Mahavir vs State Of M.P.Thru. P.S. Karaira
2021 Latest Caselaw 9015 MP

                                        1

         THE HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR
                  (DIVISION BENCH)
                   Criminal Appeal No.287 of 2000
Mahabir & 2 others                                          ..... Appellants
                                    Versus

State of M.P.                                              ..... Respondent

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CORAM
          Hon. Mr. Justice Ravi Malimath, Chief Justice.
          Hon. Mr. Justice Deepak Kumar Agarwal, Judge.
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Presence
        Shri Hari Singh Chauhan, Advocate for the appellant.
        Shri Rajesh Shukla, learned Deputy Government Advocate
for the respondents/State.
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                                JUDGMENT

(21 December, 2021)

PER JUSTICE DEEPAK KUMAR AGARWAL

The appellants have filed this criminal appeal under Section

374 of Cr.P.C. being aggrieved by the judgment dated 09.03.2000

passed by Additional Sessions Judge, Karera, District Shivpuri in

Sessions Trial No.25/1998, convicting and sentencing each of the

appellants under Section 302 read with Section 34 of IPC for life

imprisonment with fine of Rs.5,000/- and under Section 307 read

with Section 34 of IPC for seven years rigorous imprisonment

with fine of Rs.2,000/- with default stipulation.

2. The facts giving rise to this appeal in short are that on

18.07.1997 at about 2:30 pm wife of the deceased- Ramswaroop

lodged a report at Police Station Karera, District Shivpuri alleging

therein that on the date of incident i.e. 18.07.1997 in the morning

her husband- Ramswaroop went to the field to prepare temporary

fencing. Thereafter, at 9 am by taking meal when she went there,

she saw that appellant No.2 Hukum Singh armed with axe,

appellant No.3 Raghupat armed with lathi and appellant No.1

Mahabir armed with Luhangi were assaulting the deceased. When

her brother-in-law- Rameshwar came to save Ramswaroop, they

also assaulted him with axe, lathi and luhangi with an intention to

kill him. Due to assault by the accused/appellants, her husband

received injuries on several parts of the body and he died on the

spot. Both the hands of her brother-in-law Rameshwar got

fractured. Numerous wounds were also found on the body of the

deceased from which the blood was oozing out. Due to fear that if

she went to intervene, then accused persons might also kill her,

she did not go close to the place of incident. Due to previous land

dispute, the appellants has killed her husband. She narrated the

story to Harikumhar, Mukesh Lodhi. On her report, a crime under

Sections 302, 307 read with Section 34 of IPC bearing

No.135/1997 against the accused persons was registered.

3. Injured- Rameshwar was sent for medical examination.

During examination, two lacerated wounds and five swelling

marks were found on the body of the injured. He was advised for

x-ray and according to the x-ray report, fracture of lower 1/4 shaft

of radius ulna and fracture of tip of greater trochanter was found.

Body of the deceased- Ramswaroop was sent for postmortem. Two

incised wounds, two abrasions and three marks of swelling were

found on the body. Doctor opined cause of death as shock due to

fracture of bone and excessive hemorrhage. The deceased died

within 12-36 hours of the incident. Spot map was prepared. The

appellants- Mahabir, Hukum Singh and Raghupat were

apprehended. From the possession of Mahabir one luhangi,

Raghupat one lathi and Hukum Singh an axe were seized in front

of the witnesses. Statements of witnesses were recorded under

Section 161 of Cr.P.C.

4. After completion of the investigation, charge-sheet has been

filed. Thereafter the case was committed to the Court of Session

where charges were framed against the appellants which they

denied and pleaded for trial.

5. The prosecution in order to prove its case examined

nineteen witnesses, however, the appellants did not examine any

witness in their defence.

6. After completion of the trial, the appellants were convicted

and sentenced as mentioned above. During pendency of the

appeal, their sentence has been suspended.

7. This appeal has been filed on the ground that despite

contradictions, omissions and discrepancies in the statements of

the material prosecution witnesses, the learned trial Court held the

appellants guilty for the aforesaid offences, therefore, the

impugned judgment of conviction & sentence is liable to be set

aside.

8. Learned counsel for the State supported the impugned

judgment of conviction & sentence.

9. Heard learned counsel for the parties at length and perused

the record of the trial Court.

10. In the present case, we have to see whether the aforesaid

conviction of the appellants is according to the evidence came on

record or not ?

11. As per the complainant- Geetabai (PW-3), the deceased-

Ramswaroop was her husband and she knows the

appellants/accused persons. On the date of incident, her husband

had gone to the field to prepare temporary fencing in the morning.

Thereafter, she along with meal reached there. She heard some

sound of crying. On reaching there, she saw that appellant No-2

Hukum Singh armed with axe, appellant No.3 Raghupat armed

with lathi, Mahabir armed with luhangi and Ramkali with stone

were assaulting her husband. Her brother-in-law Rameshwar also

heard some sound of crying. After assaulting her husband, the

appellants and Ramkali also assaulted her brother-in-law with axe,

lathi and luhangi. Due to which, both hands of Rameshwar got

fractured. Due to assault, her husband died on the spot. Thereafter,

the appellants ran away from the spot. She brought the dead-body

of her husband in the bullock cart along with brother-in-law

Rameshwar, mother-in-law Makhaniya, father-in-law Mulayam

Singh and another brother-in-law Ramkumar to police station. On

reaching there, she lodged a report against the appellants which is

Ex.P-2, by putting her thumb impression. The police personnel

prepared dead-body Panchnama of her husband which is Ex.P-3

and sent her brother-in-law Rameshwar for medical treatment to

Karera Hospital from where he was referred to Shivpuri Hospital.

12. During cross-examination, she stated that on the date of

incident, after sun rise her husband went to the field and she

reached the spot at around 9 am. Her brother-in-law Rameshwar

had gone to the field with cattle from Tagatiya wale kuan. During

those days, Kutki, Moong, Urad and Tilli were being harvested.

There was land dispute between the appellants and her husband

and for which a case is pending before the Court. The incident

took place at a distance of 25-30 feet from Rachwale kuan. Her

husband had gone to the field without taking breakfast or lunch.

She saw the incident from a distance of 30 steps. She reached the

spot before her brother-in-law- Rameshwar. Her brother-in-law

reached the spot after ten minutes and before that the appellants

had assaulted her husband. Thereafter, they committed Maarpeet

with her brother-in-law Rameshwar. She told the police that there

is no other field situated near her field. She does not know Khasra

number of her field. Bullock cart was being driven by her father-

in-law Mulayam Singh. There were blood stains on the bed-sheet

and blanket. The police personnel told her that her brother-in-law

will also not survive. After about one month of treatment,

Rameshwar returned from Shivpuri Hospital. She denied that in

the night some unknown persons assaulted her husband. She also

denied that her husband had gone to the well in the night. She also

dined that her husband took dinner in the night. She also denied

that she did not see the incident and did not go to the place of

incident. Due to previous enmity, she has lodged a false FIR.

13. The complainant Geeta Bai PW-3, during her cross-

examination answered the question put before her correctly.

Defence could not find out any discrepancy, omission and

contradiction in her evidence. Besides this, her evidence is well

supported by FIR which was lodged promptly on the very same

day by covering the distance of 8 km from her village to Police

Station Karera by bullock cart.

14. As per Rameshwar (PW-2), who was injured on the date of

the incident, on 18.07.1997 at about 9 am when he went for

grazing the cattle in the field, then he heard some noise; "nkSfM;ks ekj

Mkyk" and as soon as he reached on the spot, he saw that the

appellants, Hukum Singh, Raghupat and Mahabir and one

Ramkali were committing Maarpeet with his brother-

Ramswaroop. Hukum Singh armed with axe, Raghupat with lathi,

Mahabir with axe and Ramkali with stone were assaulting the

deceased. When he reached the spot, then all the accused persons

after leaving Ramswaroop started beating him. Hukum Singh

armed with axe, Raghupat armed with lathi, Mahabir armed with

luhangi and Ramkali with stone assaulted him and he received so

many injuries on his body. Thereafter, all the accused persons ran

away from the spot. His sister-in-law Geeta Bai took her husband

and him in a bullock cart to Police Station Karera and lodged a

report. From police station he was sent to the hospital Karera and

from where he was referred to District Hospital Shivpuri where he

was treated for a month.

15. During cross-examination, he has stated that on the date of

incident he had gone to graze the cattle between 7-8 am. From the

place of incident his well is situated at a distance of two Furlong.

He freed seven cattle for grazing. At a distance of 30 steps, cattle

of Asharam were also grazing. He heard the voice of his brother

Ramswaroop at a distance of one Furlong. Before 10 to 15 days,

Moong, Kutki were harvested. He is the owner of said agricultural

land. On the land, on which the incident took place is a

government land, where deceased was doing fencing work. There

is a dispute pending between Ramswaroop and Madho Mulla

regarding said land. There was nobody near the place of incident.

Hearing the sound "nkSfM;ks ekj Mkyk", he reached on the spot and

saw that deceased Ramswaroop was lying down on the field. He

could not say as to which accused inflicted how many injuries to

Ramswaroop. When he reached the spot, the appellants were

saying that they have finished Ramswaroop, now they will also

finish him. Due to assault, he sustained an axe injury on his head.

During assault by the appellants, his sister-in-law could not come

near the spot. She was standing 30 steps away from the place of

incident and was crying and weeping. He denied that when he

reached the spot, the appellants were not present there. He also

denied that only dead-body of his brother Ramswaroop was lying

in the field. After 4 to 5 days, the police recorded his statement in

the hospital in which he narrated the whole story. He denied that

in the night somebody has killed his brother. Due to previous

enmity, he is telling lie. He did not disclose in his police statement

from A to A the name of his brother Ramswaroop.

16. It is true that some contradiction and omission has come in

his cross-examination, but he has seen the incident on 18.07.1997

and his statement was recorded after about 12 months from the

date of incident. On hearing crying of his brother, he reached the

spot. In this situation, it is but natural that some contradiction and

omission would occur in his evidence. On going through the

examination-in-chief and cross-examination, it is emerged that on

the date of incident, on hearing the voice of his brother, he reached

the spot and found that his brother Ramswaroop was lying in the

field.

17. Of-course in their examination-in-chief, both the above

witnesses have stated that along with the appellants, one Ramkali

was also present on the spot and participated in the aforesaid

crime, but on going through the FIR and their statements recorded

under Section 161 of Cr.P.C. it appears that Ramkali was not

present on the spot and has not committed any crime. Besides this,

after completion of the investigation, charge-sheet against

Ramkali has also not been filed before the competent Court. Only

on this ground that both the above witnesses took name of

Ramkali along with appellants in commission of crime, their

whole testimony cannot be disbelieved.

18. By proving First Information Report (Ex.P-2) lodged by

Geeta Bai PW-3 on 18.07.1997, the then police inspector Karera,

Sobran Singh (PW-14) has stated that on 18.07.1997 at about 2:30

PM, he registered the crime vide Ex.P-2. Thereafter, he conducted

investigation. During investigation, he prepared site map (Ex.P-3)

and lodged Merg intimation (Ex.P-15). He also prepared dead-

body Panchnama of deceased Ramswaroop as Ex.P-6. He sent the

dead-body for postmortem to Karera Hospital vide Ex.P-18. He

seized soil and stone stained with blood from the spot vide Ex.P-

12. He recorded the statements of Asharam, Sugharsingh,

Rameshwar, Makhaniya, Chattarsingh, Geetabai and Hari. During

investigation, he arrested Hukum Singh vide Ex.P-7, Raghupat

Ex.P-16 and Mahabir Ex.P-17. He recorded the memorandum of

Hukum Singh as Ex.P-5. Thereafter, at the behest of Hukum

Singh, he seized an axe, Ex.P-4. He seized one Luhangi vide Ex.P-

19 from the possession of Mahabir and one Lathi vide Ex.P-20

from the possession of Raghupat. After postmortem of

Ramswaroop, he seized one sealed Potli of clothes vide Ex.P-12.

During preparation of map, he did not disclose the name of land

occupier. He did not mark the field of nearby persons. The place

of incident is one km away from village Sillarpur. In map (Ex.P-

3), it is also not mentioned that where Rameshwar and Geeta Bai

were standing. Dead-body was sent to hospital on 19.07.1997. On

03.08.1997 in the morning, he took the statement of Rameshwar.

He did not mention in the Pancnama that from where Hukum

Singh brought his axe. It is also not mentioned that the said

Luhangi was seized from the broken house of Mahabir. He denied

that Ramswaroop was killed by some unknown persons and he

falsely implicated the appellants. He also denied that he falsely

made Rameshwar and Geetabai as eye-witnesses.

19. From the evidence came on record in examination-in-chief

and cross-examination of this witness, it has come out that on

18.07.1997 he registered a report being SHO which was lodged by

Geetabai. He conducted investigation. During investigation, he

arrested the appellants and seized axe, Luhangi and Lathi from

their possession.

20. Doctor- Vinod Chaurasiya (PW-1), who examined injured

Rameshwar S/o Mulayam on 18.07.1997, stated that on

examination of injured Rameshwar, he found following injuries :

(a) one lacerated wound measuring 2 ½ cm x 1/2 cm bone deep on the parietal region of the head.

(b) one lacerated wound measuring 3 cm x 1/2 cm bone deep on left side of occipital region of head.

(c) one contusion measuring 4 cm x 3 cm on the wrist of right hand for which he cannot move his wrist.

(d) one contusion measuring 6 cm x 4 cm on the elbow of right hand.

(e) one contusion along with abrasion measuring 4 cm x 3 cm x 1 cm x 1/2 cm on the left leg.

(f) one contusion measuring 3 ½ cm x 2 cm on the right leg.

(g) one contusion measuring 6 cm x 5 cm on the right hip.

He was advised for x-ray for all these injuries. All the above

injuries are caused by hard and blunt object within 24 hours of the

examination. His examination report is Ex.P-23. Further he has

sent injured Rameshwar for x-ray to District Hospital Shivpuri.

During cross-examination, he admitted that all the injuries have

not been caused by sharp edged weapon. Aforesaid injuries may

be caused while stepping down from the stairs or by an accident.

Aforesaid injuries are not dangerous to life.

21. On going through the examination-in-chief of Doctor Vinod

Chaurasiya (PW-1), we are of the view that doctor Vinod

Chaurasiya has examined Rameshwar on 18.07.1997 and found

aforesaid injuries on his body, which were caused by hard and

blunt object, not by sharp edged weapon and were not dangerous

to life.

22. As per Dr. Govindsingh (PW-8), on 19.07.1997 Medical

Officer, Karera referred the injured Rameshwar for x-ray of skull,

wrist of right hand, right hand elbow, left leg above 1/3, right hand

above 1/3 and right hip. He performed x-ray of aforesaid parts of

the body of Rameshwar and found fractures of radius ulna bone of

right hand, fabula bone of left leg and tip of greater trochanter

bone and his report is Ex.P-9. Doctor Govind Singh has stated that

on 22.07.1997 he was posted as radiologist at District Hospital

Shivpuri. Doctor A.L. Sharma, referred injured Rameshwar for x-

ray of left hand. After x-ray, he found fracture of ulna bone of left

hand. His report is Ex.P-8, on which he put his signature.

23. During cross-examination, Dr. Govind Singh submitted that

x-ray film was not annexed with the file and how old is the

fracture he can't tell without seeing the x-ray film. Fracture of

right hip can be caused by falling on the land. At the time of x-ray,

Rameshwar was conscious.

24. Confirming the death of the deceased Ramswaroop, Dr.

Vinod Chaurasiya (PW-1) stated that on 19.07.1997 he was posted

as Assistant Surgeon in the Government Hospital, Karera. On the

said date, Constable No.313, Suresh Mishra, Police Station Karera

brought the dead-body of Ramswaroop, S/o Mulayam aged about

36 years, R/o Sillarpur for autopsy. Dead-body was identified by

uncle of the deceased Devlal and Chattar Singh, S/o Bansilal, R/o

Sillarpur. On examination of dead body, he found that dead body

is of a male person lying supine with closed eyes & mouth. He

was wearing white colored briefs and one towel was also there.

Blood mixed with water was coming out from his nose and mouth.

On examination of dead body, he found following injuries :

(a) 2 incised wound on the back of left hand measuring 2 ½ cm x 1 cm bone deep. Another incised wound was on forearm measuring 1 ½ cm x 1/2 cm bone deep.

(b) one abrasion measuring 2 cm x 1 cm on the right leg.

(c) lots of abrasion on the left hand measuring 1/2 cm x 1 cm x 1/2 cm.

(d) one contusion on the forearm of left hand measuring 10 cm x 6 cm with fracture.

(e) one contusion on left elbow measuring 8 cm x 4 cm.

(f) one contusion on the forearm of right hand and toe measuring 10 cm x 8 cm with fracture.

On internal examination, he found that skull and heart were

empty, there was no blood. In his opinion, he died due to

excessive bleeding as a result of shock within 12 -36 hours of

postmortem. All the injuries found on the dead body were ante-

mortem and homicidal in nature. His postmortem report is Ex.P-1.

During cross-examination, he admitted that there was no wound

on the head, chest and stomach. The wounds were on hand and

leg. Mark of abrasion can be caused due to dragging. The dead-

body was not sent along with the copy of the FIR. Deceased died

after 4 to 8 hours after taking meal. He admitted that he did not

mention colour of abrasion in his report. There is no rule that

postmortem should be conducted in the presence of two doctors.

25. On going through the examination-in-chief and cross-

examination of the doctor, this Court found that soon after the date

of incident, the deceased died and his postmortem was conducted

by Dr. Vinod Chaurasiya. He died due to excessive bleeding from

injuries as a result of shock between 12 - 36 hours from

postmortem and the aforesaid injuries were ante-mortem. His

death is homicidal in nature.

26. As per Chhattar Singh (PW-4), deceased Ramswaroop and

injured Rameshwar are sons of his elder brother Mulayam Singh.

He knows the accused persons because they reside in his village.

His elder son Ramkumar while coming to the house informed him

that appellants, Hukum Singh, Mahabir, Raghupat and one

Ramkali murdered Ramswaroop. On this information, he reached

the spot and saw the dead-body of Ramswaroop lying down and

Rameshwar was semi-conscious. He placed the body of

Ramswaroop in bullock cart. Deceased Ramswaroop was in

possession of a land which was adjacent to the land of appellant-

Hukum Singh and Hukum Singh used to say that the aforesaid

land belongs to him. Due to this, there was a dispute. The police

seized one axe from Hukum Singh in front of him vide Ex.P-4 and

in further enquiry a memorandum was prepared, which is Ex.P-5.

Hukum Singh disclosed about axe and thereafter the aforesaid axe

was seized. During cross-examination, this witness has stated that

enquiry was conducted at the house of Hukum Singh, from where

axe was recovered. He denied that in front of him appellant

Hukum Singh did not tell anything about axe. He also denied that

in the night somebody has killed Ramswaroop.

27. On going through the examination-in-chief and cross-

examination of this witness, it is emerged that on the date of

incident, his son Ramkumar informed him that appellants Hukum

Singh, Mahabir, Raghupat and one Ramkali killed Ramswaroop.

On this information, when he reached the spot, he saw the dead-

body of Ramswaroop lying down. He placed the body of

Ramswaroop in the bullock cart. There was a land dispute between

the appellant Hukum Singh and deceased. From the possession of

Hukum Singh, one axe was seized and he was arrested.

28. Of-course, this witness on the information of his son-

Ramkumar, named Ramkali and appellants on the spot, but he

himself has not seen Ramkali on the spot, due to which his

supporting evidence cannot be disbelieved.

29. As per Ashok (PW-7), in his presence appellant Hukum

Singh was arrested vide Ex.P-7. He was interrogated. He handed

over axe, lathi and luhangi by taking out the same from his house.

Axe was seized vide Ex-P-4 and memorandum of Hukum Singh

was recorded as Ex.P-5. During cross-examination, he stated that

proceedings of seizure were drawn at Chaupal.

30. As per Makhaniya (PW-6), deceased Ramswaroop and

injured Rameshwar are her sons. Before 11 months of recording of

her evidence at about 9 am when she was going from her house to

Rathwale Kuan and when she reached the spot, she saw that her

daughter-in-law Geetabai was crying by saying that her both sons

were killed. She found that Ramswaroop has died and Rameshwar

is speaking slowly. Accused persons ran away. Her daughter-in-

law told her that appellants Hukum Singh, Mahabir, Raghupat and

one Ramkali killed her both sons due to land dispute. Rameshwar

was brought to hospital by bullock cart. Her daughter-in-law

Geetabai had gone to lodge a report. During cross-examination,

she admitted that she had gone to police station, where she and her

husband along with Ramkumar narrated the story. It is incorrect

that police made enquiry after 15 to 20 days. On the disputed land,

Mudi of Hukum Singh was there. From last 30 years, they are

cultivating the land. At the time of incident, groundnut was sown.

Deceased Ramswaroop had not taken meal at home. Thereafter,

her daughter-in-law Geetabai took meal for him. He could not tell

about the distance from her house to the place of incident. She

went there after half an hour of her daughter-in-law. She denied

that in the night some body killed her son. She denied that the

disputed land is of Chhunda. There was no case pending regarding

said land between them and Hukum Singh. After perusing the

evidence of this witness, this Court is of the opinion that deceased

Ramswaroop and injured Rameshwar are her sons. On crying of

her daughter-in-law Geetabai, she reached the spot and saw

Ramswaroop lying down and Rameshwar in injured condition.

Her daughter-in-law told her that due to land dispute, appellants

Hukum Singh, Mahabir, Raghupat and one Ramkali killed them.

31. As per Manoj Sharma (PW-9) the police has prepared dead-

body Panchnama of Ramswaroop vide Ex.P-6 and seized plain

and blood stained soil and blood stained stone from the spot vide

Ex.P-12. During cross-examination, he admitted that he did not go

to the spot and he was sitting in the jeep. The police personnel

took his signatures in the said jeep. As per Constable Babulal

(PW-11), one sealed Potli was seized by him vide Ex.P.13. As per

Constable Babulal (PW-13), he brought one sealed Potli from

Karera Hospital. Sughar Singh (PW-12), Kailashnarayan (PW-16)

and Shankar Singh (PW-17) have not supported the prosecution

case.

32. As per Asharam (PW-18), he knows the appellants/accused

persons. They were residents of his village. Before two years of

recording of his evidence between 8-9 am, when he was on the

field of Dhaniram, he heard sound of the appellants/accused

persons. They were telling- "if you come here then you will be

killed". They also told him to go away from the spot. Appellants

armed with Lathi, Kulhadi, Jeri were on the field. They were

committing Marpeet with Ramswaroop. Later on, many persons

assembled there. During cross-examination, he stated that incident

took place near Chirai Pahadiya. Near the place of incident,

Dhaniram's field was there. He saw the incident from a distance of

50 feet. As there was nobody near the place of incident, that's why

he did not cry for help. The police took his statement on the next

day. He stated that he informed the police that appellants were

crying that they will finish him, but if said fact is not mentioned in

his police statement (Ex.D/3), he cannot give any reason. Due to

fear, he could not go to see Ramswaroop because appellants had

started assaulting Ramswaroop. He denied that he did not tell

about the incident to anyone. He also denied that after 1 ½ month,

the police took his statement. He also denied that after two hours

of the incident, he reached the spot. He admits that 28-30 years

back, Mangalsingh was murdered, for which the villagers

collected money, but appellants did not contribute in the same. He

saw the appellants assaulting Ramswaroop. He could not say that

from which injury of Ramswaroop blood was oozing out. He

denied that due to previous enmity, he is giving false evidence

against appellants Hukum Singh, Mahabir and Raghupat. This

witness has also stated that appellants were committing Marpeet

with Ramswaroop. Due to threatening, he could not go close to the

place of incident.

33. Of-course Sobran Singh (PW-14) has not supported the

prosecution case regarding commission of crime by the appellants,

but he has admitted that Ramswaroop died in the village. He heard

the sound that appellants have killed him.

34. As per Gopal Singh (PW-5), he stated that before him dead-

body Panchnama (Ex.P-6) was prepared, but map (Ex.P/3) was not

prepared in his presence but the same bears his signature. During

cross-examination, it has come on record that he is the owner of

jeep and he used to drive his jeep on rent. He cannot say that at the

time of preparation of dead-body panchnama how many persons

were there.

35. As per Sughar Singh (PW-12), he signed on Ex.P-14 which

is memorandum of Mahabir recorded by the IO. He has not

supported the prosecution case. He stated that it is wrong to say

that in front of him statement of Mahabir was taken regarding

recovery of Luhangi. Only on the ground that this witness has not

supported the memorandum given by Mahabir, whole prosecution

story cannot be disbelieved.

36. After examining the evidence of the aforesaid prosecution

witnesses, this Court is of the considered view that the evidence of

Geetabai (PW-3) wife of the deceased and Rameshwar (PW-2) is

consistent on material facts and their evidence is corroborated by

the evidence of Chhattar Singh (PW-4) as well as medical

evidence of Dr. Vinod Chaurasiya (PW-1) and Dr. Govind Singh

(PW-8).

37. 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)

"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)

38. In view of the aforesaid discussion, this Court is of the

opinion that trial Court has not committed any error in convicting

the appellants for the murder of Ramswaroop under Section

302/34 of IPC. So far as offence under Section 307/34 of IPC for

attempt to commit murder of injured Rameshwar is concerned,

according to doctor Vinod Chaurasiya (PW-1), injuries inflicted by

the appellants to injured Rameshwar are not dangerous to life.

There is no incised wound. The injuries are not on vital parts. In

such circumstances, conclusion of the trial Court that appellants

have attempted to commit murder of Rameshwar is not justified.

According to injured Rameshwar (PW-2), all the accused persons

by dangerous weapons assaulted him. Fracture was found in x-ray.

In this situation, this Court is of the view that in place of Section

307 of IPC offence under Section 326 of IPC is made out.

Accordingly, conviction of appellants under Section 307/34 of IPC

is altered to Section 326/34 of IPC.

39. Consequently, the appeal is partly allowed. Conviction &

sentence of the appellants under Section 302/34 of IPC is

affirmed, however, conviction of the appellants under Section

307/34 of IPC is altered to Section 326/34 of IPC and they are

sentenced to undergo 5 years RI with fine of Rs.1,000/- each

under Section 326/34 of IPC. Both the sentences shall run

concurrently. The appellants are on bail, they are directed to

surrender before the trial Court on or before 17.01.2022, failing

which the trial Court shall be at liberty to issue arrest warrant

against them.

                      (RAVI MALIMATH)               (DEEPAK KUMAR AGARWAL)
                        CHIEF JUSTICE                       JUDGE
bj/-
       BARKHA
       SHARMA
       2021.12.2
       1 18:14:19
       +05'30'