajesh, Sonu,

Monu, Kamlesh and Mahesh, all residents of Gauram and Kallu

Brahmin, Balu Brahmin and Moni, all residents of Bilav, on the

question of fetching water from the hand-pump, and his utensils were

thrown. They had also extended a threat to leave the village.

Thereafter, his uncle came to his house and informed the entire

incident and thereafter, he was lying under a Neem Tree. On that

issue, at about 1:30 A.M., Ramautar with .12 bore double barrel gun,

Neeraj with .315 bore Adhiya, Santosh with Mouser gun, Guddu

with .315 bore Adhiya, Pejram with .12 bore double barrel gun,

Rajesh with .315 bore gun, Sonu with .12 bore single barrel gun,

Monu with Mouse, Kamlesh with .12 bore single barrel gun, Mahesh

with Mouser, Kallu with licensed Mouser, Ballu with .12 bore gun,

Moni with .315 bore pistol came near to the house with an intention

to attack. They started abusing. Thereafter, the complainant, Rai

Singh, Ravindra, Dilip, Prem Singh, Shyamveer requested them with

folded hands not to behave in such a manner, but they did not stop.

Rajesh and Kallu fired gun shots. Gun shot fired by Kallu hit Rai

Singh on his ribs whereas gun shot fired by Rajesh hit in abdominal

region of Ravindra as a result, both of them fell down and blood

started oozing out. Thereafter, all the accused persons started firing

indiscriminately causing injuries on shoulder of Prem Singh, thumb

of Dilip Singh, and on the back side of the shoulder of Shyamveer

Singh. Rai Singh and Ravindra have expired.
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

4. On this information, the police registered FIR in crime No.

10/2008 for offence under Sections 147,148,149,294,302 of IPC. The

dead bodies of the deceased Rai Singh and Ravindra Singh were sent

for post-mortem. The spot map was prepared. The statements of

witnesses were recorded. The appellant was arrested on 22-2-2011

and his memorandum was recorded. A .315 bore gun was seized. and

after completing the investigation, police filed charge sheet for

offence under Sections 302,147,148,149,294 of IPC.

5. The Trial Court framed charges under Sections 148, 302/149 of

IPC for causing murder of Rai Singh and Ravindra Singh, 307/149 of

IPC for making an attempt on the life of Kaptan Singh, Prem Singh

etc, and 323/149 of IPC for causing simple injuries to Prem Singh,

Dilip and Shyamveer.

6. The Appellant abjured his guilt and pleaded not guilty.

7. The Prosecution examined Kaptan Singh (P.W.1), Binda

(P.W.2), Dilip (P.W.3), Darru Singh (P.W. 4), Shrikrishna (P.W.5),

Prem Singh (P.W.6), Dr. R.N. Rajauriya (P.W.7), Shambhu Singh

(P.W. 8), Shyamveer (P.W.9), Pooran (P.W.10), Gajendra Singh

(P.W.11), Har Govind Singh (P.W. 12), and Sanjeev Kumar Tiwari

(P.W.13).

8. The appellant examined Ramjilal Sharma (D.W.1) and Rakesh

Singh (D.W.2) in his defence.

9. The Trial Court by the impugned judgment, convicted and

sentenced the appellant for the above mentioned offences and
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

acquitted the Appellant for offence under Section 307/149 of IPC and

323/1249 of IPC on three counts.

10. Challenging the judgment and sentence passed by the Court

below, the Counsel for the appellants submitted that all eye-witnesses

are related witnesses, and from the admissions made by them, it is

clear that they are "Interested witnesses." The co-accused Ramautar,

Pejram, Rajesh, Kamlesh and Mahesh are sons of Ramlakhan,

whereas the co-accused Sonu and Monu are sons of co-accused

Pejram. Similarly, Neeraj, Santosh and Guddu are sons of co-accused

Ramautar. Thus, it is clear that entire family members were falsely

implicated. There are material discrepancies in the ocular and

medical evidence. The incident is alleged to have taken place only

on the question of fetching water from the hand-pump. Even

according to the prosecution case, the accused persons had some

grudge against Darru, and although Darru was also present on the

spot, but no attempt was made to cause any injury to him, therefore,

the motive attributed by the prosecution is unreliable. Although the .

315 bore gun was recovered from the possession of the Appellant

Kallu, but the fired cartridges which were recovered from the spot,

were not sent for comparison. Neither any fired bullet was recovered,

nor any gun shot marks were found on the walls, which clearly

indicates that the allegations of indiscriminate firing by co-accused

Monu, Sonu, Kamlesh, Prejram and Mahesh is false. FIR was lodged

after due deliberations. No independent witness was examined.
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

Since the direction of gun shot injury sustained by Rai Singh and

Ravindra was downward therefore, it is clear that the assailant was

standing at a height, but the spot map doesnot show any high place

from where the gun shots could have been fired. The distance

between the dead bodies and the place from where the empty

cartridges were seized was 65 ft., which donot corroborate the ocular

as well as documentary evidence. Or in the alternative, since, the

firing was alleged to have taken place all of a sudden, without any

premeditation and the appellants did not act in cruel manner,

therefore, their act is punishable under Section 304 Part I of IPC.

The co-accused Ramautar, Neeraj, Santosh and Guddu were arrested

at a later stage and accordingly they were tried separately, and the

witnesses turned hostile and did not support the prosecution case

against those accused persons, therefore, it is clear that they had

adopted the policy of pick and choose. It is further submitted that co-

accused Moni was juvenile and although he was convicted by

Juvenile Justice Board, but he was acquitted in appeal.

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

prosecution case as well as the findings recorded by the Trial Court.

It is further submitted that since, the witnesses were examined after 3-

3 ½ years of incident, therefore, some discrepancies are bound to take

place.

12. Heard the learned Counsel for the parties.

13. Before adverting to the facts of the case, this Court would like
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

to find out as to whether the death of Rai Singh and Ravindra Singh

was homicidal in nature or not?

14. Dr. R.N. Rajouria (P.W. 7) had conducted the post-mortem of

dead bodies of Ravindra and Rai Singh and found the following

injuries on the body of Ravindra :

(i) Wound of Entry - 1 cm in diameter on left costal
margin 6 cm away from midline of chest margins are
inverted.
(ii) Wound of Exit - Size 3 cm x 2 cm in size on right
side of back below the lowest lower rib, 12 cm away from
midline of back.
Both wounds are interconnected through and through.
Direction of trace is left to right anterior to posterior and
above to downward. Margins of exit wound are everted.
Soft tissue protruded out.
On internal examination, lower part of stomach was found
ruptured, loops of small and long intestine ruptured, liver
was massively ruptured and right kidney was ruptured.
The cause of death was shock due to extensive hemorrhage
caused by gun shot. Homicidal in nature duration of death
within 12 hours.

The post-mortem report is Ex. P.10.

15. The following injuries were found on the dead body of Rai

Singh :

(i) Wound of Entry - 2 cm in diameter on left side of
chest in anterior axillary line at the level of nipple. Margins
are inverted.
(ii) Wound of Exit - 3 cm x 2 ½ cm on right side of back
at the level of 12 th vertebra just below the 12 th rib. Margins
are everted. Soft tissue protruded out. Blood coming out.
Both wounds are interconnected, direction of track is left to
right, anterior to posterior and above downward.
On Internal Examination : Lower lobe of Left lung was
ruptured, left pleura was ruptured
Cause of death was shock due to extensive hemorrhage and
damage to vital organs caused by gun shot. Duration is
within 12 hours.
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

The post-mortem report is Ex. P.11.

16. This witness was cross-examined in short and in cross-

examination, he stated that he cannot tell the exact timings of the

death of the deceased persons, but they died within 12 hours of the

Post-mortem. If the heart stops working all of a sudden, then the

death is also known as death by shock.

17. It appears from the post-mortem reports, Ex. P. 10 and P.11 that

although the direction of bullet track was downward, but the angle

was not so steep, therefore, it cannot be said that the gun shots were

fired from a height, but the accused might be taller than deceased.

Thus, it is clear that the deceased Ravindra and Rai Singh died a

homicidal death.

18. The next question for consideration is that whether Prem Singh

(P.W.6), Shyamveer (P.W.9) and Dilip (P.W.3) suffered any injury or

not ?

19. The prosecution has not examined the Doctors who had

medically examined the above mentioned three injured persons. The

Trial Court has also found that the prosecution has failed to prove the

offence under Section 307/149 and 323/149 of IPC. As no appeal has

been filed by the State against the acquittal of the Appellant Kallu for

offence under Sections 307/149 and 323/149 of IPC, therefore, there

is no need for further deliberations on this issue.

20. The next question for consideration is that whether the

Appellant caused any gun shot injury to deceased Rai Singh and
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

whether was the member of Unlawful Assembly and was sharing

Common Object or not?

21. Kaptan (P.W.1) has stated that at about 10 A.M., his uncle

Darru had gone to fetch water from Hand-pump. He was beaten by

Kallu, Rajesh, and Mahesh and he was ousted from the village.

Accordingly, his uncle came to his house and informed the incident.

Thereafter, he went to sleep under a Neem Tree. At about 1-1:30

P.M., Rajesh, Kamlesh, Mahesh, Ballu, Kallu (Appellant), Pejram,

Sonu, Monu came there and they were armed with guns. They started

abusing them. The complainant party requested them with folded

hands that the complainant party doesnot want to fight with them and

therefore, the accused persons may go away. But they started firing.

The gun shot fired by co-accused Rajesh hit in the abdominal region

of Ravindra whereas Appellant Kallu fired gun shots which hit on

ribs and abdomen of Rai Singh. Both the brothers died due to

gunshot injuries. Dilip sustained injury on his thumb, whereas

Shyamveer sustained gun shot injury on his shoulder and Prem Singh

also sustained injuries from handle of the gun. Thereafter, the

accused persons ran away towards the village. The Report was

lodged at police station, Ex. P.1. Thereafter, the police came to his

house and lodged FIR, Ex. P.1. The spot map is Ex. P.2 and Seizure is

Ex. P.3. Safina form is Ex P.4 and 5 and Lash Panchnamas are Ex.

P.6 and 7. Cartridges etc. were also seized from the spot and its

seizure memo was also prepared. This witness was cross-examined.
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

In cross-examination, he stated that co-accused Rajesh is the

son of maternal uncle of Appellant and the hand-pump is installed in

his property. The incident of beating Darru had taken place at the

hand-pump. He had lodged the report at about 1 P.M., but thereafter

he stated that it was lodged at about 12-1 P.M. He denied that

because of money dispute, false FIR was lodged. The police had

reached village at about 1-1:30 P.M. He denied that the FIR was

lodged after due deliberations. He himself had seen the incident and

he was present on the spot. He denied that the Appellant Kallu was

not on the spot. Kallu was at a distance of 7-8 ft.s at the time of

firing.

22. Binda (P.W.2) is the mother of the deceased persons. She has

also narrated the same incident and specifically stated that her son Rai

Singh died because of gun shot fired by the Appellant Kallu. Rai

Singh had suffered injury on his chest whereas Ravindra, who was

shot by co-accused Rajesh had suffered two gun shot injuries. This

witness was cross-examined.

In cross-examination, She stated that the Appellant Kallu is

known to her and he is the resident of Bilav. His father's name is

Roopnarayan. She denied the suggestion that She was not present at

the time of incident. She claimed that the incident at the hand-pump

had taken in her presence. 8-10 gun shots were fired. The firing took

place from a distance of approximately 10 ft.s. There was no enmity

between the complainant and accused persons. Dilip, Shyamveer and
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

Prem Singh had sustained injuries.

23. Dilip (P.W.3) has also supported the prosecution story. In

examination-in-chief, he stated that the Appellant Kallu fired gun shot

causing injury to deceased Rai Singh, whereas co-accused Rajesh

fired at Ravindra. His uncle went to the police station, but by that

time, the police had come. Safina form is Ex. P.4 and P.5 and Lash

Panchama are Ex. P.6 and P.7. The seizure memo is Ex. P.9. This

witness was cross-examined.

In cross-examination, it was stated that he had met with his

uncle Darru who informed about the incident which took place at the

hand-pump. After the incident, which took place at the hand-pump,

his uncle was in bad shape. He did not take his uncle to the police

station. He further stated that his uncle had told about the incident of

hand-pump, after his brothers were killed. He further admitted that

prior to the incident, he did not have any enmity with the accused

persons. However, denied that the incident took place all of a sudden.

He denied for want of knowledge that on 27 th of April 2008, the

marriage of sister of Kallu was fixed and Kallu had gone there to

attend the marriage. Rai Singh had suffered two gun shots whereas

Ravindra had also suffered two gun shots. This witness, Shyamveer,

and Prem Singh had also suffered injuries. The FIR was lodged by

Kaptan Singh. Kallu had purchased a land from Nathu Singh who is

distantly related to the witness. He denied that there was any money

dispute. He denied that since, Nathu Singh had sold the land,
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

therefore, he was having grudge against Kallu. He denied that he was

not present on the spot. The accused persons had fired the gun shots

from the distance of 8-10 ft.s. He denied that the FIR was lodged

after due deliberations.

24. Darru Singh (P.W.4) has stated that the deceased Ravindra and

Rajesh are his nephews. At about 10 A.M., he had gone to the hand-

pump to fetch water where Rajesh, Kamlesh and Mahesh had thrown

his utensils. He was beaten also and as he was uncomfortable,

therefore, he was lying under the Neem Tree. At about 1-1:30 P.M.,

Ballu, Kallu (Appellant), Kamlesh, Rajesh etc about 10-12 persons

came there with guns. He was awaken by the boys and therefore, he

requested the accused persons not to fight. But the accused persons

started firing. Kallu shot Rai Singh, whereas Rajesh shot Ravindra.

Dilip had sustained gun shot injury on his hand. Shyamveer had also

sustained injury. The witness was cross-examined.

In cross-examination, he stated that after his utensils were

thrown, he came back to the house along with utensils. He narrated

the incident of hand-pump after the incident of firing took place. The

police outpost is about 2 Km. Kallu had purchased the land in village

Gorum from his Baba. He denied that in fact this witness was

interested to purchase the said land. He admitted that he had no

enmity with the accused persons. Ravindra was shot by Rajesh from

a distance of 25-30 ft. The police had reached after 2 hours of the

incident. He denied for want of knowledge that there was a marriage
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

in the family of Kallu. After firing, Kaptan Singh, Prem Singh and

Dilip had also come out of their house. He neither went to the police,

nor lodged any FIR. Cartridges were recovered from the spot. He

admitted that the incidents of abduction do take place in his village.

He denied that because of election rivalry, they are in habit of falsely

implicating the others.

25. Shrikrishna (P.W.5) is the father of the deceased persons. He

has admitted that he was not present at the time of incident.

26. Prem Singh (P.W.6) has also supported the prosecution story.

He specifically alleged that the Appellant Kallu shot Rai Singh,

whereas Rajesh shot Ravindra Singh. Safina form, Ex. P.4 and

Naksha Panchanama, Ex. P.6 contains his signatures. This witness

was cross-examined.

In cross-examination, he stated that they are seven brothers

namely Dilip, Ravindra, Rai Singh, Pushpendra, Prem Singh, Pratap

and Kaptan. Ravindra and Rai Singh were killed. All his family

members are witnesses. Darru had informed him about the incident,

but he advised him to tolerate the incident. The accused persons had

fired from a distance of 5 fts. The appellant Kallu is the resident of

Bilav. He denied that he had gone to attend the marriage of sister-in-

law of his sister. After the incident, they had discussed that who

should be named in the FIR.

27. Shambhu Singh (P.W.8) is the witness of seizure but he did not

support the prosecution case.
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

28. Shyamveer (P.W.9) has also narrated the entire incident and

claimed that the co-accused Rajesh shot Ravindra, whereas the

Appellant Kallu shot Rai Singh. This witness was cross-examined.

In cross-examination he stated that Darru Singh (P.W.4) is his

father. The accused persons came on the spot about 1-1:30 P.M. All

the accused persons had fired. The accused persons were at a

distance of 3 ft.s. He denied for want of knowledge that there was a

marriage in the family of relatives of Kallu. He denied that Kallu had

gone to attend the marriage. Kallu had purchased land of his uncle

but denied that they were interested in purchasing the said land. He

denied that he was having grudge against Kallu on this issue. He

denied that he was not present on the spot. He denied that the

Appellant Kallu was implicated at the instance of police.

29. Pooran (P.W. 10) has turned hostile and did not support the

prosecution case.

30. Gajendra (P.W.11) was the witness of seizure and he has also

turned hostile and did not support the prosecution case.

31. Hargovind Singh (P.W. 12) had recorded the FIR, Ex. P. 15 on

the basis of Dehati Nalishi, Ex. P.1. He had also registered Merg No.

23/08 under Section 174 of Cr.P.C. On 27-4-2008, Constable

Jaiprakash had brought packets containing cloths of Ravindra and Rai

Singh along with specimen seal which were seized vide seizure memo

Ex. P.17. This witness was cross-examined.

In cross-examination, he stated that on the same day, the copy
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

of the FIR was sent to the concerning Magistrate.

32. Sanjeev Kumar Tiwari (P.W.13) is the investigating officer. He

has stated that spot map, Ex. P.2 was prepared on the instructions

given by complainant Kaptan Singh. He had also recorded the Dehati

Nalishi, Ex. P.1 on the report made by the complainant Kaptan Singh.

Safina form Ex. P.4 and 5 were issued and Lash Panchanama of

Ravindra and Rai Singh, Ex. P.6 and P.7 were prepared separately. 3

fired cartridges of .315 bore and 3 fired cartridges of .12 bore were

seized from the spot, vide seizure memo Ex. P.3. Blood stained earth

and plain earth near the dead bodies of Ravindra and Rai Singh were

seized vide seizure memo Ex. P. 8 and P.9. The requisition for post-

mortem of Ravindra and Rai Singh, Ex. P. 10A and P.11A were

prepared. The statements of Kaptan Singh, Dilip Singh, Prem Singh,

Shyamveer and Charan Singh were recorded on 27-4-2008 and

statements of Binda, Shanti, Shrikrishna, Darru Singh were recorded

on 29-4-2008. The spot map, Ex. P.2 was prepared on the instructions

of Kaptan Singh and during investigation, this fact had come to his

notice that gun shots were fired from a distance of 65 ft.s. He did not

seize the cloths of the witnesses. When he went to the spot, only the

family members were there. Darru was also present on the spot. Lot

of proceedings were done on day one, therefore, the statement of

Darru was not recorded on the same day. He did not record the

statement of any witness residing near the hand-pump. The incident

at hand-pump had taken at about 10 A.M., whereas the firing took
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

place at 1:30 P.M. He did not verify from the village of Kallu as to

whether he was in his village or not? The fields of the complainant

are behind the place of incident. No bullet was recovered from the

spot. He also admitted that except Ravindra and Rai Singh, no body

else had suffered gun shot injury.

Whether Kaptan (P.W.1), Binda (P.W.2), Dilip (P.W.3),

Darru(P.W.4), Prem Singh (P.W.6) and Shyamveer (P.W.10) are

reliable witnesses or not?

33. It is submitted that these witnesses did not support the

prosecution case in the Trial of co-accused Ramautar, Neeraj, Santosh

and Guttu, therefore, these witnesses have adopted the policy of pick

and choose and thus, they are not reliable.

34. Before considering the submissions made by the Counsel for

the Appellant Kallu, this Court would like to consider the law

governing the field.

35. It is well established principle of Law that the maxim Falsus in

uno Falsus in Omnibus has no application in India. The Supreme

Court in the case of Shakila Abdul Gafar Khan v. Vasant

Raghunath Dhoble, reported in (2003) 7 SCC 749 has held as

under :

25. It is the duty of the court to separate the grain from the
chaff. Falsity of a particular material witness or a material
particular would not ruin it from the beginning to end. The
maxim "falsus in uno falsus in omnibus" has no application
in India and the witnesses cannot be branded as liars. The
maxim "falsus in uno falsus in omnibus" has not received
general acceptance nor has this maxim come to occupy the
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Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

status of rule of law. It is merely a rule of caution. All that it
amounts to is that in such cases testimony may be
disregarded, and not that it must be disregarded. The
doctrine merely involves the question of weight of evidence
which a court may apply in a given set of circumstances, but
it is not what may be called "a mandatory rule of evidence".
(See Nisar Ali v. State of U.P.)
26. The doctrine is a dangerous one especially in India for if
a whole body of the testimony were to be rejected, because
the witness was evidently speaking an untruth in some
aspect, it is to be feared that administration of criminal
justice would come to a dead stop. Witnesses just cannot
help in giving embroidery to a story, however true in the
main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance, and
merely because in some respects the court considers the
same to be insufficient for placing reliance on the testimony
of a witness, it does not necessarily follow as a matter of
law that it must be disregarded in all respects as well. The
evidence has to be sifted with care. The aforesaid dictum is
not a sound rule for the reason that one hardly comes across
a witness whose evidence does not contain a grain of
untruth or at any rate an exaggeration, embroideries or
embellishment. (See Sohrab v. State of M.P. and Ugar Ahir
v. State of Bihar.) An attempt has to be made to, as noted
above, in terms of felicitous metaphor, separate the grain
from the chaff, truth from falsehood. Where it is not feasible
to separate the truth from falsehood, because grain and chaff
are inextricably mixed up, and in the process of separation
an absolutely new case has to be reconstructed by divorcing
essential details presented by the prosecution completely
from the context and the background against which they are
made, the only available course to be made is to discard the
evidence in toto. (See Zwinglee Ariel v. State of M.P. and
Balaka Singh v. State of Punjab.) As observed by this Court
in State of Rajasthan v. Kalki normal discrepancies in the
evidence are those which are due to normal errors of
observation, normal errors of memory due to lapse of time,
due to mental disposition such as shock and horror at the
time of occurrence and those are always there, however
honest and truthful a witness may be. Material discrepancies
are those which are not normal, and not expected of a
normal person. Courts have to label the category to which a
discrepancy may be categorized. While normal
discrepancies do not corrode the credibility of a party's
case, material discrepancies do so. These aspects were
highlighted recently in Krishna Mochi v. State of Bihar,
18
Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

Gangadhar Behera v. State of Orissa and Rizan v. State of
Chhattisgarh.

36. The Supreme Court in the case of State of A.P. Vs.

Pullagummi Kasi Reddy Krishna Reddy, reported in (2018) 7 SCC

623 has held as under :

11. The principle of "falsus in uno falsus in omnibus" has
not been accepted in our country. Even if some accused are
acquitted on the ground that the evidence of a witness is
unreliable, the other accused can still be convicted by
relying on the evidence of the same witness. Minor
contradictions and omissions in the evidence of a witness
are to be ignored if there is a ring of truth in the testimony
of a witness. The High Court was oblivious to this settled
position of law.

37. The Supreme Court in the case of Bhagwan Jagannath

Markad v. 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
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
19
Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

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.

38. The Supreme Court in the case of Yogendra Vs. State of

Rajasthan reported in (2013) 12 SCC 399 has held as under :

13. The argument advanced by Shri Altaf Hussain, learned
counsel for the appellants, stating that the evidence which
has been disbelieved in respect of certain accused, cannot
be enough to convict the present appellants, has no force.
This Court, in Ranjit Singh v. State of M.P. has dealt with a
similar issue. The Court herein, considered its earlier
judgments in Balaka Singh v. State of Punjab, Ugar Ahir v.
State of Bihar and Nathu Singh Yadav v. State of M.P. and
has referred to the doctrine falsus in uno, falsus in omnibus
and held, that the same has no application in India. The
court must assess the extent to which the deposition of a
witness can be relied upon. The court must make every
attempt to separate falsehoods from the truth, and it must
only be in exceptional circumstances, when it is entirely
impossible to separate the grain from the chaff, for the same
are so inextricably intertwined, that the entire evidence of
such a witness must be discarded.

39. Not only the above mentioned witnesses did not support the

prosecution of Ramautar, Neeraj, Santosh and Guttu, but this Court in

Cr.A. No. 938/2010 and 940/2010 has disbelieved these witnesses in

relation to co-accused Monu Sharma, Sonu Sharma, Kamlesh, Pejram
20
Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

and Mahesh @ Pappu. However, even if a witness is not found

reliable in respect of some of accused persons, but still after

removing grain from chaff, another accused can be convicted on the

basis of evidence of said witness.

Whether Ocular Evidence is contrary to Medical Evidence

40. It is next contended by the Counsel for the Appellant Kallu that

some of the witnesses have stated that two gun shot injuries each

were caused to deceased Ravindra and Rai Singh, whereas in the

post-mortem reports, Ex. P. 10 and P.11, only one entry wound was

found, thus, the ocular evidence is contrary to medical evidence.

41. Considered the submissions made by the Counsel for the

Appellant Kallu.

42. In case if there is a variance in ocular evidence and medical

evidence, then ocular evidence has to be given preference over

medical evidence, unless and until, the medical evidence completely

rules out the ocular evidence.

43. The Supreme Court in the case of Bhajan Singh v. State of

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

38. Thus, the position of law in such a case of contradiction
between medical and ocular evidence can be crystallised to
the effect that though the ocular testimony of a witness has
greater evidentiary value vis-à-vis medical evidence, when
medical evidence makes the ocular testimony improbable,
that becomes a relevant factor in the process of the
evaluation of evidence. However, where the medical
evidence goes so far that it completely rules out all
possibility of the ocular evidence being true, the ocular
evidence may be disbelieved. (Vide Abdul Sayeed.)
21
Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

44. The Supreme Court in the case of CBI v. Mohd. Parvez

Abdul Kayuum, reported in (2019) 12 SCC 1 has held as under :

65. Even otherwise as submitted on behalf of the
prosecution that in case of any discrepancy between the
ocular or medical evidence, the ocular evidence shall
prevail, as observed in Yogesh Singh v. Mahabeer Singh:
(SCC pp. 217-18, para 43)
"43. The learned counsel appearing for the respondents

has then tried to create a dent in the prosecution story by pointing out inconsistencies between the ocular evidence and the medical evidence. However, we are not persuaded with this submission since both the courts below have categorically ruled that the medical evidence was consistent with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence proffered by the eyewitnesses. We hold that there is no material discrepancy in the medical and ocular evidence and there is no reason to interfere with the judgments of the courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai v. State of Gujarat, Mani Ram v. State of Rajasthan, State of U.P. v. Krishna Gopal, State of Haryana v. Bhagirath, Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, Thaman Kumar v. State (UT of Chandigarh), Krishnan v. State, Khambam Raja Reddy v. Public Prosecutor, State of U.P. v. Dinesh, State of U.P. v. Hari Chand, Abdul Sayeed v. State of M.P. and Bhajan Singh v. State of Haryana.]"

66. The ocular evidence to prevail has also been observed in Sunil Kundu v. State of Jharkhand thus: (SCC p. 432, para

24) "24. In Kapildeo Mandal v. State of Bihar, all the eyewitnesses had categorically stated that the deceased was injured by the use of firearm, whereas the medical evidence specifically indicated that no firearm injury was found on the deceased. This Court held that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get priority as medical evidence is basically

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

opinionative. But, when the evidence of the eyewitnesses is totally inconsistent with the evidence given by the medical experts then evidence is appreciated in a different perspective by the courts. It was observed that when medical evidence specifically rules out the injury claimed to have been inflicted as per the eyewitnesses' version, then the court can draw adverse inference that the prosecution version is not trustworthy. This judgment is clearly attracted to the present case."

(emphasis supplied)

67. Similarly, in Bastiram v. State of Rajasthan, it was observed: (SCC pp. 407 & 408, paras 33 & 36) "33. The question before us, therefore, is whether the "medical evidence" should be believed or whether the testimony of the eyewitnesses should be preferred? There is no doubt that ocular evidence should be accepted unless it is completely negated by the medical evidence. This principle has more recently been accepted in Gangabhavani v. Rayapati Venkat Reddy.

* * *

36. Similarly, a fact stated by a doctor in a post- mortem report could be rejected by a court relying on eyewitness testimony, though this would be quite infrequent. In Dayal Singh v. State of Uttaranchal, the post-mortem report and the oral testimony of the doctor who conducted that examination was that no internal or external injuries were found on the body of the deceased. This Court rejected the "medical evidence" and upheld the view of the trial court (and the High Court) that the testimony of the eyewitnesses supported by other evidence would prevail over the post-mortem report and testimony of the doctor. It was held: (SCC p. 286, para 41) '41. ... [T]he trial court has rightly ignored the deliberate lapses of the investigating officer as well as the post-mortem report prepared by Dr C.N. Tewari. The consistent statement of the eyewitnesses which were fully supported and corroborated by other witnesses, and the investigation of the crime, including recovery of lathis, inquest report, recovery of the pagri of one of the accused from the place of occurrence, immediate lodging of FIR and the deceased succumbing to his injuries within a very short time, establish the case of the prosecution beyond

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

reasonable doubt. These lapses on the part of PW 3 [doctor] and PW 6 [investigating officer] are a deliberate attempt on their part to prepare reports and documents in a designedly defective manner which would have prejudiced the case of the prosecution and resulted in the acquittal of the accused, but for the correct approach of the trial court to do justice and ensure that the guilty did not go scot-free. The evidence of the eyewitness which was reliable and worthy of credence has justifiably been relied upon by the court.'"

(emphasis supplied)

45. It is submitted that since, some of the prosecution witnesses

have stated that two gun shot injuries were caused to each of the

deceased, whereas only one entry wound was found therefore, the

entire evidence has to be discarded. This submission made by the

Counsel for the Appellant Kallu is liable to be rejected.

46. The prosecution story in short is that in the earlier part of the

day of incident, some dispute took place at the hand-pump with

Darru (P.W.4) and it was alleged that co-accused Rajesh and other

accused persons had not only abused Darru (P.W.4) but had also

thrown his utensils. Thereafter, Darru came to the house of the

complainant and informed the incident. He was taking rest under a

Neem Tree, when all the accused persons came there and the

complainant party pleaded for mercy but co-accused Rajesh fired gun

shot causing injury to Ravindra and Appellant Kallu fired gun shot

causing injury to Rai Singh. The same story has been narrated by

Kaptan Singh (P.W.1), Binda (P.W.2), Dilip (P.W.3), Darru (P.W.4),

Prem Singh (P.W.6), Shyamveer (P.W.9) in their Examination-in-

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

chief.

47. In Dehati Nalishi, Ex. P.1, it was mentioned that the co-

accused Rajesh shot Ravindra whereas Appellant Kallu shot Rai

Singh. Dilip (P.W.3), Darru (P.W.4), Prem Singh (P.W.6) and

Shyamveer (P.W.9) stated in their examination-in-chief that the co-

accused Rajesh shot Ravindra, whereas Appellant Kallu shot Rai

Singh. However, Kaptan (P.W.1) has stated that the Appellant Kallu

Shot Rai Singh causing injuries on Ribs and Abdomen. Binda

(P.W.2) in her examination-in-chief stated that the Appellant Kallu

caused gun shot injury to Rai Singh, whereas co-accused Rajesh

caused two gun shots injuries to Ravindra. However, in cross-

examination, Binda (P.W. 2) and Dilip (P.W.3) stated that two gun

shot injuries each were caused to Ravindra and Rai Singh.

48. Thus, it is clear that so far as the Appellant Kallu is concerned,

all the witnesses except Kaptan (P.W.1) and Binda (P.W.2) had stated

in their examination-in-chief that one gun shot was fired by Kallu

causing injury to Rai Singh and Binda (P.W. 2) has stated that one

gun shot was fired by Kallu causing injury to Rai Singh and two gun

shots were fired by Rajesh causing injury to Ravindra. It appears that

only during cross-examination, Binda (P.W.2), and Dilip (P.W.3)

claimed that two gun shots were fired at Ravindra as well as Rai

Singh.

49. In the post-mortem reports of Ravindra and Rai Singh, Ex. P.

10 and P.11, only one gun shot entry wound was found on their

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

bodies and the another injury was Exit wound. In view of the fact

that some of the witnesses tried to improve their version in their

cross-examination by claiming that two gun shots were fired at

Ravindra and Rai Singh by the co-accused Rajesh and Appellant

Kallu, this Court is of the considered opinion, that it cannot be held

that the Medical Evidence completely rules out the possibility of

Ocular Evidence, specifically when other witnesses except Kaptan

(P.W.1), Binda (P.W.2) and Dilip (P.W.3) have not stated that two gun

shots were fired at Ravindra and Rai Singh.

Whether evidence of Kaptan (P.W.1), Binda (P.W.2), Dilip (P.W.3),

Darru (P.W.4), Prem Singh (P.W.6) and Shyamveer (P.W.10) is liable

to be disbelieved only on the ground that they are "related

witnesses"?

50. It is well established principle of law that a witness cannot be

disbelieved merely on the ground that he is related witness. There is

a difference between "Related witness" and "Interested witness".

51. The Supreme Court in the case of Rupinder Singh Sandhu v.

State of Punjab, reported in (2018) 16 SCC 475 has held as under :

50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits.

52. The Supreme Court in the case of Shamim Vs. State (NCT of

Delhi) reported in (2018) 10 SCC 509 has held as under :

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.............

53. The Supreme Court in the case of Rizan v. State of

Chhattisgarh, reported in (2003) 2 SCC 661 has held as under :

6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

7. In Dalip Singh v. State of Punjab it has been laid down as under: (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 generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.

9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para

25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."

10. Again in Masalti v. State of U.P. this Court observed: (AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

11. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana.

54. Why a "related witness" would spare the real culprit in order to

falsely implicate some innocent person? There is a difference

between "related witness" and "interested witness". "Interested

witness" is a witness who is vitally interested in conviction of a

person due to previous enmity. The "Interested witness" has been

defined by the Supreme Court in the case of Mohd. Rojali Ali v.

State of Assam, reported in (2019) 19 SCC 567 as under :

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki; Amit v. State of U.P.; and Gangabhavani v. Rayapati Venkat Reddy). Recently, this difference was reiterated in Ganapathi v. State of T.N., in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki: (Ganapathi case, SCC p. 555, para 14) "14. "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"."

14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, wherein this Court 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."

15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry): (SCC

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

55. As already pointed out, Kaptan (P.W.1), Prem Singh (P.W.6)

and Dilip (P.W.3) are sons of Binda (P.W.2), whereas Darru (P.W.4) is

the younger-brother-in-law (Devar) of Binda (P.W.2) and Shyamveer

(P.W.9) is son of Darru (P.W.4). The deceased Ravindra and Rai

Singh are also the sons of Binda (P.W.2). The evidence of a witness

cannot be rejected merely on the ground that he is "Related witness",

unless and until it is proved that he is "Interested witness". However,

the evidence of such a witness is liable to be scrutinized minutely.

This Court after considering the various aspect of the matter has

already held in the connected appeals that the prosecution evidence

against Monu, Sonu, Kamlesh, Pejram and Mahesh @ Pappu is not

reliable, but the evidence of these witnesses against the co-accused

Rajesh is corroborated by ocular and medical evidence. Merely

because there is discrepancy as to whether one gun shot was fired by

co-accused Rajesh and Appellant Kallu or two gun shots were fired

as suggested by defence in their cross-examination. this Court is of

the considered opinion, that under the facts and circumstances of the

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

case, the evidence of Kaptan (P.W.1), Binda (P.W.2), Dilip (P.W.3),

Darru (P.W.4), Prem Singh (P.W.6), Shyamveer (P.W.9) cannot be

rejected merely on the ground that they are "Related witnesses" and

there is some embellishment in their evidence.

56. The Supreme Court in the case of Leela Ram v. State of

Haryana, reported in (1999) 9 SCC 525 has held as under :

12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment -- sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.

57. The Supreme Court in the case of State of M.P. v. Dal Singh,

reported in (2013) 14 SCC 159 has held as under :

Discrepancies

13. So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation i.e. errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings of shock or horror that existed at the time of occurrence. The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements, as the same may be elaborations of a

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars i.e. which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited. Where such omission(s) amount to contradiction(s), raising serious doubts about the truthfulness of a witness, and other witnesses also make material improvements before the court in order to make their evidence acceptable, it cannot be said that it is safe to rely upon such evidence. (Vide A. Shankar v. State of Karnataka.)

58. The Supreme Court in the case of Babulal v. State of M.P.,

reported in (2003) 12 SCC 490 has held as under :

8......The Court in a case where relatives are witnesses has to test their version on the touchstone of acceptability and credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. (See: Munshi Prasad v. State of Bihar, Hukam Singh v. State of Rajasthan and Bhagwan Singh v. State of M.P.) The High Court has precisely done that. The trial court had entertained a shadow of doubt merely on account of their relationship. As rightly observed by the High Court, the approach is indefensible. That being the position, the evidence of eyewitnesses which has a ring of truth deserves acceptance, which the High Court has done. Though the evidence of PW 11 was attacked on the ground of having traces of tutoring, yet his whole evidence does not get wiped out even if it is assumed, as urged, that it contains exaggerations and embellishment.

59. The Supreme Court in the case of Dinesh Kumar Vs. State of

Rajasthan reported in (2008) 8 SCC 270 has held as under :

11.....Law is fairly well settled that even if acquittal is recorded in respect of the co-accused on the ground that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is found cogent, credible and truthful in respect of another accused. The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence.

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

60. The Supreme Court in the case of Jeevan Vs. State of

Uttarakhand reported in (2012) 13 SCC 598 has held as under :

26. This Court has also expressed the view that it is a fair and settled position of law that even if there are some omissions, contradictions or discrepancies, the entire evidence cannot be discarded. After exercising care and caution and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvements, the Court can come to the conclusion as to whether the residual evidence is sufficient to convict the accused.

Whether gun shots were fired from a distance of 64 ft.s or less

61. It is submitted that according to the witnesses, the gun shots

were fired from a close range of upto 10 ft.s but in the spot map, Ex.

P.2, the distance has been shown to be 65 ft.s. Sanjeev Kumar (P.W.

13) has also stated that during preparation of spot map, it had come to

his notice that gun shots were fired from a distance of 65 ft.s.

62. Thus, the Counsel for the Appellant Kallu tried to dislodge the

evidence of prosecution witnesses on the basis of distance disclosed

by Sanjeev Kumar Tiwari (P.W.13) in his evidence.

63. The pivotal question for consideration is that whether the

evidence of Sanjeev Kumar Tiwari (P.W. 13) to the effect that at the

time of preparation of spot map, he was told that the gun shots were

fired from a distance of 65 ft.s is admissible in law or not?

64. The Supreme Court in the case of Tori Singh Vs. State of U.P.

reported in (1962) 3 SCR 580 has held as under :

8. This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

offence, the draftsman put down the places in the map, in Santa Singh v. State of Punjab. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure. In that case there was another sketch prepared by the Sub-Inspector which was ruled out as inadmissible under Section 162. 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 Section 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.

65. The Supreme Court in the case of Sant Kumar Vs. State of

Haryana reported in (1974) 3 SCC 643 has held as under :

11.....It is clear that this site plan, which shows Mark No. 1 as the place of occurrence, is in consequence of a statement made during investigation to the ASI by some witness whose name even has not been disclosed. Since the ASI had already registered the case under Section 154 of the Criminal Procedure Code, after obtaining the first information report from Suraj Bhan and proceeded to the spot in the course of investigation, any statement made by witnesses during the course of investigation would be hit by Section 162(1) of the Criminal Procedure Code, and inadmissible in evidence except for the purpose of contradiction of the witness when examined in Court either by the accused or by prosecution with the leave of Court. A plan prepared in the way done showing the place of occurrence cannot be admissible in law and no reliance can be placed on the place of occurrence as indicated therein....

66. The Supreme Court in the case of State of Rajasthan Vs.

Bhawani reported in (2003) 7 SCC 291 has held as under :

11...Many things mentioned in the site plan have been noted

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by the investigating officer on the basis of the statements given by the witnesses. Obviously, the place from where the accused entered the nohara and the place from where they resorted to firing is based upon the statement of the witnesses. These are clearly hit by Section 162 CrPC. What the investigating officer personally saw and noted alone would be admissible......

67. The Supreme Court in the case of Rameshwar Dayal Vs.

State of U.P. Reported in (1978) 2 SCC 518 has held as under :

36......In our opinion, the argument of the learned counsel is based on misconception of law laid down by this Court. What this Court has said is that the notes in question which are in the nature of a statement recorded by the Police Officer in the course of investigation would not be admissible. There can be no quarrel with this proposition. Note No. 4 in Ex. Ka-18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself found and observed at the spot. Such a statement does not fall within the four corners of Section 162 CrPC. In fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section. For these reasons, therefore, we are of the opinion that the decision cited by the counsel for the appellants has no application to this case.

68. Thus, any marking in the spot map made by I.O., on the

instructions of a witness would be hit by Section 162 of Cr.P.C. and

would not be admissible and can be used only for the purposes of

contradicting the witness, but any thing which was marked/noticed by

the Investigating Officer, on his own would be admissible.

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

69. In the present case, Sanjeev Kumar Tiwari (P.W.13) has

specifically stated that during preparation of map, it had come to his

notice that gun shots were fired from a distance of 65 ft.s. Thus, the

distance of 65 ft. shown by Sanjeev Kumar Tiwari (P.W. 13) in his

spot map, Ex. P.2 is not admissible. Further, no witness was

confronted with this information which was given to Sanjeev Kumar

Tiwari (P.W.13). Thus, by considering the evidence of Sanjeev

Kumar Tiwari (P.W.13), this Court cannot hold that the gun shots

were actually fired from a distance of 65 ft.s.

Non Examination of Independent witnesses

70. It is submitted by the Counsel for the appellant that Kaptan

(P.W.1), Binda (P.W.2), Dilip (P.W.3), Darru (P.W.4), Shrikrishna

(P.W.5), Prem Singh (P.W.6), and Shyamveer (P.W.9) are closely

related witnesses and no independent witness was examined by the

prosecution, thus, it is clear that concocted story has been developed

by the prosecution.

71. Considered the submissions made by the Counsel for the

appellant.

72. From the spot map, Ex. P.2, it is clear that the house of the

complainant is situated at an isolated place and the houses of Pappu

Yadav, Bacchu Musalman, Ajab Singh and Shishupal are situated far

away from the house of the complainant. Thus, the chances of

presence of independent witnesses was also remote. Further, now a

days, the independent witnesses are afraid of coming forward to

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depose in a criminal case.

73. The Supreme Court in the case of Mahesh Vs. State of

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

54. This Court in Salim Sahab v. State of M.P. held that: (SCC pp. 701 & 703, paras 11 & 14-15) "11. ... [mere relationship] is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

* * *

14. ... in Masalti v. State of U.P. this Court observed: (AIR pp. 209-10, para 14) 'But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard- and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.'

15. To the same effect are the decisions in State of Punjab v. Jagir Singh, Lehna v. State of Haryana and Gangadhar Behera v. State of Orissa."

55. As regards non-examination of the independent witnesses who probably witnessed the occurrence on the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses. The High Court has held in its judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse. The occurrence of the incident, as noticed earlier, is not in serious dispute. PW Prakash Deshkar has also admitted that he had lodged complaint to the police about the incident on

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

the basis of which FIR came to be registered and this witness has supported in his deposition the contents of the complaint to some extent. 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. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.

74. The Supreme Court in the case of Sarwan Singh v. State of

Punjab, reported in (2003) 1 SCC 240 has held as under :

13. As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad v. State (Delhi Admn.) wherein this Court in para 12 observed: (SCC pp. 653-54) "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

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

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 out is otherwise true and acceptable.' "

14. The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available -- if they are so, the prosecution should be able to prove the case with their assistance.

15. Coming to the contextual facts once again, while it is true that there is no independent witness, but the evidence available on record does inspire confidence and the appellant has not been able to shake the credibility of the eyewitnesses: there is not even any material contradiction in the case of the prosecution.

75. The Supreme Court in the case of Sadhu Suran 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.

76. The Court while appreciating the evidence, has to consider the

quality of evidence and not quantity of witnesses. The evidence is to

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be appreciated and not counted. Further, in the present case, even

the spot map, Ex. P.2, clearly indicates that the house of the

complainant was situated at an isolated place, much away from the

village and is not closely surrounded by any other house. Thus, the

non-examination of independent witness would not give any dent to

the prosecution case.

Whether recovery of .315 bore gun was proved?

77. It is submitted by the Counsel for the appellant, that although a

.315 bore gun was allegedly recovered from the possession of the

appellant, but the cartridges which were seized from the spot, were

not sent for comparison, therefore, it cannot be said that the gun

seized from the appellant was used in commission of offence.

78. Considered the submissions made by the Counsel for the

appellant.

79. A .315 bore gun was seized from the possession of the

appellant. The said gun was sent to F.S.L. Sagar. As per the F.S.L.

report,Ex. P.15, Nitrate was found in the barrel of the gun. The gun

was allegedly seized in the presence of Gajendra (P.W.11) and

Shambhu (P.W.8). Both the witnesses have not supported the

prosecution case. The gun was seized by Jaj Singh Yadav, but he has

not been examined by the prosecution. Thus, it is clear that the

prosecution has failed to prove the seizure of gun from the possession

of the Appellant Kallu. Therefore, the F.S.L. report also looses its

importance. However, at the most, it can be said that the prosecution

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

has failed to prove the recovery of weapon of offence.

80. The Supreme Court in the case of Gulab Vs. State of U.P. by

judgment dated 09-12-2021 passed in Cr.A. No. 81 of 2021 has held

as under :

17. The deceased had sustained a gun-shot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution which has relied on the eyewitness accounts of PWs 1, 2 and 3....

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

reported in (2021) 7 SCC 188 has held as under :

12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non.....

82. The Supreme Court in the case of Nankaunoo v. State of U.P.,

reported in (2016) 3 SCC 317 has held as under :

9. The learned counsel for the appellant contended that the courts below failed to take note of the fact that the alleged weapon "country-made pistol" was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non-recovery of "country-made pistol" does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice......

83. The Supreme Court in the case of Yogesh Singh Vs.

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

47. The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel no need to address this issue since it had already been validly discarded by the trial court while convicting the respondents. In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. (See Lakhan Sao v. State of Bihar, State of Rajasthan v. Arjun Singh and Manjit Singh v. State of Punjab.)

84. Therefore, merely because the prosecution could not prove the

recovery of weapon of offence, it would not be fatal to the

prosecution case, and the reliable direct evidence cannot be discarded

only on this ground.

Nature of offence committed by Appellant Kallu

85. It is submitted by the Counsel for the Appellant Kallu, that

according to the prosecution story itself, some hot talk took place

between the co-accused Rajesh and Darru (P.W.4) at the hand-pump

on the question of fetching water, and it is alleged that the co-accused

Rajesh not only abused Darru (P.W.4) but also threw his Utensils. It

is submitted that the witnesses have admitted that the incident took

place on the issue of quarrel at the hand-pump otherwise, there was

no enmity between the parties. Therefore, it is submitted that since,

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

the incident took place all of a sudden without any pre-meditation,

therefore, the act of the Appellant Kallu would not be murder but at

the most his act shall be punishable under Section 304 Part I of IPC.

86. Considered the submissions made by the Counsel for the

Appellant Rajesh.

87. According to the prosecution case, in the early hours of the day

of incident, Darru (P.W.4) had gone to fetch water from the hand-

pump installed in front of the house of Rajesh. His utensils were

thrown by Rajesh and also pressed his neck and threatened him to

kill. Thereafter, Darru (P.W.4) came back to the house of Kaptan

(P.W.1) and narrated the incident to them. At the time of incident,

Darru (P.W.4) was resting under a Neem Tree and at that time, the

Appellant came there along with gun and fired gun shot resulting in

death of Rai Singh whereas it is alleged that the gun shot fired by

Rajesh resulted in death of Ravindra Singh. There was no

provocation by the complainant party. In fact the incident took place

in front of the house of complainant party. Thus, it is clear that the

incident did not take place all of a sudden. In fact it was the

Appellant Kallu and others who came on the spot with pre-

meditation. Co-accused Rajesh was armed with firearm and shot

Ravindra, whereas it is alleged that Appellant Kallu shot Rai Singh.

Thus, it is clear that the incident was committed in a pre-planned

manner. The Supreme Court in the case of Lavghanbhai Devjibhai

Vasava v. State of Gujarat, reported in (2018) 4 SCC 329 has held

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as under :

7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.

88. If the facts of the case are considered, then it is clear that it was

the co-accused Rajesh who picked up quarrel in the earlier hours of

day by throwing the utensils of Darru (P.W. 4) and pressed his neck

on the question of fetching water from the hand-pump. Thereafter,

there was no retaliation from the side of Darru (P.W.4). The

Appellant Kallu who is related to co-accused Rajesh, armed with gun

came along with other co-accused to the house of Kaptan (P.W.1) and

fired gun shot, resulting in death of Rai Singh and co-accused Rajesh

fired another gun shot resulting in death of Ravindra Singh. Thus, it

is clear that the incident was pre-meditated, otherwise, there was no

reason for the Appellant Kallu to come to the house of deceased

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

Ravindra and Rai Singh and to fire gun shots. There is nothing on

record that there was any provocation on the part of the complainant

party. There is nothing on record to suggest that any fight took place

between the parties. Two guns were used, which is clear from the

post-mortem reports of Ravindra and Rai Singh, Ex. P.10 and P.11, as

entry wound of different diameters were found. There is nothing on

record, that the deceased Ravindra and Rai Singh or the witnesses

had participated in the incident in any manner. The incident cannot

be said to have taken place in a heat of passion. Thus, the act of the

Appellant Kallu would not fall within the ambit of Section 304 of

IPC and would be an act punishable under Section 302 of IPC.

Plea of alibi

89. The Appellant Kallu has taken a defence that on the date of

incident, he had gone to attend the marriage ceremony of niece of

Ramjilal Sharma (D.W.1). The Appellant Kallu has also examined

one Rakesh Singh Rajawat (D.W.2) also.

90. However, the appellant Kallu has neither examined the parents

of the bride nor has filed any document like marriage card etc., to

substantiate this defence. It is well established principle of law that

plea of alibi is required to be proved by cogent and reliable evidence.

The Supreme Court in the case of Shaikh Sattar v. State of

Maharashtra, reported in (2010) 8 SCC 430 has held as under :

35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana as follows: (SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."

91. The Supreme Court in the case of Mukesh Vs. State (NCT of

Delhi) reported in (2017) 6 SCC 1 has held as under :

247. Presently, we shall deal with the plea of alibi as the same has been advanced with immense conviction. It is well settled in law that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. In this context, we may usefully reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar: (SCC p. 293, paras 22-23) "22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

'(a) The question is whether A committed a crime at Calcutta on a certain date. The fact that, on that date, A was at Lahore is relevant.'

23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. ..."

(emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana, Sk. Sattar v. State of Maharashtra, Jitender Kumar v. State of Haryana and Vijay Pal.

92. Thus, it is held that the Appellant Kallu has failed to prove his

plea of alibi.

93. The next question for consideration is that when charge under

Section 149 of IPC was framed, then whether the Appellant Kallu can

be convicted with the aid of Section 34 of IPC. The Supreme Court

in the case of Mala Singh v. State of Haryana, reported in (2019) 5

SCC 127 has held as under :

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

32. Four questions arise for consideration in this appeal: 32.1. First, whether the High Court was justified in convicting the appellants under Section 302 read with Section 34 IPC when, in fact, the initial trial was on the basis of a charge under Section 302 read with Section 149 IPC?

32.2. Second, whether the High Court was justified in altering the charge under Section 149 to one under Section 34 in relation to three accused (the appellants herein) after acquitting eight co-accused from the charges of Sections 302/149 IPC and then convicting the three accused (the appellants herein) on the altered charges under Sections 302/34 IPC?

32.3. Third, whether there is any evidence to sustain the charge under Section 34 IPC against the three accused (the appellants herein) so as to convict them for an offence under Section 302 IPC?

32.4. And fourth, in case the charge under Section 34 IPC is held not made out for want of evidence and further when the charge under Section 149 is already held not made out by the High Court, whether any case against the three accused persons (the appellants herein) is made out for their conviction and, if so, for which offence?

33. Before we examine the facts of the case, it is necessary to take note of the relevant sections, which deal with alter of the charge and powers of the court/appellate court in such cases.

34. Section 216 CrPC deals with powers of the court to alter the charge. Section 386 CrPC deals with powers of the appellate court and Section 464 CrPC deals with the effect of omission to frame, or absence of, or error in framing the charge. These sections are quoted below:

"216. Court may alter charge.--(1) Any court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the accused in his defence or the Prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

* * *

386. Powers of the appellate court.--After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the appellate court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the court passing the order or sentence under appeal.

* * *

464. Effect of omission to frame, or absence of, or error in, charge.--(1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may--

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

35. A combined reading of Sections 216, 386 and 464 CrPC would reveal that an alteration of charge where no prejudice is caused to the accused or the prosecution is well within the powers and the jurisdiction of the court including the appellate court.

36. In other words, it is only when any omission to frame the charge initially or till culmination of the proceedings or at the appellate stage results in failure of justice or causes prejudice, the same may result in vitiating the trial in appropriate case.

37. The Constitution Bench of this Court examined this issue, for the first time, in the context of old Criminal Procedure Code in a case in Willie (William) Slaney v. State of M.P.

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

38. The learned Judge Vivian Bose, J. speaking for the Bench in his inimitable style of writing, held: (Willie Slaney case, AIR p. 124, para 23) "23. ... Therefore, when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact: (1) the accused has "in fact" been misled by it "and" (2) it has occasioned a failure of justice. That, in our opinion, is reasonably plain language."

39. In Kantilal Chandulal Mehta v. State of Maharashtra, this Court again examined this very issue arising under the present Code of Criminal Procedure with which we are concerned in the present case. Justice P. Jaganmohan Reddy, speaking for the Bench after examining the scheme of the Code held inter alia: (SCC p. 171, para 4) "In our view the Criminal Procedure Code gives ample power to the courts to alter or amend a charge whether by the trial court or by the appellate court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him."

40. Now coming to the question regarding altering of the charge from Section 149 to Section 34 IPC read with Section 302 IPC, this question was considered by this Court for the first time in Lachhman Singh v. State where Fazl Ali, J. speaking for the Bench held as under: (AIR p. 170, para

13) "13. It was also contended that there being no charge under Section 302 read with Section 34, Penal Code, the conviction of the appellants under Section 302 read with Section 149 could not have been altered by the High Court to one under Section 302 read with Section 34, upon the acquittal of the remaining accused persons. The facts of the case are however such that the accused could have been charged alternatively, either under Section 302 read with Section 149 or under Section 302 read with Section

34. The point has therefore no force."

41. This question was again examined by this Court in Karnail Singh v. State of Punjab wherein the learned Judge Venkatarama Ayyar, J. elaborating the law on the subject, held as under: (AIR p. 207, para 7) "7. Then the next question is whether the conviction of

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

the appellant under Section 302 read with Section 34, when they had been charged only under Section 302 read with Section 149 was illegal. The contention of the appellants is that the scope of Section 149 is different from that of Section 34, that while what Section 149 requires is proof of a common object, it would be necessary under Section 34 to establish a common intention and that therefore when the charge against the accused is under Section 149, it cannot be converted in appeal into one under Section 34. The following observations of this Court in Dalip Singh v. State of Punjab were relied on in support of this position: (AIR p. 366, para 24) '24. Nor is it possible in this case to have recourse to Section 34 because the appellants have not been charged with that even in the alternative and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing.' It is true that there is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v. King Emperor, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. If the common object which is the subject-matter of the charge under Section 149 does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34, then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to be a formal matter. We do not read the observations in Dalip Singh v. State of Punjab as an authority for the broad proposition that in law there could be no recourse to Section 34 when the charge is only under Section 149. Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken by this Court in Lachhman Singh v. State, where the substitution of Section 34 for Section 149 was upheld on the ground that the facts were such

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

'that the accused could have been charged alternatively either under Section 302 read with Section 149, or under Section 302 read with Section 34' (AIR p. 170, para 13)."

42. The law laid down in Lachhman Singh and Karnail Singh was reiterated in Willie (William) Slaney wherein Vivian Bose, J. speaking for the Bench while referring to these two decisions, held as under: [Willie (William) Slaney case, AIR p. 129, para 49] "49. The following cases afford no difficulty because they directly accord with the view we have set out at length above. In Lachhman Singh v. State, it was held that when there is a charge under Section 302 of the Penal Code read with Section 149 and the charge under Section 149 disappears because of the acquittal of some of the accused, a conviction under Section 302 of the Penal Code read with Section 34 is good even though there is no separate charge under Section 302 read with Section 34, provided the accused could have been so charged on the facts of the case.

The decision in Karnail Singh v. State of Punjab is to the same effect and the question about prejudice was also considered."

43. This principle of law was then reiterated after referring to law laid down in Willie (William) Slaney in Chittarmal v. State of Rajasthan in the following words: (Chittarmal case, SCC p. 273, para 14) "14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar Ghosh v. King Emperor; Mannam Venkatadari v. State of A.P.; Nethala Pothuraju v. State of A.P. and Ram Tahal v. State of U.P.)"

94. Thus, if charge under Section 149 of IPC was framed, and if it

is found that in fact less than 5 persons were involved in the offence,

then still an accused can be punished with the aid of Section 34 of

IPC.

95. Therefore, the Appellant Kallu is acquitted of charge under

Section 302/149 of I.P.C. on two counts, but is held guilty of offence

under Section 302/34 of IPC on two counts for committing

murder of Ravindra and Rai Singh and shall undergo Life

Imprisonment and a fine of Rs. 5000/- in default 6 months R.I. on

both counts. The sentences shall run concurrently.

96. The Appellant Kallu is acquitted of charge under Section 148

of IPC.

97. With aforesaid modifications, the judgment and sentence dated

4-9-2012 passed by First Additional Sessions Judge, Bhind in S.T.

No.181/2009 is hereby affirmed.

Kallu @ Brajesh Sharma Vs. State of M.P. (Cr.A. No. 710 of 2012)

98. The Appellant Kallu is in jail. He shall undergo the remaining

jail sentence.

99. Let a copy of this Judgment be provided immediately to

Appellant Kallu, free of cost.

100. The record of the Trial Court be sent back along with copy of

this judgment for necessary information and compliance.

101. The Appeal fails and is hereby Dismissed.

(G.S. Ahluwalia)                                    (Deepak Kumar Agarwal)
          Judge                                                     Judge


       ABHISHEK
       CHATURVEDI
       2022.01.31
       18:32:26 +05'30'