Madhya Pradesh High Court
Shankar vs The State Of Madhya Pradesh on 23 November, 2017
Author: S.K. Gangele
Bench: S.K. Gangele
1 Cr. A. No. 2034/2006,
& Cr.A. No. 2135/2006
HIGH COURT OF MADHYA PRADESH AT JABALPUR
PRINCIPAL SEAT AT JABALPUR
(Division Bench: Hon'ble Shri Justice
S.K.Gangele & Hon'ble Smt. Justice Nandita Dubey)
Criminal Appeal No. 2034/2006
Shankar S/o Chunnilal Lodhi & others
Versus
The State of Madhya Pradesh
For the appellants : Shri Ajay Kumar Jain and Ms.
Sneh Mishra, Advocates.
For the respondent/State : S/Shri B.P. Pandey and Prakash
Gupta, learned Government
Advocates.
Criminal Appeal No. 2135/2006
Bhagga @ Bhagwandas S/o Lachhiram Lodhi
Versus
The State of Madhya Pradesh
For the appellant : Shri Ajay Kumar Jain, Advocates.
For the respondent/State : S/Shri B.P. Pandey and Prakash
Gupta, learned Government
Advocates.
Whether approved for reporting : Yes/No
Law laid down
Significant paragraph numbers :
JUDGMENT
(23/11/2017) 2 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 Per S.K. Gangele, J These two appeals have been filed against the common judgment dated 07.10.2006 passed in Sessions Trial No. 160/2004. Both the appeals have been heard together and are being decided by this common judgment.
2. The appellants were prosecuted for commission of offences punishable under Sections 302/149, 148, 450 and 323/149 of the IPC and have been sentenced for life with fine of Rs.100/-, R.I. for one year, R.I. for four years with fine of Rs. 100/- and R.I. for nine months respectively with default stipulations. The trial Court has held the appellants guilty for commission of offences, hence, awarded the punishment under Sections 302/149, 148, 450 and 323/149 of the IPC.
3. The Prosecution story in brief is that the deceased Ramkumar was living adjacent to Shankarlal, who is the elder brother of the deceased. At around 10 O'clock Shankarlal returned back from the house of his daughter Saroj Bai and because she was not sent 3 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 along with Shankar in the night, Ramkumar all the ladies of the family and Dindayal were talking to each other. At that time the accused persons Shankar, Naresh, Lekhram, Ramdas, Bhagga came there. They were armed with Gadasi, Farsa, Ballam and Lathi. They entered the house of Shankar and abused him. They told him that why he had not performed marriage of Saroj with Naresh. Thereafter they had tied Ramkumar by a nylon cord and had taken him near a tree of Kanji. They had beaten the deceased Ramkumar. The family members tried to save him, they had also inflicted injuries on the family members. In that incident Shankar elder brother of the deceased, Hemlata, Sheela Bai, Gulab Bai received injuries. The report of the incident was lodged at the police station. The police conducted investigation and filed charge-sheet against the accused persons. The appellants/accused abjured their guilt during trial. The trial Court after trial held the appellants guilty for commission of offences mentioned above in the judgment.
4. The learned counsel appearing on behalf of the appellants has submitted that the trial Court has committed an error of law in holding the appellants 4 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 guilty for the commission of offence. It is further submitted by the learned counsel that at the time of incident Ramkumar @ Munna had entered in the house of accused appellant No.1 Shankar and tried to outrage the modesty of his wife Kerabai. She was also assaulted and thereafter villagers gathered there and they had beaten the deceased. It is further submitted by the learned counsel that it is alleged by the prosecution that two accused persons namely Naresh and Ghanshyam were armed with Ballam, and as per the evidence of Dr. V.K. Patel PW/8, who performed autopsy of the deceased, there was no injury noticed by him caused by Ballam. Hence, the ocular evidence of the witnesses against two accused persons is not reliable.
5. It is further submitted by the learned counsel that accused Dharamdas was present at the time of occurrence at Sankheda, district Hoshangabad. He was working as Gangman in the Railways. Hence, he has been falsely implicated in the case. It is further submitted by the learned counsel that names of two persons Ghanshyam and Hari Singh has not been 5 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 mentioned in Dehati Nalishi (Ex.P/1), Marg intimation (Ex.P/2) and requisition of postmortem (Ex.P/17-A), hence, they have been falsely implicated by the prosecution.
6. Learned counsel for the State has submitted that there are four injured eye witnesses of the incident. They have deposed that the appellants had caused injuries to the deceased and other family members. The deceased was beaten brutally, it has been proved by the doctor who performed postmortem. The FIR was lodged promptly and the statements of the witnesses under Section 161 of Cr.P.C. were recorded promptly. The trial Court has considered all the evidence properly, hence there is no illegality in the judgment passed by the trial Court.
7. PW/1 Shankarlal, PW/2 Sheela Bai, PW/3 Chanda Bai and PW/4 Hemlata are the injured eye- witnesses. PW/1 is the elder brother of the deceased. Dehati Nalishi was recorded on his information, which is Ex.P/1.
8. PW/1 in his evidence deposed that on the 6 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 date of incident I had gone to the resident of my daughter Saroj Bai, village Bhadon, district Raisen. I returned back at around 10-10.30 in the night. Saroj Bai was not sent by her in-laws. I, Ramkumar, my children Sheela bai, Chanda bai and Dindayal my brother-in-law were talking to each other while siting in courtyard (angan) of the house. At that time, Dharamdas, Shankarlal, Lekhram, Naresh, Ghanshyam, Bhagga and Hari Singh armed with Lathi, Farsa and cord entered the house, they were abusing in filthy language and told me that why I had not done relation of Saroj Bai with Naresh and tied the deceased Ramkumar by a cord and they had taken him to Tankar road. They had also beaten him badly, when I tried to save him they had also beaten me. At the time of incident my wife Gulab Bai, daughter Sheela bai, Chanda bai, Hemlata and brother-in-law Dindayal also received injuries. The Kotwar reached on the spot thereafter I told him about the incident. At around 2 O'clock in the night police came on the spot and they have enquired about the incident. The report of the incident was lodged by me, which is Ex.P/1 and I signed the same. The deceased was died on the spot. 7 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 Marg intimation is Ex.P/2. In his cross-examination, he admitted the fact that some accused persons have inflicted injuries on the person of the deceased by Ballam. However, he deposed that he could not see that who had inflicted injury by Ballam. The accused persons have taken the deceased near a tree of Kanji. He further deposed that I was admitted in the hospital for seven days.
9. PW/2 Sheela Bai deposed the same facts that we were taking to each other in the courtyard (angan) of the house, at that time the accused persons armed with Lathi, cord and Farsa entered the house and they have tied the deceased Ramkumar by a cord. They had taken the deceased near Kanji tree and had beaten him. When the deceased cried to save, the accused persons inflicted injuries on us. Ramkumar was died on the spot.
10. PW/3 Chanda bai deposed the same facts that I and other family members were taking to each other in the courtyard (angan) at that time all the seven accused persons entered the house. They were armed with Lathi, Ballam, Farsa and Gadasi and 8 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 dragged the deceased Ramkumar near a tree of Kanji and beaten him. When we tried to save the deceased, my father Shankar, mother Gulab Bai, Sheela Bai and Hemlata were also beaten by the deceased. Deceased was died. I and Shila Bai had gone to call Kotwar. Thereafter he came there and he had gone to inform police because accused persons had threatened my father not to inform the police. In her cross- examination, she deposed that she could not see which of the accused persons was armed with Ballam.
11. PW/4 Hemlata is also an injured eye- witness. He also deposed the same facts as deposed by PW/1, PW/2, and PW/3.
12. PW/5 Dindayal is another eye-witness. He is the brother-in-law of Shankar. He also deposed that he was talking along with other family members at that time accused persons have entered the house. They have tied the deceased and dragged him near Kanji tree and beaten him. Other persons were also beaten.
13. PW/9 Dr. M.K. Vajpai deposed that on 9 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 02.07.2004, I was posted at Civil Hospital, Gadarwara as Medical Officer. On the aforesaid date, I had examined Shankar S/o Jairam and noticed following injuries on his person :
"1. one bluish abrasion 60x3 cm on the back side of the body.
2. one bluish abrasion 23x3 cm on right side of the back.
3. one bluish abrasion 30x 3 cm on left side of the back.
4. one bluish abrasion 15x2x1/2 cm on left shoulder.
5. one bluish abrasion 4x2 cm on left shoulder.
6. one bluish abrasion 5x3 cm on left side of the back.
7. one bluish abrasion 14x5cm on the sub specular region.
8. one bluish abrasion 10x3 cm on right shoulder.
9. one yellowish abrasion 12x3 cm on the right shoulder.
10. one yellowish abrasion 20x3 cm on right thigh.
11. swelling on the left elbow for which x-ray was advised.
12. swelling on left forearms."
All the injuries were caused by hard and 10 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 blunt object within 24 hours.
He further deposed that on the aforesaid date, I examined Gulab Bai W/o Shankar Lodhi, aged about 40 years and noticed following injuries on her person.
"1. One bluish abrasion 10x3cm on left scapula region.
2.One bluish abrasion 12x3 cm on right scapula region."
All the injuries were caused by hard and blunt object. Injuries were simple in nature.
He further deposed that on the aforesaid date, I also examined Chanda Bai W/o Harnam Lodhi and noticed following injuries on her person.
1. one bluish abrasion 12 x 3 cm on right scapula region.
Injuries were simple in nature.
I examined Sheela Bai and noticed following injuries on her person.
"1. one bluish abrasion 8 x 2 cm on the left side of the back.
All the injuries were caused by hard and blunt object. Injuries were simple in nature.
I examined Hemlata D/o Shankarlal Lodhi and noticed following injuries on her person.11 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006
"1. one superficial abrasion 9 x 1/2 cm on the right cheek and temple.
2. One contusion 2 x 2 cm over occipital region."
All the Injuries were caused by hard and blunt object.
14. From the evidence of doctor, this fact has been established that PW/1, PW/2, PW/3 and PW/4 received injuries during the incident and they are the injured eye-witnesses. Although they are the interested witnesses because they are the relatives of the deceased. However, their evidence cannot be discarded only because they are the interested eye- witnesses. The Apex Court in Abdul Sayeed Vs. State of Madhya Pradesh, AIR 2010 (10) SCC 259 has held as under in regard to placing reliance on injured witnesses.
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and 12 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh & Ors. v. State of Bihar, AIR 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh, (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2261; Balraje alias Trimbak v. State of Maharashtra, (2010) 6 SCC
673)."
15. The principle of law is that the testimony of injured eye-witness would generally considered to be reliable.
16. The FIR of the incident (Ex.P/38 and P/40) was lodged by PW/1. In the Dehati Nalishi, on the upper side, names of all the seven persons have been mentioned. However, in the body names of five persons have been mentioned and names of 13 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 Ghanshyam and Hari Singh have not been mentioned. Dehati Nalishi is Ex.P/1, which was recorded on the information of PW/1. He also signed the same.
17. PW/6 is the Kotwar, he deposed that both the daughters of Shankar had come to my residence at around 12 O'clock and they told me that there was a quarrel and the accused persons have beaten my father and uncle. They did not told me the names of the accused persons. Thereafter I had gone to another Kotwar where Sarpanch was present and along with him, we reached to the place of incident where we found the dead body of the deceased. Police came on the spot and prepared spot map, which is Ex.P/3 and I signed the same.
18. PW/7 is another Kotwar. He deposed that both the daughters of Shankar told him that there was a quarrel and I had reached on the spot. Thereafter I went to the police station to inform the police.
19. PW/8 is the doctor, who performed autopsy of the deceased. He deposed that on 02.07.2004, I was 14 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 posted as Health Officer at Civil Hospital, Gadarwara and I performed postmortem of deceased Ramkumar S/o Munna and noticed following injuries :
^^1- dVk gqvk ?kko ftldk vkdkj 9x4 ls-eh- xisV dh xqgk ds vUnj rdA Dyhu dV ,ao fdukjs fu;fer Fks] ;g pksV VªkaLQj ¼vkM+s½ vkdkj esdFkh ,ao isV ds nkfguh rjQ mijh Hkkx esa FkhA bl pksV ds lkFk nlaoh ilyh Hkh dVh gqbZ FkhA 2- dVk gqvk ?kko ftldk vkdkj 8x4 ls-eh- ,ao isV dh xqgk ds vanj rdA ;g pksV] pksV dzekadA ds cktw esa ckgj dh vksj FkhA pksV ds fdukjs fu;fer Fks] bl pksV ls yhoj dk dVk gqvk Hkkx ckgj vk x;k FkkA 3- dVk gqvk ?kko cka;s gkaFk ij ihNs dh vksj NksVh vaxqyh ds uhps] yEcor vkdkj esa ftldk vkdkj 3x.5 ls-eh- x pe<+h dh xgjkbZ rd Fkk] pksV ds fdukjs fu;fer FksA 4- dVk gqvk ?kko flj ds mij cka;s iSjkbZVy Hkkx ij frjNs vkdkj esa ftldk vkdkj 4x2 ls-eh- xgM~Mh rd xgjk FkkA 5- dVk gqvk ?kko ftldk vkdkj 10x3 ls-eh- xgM~Mh rd xgjk FkkA ;g pksV nkfgus rjQ flj ds iSjkbZVy fgLls esa FkhA 6- dVk gqvk ?kko ekFks ds mij yEcs vkdkj esa ftldk vkdkj 4x.5 ls-eh- xpe<+h dh xgjkbZ rd FkkA 7- dVk gqvk ?kko nkfgus HkkSag ij ftldk vkdkj 2-5x
-5 ls-eh- xpe<+h dh xgjkbZ rd FkkA 8- dVk gqvk ?kko ftldk vkdkj 9x3 ls-eh- xisV dh xqgk ds vanj rd ihB ij nkafguh rjQ e/; Hkkx esa ckgj dh vksj FkkA 9- dVk gqvk ?kko ftldk vkdkj 4x1 ls-eh- xekalis'kh dh xgjkbZ rd ihB ij pksV dzekad 8 ls ckgj dh vksj FkhA 15 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 10- dVk gqvk ?kko ftldk vkdkj 10x3 ls-eh- xpe<+h dh xgjkbZ rd nkfgus LdSiwyk Hkkx ij FkkA 4%& mijksDr lHkh dVs gq, ?kkoks ds fdukj fu;fer ,ao DyhudV Fks ,ao ckgj dh vksj FksA 11- czwt¼uhy xw½ ftldk vkdkj 8x5 ls-eh- cka;s vxz Hkqtk ij ihNs dh vksj FkhA 12- uhy xw fu'kku ftldk vkdkj 24x3 ls-eh- tks ckbZ tka?k ij ckgj dh vksj FkkA 13- uhy xw fu'kku ftldk vkdkj 5x2 ls-eh-] nkfguk tka?k ij ckgj dh vksj FkkA 14- uhy xw fu'kku ftldk vkdkj 2x1 ls-eh- tks nkfguh dej ij lkeus dh vksj FkkA 15- uhy xw fu'kku ftldk vkdkj 8x6 ls-eh- tks nkfguh mijh Hkqtk ij lkeus dh vksj Fkk ftldh nkfguh g;wejl gM~Mh dk vfLFk Hkax ik;k x;k FkkA uksV%& bl fLFkfr esa lk{kh us Li"V fd;k fd 'ko ijh{k.k izfrosnu esa pksV dzekad 14 dh nks ckj fy[kk x;k] tcfd pksV dzekad 14 ds ckn tkWp 14 fy[kk x;k gS] mls 15 uEcj gksuk pkfg;s FkkA vr% vkxs pksV dzekad esa lq/kkj djds fy[kk tk jgk gSA 16- [kjksap cka;s ?kqVus ij lkeus dh vksj ftldk vkdkj 4x5ls-eh- FkkA 17- e`rd dh iwjh ihB ij cgqr la[;k esa [kjksap ds fu'kku Fks tks vyx&vyx lkbZt esa Fks vksj -5x-5ls-eh- vkdkj ls ysdj 16x16ls-eh- vkdj esa FksA^^
20. In para 12 of his deposition he deposed that injuries No.1 to 10 were caused by sharp and hard edged weapon, it could be Farsa and Gadasi. Injuries No.11 to 14 could be caused by Lathi and back side of Ballam, some part of the wooden stick. In para 14 of 16 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 his cross-examination he admitted the fact that he did not notice any piercing injury on the person of the deceased.
21. PW/11 deposed that on 02.07.2004, I was posted as Head Constable and on the aforesaid date constable produced the Dehati Nalishi (Ex.P/1) and on the basis of the aforesaid Dehati Nalishi, I recorded FIR, which is Ex.P/38 and signed the same. The carbon copy of the FIR has been sent to the Judicial Magistrate, Gadarwara.
22. PW/12 is the Investigating Officer, he deposed that on 01.07.2004, I was posted as Station House Officer in Gadarwara. On 02.07.2004 when I was on patrolling in the night at around 2 o'clock I received information on wireless that a serious incident had taken place at village Amgaon. As per the report of Kotwar I recorded the information in the Sanha No.76 (Ex.P/42). Thereafter I enquired about the same from Raghuveer and Chhotelal, who were the Kotwar and I reached at the place of incident at around 3 O'clock in the night. I enquired about the incident from Shankarlal. He informed me about the death. 17 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 Thereafter I registered Marg No. 0/04, which is (Ex.P/2). Thereafter on the basis of the report of Shankarlal, I recorded Dehati Nalishi (Ex.P/1) and signed the same. The dead body of the deceased was lying in the courtyard (angan), his both legs were tied by a nylon cord and other parts of the body were also tied by nylon cord. I sent the dead body for postmortem. On 02.07.2004 I seized blood stained earth and plain earth vide seizure memo (Ex.P/16) from the spot and prepared spot map of the incident which is Ex.P/3 and signed the same. On the same date, I recorded statements of Shankarlal S/o Jairam, Chanda Bai, Sheela Bai, Hemlata and Gulabi Bai. On 03.07.2004 on the memorandum of Shankarlal (Ex.P/4), Farsa was seized on his information from the house. The seizure memo is (Ex.P/5) and I signed the same. Accused Shankarlal was arrested by arrest memo (Ex.P/48).
23. On the memorandum of Naresh S/o Shankarlal (Ex.P/6) Ballam was seized on his instruction from his house vide seizure memo (Ex.P/7) and I signed the same. He was arrested vide arrest 18 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 memo (Ex.P/49). On the same date on the memorandum of accused Hari Singh, which is (Ex.P/8) a Lathi was seized from his instruction from his house, which is (Ex.P/9) and I signed the same. Hari Singh was arrested by arrest memo (Ex.P/50). On 05.07.2004 on the memorandum of Ghanshyam S/o Shankarlal Lodhi a Ballam, which is Ex.P/10 was seized vide seizure memo (Ex.P/11) from his house on his instruction. On the same date, the appellant/accused Ghanshyam was arrested vide arrest memo Ex.P/52.
24. On 05.07.2004, on the memorandum of accused/appellant Lekhram which is (Ex.P/12), a Gadasa was seized vide seizure memo (Ex.P/13) from his residence on his instruction. The accused was arrested. On 26.07.2004, on the memorandum of Bhagga (Ex.P/54) a Lathi was seized from his residence on his instruction vide seizure memo Ex.P/55 and the accused was arrested on the same date. On 22.08.2004, on the memorandum of accused Dharamdas, which is (Ex.P/14) a Lathi was seized vide seizure memo Ex.P/15, I signed both the documents. He was arrested on the same date. On 01.09.2004 all 19 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 the seized articles were sent to Forensic Laboratory.
25. The appellants examined defence witnesses in support of their defence. DW/1 deposed that Bhaggu had come to see me 8 to 10 days before the death of Munna. His evidence is not reliable. DW/2 issued a certificate (Ex.D/5) in the capacity of Sarpanch. She deposed that the accused Dharamdas was singing Bhajan at her residence upto 9 O'clock in the night. He was working as Gangman. DW/3 deposed that I was working in the Railway Department and accused Dharamdas was working as Gangman. The appellant Dharamdas was working as Gangman and he was on duty upto 6 O'clock and was performing certain work. DW/4 Kes Bai deposed that at around 10-11 O' clock in the night on the date of incident accused Ram kumar entered my house and he tried to outrage my modesty, in that event I received some injuries. DW/5. Dr. V.K. Patel, deposed that on 02.07.2004, I was posted as doctor and I examined Kera Bai D/o Shankarlal Lodhi and noticed one lacerated wound on the right hand 1.5 x 1/2 cm muscle deep. The injury was simple in nature. It was caused by hard and blunt 20 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 object.
26. The arguments of the learned counsel for the appellants that names of Ghanshyam and Hari Singh were not mentioned in the middle of the Dehati Nalishi and the Marg intimation and requisition of postmortem, hence, they have been falsely implicated could not be accepted because the names of these two persons have been mentioned at the top of Dehati Nalishi and Marg. It was registered by the Investigating Officer when he reached on the spot. The injured eye- witnesses deposed about the appellants. The second argument of the learned counsel for the appellants that appellant Dharamdas was present on the date of evidence at the place of his working and this fact has been proved by the defence witnesses, hence he has been falsely implicated, in our opinion, could not be accepted. The Apex Court in Vutukuru Lakshmaiah Vs. State of Andhra Pradesh, (2015) 11 SCC 102 has held as under in regard to alibi:
"24. The next plank of submission of the learned counsel for the appellant, Vutukuru Lakshmaiah, appellant in Criminal Appeal No. 2047 of 2008, pertains to non-21 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006
acceptance of the plea of alibi. As is manifest, both the courts below have elaborately dealt with it. As the judgment of the High Court would reveal, a finding has been returned that there is no evidence to the effect what is the distance between municipal office where the Committee meeting was held and the place where the offence had been committed; nothing has been brought on record to show that it was impossible for one to reach the place of offence; that the authenticity of the minutes book prepared under the signatures obtained have not been maintained in discharge of public function because the Water Committee constituted is not a statutory committee. That apart, the law clearly stipulates how a plea of alibi is to be established. In this context, we may profitably reproduce a few passages from Binay Kumar Singh v. State of Bihar (1997) 1 SCC 283.
"22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:22 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006
'(a) The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant.'
23. The Latin word alibi means ' elsewhere' and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that the would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the 23 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi."
(emphasis supplied).
27. In the aforesaid judgment, the Apex Court has specifically held that onus is on the prosecution to prove by reliable evidence about the alibi. It is also the burden on the accused to prove the fact that the accused was at a sufficient distance so he could not reach the place of occurrence. In the evidence on record, this fact has not been proved by the accused that up to how much distance he was present at the relevant time so it can be held that it was not possible for him to reach at the place of occurrence.
28. We find force in the arguments of the 24 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 learned counsel for the appellants that the accused Ghanshyam and Naresh alleged to cause injuries by Ballam on the person of the deceased and no such injuries were noticed by the doctor PW/8, who performed postmortem of the deceased. Hence, the evidence of the witnesses against these accused persons is not reliable.
29. Doctor PW/8 specifically deposed in para 14 of his deposition that he did not notice any piercing injury on the person of the deceased. Hence, this fact has been proved that there was no injury on the person of the deceased caused by Ballam.
30. The counsel for the State has submitted that the accused persons had used blunt side of the Ballam, hence, their participation is established. This argument, in our opinion has no force, in view of the judgment of the Apex Court reported in Hallu and others V. State of Madhya Pradesh, AIR 1974 SC 1936, where the Apex Court has held as under:
"Normally when a witness says that an axe or a spear is used there is no warrant for supposing that what the 25 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon."
31. The Apex Court in the aforesaid judgment has specifically held that when a witness says that a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication, it is the duty of the prosecution to obtain a clarification from the witness as to whether sharp edged or a piercing instrument was used as a blunt weapon.
32. In the present case, there is no evidence of prosecution witnesses that the Ballam was used as a blunt weapon. Contrary to this, the witness has clearly deposed that the injuries were caused by Ballam.
33. The Apex Court in Abdul Sayeed (supra) held as under in regard to appreciation of evidence i.e. medical evidence vis-a-vis ocular evidence. 26 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006
32. In Ram Narain Singh v. State of Punjab , AIR 1975 SC 1727, this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.
33. In State of Haryana v. Bhagirath & Ors., (1999) 5 SCC 96, it was held as follows:-
"The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."
[Emphasis added]
34. Drawing on Bhagirath's case (supra), this Court has held that where the medical evidence is at variance with ocular evidence, "it has to be noted that it would be erroneous to accord undue primacy to the hypothetical 27 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
"21.....The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the 'credit' of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
(Vide Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380; and Krishnan v. State, (2003) 7 SCC 56).
36. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, this Court observed:
"13. Ordinarily, the value of medical evidence is only corroborative. It proves that 28 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye- witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
[Emphasis added]
37. A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289;
Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC
566.
38. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court reiterated the aforementioned position of law and stated that:
"13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony 29 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
34. The principle of law laid down by the Hon'ble Apex Court is that if there is contradiction between medical and ocular evidence and when medical evidence makes ocular testimony improbable, that becomes a relevant factor in the process of evaluation of evidence.
35. In the present case, the prosecution witnesses have deposed that accused Ghanshyam and Naresh were armed with Ballam and they had caused injuries on the person of the deceased by Ballam. Ballam was seized from the possession of the aforesaid accused persons. However, the doctor PW/8, who performed autopsy specifically deposed that he did not notice any piercing injury on the person of the body of the deceased. In this arena, the ocular evidence could not be relied on in view of the medical evidence. Hence, the accused appellants Naresh and Ghanshyam 30 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 are entitled to the benefit of doubt.
36. The next submission made by the learned counsel for the appellants that the trial Court has committed an error by convicting the appellants for commission of offence punishable under Section 450 of the IPC because there was no house trespass. We are not in agreement with the arguments advanced by the learned counsel for the appellants. All the witnesses have deposed that they were talking to each other in the courtyard (angan) and as per the spot map Ex.P/3, which was prepared by PW/6, courtyard is at the back side of the house. It was surrounded by the walls. It was not an open place. Hence, the trial Court has rightly held that the appellants had entered the house of the deceased. The trial Court has also held the appellants guilty for commission of offence punishable under Sections 323 and 149 of the IPC. The injured witnesses received injuries, hence, in our opinion, the conviction of the appellants for commission of offence punishable under Section 323/149 of IPC is as per law because even two accused persons be acquitted then the appellants were five in 31 Cr. A. No. 2034/2006, & Cr.A. No. 2135/2006 number, hence, their conviction under Section 149 of the IPC is upheld. Hence, the appeal filed by the appellants is partly allowed. The appeal of appellant No. 2 Naresh and appellant No. 5 Ghanshyam is allowed. They have been acquitted from the charges. The appellant Naresh is in jail, he be released forthwith, if not required in any other case. Appellant Ghanshyam is on bail, his bail bonds are hereby discharged. Criminal Appeal No. 2034/2006 filed by appellants Shankar, Hari Singh, Lekhram and Dharamdas is hereby dismissed. Appellants Dharamdas and Hari Singh are on bail, they are directed to surrender before the trial Court to undergo remaining part of the jail sentence as awarded. Their conviction and jail sentence as awarded by the trial Court is upheld. Appellant Bhagga is in jail, his conviction and jail sentence as awarded by the trial Court is upheld.
37. A copy of this judgment be also placed in the record of connected criminal appeal No. 2135/2006.
(S.K.Gangele) (Nandita Dubey)
JUDGE JUDGE
bDigitally signed by BHARTI
GADGE
Date: 2017.11.29 11:08:11 +05'30'