Dharmendra vs State Of M.P.
2022 Latest Caselaw 1675 MP

                                        1

         THE HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR
                  (DIVISION BENCH)
                    Criminal Appeal No.1013/2010
Dharmendra & Anr.                                           ..... 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 A.K. Jain, learned counsel for appellant.
       Shri A.K. Nirankari, learned Public Prosecutor for the
respondents/State.

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                             JUDGMENT

th (07 February, 2022)

PER JUSTICE DEEPAK KUMAR AGARWAL

The present appeal preferred u/S. 374 Cr.P.C. assails the

judgment dated 24.11.2010 rendered in S.T. No. 229/2009 by First

Additional Sessions Judge to the Court of Third Additional Judge

Gwalior District Gwalior, whereby the trial Court has convicted

both the appellants for the offence punishable under Section 302

of I.P.C. and sentenced them to undergo Life imprisonment and

fine of Rs.1000/- and under Section 307 IPC for seven years R.I.

with fine of Rs. 2,500/- with default stipulation.

2. Brief facts giving rise to the present appeal are that on

16.02.2009 at 1 pm, report was lodged at Police Station Uteela

District Gwalior against present appellants alleging that in the

morning when complainant alongwith his brother Kesri Baghel,

Kalyan, sister-in-law Santo Bai, his nephew Shishupal and his son

Gyan Singh were watering their field, his cousin Babulal

alongwith his son Dharmendra came there and told that yesterday

when his calf entered into the field of complainant, why they

assaulted the calf with Lathi and slapped his son Shrikrishan.

Kalyan, brother of complainant, replied that your animal has

damaged the crop. Appellant told that their calf will graze the field

likewise. Thereafter appellant Babulal with an intention to kill

Kalyan Singh assaulted with axe on the front side of neck and

throat and back side of head of Kalyan Singh leading to

sustenance of injuries, as a result of which Kalyan Singh

succumbed to the said injuries on the spot and Dharmendra with

an intention to kill Shishupal assaulted on his head and left

shoulder with axe leading to sustenance of injuries as a result of

which Shishupal succumbed to the said injuries on the spot.

2.1 Thereafter, Babulal with an intention to kill Keshri Baghel

assaulted with axe due to which injuries were sustained on his

head and hand. Dharmendra with an intention to kill Santo Bai

assaulted her with axe due to which injuries were sustained on her

head and forehead. Thereafter with an intention to kill the

complainant, Babulal and Dharmendra assaulted with axe due to

which injuries were sustained on his hand and elbow of left hand.

Dharmendra also assaulted son of complainant Gyan Singh with

an axe due to which injuries were sustained on his head. On the

aforesaid, FIR bearing crime No.12/2009 for the offence

punishable under sections 307, 302, 34 of IPC against the

appellants was registered. Injured were sent for medical

examination. Dead-body panchnama of deceased Shishupal and

Kalyan was prepared. Their dead bodies were sent for postmortem.

Appellant Dharmendra was apprehended on 28.02.2009. At his

behest, one blood stained axe was seized. Afterwards on

19.04.2009 Babulal was apprehended and at his behest, one blood

stained axe was seized. Spot map was prepared. From the spot

ordinary and blood stained soil were seized. After postmortem,

clothes of the deceased were seized. Articles were sent for

chemical analysis. Statements of witnesses were recorded. After

completion of investigation, charge-sheet against appellants under

Sections 302, 307, 34 IPC was submitted before the competent

court.

3. After conclusion of trial, the trial Court found appellants

guilty of the aforesaid offence and convicted them accordingly as

stated herein above.

4. Appellant has filed this appeal on the ground that medical

evidence on record does not support the prosecution case. The trial

court has erred in passing the impugned judgment. Hence, prayed

to allow this appeal.

5. Learned counsel for the State supported the impugned

judgment of conviction & sentence and submitted that there is no

infirmity in the impugned judgment of conviction and sentence.

The trial Court by appreciating the evidence in right perspective

holding the appellants guilty and convicted them accordingly.

Hence, prayed for dismissal of this appeal.

6. The prosecution in order to prove its case examined

eighteen witnesses, however, the appellants did not examine any

witness in their defence.

7. As per complainant Megh Singh (PW-1) he knows

appellants. On 16.02.2009 when he alongwith deceased Kalyan

Singh, Shishupal, Gyan Singh and Santo Bai were watering their

field, both the appellants alongwith Shrikrishan and Ramwati

came there and asked his brother Kalyan Singh why you assaulted

the calf with Lathi and slapped our child. His brother Kalyan

replied that "if you would destroy his field, then he would again

assault his son." Thereafter, appellant Babulal assaulted deceased

Kalyan with axe on his neck, throat and head, due to which

deceased died on the spot. Appellant Dharmendra assaulted with

axe on the head and shoulder of Shishupal, due to which he also

died on the spot. Thereafter when the complainant tried to save

them, then appellant Babulal assaulted on his head with axe and

Dharmendra assaulted him with Benta (handle of axe). Babulal

assaulted on left hand and head of Kesri with axe. Dharmendra

assaulted Santo Bai on her head with axe and accused Ramwati

also assaulted Santo Bai on her forehead with axe, due to which

blood was oozing out and injuries were sustained. Accused

Shrikrishan assaulted Santo Bai with Baka on her back, due to

which she sustained injures. Appellant-Dharmendra assaulted on

the head of Gyan Singh (son of complainant) with axe. He lodged

the report of the said incident vide Ex. P-1. Police prepared spot

map vide Ex.P-2 before him.

7.1 During cross-examination, he has admitted that appellant

Babulal is his real uncle and Dharmendra is his cousin. They got

8-8 Bighas share each from the land. Before this incident, there

was no previous animosity between the complainant and

appellants. On the date of incident, he reached the field alone at

12:15 pm. Incident took place all of a sudden due to some hot

talks. He further admitted that appellants and injured persons were

having axe in their hand. Due to intervention of complainant,

Kesariya, Gyan Singh, Shishupal, Kalyan, Santo Bai, they

sustained injuries. He alongwith Kesariya, Gyan Singh and

Shishupal were irrigating the land on the other side. He admitted

that appellant Dharmendra did not inflict any injury to the

deceased Kalyan. He further admitted that Babulal and

Dharmendra tried to intervene, but deceased Shishupal was very

excited and was having Lathi and axe. He also tried to assault

Babulal and Dharmendra and they tried to defend, during which,

all of them sustained injuries. Appellants do not want to create

dispute for such petty matter, but Kalyan, Shishupal and all of

them caught-hold of them and when appellants tried to escape, all

of them sustained injuries. His brother Kalyan Singh himself went

to the field of Babulal and started talking with Babulal. Later on,

he has stated that conversation started in his field, but dispute

arose at appellant's filed. After consultation from injured persons,

report has been lodged. During lodging of report, name of

Ramvati and Krishna was not narrated. At the time of lodging of

report, injured Santo Bai and Kesri were unconscious.

7.2 After recording of FIR, it was read over to him but he had

not objected in regard to non-disclosure of other names in the FIR.

Police took his statement after 2-3 days. He was not admitted in

the hospital. He had not seen injuries on the body of appellants

because he went to lodge the report after half an hour. Ramvati

reached the spot. He denied that on the date of incident all of a

sudden due to distribution of water of well dispute arose. He also

denied that during defence, they got injured. He went to the police

station for lodging report by foot. On the way, they got lift in a

tractor and reached the police station within 15 minutes. After

lodging of report, police alongwith him came to the place of

occurrence. Santo Bai and Kesri became conscious after one hour.

He denied that appellants did not cause any injury to the deceased

or injured. Rest of his evidence remained unchallenged.

8. On going through his examination-in-chief and cross-

examination, it becomes clear that on the date of incident when

complainant alongwith deceased Kalyan, deceased Shishupal and

Santo Bai were irrigating their field, appellants came there and

scolded them regarding beating of their calf. Thereafter scuffle

started between both the parties in which appellant Babulal with

an intention to kill Kalyan Singh assaulted with axe on the front

side of neck and throat and back side of head of Kalyan Singh

leading to sustenance of injuries as a result of which Kalyan Singh

succumbed to the said injuries on the spot and Dharmendra with

an intention to kill Shishupal assaulted on his head and left

shoulder with axe leading to sustenance of injuries as a result of

which Shishupal succumbed to the said injuries on the spot.

Thereafter, Babulal with an intention to kill Kesri Baghel

assaulted with axe due to which injuries were sustained on his

head and hand. Dharmendra with an intention to kill Santo Bai

assaulted her with axe due to which injuries were sustained on her

head and forehead. Thereafter with an intention to kill the

complainant, Babulal and Dharmendra assaulted with axe due to

which injuries were sustained on his hand and elbow of left hand.

Dharmendra also assaulted son of complainant Gyan Singh with

axe, due to which injuries were sustained on his head. Of course,

this witness admitted in cross-examination that appellants do not

want to commit such heinous crime, but looking to their act the

same can not be accepted.

9. Injured Gyan Singh (PW-3) being a child witness has stated

in his examination that he knows Babulal and Ramwati. Before

one year on 16.02.2009 he was on the field alongwith his uncle

Kesri, Kalyan and his father Megh Singh and his brother Sishupal.

When they were watering the field, appellants alongwith

Shrikrishan and Ramvati came there and said that "yesterday

evening when their calf entered into your field, then why you

assaulted the calf with Lathi and slapped their child Shrikrishan".

His uncle Kalyan replied that "if you would damage my field, then

he would assault the calf with Lathi and slap the child likewise".

Thereafter Babulal with an intention to kill Kalyan Singh

assaulted with axe on the front side of neck and throat and back

side of head of the Kalyan Singh leading to sustenance of injuries

as a result of which Kalyan Singh succumbed to the said injuries

on the spot and Dharmendra with an intention to kill Shishupal

assaulted on his head and left shoulder with axe leading to

sustenance of injuries as a result of which Shishupal succumbed to

the said injuries on the spot. Thereafter, Babulal with an intention

to kill Keshri Baghel assaulted with axe due to which injuries

were sustained on his head and hand. Dharmendra with an

intention to kill Santo Bai assaulted her with axe, due to which

injuries were sustained on her head and forehead. Thereafter with

an intention to kill the complainant, Babulal and Dharmendra

assaulted with axe due to which injuries were sustained on his

hand and elbow of left hand. Dharmendra also assaulted son of

complainant Gyan Singh with axe, due to which injuries were

sustained on his head.

10. During cross-examination, he admitted that Babulal is his

grandfather and Ramvati is his grandmother. He admitted that

after division of ancestral land, all the family members were

irrigating their field by a common well. After scuffle, he alongwith

his father Megh Singh, Kesri and Santo Bai went to police station.

He and his father got treated in Uteela Hospital. Police alongwith

them went to the police station. He narrated the said incident to

the police in his statement. He denied that Babulal and

Dharmendra sustained injuries. He denied that his uncle Kalyan,

Kesri, brother Shishupal and his father Megh Singh inflicted

injuries to each other by axe. He denied that his Aunty Santo Bai

had not received any injury in the incident. He does not know that

for how long injured Santo bai and Kesri admitted in the hospital.

He denied that they have implicated the accused to usurp their

land.

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

examination of this witness, it emerges out that it is true that there

are minor contradictions in his testimony here and there, but the

same is not affecting the substratum of the prosecution case, hence

it would not render his evidence unreliable. His statement clearly

inspires confidence regarding involvement of the accused persons

in the crime.

12. Kesri (PW-4) and Santo Bai (PW-5) are also injured

persons. During examination they narrated the same story as

narrated by PW-1 and PW-3. They have stated in same voice that

appellant- Babulal assaulted deceased Kalyan by axe on his neck

and head due to which deceased sustained fatal injuries and

succumbed to the said injuries on the spot, while appellant

Dharmendra assaulted deceased Shishupal by axe on his left

shoulder and head due to which deceased sustained fatal injuries

and succumbed to the said injuries on the spot. Appellant Babulal

assaulted by axe on the left shoulder and head of Kesari (PW-4)

due to which injuries sustained to him. Babulal also assaulted by

axe on the head of injured Santobai and injured Megh Singh and

appellant Dharmendra assaulted by the handle of axe on the

forehead of injured Gyan Singh, due to which they sustained

injuries. There is no serious variance between the version given by

these witnesses to the police and the one narrated before the court.

Overall testimony of these witness remained un-controverted in

the cross examination. No material discrepancy has been elicited

by the defence for the accused persons to discard the version

stated by the them in their deposition before the court. The

accused persons did not deny their presence at the spot at the time

of incident. No ulterior motive was imputed to the witness for

falsely implicating all these accused persons in the incident.

13. Shri Surendra Singh Yadav (PW-16) states that on

16.02.2009 he was posted as SHO, Police Station Uteela.

Complainant Megh Singh Baghel alongwith his elder brother

Kesri, sister-in-law Santo Bai and son Gyan Singh came to the

police station in injured state and lodged a report. On the basis of

report, FIR bearing crime No.12/2009 for the offence punishable

under Sections 302, 307/34 of IPC against appellants Babulal and

Dharmendra was registered. FIR is exhibited as Ex.P-1 which

bears his signature. On the said date of incident, having reached

the spot he prepared spot map which is exhibited as Ex.P-2.

Thereafter Safina forms in respect of deceased Shivpal and

deceased Kalyan Baghel were issued which are exhibited as Ex.P-

3 and Ex.P-4. On the said date, Naksha Panchnama of the dead

body of deceased Kalyan and Shishupal was also prepared. On

16.02.2009 from the place of occurrence, blood stained soil and

ordinary soil were seized and seizure memos Ex.P-7 and Ex.P-8

were prepared.

13.1 During investigation on 20.02.2009 statements of

complainant Megh Singh, Santo Bai, Kesri were recorded by him.

During investigation, on 28.02.2009 he had interrogated appellant-

Dharmendra who disclosed in his memorandum recorded under

section 27 of Evidence Act that the axe from which he caused

injuries to deceased Shishupal and injured Santo Bai, had been

kept concealed by him underneath the field where the incident

occurred. Memorandum of appellant Dharmendra is exhibited as

Ex.P-9. According to memorandum, appellant-Dharmendra had

himself given the axe, seizure memo of which is exhibited as

Ex.P-10. During investigation, on 18.04.2009 he arrested

appellant-Babulal, arrest memo of which is exhibited as Ex.P-22.

His memorandum under Section 27 of Evidence Act was recorded

on 19.04.2009.

13.2 According to memorandum, appellant-Babulal had himself

given the axe, seizure memo of which is exhibited as Ex.P-20. He

sent the dead-bodies of deceased Shishupal and Kalyan to JAH

Hospital Gwalior for postmortem. During investigation, he

recorded statements of witnesses and according to them accused

Ramvati and Shrikrishan had also committed the offence,

therefore, they have been made accused in the present case.

14. During cross-examination, he admitted that in FIR Ex.P-1

column of Roznamcha Sanha is blank. He admitted that in FIR

names of only two person were mentioned as accused. He denied

that he had not gone to the spot and prepared spot map. He

admitted that in Laash Panchayatnama Ex.P-6 and Ex.P-7, he has

not arrayed any witness as eye-witness. All the eye-witnesses were

admitted in the hospital due to which they were not arrayed as

witnesses. He admitted that in seizure memo vide Ex.P-10 place of

seizure is an open area where anyone can easily pass to and fro.

He admitted that the axe was buried in the earth upto 2-3 ft. which

was given by the appellant himself. Genti was carried by them for

digging the earth to recover axe. There was no necessity to seize

Genti. He admitted that the Genti, from which earth was digged,

about which he has not mentioned in panchanama Ex.P-10. He

admitted that from the place where axe was recovered from

appellant-Babulal was also an open area. The said axe was also

recovered by digging the earth upto approx 2-3 ft. He denied that

he made exaggeration in the statements of witnesses recorded

during investigation. He admitted that at part A to A of statement

of Gyan Singh he made overwriting. He has also put his counter-

signature at the said overwriting. He denied that he has falsely

implicated the accused.

15. As per Dr. Pradeep Shrivastava (PW-7) on 16.02.2009 he

was posted as Medical Officer at PHC Uteela. On the said date

injured Gyan Singh was brought by Constable Narendra Singh

Police Station Uteela. He has examined injured Gyan Singh and

found following injuries on his body:-

1. An oblique laceration on scalp size 5 x 1/2cm x

middle 2cm deep upto bone, its anterior end seven cm.

above the midpoint of right eyebrow.

(2) An oblique contusion 7 cm. x ½ cm. over posterior

aspect of lower 1/3rd of right arm associated with pain

tenderness.

both the injuries were caused by hard and blunt object.

X-ray was advised to diagnose injury no.1. Injury No.2

is normal. Duration of injuries was 2-6 hrs. from the

examination. Medical examination report of said

injured is exhibited as Ex.P-12.

15.1 He has also examined injured Megh Singh on the said date

and found following injuries on his body:-

1. An oblique contusion 9 cm.x 2 ½ cm over exterior

aspect of proximal half of right forearm, more towards

radial side assoe. pain tenderness and swelling around.

2. Two oblique contusions one cm apart from each other,

over middle of left side of upper half of back of chest size

as following:

(i) 16 cm x 2 cm. (ii) 10 cm. x 2 cm.

3. An oblique laceration 3 ½ cm long linear skindeep over

middle of post aspect of right external ear.

4. Oblique laceration size 2 cm. x 1/3 cm. x 1/3 cm. on

scalp, 7 cm. above right external ear, at 12 o'clock.

5. An oblique laceration 3 ½ cm x ½ cm full thickness of

scalp involved in middle 2/3 rd, 10 cm above right ext. ear

at 12'clock.

6. An oblique laceration 4cm x ½ cm, full thickness of

scalp involved in middle 2 cm, 10 cm above occipital

protuberance at 12 o'clock.

Injuries No. 1, 2, 4, 5 and 6 (total 5) were caused by hard

and blunt object and injury No.3 was caused by friction against

hard, blunt, rough and pointed object. X-ray was advised for

injuries no.1, 4, 5 and 6. Injuries No.1 and 2 are normal. Duration

of injuries was 2-6 hrs. from the examination. Medical

examination report of said injured is exhibited as Ex.P-13

16. During cross-examination, he admitted that there was no

injury on the body of injured Gyan Singh which was caused by

sharp cutting weapon. He further admitted that there was no

incised wound on the body of injured Megh Singh. He also

admitted that that there was no injury on the right hand elbow of

injured Megh Singh.

17. Dr. Surendra Singh Jadoun (PW-9) testified that on

16.02.2009 he was present in Emergency Ward of J.A Hospital.

On the said date, injured Santo Bai was brought by Constable

Narendra Singh Police Station Uteela. He has examined injured

Santo Bai and found following injuries on her body:-

1. Lacerated wound at right parital region 8x1x5 cm.

X-ray was advised to diagnose the said injury. The said

injury appears to be caused by hard and blunt object. Duration of

injury was 12 hrs. from the examination. Medical examination

report of said injured is exhibited as Ex.P-15.

17.1 On the said date, injured Kesariya Baghel was also brought

by Constable Narendra Singh Police Station Uteela. He has

examined injured Kesariya Baghel and found following injuries

on his body :-

1. Lacerated wound left occipital parital junction 6 x 1x 5.

2. Swelling at left arm 6 x 6.

3.Swelling at left thigh 6 x 6.

X-ray was advised to diagnose the said injuries. All the

injuries appear to be caused by hard and blunt object. Duration of

injuries was 12 hrs. from the examination. Injured was referred to

the Orthopedic Department for treatment. Medical examination

report of said injured is exhibited as Ex.P-16.

18. During cross-examination, he admitted that no injuries were

found on the head and body of injured Santo Bai which were

caused by sharp cutting object. He admitted that the injuries

which were mentioned in Ex.P-15 and Ex.P-16 caused to the

injured Santo Bai and Kesariya cannot be inflicted by weapon like

axe. He admitted that there was no injury on the forehead of

injured Santo Bai, therefore, he mentioned only one injury which

was caused by hard and blunt object on the head of injured Santo

Bai in Ex.P-15. He admitted that if in X-ray no fracture is found,

then all the injuries would be treated as simple in nature.

19. Dr. A.K. Kumra (PW-18) testified that on 17.02.2009 he

was posted as Medical Officer at J.A. Hospital Gwalior. On the

said date, application for postmortem of deceased Kalyan was

presented by police Constable Manmohan Singh. He conducted

postmortem of deceased. Deceased-Kalyan was identified by

Head Constable Manmohan Singh and Suresh S/o Badriprasad.

Following injuries were found on the body of deceased-Kalyan

Singh:-

1. Cut injury at vertex at right parietal region

transversely placed about 12 x 15 cm, 9 cm above right

pinna, underdeath bone, meninges and brain cut for 12

cm. length margin of the wound can be approximated

(sharp injury).

2. Cut wound above the level of thyroid cartilage 7 x 3

cm x 4 cm. deep directed upwards towards mandible

trachea and oesophagus cut.

3. Cut wound 6 cm below thyroid cartilage over left

lateral aspect of neck 5 x 2 cm x muscle deep.

4. Cut wound parallel to right clavicle 6 x 2 cm x deep

upto thorasic cavity, lateral border sharply cut medial

border abraided for 1.5 cm.

5. Cut wound right side of neck 7 cm. medial to tip of

right shoulder 6 x 1 cm x muscle deep abrasion over

right shoulder superio anteriorly 5 x 4 cm

In his opinion, cause of death is shock and haemorrhage as

a result of head, neck and thorasic injuries. Injuries have been

caused by sharp cutting object, homicidal in nature, duration is

within 6-24 hrs since postmortem examination.

19.1 On the said date, dead-body of deceased Shishupal was also

brought by Police Constable Manmohan Singh. He conducted

postmortem of deceased on 17.02.2009. Deceased- Shishupal was

identified by Head Constable Manmohan Singh and Suresh S/o

Badriprasad. Following injuries were found on the body of

deceased-Shishupal:-

1. Cut wound over left parietal region 8 cm. above left

ear 3 x 1 cm x bone deep.

2. Cut wound over left half of parietal region 4 x 1 cm x

bone deep.

3. Cut wound 2 cm post to injury No.2. 3 x 1 cm x bone

deep.

4. Cut wound at left shoulder superior aspect 6 x 1.5 cm

x muscle deep.

5. Cut wound over lateral aspect of left arm at middle

region 1 x 1.5 cm x muscle deep upper border abraided.

6. Scalp ecchymosis over vertex 12 x 8 cm contusion

over vertex 12 x 8 cm. 8 cm. long fracture of left

parietal bone with loosening of coronal surface subdural

and subarachnoid haemorrhage present all over the

brain.

In his opinion, cause of death is shock and haemorrhage as

a result of head injury, homicidal in nature, duration is within 6-

24 hrs since postmortem examination.

19.2 During cross-examination, he stated that the said injuries

may be inflicted by different weapons. He admitted that the

injuries inflicted on the body of deceased Shishupal were caused

by hard and blunt object.

20. Tekan Singh (PW-2), Ramdas Sharma (PW-10) and Rakesh

(PW-12) are seizure witnesses. Tekan Singh (PW-2) and Rakesh

(PW-12) on the one hand state that they know the accused while

Ramdas Sharma (PW-10) was posted as Constable at Police

Station Uteela. Tekan Singh (PW-2) is the witness of Laash

Panchnama. Blood stained and ordinary soil were also seized.

Seizure memo bears his signature. The axe from appellant

Dharmendra was also recovered in front of him. Seizure memo of

which also bears his signature. Ramdas Sharma (PW-10) states

that seizure memo Ex.P17 was prepared in front of him. Constable

Mohan Singh brought Viscera, sealed Potli and sealed samples

after postmortem of deceased Shishupal which was handed over

to Head Constable. On the said date, Constable Mohan Singh also

brought Viscera, sealed Potli and sealed samples after postmortem

of deceased Kalyan, seizure memo of which is exhibited as Ex.P-

18. Rakesh (PW-12) states that in front of him memorandum of

appellant- Babulal was recorded in which he specifically stated

that he has kept concealed the axe underneath the field. On the

basis of information given by appellant-Babulal, a blood stained

axe was seized.

20.1 Nothing has been elicited through cross-examination to

disbelieve evidence of these witnesses.

21. Mohan Singh (PW-17) states that on 17.02.2009 he was

posted as Constable at Police Station Uteela. He handed over one

box, sealed Viscera, one sealed Potli, one sealed packet of salt,

one sealed sample of both the deceased to Head Constable

Shivcharan Singh, seizure memo of which was prepared in fornt

of him, the same is exhibited as Ex.P-17 and Ex.P-18. Appellant

Dharmendra Baghel was apprehended by the police in front of

him whose arrest memo is exhibited as Ex.P-21.

22. During the course of his cross-examination, nothing has

been elicited so as to discard evidence of this witness.

23. The Apex Court in the case of State of Uttar Pradesh Vs.

Naresh (2011) 4 SCC 324, in regard to evidentiary value to be

attached to the statement of an injured witness has held thus :-

"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab [(2009) 9 SCC 719:(2010) 1 SCC (Cri) 107] , Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262]"

24. In view of such facts, the law in India in regard to a case

under Section 302 of IPC is to be appreciated. The law is that the

prosecution has to establish its case beyond reasonable doubt. The

falsity of the defence is not material as has been held in the case

of Tika & Ors. Vs. State of U.P. as reported in AIR 1974 SC

155. The cardinal principle is that in a criminal case, an accused is

presumed to be innocent unless that presumption is rebutted by

the prosecution by production of evidence which may show him

to be guilty of the offence with which he is charged. The burden

of proving the guilt of the accused is upon the prosecution and

unless it relieves itself of that burden, the Courts cannot record a

finding of guilt of the accused. In the present case, injured

witnesses Megh Singh (PW-1), Gyan Singh (PW-3), Kesari (PW-

4) and Santo Bai (PW-5) have stated in clear terms that appellants

have inflicted injuries to them at vital parts and also committed

murder of deceased Kalyan and Shishupal. Medical report also

corroborates that injured sustained injuries at their vital parts.

Therefore, prosecution has proved its case beyond reasonable

doubt unerringly pointing towards guilt of appellants.

25. In view of the aforesaid, interference in the impugned

judgment of conviction passed by the court below is not

warranted.

26. Consequently, the appeal has no merit and it is dismissed by

upholding the judgment of conviction and sentence passed by the

court below. The appellants are in jail, they are directed to

undergo remaining jail sentence, as directed by the trial Court.

                     (G.S. AHLUWALIA)              (DEEPAK KUMAR AGARWAL)
                           JUDGE                          JUDGE
  ojha




YOGENDRA OJHA
2022.01.28
12:17:36 +05'30'