Madhya Pradesh High Court
Amarsingh And 04 Ors. vs The State Of Madhya Pradesh on 2 November, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 2nd OF NOVEMBER, 2022
CRIMINAL APPEAL No. 240 of 2010
BETWEEN:-
NITESH S/O RAMESH, AGED ABOUT 29 YEARS,
BEHIND SARASWATI MANDIR, SHUJALPUR
2.
MANDI (MADHYA PRADESH)
BADDA @ VIJENDRA S/O ASHOK, AGED ABOUT
3. 21 YEARS, BEHIND SARASWATI MANDIR,
SHUJALPUR MANDI (MADHYA PRADESH)
VIKAS S/O MANOHAR, AGED ABOUT 26 YEARS,
5. BEHIND SARASWATI MANDIR, SHUJALPUR
MANDI (MADHYA PRADESH)
.....APPELLANT
(BY SHRI R. B. SINGH, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH GOVT.
THROUGH POLICE STATION SHUJALPUR
DISTT. SHAJAPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI N. S. BHATI, G.A. )
......................................................................................................
Reserved on 28.09.2022
2
Delivered on 02.11.2022
......................................................................................................
This appeal coming on for judgement this day, JUSTICE
SUBODH ABHYANKAR passed the following:
JUDGEMENT
1] This criminal appeal has been filed under Section 374(2) of Cr.P.C. against the judgement dated 18.01.2010, passed in Sessions Trial No.352/2008 by II Additional Sessions Judge (Fast Track Court), Shujalpur, District Shajapur (MP) whereby finding the appellants guilty, the learned Judge of the trial Court has convicted them under Sections 302/149, 147, 148 of IPC and sentenced them to undergo rigorous imprisonment for life with fine of Rs.500/- each, six months RI to appellant No.2 Nitesh and appellant No.4 Vishal under Section 148 of IPC with fine of Rs.300/- each and four months RI to appellant No.1 Amar, appellant No.3 Badda @ Vijendra and appellant No.5 Vikas under Section 147 of IPC with fine of Rs.200/- each with default clauses.
2] Appeal against Appellant No.1 Amar Singh and Appellant No.4 Vishal has already been dismissed as withdrawn vide order dated 26.09.2022.
3] In brief, the facts of the case are that on 15.09.2008, at around 9:00 AM in the morning, in front of Co-operative Bank City Mandi, Road, Shujalpur when the deceased Magan, who worked in Omini Hospital, Shujalpur as a sweeper was going in a 3 tempo along with his two friends Sumit and Sanju to Omini Hospital, at that time when the tempo stopped in front of the cooperative bank, appellant No.1 Amar, appellant No.2 Nitesh and appellant No.4 Vishal also boarded the tempo and immediately appellant Amar gave a stick blow in the face of deceased Magan and thereafter they dragged him out of the tempo and thereafter appellant No.3 Badda @ Vijrendra, accused Rahul a juvenile, and appellant No.5 Vikas also came on the spot, whereas Amar gave a stick blow on the head of the deceased, Vishal gave a sword blow again on his head, whereas Nitesh also assaulted him with a sword, which hit him on his right hand's palm, and Badda as also Rahul assaulted him with a stick.. The dispute is said to have arisen out of a theft of pig. Magan's friends Sumit and Sanju immediately put him again in an another tempo and took him to the Government Hospital, Shujalpur. From Shujalpur Magan was taken to Hamidia Hospital, Bhopal. The Dehati Nalshi of the incident was lodged by none other than the deceased Magan himself and authored by PW- 11 Rodsingh Thakur, Assistant Inspector vide Ex.P/16, on the basis of which Crime No.342 of 2008 was registered under Sections 307, 323/34 of IPC at Police Station Shujalpur proved as Ex.P/22. The deceased died on the same day in the Hamidia Hospital, Bhopal i.e. on 15.09.2008 only. After his death, the original Marg No.38/2008 was registered at Police Station Shujalpur, which is Ex.P/21 and Section 302 of IPC was also added in the case. During the course of investigation, the accused persons were arrested, charge sheet was 4 filed and after the case was committed, learned judge of the traial court has convicted the appellants as aforesaid. Hence this appeal. 4] Shri R. B. Singh, counsel for the appellants has submitted that the learned Judge of the trial Court has wrongly appreciated the deposition of PW-2 Sanjay and PW-3 Sumit, who are said to be the eyewitnesses and there are material omissions and contradictions in their Court statements. It is also submitted that the learned Judge of the trial Court has erred in relying upon the Dehati Nalshi, which was lodged by the deceased Magan as his dying declaration and thus, it is submitted that the impugned judgement be set aside and appellants be acquitted.
5] Counsel appearing for the respondent/Sate, on the other hand, has opposed the prayer and it is submitted that no illegality has been committed by the learned Judge of the trial Court in passing the impugned judgement.
6] Heard counsel for the parties and perused the record. 7] So far as the injuries suffered by the deceased Magan are concerned, he was initially treated by PW-6 Dr. B. L. Gupta at Shujalpur Hospital where he found 17 injuries inflicted on the person of the deceased, which has been proved as Ex.P/3, whereas after the death of Magan, his postmortem was conducted by PW-1 Dr. Geetarani Gupta, Medico Legal Institute, Bhopal and has found as many as 32 injuries on the entire body of the deceased Magan. The cause of death is said to be excessive bleeding resulting in shock caused by hard and blunt as also sharp edged weapons, as 5 also weapons which can be used to stabbing. Postmortem report has been proved as Ex.P/1. Dr. Geetarani Gupta who has given details description of the injuries suffered by the deceased, the same are being reproduced here under:-
"12- Lkk{kh MkW- xhrk jkuh xqIrk us crk;k gS fd pksV dzekad 01 daVwtu rFkk ,ojstu nkfguh Hkqtk ds e/; esa iksLVsfj;ks jhVzy Hkkx ij FkkA daVwtu dk vkdkj 6x3 ls-eh- o [kjksap dk vkdkj 1x0-5 ls-eh- tks fd mijh fljs ij Fkk] ftldh fn'kk mij dh rjQ o fjVzyh FkhA pksV ua-2 daVwtu o ,sczstu ckabZ vxz Hkqtk ds ,DVsu'kj Hkkx ij Fkk] bldk vkdkj 12x3 ls-eh- [kMs esa vkSj [kjksap dk fu'kku 6x1 ls-eh- uhps dh rjQ Fkk] ftldk mlus fp= cuk;k gSA pksV ua-3 daVqtu o ,czstu ckabZ vxz Hkqtk ds ,DVsUlj Hkkx ij Fkk tks fd ua-2 ls pkj ls-eh- lsaVzy FkkA ftldk vkdkj 6 @3 ls-eh- [kMs esa FkkA pksV ua-4 jsV isVuZ czqt [kjksp ds lkFk ckabZ vxz Hkqtk ds ,DVsUlj Hkkx ij Fkk tks fd vyek ds dksjksukbZfVd ls izkjaHk gqvk Fkk] ftldk vkdkj 6- 5x3 ls-eh- fn'kk uhps dh rjQ o yhVzyh FkhA pksV dz-5 jsV isVuZ czqy [kjksp ds lkFk tks ckabZ vxz Hkqtk ds IysDlj Hkkx ij Fkk tks D;wchVy dzht ls 3 ls- eh- uhps FkkA ftldk vkdkj 5x3 ls-eh- uhps ds rjQ vkSj fefM;yh Fkh vkSj nks [kjksapksa dk vkdkj 5 ls-eh- O;kl dk vfu;fer Fkk o buds chp dh nwjh
-8 ls-eh- FkhA pksV ua-6 fjQ~;wTk daVwtu ckabZ vxz Hkqtk ds ,DVsalj Hkkx ij QysDlj Hkkx 12x6 ls-eh- [kMs esa vkSj QysDlj Hkkx ij 14x14 ls-eh- vfu;fer Fkk] pksV ua-7 [kjksap dk fu'kku ,DVsalj Hkkx ij ckabZ dykbZ ij 4x3-5 ls-eh- [kMs esa baVzIVsV FkkA pksV ua- 8 fMQ~;wTk daVwtu nkfguh Hkqtk ,oa vxz Hkqtk ij lHkh rjQ Fkk tks fd Hkqtk ds e/; ls izkjaHk gksdj vxz Hkqtk ds e/; rd Fkk] ;g daVqtu 24 ls-eh- dh yackbZ esa FkkA 13- lk{kh xhrk jkuh xqIrk us crk;k gS fd pksV dz-9 Hkksadk gqvk ?kko nkfguh Hkqtk ds lsaVzy Hkkx ij Fkk tks fd g~;wejl ds fupys fljs ls ikap ls-eh- mij ls izkjaHk gqvk Fkk ftldk vkdkj 2-5x.5 ls-eh- Fkk] bldk mijh fljk pkSMk o fupyk iryk [kMs esa FkkA ftldh yackbZ 10 ls-eh- Fkh] Vzsd dh fn'kk mij dh rjQ vkxs dh rjQ o e/; js[kk dh rjQ o bZdkbZ esa FkkA pksV ua-10 [kjksap dk fu'kku nkfguh dksguh ij ftldk vkdkj 3-5 ls-eh- dk vfu;fer FkkA pksV ua-11 nkfguh U;wejl dk fupyk fljk o jsfM;l o vyuk ds e/; esa QzsDpj Fkk] pksV ua- 12 fMQsUl bu lkbZM cqu nkfgus gkFk dh vaxwBs o rtZuh ds chp dh f>YYkh ij nksuksa rjQ Mksly Hkkx ij ftldk vkdkj 3x-5 ls-eh- vkSj gFksyh okys Hkkx ij 8x2 ls-eh- fn'kk uhps dh rjQ fyVzyh FkhA pksV ua-13 [kjksap dk fu'kku nkfgus iVsyk ij Fkk] ftldk vkdkj 2x-5 ls-eh- fn'kk uhps dh rjQ fyVzsyh FkhA pksV ua-14 [kjksap dk fu'kku nkfgus Q~;wyk ds mijh fljs ij Fkk ftldk vkdkj -5 ls-eh- O;kl dk FkkA pksV ua-15 [kjksap dk fu'kku nkfgus fefM;y esfy;ksyl ij ftldk vkdkj 2x2 ls-eh- vfu;fer FkkA pksV ua- 16 QVk gqvk ?kko nkfgus Vkax ds lkeus okys Hkkx ij Fkk tks dsfcy; fVcjkslkVh ls ,d ls-eh- uhps Fkk ftldk vkdkj 3-5x8 ls-eh- [kMs esa FkkA mldks pksV ua-17 Hkksadk LVscqu nkfguh Vkax ds ,uVhfj;ks feM;y 6 Hkkx ij Fkk tks ,sMh ls 3 ls-eh- mij Fkk ftldk vkdkj 3-5x.8 [kMs es FkkA mldk mijh fljk pkSMk o fupyk iryk FkkA ;g ekalisf'k;ksa esa nks ls-eh- yackbZ rd x;k Fkk] Vsd dh fn'kk uhps dh rjQ] ihNs dh rjQ o 'kjhj ds e/; js[kk dh rjQ FkhA pksV ua- 18 LVscqu nkfguh Vkax ds lkeus okys Hkkx ij tks fd ,sMh ls 16 ls-eh- mij Fkk] ftldk vkdkj 3 x-8 ls-eh- [kMs esa Fkk] mijh fljk pkSMk o fupyk iryk Fkk tks ekalisf'k;ksa esa 3 lsa-eh- yackbZ rd x;k Fkk o Vzsd dh fn'kk uhps dh rjQ ihNs o fyVzyh FkhA 14- lk{kh xhrk jkuh xqIrk us crk;k gS fd pksV ua- 19 isfuVzfuax nkfguh Vkax ij] ,aVzhcqu ,aVhfj;ksfeVy Hkkx ij Fkk tks fd ,sMh ls 3 ls-eh- mij Fkk ftldh yackbZ 3-5 x-8 ls-eh- [kMs esa FkkA mijh fljk pkSMk o fupyk fljk iryk FkkA ,DthV cqu ,sMh ls 16 ls-eh- mij FkkA ftldk vkdkj 3 x-8 ls- eh- [kMs esa FkkA mijh fljk pkSMk o fupyk iryk Fkk] Vzsd dh yackbZ ikap ls- eh- Fkh] fn'kk uhps dh rjQ ihNs o 'kjhj ds e/; js[kk dh rjQ o bZdkbZ eksLV FkhA pksV ua-20 cgqr lkjs [kjksap ds fu'kku ckabZ Vkax ds mijh Hkkx ls izkjaHk gqbZ Fkh vkSj lsaVzy Hkkx ij FkhA ftldk {ks=Qy 0x8 ls-eh- FkkA budk vkdkj ,d ls-eh- O;kl ls 3x-5 ls-eh- fofHkUu fn'kkvks esa FkkA pksV ua-21 [kjksap dk fu'kku ckabZ Vkax ij V[kus ds lkeus okys Hkkx ij FkkA ftldk vkdkj 3-5x1 ls-eh- [kMs esa baVjkisV FkkA pksV ua-22 fM~Q~;wty daVqtu ckabZ Vkax ij mijh Hkkx ij ftldk {ks=Qy 25x10 ls-eh- [kMs esa FkkA ;s iksLVhjksysVy Hkkx ij FkkA pksV ua-23 cgqr lkjs jsy isVuZ cqu ckabZ tkax ds ysVzy Hkkx ij tks fd fQej ds uhps fljs ls izkjaHk gqvk FkkA ftldk {ks=Qy 25x15 ls-eh- [kMs esa FkkA dqN daVwtu vkil esa ,d nwljs ls feys FksA bldk vkdkj 6x3 ls-eh- ls 4x3 ls-eh- Fkk] ftudh fn'kk uhps dh rjQ o 'kjhj ds e/; js[kk dh rjQ FkhA 15- blh izdkj pksV ua-24 nks [kjksp ds fu'kku ckabZ tkax ds lsaVzy Hkkx ij e/; esa ftudk vkdkj ,d ls-eh- O;kl dk Fkk o buds chp dh nwjh 3 ls-eh- FkhA pksV ua-25 bu QzsDpj cqu nkfgus iqV~Bs ij fefM;jy Hkkx ij e/; esa ftldk vkdkj 2 ls-eh- O;kl dk FkkA pksV ua-26 cgqr lkjs [kjksap ds fu'kku ihB ij Fks ckabZ rjQ ls ikap ls-eh- mij Fks tks mij rjQ nkfgus rjQ 'kjhj dh e/; js[kk dks dzkl djrs gq, x;k] ftldk vkdkj 25x18 ls-eh- FkkA budk vkdkj vkyfiu ds fljs ls 4x2 ls-eh- dk FkkA iqlfyfu;k Fkk] budh yackbZ ,d ls nl ls-eh- Fkh o dqN vkil esa ,d nwljs ls feys gq, FksA pksV ua-27 [kjksp dk fu'kku ckabZ rjQ lhus ij tks fd lwizkLVjuy ukst ls 6 ls- eh- uhps dh vksj e/; js[kk ls Bhd ckabZ rjQ Fkk ftldk vkdkj 4x3 ls-eh- vkMs esa FkkA pksV ua-28 [kjksap dk fu'kku nkfguh rjQ lhus ij] tks fd ,aVhfj;j lqihfj;j bfy;d Likbu ls 14 ls-eh- mij o 'kjhj dh e/; js[kk ls 13 ls-eh- nkfguh rjQ Fkk] ftldk vkdkj 4x3 ls-eh- vkMs esa FkkA pksV ua-29 [kjksap dk fu'kku jsy dVj cqu [kjksap esa nkfguh rjQ lhus ij Fkk tks fd ysVjy lkbZM ij Fkk tks cxy ls 19 ls-eh- uhps Fkk] ftldk vkdkj 5x2-5 ls-eh- uhps dh rjQ vkxs dh rjQ o 'kjhj ds e/; js[kk dh rjQ FkkA pksV ua-30 jsy dVj cq'k [kjksap ds lkFk nkfgus Qsax ij Fkk tks fd pksV ua- 29 ls 6 ls-eh- uhps Fkk] ftldk vkdkj 6x2-5 ls-eh- mij dh rjQ 'kjhj dh e/; js[kk o vkxs dh rjQ FkkA pksV ua- 31 lftZdyh Vkads yxk gqvk ?kko nks 7 Vkads ds lkFk nkfguh rjQ lhus ij Fkk tks fd 'kjhj ds e/; js[kk ls 15 ls- eh- nkfguh rjQ Dysfody ls 19 ls-eh- uhps o ,sMh ls 111 ls-eh- mij ftldk vkdkj 3x-5 ls*-eh- fn'kk uhps dh rjQ vkSj fefM;yh mijh fljk pkSMk o fupyk fljk iryk Fkk] ;g Iyqjy dsfofVo esa gsMjs baVj iksLVy ls gksrk gqvk x;k Fkk] tgka ij nkfgus QsQMs ds fupys uksd ij fud Fkk] Vzsd dh yackbZ 14 ls-eh- Fkh] ,dkbZ eksLV Fkk] tks vkxs ls ihNs dh rjQ] mij ls uhps dh rjQ vkSj ysVzy ls fefM;yh Fkh] Iyqjy dsosfVo esa dsoy 200 ,e-,y- jDr Fkk] ftlesa ls dqN tek gqvk FkkA pksV ua- 32 lftZdyh Vkads yxk gqvk ?kko nkfguh rjQ [kksiMh ij Fkk tks fd esLVkbZV ls 12 ls-eh- mij o Xysoyk ls 20 ls-eh- mij 'kjhj dh e/; js[kk ls 1-5 ls-eh- nkfguh rjQ Fkk] ftldk vkdkj 4x2 ls-eh- FkkA nks Vkads yxs Fks] ftldh fn'kk vkxs dh rjQ o ckabZ rjQ feM ykbZu dks dzkl djs gq, Fks] ftldh uhps Ldsy bdkbZ eksLV Fkk] efLr"d ,MehVj o isy Fkk] lh-,p-,Q- LoPN FkkA"
8] On perusal of the aforesaid injuries, suffice it to say that the deceased has suffered just about every nature of injuries including scratches, abrasions, stab wounds, incised wounds and fractures. Postmortem report has been proved as Ex.P/1. Thus, there is no doubt about it that the death of the deceased Magan was homicidal in nature.
9] Now coming to the culpability of the offence, it is found that the prosecution has examined two eyewitnesses; first is PW-2 Sanjay S/o Jayram, who happens to be a friend of the deceased Magan and other eyewitness Pw/3 Sumit, also a friend, were accompanying the deceased in the same tempo. Pw/2 Sanjay has also reiterated the story as given by the deceased in Dehati Nalshi that when they were going in a tempo at around 9 O' clock in the morning when it stopped before cooperative bank, A-Amar, A- Nitesh and A-Vishal came and Amar gave a stick blow to the deceased Magan in his face and thereafter they dragged him out, at that time A-Badda, Rahul and A-Vikas also came on the spot and 8 Amar assaulted the deceased Magan with a stick. Nitesh had a sword, Vishal also had a sword, who caused injuries on the head and Vishal again with a sword and Nitesh with a stick assaulted him on his hand. Badda had caused stick injuries on his right hand and as such all the accused persons started assaulting the deceased with a view to murder him. He has admitted that when the appellants were assaulting the deceased, at that time he and Sumit stood at a distance and when the appellants left the spot, only then they took the deceased Magan in a tempo to the Government Hospital, Shujalpur as Magan was also bleeding profusely and from there, Magan was referred to Hamidia Hospital, Bhopal. Pw/2 Sanjay also informed the police about the spot where the incident took place, which is Ex.P/2. In his cross-examination, he has admitted that on account of theft of pigs around two months ago, deceased had a dispute with the appellants. He has also admitted that in front of him only Vishal had caused head injury with a sword to the deceased Magan. He has also admitted that the persons, who had entered into tempo did not have the sword with them, however, the persons who were standing outside had sword with them. 10] Similarly, PW-3 Sumit S/o Ram Chandra has also deposed in favour of the prosecution and has reiterated the same story as has been narrated by the deceased Magan in the Dehati Nalshi. 11] PW-4 Mumtaz Khan happens to be the driver of the tempo, however, he has not supported the case of the prosecution. PW-5 Deepak, a seizure witness and although he has supported the case of 9 the prosecution, but has also admitted that he put his thumb impression on the documents in the police station only. PW-7 Rahul S/o Jayram has supported the case of the prosecution and has proved the Ex.P/5, which is the seizure memo of deceased Magan's clothes etc. PW-8 happens to be the wife of the deceased Magan, since she is a hearsay witness, who was informed about the incident by the eyewitness Sanju, she has also stated that the appellants and her husband had a dispute with respect to theft of pigs, no further importance can be attached to her statement. PW-9 Kanu @ Karansingh is the seizure witness, who has deposed that the accused persons got recovered certain weapons. He has stated that two persons got recovered swords, whereas the other persons informed about the sticks. The aforesaid memos are proved as Ex.P/6 to P/10. He has stated that the appellants Vishal and Amar has led the recovery of swords, whereas from other appellants sticks have been seized. In his cross-examination, he has stated that he signed the memo in the police station as also at the place from where the weapons have been seized and he has categorically denied that he has only signed the papers and no seizure took place before him. PW-10 Kailash Nema, however, the other seizure witness has not supported the case of the prosecution.
12] PW-11 Rod Singh Thakur is an important witness as he is the author of Dehati Nalshi proved as Ex.P/16, which was lodged by none other than the deceased Magan himself when he was taken to the Shujalpur Hospital. In his cross-examination he has stated that 10 he was informed about the incident when he was sitting in Shujalpur Chowki at around 9 O' clock. The information was given to him by a tempo driver that in front of bank some peoples have quarreled and an injured has been taken to Hospital in a tempo. Thus, after receiving this information he has proceeded to the Hospital after recording the same in the Roznamcha. He has stated that after receiving the information, within 15 minutes he has reached the Hospital, where he found Magan was lying in OPD and was speaking at that time. He has also stated that Magan had an injury on his face also, but he was still speaking. He also asked deceased Magan if he has lodged the report to which he informed that he has come directly to the Hospital. Pw/16 has also stated that the statement under Section 161 of Cr.P.C. was also recorded by him of Magan. However, the aforesaid police statement has not been called or proved by the defence on record. This witness has stated that as the deceased Magan was speaking when he reached the Hosptial, hence he did not ask the doctor to give an opinion whether Magan was in a fit condition to give statement. He has also admitted that he could have taken the thumb impression of the deceased on the said statement, however, as the deceased informed him that he can sign from his left hand, that's why his signatures were obtained from the left hand. No suggestion has been given by the defence to this witness that the deceased was unconscious when he was taken to the Hospital and was not fit enough to give even a police statement. It is also found that PW-6 Dr. B. L. Gupta, who 11 had initially examined and treated the deceased Magan has also not been suggested that the deceased was unconscious when he was brought to the Hospital, and on the contrary it is suggested to him that the deceased did not suffer any grievous injury, which is also reflected from para 8 of his cross-examination.
13] PW-15 R.P. Kusmakar is the SHO of Police Station Shujalpur. He has proved the FIR Ex.P/22 lodged at Crime No.342 of 2008 under Section 307, 323/34 of IPC. He has also been witnessed to the arrest of the appellants proved as Ex.P/23 to P/27 and also the seizure effected from the appellants. He has stated that from the possession of Vikas a stick was recovered from his house, which is Ex.P/6 and Ex.P/15 is the memo under Section 27 of the evidence Act. According to him from the appellant Badda also a stick has been recovered, which is Ex.P/7. From appellant Vishal a sword has been recovered vide Ex.P/14. From Nitesh again a sword has been recovered vide Ex.P/12. From appellant No.1 Amar a stick has been recovered vide Ex.P/10. These articles were also sent to the Forensic Science Laboratory vide Ex.P/28. The FSL report has been proved as Ex.P/29 and the articles D, E, F, G, H and I seized from the present appellants as also the co-accused have been found to have the blood stains on them and except the stick recovered from appellant Amar, all the other articles were found to be stained with human blood. However, the report of the FSL says that the results were inconclusive. So far as the admissibility of such report is concerned, the Supreme Court in the case of Ramnaresh v. State 12 of Chhattisgarh, (2012) 4 SCC 257 has held as under :-
"18. PW 1, PW 6 and PW 12 had substantially supported the case of the prosecution and we are unable to notice any substantial conflict or contradiction in their statements. The semen, blood and bloodstained clothes, which had been seized during the investigation, had been sent for examination. The report of the FSL had been placed on record as Ext. P-23. Such evidence would be admissible in terms of Section 293 CrPC.
19. The merit or otherwise of this report was examined by the High Court as follows:
"(8) During trial, report of the Forensic Science Laboratory, Raipur, Ext. P-23 dated 31-7-2007 was produced and admitted in evidence under Section 293 of the Code by which the presence of blood on Articles A, B, C, D, E, F1, F2 and presence of seminal stains and human spermatozoa on Articles C, D, E, F1, F2, G1, H1, I1, J1 and K1 was confirmed. Seminal stains and human spermatozoa was not found on Articles A and B. The seminal stains on Articles C, D, E, F1 and F2 were not sufficient for serological examination. The slides Articles G2, H2, I2, J2 and K2 were preserved if DNA test was felt necessary. The prosecution examined as many as 16 witnesses. The appellant-accused examined Samelal, DW 1 and Kamla, DW 2, wife of Ranjeet to establish that the appellant-
accused had slept in their respective houses between 9 to 10 p.m. on 9-8-2006."
20. As is evident from the above findings, the report of the FSL was inconclusive but not negative, which would (sic not) provide the accused with any material benefit."
(emphasis supplied) 14] In such circumstances, testing the FSL report proved in the present case on the touch stone of the aforesaid decision, it is apparent that it cannot be discarded altogether and can be used in 13 support of the case of the prosecution to corroborate the other evidence. On appreciation of the aforesaid evidence, it is apparent that the Dehati Nalshi Ex.P/1 was lodged by the deceased Magan himself, whereas the incident has been witnessed by PW-2 Sanjay and PW-3 Sumit. This Court does not find any infirmity or inconsistency in the narration of the incident in Dehati Nalshi at the instance of the deceased Magan as also the eyewitnesses Sanjay and Sumit coupled with the testimony of PW-11 Rod Singh Thakur, who had authored the Dehati Nalshi Ex.P/16. It is found that in the Dehati Nalshi the time of incident is said to be 9:00 AM of 15.09.2008, whereas the Dehati Nalshi was recorded within 25 minutes i.e. at 9:25 AM naming all the appellants and the overt act attributed to them. It is also found that the deceased has suffered as many as 32 injuries, which have also been duly proved by PW-1 Dr. Geetarani Gupta and merely because she did not find any injury on the face of the deceased, it cannot be said that the entire story of the prosecution is liable to be rejected. It is true that in the MLC of Magan, only 17 injuries were found but this discrepancy cannot be said to be fatal to the case of the prosecution as has been rightly held by the learned judge of the Trial court that when the deceased was brought to the hospital in an injured state, the focus of the doctor was to treat him first and not the count each and every injury. In the facts and circumstances of the case, the manner in which the incident has taken place where initially the appellants Amar, Nitesh and Vishal dragged the deceased out of Tempo and thereafter, 14 Badda, Rahul and Vikas, also came on the spot and assaulted the deceased along with the other three accused persons , it cannot be said that there was no common object shared by these accused/appellants amongst them to murder the deceased. In such circumstances, even if only two accused/appellants were found to be having sword and other having sticks, it is positively proved by the prosecution beyond reasonable doubt that all of them were the members of an unlawful assembly and shared common object to murder the deceased Magan.
15] Resultantly, this Court does not find any error in the reasoning assigned by the learned Judge of the trial Court in convicting the appellants. Accordingly, the appeal being devoid of merits, is hereby dismissed.
16] Appellant No.5 Vikas is on bail, his bail bonds are cancelled and he is directed to surrender before the trial Court within two month's time, failing which he shall be arrested and made to suffer the remaining part of the jail sentence as awarded by the Trial Court.
(SUBODH ABHYANKAR) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Pankaj
Digitally signed by PANKAJ PANDEY
Date: 2022.11.03 13:38:30 +05'30'