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IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE

BEFORE

HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI

&

HON'BLE SHRI JUSTICE HIRDESH

CRIMINAL APPEAL No. 1971 of 2014

BETWEEN:-

1.

SOHAN S/O KANIRAM, AGED ABOUT 38 YEARS, OCCUPATION:

AGRICULTURE VILLAGE PIPALDA, P.S. SADALPUR, DISTRICT- DHAR

(MADHYA PRADESH)

2.

RADHESHYAM S/O TOLARAM RAJPUT, AGED ABOUT 47 YEARS,

OCCUPATION: AGRICULTURIST VILLAGE- PIPALDA, P.S. SADALPUR,

DISTRICT- DHAR (MADHYA PRADESH)

.....APPELLANTS

(SHRI VIVEK SINGH – ADVOCATE FOR APPELLANT NO.1)

(SHRI MANOHAR SINGH CHOUHAN – ADVOCATE FOR APPELLANT NO.2)

AND

THE STATE OF MADHYA PRADESH, STATION HOUSE OFFICER THRU. P.S.

AJK, DHAR (MADHYA PRADESH)

.....RESPONDENT

(SHRI K. K. TIWARI, LEARNED GOVERNMENT ADVOCATE FOR THE

RESPONDENT/STATE)

RESERVED ON : 13.07.2023

PRONOUNCED ON : 13.09.2023

This appeal having been heard and reserved for orders, coming on

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for pronouncement this day, Hon'ble Shri Justice Hirdesh pronounced the

following:

J U D G M E N T

1.This criminal appeal under Section 374 (2) of Cr.P.C. has been preferred

by the appellants being aggrieved by the judgment dated 19.11.2014 passed

by Special Judge (SC/ST) Dhar in Special Session Trial No.54/09 whereby the

trial court has convicted the appellants for the offence punishable u/S. 302 of

IPC and sentenced them to undergo rigorous imprisonment for life with fine

of Rs.5000/- and in default of payment of fine one month's additional R.I.

2. According to the prosecution story in short, PW-1 Balwant lodged a

report Ex.P-1 at police station- Sadalpur at 06.30 a.m. stating that he was

sleeping in the house with his brother Jagdish PW-2 and father-in-law

Shankarlal PW-6 and in early morning at 04.00 a.m. he heard the voice of this

father who was sleeping on the Otla (platform) outside of the house and saw

that the appellants along with other co-accused persons- Mohan, Kaniram

Balai, Babu, Ramchandra, Ghandshyam and Jitendra were assaulting his

father (deceased) with swords. He further stated that his brother PW-2

Jagdish, his father-in-law PW-6 Shankarlal and Hariram PW-13 also saw the

incident. On the basis of the report of PW-1 Balwant, police registered an

F.I.R. After registering the F.I.R. police reached the spot and prepared crime

detail form and Laash (dead-body) Naksha Panchayatnama (Ex.P-7) for

sending the body of the deceased for postmortem. The police arrested the

accused persons and after taking their statements u/S. 27 of the Evidence Act

seized blooded sword (Talwar) from the appellants – Sohan and Radheshyam

and recorded the statements of witnesses u/S. 161.

3. After completing the investigation, police filed charge-sheet before the

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Magistrate and as the case was triable by session court, the same was

transferred to the court of Sessions.

4. The appellants abjured their guilt and by taking the plea of innocence

claimed for trial. In order to substantiate the prosecution case, the prosecution

produced 14 prosecution witnesses. The trial court also recorded statements of

accused u/S. 313 of Cr.P.C. The defence also examined four witnesses. After

considering the evidence adduced by the parties, the trial court came to the

conclusion that the appellants are guilty of the offence as mentioned above.

5. Learned counsel for the appellants submits that the judgment passed by

the trial court is bad in law and contrary to the fact and evidence of the case.

The evidence led by the prosecution witnesses suffer from serious infirmity. It

is further submitted that the trial court has wrongly relied upon the testimony

of PW-1 Balwant, PW-2 Jagdish and PW- 6 Shankarlal. It is further submitted

that nobody has seen the incident and PW-1 saw the body of the deceased

after the death. So names of the assailants were not disclosed in initial report

nor it has been mentioned that anyone has seen the accused. It is further

submitted that district scientific officer gave the report as below:-

“lwpukdrkZ ds vuqlkj vkt lqcg pkj cts djhcu e`rd vius u;s

edku eos'kh dksBs ds lkeus 'ksM esa iyax ij lks;s Fks lqcg pkj cts firkth

us vkokt yxkbZ dh csVk lquksjs xkWao ds yksx ekjihV dj jgs gS rFkk mlds

ckn uhps vkdj ns[kk rks firkth ej pqds Fks mlds igys firkth us

vijkf/k;ksa ds uke Hkh crk;s FksA fjiksVZ djrk gwa dk;Zokgh dh tk;sA^^

6. Learned counsel further submits that if PW-1 Balwant has seen the

assailants, he must have disclosed their names before the district scientific

officer and it is also stated that the report is anti-timed as explained by PW-5

Budhram Yadav (in-charge control room) in his cross-examination and

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evidence shows that the deceased alone was sleeping in open place and

unknown persons assaulted him and the alleged seized weapons do not

connect the appellants with crime and the independent witnesses did not

support the prosecution story and on the same evidence other accused persons

have been acquitted. It is further submitted that the trial court has also

committed error in not relying the testimony of defence evidence and

documents. In support of his arguments, learned counsel for the appellants has

cited following citations:-

(1)State of Kerala Vs. M.M. Manikantan Nair, 2001 (2) MPWN,

142;

(2)Rammi @ Rameshwar Vs. State of M.P., 1999 (2) JLJ 354;

(3)State of Maharashtra Vs. Narsingrao Gangaram Pimple, AIR

1984 SC 63.

(4)Meharaj Singh (L/Nk.) Vs. State of U.P., 1994 (5) SCC 188,

(5)M/s Pankaj Jain Agencies Vs. Union of India and others, 1995

(5) SCC, 198

(6)Kansa Mehera Vs. State of Orissa, 1987 (3) SCC, 480

(7) Lallusingh S/o Jagdishsingh Samgar Vs. State of M.P., 1996

MPLJ, 452

(8)Ramaiah @ Rama Vs. State of Karnataka, 2014 Cr.L.R. (SC)

907

(9)Dinesh Vs. State of Madhya Pradesh (Criminal Appeal

No.870/1996) by Supreme Court of India.

(10)Ramesh @ Dabbu Vs. State of M.P., 2014 (2) JLJ 397

(11)Sudarshan & Anr. Vs. State of Maharashtra, 2014 Cr.L.R.

(SC) 660

(12)Mohd. Muslim Vs. State of Uttar Pradesh (Now

Uttarakhand), 2023 SCC OnLine SC 737

7. Learned counsel for the respondent/State, on the other hand, supported

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the impugned judgment and prayed for dismissal of this appeal. He submitted

that the eye witnesses PW-1 Balwant, PW-2 Jagdish and PW-6 Shankarlal

have completely supported and established the case and the weapons seized

from the appellants were having human blood and the allegation of

mentioning the time in time column of the F.I.R. is just human error as stated

by PW-5 and is not a manipulation. It is further submitted that prosecution

witnesses have fully supported the case.

8. The appellant No.1 has filed an interlocutory application in this appeal

i.e. I.A. No.3260/2016 under Section 391 of Cr.P.C. on the following

grounds:-

The aforesaid application in first para has described the prosecution

case about the incident took place on 25.01.2009 stating that in F.I.R. (Ex.P/1)

the time of lodging F.I.R. was initially written as 18.00 hours, thereafter it was

scored off and was written as 6.30 in the morning.

The contention of the appellant is that as per the report nobody has seen

the incident and Balwant (PW-1) saw the dead body and names of the

assailants were disclosed by father (deceased) Babulal.It is also stated that the

name of the assailants were not disclosed in the initial report nor it has been

mentioned that anyone saw the occurrence. The report shows that PW-1

Balwant, PW-2 Jagdish and PW-6 Shankarlal are got up witnesses.

It is further stated that PW-5 Budhram Yadav, SHO of P.S.-Sadalpur

who is alleged to have recorded Ex.P-1 has admitted that “;g lgh gS fd iz-ih-1 esa

Fkkus ij lwpuk izkIr gksus dk le; 18 fy[kdj dkVk x;k gS ;g esjs }kjk gh dkVk x;k gS”

The admission of PW-5 shows that the F.I.R. is anti-timed and is not a genuine

document, even though, as per PW-1 he left the village for lodging F.I.R. at

about 8-8.30 a.m. for police station. The statement of PW-1 Balwant in para

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38 proves that the F.I.R. could not have been lodged and Ex.P/1 shows that the

F.I.R. was recorded at 18.30 P.M. and subsequently the time has been

changed.

It has also been stated that the report of senior scientific officer dated

26.01 said to have been recorded on 25.01.2009 at 17.00 hours in which name

of complainant has been shown to be Balwant PW-1, who is alleging himself

to be eyewitness of the incident, but on the contrary in the FSL inspection

report he has stated that at 4:00 in the morning he heard some noise of his

father, when he came down he saw his father on the verge of death before that

his father disclosed name of assailants. This goes to show that PW-1 Balwant

is not an eyewitness to the incident and the F.I.R. is an anti-timed document.

It is also alleged in the application that the prosecution did not examine

the senior scientific officer, hence, in the interest of justice his examination is

very much necessary to unfold the narrative of the prosecution

This Court considering each and every point mentioned in the

application (I.A. No.3260/2016) does not find any reason to call the senior

scientific officer as a witness, hence, I.A. No.3260/2016 is dismissed.

9. Now the points of consideration before this Court is; whether the

findings of the trial court on conviction and sentence of the appellants

u/S. 302 are erroneous in eye of law and facts?

The first question arises whether the death of Babulal is homicidal or

not?

Budhram PW-5, investigating officer, has stated in his evidence that

after reaching the spot and preparing Laash (dead-body) Naksha

Panchayatnama (Ex.P-7) in presence of witnesses, the dead-body was sent for

postmortem. PW-4 Sanjay Joshi, Medical Officer, Dhar conducted

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postmortem of the body of the deceased-Babulal and noticed following

injuries on the body of the deceased:-

“1&dVk gqvk ?kko flj esa nkfgus QzUVks vkfDlhihVy jhtu

esa ftldk vkdkj 13X5X5 lsa0eh0 FkkA

2&nkfguk dku dVk gqvk Fkk rFkk dku dk fiUuk nks Hkkxksa

esa cVk gqvk FkkA

3&nkfgus dku ds mij iSjkbZVks vkfDlhfiVy jhtu esa ,d

dVk gqvk ?kko Fkk ftldk vkdkj 3X3X3 lsa0eh

FkkA

4&flj esa lkeus dh vksj ,d dVk gqvk ?kko Fkk ftldk

vkdkj 6X2X2 lsa0eh0 FkkA

5&nkfgus iSjkbZVy cksu esa fMiszLM QzsDpj FkkA

6&nkfgus gkFk esa ,d dVk gqvk ?kko Fkk ftldk vkdkj

3X2X2 lsa0eh0 FkkA

7&nkfguh esfDtyk cksu esa QszDpj Fkk rFkk ogk ,d dVk

gqvk ?kko ftldk vkdkj 2X2X1 lsa0eh0 FkkA

8&nkfgus Ldsiwyk cksu esa QszDpj Fkk ,oa nkfguh rjQ dh

5oha 6oha] 7oha ,oa 8oha ilfy;ksa esa QszDpj FkkA

9&nkfguh Hkqtk dh gfM~M;ksa esa QszDpj Fkk o lwtu ekStwn FkhA

10&nkfguh tka?k ij ,d dVk gqvk ?kko Fkk ftldk vkdkj

6X2X2 lsa0eh0 FkkA

11&nkfguh Qhej gM~Mh esa QszDpj FkkA

12&nkfgus ?kqVus ij dVk gqvk ?kko Fkk ftldk vkdkj 2X2X1

lsa0eh0 FkkA

13&nkfguh jsfM;k vyuk gM~Mh esa QszDpj FkkA

14&nkfgus da/ks ij lwtu Fkh ftldk vkdkj 6X1X1 lsa0eh0

FkkA

15&nkfgus iqV~Bs ij ,d dVk gqvk ?kko Fkk ftldk vkdkj

5X1X1 lsa0eh0 FkkA

16&nkfguh veykbZ dks jhtu esa lwtu Fkh ftldk vkdkj 10X2

lsa0eh0 FkkA”

vkarfjd ijh{k.k % &

fnukad 20-4-2009 dks Fkkuk izHkkjh ,-ts-ds-/kkj us izdj.k esa tIr 'kqnk

ryokj esjs ikl tkap ds fy, estdj ;g Dosjh dh Fkh fd D;k erd

ckcwyky dks igqWaph pksVsa blls vkuk laHkkfor gS rks eSaus nksuks ryokjksa

dks lhy [kksydj mudk voyksdu djus ds ckn ;g vfHker fn;k Fkk

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fd ckcwyky dks vkbZ pksVssa bl izdkj ds gfFk;kj ls vkuk laHkkO; gS!

rRi'pkr eSaus nksuksa ryokjksa dks lhycan djds mls ysdj vkus okys

vejflag dks lksi nh Fkh A

fnukad 20-04-2009 dks Fkkuk ,-ts-ds-/kkj }kjk Dojh dzekad

D;w@09 }kjk i= Hkstdjk ;g Dosjh pkgh Fkh fd tIr 'kqnk gfFk;kj

ls ckcwyky dks pksaVsa vk ldrha gS o e`R;q gks ldrh gS mDr i= iz-ih-

&18 gS ftlds iz"B Hkkx ij eSusa Dosjh dk tokc fy[kk gS tks fnukad

20-04-09 dk gS ftlds vuqlkj e`rd Ckkcwyky firk y{e.k mez 54 o"kZ

fuoklh xzke fiiYnk Fkkuk lknyiqj dks 'kjhj ij vkbZ fofHkUU pkasVsa tIr

'kqnk gfFk;kj ls vkuk laHko gS A rFkk 'kjhj ij mifLFkr ?kkoksa ls vkgr

dh e`R;q gksuk laHko gS A tIr 'kqnk ryokjsa ux & 2 dks eSaus iqu%

lhyca/k dj esjs }kjk gLrk{kj dj iqu% vkj{kd vejflag ,-ts-ds-/kkj

dks lkSai nh Fkh A rRlaca/k esa esjs }kjk fyf[kr Dosjh fjiksVZ iz-ih- &18&,

ftlds , ls , Hkkx ij esjs gLrk{kj gS A

PW-4 Sanjay Joshi, Medical Officer, Dhar stated that in his opinion the

death of the deceased was due to injuries caused to the deceased and time of

death was 12-13 hours in report Ex.P-5.

On perusal of the evidence of prosecution witnesses and Laash (dead-

body) Naksha Panchayatnama (Ex.P-7) as well as report Ex.P-5 and taking

into consideration the fact that there is no substantial cross-examination by the

defence, it is clearly proved that the death of the deceased was homicidal

in nature.

10.Now the point of determination is; whether both the appellants have

caused death of Babulal by assaulting him by Sword (Talwar)?

At the outset, the statements of PW-1 Balwant, PW-2 Jagdish and PW-6

Shankarlal are required to be enunciated. PW-1 Balwant has deposed that he

knew the appellants. On date 25.01.2009 in the night, he and his father-in-law

Shankarlal and brother Jagdish were sleeping inside the house and his father

was sleeping on Otla (platform) outside of the house. In the early morning

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near about 3-4 O'clock, he heard the voice of his father shouting “ Are´ Beta

Ye Log Mujhe Maar Rahe Hain” (O my son, these persons are assaulting me)

then he along with his brother Jagdish and father-in-law Shankarlal came

outside of the house and saw that the appellants and other co-accused persons

were assaulting his father with Sword (Talwar), axe (Kulhaadi), Dharia and

Farsha. On seeing this, he shouted and ran towards the accused persons then

the accused persons ran away from the spot. PW-1 Balwant further stated that

after that he went near his father and saw that head of his father was hacked

and there were so many injuries on the body of his father. Due to those

injuries, his father died. Accused persons assaulted his father due to enmity in

relation to properties. He further stated that he saw all the accused in light of

Chimni (Chimni) then he went to Police Station, Sadalpur and lodged report

Ex.P-1.

11. PW-2 Jagdish and PW-6 Shankarlal also vindicated the prosecution

story in the same way in their examination of chief. PW-3 Hariram and DW-

5A Radheshyam did not not support the prosecution story. They were declared

hostile by the counsel for the State and in cross examination they have stated

that did not know anything about the incident and who has killed Babulal.

Therefore, on perusal of the evidence of PW-3 and DW-5A it is clear that their

statements do not help any side.

12. Learned counsel for the appellant further submit that no independent

witness has supported the prosecution case. It is only vindicated by relatives

and there are so many omissions and contradictions in the statements of their

witnesses.

13.With regard to these aspects, in the case of Chauda Vs. State of

Madhya Pradesh, 2019 ILR M.P. 471, a Division Bench of this Court has

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held as – an interested eye witnesses- presence of eye witnesses establishes

their statement.

“The appellants failed to rebut their testimony which was

quite natural and without any material contradiction and

omission the conviction can be based on the testimony of close

relatives/interested witnesses. There is no material

contradiction or omission between testimony of eye witnesses

and medical evidence which must be relied upon. In this case

it is held that if interested / relative witnesses are reliable then

these evidence are not discarded merely on this ground.”

14.In the case of Smt. Dalbir Kaur Vs. State of Punjab, Cr.LJ 1976, the

Apex Court has made following observations:-

“Interested witnesses are related witnesses and they are

natural witnesses. They are not interested witnesses and their

testimony can be relied upon.”

15.In the case of Arjun Singh Vs. State of Chhattisgarh, 2017 Vol.2

MPLJ Cr. 305, the Apex Court held the evidence of related witnesses has the

evidentiary value, court has to scrutinize the evidences with care in each and

every case is a rule of prudence and a rule of law. Facts of witnesses being

related to victim or deceased are not by itself discredit evidence.

16.In the case of Laltu Ghos Vs. State of West Bengal, AIR (2019) SC

1058, the Apex Court has quoted as under:-

“ (a)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

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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.

(b)Actually in many cases, it is often that the offence is witnessed

by a close relative of the victim / deceased, whose presence on the spot

of the incident would be natural. The evidence of such a witness cannot

automatically be discarded by labelling the witness as interested.”

17.Applying the aforesaid law, now the evidence of prosecution witnesses

is discussed as under:-

The first argument of defence counsel is that the mandatory provision of

Section 157 of Cr.P.C. is not followed because copy of F.I.R. has not been sent

to the nearest Magistrate forthwith and no evidence was adduced by the

prosecution for compliance of Section 157 of Cr.P.C. and the argument that

F.I.R. is anti-timed and not genuine document because PW-5 Budhram SHO

(Investigating Officer) accepted that there is tampering in the time column of

Ex.P-1.

18.On perusal of the evidence of PW-1 it is revealed that he has accepted

the fact that he might have gone to police station nearby 08:00-08:30 a.m. and

after registering the F.I.R. police came with him on the spot. On perusal of the

seizure memo Ex.P-8, Ex.P-63 and Ex.P-69 it is revealed that the time is

mentioned as 09.15 and crime number was also mentioned and all other

formalities of preparing Naksha Panchayatnama (Ex.P-7) was done before

06:00 pm and crime number was also mentioned in such documents and

postmortem was done at 10.50 a.m. on 25.01.2009, therefore, tampering has

not been done deliberately and it is just a human error.

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19.In the case of Meharaj Singh (L/Nk.) Vs. State of U.P., 1994 (5) SCC

188, the Apex Court has held that if there is no doubt in date and time in

F.I.R., the delay in sending F.I.R. to the court of Magistrate is not fatal to the

prosecution case. In the present case, the evidence of PW-1 and PW-5; and the

prosecution document show that F.I.R. was lodged timely at 06.30 a.m.,

hence, this has no substance.

20.Learned counsel for the appellant further submits that after the incident

police called Scene of Crime Unit for spot inspection on 25.01.2009 at 17.00

hours. According to that report, it is stated as under:-

“lwpukdrkZ ds vuqlkj vkt lqcg pkj cts djhcu e`rd vius u;s edku

eos'kh dksBs ds lkeus 'ksM esa iyax ij lks;s Fks lqcg pkj cts firkth us

vkokt yxkbZ dh csVk lquksjs xkWao ds yksx ekjihV dj jgs gS rFkk mlds

ckn uhps vkdj ns[kk rks firkth ej pqds Fks mlds igys firkth us

vijkf/k;ksa ds uke Hkh crk;s FksA fjiksVZ djrk gwa dk;Zokgh dh tk;sA^^

The aforesaid report which is marked by this Court as Ex.P-C is a

summary report of the scene of offence in which he mentioned some of the

facts narrated to him by PW-1. This document was submitted by the

prosecution along with charge-sheet. It is not mandatory for the prosecution

that he examines each and every witness and exhibits all the documents,

therefore, this document Ex.P-C is not F.I.R. because F.I.R. (Ex.P-1) was

lodged at 06.30 a.m. by PW-1 and Ex.P-C in summary report prepared by

district scientific officer, therefore, this Ex.P-C does not give any help to

defence.

21.Learned counsel for the appellants submits that there are so many

contradictions and omissions in the evidence of PW-1 Balwant, PW-2 Jagdish

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and PW-6 Shankarlal and they are interested/related witnesses so they are not

reliable. On perusal of the evidence of PW-1 Balwant and PW-2 Jagdish, it

was found that they were examined after 8 months of the incident and in their

evidence, it is found that they have unrebutted substantially in their cross-

examination. It is true that there are some omissions and contradictions in

evidence of PW-1 but in in the case of Rammi @ Rameshwar Vs. State of

M.P., 1999 (2) JLJ 354, it has been held that in lengthy cross-examination

some omissions and contradictions may be outcome of the evidence. The

Apex Court in para 24 of the aforesaid judgment has held as under:-

“24When eye-witness is examined at length it is quite

possible for him to make some discrepancies. No true witness

can possibly escape from making some discrepant details.

Perhaps an untrue witness who is well tutored can

successfully make his testimony totally non-discrepant. But

courts should bear in mind that it is only when discrepancies

in the evidence of a witness are so incompatible with the

credibility of his version that the court is justified in

jettisoning his evidence. But too serious a view to be adopted

on mere variations falling in the narration of an incident

(either as between the evidence of two witnesses or as between

two statements of the same witness) is an unrealistic approach

for judicial scrutiny.”

So in view of the aforesaid discussion, in the opinion of this Court,

these omissions and contradictions shall not affect the substantial part of the

evidence of PW-1 which is supported by medical evidence.

22.Learned counsel further submits that that PW-6 Shankarlal is a chance

witness. He is the father-in-law of PW-1. In the case of S.L Tiwari Vs. State

of U.P. , 2004 (11) SCC 410, the Apex Court has held that “when an incident

takes place in a street or in field in a village, evidence of passers-by who

witnessed the incident, cannot be discarded or viewed with suspicious on

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ground of they being mere chance witnesses, rather they can be described as

independent witnesses”. In the aforesaid case, the Apex Court in para No.7

has held as under:-

“7 - There was not even a suggestion to the witness that he

had any animosity towards any of the accused. In a murder

trial by describing an independent witness as 'chance witness'

it cannot be implied thereby that his evidence is suspicious

and his presence at the scene doubtful. Murders are not

committed with previous notice to witnesses; soliciting their

presence. If murder is committed in a dwelling house, the

inmates of the house are natural witnesses. If murder is

committed in a street, only passersby will be witnesses. Their

evidence cannot be brushed aside or viewed with suspicion on

the ground that they are mere 'chance witnesses'. The

expression 'chance witness' is borrowed from countries where

every man's home is considered his castle and everyone must

have an explanation for his presence elsewhere or in another

man's castle. It is quite unsuitable an expression in a country

where people are less formal and more casual, at any rate in

the matter explaining their presence. ”

23.Learned counsel for the appellants submit that PW-6 Shankarlal was not

present in village – Pipalda and he was present in village – Bhilchauli. In the

evidence DW-1 Dhan Singh has stated that on the date of incident i.e.

25.01.2009, PW-6 Shankarlal came to his house and stayed at night.

24.In the case of State of Maharashtra Vs. Narsingrao Gangaram

Pimple, AIR 1984 SC 63, the Apex Court has held as under:-

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“it is well settled that a plea of alibi must be proved with

certainty so as to completely exclude the possibility of the

presence of the person concerned at the place of occurrence.”

25.On perusal of the evidence of PW-1 Balwant, PW-2 Jagdish and PW-6

Shankarlal, it is found that they are intact and PW-6 denied the suggestion

given by defence that he was not present on the spot on the date of occurrence

and also denied that he went to house of Dhan Singh (DW-1) on the date of

occurrence and distance of village-Pipalda is near about 15 k.m. so possibility

of presence of PW-6 Shankarlal cannot be completely excluded. After perusal

of the evidence of DW-1 it is found that he is not reliable and his evidence

was not supported by any document. In view of the aforesaid decisions of the

Apex Court, it is found that after appreciation of evidence of PW-6 Shankarlal

his presence on the spot is not doubtful and his evidence is not controverted in

cross-examination so his evidence cannot be discarded.

26.Learned counsel further submits that the incident took place in odd

hours at 4:00 a.m. and eye witnesses for the first time in the Court has spoken

in paragraph 22 that they had seen the occurrence as they were carrying

Kissan Torch with them and this fact has not been mentioned in the statement

under Section 161 of Cr.P.C. and F.I.R. Ex.P-1. It is true that it is Chimeny

(light lamp) which was not seized by the investigating officer and the fact that

witnesses were carrying Kissan Torch was not also mentioned in their

statements under Section 161 of Cr.P.C., this omission is not material

omission in statements of prosecution witnesses and it is not necessary that

each and every fact is mentioned in F.I.R. as well as in the statements under

Section 161 of Cr.P.c. so this omission cannot help the appellants and for this

reason liability and credibility of the witnesses shall not be discarded.

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27.Learned counsel for the appellant submits that the Talwar was

recovered from the open place so recovery of the Talwar was not proved. The

Apex Court in the case of State of Himachal Pradesh Vs. Jeet Singh, 1999

(4) SCC 370 has held that there is nothing in Section 27 of the Evidence Act

which renders the statement of the accused inadmissible if recovery of the

articles was made from any place which is "open or accessible to others". It is

a fallacious notion that when recovery of any incriminating article was made

from a place which is open or accessible to others. It would vitiate the

evidence under Section 27 of the Evidence Act. Any object can be concealed

in places which are open or accessible to others. For Example, if the article is

buried on the main roadside or if it is concealed beneath dry leaves lying on

public places or kept hidden in a public office, the article would remain out of

the visibility of others in normal circumstances. Until such article is

disinterred its hidden state would remain unhampered. The person who hid it

alone knows where it is until he discloses that fact to any other person. Hence

the crucial question is not whether the place was accessible to others or not

but whether it was ordinarily visible to others. If it is not, then it is immaterial

that the concealed place is accessible to others. So the Apex Court's verdict is

that the discovery of fact referred in Section 27 of the Evidence Act is not the

object recovered but the fact embraces the place from which the object is

recovered and the knowledge of the accused as to it.

28.In this case, the facts discovered by the police with the help of the

disclosure statements and recovery of the incriminating articles on the

strength of such statements are that it was the accused who concealed the

Talawr at hidden place. So arguments advanced by the counsel for the

appellants that the Talwar was recovered from open place has no substance.

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29.In the present case, it is found that PW-1 Balwant, PW-2 Jagdish and

PW- 6 Shankarlal are eye witnesses of this incident and on perusal of their

evidence, it was found that they were not controverted in their cross-

examination and their evidence were found reliable.

30.In the case of Amit Vs. State of U.P., AIR 2012 SC 1433, the Apex

Court has held that interested witnesses must have some direct interest in

having the accused somehow convicted for some extra extraneous reason and

a near relative of the victim is not necessarily and interested witness. In the

present case, evidence of PW-1 Balwant, PW-2 Jagdish and PW-6 Shankarlal

are corroborated to each other and also supported by medical evidence. The

same consideration has also been held in the case of Nandaua @ Munda Vs.

State of M.P., 2002 (2) JLJ, 416.

31.Learned counsel for the appellants further stated that as per FSL report

(Ex.P-18) on the sword seized from the appellant – Sohan, human blood was

found but in the FSL report blood group has not been mentioned which

renders the FSL report against the appellants and counsel for the appellant –

Radheshyam submits that the sword seized from the appellant-Radheshyam

was not sent to FSL and no blood was found on the sword seized from

appellant-Radheshyam.

32.In the present case, FSL report is not the sole basis of the prosecution

case and it is a corroborating piece of evidence and as the human blood was

found on the sword seized from Sohan, it is the duty of the appellant-Sohan to

disclose the fact as per the provision of Section 106 of the Evidence Act as to

how and why the human blood was found on the sword recovered from him

but the appellant- Sohan was unable to rebut this fact in defence and he has

not said single word about it in his statement under Section 313 of Cr.P.C.,

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therefore, even if the blood group is not mentioned in FSL report (Ex.P-18)

the same will not give any help to the appellant – Sohan. All the above three

prosecution witnesses have stated elaborately against the appellant –

Radheshyam. Sword was seized from the appellant – Radheshyam after a long

period of incident and no blood was found on the sword and the sword was

not sent to FSL for scientific investigation. This fact will also not give any

help to Radheshyam because eye witnesses have elaborately given evidence

against him.

33.Learned counsel for the appellants further submit that the trial court has

not considered the evidence of the appellants produced in the defence and the

weightage of the defence witnesses must be given as equal of the prosecution

witnesses.

On perusal of the record, it is found that the defence witnesses have not

given any help to the appellants, therefore, this argument does not help the

appellants.

34.Learned counsel for the appellants further submit that other four

accused persons have been acquitted by the trial court though named by all the

eye witnesses and the case of the appellants is on identical footing and the

judgment of the trial court has become final as the State Government has not

preferred any appeal.

It is true that the State Government has not preferred any appeal against

the acquitted accused persons but this fact will not help any more to the

present appellants and this Court has no right to comment on the point of not

filing any appeal by the State Government against the acquitted accused

persons.

35. Here, it has to be kept in mind that this Court is not testing the legality

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of acquittal of accused persons. However, in this appeal on the basis of the

evidence available on record, this Court is satisfied that the judgment of

conviction passed by the learned trial Court is in accordance with law and

facts. It is also well settled principle that the maxim "falsus in uno falsus in

omnibus" has no application in India. Hon'ble Supreme Court in the case of

Shaktilal Afdul Gaffar Khan Vs. Basant Raghunath Gogle reported in (2005) 7

SCC 749 has held as under :-

“.....it is the duty of Court to separate grain from

chaff. Falsity of particular material witness or

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 liar. The maxim

"falsus in uno falsus in omnibus" has not received

general acceptance nor has this maxim come to

occupy the 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”.

36. In view of the aforesaid prepositions, the testimony of the witnesses

cannot be discredited or wiped out only on the basis that other co-accused

persons are acquitted on the same set of evidence. As such the aforesaid

contention is also not liable to be accepted.

37.After taking into consideration all the grounds mentioned above and

also looking to the fact that the prosecution witnesses Nos.1, 2 and 6 have

completely supported the prosecution evidence and their evidence are

supported by the medical evidence and the accused – Sohan and Radheshyam

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are unable to rebut the evidence made against them. Therefore, this Court is of

the considered opinion that the appellants are guilty of the offence so in view

of the foregoing discussion, it is clear that the trial court has properly assessed

the evidence available with the record and has rightly convicted and sentenced

the appellants under the aforesaid sections of the Indian Penal Code and

learned trial court has not committed any error by convicting the appellants

for the aforesaid offence,

38.Hence, the conviction and sentence deserve to be maintained.

Resultantly, the appeal filed by the appellants is dismissed and the conviction

and sentence passed by the trial court is hereby upheld.

39. Let a copy of this judgment along with the records be sent to the

concerned trial court for information and necessary compliance.

(S. A. DHARMADHIKARI ) (HIRDESH)

JUDGE JUDGE

N.R.