Madhya Pradesh High Court
Ramdayal Yadav vs State Of M.P. on 11 March, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
Cr.A. No.635/2010
THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(DIVISION BENCH)
Criminal Appeal No.635/2010
Ramdayal Yadav and another ..... Appellants
Versus
State of M.P ..... Respondent
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CORAM
Hon. Mr. Justice G.S. Ahluwalia, Judge
Hon. Mr. Justice Deepak Kumar Agarwal, Judge.
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Presence
Shri O.P. Mathur, counsel for appellants.
Shri Pramod Pachori, Public Prosecutor, for the
respondents/State.
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JUDGMENT
( 11/03/2022) PER JUSTICE DEEPAK KUMAR AGARWAL Appellants have filed this appeal under Section 374 of Cr.P.C against the judgment of conviction passed by Sessions Judge, Shivpuri, in S.T.No.31/10 on 06.08.2010 by which appellant No.1 Ramdayal has been convicted for the offence under Section 302/34 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.5000/- and appellant No.2 Rameshwardayal has been convicted 2 Cr.A. No.635/2010 under Section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.5000/-, under Section 25(1-b)(a) of Arms Act and sentenced to undergo one year R.I. with fine of Rs.500/- and under Section 27(1) of Arms Act and sentenced to undergo 1 year R.I. with fine of Rs.500/- with default stipulation.
2. Brief facts of the case are that on 24.08.2009 at 8 P.M. complainant Rampal Singh lodged a report against present appellants and one Megh Singh at village Atarvai that in the morning at 8 A.M., he along with his uncle Kalyan Singh went to their field for doing agricultural work. After finishing their work, they were returning, as soon as they reached near Margat at 6.30 P.M, behind trees, appellant Rameshwardayal having gun, Ramdayal lathi and accused Megh Singh having gadasi in their hands, all of a sudden, came out and with an intention to kill, appellant Rameshwardayal fired on his uncle Kalyan Singh. Bullet hit at his stomach. Due to which, his uncle Kalyan Singh fell down and became unconscious. From his stomach, blood was oozing out. Thereafter, appellants and accused Megh Singh ran away. Complainant and his brother, namely Sughar Singh, present on the spot, tied a Safi around the wound and telephoned the Police that they are having previous enmity with appellant Rameshwardayal regarding financial transactions. Due to this, with intention to kill his uncle Kalyan, accused Rameshwardayal fired with 3 Cr.A. No.635/2010 gun at his stomach. On this, Dehatinalshi was recorded at Police Station Pohri, District Shivpuri, for the offence under Sections 307 read 34 of IPC and Sections 25/27 of the Arms Act.
3. Injured was sent on the same day to the District hospital, Shivpuri by the Police for further treatment. Dr. V.C. Goyal conducted medical examination of the injured. He found collection of fluid in abdominal cavity on the stomach and blood was oozing out. As per his opinion, injury was caused by firearm which was dangerous in nature. Thereafter, injured Kalyan for further treatment admitted as an indoor patient in District Hospital, Shivpuri, where, during treatment, he died. During treatment in the hospital on the certificate of Doctor, A.S.I. of Police Station Pohri, Santosh Sharma recorded his dying declaration because after due attempt, Executive Magistrate could not be arranged. In his dying declaration, he has stated that due to civil dispute, appellant Rameshwardayal having gun fired at his stomach. Ramdayal having lathi and Meg Singh having Gadasi were present along with him. He got injury at his stomach and the bullet hit at right side and passed through from the left side. Incident took place on 24.08.2009 at 6. 30 PM. On the spot, his nephew Rampal Singh and Sugar Singh were present. During treatment, he died on 26.08.2009 at 10.15 A.M. Intimation about his death was communicated to the Police Station Gwalior. On that 4 Cr.A. No.635/2010 intimation, Merg under Section 174 of Cr.P.C. bearing Merg No.500/09 was recorded. Dead-body Panchnama was prepared. Thereafter, dead-body was sent for postmortem. As per postmortem report, Kalyan died between 6-24 hours from the time of autopsy due to cardio-respiratory failure. On the basis of Dehatinalsi, offence against appellants and Megh Singh was registered at Police Station Pohri bearing Crime No.134/09 under Section 307 read with 34 of IPC and Sections 25/27 of the Arms Act. F.I.R. was sent to the concerned Magistrate. After postmortem, closed viscera was seized by Police.
4. From the spot, plain and blood stained soil along with vest of the deceased were seized. Appellant Rameshwar and Ramdayal were apprehended. At their behest, 315 bore gun, 3 live cartridges and one lathi were seized. Spot map was prepared. Statement of witnesses were taken. Seized property was sent for chemical examination. After investigation, charge-sheet against appellants under Section 302/34 of IPC and 25/27 of Arms Act before the regular Court and charge-sheet against Megh Singh before Juvenile Court was presented.
5. Trial Court after framing of charges conducted the trial and found appellants' guilty of the aforesaid offences and convicted them as aforesaid.
6. From the side of appellants, appeal has been preferred on the 5 Cr.A. No.635/2010 ground that both the eye-witness were not present at the place occurrence. They are relative of the deceased. There is previous enmity with the deceased and appellants, due to which they have been falsely implicated and trial Court without considering their defence on the contradictory evidence of prosecution convicted them.
7. From the side of respondent/State, it was argued that trial Court after appreciating the evidence produced by the prosecution rightly held the appellants guilty of aforesaid offences. No interference is warranted.
8. As per Rampal Singh (PW-1) deceased Kalyan was his uncle. On 24.08.2009 he alongwith Kalyan and brother Sughar Singh went to the field. When he was returning at 6:30 pm, his brother Sughar Singh was ahead of him and his uncle Kalyan Singh was behind him. When they reached near Marghat, appellant Rameshwar, Ramdayal and accused Megh Singh met them. Rameshwar was having gun, Ramdayal was having Lathi and Megh Singh was having Gadasi. They surrounded his uncle Kalyan and appellant Rameshwar fired on the stomach of his uncle due to which Kalyan Singh fell down on the spot. As soon as his uncle fell down, all of them ran away. He tied Safi around the stomach of his uncle and through mobile informed the police. On his information, at 8 pm police arrived on the spot and took his uncle Kalyan to hospital. He lodged a report with the police, 6 Cr.A. No.635/2010 which is Ex.P-1. Afterwards police took his uncle to district hospital Shivpuri where one bottle of blood was given to his uncle. Thereafter he was referred to Gwalior. During treatment, at Gwalior he survived for two days. Afterwards during treatment he died. Police prepared dead-body Panchnama, which is Ex.P-2. Previously a dispute of field arose between appellants and his uncle due to which they killed his uncle.
9. During cross-examination, he has stated that he has studied upto 9th standard. Apart from him, his family consists of his real brother Shishupal, mother and father. He was having two uncles; one is deceased Kalyan and another is Laluram. Sughar Singh is his cousin, who is married and having children. They reside at one place. They took field of Hakim Singh on barter. He denied that when they were returning from the field to their house it was dark. From the place of occurrence, distance of field is about 1 km. From the place of occurrence, distance of village is about half km. On the way, people usually come and go. There are bushes near the place of incident. Near the place of incident, there is boundary wall of 3 ft. height. In the nearby field Bajra was being cultivated. It is true that height of Bajra crop is around 7-8 ft. He was 20 ft. ahead of his uncle deceased Kalyan. Neither he nor his uncle chased the accused persons, because if they chased them, they could have killed them. 7 Cr.A. No.635/2010 On the spot, nobody was there. They did not cry for help. They saw the incident from the distance of 15-20 ft. Appellants came from the field of Bajra and surrounded his uncle and then fired on him. He informed his family members that Rameshwar fired on his uncle. On this information, family members came on the spot. Distance of police station from place of occurrence is 15 km. In his statement (Ex.D-1) he has stated that his cousin Sughar Singh was ahead of him and Kalyan Singh was behind him. If this fact is not stated in his statement he cannot say. He has also stated in his statement (Ex.D-1) and report (Ex.P-1) that appellants surrounded his uncle. If this fact is also not there, he cannot say.
9.1 He denied that after assault, his uncle became unconscious. If this fact is not mentioned in his report, he cannot say. From the time of occurrence since death of his uncle, he alongwith Laluram was present with him. After receiving gunshot, upto 2-5 minutes his uncle remained conscious. Thereafter he was not feeling comfortable. He cannot say the gun which was in the hand of appellant Rameshwar was of single barrel or double barrel. He also cannot say that the gun was small or long. He denied that nearby place of occurrence hunters used to come for hunting. He also denied that fire made by hunters hit his uncle. Bullet passed through the body of his uncle. Four years before a case was pending in Pohari Court between Rameshwar, 8 Cr.A. No.635/2010 Ramdayal and Megh Singh and deceased, which has been decided. From that time, enmity is going on. He denied that at the place of occurrence he was not present and went with his father to Shivpuri. He denied that due to previous enmity, false complaint has been lodged.
10. On going through examination-in-chief of this witness and cross-examination, it emerges out that on the date of occurrence when he alongwith his uncle and cousin brother Shughar Singh was returning from the field, appellant Rameshwar, Ramdayal and Megh Singh having gun, Lathi & Gadansi met them and surrounded their uncle and Rameshwar fired on his stomach due to which his uncle fell down and thereafter appellant fled away. He telephoned his family member and police. Police came on the spot. He lodged Dehati Nalishi against appellant. Deceased Kalyan was taken to District Hospital Shivpuri, thereafter to Gwalior. During treatment deceased was unconscious. It is true that in his report ExP-1 and statement Ex.D-1 there are some contradictions regarding unconsciousness of his uncle. This contradiction in the opinion of this Court is of no significance due to which defence could take any benefit and this Court is of the opinion that his evidence cannot be disbelieved. Apart from this, his evidence is well supported by prompt Dehati Nalishi lodged at the place of occurrence by him vide 9 Cr.A. No.635/2010 Ex.P-1.
11. By supporting evidence of Rampal PW-1, his cousin brother Sughar Singh (PW-2) has stated that on the date of incident at 6:30 pm, he alongwith his uncle Kalyan Singh and brother Rampal were returning from the field. He and his uncle Rampal were ahead and deceased was behind them. When they reached near Marghat, appellant Rameshwar, Ramdayal and Megh Singh surrounded the deceased and appellant Rameshwar fired on him. Bullet after entering his stomach passed through. Thereafter they fled away. Afterwards he with the help of Rampal tied a towel around the wound of the deceased and Rampal telephoned police. Afterwards at 8 pm police came on the spot. Rampal lodged the report against present appellants. Police took deceased Kalyan Singh to Shivpuri hospital. Thereafter he was taken from Shivpuri to Gwalior for further treatment where after two days he died.
11.1 During cross-examination, he has stated that on the date of incident they went to work in the field of Hakko Bai. Near the place of occurrence, there is a way for coming and going. At the time of incident, the place was secluded. He was 50 steps ahead from the deceased. On listening the sound of fire, when he turned back, he saw that appellants were fleeing away. They did not chase the appellants. They informed family members. He alongwith his uncle 10 Cr.A. No.635/2010 did not go to Shivpuri and Gwalior. When police reached the spot, it was dark. There was no facility of light at the spot. He cannot say from how much distance Rameshwar fired the gun. Police lodged the report and seized articles in the dark. He admitted that due to some financial transaction, there was enmity between him and the appellants. He denied that due to which, he is telling lie. He denied that due to previous enmity, the appellants have been falsely implicated by them.
12. On going through examination-in-chief and cross-examination of this witness, it emerges out that this witness supported the evidence of Rampal and defence could not carve out any material contradiction from his evidence, so that his evidence could be disbelieved.
13. By supporting prosecution case, A.S.I., Santosh Sharma (PW-
16) has stated that on 24.08.2009, he was posed as A.S.I. at Police Station Pohri. On 24.08.2009, through mobile phone, he got an information that in village Atvai, appellant Rameshwar, Ramdayal and Megh Singh fired at deceased Kalyan. By entering this information in Rojnamcha No.980 (Ex.P/8C), he along with force by Police vehicle M.P.03 7829 rushed to the spot. On reaching the spot, he saw that deceased Kalyan was lying in unconscious state. One Rampal met on the spot and he narrated the full story. Rampal lodged 11 Cr.A. No.635/2010 a Dehatinalsi (Ex.P/1) with him. He prepared spot map at the instance of Sugar Singh which is Ex.P/27 and seized ordinary soil and blood stained soil and blood stained vest from the spot in front of Lalluram and Bharat vide Ex.P-17. Afterwards, along with deceased Kalyan, he came to District Hospital Shivpuri at 9.40 P.M. and admitted him there for treatment. From Shivpuri, Kalyan was referred to Gwalior. At that time, he was conscious. He tried to call Executive Magistrate for taking statement of the deceased, but no such Magistrate was available. He enquired from the doctor about the condition of Kalyan. Doctor told him that deceased was in a position to give statement. After taking his note on Ex.P/15, he took the statement of Kalyan in question and answer pattern. Deceased told that Rameshwar fired on him with gun and along with him appellant Ramdayal having lathi and Megh Singh having Gadasi were present there. Due to enmity of barter of land, around 6 P.M. on 24.08.2009 he fired on his right side of stomach and the bullet passed through his body. At that time, his nephew Rampal and Sugar Singh were present.
13.1 Dying declaration of deceased Kalyan is at Ex.P/15. Thereafter, in district hospital Shivpuri again he took statements in which he has stated that he along with his nephew Rampal, Sugar Singh at 8.A.M. went to cultivate the field. When they were returning in the evening 12 Cr.A. No.635/2010 near Margat road behind trees, appellant Rameshwardayal having gun, Ramdayal having Lathi and Megh Singh having Gadasi came out and appellant Rameshwardayal with an intention to kill him fired on him on the right side of his stomach and the bullet passed through his body. Due to which, blood was oozing out. He took off his vest. Thereafter, he became unconscious. He gained consciousness at district hospital, Shivpuri. The incident took place due to enmity of field and money transaction. Incident was seen by Rampal and Sugar Singh. He sent Dehatinalsi for registration to Police Station Pohri through Head Constable Laxman. Thereafter, he took statements of Rampal and Sugar Singh in the hospital. He tried to collect the bullet, but could not trace the same.
14. During cross-examination, he has stated that from Police Station, distance of village Atvai is 16 kms. Rampal informed him about the incident that Rameshwar, Ramdayal and Megh Singh, residents of Atvai fired on deceased Kalyan. He got the information at 6.50 P.M. Within fifteen minutes, he departed for the place of incident. On the spot, Kalyan Singh, Rampal and Sugar Singh were there. Beside them, nobody was there. When he reached the spot, it was dark. There is no arrangement of electricity on the spot. He conducted investigation with the help of search lights and headlight of jeep. He reached the spot in 50-55 minutes. It was raining at the 13 Cr.A. No.635/2010 place of occurrence. He did not took statement of witnesses at the spot. Again he reached the spot at 3 A.M., then 10-15 persons of nearby area assembled there. He tried to search the bullet, but could not trace the same. He took 10-15 minutes in writing Dehatinalsi (Ex.P-1). He prepared spot map at 8 P.M. Because deceased Kalyan was in serious condition, he took him directly to the hospital. He reached hospital about 8.30 to 9 P.M. He himself admitted Kalyan Singh in the hospital. He informed Police Control Room. When he was recording statement of deceased, doctor was present. He denied that Kalyan Singh never gave statement under Section 32 of Cr.P.C. He also denied that he did not take statement under Section 161 of Cr.P.C. of the injured. He has recorded statements of Rampal and Sugar Singh in the hospital. On the basis of Dehatinalsi, F.I.R. at Police Station Pohri was registered at 11.30 P.M. as Ex.P/13. He denied that after incident Kalyan Singh never gained consciousness. He denied that Kalyan Singh never stated names of appellants. He denied that he never went to the spot and conducted investigation by sitting at the Police Station.
15. He did not collect record of Batai. Witnesses Rampal, Sugar Singh never stated that deceased Kalyan took land of appellant Rameshwar at the rate of Rs.6000/- per year on Batai. He is having no knowledge that Kalyan and Bachhu committed Marpeet with 14 Cr.A. No.635/2010 Rameshwar due to Batai. He did not investigate the offence regarding Batai.
16. On going through his examination-in-chief and cross- examination, it emerges out that on the date of incident dated 24.08.2009, on the information of Rampal through mobile, he reached the spot and saw that deceased was lying in unconscious state. Rampal and Sugar Singh were present. After preparing spot map and seizing aforesaid articles, he took statement of the deceased in the hospital under Section 32 of Cr.P.C. in which he has stated that appellants Ramdayal having lathi, Rameshwar having gun and Megh Singh (juvenile Court) having Gadasi due to previous enmity surrounded him and appellant Rameshwar fired on him. On the spot Rampal and Sughar Singh were present. In the hospital, at the behest of Rampal, he recorded Dehatinalsi (Ex.P/1). During treatment, Kalyan died. Before recording statement under Section 32 of Cr.P.C., doctor certified that deceased Kalyan Singh is in a position to give statement. As Executive Magistrate could not be available, therefore, he recorded the statement of the deceased. Defence could not point out any discrepancy from the evidence of A.S.I. Santosh Sharma. Beside this, his evidence is well supported by Dehatinalishi (Ex.P./1).
17. By supporting the evidence of ASI Santosh Sharma, Dr. O.P. Sharma (PW-8) has stated that on 24.08.2009 he was posted as 15 Cr.A. No.635/2010 Medical Officer in District Hospital Shivpuri. On 24.08.2009 at 9:40 pm ASI Santosh Sharma took dying declaration of deceased Kalyan son of Kanchanlal. Before taking his statement, he examined the deceased and found that he was in conscious state and in a position to give statement and affixed his certificate on dying declaration Ex.P-15. Recording of dying declaration was finished at 10:15 pm. When ASI Santosh Sharma took statement of Kalyan Singh, he was admitted in Surgical Ward. He was on night duty. Before recording of statement of deceased, ASI Santosh Sharma called him.
18. During cross-examination, he has stated that before recording of statement he had talk with deceased Kalyan Singh, during which he inquired his name, time, place and circumstances. He cannot say on which bed he was admitted. Afterwards on seeing sheet chart he narrated that he was on bed No.1. Blood was transfused to him after cross matching. He admitted that at the time of recording of Ex.P-15 condition of the deceased was serious. He can not say family members of the deceased were present or not. In surgical ward, other patients and staff were present. ASI Santosh Sharma told him that no Executive Magistrate is available and due to serious condition of deceased Kalyan Singh, he was referred to Gwalior. He wants to record his statement. He denied that he has not examined deceased Kalyan and found him fit to give statement. He also denied that 16 Cr.A. No.635/2010 before him ASI Santosh Sharma did not record his statement. He denied that under the pressure of ASI Santosh Sharma he signed the statement Ex.P-15. He denied that deceased Kalyan was in semiconscious state and was not in a position to talk. Blood was transfused at 9:55 pm. Beside this, defence did not put any question. This Court is of the opinion that this doctor was on night duty. At the request of ASI Santosh Sharma, he examined deceased Kalyan and found him fit to give statement. In his presence, dying declaration of deceased Kalyan was recorded.
19. As per Head Constable Rajendra Singh (PW-7) on 24.08.2009, he was posted as Head Constable at Police Station Pohri. In the evening at 6.50 P.M., Rampal (PW-1) by telephone gave an information that Rameshwar, Ramdayal and Megh Singh fired at his uncle Kalyan Singh and requested for sending the force immediately. He entered the information in Rojnamcha No.980 at 6.50 P.M which is Ex.P/8. On this information, A.S.I. Santosh Sharma, along with Constable Dharmendra, Veerendra Babu and Ganpath by Police vehicle No.MP33/7829 departed for the place of occurrence. That entry is in Rojnamcha No.981. On 24.08.2009 Head Constable Laxman Prasad submitted a Dehatinalsi 0/09 under Section 307/34 of IPC and Sections 25/27 of Arms Act for registration, on that basis he registered Crime No.124/09 at Police Station Pohri under Sections 17 Cr.A. No.635/2010 307/ 34 and Sections 25/27 of the Arms Act which is Ex.P-13. On 24.08.2009 Head Constable Laxman Prasad brought one sealed packet, blood stained Tahmad and seal, which was seized vide Ex.P-
14. Copy of Rojnamcha (Ex.P-8 and Ex.P-9) is in his handwriting. After writing Rojnamcha, he showed Rojnamcha to A.S.I. Santosh Sharma.
19.1 During cross-examination, he has stated that on the date of incident it was a rainy season. Place of occurrence is 12 Kms. away from Police Station Pohri. F.I.R. was registered at 11.30 P.M on the basis of Dehatinalsi. A.S.I. Santosh Sharma has sent Dehatinalsi for registration of crime. On 24.08.2009 at 11.35 P.M. Head Constable Laxman Prasad Sharma brought an sealed packet containing blood stained clothes of the deceased and seal. He did not see as to whether A.S.I. Santosh Sharma had returned to Police Station or not in the night. In Rojnamcha, there was no entry of his return.
20. On the aforesaid discussion, it emerges out that this witness received the information of the crime, entered the same in Rojnamcha. Thereafter, A.S.I. Santosh Sharma proceeded along with force to the place of occurrence. On the basis of Dehatinalsi, he registered F.I.R. vide Ex.P-13 at Crime No.124/09 for the offence under Section 307, 34 of IPC and Sections 25/27 of Arms Act.
21. As per Head Constable Vrikhbhan Singh (PW-6), on 18 Cr.A. No.635/2010 29.08.2009, he was posted as Head Constable at Police Station Pohri. A.S.I. A.K. Bajpai, Police Station Kampoo, Gwalior, has recorded the Merg No.500/09 under Section 174 of Cr.P.C. On that basis, he registered Merg No.25/09 under Section 174 which is Ex.P/7. He has produced Rojnammacha Sanha of Police Station Pohri, Dak-book, counter F.I.R., inward and outward register. As per Rojnamcha Sanha No.980 of 24.08.2099 at 6.50 PM it was recorded that Rampal (PW-
1) gave an information that his uncle Kalyan was assaulted by Rameshwar, Ramdayal and Megh Singh by gun with a request to send the force immediately. His uncle is lying down in injured condition. Rojnamcha is at Ex.P-8. On this information, A.S.I. Santosh Sharma, Constable Dharmendra Singh, Veerendra Babu, Ganpat Pathak with arms & ammunition departed for the place of occurrence. Entry to this respect is made in Rojnamcha which is at Ex.P-9. Copy of the F.I.R. Crime No.134/09 under Section 307/ 34 of IPC and Sections 25/27 of the Arms Act was sent to the JMFC Pohri and entry in this regard in inward register is Ex.P/11 and entry in the Court of JMFC, Pohri, in this regard is Ex.P/12. During cross- examination, he has admitted that entries in Rojnamcha are not in his handwriting. Head Constable Rajendra Singh has made entry in Rojnamcha. At what time copy of the F.I.R. was sent to concerned Magistrate, he cannot say. On receipt, signature of the clerk is 19 Cr.A. No.635/2010 annexed, but there is no seal.
22. As per Pappu (PW-13), Rameshwar fired gunshot on stomach of Kalyan and he was brought to Shivpuri Hospital, where he was conscious. Police took statement of Kalyan in front of the doctor which is at ExP-15. During cross-examination, he has stated that Kalyan is his cousin. He was not present on the spot. On information, he reached the spot. When he reached the spot, beside Kalyan, there was nobody. He saw Rameshwar and Megh Singh running. By Police vehicle, deceased was brought to District Hospital at 9.30 PM. He denied that Kalyan was not in a position to state anything. From his evidence, it emerges out that on the information he reached the spot. Thereafter, along with the deceased he came to Shivpuri Hospital where in his presence police took statement of the deceased (ExP-15).
23. Dr. V.C.Goyal, who conducted primary examination of deceased Kalyan Singh, has stated that on 24.08.2009 he was posted as Medical Officer at District Hospital Shivpuri. On the said date, Head Constable Laxman Prasad of Police Station Pohari brought injured Kalyan. He examined the injured. During examination, he found following injuries on the body:-
(1) Two wounds over right lumber region on the stomach ad-measuring 1.5 x 1 cm deep to abdomen cavity. Omentum was coming out. Margins inverted near in place of mid axillary line. Bleeding 20 Cr.A. No.635/2010 present.
(2) One lacerated wound ad-measuring 2.5 x 2 cm. Around the wound, swelling was present. Right lumber region was near midclavicular line, from this omentum was coming out."
23.1 He advised x-ray for the wounds. Clothes of Kalyan were blood stained. After seizing clothes, he handed over the same to the Constable in which Lungi of Kalyan and towel was there. After admitting him, he has referred the deceased to Surgical Specialist. His general condition was not good. Pulse was slow. He was nervous. His blood pressure was 70 mm. Injuries appear to be caused by firearm six hours before examination. His report is Ex.P-3.
24. During cross-examination, he has stated that alongwith deceased other persons also came to the hospital. He examined the deceased on 24.08.2009 at 9:30 pm. He could not say at what time he finished his examination. In examination of the deceased by him and thereafter by Surgical Specialist it took near about one hour. Surgical specialist was Dr. P.K. Khare. He came there and remained there for sometime. He cannot say that by which firearm injuries were caused and from what distance. Deceased was talking, but he was in semiconscious state. He could not speak correctly. Beside this, no question was put to this witness.
25. Corroborating the evidence of Dr. V.C. Goyal, Dr. M.L. 21 Cr.A. No.635/2010 Agarwal (PW-5) has stated that on 24.08.2009 he was In-charge of Radiology at District Hospital. Dr. V.C. Goyal has referred deceased Kalyan for x-ray of stomach and chest. He was not in a position to stand, due to which in supine position he conducted x-ray. During x- ray, liquid was seen in the stomach and haziness was present. His report is Ex.P-5. During cross-examination, he has stated that he does not remember the name of the technician who conducted x-ray of the deceased. At what time x-ray was conducted, he could not say. Beside this, no question was put to him.
26. As per Dr. Pramod Kumar Khare (PW-12) on 24.08.2009 he was posted as Surgical Specialist at District Hospital Shivpuri. Deceased Kalyan Singh was admitted in Surgical ward. On referral by duty doctor V.C.Goyal, he examined the deceased. He was in conscious state, but his condition was serious. On pressing his stomach, he was feeling pain. Air was found in right lumber region below the skin and lower region of ribs. One-one wound was present on right and left lumber region. Omentum was coming out. Blood was transfused. Afterwards he was referred to JAH Gwalior vide P/19.
27. During cross-examination, he has stated that he saw the deceased in hospital. At 9:10 pm treatment was started. At 10 pm he was referred to JAH Gwalior. During this period, doctor transfused 22 Cr.A. No.635/2010 blood to him. Bullet passed through his body. Bullet was fired from 3 to 12-15 ft. Entry and exist wounds were present.
28. As per Sub Inspector R.P. Sharma (PW-18) on 26.08.2009, he was posted at A.S.I. at Police Station Kampoo. On enquiry of Merg No.500/09 (Ex.P-6), he prepared dead-body Panchnama of Kalyan vide Ex.P-2 and sent the dead-body for postmortem vide P-30. During cross examination, he has stated that in dead-body Panchnama (Ex.P-2), he has given his opinion that Kalyan died due to bullet injury by his experience. It is true that when dead-body was covered with cloths, no body can say how that person died.
29. Head Constable Premnath Verma (PW-11) has stated that on 26.07.2009 he was posted as Head Constable at Police Station Kampoo. He received information from JAH Hospital Gwalior vide Ex.P-18 in regard to death of deceased Kalyan son of Kanchanlal. On 25.08.2009 at 2 pm deceased died during treatment. He registered Merg No. 500/2009 under Section 174 CrPC which is at Ex.P-6. His evidence is not challenged by the defence.
30. As per Lalu (PW-3), police prepared dead-body Panchnama of deceased Kalyan Singh vide Ex.P-2. He saw the dead-body. Bullet entered from one side and passed through from another side of the stomach. On the information of his nephew, he reached by motorcycle to Shivpuri Hospital, where blood was transfused to the 23 Cr.A. No.635/2010 deceased. Thereafter, he was referred to Gwalior hospital. During cross-examination, he has admitted that at the time of incident he was not present at the spot. Deceased was his real brother. Rampal and Sugar Singh are his nephews. They are residing separately. He also admitted that due to Batai of land, there is a dispute between the accused and the complainant party. Deceased was in conscious state at District hospital, Shivpuri. He went to Gwalior along with Kalyan. He denied that he had not seen the injuries on the stomach of his brother Kalyan. Deceased Kalyan narrated the incident to him. He denied that he did not gave statement to the police. Deceased Kalyan took land of appellant/accused Rameshwar @ Rs.3,800/- per year. He denied that Kalyan has not paid the amount to Rameshwar. He denied that being brother of the deceased, he is giving false evidence. From his evidence, it is clear that in front of him, Police had prepared the dead-body Panchnama of the deceased vide Ex.P-2.
31. As per Lalu (PW-10), before him Police seized blood stained and plain soil along with blood stained vest vide Ex.P/17. During cross examination, he has stated that aforesaid seizure was done at 7 P.M. by Police Inspector. He denied that no seizure was made before him. As per Head Constable Premnath Verma (PW-11), on 25.08.2009 an information (Ex.P/18) came from J.A. Hospital at 2.00 PM that Kalyan died. On that basis, he registered Merg No.500/09 24 Cr.A. No.635/2010 under Section 174 of Cr.P.C. vide Ex.P-6.
32. As per Dr. Surendra Singh Jadon (PW-17) on 26.08.2009 he was posted as Medical Officer at JAH Gwalior. On the said date, he received dead-body of deceased Kalyan from Constable Angad Singh of Police Station Kampoo District Gwalior. Dead-body was identified by Constable Angad Singh and Bachchuram Prajapati. During examination, he found following injuries on the body of the deceased.
(1) Stitched wound present in meddle of abdomen.
(2) Stitched wound at left iliac region.
(3) Stitched wound at left iliac creast.
(4) Hallow wound at right iliac fossa 4 x4 cm.
Intestine visible.
Internal Examination Scalp, spinal cord and brain were healthy in nature. Both lungs were healthy and congested. Blood present in heart chambers. 100 ml yellow coloured liquid was found in stomach. Blood was present in lower intestine. Large intestine was stitched and somewhere ficklematter was present. Liver and pulp were healthy and congested.
Injuries occurred to large intestine, septicemia and hemorrhage may cause death due to its complication. Having 25 Cr.A. No.635/2010 sealed clothes of deceased handed over the same to the Constable.
In his opinion death was due to cardio respiratory failure result injury to large intestine and its complication. Duration of death 6-24 hrs. since postmortem.
33. During cross-examination, because wounds were already stitched, he cannot say how such injuries were caused, neither he can say about the size of the wound. There was one lacerated wound which was created during operation. He cannot say about the actual cause of death. Looking to the evidence of Dr.Surendra Singh Jadon, we are of the opinion that deceased died due to injuries in intestine, due to which septicemia occurred and he died.
34. On going through aforesaid evidence of eye-witness Rampal Singh Prajapati (PW-1) and Sughar Singh (PW-2), dying declaration of the deceased coupled with postmortem report, this Court is of the opinion that death of deceased Kalyan Singh is homicidal.
35. As per Sub Inspector T.K.Jharia (PW-15) on 4.12.2009 he was posted as Station House Officer, Police Station Sirsod. He got secret information that appellant-accused Rameshwar Yadav, resident of Atwai, is going to commit serious offence and his location is near Marwali river. He along with his staff went there. On seeing police, he tried to ran away, but with the help of police force he was caught. 26 Cr.A. No.635/2010 On enquiry, he narrated his name as Rameshwar Yadav son of Siddha Yaddav. On search, from his right pocket one 315 bore country-made Adiya riffle was seized along with cartridge and from the left pocket three cartridges of 315 bore were seized. They were seized vide ExP-
25. Thereafter, appellant Rameshwar was arrested. During cross- examination, he has stated that he had not sent ammunition to the expert for examination. He deposited the article in Malkhana of Police Station. He handed over further investigation to Head Constable Prabhu Dayal Chaturvedi. From his evidence, it emerges out that on the information he along with force reached the spot and arrested appellant- Rameshwar Dayal and from his possession, one 315 bore country made pistol and three live cartridges were seized vide Ex.P-25.
36. In view of aforesaid discussion, we are of the firm opinion that on the date of incident when deceased Kalyan Singh alongwith Rampal Singh Prajapati (PW-1) and Sughar Singh (PW-2) were returning, appellants Ramdayal Yadav, Rameshwardayal Yadav and accused Megh Singh with common intention having gun, Lathi and Gadasi, all of a sudden, came before deceased Kalyan Singh, surrounded him and appellant Rameshwardayal fired on him, due to which he died.
37. So far as the ground raised in the present appeal that 27 Cr.A. No.635/2010 independent witnesses have not been examined in support of the case of the prosecution, the Apex Court in Karulal v. State of M.P. , 2020 SCC OnLine SC 818 has held that testimony of related witnesses, if found to be truthful, can be the basis of conviction.
38. As regards the ground raised in the present appeal that there are contradictions in the statements of prosecution witnesses, in the opinion of this Court there are only minor contradictions in the statements of eye-witnesses and their evidence is firm on material aspect. The Apex Court in the case of Mallikarjun and others vs. State of Karnataka, (2019) 8 SCC 359 has held as under :
"14. Observing that minor discrepancies and inconsistent version do not necessarily demolish the prosecution case if it is otherwise found to be creditworthy, in Bakhshish Singh v. State of Punjab and another, (2013) 12 SCC 187, it was held as under:-
32. In Sunil Kumar Sambhudaya Gupta v. State of Maharashtra, (2010) 13 SCC 657 this Court observed as follows: (SCC p. 671, para 30) "30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v.
Saravanan (2008) 17 SCC 587.)"
33. ....... this Court in Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 has observed as under: (SCC p. 740, para43) 28 Cr.A. No.635/2010 "43. ... It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief."
(Emphasis supplied)
39. In view of the aforesaid analysis, this Court is of the considered opinion that trial Court has rightly convicted and sentenced the appellants as aforesaid and accordingly this appeal is hereby dismissed. Appellant No.2 is in jail, he is directed to serve remaining jail sentence as awarded by the trial Court. Appellant No.1 is on bail, he is directed to surrender before the trial Court on or before 18.04.2022, failing which the trial Court shall be at liberty to issue arrest warrant against him.
(G.S.Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
mani
SUBASRI MANI
2022.03.11
17:06:40
-08'00'