Rajesh Khandelwal vs State Of M.P.
2022 Latest Caselaw 2113 MP

                                         1
                            Cr.A. No.349 of 2011



            THE HIGH COURT OF MADHYA PRADESH
                    BENCH AT GWALIOR
                     (DIVISION BENCH)
                  Criminal Appeal No.349/2011
Rajesh Khandelwal                                           ..... Appellant
                                      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 Ashok Jain, learned counsel for appellant.
     Shri C.P. Singh, learned Panel Lawyer,                               for    the
respondents/State.
       M.K. Chaudhary, learned counsel for the complainant.
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                                JUDGMENT

th (16 February, 2022)

PER JUSTICE DEEPAK KUMAR AGARWAL This criminal appeal under Section 374 of Cr.P.C has been filed

by the appellant against conviction and sentence passed in

S.T.No.108/2009 by judgment dated 25.02.2011 by Special Judge,

Dacoity affected Area, District Gwalior in which he was convicted

for the offence under Sections 450, 302, 394 of IPC read with Section

13 of MPDVPK Act and sentenced to Life Imprisonment with fine of

Cr.A. No.349 of 2011

Rs.1000/-, five years R.I. with fine of Rs.500/- and two years R.I.

with fine of Rs.500/- respectively, in default stipulation.

2. Brief facts of the case which rise to this appeal are that on

19.08.2009 at 10.50 PM, complainant Mahesh Chand Sharma, Wife of

the deceased Sudha Sharma lodged a dehatinalsi at Sahara Hospital,

Basant Vihar, Gwalior with Police Inspector J.L. Shilpkar of Police

Station Indarganj that appellant was working in his sweet shop for the

last five years situated at Shinde Ki Chawni, Gwalior. Due to his

misbehaviour, he terminated his services from his shop. On the

fateful night at 10.P.M. On 19.08.2009, he was returning to his house

along with his son Siddhant and servant Manoj Chauhan and Anuj

Pathak. On reaching the house, he stopped nearby and was talking

with his servants. Meanwhile, his son Siddhant Sharma climbed

upstairs in second floor. When complainant reached second floor of

his house then he saw that appellant was hiding in the room and

assaulted on his head with iron rod. Then he saw his wife was also

lying down on the floor in injured position. Blood was oozing out

from her head. He saw that there were injuries on the head of his son

Siddhant. His wife was unconscious. He enquired from his son

Siddhant then he told that appellant Rajesh Khendelwal assaulted with

an intention to kill them with iron rod. One his hue and cry, his

servant and family members Rajnish Sharma and Manish Sharma

Cr.A. No.349 of 2011

came over there and saved him. Thereafter, his wife, his son and

himself were taken to Sahara hospital. On his report dehatinalsi

under Sections 307, 450 of IPC against present appellant was

recorded. Thereafter, on the basis of dehatinalsi Crime under the

aforesaid Sections bearing Crime No.330/2009 was registered at

Police Station Inderganj.

2.1 Injured Mahesh, his wife Sudha and son Siddhant were

admitted in Sahara hospsital, Gwalior. During treatment at 3.30 A.M.

his wife succumbed to injury. Dead body panchnama was prepared.

The dead body was sent for postmortem. As per postmortem report,

she died due to injuries caused on her body within 6-24 hours of

postmortem. Injured were treated. Next date from place of incident,

blood stained bet sheet, one cloth piece and one cup was seized.

Appellant was apprehended. At his behest, shirt and undergarment,

four golden bangles, one ring, one gold chain and iron pipe were

seized. He was arrested. Spot map was prepared. From the

possession of complainant Mahesh Chand, bills of Alankar jewellers

of golden bangles, silver ring was seized. From the place of incident

one mobile of tata indicom was also seized.

3. After recording of statements of witnesses, charge-sheet has

been filed and case was committed before the Court of session. Trial

Court has found guilty of appellant and convicted the aforesaid

Cr.A. No.349 of 2011

period.

4. The present appeal has been filed by the appellant on the

ground that prosecution has not examined any independent witnesses.

There was enmity between the complainant and appellant. There are

vast contradictions and omissions in the distinguished witnesses

despite this trial Court has convicted the appellant. By filing this

appeal prayed that conviction and sentence be set-aside.

5. Per contra, State counsel has vehemently opposed the prayer of

the appellant and pleaded that there was no enmity between the

appellant and complainant. F.I.R. was lodged promptly. There is no

contradiction and omission in the defence of witnesses. Hence,

prayed that appeal should be dismissed out rightly.

6. To prove their case, prosecution has examined as many as 13

witnesses and in defense evidence appellant has submitted a witness,

his wife Garima.

7. As per Mahesh Chand Sharma (PW-1) on 19.08.2009 at 10

P.M. after closing his shop named as Brijwasi Mishtan Bandar, which

was situated at Shinde ki Chawni, he along with his son Siddhant

Sharma, servant Manoj Chauhan and Anuj Pathak was returning to his

house, on reaching the house, he stopped on the road talking to his

servants. Meanwhile, his son Siddhant went inside the house. After

sending of his servants, he was going upstairs, he entered in the

Cr.A. No.349 of 2011

second story of his house in which wife Sudha Sharma used to reside,

the door was open. As soon as he entered, appellant Rajesh

Khandelwal, who was his servant before one and a half month,

assaulted on his head with iron rod, due to which blood had started

oozing out. Afterwards, he saw his wife deceased Sudha Sharma was

having wound on her head from which blood was oozing out. From

the head of his son also blood was oozing out, his wife became

unconscious. He enquired from his son, then he told him that

appellant assaulted on deceased Sudha Sharma with iron rod on her

head. On his hue and cry, family members Rajnish Sharma and

Manish Sharma came there to intervene and saved him. On the

information to the Police Sub Inspector Shilpkar came on the spot.

On his direction, he lodged a report at Sahara Hospital, Gwalior,

which is Ex.P-1 at "A" to "A", his signature was annexed.

7.1 During investigation, Police recorded his statement. He also

narrated the name of appellant in his report and statement under

Section 161 of Cr.P.C. Police seized one receipt of goldsmith by

which he purchased four bangles, one golden ring and one damaged

ear top by Annexure P/2. The aforesaid ornaments were given to him

on suprudiginama which was brought before the Court. Annexure A-1

to Annexure A-6 are the aforesaid ornaments. Before getting these

ornaments, he identified the aforesaid ornaments in Rambagh colony

Cr.A. No.349 of 2011

Mandhir where identification proceedings were conducted by

counselor Rajendra Jain which is Ex.P-3. After caught holding the

appellant, he was handed over to Police.

8. During cross-examination, he denied that upto 11 P.M. nearby

shops are opened. Appellant used to sit on the counter of the shop

before he was working at Banjara hotel. Before appointing the

appellant in his shop, he did not give information to Police Station

Indarganj. After removal of the appellant from his shop, he never

lodged complaint at Police Station Inderganj. One day he took

Rs.120/- cash from his shop without information. Thereafter,

appellant caught red handed then he apologize. Complainant used to

pay the appellant Rs.3500/- per month. From his shop and road where

his wife was lying down cannot be seen. His wife never informed

about the appellant on seeing him. When his son Siddhant Sharma

came to his shop bringing dinner at 9 A.m., he did not inform him

about the appellant. He was going to his house by taking Rs.700/-

rupees. On 1st floor, they reside. On the ground floor, there are four

rooms and on 1st floor there are three rooms. Before entering the

house there is a netted gate attached with wooden gate is situated.

When he and his son went to shop they never bolt the house from

outside. From his bathroom, one can see who calls through bell. His

son by pushing the iron grill gate opened the door. First his son

Cr.A. No.349 of 2011

entered the house, then he entered. After reaching first floor, he has to

climb 14-15 stairs.

8.1 He could not talk to his wife, because she became unconscious

till her death. His son told him that appellant assaulted his wife with

iron rod, due to which blood was oozing out and spread over sofa and

bed sheet. His son by his telephone, telephoned to servant Manoj. He

denied that his son did not inform the incident in the night. He also

denied that appellant did not assault his son and him. From his house,

Mahesh's house could not be seen. He admitted that in his report

Annexure P-1, there was no mention about golden ring, bangles and

chain. At that time, he was having no knowledge about aforesaid

articles. At the time of incident, he was wearing ring in his finger. He

denied that aforesaid ornaments were not on the spot, that is why he

could not report about them. He denied that on the date of incident,

he was having no knowledge about assaulter. He also denied that

report Ex.P-1 is anti dated. He admitted that he has engaged a lawyer.

He did not know Sub Inspector Shilpkar previously. Sahara hospital

is 3 kms distance from his house. Soon after the incident, his son

telephoned his servant Manoj.

8.2 His son's mobile No. is 9926647502. When they reached the

hospital, Police persons came there. Overnight they stayed at Sahara

hospital. Police took his statement in Police Chowki at Shinde Ki

Cr.A. No.349 of 2011

Chawni. After two months, he went for identification of ornaments.

He did not mention about the specification of ornaments in his

statement. When he reached at Rambagh colony mandir, counselor

Rajendra Jain was previously present there. Ornaments were old.

There is no identification marks on the ornaments. He did not know

the size of bangle of his wife. He denied that he did not identify the

aforesaid articles. After thrayodasi, he had started his shop. He

prepared the aforesaid ornaments from Alankar jewellers. He was

having original registered bill but Police did not seize. Rest of the

evidence remain unchallenged.

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

examination of this complainant, it emerges out that on reaching first

floor of his house, the appellant Rajesh Khandelwal assaulted him by

iron ord. Afterwards, he saw his wife Sudha Sharma was lying down

in unconscious situation and blood was oozing out, spread over sofa

and bet sheet and his son also got injury on his head. On enquiry, his

son told him that appellant assaulted his wife Sudha Sharma and him.

They caught hold of appellant with the help of nearby persons.

Promptly went to Sahara hospital, where he lodged dehatinalsi,

Annexure P/1 against present appellant. They were admitted in

hospital. During treatment his wife Sudha Sharma died at 3.30 A.M.

After treatment, they were discharged from hospital. It is true in

Cr.A. No.349 of 2011

regarding loot of ornaments like golden bangles, ring and chain, he

has not made a complaint in dehatinalsi but afterwards when he came

to know about ornaments he has stated in his statement later on the

aforesaid articles were seized from the possession of the appellant.

10. As per another eye-witness of the incident Siddhant Sharma

(PW-2) on the date of incident i.e. 19.08.2009 at 9 pm, he went to

sweet shop of his father. His father took dinner in the shop and

thereafter he closed the door of shop alongwith father and servant.

After closing shop at 10 pm, they went to their home. On reaching the

home, he went inside the home but his father remained on the road for

talking with the servants. He went to the upper floor of the house

where his mother was alone and gate was open. He saw that appellant

Rajesh Khandelwal, who was previous servant on the shop, was

assaulting with iron rod on the head of his mother, due to which blood

was oozing out. His mother became unconscious and fell down on the

ground. He took gold bangles from the hand of his mother. When he

objected, he also assaulted with iron rod on his head causing fatal

injuries. When he tried to caught hold of him he bit on his left hand

ankle. He cried due to which his father came upstairs, then appellant

also assaulted his father on his head causing fatal injuries.

10.1 Thereafter on listening hue and cry, brother-in-law and others

came there and intervened the matter and caught hold of appellant

Cr.A. No.349 of 2011

Rajesh. All injured persons were taken to Sahara Hospital. During

treatment his mother died. At the time of incident, his mother was

wearing golden bangles, earrings, mangalsutra and chain. Appellant

took out all the aforesaid ornaments. Appellant was working at their

shop but due to some wrongdoing, he was terminated. He narrated the

incident to his father. Afterwards in the hospital, he also stated to his

father that appellant took out the aforesaid ornaments from his

mother.

11. During cross-examination he has stated he studied upto 11 th

standard. His shop is situated at the distance of 30 th steps from his

house and accused used to work at their shop. Nearby their shop other

shops are also situated. He everyday goes to the shop of his father to

give food. At the place of incident i.e. house, he alongwith his parents

used to reside. On the date of incident they were having mobile

phone, but his mother did not inform them about appellant. He

admitted that on the date of incident when he reached at the door of

house he did not listen any hue and cry. When he entered the room, he

saw that his mother was fell down in unconscious state and from her

body blood was oozing out. During treatment she died in the hospital.

There were injuries on her body. He had sustained injuries on his head

and ankle. He denied that appellant had not assaulted his mother. He

denied that appellant had not looted any ornament before him. He

Cr.A. No.349 of 2011

admitted that having seen his mother he cried loudly that appellant

has intruded into the house but in response he did not hear any voice.

He admitted that during cry he specifically named the appellant, but if

this fact is not mentioned in his statement D-4 he can not say. He

admitted that his mother used to wear earrings. Her Mangalsutra was

broken during the incident and a part of the same had fallen down. He

did not know the size of bangle of his mother. He admitted that his

mother used to wear rings in the hand. He denied that in the night of

incident he did not disclose the name of accused to his father. After

discharge from the hospital, he went to Police Station. He denied that

having become unconscious at the time of incident, he became

conscious in the hospital.

12. On going through the entire deposition of Siddhant Sharma

(PW-2), it carves out that the said injured witnesses had been

subjected to lengthy cross-examination and in such type of cross-

examination, some improvements, contradictions and omissions are

bound to occur in their evidence, which cannot be treated very

serious, vital and significant so as to disbelieve and discard the

substratum of the prosecution case.

13. As per Manish Sharma (PW-3), he has stated that incident is of

19.08.2009, he was present in his house at that time, meanwhile a

phone call of Siddhant Sharma was received at 10"o clock of night, he

Cr.A. No.349 of 2011

informed that previous servant namely Rajesh Khandelwal intruded

into house and assaulting by iron rod. He alongwith his younger

brother Rajneesh rushed and reached in house of Mahesh Sharma.

Sourabh Jain, Rakesh Sharma and other persons were also present

there. Mahesh Sharma who caught-hold the appellant opened the

door. Appellant was armed with iron rod, blood was also stained on

the said rod. Blood was oozing out from the head of Mahesh Sharma

and Siddhant. Thereafter, police arrived. Appellant was handed over

to the police. Mahesh Sharma told that deceased is lying on the upper

floor, she has sustained injuries. He alongwith Rajeesh, Sourabh,

Rakesh and others reached on upper floor. He saw that deceased was

lying on the floor. Blood was oozing out from her head and ear. She

was not having any ornaments like Mangalsutra and bangles etc.

Thereafter having brought her on the ground floor, rushed her to the

hospital by vehicle. He accompanied to Sudha Sharma and Siddhant

Sharma, Mahesh Sharma had accompanied with my brother.

Appellant was terminated from Brajwasi Sweet Shop about one and a

half month ago from the incident. He had brought the injured by

Santro vehicle to Sahara Hospital.

14. During cross-examination he has stated that he had visiting

terms with Mahesh Sharma prior to said incident. He is my father-in-

law. He denied that at the days of incident he used to run business of

Cr.A. No.349 of 2011

tent house. He got information on his mobile number about the

incident. It was about 10 o'clock of night. He had neither talked with

Mahesh Sharma, his son or wife on telephone on the date of incident

nor prior to it. The quarrel was taken place at the house of Siddhant

Sharma. First of all he received information through Sidhhant Sharma

on phone. Prior to this, he received no information about incident

from any other person. He admitted that after receiving the

information from Sidhhant on phone, he did not inform to Police

Control Room, Police Station Inderganj or Police Post Sindhe Ki

Chhawni about incident. The distance of Police Post situated at

Sindhe Ki Chhawni is about 80 steps from his house. He denied that

being son-in-law of Mahesh Sharma, he has been made witness in

wrong manner after elapse of many days of incident. He admitted that

when he reached on the spot at the night of incident on receiving

information of incident on phone, he was willing to reach his in-laws

house and collect the information of entire episode of incident at the

earliest, therefore, he knocked the door of house of Mahesh Sharma

but doors were not opened. On listing hue and cry, he tried to break

the door but the said door could not be broken. As soon as the doors

were opened, first of all Mahesh Sharma and appellant both were seen

by him.

14.1 He saw that blood was oozing out from the body of Mahesh

Cr.A. No.349 of 2011

Sharma. When appellant was taken by the Police, he had seen iron rod

in the hands of appellant. He had not gone to Police Station Inderganj

in the night of incident. When he had gone to Sahara Hospital from

the place of incident, he was wearing half pant and T-shirt. Since his

mother-in-law, brother-in-law and father-in-law had sustained injuries,

blood was oozing therefore, some blood had also stained on his T-

shirt. He admitted the injured in the said Hospital. He remained

present in the Hospital for entire night and stayed till discharge of

injured persons. Police recorded his statement Police Post Shinde Ki

Chhawni. He admitted that in the morning of date of incident he met

with his mother-in-law at her house for last time. He admitted that he

did not tell his father-in-law and brother-in-law that Sudha Sharma

does not having ornaments on her body. He admitted that funeral of

his mother-in-law took place on the very next day. Lallan Ojha Sub-

inspector was present at the time of preparing of spot map, Ex.P-4.

Police had prepared seizure memo of bed sheet etc. before him which

also bears his signature.

15. On going through the entire deposition of Manish Sharma (PW-

3), we have not found any significant contradiction and omission in

the deposition of Manish Sharma (PW-3).

16. As per Manoj Singh Chauhan (PW-4), he knows the

complainant Mahesh Chandra Sharma. he also knows appellant. The

Cr.A. No.349 of 2011

incident is of 19.08.09 at about 10:00 o'clock in the night. At that

time, he was standing at complainant's shop Brajvasi Misthan

Bhandar. he dropped Mahesh Sharma and his son Siddhant Sharma at

the door of their house. Thereafter he went to his house. After ten

minutes, a phone call of Siddhant Sharma was received, he told that

appellant is beating his mother and father. He took 10-15 minutes in

returning and he saw all the injured had sustained injuries on their

head and blood was oozing out. Siddhant told that after beating all of

them appellant had gone. Till then Manish and Rajnish had also come

at spot. Thereafter Mahesh Sharma, Sudha Sharma and Siddhant

Sharma were taken to Sahara Hospital and admitted there.

16.1 Firstly police had seized iron pipe, seizure memo of which is

exhibited as Exh. P-5 had been prepared before him whereupon 'A' to

'A' part bears his signature. Thereafter police had seized jewellery by

taking out from the pocket of appellant wherein four bangles, chain,

two earrings as well as two chains, two gold rings had been seized

before him, seizure memo of which is exhibited as Exh.P-6 had been

prepared before him whereupon 'A' to 'A' part bears his signature.

Thereafter blood stained clothes of accused wherein shirt and a vest of

Divya Company were also seized, seizure memo of which is exhibited

as Exh.P-7 had been prepared before me whereupon 'A' to 'A' part

bears his signature. Police had arrested appellant at 03:50 o'clock

Cr.A. No.349 of 2011

whose arrest memo is Exh.P-8 whereupon 'A' to 'A' part bears his

signature.

16.2 Police had taken statement of appellant at 04:30 o'clock.

Appellant told that he had thrown some jewelleries in a drain behind

the house of Seth Ji Mahesh Sharma, he will get the same recovered

after searching. Said disclosure statement is exhibited as Exh.P-9

whereupon 'A' to 'A' part bears his signature. Apart from it no seizure

had been made before him from the appellant but a mobile had been

seized from the place of incident which was lying below the table,

seizure memo of which is exhibited as Exh.P-10 whereupon 'A' to 'A'

part bears his signature. Police had taken his signature at 'A' to 'A'

part of Saffina Form Exh.P-11. Police had prepared panchanama of

dead body before him which is exhibited as Exh.P-12 whereupon 'A'

to 'A' part bears his signature. 'A' to 'A' part of Exh.P-2 bears his

signature. Police had taken his statement.

17. During cross-examination he has stated that prior to said

incident, no quarrel had occurred between accused and complainant

Mahesh Sharma before him and no quarrel had occurred between

accused and Mahesh Sharma's wife and son Siddhant before him. He

does not remember that date when the accused was expelled from

Brijvashi Misthan Bhandar. The work of weighing articles to give

customer at counter was performed by the appellant. There are two

Cr.A. No.349 of 2011

counters at Brijvashi Misthan Bhandar, one was for weighing articles

and another was for receiving money. Mahesh Sharma himself used to

receive money. He admitted that deceased Smt. Sudha Sharma never

used to sit at the Brajwasi Sweet Shop. He admitted that on the date of

incident after having dropped the owner of shop at his house, he went

to Tansen Road. On reaching at Loco, he received phone call of

Sidhdhant. He admitted that before him no scuffle took place

between Mahesh Sharma, Sidhdhant Sharma and deceased. When he

reached at the place of incident, a crowd of 20-25 persons was

congregated there. He had not seen the appellant at spot. Safina form

and Laash Panchyatnama bear his signature. He admitted that when

he reached Police Station Inderganj he saw appellant-Rajesh

Khandelwal there. He saw the iron pipe at the police station which

was seized by the SHO of the Police Station. He was called by SHO

of the Police Station in regard to preparation of spot map. Spot map

Ex.P-4 was prepared before him.

18. On going through the entire deposition, we did not find

anything worth elicited from this witness so as to discard his

testimony. We have not noticed a single contradiction/omission

having been brought on record in the course of cross-examination of

this witness.

19. As per Jeevanlal Shilpkar (PW-10), on 19.08.2009 he was

Cr.A. No.349 of 2011

posted as Sub-inspector at Police Station Inderganj. On the said date

at 10:10 pm he received information on wireless that scuffle took

place at the house of owner of Brajwasi Sweet Shop and all the

injured were sent to the Sahara hospital. Mahesh Sharma, his wife

Sudha Sharma and their son Sidhhant Sharma were admitted in

Surgical Ward in injured state. On the basis of information given by

Mahesh Sharma, he registered Dehati Nalishi for offence punishable

under Section 307, 450 of IPC. Complainant Mahesh Sharma in his

report stated that appellant with an intention to kill his wife, son

alongwith complainant assaulted them with iron rod causing fatal

injuries to them. Dehati Nalishi was recorded by him which is

exhibited as Ex.P-1 which bears his signature.

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

incident he was not posted as Town Inspector, he was Station House

Officer. He does not remember the name of the constable who was

posted at Shinde Ki Chhawni Police Post. On the said date of incident

Lallan Ojha was the in charge of said Police Post. He admitted that on

the night of incident, the information transmitted on wireless set was

announced on other wireless sets of the city. He had not written the

information which was given to him on wireless. He admitted that

when he received information, at that time he was on motorcycle near

Achleshwar Mandir. After receiving information on wireless he

Cr.A. No.349 of 2011

forwarded the same to Police Station Inderganj. On receiving

information on wireless he directly went to Sahara Hospital. He

denied that he did not lodge report Ex.P-1 in Sahara Hospital. He

admitted that he registered the crime for the offence punishable under

Section 307 and 450 IPC. He did not record statement of any witness

in Sahara Hospital. He did not ask from the informant that how, when

and with whom the injured persons were sent to the Hospital. He

admitted that in the night of incident he did not go at the place of

incident. He had gone to the place of incident on the next day

morning. He did not remember that in the night of incident when he

reached police station, accused was present in the police station or

not.

21. On going through examination-in-chief and cross examination

of this witness, On the said date at 10:10 pm he received information

on wireless that scuffle took place at the house of owner of Brajwasi

Sweet Shop and sent all the injured to Sahara hospital. Mahesh

Sharma, his wife Sudha Sharma and their son Sidhhant Sharma were

admitted in Surgical Ward in injured state. We have not noticed any

contradiction/omission in the evidence of this witness.

22. As per Dr. Nikhil Agarwal (PW-5) on 20.08.2009 he was posted

on the post of Exhibitor. On the said date dead body of deceased Smt.

Sudha Sharma was brought by Constable Dinesh Bhadoriya Police

Cr.A. No.349 of 2011

Station Inderganj Lashkar Gwalior. The said dead body was identified

by the said Constable and one Rajneesh Sharma. He has examined

deceased Sudha Sharma and found following injuries on her body:-

(1) A stitched wound present on right side of forehead 4

cm above right eyebrow, placed horizontally and having 7

stitches, on opening the stitches, the wound found to be

lacerated size 5 cm x 0.5 cm deep upto bone.

(2) Another stitched wound present on left side forehead

upper part present at frontal exuviance vertically and

having 6 stitches, present 3.5 cm above lateral part of left

eyebrow, on opening the stitches, the wound found to be

lacerated size 4cm x margins of wound approximated,

deep to scalp.

(3) A stitched wound present on head at anterior part of

vertex just right lateral to midline, 11 cm above glabella,

having two stitches, on opening the stitches, the wound

found to be lacerated size 2 cm x 1.5 cm deep up to bone.

(4) A stitched wound present on left side head, 5 cm above

left ear 1 placed anteroposteriorly 4.5 cm long and having

8 stitches, on opening of stitches, the wound found to be

lacerated size 4.5 cm x margins of wound meeting and

deep upto bone.

Cr.A. No.349 of 2011

(5) A stitched wound present on left ear pinna on upper

part having 8 stitches, on removing the stitches, the wound

found to be lacerated size 4.5 cm x 0.5 cm deep to

cartilage of ear pinna. Behind the ear pinna, a lacerated

wound present size 3 cm x 2 cm deep upto bone.

(6) A lacerated wound present on left side occipital region

upper part size 3.5 cm x 2 cm deep upto bone.

(7) A stitched wound present on head at left side on perital

exuviance having two stitches, on removing the stitches,

the wound found to be lacerated size 3.5 cm x 0.5 cm deep

upto bone.

(8) A contusion present over neck on right side at

auterolateral aspect size 3.5 cm x 2.5 cm and another

contusion on central part anterior aspect below thyroid

cartilage extending on left side size 4.5 cm x 2.5 cm.

All the injuries mentioned in this report are fresh since death

and injuries over head and neck are fatal and sufficient to cause death

in ordinary course of nature and appears to be caused by hard and

blunt object and homicidal in nature.

Internal examination

(1) On dissection of neck, whole of neck region subcutaneous

part ecchymosis more marked at right side at auterolateral aspect

Cr.A. No.349 of 2011

against against deep structure and on central part and left side of neck

against thyroid cartilage. Vessels damaged and muscles of neck

ecchymosis.

(2) Ecchymosis present at under surface of scalp and over

cranial vault on both sides frontal region corresponding to the

mentioned injuries on forehead and at left temporal and perital part

and occipital region corresponding to the external injuries described

over head. Meninges hyperemic & Oedematous.

In his opinion cause of death is due to shock and haemorrage as

a result of head and neck injuries, caused by hard and blunt object and

homicidal in nature.

23. In cross-examination he admitted that he did not receive copy of

FIR alongwith application for postmortem. Police did not send any

weapon for asking his opinion as to weather the injuries can be caused

by the said weapon or not. Since undigested food was found in the

body of deceased, therefore, it appears that she might have eaten food

before 3 to 4 hrs. The constable, who brought the dead body of

deceased, had seized the articles including viscera, the receipt of the

same had been taken. He admitted that there is no blood stains on the

pages of Ex.P-13.

24. As per Dr. P.C. Saxena (PW-6) on 19.08.2009 he was posted on

the post of Medico Legal Officer at Sahara Hospital, Gwalior. On the

Cr.A. No.349 of 2011

said date he examined injured Mahesh Chandra Sharma and found

following injuries on his body:-

(1) Lacerated wound 2 cm x 4 cm x skin deep ante right frontal

region blood clots.

(2) Lacerated wound 2 cm x 5 cm x skin deep ante right parital

region blood clots.

(3) Lacerated wound 3cm x 4 cm x muscle deep ante mid

parallel region of scalp blood clots.

All the injuries were caused by hard and blunt object within 12

hrs. of examination. He advised for x-ray of right leg and C.T. scan of

head and asked opinion of Nuerosurgeon and Orthopaedic Surgeon.

On the said date he also examined Smt. Sudha Sharma and

found following injuries on her body:-

(1) Lacerated wound on the left pinna upper part 6 cm x 0.5 cm

x muscle deep at right helex and pre auricular region oblique blood

clots.

(2) Lacerated wound ante left side of forehead on the left

parietal region 7 cm s ½ cm x muscle deep bleeding.

(3) Lacerated wound ante left temporo parietal region 8 cm x

0.5 cm x muscle deep bleeding.

(4) Lacerated wound ante left side of forehead and scalp 6 cm x

0.5 cm x skin deep bleeding.

Cr.A. No.349 of 2011

(5) Lacerated wound ante scalp in the middle irregular

triangular each arm 1 cm in size blood clots.

(6) Lacerated wound ante left parieto occipital region 3 cm x ½

cm x skin deep blood clots.

(7) Triangular lacerated wound ante bcde occipital each 1 cm

arm region.

All the injuries were caused by hard and blunt object. He

advised the injured for C.T. Scan of head and asked opinion of

Neurosurgeon.

24.1 On 20.08.2009 he also examined injured Siddhant Sharma and

found following injuries on his body:-

(1) Lacerated wound 2 cm x 6 cm x muscle deep occipital

region blood clots.

(2) Lacerated wound ante left frontal region 1 cm x 2 cm x skin

deep blood clots.

(3) Lacerated 3 cm x 2 cm x muscle deep ante post aspect or

left upper arm above elbow blood clots.

25. During cross-examination he admitted that he knows injured

Mahesh Sharma earlier but does not know his wife and son. He

admitted that having seen injuries on the body of deceased he can not

say that which injury was inflicted first. Police did not give his

opinion in regard to nature of injury. He admitted that he advised

Cr.A. No.349 of 2011

injured Mahesh Sharma for X-ray, C.T. Scan, Neurosurgeon and

Ourthosurgeon but the said examinations were not conducted before

him. On being asked the question to injured Mahesh Sharm that who

assaulted him, he only replied the surname of accused "Khandelwal".

When the said question was put before injured Siddhant Sharma he

also replied in same terms. Police did not sent copy of FIR to him

during examination.

26. As per Lallan Ojha (PW-12) he was posted as Sub-inspector on

19.08.2009 at Police Station Inderganj. On the said date he received

case diary of crime No.330/2009 for investigation. During

investigation, he reached the spot and thereafter reached Sahara

Hospital where he recorded statement of injured Mahesh Sharma and

thereafter he recorded statement of injured Siddhant Sharma.

Thereafter having reached JH Hospital he prepared Laash

Panchayatnama of deceased Sudha Sharma. Thereafter he issued

Safina form Ex.P-20 which bears his signature. Thereafter on reaching

place of incident, he prepared spot map vide Ex.P-4 which bears his

signature. He also seized a blood stained white color chiffon clothe

from the spot. He also seized a broken mobile phone from the spot,

seized memo of which is exhibited as Ex.P-10. On the said date he

arrested accused-appellant Rajesh Khandelwal as per arrest memo

vide P-8 . He also seized four golden bangles, one golden ring, one

Cr.A. No.349 of 2011

piece golden chain, seizure memo of which is exhibited as Ex.P-6. He

admitted that on the said date accused himself told that some

jwelleries like one chain and mangalsutra, he has thrown into a drain

adjacent to the house of complainant. Disclosure statement of said

accused is at Ex.P-9. On the said date, he recorded statements of

witnesses Manoj Chauhan, Rakesh Sharma, Dinesh Singh Bhadoriya

and Constable Ashok Mishra.

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

elicited so as to discard evidence of this witness.

28. So far as evidence of Smt. Garima (DW-1) wife of appellant is

concerned, she has stated that appellant has been falsely implicated in

the case and that appellant is a man of good character. This witness

belied the whole prosecution story. It is true that Smt. Garima (DW-1)

has stated against story of prosecution but considering the statement

of prosecution witnesses and the fact that she is wife of appellant, her

testimony does not inspire confidence.

29. 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:-

Cr.A. No.349 of 2011

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)

30. From the above analysis, the prosecution succeeded in proving

the offence in question beyond all reasonable doubts. The findings

recorded by the trial court is based on appreciation of evidence in

correct perspective and there is no illegality or perversity in the said

findings. Hence, we do not find any ground to interfere in the

Cr.A. No.349 of 2011

impugned judgment passed by the trial court whereby appellant has

been convicted and sentenced adequately.

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

upholding the judgment of conviction and sentence passed by the

court below.

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




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