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Judgment
Challenge in this appeal filed under Section 374 of the CrPC by the appellants is to the judgment dated 28.6.1999 passed by Sessions Judge
Morena, in Sessions Trial No. 266/1994, whereby appellant No.1-Balaiya @ Barelal is convicted and sentenced under Section 302 of the IPC,
to undergo life imprisonment, under Section 25 (a) of the Arms Act, to undergo three years rigorous imprisonment with a fine of Rs.500/- with
default stipulation; and under section 27 of the Arms Act, to undergo three years rigorous imprisonment with fine of Rs.500/- with default
stipulation, and appellant No.2-Sarnam is convicted and sentenced under Section 302/109 of the IPC, to undergo life imprisonment. The jail
sentences of appellant No.1-Balaiya @ Barelal is directed to run concurrently.
Undisputedly, deceased Khunna received a firearm injury.
The prosecution''s case in brief is that on 19th June, 1994 deceased Khunna with his son Ramveer (PW-2) and brother Bhagwant (PW-3) had
gone to Chhotelal Sakhwar''s house situated at village Chandrahans Ka Pura, for attending the invitation. After having meals when Khunna was
returning to his house with his companions, near the abovementioned village, both appellants, hidden behind a Neem tree and as Khunna and his
companions reached near the Neem tree, appellant Sarnam uttered that ''Khunna be killed''. Thereafter, Balaiya @ Barelal fired a shot from his
countrymade pistol, whose projectile caused injury on left side of abdomen of Khunna and blood was oozing out. After firing shot, both the
appellants fled away. On occurred injury a cloth (towel) was tied up by Khunna''s brother and son. Thereafter, Khunna''s son Ramveer after
running reached village Midhela and from that village, he caused a telephonic call to Police Station Ambah and returned to the scene of occurrence.
Within a span of time, the police force reached on the spot. Town Inspector Mahipal Singh Yadav (PW-10) scribed Dehati Nalishi (Ex.P/12) on
the information given by Khunna. Later on, Dehati Nalishi (Ex.P/12) was sent through Constable Suresh Chandra Sharma (PW-1) to the Police
Station Ambah for recording of the crime vide FIR. The SDO (P) Anil Kumar Saxena (PW-8) also reached on the spot. After seeing the critical
condition of Khunna, A.K. Saxena (PW-8) recorded dying declaration (Ex.P/5) of Khunna. Thereafter injured Khunna was sent to hospital, but
on way he succumbed to the injuries. Marg intimation bearing Marg No.17/1994 was lodged by Suresh Chandra Sharma (PW-1) at the police
station at 20=40 hrs.. After issuing safina form, Inquest Memo (Ex.P/7) was prepared in presence of panch witnesses and the dead body was sent
for post-mortem. Dr. R.K.Arora (PW-4) conducted the autopsy of deceased Khunna on 20.6.1994 and recorded post-mortem report (Ex.P/9).
The clothes found on the dead body were seized by Autopsy Surgeon and were sent to the police station. From the spot, in the night of 19.6.1994
in presence of the witnesses, an empty cartridge of 12 bore and a part of bullet were seized by the Investigator Mahipal Singh Yadav (PW-10)
vide seizure memo (Ex.P/3) and at the same time, from the scene of occurrence, bloodstained soil and separate simple soil were seized vide
seizure memo (Ex.P/4). A spot map (Ex.P/8) was prepared in next morning. Appellant Balaiya @ Barelal was arrested on 24th June, 1994 vide
arrest memo (Ex.P/13). On his disclosure, memorandum (Ex. P/15) was recorded under Section 27 of the Evidence Act on 24.6.1994 and on
production of a 12 bore countrymade pistol from appellant Balaiya @ Barelal''s house situated in village Barwai, the same was seized vide seizure
memo (Ex.P/16). Appellant Sarnam was arrested on 28th June, 1994 vide arrest memo (Ex.P/14). Seized bloodstained soil, clothes of the
deceased and firearm were sent for examination to FSL, Sagar. Permission of the District Magistrate, Morena was obtained for prosecution of the
appellant Balaiya @ Barelal in relating offences of the Arms Act. From FSL Sagar the bloodstained soil and clothes of the deceased were sent for
examination to Seriologist and Chemical Examiner of Government of India, Kolkatta.
After completing the investigation, the charge sheet was filed before the concerning Magistrate, who committed the arisen case to the Sessions
Court, Morena.
The Sessions Judge, Morena framed charges under Section 302 of the IPC and Section 25(a) and Section 27 of the Arms Act against appellant
No.1- Balaiya @ Barelal, and framed charge under Section 302 read with Section 109 of the IPC against the appellant No.2-Sarnam.
Each appellant denied the framed charges against him. It was the defence of both the appellants before the trial Court that they have been falsely
implicated in the case due to prior enmity. In defence, Dr. A.D.Sharma (DW-1) was produced to prove the medical report of appellant
No.1/Barelal recorded in the night of 19th June, 1994 (Ex.D/4A) and Gajraj (DW-2) was examined on the point that the deceased Khunna
received firearm injury from a shot made by Ganpat.
The trial Court after hearing convicted and sentenced the appellants for charged offences against them as aforesaid.
Appearing counsel for the appellants vehemently contended that Chhotelal (Court Witness No.1), who was called by the trial Court as a Court
witness, after allowing the application under Section 311 of the CrPC filed on behalf of the present appellants, has clearly deposed that when on
19.6.1994 after 5 pm he reached to the spot, he saw the deceased Khunna''s dead body there. Hence, from the evidence of Chhotelal, the
prosecution story regarding lodging of Dehati Nalishi (Ex.P/12) by the injured Khunna and recording of his dying declaration (Ex.P/5) by the
SDOP Anil Kumar Saxena (PW-8) is totally doubtful and it was established from the evidence of alleged eye-witness Ramveer (PW-2) and his
Uncle Bhagwant (PW-3) that just after the incident, both the appellants were caught hold by the villagers and were handed over to the police and it
was proved from the defence evidence that the appellant No.1-Balaiya @ Barelal himself has lodged the FIR (Ex.D/3) at the same police station
and he was sent for medical examination, but he was not arrested, though prior to it crime was registered against him. Hence, the prosecution story
is totally doubtful and seizing of the pistol on disclosure statement of Barelal on 24th June, 1994 is also not believable. It was further argued that as
it was established from the evidence of defence witnesses that the appellant No.1-Barelal was assaulted by the deceased Khunna by a Gupti and
he received a penetrating wound on his abdomen and actually Khunna was shot dead by a fire made by Ganpat, the trial Court erred in placing
reliance on the evidence of interested witnesses son Ramveer (PW-2) and brother Bhagwant (PW-3) of the deceased Khunna. It was also argued
that against appellant No.2- Sarnam, there is only allegation about exhortation, which was not established by any independent witness. Hence, it is
prayed that the appeal be allowed and each appellant be acquitted from the charges framed against him.
On the other hand, supporting the conviction recorded by the trial Court against the appellants, it has been contended by the Public Prosecutor
that the trial Court has properly and legally analyzed the evidence produced by both the parties and that it is well established that only due to
negligence and carelessness of the investigator, otherwise evidence of reliable eye-witnesses could not be disbelieved. Hence, the dismissal of
appeal is prayed.
According to the evidence of Dr. R.K.Arora (PW-4) and his post-mortem report (Ex.P/9), it is clear that on 20th June, 1994 at Civil Hospital,
Ambah, on starting of the autopsy of dead body of Khunna, he found that rigor mortis was present; on white shirt worn by the deceased blood
stains were present; on left side of the shirt, there was a hole of size 5cmx4cm and safi (another cloth) tied on the wound was also bloodstained.
He found following single injury on the dead body of Khunna:-
(i) Wound on left side of subcostal region of abdomen on hypochondrium region of size 5cmx2.5cm deep upto abdominal cavity and margins of
the wound were inverted downward and tattooing and charring was present all over the wound and the margins of wound were irregular and the
intestine was visible from the wound and there was bleeding from the wound;
It is also clear that on dissection of the dead body, in chest fracture of 10th rib on left side was found and in stomach semi-digested food was
present but no pellet or bullet could be traced from the body. After conducting post-mortem, the doctor sealed the clothes worn by the deceased
in a packet and sent to the relating police station through Constable. In his opinion, the deceased had died due to shock caused by extensive
bleeding because of firearm injury and the relating injury was anti- mortem and the nature of death was homicidal. The deceased had died within
12 to 24 hours from starting of his post-mortem. It is also the case of the appellants that Khunna had died due to firearm injury. Hence, it is
established by the medical evidence and other evidence available on record that the deceased Khunna suffered the homicidal death caused by a
shot of firearm.
Ramveer (PW-2) and his Uncle Bhagwant (PW- 3) have deposed that on 19th June, 1994, they had gone with Khunna to village
Chandrahans Ka Pura, as there was a programme of thirteenth day after the death of Chhotelal''s mother and he had invited persons of different
villages. After taking their meals in the row at the relating premises when they were returning with Khunna to their village, at some distance from
Chandrahans Ka Pura, by the side of a Neem tree, both the hidden appellants appeared and as Khunna reached near that tree, appellant Sarnam
uttered to another appellant Barelal that ''kill him'', thereafter appellant Barelal fired with his countrymade pistol, whose projectile hit Khunna''s left
side abdomen and bleeding was oozing, thereafter both the appellants fled away. After that, both of them tied a towel (cloth) over the wound and
leaving Bhagwant near to injured Khunna, Ramveer (PW-2) after running reached to nearest village Midhela and from village Midhela, he
telephonically intimated to the Police Station Ambah regarding the incident and within few time, police force reached on the spot. Ramveer (PW-2)
deposed that at the place of occurrence, his father Khunna had reported the matter to the police. Ramveer also deposed that SDOP A.K.Saxena
(PW-8) had reached on the spot, who has also recorded his father''s dying declaration (Ex.P/5), which was signed by him also. Ramveer deposed
that thereafter his father was taken to Ambah Hospital, but till they reached to the hospital, at about 8.30 pm his father died. Bhagwant (PW-3)
has substantially corroborated his nephew Ramveer''s evidence.
Mahipal Singh Yadav (PW-10) deposed that on the date of incident he was posted as TI, Ambah and after receiving telephonic intimation that
Khunna has been assaulted by a firearm and lying injured on spot, within few minutes with police force he reached to the scene of occurrence,
which was near the village Chandrahans Ka Pura. On the spot he scribed Dehati Nalishi (Ex.P/12) on the information given by injured Khunna.
Mahipal Singh deposed that after him, SDOP A.K.Saxena also reached on the scene of occurrence and as Khunna''s condition was critical,
SDOP A.K.Saxena recorded his dying declaration and thereafter Khunna was sent to Ambah Hospital.
Anil Kumar Saxena (PW-8), the-then SDOP Ambah deposed that on 19th June, 1994 at 7=15 pm when he was in his official vehicle, on
wireless he received information that a firing incident had occurred at village Chandrahans Ka Pura, thereafter he reached at about 7=45 pm at the
scene of occurrence and found that police force and some family members and village people were also present near to the seriously injured
Khunna. At that time, from left side of Khunna''s abdomen extensive bleeding was occurring, therefore looking to the possibility of his death, he
recorded Khunna''s dying declaration in the question and answer format. On his asking, injured replied his name, his father''s name, his village''s
name, his age and thereafter when Khunna was asked that by whom and how he has got injuries, Khunna replied that on instigation of Sarnam,
Balaiya fired a shot from his pistol, which caused injury over left side of his abdomen and from wound blood was oozing, and Khunna also
disclosed that due to previous enmity he was assaulted. Thereafter, thumb impression of the injured Khunna was taken on recorded dying
declaration (Ex.P/5) by him and on Ex.P/5 Ramveer''s signature and Bhagwant''s thumb impression were also taken as they were present at the
scene of occurrence.
Appearing learned counsel for the appellants vehemently argued that when so many village people were present, son and real brother of the
deceased Khunna were made witnesses of dying declaration (Ex. P/5) but Anil Kumar Saxena (PW-8), in his cross-examination has explained that
the people present at the scene of occurrence were not ready to become witness to it, hence Ramveer and Bhagwant were made witnesses to
dying declaration. There is no contradiction or inconsistency between Dehati Nalishi (Ex.P/12) recorded by Mahipal Singh and the
abovementioned dying declaration recorded by different police officer.
Appearing learned counsel for the appellants vehemently contended that eye-witnesses Ramveer (PW-2) and Bhagwant (PW-3) have clearly
deposed in their cross-examination that at the time of firing by the pistol, assailants and the victim Khunna were at the same level of the land,
whereas according to the evidence given by Autopsy Surgeon Dr.R.K. Arora (PW-4) in cross-examination, the direction of the caused wound by
the projectile of the firearm was from upward to downward. Therefore, it is argued that the evidence of eye-witnesses is contradicted by the
medical evidence. The size of solitary wound found on the dead body is recorded in the post-mortem report as 4cm x 2cm x up to abdominal
cavity. It is well established that opinion of doctor is merely an opinion evidence and due to such evidence, the evidence of otherwise reliable eye-
witnesses could not be discarded. As deposed by Autopsy Surgeon Dr. R.K.Arora (PW-4), no pellet or bullet was found in the dead body of the
deceased Khunna and there was no exit wound of the firearm, hence, the opinion given about the direction of bullet in the body appears only an
opinion and looking to this opinion only, the evidence of Ramveer (PW-2) and Bhagwant (PW-3) could not be discarded, as Ramveer and
Bhagwant clearly deposed that after the incident, Ramveer after running reached to village Midhela and from the house of Sarpanch Nathol Singh
telephonic intimation was given to Ambah Police. Reaching of TI, Ambah Police Station, Mahipal Singh Yadav (PW-10) and SDOP A.K.Saxena
(PW-8) at the scene of occurrence corroborates the evidence of both the eye-witnesses.
Appellants'' learned counsel contended that no Rojnamcha entry has been filed with the charge sheet regarding receiving of any telephonic
intimation at Police Station Ambah and about departure of TI Mahipal Singh from the police station. Much emphasis also has been placed on the
fact deposed by ASI Brij Mohan Tripathi (PW-7) in cross-examination that in the relating case diary, there was no entry regarding sending of copy
of the FIR from the police station to the concerning Magistrate in compliance of the provision of Section 157 of the CrPC.
It is true that relating rojnamcha entry has not been filed and proved with the charge sheet, but Mahipal Singh Yadav (PW-10) and Anil Kumar
Saxena (PW-8) have clearly deposed that they have received information regarding the incident and immediately they reached on the scene of
occurrence. Therefore, only due to absence of relating rojnamcha entry about receiving of telephonic information at Police Station Ambah the
evidence given by above mentioned prosecution witnesses could not be doubted.
Constable Suresh Chandra Sharma (PW-1) deposed that on 19th June, 1994 from the scene of occurrence, he had taken Dehati Nalishi
recorded by Mahipal Singh, TI and later on, on the same day produced it at Police Station Ambah, where FIR (Ex.P/1) was registered by ASI
Brijbhan Singh Tripathi (PW-7) on the basis of Dehati Nalishi and PW-7 has proved his signature on FIR (Ex.P/1).
Brijbhan Singh Tripathi (PW-7) deposed in his cross-examination that on same day, at 23=15 pm he had recorded FIR (Ex.D/3) lodged by
Balaiya @ Barelal (appellant No.1) and at that time Barelal was having an injury. Barelal was sent for his medical examination. At the time of
recording of Ex.D/3, Barelal alone had come to Police Station, but later on no charge sheet was filed on the basis of Ex.D/3 in the Court, as final
report (Khatma - Ex. D-5A) was sent by the police.
Head Constable Baburam (PW-9) deposed that on 19th June, 1994, he recorded marg intimation (Ex.P/11) at Police Station Ambah after
receiving intimation that injured Khunna had expired on reaching hospital. From marg report (Ex.P/11), it is clear that Khunna had expired at about
20=30 hrs. It would be significant to mention here that Dehati Nalishi (Ex.P/12) indicates that it was recorded at 19=30 hrs. (7.30 pm) at the
scene of occurrence by Mahipal Singh (PW-10) and in dying declaration (Ex.P/5) recorded by Anil Kumar Saxena (PW-8), its recording time is
mentioned as 19=50 hrs. (7.50 pm).
Much emphasis has been laid by learned counsel for the appellants that according to the evidence of Dr. A.D.Sharma (DW-1), on 19th June,
1994 at Civil Hospital, Ambah he found a penetrating wound on right side of Barelal''s abdomen, which was about 3.5 cm. above from the navel
having size of 0.8cm x 0.5cm x 2.5 cm. and at that time injured Barelal''s vest (baniyan) was also bloodstained and torn over the wound and in his
opinion, this injury was caused by any sharp edged and pointed object and for determination of nature of injury, Barelal was referred to Surgical
Specialist of District Hospital, Morena. Dr. A.D.Sharma (DW-1) has also identified injured Balaiya @ Barelal and also proved his MLC (Ex.D/4)
at the time of recording of his deposition.
It appears that in cross-examination of Ramveer (PW-2), suggestions on behalf of the present appellants were given that at the time of incident
his brother Narottam and one Ganpat had caused injuries to both the appellants and it was also suggested that actually Ganpat had fired a shot
from his pistol towards Balaiya @ Barelal, but that shot eventually hit his father Khunna. All these suggestions given by the defence counsel were
denied by Ramveer. Brijbhan Singh Tripathi (PW-7) has proved the FIR (Ex.D/3) lodged by appellant Barelal at 23=15 hrs on the date of incident
at the same police station. In Ex.D/3, it is mentioned by Barelal that on 19th June, 1994 at 6 pm Barelal was going with his brother Sarnam to
Chandrahans Ka Pura, he saw in the way some residents of village Arbipura, namely, Narottam, Khunna, Gayadin and Ramveer. He (Barelal) told
to Khunna that Khunna has murdered his (appellant''s) brother, thereafter, Khunna and his companions started abusing him, to which both the
appellants objected, then Narottam assaulted by his Gupti (a pointed and sharp edged weapon) on Barelal''s abdomen and blood was oozing out
from the wound and at that time when Sarnam tried to save Barelal, then Khunna assaulted by a stick over Sarnam''s head, which caused injury
and thereafter Ramveer and Gayadin gave beating to Barelal and Sarnam by fists and kicks. At that time, Gajraj had also come on spot.
It is significant to mention here that in the FIR (Ex. D/3) lodged by the appellant Barelal on the same day in the night at 11-15 pm, the presence
of Ganpat or role of Ganpat has not been mentioned. In Ex.D/3, there is no mention about Khunna''s receiving a firearm injury. Hence, it is clear
that the suggestions given to Ramveer (PW-2) on 22.4.1995 in his cross-examination by the defence counsel were imaginary and afterthought.
Much emphasis has been placed by the appellants'' learned counsel on the facts that spot map (Ex.P/8) was prepared by abovementioned TI
Mahipal Singh Yadav in the night of the date of incident, whereas according to the evidence of Mahipal Singh Yadav (PW-10), the spot map (Ex.
P/8) was prepared on the next day, i.e., 20th June, 1994. Ramveer (PW-2) has also deposed that in the night after the occurrence police has
seized bloodstained soil, separate simple soil, an empty cartridge of 12 bore and a piece of bullet from the spot and prepared seizure memos
(Ex.P/4 and P/3), and Ramveer (PW-2) has also proved his signatures on both these seizure memos (Ex.P/3 and P/4). It is clear according to the
evidence of the investigator and Ex.P/3 and P/4, that they were prepared on the date of incident, i.e., 19th June, 1994 in the night and also signed
by Ramveer. Hence, the only discrepancy about preparation of spot map''s timing could not influence the veracity of the evidence of Ramveer
(PW-2).
Appellants'' learned counsel vehemently contended that according to the evidence of both the eye-witnesses Ramveer (PW-2) and Bhagwant
(PW-3), both the appellants were caught hold by the village people just after firing of the shot by the appellant Barelal and as the assailants were
running through the fields where the crop of Arhar was standing, in running and falling Barelal had received relating injury. It has been argued by the
appellants'' counsel that according to the evidence of investigator Mahipal Singh (PW-10), Barelal was arrested on 24th June, 1994 vide arrest
memo (Ex.P/13) and appellant Sarnam was arrested on 28th June, 1994 vide arrest memo (Ex.P/14) and the late arrest of both the appellants
makes the evidence of abovementioned eye-witnesses totally doubtful. Though Barelal himself lodged the FIR at Police Station Ambah on the
same day at 23=15 pm and he got medically examined by the police, yet he was not arrested though crime was already registered against him, but
Investigating Officer Mahipal Singh (PW-10) has deposed in cross-examination (para 22) that on 19th June, 1994 he did not meet with appellant
Barelal, however in the same para he has explained that as the appellant Balaiya @ Barelal was having an injury and was hospitalised, hence, he
could not be arrested on 20th June,1994. Though this fact has been denied by the Investigating Officer that village people have caught hold both
the appellants just after the incident but in the light of the cases of Sanjeev Kumar Gupta and others vs. State of UP, (2015) 11 SCC 69; Manjit
Singh vs. State of Punjab (2013) 12 SCC 746; and State of Punjab vs. Gurmit Singh and others (AIR 1996 SC 1393) it is clear that some flaws
in the investigation are not fatal to the prosecution, when prosecution case is proved by medical evidence corroborated by testimonies of
prosecution''s eyewitnesses.
The evidence given by Investigating Officer Mahipal Singh Yadav (PW-10) regarding seizure of a countrymade pistol, at the instance of
appellant No.1 Barelal from his house is corroborated by relating panch witness Bhagwant (PW-3), who is a panch witness to the arrest memo
(Ex.P/13), memorandum (Ex.P/15) and seizure memo (Ex.P/16) regarding appellant No.1. Therefore, the fact of possessing a countrymade pistol
by appellant No.1 Barelal and its use in the incident is proved by the ocular evidence of eye-witnesses Ramveer (PW-2) and Bhagwant (PW-3)
and also by Dehati Nalishi (Ex.P/12) and dying declaration (Ex. P/5). Such Dehati Nalishi (Ex.P/12) and dying declaration (Ex.P/5) appear to be
totally trustworthy as dying declaration under Section 32 of the Evidence Act narrated by deceased Khunna, just before his death. Keshav Singh
Chouhan (PW-6) has proved sanction (Ex.P/11) given by concerning District Magistrate, Morena regarding prosecution of appellant No.1-
Barelal in reference to his prosecution for offences punishable under the Arms Act. Therefore, the total evidence produced by the prosecution
relating to charged offences against each appellant appears to be trustworthy.
It is significant to mention here that Investigating Officer Mahipal Singh Yadav (PW-10) also identified the seized pistol as Article ''A'' and
seized empty cartridge as Article ''B'' at the time of recording of his evidence before the trial Court. Though it appears from the record that the
seized pistol and empty cartridge were also sent to FSL, but report of relating ballistic expert has not been filed before the trial Court, however the
report of FSL Sagar regarding blood (Ex.P/17-A) and report of Seriologist Kolkatta (Ex.P/17) were filed before the trial Court.
Gajraj (DW-2) deposed that he had also taken meal in the same row with Khunna at Chhote''s house situated in village Chandrahans Ka Pura
and on the same day at 6 pm when he was returning to his village, he saw that in the way (Dagre) Nirota and Gayadin were abusing Barelal. Nirota
assaulted by his Gupti on abdomen of appellant Barelal and thereafter Ganpat climbed on a tree and fired a shot from his pistol aiming the appellant
Balaiya @ Barelal but the shot eventually caused injury to Khunna instead of appellant Balaiya and Khunna immediately died on the spot.
Thereafter, Barelal proceeded for reporting the matter to police station. Gajraj also deposed that at the time of reaching of the police at the scene
of occurrence, Khunna had expired, but he deposed in cross-examination that though in his presence police had reached at the scene of
occurrence, but he did not intimate the abovementioned incident to the police, as the police had not enquired from him. It is also significant to
mention here that Gajraj (DW-2) is also resident of village Barwai, where both the appellants are residing.
It is significant to mention here that, as previously observed, there is no mention of the fact about Ganpat''s firing a shot from his countrymade
pistol towards the appellant Barelal in Barelal''s abovementioned report (Ex.D/3). Similarly, no suggestion was given to Ramveer (PW-2) in his
cross-examination that after climbing on the tree, Ganpat had fired from his pistol. Ganpat''s name and his alleged role depicted by Gajraj (DW-2)
in his evidence are missing in Ex.D/3, the report lodged by Barelal on the date of incident. Hence, it is clear that the story of firing by Ganpat is a
work of imagination and such afterthought version could not disturb the veracity of prosecution''s eye-witnesses.
On this point, some important facts reveal from the record of the Committal Court. Sarnam was arrested on 28th June, 1994 by police vide
arrest memo (Ex.P/14) but it appears from the record of Committal Court (JMFC, Ambah) that on 27th June, 1994 an application was filed on
behalf of the appellant Sarnam Singh under Sections 167 and 157 of the CrPC to the effect that in the incident Barelal had received a spear injury
caused by Nirota and Sarnam also received an injury caused by sharp edged weapon over his head and at the time of incident Ramdas had fired
from his pistol towards Barelal. By this application, it was prayed by appellant-Sarnam Singh that Police Ambah be ordered for medical
examination and treatment of the appellant Sarnam Singh. In Barelal''s FIR (Ex.D/3), the name of Ramdas is missing. Though Barelal lodged the
report (Ex.D/3) and got medically examined but his real brother Sarnam did not come with his brother to the police station for his medical
examination. It appears from the record of the Committal Court that on 27th June, 1994 a typed application was also filed on behalf of appellant
Barelal, wherein it was mentioned that Nirota had caused a spear injury in Barelal''s abdomen and Ramdas had caused injury over the head of
Sarnam Singh by striking with a brick and Ramdas had fired towards Barelal with the intention to murder him. It is significant to mention here that
on 27th June, 1994 both these separate applications were filed before the Committal Court by appellants'' counsel Shri P.C.Saxena and regarding
these applications order sheets on 27th June, 1994 and 28th June, 1994 were recorded by the relating JMFC Ambah. It is also significant to
mention that both the appellants in their separate examination under Section 313 of the CrPC have not taken said defence expressly. Otherwise
also, the FIR (Ex.D/3) lodged by the appellant No.1-Balaiya @ Barelal impliedly affirms the presence of Khunna, his son Ramveer and both the
appellants at the scene of occurrence. It is clear that abovementioned FIR was not lodged by appellant No.1-Barelal promptly but it was lodged at
23=15 pm and such defence raised on behalf of the appellants does not appear to be probable as at one hand it is mentioned that Ganpat had fired
and in applications filed before the Committal Court it is stated that Ramdas had fired on Khunna, whereas the names of Ganpat and Ramdas are
totally missing in Ex.D/3. From the abovementioned applications filed by the learned counsel for the appellants before the Committal Court, the
incident deposed by Gajraj (DW-2) is also contradicted is rebuttable. Hence, the evidence of Gajraj (DW-2) is totally afterthought and appears to
be a work of high imagination.
In the case of Ramesh S/o Trimbak Rao Jadhav vs. State of MP [2004 (2) MPLJ 336], it has been observed by a Division Bench of this
Court that mere delay in dispatch of FIR to Magistrate itself is no ground to throw away the prosecution''s case, in its entirety where it could not be
established by the appellant that the FIR is the result of consultation and deliberations and was recorded much later than the date and time
mentioned in it. From the evidence of the prosecution witnesses, even from the evidence of Gajraj (DW-2), it is clear that just after the incident the
police had reached at the scene of occurrence. Though Chhotelal (Court Witness No.1), at whose house Ramveer, Bhagwant and Khunna had
gone for taking meals, had deposed that he was acquainted with Khunna but he did not know Bhagwant. He also deposed that he had not heard
the sound of firing by gun, but on the date of incident in the evening at 5=00 pm he heard ''Bhanwar'' outside his village then after running he
reached there and found that Khunna''s dead body was lying in a field, which was having an injury caused by bullet, but in cross-examination he
reiterated that he did not hear the sound of firing. Chhotelal was cross-examined by the AGP on behalf of the prosecution wherein he denied the
fact of giving police statement (Ex. C/1) to the investigator, but he deposed that when he reached at the scene of occurrence, he did not find any
member of Khunna''s family present and Khunna''s dead body alone was lying, however in the next breath, he deposed that at that time 50-100
persons were gathered, but he did not know as to when police reached on spot. The time of incident has been mentioned as 6=00 pm by the
appellant Barelal in his FIR (Ex.D/3). Hence, it is clear that Chhotelal was not telling truth and as he deposed that he did not hear the sound of gun
shot, therefore his evidence does not support the defence version also. It is significant to mention here that before the trial Court Chhotelal was
given up by the prosecution stating that he was won over by the accused persons and it is clear from the order sheets of the trial Court up to 26th
July, 1997 that the application under Section 311 of the CrPC, filed by the defence counsel for examination of Chhotelal, was opposed by the
prosecution on the ground that despite his presence on 15.12.1995 Chhotelal was given up by the prosecution as he was won over by the
defence. In such circumstances, regarding different timing and hearing the sound of alleged ''Bhanwar ''it is clear that Chhotelal was not deposing
truth before the trial Court. Hence, his evidence could not influence the veracity of the prosecution witnesses.
We are of the considered opinion that in the teeth of Dehati Nalishi (Ex.P/12) lodged by injured Khunna, which was proved by Mahipal Singh
Yadav (PW-10) and his dying declaration recorded by the the SDOP Anil Kumar Saxena (PW-8), the evidence of Ramveer (PW-2) and
Bhagwant (PW-3) appears to be totally believable. It is mentioned in Dehati Nalishi that the appellants were having enmity with Khunna. In
appellant Barelal''s FIR (Ex.D/3), it is mentioned that at the place of occurrence after seeing Khunna, he had told to Khunna that he has killed
appellant Barelal''s brother. Ramveer (PW-2) has deposed in cross-examination that about 3-4 months prior to the incident, dead body of
appellant''s brother Rajendra was found and it was heard that Rajendra had died due to electrocution. Hence, the alleged motive is also
established.
It is clear that the trial Court has properly and legally analyzed the evidence available on record and has not erred in convicting each appellant
for the charged offences against him.
Consequently, the appeal filed by the appellants is dismissed and each appellant''s conviction and sentence as recorded by the trial Court is
affirmed. From the order sheet dated 10th January, 2018 of this Court, it is clear that after recalling of the order regarding suspension of his jail
sentence, appellant No.2-Sarnam Singh has been sent to jail to serve out his remaining jail sentence. Let the result of this appeal be intimated to
appellant No.2-Sarnam Singh through relating Jail Superintendent. So far as the appellant No.1-Balaiya @ Barelal is concerned, the trial Court is
directed to take steps in accordance with law to arrest the appellant No.1-Balaiya @ Barelal for serving his remaining jail sentence including
issuance of arrest warrant against him.
A copy of the judgment along with the record be immediately sent back to the trial Court for information and compliance.