IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE ATUL SREEDHARAN &

HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH ON THE 17^th OF APRIL, 2025 CRIMINAL APPEAL No. 429 of 1996 BASSU BASHIR @ MOHAMMAD BASHIR Versus THE STATE OF M.P.

Appearance:

Ms. Renu Singh - Advocate for the appellant.

Ms. Shweta Yadav Deputy Advocate General for the State of M.P.

ORDER Per: Justice Atul Sreedharan The present appeal has been listed today for the purpose of appearance of the appellant- accused. As per learned counsel appearing on behalf of the appellant, the appellant is presently untraceable. The appeal is 29 years old having been filed in 1996 and the case itself is of the year 1988.

2. With the consent of learned counsel for the parties, the appeal is heard finally.

3. The case of the prosecution is that a violent incident took place on 22.5.1988 resulting in the death of deceased Raish. The Dehati Signature Not Verified Signed by: BASANT KUMAR Nalishi is recorded at 4.10 hours and the FIR is registered between 11 and 12 PM. The incident occurred at night at 8 PM of 22.5.1988. The conviction of the appellant is based on the statement of Sharfraj Bee (PW -1). She is the sister of the deceased. She says that she is an eyewitness of the assault, and she saw the appellant assaulting the deceased with a 'Khapacha' which is described as a scissor used by Pan- Vendors. The incident took place near the cart of Kherula Khan (PW-5) and it was witnessed by Sharfraj Bee (PW -1), Majeed (PW-2), Yusuf (PW-3) and Guddu (PW-4), but from Sharfraj Bee (PW -1) all the witnesses turned hostile and have not supported the case of the prosecution. Sharfraj Bee (PW -1) stated, as already recorded hereinabove, that the appellant assaulted and caused death of the deceased with a Khapcha, which is a scissor like object, which used for cutting and preparing Pan. The post-mortem report is Ex.P-10, where the injuries are shown on the head and body of the deceased which are all lacerated injuries and the Doctor has given the opinion that the cause of death was the result of shock as a result of head and abdominal injuries caused by hard and blunt object and sufficient to cause death in ordinary course of life and is homicidal in nature.

4. Learned counsel for the appellant submits that there is a contradiction between the eyewitness testimony and the postmortem report. As per eyewitness testimony, the khapcha could have only caused two kinds of injuries. Firstly, she says that if the scissor is used as a Signature Not Verified Signed by: BASANT KUMAR weapon of offence with both blades together, it would have caused puncture injuries and secondly, if the blades are separated or open the same can cause either a puncture injury or an incised wound. She says that all the injuries suffered by the deceased are lacerated and the Doctor specifically opines that the injuries would have been caused by hard and blunt object. So firstly, she says that there is an inconsistency between the so-called ocular evidence of the Sharfraj Bee (PW -1) and the articles seized from Kherula, who is a Panwala, whose scissor was used by the appellant allegedly to commit the murder. The FSL report shows that the blades of the said article had blood, but it does not establish it as human blood. It is also necessary to state here that other witnesses so also included Kherula have all turned hostile and not supported the case of the prosecution.

5. Undoubtedly, it is not number of witnesses which are important for the prosecution to prove its case beyond reasonable doubt but the nature and consistency of the witness testimony and whether the same inspires the confidence of the court.

6. Learned counsel for the State on the other hand submits that the statement of Sharfraj Bee (PW -1) by itself is sufficient to convict the accused/appellant as the same inspired the confidence of the trial court. She further says that the statement of Sharfraj Bee (PW -1) that it was a Khapacha that was used