Gurpal Singh Ahluwalia, J.

1. By this common judgment, the Cr.A. Nos. 311/2010, 312/2010 and 3050/2018 filed by Virendra Sharma, Devendra Sharma and Kishan Sharma, respectively shall be decided.

2. Criminal Appeal Nos. 311/2010 and 312/2010 have been filed under Section 374 of Cr.P.C. against the judgment and sentence dated 5-3-2010 passed by 3rd Additional Sessions Judge, Shivpuri in S.T. No. 14/2009, whereas Cr.A. No. 3050/2018 has been filed under Section 374 of Cr.P.C. against the judgment and sentence dated 15-2-2018 passed by 3rd Additional Sessions Judge, Shivpuri in Sessions Trial No. 400014/2019 and convicted and sentenced the appellants for the following offences:

Appellant	Conviction Under Section	Sentence
Virendra Sharma	302 of IPC	Life Imprisonment and fine of Rs. 5,000/- in default 6 months R.I.
Devendra Sharma	302 of IPC	Life Imprisonment and fine of Rs. 5,000/- in default 6 months R.I.
Kishan Sharma	302/34 of IPC	Life Imprisonment and fine of Rs. 2,000/- in default 2 months R.I.

3. The incident is alleged to have taken place on 28-9-2008, whereas the appellant Virendra Sharma was arrested on 3-10-2008, Devendra Sharma was arrested on 1-4-2009 and Kishan Sharma was arrested on 16-1-2014. When, the appellant Virendra Sharma was being tried, then during the pendency of the Trial, the appellant Devendra Sharma was also arrested, therefore, the witnesses were re-summoned. However, Kishan Sharma was tried separately.

4. According to the prosecution case, the complainant Deenadayal (P.W. 7), who himself was in also an injured condition, came to the police station along with Rakesh (deceased), who was seriously injured. Deendayal (P.W. 7) lodged a report on 28-9-2008 at 10:40 A.M. to the effect, that at about 10 A.M., he was tying his calf at his well. At that time, the appellants came on a motor cycle. The appellant Devendra Sharma said that they have already dealt with Rakesh Doctor and on account of old enmity, he started assaulting him by means of lathi. The appellant Virendra Sharma instigated the appellant Kishan Sharma, to kill him and accordingly, the appellant Kishan Sharma fired a gun shot, but the complainant escaped unhurt. His mother came there in order to save him, therefore, all the appellants ran away. Thereafter, he went towards the culvert and found that the deceased Rakesh was lying in an injured condition. The complainant enquired from him. The injured/deceased Rakesh informed him that he was coming back after getting his beard shaved. At the bus stand, he was waylaid by the appellants and the appellant Kishan Sharma pointed his country made pistol on his chest and the appellants Devendra Sharma and Virendra Sharma have assaulted him by lathis as a result he has sustained multiple injuries on various parts of his body. Thereafter, the complainant took him to police station, whereas F.I.R. was lodged.

5. Thereafter, the injured Rakesh was sent for medical examination to Primary Health Centre, Bairad, Distt. Shivpuri, from where he was referred to Madhav Dispensary Lashkar, Gwalior. The deceased Rakesh, died on the way of Gwalior. The post-mortem of the deceased was got done. The Statements of the witnesses were recorded. The lathi was seized from appellant Virendra Sharma. The police after concluding the investigation, filed the charge sheet against the appellant Virendra Sharma for offence under Section 302,307,34,294/34 of I.P.C. The appellant Devendra Sharma was arrested during the pendency of the Trial, therefore, supplementary charge sheet was filed for offence under Sections 302,307,341,294/34 of I.P.C.

6. The Trial Court by order dated 14-1-2009, framed charge under Section 302 of I.P.C. against the appellant Virendra Sharma and by order dated 11-1-2010, framed charges under Sections 302,323 of I.P.C. against the appellant Devendra.

7. The appellants Virendra Sharma and Devendra Sharma abjured their guilt.

8. The prosecution examined Dr. A.K. More (P.W. 1), Sharda Bai (P.W. 2), Krishna Sharma (P.W. 3), Devendra Upadhyaya (P.W. 4), Shiv Kumar (P.W. 5), Chandu Sharma (P.W. 6), Dindayal Sharma (P.W. 7), Asha Ram (P.W. 8), Jagdish Joshi (P.W. 9), Dr. V. S. Tomar (P.W. 10), Ranveer Singh Yadav (P.W. 11), Ramesh Chand (P.W. 12), Udaybhan Singh Yadav (P.W. 13), Govind Singh (P.W. 14), Shiv Avatar (P.W. 15), R.P. Sharma (P.W. 16), and P.M. Jain (P.W. 17).

9. The appellants Virendra Sharma and Devendra Sharma examined Lalaram (D.W. 1), Manoj (D.W. 2) and Govind Singh (D.W. 3).

10. By order dated 21-11-2015, the Trial Court framed charges under Sections 307,302/34 of I.P.C. against the appellant Kishan Sharma.

11. The appellant Kishan Sharma abjured his guilt and pleaded not guilty.

12. The prosecution examined Dr. A.K. More (P.W. 1), Sharda Bai (P.W. 2), Krishna Sharma (P.W. 3), Devendra Upadhyaya (P.W. 4), Chandu Sharma (P.W. 6), Jagdish Joshi (P.W. 9), Dr. V.S. Tomar (P.W. 10), Ramesh Chand (P.W. 12), Udaybhan Singh Yadav (P.W. 13), and Shiv Avtar (P.W. 15).

13. The appellant Kishan Sharma, did not examine any witness in his defence.

14. The Trial Court by impugned Judgment and sentence dated 5-3-2010, acquitted the appellant Devendra Sharma for offence under Section 323 of I.P.C. and convicted the appellants Devendra Sharma and Virendra Sharma for offence under Section 302 of I.P.C. and by impugned judgment and sentence dated 15-2-2018, acquitted the appellant Kishan Sharma for offence under Section 307 of I.P.C. and convicted him for offence under Section 302/34 of I.P.C. and sentenced him to undergo the Life Imprisonment with fine.

15. Challenging the judgment and sentences passed by the Court below, it is submitted by the Counsel for the appellants that Krishna Sharma (P.W. 3) and Devendra Upadhayaya (P.W. 4) are not trustworthy eye witnesses. In fact they are related and planted witnesses. The deceased Rakesh was not in a position to speak, therefore, the oral dying declaration made to Deendayal Sharma (P.W. 7) as well as Krishna Sharma (P.W. 3) and Devenda Upadhyaya (P.W. 4) is untrustworthy. The Trial Court itself has disbelieved the story of Deendayal Sharma (P.W. 7) with regard assault allegedly made on him. The Trial Court has also disbelieved Chandu Sharma (P.W. 6) in the Trial of the appellants Virendra Sharma and Devendra, whereas in the Trial of the appellant Kishan Sharma, Chandu (P.W. 6) and Deendayal Sharma (P.W. 7) have not supported the prosecution story.

16. Per contra, the Counsel for the State has supported the prosecution story.

17. Heard the learned Counsel for the parties.

18. So far as the Trial of Virendra Sharma and Devendra Sharma is concerned, the Trial Court has disbelieved Chandu Sharma (P.W. 6) and has convicted the appellants on the basis of evidence of Krishna Sharma (P.W. 3) and Devendra Upadhyaya (P.W. 4) who are the eyewitnesses, as well as on the evidence of Deendayal Sharma (P.W. 7) who is the witness of oral dying declaration.

19. Whereas the appellant Kishan Sharma has been convicted on the evidence of Krishna Sharma (P.W. 3) and Devendra Upadhyaya (P.W. 4), whereas Chandu Sharma (P.W. 6) and Deendayal Sharma (P.W. 7) turned hostile and did not support the prosecution case.

20. Before adverting to the merits of the case, this Court think it apposite to consider as to whether the death of Rakesh Sharma was homicidal in nature or not

21. Dr. V.S. Tomar (P.W. 10) has conducted the post-mortem of the dead body of Rakesh and found the following injuries on his body:

(i) Abrasion present over the 2 cm below the right eye and anterior to the right ear measurement is 6 x 2.5 cm placed transversely.

(ii) Abrasion over the chin 2 x 1 cm placed transversely.

(iii) Abrasion present over the right angle of mandible 3 x 2.5 cms placed transversely.

(iv) Abrasion present over the right cheek 3 x 1 cm placed transversely.

(v) The Red Rail Pattern type contusion present over the left shoulder 5.5 each having transversely placed space of 2 cm placed transversely.

(vi) Two Red Rail Pattern contusions present over the left shoulder as shown in diagram 6 cm x 5 cm each having intervening space of 2 cms placed obliquely backward and laterally.

(vii) Two Red Rail Pattern contusion present over the left shoulder 5 cm x 0.4 cm each with intervening space of 1.5 cm placed obliquely.

(viii) Two Red contusions rail pattern left scapular region 8 x 0.4 cm each having intervening space of 2 cm placed vertically.

(ix) Two red contusions rail pattern over the left sub-scapular region 9 cm x 0.5 cm each having intervening space of 2 cm placed obliquely downward.

(x) Two Red contusions Rail Pattern over the right scapular region 8.5 x 0.4 cm each with intervening space of 2 cm placed obliquely downward.

(xi) Two Red Contusions Rail Pattern 3 cm below the injury no. 10 measuring 9 cm x 0.4 cm each having intervening space of 1.5 cm obliquely.

(xii) Two Red contusions Rail Pattern over the lateral part of right scapular region 11 x 0.4 cm with intervening space of 1.5 cm vertically.

(xiii) Two Red Contusions Rail Pattern right scapular region 1 cm below the injury no. 11 10 cm x 0.4 cm each.

(xiv) Two Red Contusions over right side of back of abdomen 3.5 cm right to medial 11 x 0.4 cm with intervening space of 2 cm vertically.

(xv) Two Red Contusions Rail Pattern over right side of back of abdomen on lateral part 9 x 0.4 cm with intervening space of 1.5 cm placed transversely.

(xvi) Red Contusion over the upper part of left buttock.

(xvii) Red Contusion over the upper part of right buttock 7.5 x 3 cm transversely.

(xviii) Red Contusion over the middle of right buttock 8 x 4 cm place obliquely downward.

(xix) Red Contusions two rail pattern over the lateral aspect of lower part of right arm 5 x 0.4 cm with intervening space of 2 cm placed transversely below fracture of lower end of right humerus bone.

(xx) Two Red Contusions Rail Pattern present over the back of the right knee 7.5 x 0.4 cm with intervening space of 1.5 cm placed transversely.

(xxi) Red Contusion over the medial aspect of left knee 4 x 3 cm placed transversely.

(xxii) Red Contusion over the anterio lateral aspect of right ankle 6.5 x 3 cm placed transversely swelling present and dislocation of right ankle present.

(xxiii) Abrasion present over the anterio medial aspect of lower part of right leg 3 x 2 cm placed transversely.

(xxiv) Red Contusion over the dorsal aspect of left hand 5 x 3 cm transversely fracture of 2nd and 3rd metacarpal bone.

(xxv) Abrasion present over the little finger of left hand 2 x 0.5 cm longitudinally.

(xxvi) Abrasion present over the lateral aspect of left forearm in upper part 4 x 2 cm placed transversely.

(xxvii) Two Red Contusions Rail Pattern present over the anterio lateral aspect of right side of chest 8 x 0.4 cm with intervening space of 1.5 cm placed transversely.

(xxviii) Two Red Contusions Rail Pattern present over anterio lateral right side of chest 35 cm below the injury no. 20 measuring 7.5 x 0.4 cm each having intervening space of 1.5 cm.

(xxix) Two Red Contusions Rail Pattern over the left side of chest anterior 8 cm x 0.4 cm each having intervening space of 1.5 cm placed transversely.

(xxx) Two Red Contusion Rail Pattern over the left side of chest anterio lateral aspect 7 x0.40 each with intervening space of 1.5 cm placed obliquely downward.

(xxxi) Red Contusion over the middle of Parietal region 6.5 cm x 2.5 cm placed anterior posteriorly.

All injuries were fresh and ante-mortem in nature. Injuries no. 1, 2, 3, 4, 17, 18, 21, 22, 23, 24, 25, 28 and 30 were caused by hard and blunt object and other rail pattern contusions were caused by lathi and can be hard object or Iron rod etc.

Injury to liver, both lungs and brain was fatal to life in ordinary course of nature.

Opinion: Death was caused by cardio respiratory failure due to multiple injuries to liver, lungs, brain and internal hemorrhage. Duration of death within 3 to 24 hours. Homicidal in nature.

The Post-mortem report is Ex. P. 12. This witness was cross-examined.

22. In cross-examination by appellant Virendra Sharma, this witness has stated that he had seen the dead body for the first time on 28-9-2008 at 4:40 P.M. Rigor Mortis was present. He had not found any digested or semi digested food. He further stated that rigor mortis starts after 3 hours of death. He further stated that chemical changes start immediately after the death. He further stated that if there is no change in the temperature, then the rigor mortis may remain for a period of 30 hours. He stated that rigor mortis was present over the entire dead body of Rakesh, therefore, the death had taken place between 3 to 24 hours of post-mortem. He denied that rigor mortis starts after 18 hours of death. He further admitted that the deceased had sustained injuries from various types of weapons.

23. In cross-examination by the appellant Devendra, he submitted that rigor mortis was present over all body and denied that rigor mortis starts between 18-20 hours.

24. In cross-examination by the appellant Kishan Sharma, this witness admitted that the injuries found on head, liver and lungs were dangerous and the remaining injuries were not dangerous to life in ordinary course of nature. There was a fracture of Humerus and metacarpal bone without any corresponding lacerated wound. Intervening space between means space two rail pattern contusions. He further admitted that the weapons were not shown by the police. He denied that if somebody slips on account of fast driving, then he may suffer laceration of lung on account of fracture of rib. He on his own clarified that in case of driving of motor cycle, no one would suffer injury which was suffered by the deceased. He denied that he does not have any experience of conducting post-mortem.

25. Thus, from the cross-examination of Dr. V.S. Tomar, it is clear that the deceased had suffered multiple injuries which were caused by hard and blunt objects. Accordingly, it is held that the death of deceased Rakesh was homicidal in nature.

26. Now the next question for consideration is that whether the appellants are the authors of injuries or not.

27. As already pointed out, Virendra Sharma was tried first and during the pendency of Trial, the appellant Devendra Sharma was arrested and the witnesses were recalled and were once again cross-examined on behalf of Devendra Sharma. Similarly, Kishan Sharma was arrested at a later stage and the witnesses were examined afresh. Accordingly, in the light of judgment dated 29-10-2021 passed by the Supreme Court in the case of A.T. Mydeen and another Vs. The Asstt. Commissioner Customs Department, in Cr.A. No. 1306 of 2021, the evidence against each and every appellant would be considered separately in the light of deposition of witnesses in the trial of concerning appellants.

Appellants Virendra Sharma and Devendra Sharma

28. Krishna Sharma (P.W. 3) has stated that on 28-9-2008, She and her husband were to go to Shivpuri in order to attend a function in the family of her relatives. However, her husband asked her to go to Shivpuri along with her brother and accordingly, her husband went to Goverdhan. Thereafter, this witness and her brother left for Shivpuri on a motor cycle. As soon as they reached near the bus stand, they saw that the appellant Kishan Sharma was standing with a country made pistol whereas the appellants Virendra Sharma and Devendra Sharma were assaulting her husband by lathis. After noticing these witnesses, the assailants went towards village. This witness and her brother, picked up her husband, who informed that due to old enmity, he has been assaulted by Virendra Sharma, Devendra Sharma and Kishan Sharma. Her husband also informed her that Chandu had come to save him, but Kishan Sharma, forced him to leave the place on the gun point. Thereafter, this witness and her brother started crying but no one came on the spot. After 15-20 minutes, Chandu and Deendayal reached on the spot. Deendayal also informed her, that he too was waylaid by the three assailants, and was assaulted by lathis. Thereafter, Chandu and Deendayal took her husband Rakesh to police station on their motor cycle, whereas this witness came back to her house. Thereafter, her husband was taken to Gwalior. She also accompanied him. However, she had lost her metal balance, therefore, She does not know as to what transpired thereafter. Her husband has died.

29. This witness was cross-examined by Virendra Sharma whereas Devendra Sharma and Kishan Sharma were absconding. In cross-examination by Virendra Sharma, it was stated by this witness that Deendayal is not on visiting terms but She used to talk to him because is the resident of same village. Chandu is the brother of Deendayal. Sharda bai is the mother of Deendayal and She used to come to her house. She further stated that her family has old enmity with the appellants on the election issue. Her parental home is also situated in village Kakrauwa. Her brother also resides near to her matrimonial house. The deceased was in the house till 8:30 in the morning. Thereafter, he went to Goverdhan for shaving purposes. Her husband had gone all alone. She was going to the house of her Bua Triveni in Shivpuri, to attend Shradh. Since, the deceased had some work, therefore, he had instructed this witness to go along with her brother. Her husband had also informed her that he will join them at a later stage. The place of incident is about 1-1.5 Kms. from her house. She had seen Virendra Sharma and Devendra Sharma assaulting the deceased from a distance of 50 meters, although She could not identify them from the said distance. However, after noticing this witness, all of them ran away. She denied the suggestion that she had not seen the faces of the assailants. She further stated that the incident took place at an open space. Her husband was not unconscious and was shouting. As this witness was busy in taking care of her husband, therefore, did not ask her brother to catch hold the appellants. Her husband was not in a position to take care of himself and being a lady, She alone was not in a position to look after him, therefore, she did not ask her brother or husband to lodge the F.I.R. The police station is 1 km away from the place of incident. Although this witness was inclined to lodge the F.I.R., but since, nobody was there to look after her husband and there was no vehicle for taking her husband, therefore, the F.I.R. could not be lodged by this witness. She denied that her husband has been killed by some unknown dacoits. Chandu and Deendayal had reached after 30 minutes. Her husband was not unconscious at the time of arrival of Chandu and Deendayal. She was not able to say that who was driving the motor cycle, when Chandu and Deendayal, took her husband to the police station. She further stated that She did not go to police station to lodge the F.I.R. and her brother also did not go to the police station as he stayed with her. Her statement was recorded after 4-5 days. Since, her husband had already disclosed the entire incident to the police, therefore, She did not go to the police station. She denied that the deceased had fallen unconscious on the spot itself. She denied that Deendayal had taken the deceased in an unconscious condition. She denied the suggestion that She did not go to Gwalior along with her injured husband. She denied that She has falsely implicated the appellants.

30. This witness was subsequently cross-examined by appellant Devendra Sharma, however, it is submitted by the Counsel for the appellant, that the cross-examination of this witness by Devendra Sharma is also on the same line and there is no major differences in the answers given during the cross-examination by Virendra Sharma and by Devendra Sharma.

31. Devendra Upadhayay (P.W. 4) has stated that the appellant Virendra Sharma and absconding accused Devendra Sharma and Kishan Sharma are known to him. The incident took place on 28-9-2008. It was around 9-9:30 A.M. He was going along with her sister to Shivpuri to attend Pata ritual. The movement they reached near the culvert, they saw that the appellants Virendra Sharma and Devendra Sharma were assaulting the deceased Rakesh by lathis and the appellant Kishan Sharma was standing along with a country made pistol. The movement they reached near the spot, all the three appellants ran away. The deceased Rakesh Sharma also informed him that he has been assaulted by Virendra Sharma, Devendra Sharma and Kishan Sharma. The deceased Rakesh Sharma had also informed that the appellant Kishan Sharma had pointed his country made pistol on his chest. Thereafter, he started taking care of the brother, and his sister fell unconscious. They also raised an alarm, but nobody came on the spot. After 20-25, Chandu and Deendayal came on the spot. Deendayal (P.W. 4) also informed him that he too was beaten by the appellants at his well and a pistol was also shown to him. Thereafter, Deendayal and Chandu took the injured Rakesh on their motor cycle, whereas he stayed back at the culvert in order to look after his sister. After 10-15 minutes, some ladies of the village also came on the spot, thereafter, he too went to police station after leaving his sister. The injured had given his statements in the police station. Thereafter, he again came back to the culvert, but his sister was not there and therefore, he came back to his house. Somebody informed that the injured has been referred to Gwalior by P.H.C., Bairad, therefore, he and his sister also went to Gwalior along with the injured, however, he died on the way. This witness was cross-examined by the appellant Virendra Sharma.

32. In cross-examination, this witness has stated that he is residing in village Kakrauwa since his birth and his brother-in-law is also the resident of same village. He admitted that Chandu and Deendayal are on visiting terms. A written invitation was received from his Bua Triveni who is the resident of Adarsh Nagar. Although his sister and brother-in-law were to go, but due to some work, he instructed the sister of this witness to go along with this witness. He further admitted that the place of incident is a bus stand and is a public way. There is a waiting room on the spot, where the passengers also wait for the buses. The spot is at a distance of 50 meters from the bus stand. He admitted that the spot was clearly visible from the bus stand. The appellant Virendra Sharma and Devendra Sharma had run away after seeing the witnesses. This witness has claimed that he had seen the appellants Virendra Sharma and Devendra Sharma assaulting his brother-in-law. Nobody had come on the spot after hearing their screams. His statement was recorded after 4-5 days of the incident. Since, he was looking after his sister, therefore, he did not give his statement at the police station. He and his sister had gone to perform last rites like submergence of ashes, etc., therefore, they had given their statements only after they came back. He did not went to lodge the report, as nobody was on the spot to look after his brother-in-law and sister. Since, the police had not enquired like the Counsel, therefore, he did not disclose this fact in his police statement. The incident had taken place on the culvert itself. The incident took place on the road, which is a public way used by the villagers. He denied that the assailants had covered their faces. He denied that he and his sister were not going to Shivpuri. He denied that he and his sister did not go to the place of incident. He specifically stated that his brother-in-law was conscious and was speaking.

33. This witness was also cross-examined by the Devendra Sharma but it is submitted by the Counsel for the appellants that the cross-examination by the appellant Devendra Sharma is also on the same lines and there is no material difference between the cross-examination by Virendra Sharma and Devendra Sharma.

34. Chandu (P.W. 6) has been disbelieved by the Trial Court in para 31 of the judgment.

35. Deendayal (P.W. 7) has stated that the appellant Virendra Sharma is known to him. He and his mother Shardabai were on his well. It was 9:30 in the morning. At that time, the appellants Virendra Sharma, Devendra Sharma and Kishan Sharma came on a motor cycle. The appellant Virendra Sharma and Devendra Sharma were having lathis whereas Kishan Sharma was having country made pistol. They stopped the motor cycle and said that they have dealt with Rakesh and now it is the turn of this witness. The appellant Devendra Sharma started assaulting him. When he tried to save himself, then the appellant Virendra Sharma instigated Kishan Sharma to fire at him. At that time, his mother also came on the spot and shouted that they should not beat him. At that time, the appellant Kishan Sharma fired at him but he succeeded in escaping unhurt. The appellants ran away. Thereafter, he and his mother started for lodging the report. He met with his brother Chandu at the Square. When he informed him about the assault made on him, then Chandu also informed about the assault made on the deceased. Thereafter, they asked their mother to go back to the house and went to the spot and found that the deceased Rakesh was lying on the ground in an injured condition. Krishna (P.W. 4) and Devendra (P.W. 4) were present on the spot and were trying to lift the injured. The deceased also informed this witness that he has been assaulted by Virendra Sharma and Devendra Sharma by lathi whereas Kishan Sharma was showing Country made pistol. Thereafter, this witness along with Chandu and injured Rakesh went to police station and Devendra (P.W. 4) was left at the spot for looking after his sister. He lodged the report, Ex. P.7. The statement of Rakesh was also recorded by the S.H.O. Thereafter, they went to P.H.C. Bairad where they were informed by the Doctor that the condition of the injured is poor, and he should be taken to Gwalior, however, Rakesh died on the way. This witness was also medically examined. He was cross-examined by Virendra Sharma.

36. In cross-examination, this witness has stated that his house is situated 20 houses after the house of the deceased. He is not on talking terms with the appellants for the last 2-3 years, as he never listens to the appellants. The house of deceased is at a distance of 1 km from the place of incident. He was at his well at the time of assault on the deceased. He was tying his calf whereas his mother was preparing meals. When he reached on the spot, Devendra (P.W. 4) and his sister Krishna (P.W. 3) were on the spot. He denied that the deceased Rakesh was unconscious. This witness specifically stated that he had a talk with the deceased. He admitted that he had mentioned in his report, that since, the condition of Rakesh is serious therefore, he is lodging the report. He denied that the police had not recorded the statement of deceased Rakesh.

37. This witness was again cross-examined by the appellant Devendra, but it is submitted by the Counsel for the appellants, that the cross-examination is on the similar lines and there is no material difference.

38. Sharda bai (P.W. 2) has narrated about the incident, which took place with Deendayal. Since, the appellant Devendra Sharma has been acquitted for the charge under Section 323 of I.P.C., therefore, her evidence is not being considered in detail.

Appellant Kishan Sharma

39. Krishna Sharma (P.W. 3) repeated the same allegations in her examination-in-chief. In cross-examination by Appellant Kishan Sharma, She stated that there is one shop near the bus stand. Buses going to Shivpuri, Pohari have a halt in the bus stand. She denied that there are number of shops and houses near the bus stand. Goverdhan is 2 Km away from her house. Her husband was Doctor by profession. She denied that her husband had not gone to Goverdhan for shaving. There was a Pata rituals in the house of her relative in Shivpuri, but could not disclose the name of said relative. She admitted that Pata ritual is observed after three years of death. She further admitted that written invitations are distributed. She denied that She was not going to attend Pata ritual. Her parental home is situated quite nearer to her matrimonial house. She was not in a position to state as to whether the police had seized the motor cycle of her husband or not She further stated that now the motor cycle has been sold. It was sold after 3-4 months of incident. She denied that She was not going along with her brother. She stated that it is incorrect to say, that her husband used to open his clinic at 11-12, but clarified on her own, that since, it is a matter of village, therefore, her husband used to open the shop only when any patient come to him. This witness has no enmity with the appellant Kishan Sharma. She denied that when She reached on the spot, nobody was there. But on her own, She clarified that the appellant Kishan Sharma was standing there. She specifically stated that Devendra Sharma and Virendra Sharma were beating her husband. She admitted that She and her brother did not take her husband to the hospital. She further admitted that neither this witness nor her brother, took her husband to Bairad P.H.C. Her brother had gone back to his house after coming back from the spot. She denied that her husband was unconscious. She claimed that She had stated in her police statement, Ex. D.1, that the appellant Kishan Sharma was standing along with a country made pistol, but could not explain as to why this fact is not mentioned in her police statement. She denied that She did not have any talk with Chandu and Deendayal. Her husband was conscious when he had a talk with him.

40. Devendra Upadhayay (P.W. 4), in his examination-in-chief, reiterated the same allegations. In cross-examination, this witness admitted that the deceased Rakesh is the brother-in-law of this witness. He stated that he had started crying after the incident, and all the neighbours had come to know about the incident. He stayed back in the house of his sister for the entire day. He did not go for the treatment of his brother-in-law. He did not go to Gwalior. His brother-in-law had died on the day of incident itself. However, expressed his ignorance as to when he died. He stated that even after the dead body was brought to the house, he did not inform the police that he had seen the incident. The statements were recorded after 5-6 days. He admitted that he on his own did not approach the police to give his statement. He denied that Chandu and Deendayal had not come. He denied that he did not have any talk with Chandu and Deendayal. He denied that Deendayal and Chandu had not gone with the injured to lodge the report. He denied that the appellant Kishan Sharma had not beaten the deceased, but clarified on his own that he was standing with a country made pistol. He denied that the deceased had become unconscious and was not speaking. He denied that various barbers have their houses in village Kakrauwa. He admitted that the deceased had not gone to Goverdhan in his presence. He did not give the written invitation of Pata to the police. He denied that he has given a false statement in order to falsely implicate the appellant Kishan Sharma.

41. Chandu (P.W. 6) and Deendayal (P.W. 7) have turned hostile and did not support the prosecution story qua the appellant Kishan Sharma.

42. Sharda bai (P.W. 2) also did not support the prosecution case qua the appellant Kishan Sharma.

43. It is submitted by the Counsel for the appellants, that since, the prosecution has not examined the witness, in whose house, the rituals of Pata were to be preformed and has also not filed the copy of the written invitation, therefore, the prosecution has failed to prove that Krishna (P.W. 3) and Devendra (P.W. 4) had any occasion to go to Shivpuri, therefore, their presence on the spot is doubtful. Further, the presence of Krishna (P.W. 3) and Devendra (P.W. 4) on the spot is not mentioned in the F.I.R.

44. Considered the submissions.

45. F.I.R. is not an encyclopaedia. It is well established principle of law that the evidence of a witness cannot be discarded only on the ground that the name of the said eye witness is not mentioned in the F.I.R. The Supreme Court in the case of V.K. Mishra v. State of Uttarakhand, reported in (2015) 9 SCC 588 [LQ/SC/2015/937] has held as under:

"13. FIR is not meant to be an encyclopaedia nor is it expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case are stated in the FIR .........."

46. The Supreme Court in the case of Kunwarpal v. State of Uttarakhand, reported in (2014) 16 SCC 560 [LQ/SC/2014/1319] has held as under:

"12. It cannot be denied that the occurrence took place during harvest season and PW 3 Atmaram was harvesting the crop of wheat in his land with the help of PW 4 Chaman Lal. Their presence near the occurrence place is natural and they cannot be termed as chance witnesses as contended by the appellants. It is true that their names are not found mentioned in the FIR. As already seen, the complaint was lodged by PW 1 Gajendra Singh on the basis of information furnished by PW 2 Suggan about the occurrence. There is no requirement of law for mentioning the names of all the witnesses in the FIR, the object of which is only to set the criminal law in motion (Nirpal Singh v. State of Haryana, Bhagwan Singh v. State of M.P. and Raj Kishore Jha v. State of Bihar). In this context it is relevant to point out that the statements of all witnesses were recorded by the investigation officer in the night of the occurrence day itself. Non-mention of the names of PW 3 Atmaram and PW 4 Chaman Lal in the FIR does not affect the prosecution case as rightly held by the courts below."

47. In the present case, admittedly, the condition of Rakesh was serious and he died on his way to Gwalior. It has also come on record, that no treatment was given to him in P.H.C. Bairad as his condition was serious. Thus, if Deendayal lodged the report, Ex. P.7 in a haste, then it is held that non-mentioning of names of Krishna (P.W. 3) and Devendra (P.W. 4) in the F.I.R., Ex. P.7 would not be sufficient to discard their evidence or to doubt their presence on the spot.

48. Devendra (P.W. 4) has admitted that he had not given the copy of written invitation of Pata to the police. The incident had taken place at a distance of 1-1.5 kms away from the house of the deceased and the spot is in the village itself. Further, the appellants could not succeed in raising any serious doubt regarding their stand that they were going to Shivpuri to attend Pata Rituals. Further, these two witnesses have seen the incident from a distance, and when they reached near the place of incident, then the appellants ran away. The spot is an open road having a small bus stand at a nearby place.

49. It is submitted by the Counsel for the appellants that since, the spot is situated quite nearer to the bus stand, therefore, there should have been some passengers waiting for their bus, but none of them have been cited as witnesses.

50. Considered the submissions made by the Counsel for the appellants.

51. Undisputedly, the incident took place in the village. Very few buses go to the villages and they have their specific timing. Every villager knows about the timing of arrival of the bus and therefore, they are not supposed to wait for the bus for hours together at the waiting room. No question was put to any of the witness, as to whether any bus had arrived during the incident or not The bus stand of a village cannot be equated with ISBT (Inter State Bus Terminal).

52. Furthermore, it is well established principle of law that now a days, generally the independent witnesses do not come forward to depose, specifically when the accused persons have criminal history. File "B" of the Trial Court record contains the criminal history of the appellants. As per the record, the appellant Devendra Sharma had 11 criminal cases to his credit, whereas the appellant Virendra Sharma had 3 criminal cases to his credit. Similarly, Kishan Sharma had 3 criminal cases to his credit. Furthermore, the order sheets of these appeals indicate, that the appellant Virendra Sharma committed four more offences after his release on bail, and accordingly, his bail was cancelled by order dated 12-3-2020. Similarly, the appellant Devendra Sharma committed five more offences after his release and accordingly by order dated 12-3-2020, his bail bonds were also cancelled. Thus, it is clear that the appellants had criminal antecedents, and under these circumstances, if the independent witnesses decided to stay away from the case, then it would not make the evidence of wife and brother of the deceased vulnerable. However, it is submitted by the Counsel for the appellants, that since, the witnesses have accepted their enmity with the appellants, therefore, they had every occasion to falsely implicate the appellants.

53. Considered the submissions made by the Counsel for the appellants.

54. Enmity is a double edged weapon. On one hand, if it provides a motive to falsely implicate a person, then at the same time, it also provides a motive to commit offence.

55. The Supreme Court in the case of Kunwarpal v. State of Uttarakhand, reported in (2014) 16 SCC 560 [LQ/SC/2014/1319] has held as under:

"16. According to the complainant there was litigation between them and the accused persons leading to enmity. PW 3 Atmaram has also stated that there was litigation between them and it culminated in the occurrence. Animosity is a double-edged sword. While it can be a basis for false implication, it can also be a basis for the crime (Ruli Ram v. State of Haryana and State of Punjab v. Sucha Singh). In the instant case there is no foundation established for the plea of false implication advanced by the accused and on the other hand evidence shows that enmity has led to the occurrence. The conviction and sentence imposed on the appellants is based on proper appreciation of evidence on record and does not call for any interference."

56. The Supreme Court in the case of Ruli Ram v. State of Haryana, reported in (2002) 7 SCC 691 [LQ/SC/2002/972] has held as under:

"7. So far as the acceptability of evidence is concerned, the trial court and the High Court analysed the evidence in detail and have held it to be plausible and acceptable, and that it suffers from no infirmity. It has been noted that in a faction-ridden village, independent witnesses, as submitted by the learned counsel for the accused-appellant, are difficult to get. Enmity is a double-edged sword. While it can be a basis for false implication, it can also be a basis for the crime. The court has to weigh the evidence carefully and if after doing so, holds the evidence to be acceptable, the accused cannot take the plea that it should not be acted upon. When a plea of false implication is advanced by the accused, foundation for the same has to be established. We do not find any reason to differ from the courts below on the factual aspects."

57. Why the wife of the deceased namely Krishna (P.W. 3) and her brother Devendra (P.W. 4) would spare the original accused, in order to falsely implicate the appellants, specifically when the appellants have criminal back ground. Where the accused persons have criminal antecedents, then nobody would like to falsely depose against them, thereby creating further animosity.

58. It is next contended by the Counsel for the appellants, that the police statements of Krishna Sharma (P.W. 3) and Devendra Upadhyaya (P.W. 4) were recorded after 4 days of incident, therefore, delayed recording of their statements creates a doubt on the veracity of their evidence.

59. Considered the submissions made by the Counsel for the appellants.

60. Devendra Upadhyaya (P.W. 4) has stated that they had gone for submergence of ashes of Rakesh and their statements were recorded immediately after they returned back. This explanation given by Devendra Upadhyaya (P.W. 4) cannot be said to unreasonable. One can imagine the mental condition of the wife of a deceased and if She had gone for submerging the ashes of her husband, then by no stretch of imagination, it can be said that the recording of police statements after 4 days of incident was belated.

61. No other argument is advanced by the Counsel for the appellants.

62. After appreciation of evidence, this Court is of the considered opinion, that Krishna Sharma (P.W. 3) and Devendra Upadhyaya (P.W. 4) are the reliable eye-witnesses and apart from that, the deceased Rakesh had also made an oral dying declaration to these witnesses as well as to Deendayal (P.W. 7). Although Deendayal (P.W. 7) has turned hostile so far as the appellant Kishan Sharma is concerned, but Krishna Sharma (P.W. 3) and Devendra Upadhayaya (P.W. 4) have specifically deposed against Kishan Sharma.

63. Accordingly, the conviction of appellant Virendra Sharma and Devendra Sharma for offence under Section 302 of I.P.C. and conviction of Kishan Sharma for offence under Section 302/34 of I.P.C. is hereby affirmed.

64. Ex Consequenti, the judgment and sentence dated 5-3-2010 passed by 3rd Additional Sessions Judge, Shivpuri in S.T. No. 14/2009, as well as the judgment and sentence dated 15-2-2018 passed by 3rd Additional Sessions Judge, Shivpuri in Sessions Trial No. 400014/2019 are hereby Upheld.

65. The appellants Virendra Sharma and Devendra Sharma are in jail, they shall undergo the remaining jail sentence.

66. The appellant Kishan Sharma is on bail. His bail bonds are cancelled and he is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.

67. A copy of this judgment be immediately provided to the appellants, free of cost.

68. The record of the Trial Court be returned back along with copy of the judgment for necessary information.

69. The Criminal Appeals No. 311/2010, 312/2010 and 3050 of 2018 filed by Virendra Sharma, Devendra Sharma and Kishan Sharma, respectively fails and are hereby Dismissed.