Madhya Pradesh High Court
Sunil Kahar vs The State Of Madhya Pradesh on 15 May, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:23502
1 CRA-807-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 15th OF MAY, 2025
CRIMINAL APPEAL No. 807 of 2011
SUNIL KAHAR AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Khalid Noor Fakhruddin - Advocate for the appellants.
Shri B .K. Upadhyay - Government Advocate for State.
WITH
CRIMINAL APPEAL No. 996 of 2011
RAMESH RAIKWAR @ THAKUR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Siddharth Datt - Advocate for appellant.
Shri B.K. Upadhyay - Government Advocate for State.
ORDER
Per: Justice Atul Sreedharan
The present appeal has been filed by the appellants who are aggrieved
by the judgment of conviction and sentence dated 24.03.2011 passed by the
Court of the learned 3rd Additional Sessions Judge, Satna, in S.T.
No.244/2007 by which the appellants in both the appeals have been
convicted for the murder of Lalu Yadav and sentenced to suffer life
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imprisonment.
2. The appellants in Criminal Appeal No. 807/2011 are Sunil Kahar,
Bhaiya Kahar and Lallu Raikwar.
3. The appellant in Criminal Appeal No.996/2011 is Ramesh Raikwar.
One co-accused Moti Singhraha has been an absconder from the trial Court
itself.
4. Appellants Sunil Kahar, Bhaiya Kahar and Lallu Raikwar all the
three have completed a little over 8 years of the sentence and they are on
bail. Appellant Ramesh Raikwar was initially granted bail after having
completed 7 years and thereafter on account of non-appearance before the
Registry he was again taken into custody and sent to jail where he still
remains and has completed a little over 13 years of the sentence.
5. The brief case of the prosecution is as follows: on 13.03.2007, in an
incident of assault on the deceased, at about 12:00 pm, an FIR was registered
against Sunil, Bhaiya, Moti Singhraha and Ramesh Raikwar. It is necessary
to mention here that appellant Lallu Raikwar was never named in the FIR.
Bhola Yadav (PW-8) is the informant in the FIR and is also the father of the
deceased. The motive for the assault is being shown as dispute over fishing
rights in the pond.
6. Learned counsel for the appellants have submitted that the
appellants have wrongly been convicted by the learned trial Court which has
not examined and appreciated the evidence of the prosecution witnesses in
the right perspective and has glossed over the various contradictions and
improbabilities in their statements and has not taken into account the case of
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the defence and, therefore, the appellants are aggrieved by their conviction.
7. (PW-8) Bhola Yadav is the father of the deceased and is the witness
in this case. He is the author of the FIR and his 161 Cr.P.C. statement was
also recorded on 13.03.2007, which is the date of the incident. He says that
by the banks of the Satna river, he has 22 acres of land and that he was
sitting near a mango tree when the appellants Ramesh, Bhaiya, Moti, Chunna
alias Sunil and Lalua alias Lalu Raikwar came there and that the appellant
Ramesh came and sat near him and Bhaiyalal sat on the bench and the other
three persons proceeded towards the river. The appellants are stated to have
asked this witness with regard to the whereabouts of the deceased Lalu upon
which the witness says he told them that the deceased has gone to graze the
cattle. Upon hearing this, all the five persons went in the direction of the
field of the witness. He further says that he went behind these persons and
near the brick kiln, on the demarcation boundaries of the field, the deceased
was grazing his cattle. Appellant Ramesh reached there and struck once with
an axe on the head of the deceased. The witness says that he shouted not to
assault the deceased. He further says that upon being struck by the axe, the
deceased fell down on the spot and that the others belaboured him with
sticks. He further says that he kept shouting but he was warned by the
appellants that if he comes closer, he too shall be killed. He further states that
the appellants after assaulting the deceased went towards Malhantola and
thereafter several other persons reached the scene of occurrence. In order to
contradict this witness, learned counsel for the appellants have drawn the
attention of this Court to the cross-examination of the witness. In paragraph
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no.5, this witness has stated that the police recorded his statement 2-4 days
after the incident and that to record the same, the witness was called to the
police station. However, in paragraph 6, the witness says that even on the
second day after the incident, the police had not taken his statement and
therefore, he is unable to say whether at the scene of occurrence, Pappu
Malha and Vrindavan Malha were present or not. In order to show that there
was a previous enmity between the parties, learned counsel for the appellants
has drawn the attention of this Court to paragraph no. 9 of the cross-
examination of PW-8 where he says that it is correct to suggest that 2 to 3
days before the incident, his son had an altercation with the appellant Lalu
and his father Fukua over an electric pump. They have referred to Ex.D-4
which is a copy of the FIR registered by Fukua, who is the father of the
accused Lalu Raikwar, wherein offences were registered against the
deceased on 10.3.2007. Most importantly, learned counsel for the appellants
submitted that this witness has deliberately given his age of 60 years while
he was much more than 60 years in age, in order to overcome the deficiency
of his eyesight wherein paragraph no.14, he has stated that it is correct to
suggest that he is unable to see at a distance and thereafter he has stated again
in paragraph no.23, that the probable distance between where he was
standing and where the incident had taken place was approximately 500
metres. Therefore, learned counsel for the appellants submits that it was
highly improbable that PW-8, who has stated that he has a poor eyesight and
cannot see at a distance, could have identified the appellants as the ones who
committed the murder of his son from a distance of approximately 500
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metres. Learned counsel for the appellant has also stated that this witness has
made an error in the identification process and has identified incorrectly two
of the appellants herein, who are Ramesh and Chunna, as is reflected in
paragraph nos.24 and 25. In paragraph no. 26, this witness says that on the
date of the incident, only one of the appellants was armed with an axe and
the others were all armed with dandas. It is also necessary to mention here
that there was no TIP done by the police to enable this witness to identify the
accused persons immediately after the incident. However, the same may not
be relevant as PW-8, who is the author of the FIR has named three of the
appellants herein and therefore, his personal knowledge of those three cannot
be doubted. The next important witness in this case is PW-10 who is an
eyewitness whose name is Kallu Yadav. Admittedly, there was no TIP
conducted to enable this witness to identify the appellants herein
immediately after the incident. He has only done dock identification, which
is relevant in paragraph no.6 of his statement where he says that it is correct
to suggest that when the assault was going on, no crowd had collected there
and only PW-8 was there along with this witness. He further says that he
does not know the appellants by name and only can recognize them by their
face. He categorically states that he had never seen the appellants before the
date of the incident on which date he had seen the appellants for the first
time. He further says that the police never got the TIP done from him in
order to identify the accused persons. It is relevant to mention here that the
statement of this witness was recorded on 14.10.2008, which is almost a year
and a half after the incident. Besides, it appears that this witness is a chance
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witness as he states in para no.9 that at the time of the incident, he was going
to get vegetables from his uncle's field. He further says that from the place
where he had to go and to get the vegetables, his house was at a distance of
almost 3 kms. It is pertinent to mention here that in the FIR the presence of
PW-10 is not mentioned as none of the witnesses were present on the site. It
is relevant to mention here that 161 Cr.P.C. statements were recorded on
24.03.2007 i.e. eleven days after the incident. In paragraph no.10, this
witness says that the assault went on about 10 to 15 minutes. He says, he did
not make any attempt to save the deceased but stood at a distance from where
he watched everything. He says that there was no one anywhere nearby and
further says that the father of the deceased came to the scene of occurrence
after the incident. He contradicts himself in the same paragraph wherein he
says that after the incident when the father of the deceased (PW-8) shouted
not to assault the deceased, that the witness reached the scene of occurrence
five minutes after that.
8. The next witness is (PW-11) Rukmani who is the wife of PW-8. She
says that she is aged about 80 years. This witness appears to be a witness of
subsequent events. She says in the afternoon of the date of the incident, she
was returning after buying milk when one Bablu Kumhar informed her that
her son has been murdered. She further says that when she was going
towards the scene of occurrence, she saw the appellants running away in the
opposite direction of the scene of occurrence. Thereafter, she sees her son
lying in an injured condition and placing him in a Riskshaw, they took him
home and from there to the City Kotwali and with the assistance of the
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police, he was taken for treatment to the hospital at Satna where he was
pronounced dead. This witness says that her age is about 80 years. Learned
counsel for the appellant has connected the age of this witness with PW-8 in
order to show that where PW-10, being the wife of PW-8, was 80 years, the
probable age of PW-8 was more than 80 years and in order to conceal the
same, he has given a false age of 60 years to the Court so that he appears
credible as an eye-witness of this case. Learned counsel for the appellants
has also stated that both PW-8 and PW-10, on account of their advanced age
could not see properly as has been stated by PW-10 and in paragraph no.9 of
her cross-examination where she voluntarily stated that she is unable to see
on account of her age. To the statement that she has made in paragraph no.1
of her examination-in-chief, the defence has confronted her in paragraph
no.11 with her 161 of Cr.P.C. statement to which she has stated that she had
informed the police that when she was going towards the scene of
occurrence, she saw the appellants running away from the scene of
occurrence in the opposite direction and if the same is not there in the 161
Cr.P.C. statement she is unable to give any reason. She has also been
confronted with that part of her 161 Cr.P.C. statement wherein she has not
stated that she was a witness to the incident itself to which she replies that
she had called the police. She says that in her statement to the police, she had
stated that she witnessed the appellants assaulting the deceased but the same
is not there in her 161 Cr.P.C. statement (Ex.D-3) for which she is unable to
give any reasons. The FSL report which is Ex.P-30 reflects that the three
articles seized from the appellants herein which are two axes and a stick
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marked as articles "F", "G" and "H" have all returned a negative finding for
blood itself. The post-mortem report is Ex.P-5, records several injuries on the
body of the deceased. PW-4 is the doctor who performed the post-mortem
whose testimony reflects that the majority of the injuries are either abrasions,
contusions, bruises or crushed injuries. The fatal injuries are crush injuries
on the head and on the frontal region and the other is a heamotoma, which is
on the left parietal region of the head. The cause of death is shown as
internal heamorrhaging. It is necessary to point out here that there is no
injury on the head which could have been caused by an axe as the same
would have left an incised wound and the same is missing. PW-14 is the
Investigating Officer in this case. His statement is important in order to
reveal the reliability of the statement of PW-8, who is an eye-witness of this
case. He has proved the site map and the place where the house of the
deceased is situated is marked as "A" and the place of the incident had
occurred is marked as "B". The witness says thereafter that with the passage
of time he is unable to say whether the distance between points "A" and "B"
is 700 to 800 metres, but he does state specifically that from point "A",
which is the house of the deceased, to point "B", where the incident had
taken place, is so far away that one would not be able to see a person from
that distance and even if a person was sighted from that distance, he or she
would not be identified.
9. Learned counsel for the State has submitted that the evidence of
PW-8, PW-10 and PW-11 are of sterling quality being eye-witnesses to the
incident and are sufficient to base a conviction upon. He says that the
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absence of blood on the two axes seized and sent to the FSL along with a
danda is not fatal to the prosecution's case as it is also possible that the
accused persons may have washed the implements of the crime immediately
thereafter. Referring to the post-mortem report, learned counsel for the State
submits that the crush injury which is present on the head of the deceased
could have been caused from the blunt side of the axe and, therefore, there is
sufficient reason to accept the statement of PW-8 where he says that the
appellant Ramesh struck the deceased on the head with an axe and after the
deceased fell down, he was belaboured by the other appellants.
10. Learned counsel for the State further submits that as regards Ex.D-
4 is concerned, which is an FIR registered by the father of the appellants
against the deceased, could also form the motive for the actions of the
appellant which resulted in the death of the deceased.
11. As regards the distance from where the incident was sighted,
learned counsel for the State submits that the distance as stated by the
Investigation Officer (PW-14) may not be taken seriously as he states that he
himself is not sure about the distance between the two points shown on the
site map. He has instead submitted that this Court should appreciate the
statements of PW-8, PW-10 and PW-11 and the post-mortem report.
12. Heard the learned counsels for the parties and perused the record
of the trial Court.
13. Admittedly, the main witnesses in this case are PW-8, PW-10 and
PW-11, who are purportedly eyewitnesses in this case. The incident has
taken place on 13.03.2007 at about 12:00 p.m. and the FIR has been
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registered on the same day against three persons by PW-8 whose 161 Cr.P.C.
statement was also recorded on the same day. Though PW-8 in his Court
statement mentions the involvement of one Moti Singhraha, the name of the
said witness is missing in the FIR and 161 Cr.P.C. statement. The PW-8 has
not mentioned the name of Lalu Raikwar in the FIR but has attributed
involvement to him in his Court testimony. There is nothing to show as to
how and when PW-8 got the information that Lalu Raikwar was also
involved in this case. As regards the eyesight of this witness, he himself
states that he cannot see things at a great distance. He further says that the
place where he stood and saw the incident was about 500 meters away. He
further says that it was appellant Ramesh, who has struck the deceased on the
head by an axe and on the remaining assault on deceased was by sticks after
he fell down. There is absence of any incised wound on the head of the
deceased. We reject the arguments put forth by learned counsel for the State,
who has submitted that appellant Ramesh could have used the blunt side of
the axe to cause the crushed injury, which contributed to the death of the
deceased. The same is rejected as there must be evidence forthcoming that
the blunt side of the axe was used. Else a weapon shall be considered to have
been used in the manner it would so normally have been used. In other
words, an axe, being a sharp-edged weapon, shall be presumed was used
from its sharp edge to inflict the injuries and the MLC of the post-mortem
report must corroborate the same. If it does result in a lacerated wound, there
must be some witnesses, who should have stated unequivocally that the
person had used the blunt side of the axe. In this case, no such evidence is
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forthcoming and therefore, the submission put forth by learned counsel for
the State is rejected. Another aspect of this case is that though PW-8 says
that only one person (Ramesh) was armed with an axe and others were armed
with sticks, whereas, the seizure memo reflects that two axes have been
seized, which is also against the case of the prosecution but, however, as
stated already hereinabove, the FSL report does not find any blood on both
the axes or stick, that were seized from the appellants. As regards the
contention put forth by the learned counsel for the appellants that the witness
has reduced his age and informed the trial Court that he is of 60 years, is also
accepted as the wife of the deceased (PW-11) says that she is 80 years of age,
the presumption going by social conditions and prevalent practices, is that
the husband is invariably older than the wife. Therefore, it is safe to presume
that PW-8 is more than 80 years of age. That coupled with the admission of
weak eyesight, renders his testimony before the trial Court not worthy or
credit with regard to the identification of the appellants here.
14. PW-10 is an independent witness, who has been examined by the
prosecution. As already stated hereinabove he contradicts himself in the
same paragraph during cross-examination, where he says that when the
assault took place, he was only present at the scene of occurrence but did not
intercede and saw the entire incident from a distance. However, later he says
that having heard the shout of PW-8, he came to the scene of occurrence
incident five minutes thereafter. This witness does not know any of the
appellants by their names and as stated that before the date of the incident he
has never met or known any of the appellants. He further submits that there
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was no TIP that was conducted by the police in order to get the appellants
identified by him. It is also relevant to mention here that his testimony
before the trial Court was done nearly one and half years after the incident
and, therefore, the dock identification is rendered extremely doubtful. As
regards PW-11, Rukmani, who is the wife of PW-8 and the mother of
deceased. Paragraph no.1 of her statement reflects that she is a witness to
subsequent events. She says that when she was returning after buying milk
she was informed by one Bablu Kumhar that her son has been killed and then
when she was going towards the site scene of occurrence she sees the
appellants running away from there. Admittedly, she was only a witness to
subsequent events. The witness has been cross-examined with her 161
Cr.P.C. statement and it has been shown as an omission of the appellants
running away from the scene of occurrence when the witness was going
towards. She also says that she cannot see on account of advanced age. This
witness is also not reliable in order to base a conviction against the
appellants.
15. PW-14 is the Investigating Officer of this case. The most
important part of his testimony is with regard to the place of occurrence and
the place from where the occurrence was witnessed by PW-8. Those are
points shown as "A" and "B" in the site-map. This witness clearly says that
he cannot say to sure whether the distance is 700 or 800 meters between the
two points, but he says that it may not be possible to see a person standing at
point "B" from point "A" which is the residence of the deceased from where
PW-8 is stated to have viewed the incident. He further says that even if the
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person was visible it would not be possible to identify who that person was.
16. In view of what has been argued before this Court and considered
hereinabove, this Court holds that the cumulative effect of the statements of
PW-8, PW-10 and PW-11 have several omissions and contradictions which
does not enable this Court to arrive at a finding that the incident was ever
seen by any of them and the same is not worthy of credit or reliance upon
and the same is insufficient to arrive at finding of guilt.
17. Under the circumstances, the appeals succeed. The impugned
judgment of conviction and sentence is set-aside. The appellants are
acquitted. Appellant Ramesh Raikwar @ Thakur in Criminal Appeal No. 996
of 2011 is still undergoing his sentence, he shall be released forthwith.
18. As regards the appellants Sunil Kahar, Bhaiya Kahar and Lallu
Raikwar were already on bail, their bail bonds stand discharged.
19. The appeals stand disposed of.
20. Copy of this order be sent to the trial Court for information and
compliance along with record of the trial Court.
(ATUL SREEDHARAN) (ANURADHA SHUKLA)
JUDGE JUDGE
NP
