Madhya Pradesh High Court
Bala Prasad vs The State Of Madhya Pradesh on 5 April, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
Cr.A. No. 56/2009 and Cr.A. No. 53/2009
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
(Division Bench: Hon'ble Shri Justice S.K. Gangele &
Hon'ble Smt. Justice Anjuli Palo)
Criminal Appeal No. 56/2009.
Pintoo @ Lakhan Singh & another
Versus
The State of Madhya Pradesh.
Ms. Pooja Gajra, learned counsel for the appellants.
Shri Vijay Soni, learned Government Advocate for the
respondent-State.
Criminal Appeal No. 53/2009.
Bala Prasad and others
Versus
The State of Madhya Pradesh.
Shri Brajesh Mishra, learned counsel for appellants No. 1 to 5.
Shri Ajay Tamrakar, learned counsel for appellant No. 6.
Shri Vijay Soni, learned Government Advocate for the
respondent-State.
Whether approved for reporting:
Law laid down:
Significant paragraphs:
JUDGMENT
(05/04/2018) Per S.K. Gangele J These two appeals have been filed against a common judgment dated 11/11/2008 passed in Sessions Trial No. 184/2006.
2. Prosecution story in brief is that at around 6.30 O'clock in the evening, appellants had beaten the deceased. Babu Singh Cr.A. No. 56/2009 and Cr.A. No. 53/2009 2 informed act of appellants to Siyarani. She and her daughter- in-law Laxmi reached at the spot and witnessed that appellants were beating the deceased. Billu Shukla was armed with Barchhi, Bablu Thakur armed with Ballam and rest of the accused persons were armed with lathis. Complainant Siyarani and her daughter-in-law Lalxmi tried to save the deceased. Appellants had inflicted injuries to them also. Report of the incident was lodged on the same day i.e. on 08/05/2006 within two hours at 20.25 O'clock by Siyarani at Police Station Laundi, District Chhatarpur. Police conducted investigation and filed charge-sheet against the appellants. During trial appellants abjured their guilt and pleaded innocence. The trial court held appellants guilty for commission of offence punishable under Section 302, 148 and 149 of IPC and awarded sentence of life.
3. Learned counsel for the appellants has contended that there is difference of opinion between the evidence of PW/3 doctor who performed postmortem of the deceased and doctor PW/10 who examined the deceased initially about the injuries suffered by the deceased. It is further contended that the injuries were caused on non-vital parts of the body of the deceased, hence, the offence committed by the appellants would fall under Section 304 Part-I of IPC because there was no intention and motive to kill the deceased.
4. Shri Ajay Tamrakar, learned counsel appeared on behalf Cr.A. No. 56/2009 and Cr.A. No. 53/2009 3 of appellant Kullu @ Kalka Prasad has submitted that as per evidence, Ballam was seized from appellant Kullu @ Kalka Prasad and the eye witnesses also deposed that he was armed with Ballam, however, there is no injury on the person of body of the deceased inflicted by ballam or injured persons, hence, the trial court has committed an error in holding appellant Kullu @ Kalka Prasad guilty for offence of murder.
5. Learned counsel for the State has contended that there are injured eye witnesses and other eye witnesses. Ocular evidence corroborates with medical evidence. FIR was lodged promptly within two hours. In the FIR names of the accused persons have been mentioned, hence, the trial court rightly held appellants guilty and awarded proper sentence.
6. There are two injured eye witnesses of the incident PW/4 and PW/5. PW/4 Siyarani is the mother of the deceased. She deposed that accused persons Bablu, Vijva, Chintu, Pintoo, Bala, Chandrabhan, Ramnarayan, Millu, Kullu and Tullu were passing from gate of my house. They were abusing us before six months from the date of incident. On the date of incident my son Munda Singh deceased was coming from Dhaba to my house. Younger son Babu Singh was with him. At that time Ramnarayan inflicted a blow of lathi at my son, he fell down, thereafter all the accused persons had beaten the deceased. My grandson Babu came to my house and told me that accused Cr.A. No. 56/2009 and Cr.A. No. 53/2009 4 persons have been beaten the deceased. I went at the place of incident. My daughter-in-law Laxmi was with me. I tried to save Munda. Accused persons had inflicted injuries to me and my daughter-in-law. My other sons Karan Singh and Gopal Singh also reached on the spot. We had taken the deceased in a tractor to Laundi Hospital, thereafter, I and my son went to the police station to lodge report. We lodged report. Because condition of the deceased was serious, hence, the doctor referred the deceased to District Hospital Chhatarpur. When we were taking the deceased to district hospital Chhatarpur, he died on the way. Accused Bablu was armed with ballam, Millu was armed with barchhi and other accused persons were armed with lathis. There were injuries on the whole body of the deceased. I also received injury on my head and right leg. My daughter-in-law Laxmi received injuries on her left hand of ballam. She admitted that she lodged report Ex. P/13. In her cross examination the questions were asked that number of cases were registered against the deceased. She further deposed that Kullu who was armed with ballam inflicted injuries to the deceased by ballam.
7. PW/5 Laxmi is the wife of the deceased and eye witness. She deposed the same facts as deposed by PW/4. She further deposed that she received injury by ballam on her hand.
8. PW/10 Dr. J.P. Nayak, in his evidence deposed that Cr.A. No. 56/2009 and Cr.A. No. 53/2009 5 on 08/05/2006 I examined Siyarani and noticed following injuries on her person.
(1) Blueish scar on left hand of 2.5 cm. x 1.5 cm. (2) Blueish scar on right hand of 2 cm. x 1.5 cm. (3) She was complaining pain on her stomach.
Injuries were caused by hard and blunt object. He further deposed that on 08/05/2006 I examined Laxmi PW/5 and noticed following injury on her person of the body.
Blueish scar on left hand 2.5cm. x 1.5 cm. simple in nature it was caused by hard and blunt object.
9. From the evidence of doctor PW/10, this fact has been established that PW/5 and PW/4 received injuries in the same incident. They are injured and interested eye witnesses. Their evidence could not be discarded because they are injured eye witnesses and FIR of the incident Ex. P/13 was lodged within two hours of the incident. Evidence of witnesses is reliable.
10. The Apex Court in the case of Abdul sayeed Vs. State of Madhya Pradesh (2010) 10 SCC 259 has held as under
in regard to evidence of injured eye 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 is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an Cr.A. No. 56/2009 and Cr.A. No. 53/2009 6 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).
29. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:-
"Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
28. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied Cr.A. No. 56/2009 and Cr.A. No. 53/2009 7 upon by the courts below."
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. "
11. There are two other eye witnesses. PW/6 Gopal Singh, is the brother of the deceased. He deposed that I had heard sound save me save me. I and my brother went on the spot and witnessed that appellants were beating the deceased. Accused Bablu Singh was armed with Barchhi, Millu was armed with ballam. My Mother and Bahu (wife of deceased) tried to save the deceased. They also received injuries, thereafter they had taken the deceased to hospital and I and my mother went to police station to lodge report. Accused persons used to abuse us. Doctor referred the deceased to district hospital Chhatarpur. When we were taking the deceased to Chhatarpur. He was died on the way.
12. PW/8 Sandeep @ Babu is the son of the deceased. He deposed that my father went to answer call of nature, when I reached at the spot accused persons had been beating my father from lathi, danda and barchhi. I was with my father thereafter I told the incident to my grandmother and mother. They reached on the spot. Accused persons had beaten my Cr.A. No. 56/2009 and Cr.A. No. 53/2009 8 mother and grandmother also, thereafter they ran away. He further deposed that the deceased received injuries of ballam on the back of his body.
13. PW/1 Rajendra Singh is another witness of seizure. He deposed that police seized lathi from the appellant before me vide seizure memo Ex. P/4, from the possession of Kullu @ Kalka, ballam was seized vide seizure memo Ex. P/6 and from the possession of Rajesh, lathi was seized vide seizure memo Ex. P/5.
14. PW/12 Kallu @ Karan Singh, is another eye witness. He is brother of the deceased. He deposed that after hearing cry I reached on the spot and noticed that accused persons Bala Shukla, Ramnarayan Shukla, Millu Shukla, Chandrabhan Shukla, Phullu Shukla, Rajjan Shukla, Tijja Thakur, Pintu Thakur, Bablu Thakur and Chhote have been beating the deceased Munda Singh. Accused Millu was armed with Barchhi, Bablu was armed with ballam and rest of the accused persons were armed with lathis. My mother and Laxmi tried to save the deceased, accused persons had also beaten her. Police came on the spot and prepared spot map which is Ex. P/17, I signed the same. Police also seized plain earth and red earth and broken bangles from the spot vide seizure memo Ex. P/18, I signed the same.
15. PW/18 Abhimanyu Mishra, is the I.O. He deposed Cr.A. No. 56/2009 and Cr.A. No. 53/2009 9 that on 08/05/2006, Siyarani lodged oral report against accused persons at police station I registered the same which is Ex. P/13 and signed the same. I went on the spot, inspected the spot and prepared spot map which is Ex. P/17, I signed the same. I seized plain earth, red earth and some parts of broken bangles from the spot vide seizure memo Ex. P/18, I signed the same. Thereafter, I recorded statements of Siyarani, Ram Singh, Kallu Singh, Smt. Laxmi Bai, Santosh Kumar, Narendra Singh, Roop Singh, Sahab Singh, Bablu @ Pratipal Singh, Halke @ Gopal Singh and Babu Singh and arrested the accused persons thereafter I seized lathis from the accused persons vide seizure memo Ex. P/4 and P/5 and on the memorandum of Kullu @ Kalka, ballam was seized vide seizure memo Ex. P/6. Complainant Siyarani was sent for medical examination. Seized articles were sent for examination to the forensic laboratory.
16. PW/ 3 Dr. R.P. Gupta, performed autopsy of the deceased. He deposed that I noticed following injuries on the person of the body of the deceased.
^^1& uhyxw fu'kku fNyu ds lkFk nkfgus rjQ psgjs ij 6x4 ls-eh-A 2& fNyu ukWd ds Åij 2x1 ls-eh-
3& uhyxw fu'kku ds lkFk esa fNyu cka;h bfy;dQkslk esa 6x4 ls-eh-A 4& eYVhiy uhyxw fu'kku nkfgus dU/ks ij 10x4 ls 6x3 ls-eh- rdA 5& ikWp uhyxw fu'kku nkfgus Ldsiqyk jhtu ij 10x4 ls-eh- 8x3 ls-eh-A 6& rhu uhyxw fu'kku ihB esa nkfgus bQs'k Ldsiqyk ds Åij 6x3] 5x3] 5x4 ls-eh-A 7& uhyxw fu'kku nkfgus ykW;ujhtu ij ihNs dh vksj 5x2 ls-eh- 8& uhyxw fu'kku ihB ij gh Vsu cjVhcjk ds Åij 9x4 ls-eh- 9& nks uhyxw fu'kku yacjLikbZu ds Åij 8x3] 5x3 ls-eh- 10& rhu fNyu ds fu'kku yacj LikbZu ij 3x2] 2x2 ,oa 3x2 ls-eh- 11& uhyxw fu'kku nkfgus xqyqfV;y jhtu ij Åij ds ,oa ckgj ds dqokad Cr.A. No. 56/2009 and Cr.A. No. 53/2009 10 gSad ij 6x5 ls-eh-A 12& uhyxw fu'kku nkfgus xqyqfV;y jhtu esa Åij ds vksj vanj ds fgLls esa 5x3 ls- eh-A 13& fNyu nkfguh tkW?k esa ckgj dh vksj 5x3 ls-eh-A 14& eyVhiy uhyxw fu'kku nkfguh Åijh Hkqtk ij ckgj ,oa ihNs dh vksj 6x4 ls- eh- ls 5x3 ls-eh-A 15& uhyxw fu'kku fNyu ds lkFk esa nkfguh dksguh ij 6x4 ls-eh-A 16& rhu fNyu ds fu'kku nkfguh dqguh ij 2x1] 1x1] 1x1 ls-eh-A 17& uhyxw fu'kku fNyu ds lkFk nkfguh vxz Hkqtk ij 6x4 ls-eh- 18& uhyxw fu'kku nkfguh rjQ xnZu ij 3x2 ls-eh-A 19& uhyxw fu'kku fNyu ds lkFk esa nkfgus gkFk ds iats ij ihNs dh rjQ 6x5 ls- eh-
20& fNyu nkfgus e/; maxyh esa 3x2 ls-eh-A 21& eYVhiy fNyu ds fu'kku ck;sa dksguh ij 3x2 ls-eh- ls ysdj 1x1 ls-
eh-A 22& uhyxw fu'kku cka;h Åijh Hkqtk ij 6x4 ls-eh-A 23& uhyxw fu'kku cka;h vxzHkqtk ij 12x4 ls-eh-A 24& uhyxw fu'kku nkfguh tka?k lkeus dh vksj 12x4 ls-eh-A 25& uhyxw fu'kku nkfguh tka?k ,oa ?kqVus ij ckgj dh rjQ 15x3 ls-eh-A 26& uhyxw fu'kku fNyu ds lkFk nkfgus ?kqVus ij 4x2 ls-eh-A 27& uhyxw fu'kku fNyu ds lkFk esa nkfgus iSj ds itsa ij 6x3 ls-eh-A 28& rhu uhyxw fu'kku nkfgus iSj esa ckgj dh rjQ 6x3] 6x4] 6x3 ls-eh-A 29& uhyxw fu'kku cka;s Ldsiqyk ij 6x4 ls-eh-A 30& uhyxw fu'kku ck;sa ykW;ujhtu ij 6x3 ls-eh-A 31& uhyxw fu'kku ihB ij cka;h rjQ 10x4 ls-eh-A 32& uhyxw fu'kku ¼eYVhiy½ ck;sa xqyqVh;y jhtu ij 6x4 ls 5x3 ls-eh-A 33& nks fNyu ds fu'kku cka;h tka?k ij ihNs dh rjQ 5x3 ,oa 4x3 ls-eh-A 34& cka;s ?kqVus ij fNyuA 35& rhu uhyxw fu'kku ck;sa iSj ij 9x4 ls-eh- 12x4 ls-eh-A mDr pksVs dM+h ,oa eksFkjh oLrq }kjk igqapkbZ xbZ FkhA 36& dVk ?kko cka;h NksVh vaxqyh ij lkeus dh vksj izksDlhey ij 4x1 ls-
eh- peM+h dh xgjkbZ rdA pksV dzekad 36 /kkjnkj oLrq ls igqapkbZ xbZ FkhA 37& flyk gqvk ?kko nkfgus iSj esa Åij ds 1@3 fgLls esa 3 ls-eh- yEckA 38& flyk gqvk ?kko nkgus iSj esa chp ds 1@3 fgLls esa lkeus dh vksj e/;
ds 1@3 fgLls esaA 39& cka;h ,sVªh esa lwtuA mDr lHkh pksVs e`R;q iwoZ dh FkhA^^ He further deposed that on internal examination I noticed that right lope of lever was ruptured. There was blood in the stomach. Right fibula and right scapula bone was broken. The deceased was died due to shock and injuries of lever. Injuries were caused within 24 hours of the incident. There is cross Cr.A. No. 56/2009 and Cr.A. No. 53/2009 11 examination of doctor PW/10 who conducted MLC of the deceased he deposed that I noticed following injuries on the person of the deceased:-
^^1- ,d LVso cwu ck, gkFk dh Åijh Hkqtk ds Åij ftldk vkdkj 2- 5x2 lseh- Fkk-
2- ,d LVso cwu nkfguh iSj ds Åij ftldk vkdkj 2-5x2 ls-eh- Fkk- 3- ,d QVk gqvk ?kko nk,a ?kqVus ds Åij ftldk vkdkj 3-5x1-5 lseh- Fkk-
4- ,d LVso cwu nkfguh tka?k ds Åij Fkk ftldk vkdkj 2-5x2 ls-
eh- Fkk-
6- ihB ds Åij cgqr lkjs uhyxw fu'kku Fks-
7- ,d vfu;fer vkdkj dh lwtu nkfguh ,YoksTokbaV ds Åij Fkk
ftldk esjs }kjk ,Dljs djkus dh lykg nh Fkh- 8- ,d vfu;fer vkdkj dh lwtu nk,a fj"V TokbaV ds Åij Fkh ftldk esjs }kjk ,Dljs djkus dh lykg nh Fkh-^^ There is difference of opinion in the evidence of doctors in regard to injuries sustained by the deceased on his person of the body. The Apex Court in the case of Sanjay Khanderao Wadane Vs. State of Maharashtra (2017) 11 SCC 842 has held as under in regard to evidence of doctor who performed postmortem.
"13. A medical witness who performs a post-mortem examination is a witness of fact though he also gives an opinion on certain aspects of the case. The value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony because it may establish certain facts quite apart from the other oral evidence. From the evidence on record, inferences are drawn as to the truth or otherwise of the prosecution case in criminal matters and truth or otherwise of a claim in civil matters. In this process, the medical evidence plays a very crucial role. If there is inconsistency or discrepancy between the medical evidence and the direct evidence or between medical evidence of two doctors, one of whom examined the injured person and the other conducted post mortem on the injured person after his death or as to the injuries, then in criminal cases, the accused is given the benefit of doubt, and let off.
Cr.A. No. 56/2009 and Cr.A. No. 53/2009 12 Where the direct testimony is found untrustworthy, conviction on the basis of medical evidence supported by other circumstantial evidence can be done, if that is trustworthy.
14. On a careful perusal of the post mortem conducted by PW-10, it is very much clear that the death is caused by means of a sharp edged weapon and that too possibly by means of sword. The evidence given by PW-10 fully corroborates with the version given by PW-5 and PW-8 that the appellants herein caused the death of the deceased using swords and iron pipes. It has been specifically mentioned in the report that injuries could be possible by various blows of the weapons. Further, the death was caused due to cardio respiratory arrest due to hemorrhage as well as neurogenic shock due to very extensive lacerated wound over face including brain along with multiple bone fractures on face. The evidence of a medical person is merely an opinion which lends corroboration to the direct evidence in the case. It has been observed in various cases of this Court that where the eye witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. "
The Apex Court further in the case of Prahalad Patel Vs. State of Madhya Pradesh (2011) 4 SCC 262 held as under in regard to discrepancies in number of injuries recorded by two doctors:-
"12. It is true that the doctor who conducted the autopsy found as many as eight injuries which are as follows:-
"(i) Repaired wound present over back of right shoulder top 4" long.
(ii) Incised wound back of neck at the level of C7 T1 1"x1/2x1/2".
(iii) Repaired wound over the back of skull left side of occiput 1" long transversely.
(iv) Repaired wound present over the Cervico- temporal region left side vertical 3" long.
Cr.A. No. 56/2009 and Cr.A. No. 53/2009 13
(v) Chop wound present over left eye brow region cutting the skin muscle and underlying bone 2"x1"x1".
(vi) Chop wound on the upper part left to forearm near elbow cutting the ulna and lower part of humerus bone 4" x2" x bone deep.
(vii) Repaired wound present over the right knee and
(viii) Multiple small abrasion present over the face below the left eye and chin."
13. It is equally true that in (Ex. P-10), medical examination report prepared by Dr. Gupta (PW-9), all the above-mentioned injuries have not been noted. However, as rightly observed by the High Court, sometimes some injuries may not be visible after passage of time. In fact, this suggestion was not put to the doctors concerned. Whatever may be, as analyzed and concluded by the High Court, cause of death in this case was cranio cerebral injuries which have been found by both the doctors insofar as fatal injuries are concerned and, for this, there is no discrepancy between the two reports. We also verified both the reports and we are satisfied that the said discrepancy is not material to the prosecution case. "
Principle of law is that if there is difference of opinion about injuries of two doctors, the evidence of doctor who supports the ocular evidence is reliable. In our opinion the evidence of doctor who performed postmortem of the deceased is more reliable.
17. The allegation against Kullu @ Kalka is that he was armed with ballam. From his possession ballam was seized. It is alleged that he had caused injuries by ballam. It has not been proved that ballam was seized from the possession of accused Bablu @ Girvar Singh. Witness PW/9 Nabab Singh turned Cr.A. No. 56/2009 and Cr.A. No. 53/2009 14 hostile, however, there is allegation that appellant No. 2 Bablu @ Girvar Singh in Cr.A. No. 56/2009 was armed with ballam and he had caused injuries by ballam. I.O. PW/19 also did not mention in his evidence that ballam was seized from the possession of appellant/ Bablu. PW/4 Siyarani in her evidence deposed that accused Bablu was armed with ballam, Millu was armed with barchhi and other accused persons were armed with lathis. PW/5 Laxmi in her cross examination deposed that Bablu was armed with ballam and he had inflicted blow of ballam on her hand. PW/12 in his evidence deposed that accused Millu was armed with Barchhi, Bablu was armed with ballam and rest of the accused persons were armed with lathis. Ballam was seized vide seizure memo Ex. P/30.
18. We have perused evidence of doctor PW/3 doctor who performed postmortem of the deceased and evidence of doctor PW/10 who examined the deceased and injured eye witnesses PW/4 and PW/5. Both the doctors did not depose that they had noticed any injury pearcing wound which could be caused by ballam. Doctors opined that injuries sustained by the deceased and injured, could be caused by hard and blunt and sharp edged weapon. The medical evidence completely rules out the ocular evidence in regard to injuries caused by ballam.
19. Hon'ble Apex Court in the case of Mahavir Singh Vs. State of Madhya Pradesh (2016) 10 SCC 220 has held as Cr.A. No. 56/2009 and Cr.A. No. 53/2009 15 under in regard to contradictions between medical evidence and ocular evidence.
"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-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved "
The principle of law is that where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. In the present case the medical evidence completely rules out that no injury caused by ballam, hence, eye witnesses against Kullu @ Kalka is not reliable. He is liable to be given benefit of doubt.
18. Next question is that whether the offence committed by the appellants would fall under Section 304 Part-I of IPC. In our opinion as per the evidence, the act of the appellants is not covered under exception of section 300 of IPC. Appellants had inflicted number of injuries. They were armed with lathis and one of the appellant armed with farsi. Deceased was beaten brutely, hence, in our opinion, the trial court has rightly convicted the appellants for commission of offence punishable under Section 302, 148 and 149 of IPC.
19. On the basis of above, the appeal filed by appellant Cr.A. No. 56/2009 and Cr.A. No. 53/2009 16 No. 6 Kullu @ Kalka Prasad in Cr.A. No. 53/2009 and appeal filed by appellant No. 2 Bablu @ Girvar Singh in Cr.A. No. 56/2009 are hereby allowed, They are in jail, they be released forthwith if they are not required in any other case. Criminal Appeals filed on behalf of other accused/ appellants are hereby dismissed.
(S.K. GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
MISHRA
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2018.04.11 13:21:49 +05'30'