Tejpal & Ors. vs The State Of M.P.
2021 Latest Caselaw 6072 MP

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



CRIMINAL APPEAL NO.                           1053/1998
APPELLANTS                     TEJPAL AND ANOTHER
                                         VS.
                               STATE OF MADHYA PRADESH
Bench Constituted              Single Bench
Judgment delivered By          HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether       approved   for
reporting
Name of counsel for parties For appellants: Shri Sankalp Kochar, Advocate

                               For Respondent : Shri Aman Pandey, Panel Lawyer

Law laid down                  -
Significant       paragraph -
number


                                   (J U D G M E N T)
                                      27/09/2021

Appellants have filed this appeal being aggrieved by order dated

23/04/1998 passed by learned First Additional Sessions Judge, Sehore, in

Sessions Trial No.122/1995, convicting and sentencing the appellants under

section 307/34 of IPC and sentencing them to undergo R.I for 7 years and

fine of Rs.2000/- and in default, to undergo further R.I for 3 months.

2. It is submitted by learned counsel for appellants that appeal filed by

appellant No.1 Tejpal has become infructuous as he has served the sentence

and has been released from jail.

3. In view of the submission of learned counsel for appellants, appeal

filed by appellant No.1 Tejpal has become infructuous and is dismissed

as such.

4. This Court is now required to hear the arguments advanced by learned

counsel for the parties on behalf of appellant no.2 Bhairu Singh @

Lakhanlal.

5. As per prosecution story, on 18.5.1995 one Hari Narayan, Devi

Prasad and Bhanwarjee went to agricultural field. When they were

returning from agricultural field, accused Bhairu Singh @ Lakhanlal, Tejpal,

Daulat and Bhagirath are said to have assaulted them. Bhairu Singh @

Lakhanlal is said to have assaulted with a lathi and other co-accused persons

namely; Daulat and Bhagirath assaulted with tangia. Hari Narayan received

injuries on his chest and hand and fell down on the spot. Accused persons

fled from the spot.

6. First Information Report was lodged against the accused persons and

after investigation, final charge sheet was filed in the Court. As many as 11

witnesses were examined to prove the prosecution case.

7. Learned trial court gave benefit of doubt to accused Laxman and he

was acquitted. Learned trial Court held appellants Tejpal and Bhairu Singh

@ Lakhanlal guilty of offence under section 307 read with 34 of IPC for

causing injuries to Hari Narayan.

8. Learned counsel for appellant submitted that as per prosecution story

and deposition of witnesses, appellant is said to have assaulted injured Hari

Narayan with a lathi. In pre-M.L.C and in deposition of doctor, no lacerated

wound was found on person of injured, therefore, prosecution version has to

be disbelieved. No other ground was raised nor pressed by learned counsel

appearing for appellant. He has relied on judgments reported in State of U.P

vs. Mushtaq Alam, (2007) 11 SCC 215, paras 11 & 12 and Krishnegowda

and others vs. State of Karnataka, (2017) 13 SCC 98, paras 26, 39, 40 &

42. On the strength of said judgements, it is submitted by learned counsel

for appellant that appellant be acquitted.

9. Learned Panel Lawyer appearing for the State submitted that

appellant no.2 was present on the scene of incident and took part in the

assault. There may be some discrepancy in the medical report, but said

discrepancy or contradiction will not make ocular evidence untrustworthy.

It is submitted that learned trial court has rightly convicted appellant no.2

under section 307 read with 34 of IPC. On basis of said submission, learned

Panel Lawyer appearing for the State made a prayer for dismissal of this

appeal.

10. Heard the learned counsel for the parties.

11. Considered the record of the trial Court. First Information Report

(Exhibit P-14), dying declaration (Exhibit P-2) dated 18.05.1995,

depositions of Hari Narayan (PW-1) Bhanwarji (PW-2) and Devi Prasad

(PW-6) all had stated that Bhairu Singh @ Lakhanlal took part in assault.

12. Hari Narayan (PW-1) had stated that appellant No.2 Bhairu Singh @

Lakhanlal assaulted on his head with a lathi. Appellant No.2 was also

identified by injured in Court. It was stated that Bhairu Singh @ Lakhanlal

is one and the same person. Bhanwarji (PW-2) who was also eye witness of

the incident had stated that Lakshman took part in assault. He was wielding

lathi and had assaulted on head of Hari Narayan. Dr. Pradeep Pathak (PW-3)

had found one incised wound on left parietal of skull of Hari Narayan. In

dying declaration (Ex-P/2), injured witness has stated that Bhairu Singh @

Lakhanlal along with other co-accused persons assaulted him. Lathi has

been sized by police on basis of memorandum. Appellant was arrested on

21.06.1995 and seizure of lathi (Ex-P/9) was made from him. Prosecution

witnesses have also supported seizure of lathi which was seized from Bhairu

Singh @ Lakhanlal and same was sent for examination in Forensic Science

Laboratory. Lathi seized from Bhairu Singh @ Lakhanlal is article-D and

human blood spots were found on article-D as per report of FSL. There is

consistency in version of witnesses and evidence available on record that

Bhairu Singh @ Lakhanlal had assaulted the injured victim on his head with

a lathi.

13. Learned counsel for appellant has only raised a ground that doctor in

its report and deposition has opined that injury on head of injured person

was caused by hard and blunt object but as per statement of witnesses and

other evidence, lathi has been seized from appellant, therefore, he was not

involved in the incident and witnesses ought to have been disbelieved by the

trial Court. Ocular evidence of witnesses is to be given precedence over

medical evidence if there is consistency in the statement of the witnesses

and evidence available on record. Appellant had relied on judgement passed

by Apex Court in case of Krishnegowda and Others Vs. State of Karnataka

(2017) 13 SCC 98, where it has been held that in case of clear contradiction

between medical and ocular evidence coupled with severe contradictions in

oral evidence, clear lapses in investigation, therefore, benefit of doubt has to

go to accused.

14. In this case, injured witness and eye witnesses have unequivocally

stated that appellant had taken part in assault and had caused injuries to Hari

Narayan. Injury which was found on the head of injured person is incised

wound. It is known fact that there is no fatty tissue between skin on the head

and skull. Skin of head is also stretched and tight and, therefore, at times

when assault was made with lathi, injury may look like a incised wound

cause by hard and sharp object. Only on basis of discrepancy between

medical and ocular evidence, consistent evidence available on record cannot

be disbelieved.

15. In case of Solanki Chimanbhai Ukabhai Vs. State of Gujrat, AIR

1983 SC 484, it was held that unless medical evidence goes so far that it

completely rules out possibilities whatsoever of injuries taking place in

manner alleged by eye witnesses. The testimony of eye witnesses can not be

thrown out on the ground of alleged inconsistency between it and the

medical evidence. In case of Punjab Singh Vs. State of Haryana reported

in 1984 Cr.LJ 921 (SC), it was held that if direct evidence is satisfactory

and reliable the same cannot be rejected on hypothetical medical evidence.

16. In view of aforesaid facts and circumstances of the case, appeal filed

by appellant No.2- Bhairu Singh @ Lakhanlal is dismissed. The finding of

conviction recorded by the trial Court and the sentence to undergo rigorous

imprisonment for 7 years are hereby affirmed.

17. Appellant No.2- Bhairu Singh @ Lakhanlal is on bail. His bail bond

is hereby cancelled. He shall surrender before the concerned trial Court

within one month and shall be sent to jail for undergoing remaining part of

the jail sentence.

18. Copy of this judgement along with the record be sent to the Court

below for information and compliance.

(VISHAL DHAGAT) JUDGE mms/shabana Digitally signed by SHABANA ANSARI Date: 2021.09.30 15:56:12 +05'30'