Ramesh vs State Of M.P. Thru P.S. Scheduled ...
2022 Latest Caselaw 437 MP

                                        1

         THE HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR

                          (DIVISION BENCH)

                     Criminal Appeal No.339/2000

Ramesh and three 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 R.K. Sharma, learned senior counsel with Shri M.K.
Chaudhary, learned counsel for appellants.
       Shri Rajesh Shukla, learned Deputy Advocate General for
the respondents/State.
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Reserved on:          01.12.2021

Delivered on:         10.01.2022
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                               JUDGMENT

PER JUSTICE DEEPAK KUMAR AGARWAL

This criminal appeal under Section 374 of Cr.P.C assails the

judgment dated 17.04.2000 passed by the Special Judge, Vidisha

in Special Case No. 69/98, whereby, appellants- Santosh, Ramesh,

Pappu and Gabbar have been convicted under Section 302 read

with Section 34 of IPC and sentenced to undergo life

imprisonment with fine of Rs.500/- and appellant No.1-Ramesh

has further been convicted under Section 323 of IPC and

sentenced to undergo three months simple imprisonment with a

direction that both the sentences shall run concurrently.

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

07.05.1998 at about 11:00 AM near Ahmadpur Square, present

appellants i.e. Ramesh and his sons Santosh and Pappu @

Gajendra and son of landlord Gabbar, assaulted the deceased

Laxminaran by means of gupti and katarna. When the family

members of the deceased came to rescue the deceased, appellant

Ramesh assaulted complainant/Tulsiram with lathi, due to which

he sustained injury on his right leg. Afterwards, the present

appellants ran away from the spot. Complainant Tulsiram took

deceased- Laxminarayan in injured condition to the hospital and

on the way, the deceased died.

3. In hospital, at about 11:45 AM, father of the deceased

Tulsiram lodged Dehati Nalisi vide Ex.P/1 and on the basis of

which, Merg under Section 174 of Cr.P.C. was recorded and

Crime No. 94/98 was also registered under Sections 302, 34 and

323 of IPC. Panchnama of the dead-body was prepared vide

Ex.P/11 and dead body was sent for postmortem.

4. Dr. R.C. Sonkar (PW-1) conducted postmortem of the dead-

body of the deceased. During postmortem, he found injuries on

neck, left parietal region on the head, right side of chest, in

between thumb and index finger, knee and fifteen incised wounds

on left wrist and hand, a stab wound near lungs, a stab wound on

stomach and a stab wound on left shoulder of the deceased vide

his report Ex.P/0. As per his opinion, injuries No.1, 4 and 7 were

sufficient to cause death. The death was caused within 6-8 hours

from the postmortem. The cause of death was shock and syncope

leading to cardio respiratory failure as a result of haemorrhage

and cutting of blood vessels. Death was homicidal in nature.

5. During investigation, spot map was prepared and from the

spot, plain and blood stained soil were seized. Thereafter,

statements of the witnesses under Section 161 of Cr.P.C. were

recorded and accused persons were arrested on 08.05.1998.

According to the information given by the accused persons, Lathi,

katarna and Gupti were seized by the Police Authorities.

Thereafter, all the seized articles, plain and blood stained soil and

clothes of the deceased were sent for chemical examination vide

Ex.P/16 and the report of Forensic Science Laboratory is Ex.P/17.

After completion of investigation, charge sheet has been filed

before the competent Court.

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

and from where it was received by the trial Court for trial.

7. The prosecution in order to prove its case examined thirteen

witnesses and appellants in their defence examined one witness.

The trial Court after marshalling the evidence came on record,

convicted the appellants as aforesaid.

8. The present appeal has been filed on the ground that no

independent witnesses were examined by the prosecution to prove

its case. No motive is proved. FIR is ante-dated and there is no

compliance of Section 157 of Cr.P.C. The name of appellant No.4

Gabbar @ Manohar was also not mentioned in the FIR.

9. Learned counsel for the State supported the impugned

judgment of conviction and sentence by submitting that there is

no infirmity in the impugned judgment.

10. Heard learned counsel for the parties and perused the

record.

11. Complainant- Tulsiram (PW-2) has stated that deceased

Laxminarayan was his son. Before one year at about 11:00 AM

when his son- Laxminarayan was standing outside, appellant

No.1-Ramesh carrying lathi, appellant No.2-Santosh Gupti and

appellants No. 3 and 4 carrying katarna came there. Appellant

No.1-Ramesh assaulted his son with lathi, due to which, he fell

down. Afterwards, all the appellants started beating him.

Complainant, Prabulal and Bhaiyalal were standing nearby. When

complainant intervened in the matter, appellant No.1-Ramesh

assaulted him with lathi which hit on his left knee and also

twisted his hand. Appellant No.2-Santosh stabbed Gupti in the

stomach of the deceased. The deceased received various injuries.

He further stated that he along with other persons took the

deceased on a trolley to the hospital and on the way to the

hospital, Laxminarayan died. They took the deceased to the

hospital where Police Personnel also came there. His son was

having previous enmity with the appellants and at the time of

incident, he was wearing pant and vest.

12. During cross-examination, this witness stated that at the

time of incident he used to run trolley. He used to go from his

house at 7:00 AM and return at about 7:00 PM. Nobody told him

about the incident, but he was at the house. He further stated that

in front of his house, some curtains (Tatiya) of 6 ft. height are

installed, so that ladies can do their personal work. Between the

road and his house, there is a vacant place of 20 feet. In front of

his house, there is a shed for waiting of the passengers. He

admitted that no one can see into his house from the shed because

of curtains. He was sitting at the door and his son was standing on

the road. He stated that he informed the police that appellants

Gabbar & Pappu were having katerna and they assaulted his son

by Katarana, but if the said facts have not been mentioned in his

statement (Ex.D/1), he cannot give any reason. He also informed

the police that when his son fell down, then all the four accused

started beating him, but if the said fact has not been mentioned in

his police statement, he cannot give any reason. After hearing hue

and cry, he reached the spot and found that his son was lying in

sewer. Thereafter, Prabulal and Bhaiyalal came there. As soon as

he reached the spot, the appellants chased him with katarna.

There was no bus on the spot at the time of incident. There was no

hotel on the spot at the time of incident. It was constructed

afterwards. Generally, the passengers use to come and go at the

bus stop. He further stated that he cannot say that on hearing

which sound appellants ran away from the spot towards S.A.T.I.

He is having no enmity with the appellants/accused.

13. During cross-examination, this witnesses further stated that

shop of Prabulal is situated nearby the place where dead-body of

his son was lying. He does not know as to whether two boys were

working in the shop of Prabhulal. There was a boy in the shop of

Prabulal. He informed the police that appellant No.1-Ramesh

twisted his hand, but if said fact is not mentioned in his police

statement, he cannot give any reason. When he reached the

hospital by taking his son, the police came there and inquired him

about the incident. He denied that appellant- Gabbar was not

present on the spot and he falsely implicated him. Near sewer,

there is a hand-pump. He cannot say as to whether there are 7-8

shops at Ahmadpur Road towards S.A.T.I. He admitted that near

sewer, there are some shops of college and from there his house

cannot be seen. He has been residing there for the last 40 years.

Appellant No.1-Ramesh was not having katarna. He did not

mention that three accused assaulted the deceased with Katarna.

Jasoda Bai is wife of the deceased. He denied that on the date of

incident she was at her maternal home. He specifically stated that

she was at her matrimonial home. He denied that he cannot see 20

steps away properly. He denied that he reached the hospital after

two hours of the incident. Whether Gupti was opened or covered,

he cannot say. His son was not wearing any shirt. He denied that

there was enmity between deceased Laxminarayan and appellant-

Santosh. He denied that when deceased Laxminarayan was

eloping with a lady, he was beaten by some persons. He admitted

that Bhaiyalal had to appear in the Court in connection with some

other case, but as the Court was closed, he returned back. He

cannot tell the time by looking at the clock. The bus arrives at

11:00 A.M, and stops for two minutes, and therefore, he

mentioned the probable time of 11. He further stated that he

cannot say as to how police in his statement (Ex.D-1) mentioned

the date as 07.05.1998.

14. By supporting the evidence of complainant- Tulsiram (PW-

2), his wife Gulab Bai (PW/4) has stated that deceased

-Laxminarayan was her son. She knows the appellants. Incident

took place one year ago. On the date of incident, she came back to

her house at about 11:00 AM after finishing her work. Her

husband was with his son. At that time, she saw that her daughter-

in-law was running. On being enquired, she replied that "Unhe

mar rahe hai" (accused are beating her husband). Thereafter, she

accompanied her and saw that near the shop of washer-man

appellants were assaulting her son and appellant Ramesh inflicted

a Lathi blow, due to which, he fell down. Afterwards, appellant-

Pappu assaulted the deceased with Katarna which hit on his neck.

Appellant- Santosh stabbed with Gupti in the stomach of the

deceased. Likewise, appellant No.4 Gabbar assaulted the deceased

with knife in the stomach. She requested the appellants to leave

her son, but they didn't pay any heed on her request and ran away

towards the college. Her neighbour Prabulal, his wife and her

daughter-in-law and she herself took deceased Laxminarayan in

trolley to the hospital, but on the way, he died. On the information

given by her daughter Rani, Bhaiyalal reached the hospital. Police

also came in the hospital.

15. In cross examination, this witness stated that she is working

with Arora Sahab. She use to go there at about 07:00 AM and

come back at about 10:30 AM. Again at 4-5 PM, she goes there.

On the date of incident, when she was returning from her job, her

daughter-in-law was going somewhere. Police took her statement

after death of her son. She informed the police that when her

daughter-in-law was running, she asked her as to where she is

going, then she told that accused are beating her husband and

thereafter this witness accompanied her, but if this fact is not

mentioned in his police statement (Ex.D/3), she cannot give any

reason. She also informed the police that appellants were

assaulting her son near washerman's shop, but if this fact is not

mentioned in her police statement, she cannot give any reason.

When her son was trying to climb upon the boundary of college,

appellant- Pappu assaulted him with Katarna. If this fact is not

mentioned in her police statement (Ex.D/3), she cannot assign any

reason. Everybody reached the spot approximately at the same

time. She admitted that one hand of appellant- Ramesh is already

cut. She denied that by one hand, the accused cannot inflict Lathi

blow on the victim. She further stated that firstly appellant- Pappu

assaulted the deceased with katarna and appellant- Ramesh

assaulted the deceased with lathi, due to which, the deceased fell

down. She denied that on hearing hue and cry, she reached the

spot. She reached the spot on the information given by her

daughter-in-law. If this fact is not mentioned in her statement (Ex.

D/3), she cannot give any reason. It is true that when she and

other persons reached the spot, the appellants ran away. She

denied that due to enmity, she has taken name of appellant-

Ramesh. She also denied that due to some dispute of Bedani her

son got injured. Gabbar has assaulted her son with knife in his

stomach. If this fact is not mentioned in her police statement, she

cannot give any reason. She further stated that 'B' to 'B' part of

her police statement that Gabbar has not assaulted with katarna in

the head is not correct. She denied that Gabbar has not assaulted

her son.

16. On going through the evidence of complainant Tulsiram and

Gulab Bai, it is crystal clear that on the date of incident

complainant Tulsiram was sitting at the door of his house and his

wife Gulab Bai was in the house. They saw the incident in which

appellants armed with weapons i.e. lathi, gupti and katarna

assaulted their son Laxminarayan. When complainant Tulsiram

came to intervene in the matter, appellant -Ramesh assaulted him

with lathi. After the incident, complainant Tulsiram took his son

in trolley to the hospital, but on the way, Laxminarayan died. On

reaching the hospital, complainant lodged the report with the

police personnel. It is true that in their examination before the trial

Court and FIR lodged with the police and statement under Section

161 of Cr.P.C. there are some discrepancies, contradictions and

omissions with regard to the weapons appellants were carrying.

However, taking into consideration that incident took place all of

a sudden and their son was assaulted by all the appellants, such

type of contradictions do not appear unnatural, on the basis of

which, whole testimony of these eye-witness Tulsiram & Gulab

Bai can be thrown out. It is true that they are father & mother of

the deceased, but defence could not prove that due to animosity,

they are telling lie. Beside that, their evidence is well supported

by prompt FIR and postmortem conducted by the doctor.

17. As per wife of the deceased Jasodabai (PW-7), before 14

months at 11 am her husband deceased Laxminarayan went to

fetch water from hand-pump which was installed near her house.

She knows the appellants/accused. The appellant -Pappu assaulted

her husband by means of Pharsa on his neck, due to which he

tried to run away towards college. Meanwhile, near the shops

appellant Santosh, Pappu, Gabbar and Ramesh surrounded him.

Ramesh was armed with Danda, Pappu with Pharsa, Gabbar with

knife and Santosh was armed with Gutti. Everybody assaulted her

husband due to which, he received multiple injuries. At that time,

she was standing near the hand-pump to take water for washing

clothes. Looking to the incident, she was running to save her

husband and also called her mother-in-law. Firstly her father-in-

law reached the spot. Thereafter they reached. Appellant Ramesh

assaulted his father-in-law due to which he fell down. After

assaulting her husband, appellants/accused persons ran away

towards college. Due to the incident, Laxminarayan received

injures on his neck, chest and hands. Thereafter, Laxminarayan

was taken to the hospital in a trolley.

18. During cross-examination, this witness has stated that her

house is situated at Ahemadpur crossing. She cannot say that bus

comes in the village at 11:30 am, some times it comes late. On the

date of incident, her husband by taking a bucket went to fetch

water and at that time, she was washing clothes. Bus never stops

in front of her house. She denied that on the date of incident, she

was inside the house. She further denied that she did not see the

appellants assaulting her husband. Appellants surrounded her

husband before the boundary of college. She denied that several

criminal cases of robbery and dacoity against her husband were

pending before the Court. Roopsingh, Sanjay, Umesh and Raju are

friends of her husband. She cannot say that which accused at

which part of the body of the deceased had assaulted. Police took

her statement.

19. On going through the evidence of this witness, it is

emerged that on the date of incident she was near the hand-pump

and washing clothes. On hearing hue and cry, she went near the

place of incident. She saw that appellants carrying Danda, Pharsa,

Guptti and knife surrounded her husband and assaulted with

aforesaid weapons. Of-course there are some contradictions and

omissions in her deposition, but they are not very significant, on

the basis of which her whole testimony can be disbelieved.

20. Prabhulal (PW-3) deposed that he knew deceased-

Laxminarayan. On the date of incident at about 11:00-11:30 A.M,

he came to his house for taking lunch. His house is situated in

front of the house of the deceased. When he was taking lunch, he

heard some hue and cry, and therefore, he came out from his

house and saw that appellant- Ramesh along with other three

persons were assaulting deceased- Laxminarayan with Lathi,

Gupti and Katarna, as a result of which, deceased sustained

injuries on his head, neck and chest. Later on, he deposed that

when he came out from his house, he saw the appellants running

away from the spot. He did not see the appellants assaulting the

deceased. Afterwards, wife and mother of the deceased and wife

of this witness came on the spot. They took the deceased in a

trolley to the hospital, but on the way, Laxminarayan died. In this

incident, father of deceased- Tulsiram also received injury in his

leg as appellant- Ramesh assaulted him with Lathi. The appellants

present before the Court are the same persons whom he saw

running away on the date of incident. Police prepared spot map as

Ex.P/2 which bears his signatures. Police also seized plain and

blood stained soil from the spot vide Ex.P/3. Weapons were

recovered from inside the college and seized in front of them vide

Ex.P/4 to P/7.

21. During cross-examination, this witness stated that on the

date of incident at about 07:00 AM he along with another labourer

Nannu went to Durga Nagar to repair jet pump in Sojna wale

Palel's house. He admitted that generally lunch break takes place

at about 12:00 noon, but he stated that on the date of incident he

stopped his work at about 11:30 AM. He stated that he cannot say

as to whether the place where he was working is about 2 K.M.

away from his house. He denied that he came for lunch on foot.

Police took his statement on the next day. He informed the police

that after hearing hue and cry when he came out from his house,

he saw the appellants running away from the spot. If this fact is

not mentioned in his police statement, he cannot say anything. He

admitted that he did not see any appellants assaulting the deceased

and injured Tulsiram. He denied that he did not see appellants

running away from the spot.

22. On going through the cross-examination and examination-

in-chief of this witness (PW-3), it is emerged that on hearing hue

and cry he came out from his house and saw the appellants

running away towards S.A.T.I. and deceased Laxminarayan lying

down at the place of incident in injured condition and Tulsiram

also sustained injury on his leg.

23. Kamla Bai (PW-5) neighbour of the deceased, Roop Singh

Kirar (PW-6) residing in the same vicinity, Raju (PW-8), Sanjay

(PW-9), Shyam (PW-10) and Umesh Kumar Rai (PW-11) also

stated that they were present on the spot at the time of incident

and on hearing hue and cry they reached the spot and saw that

appellants Ramesh, Santosh, Pappu and Gabbar carrying Lathi,

Gupti and Katarna assaulted deceased- Laxminarayan. Family

members of the deceased came to save deceased- Laxminarayan

and deceased also tried to save himself, but he fell down in

Khanti. Afterwards, appellants/accused persons assaulted him

with Lathi, Gupti and Katarna etc. Kamla Bai (PW-5) also

identified the appellants/accused present before the trial Court as

the persons who assaulted deceased Laxminarayan. After the

incident, they ran away. Thereafter, deceased- Laxminarayan was

taken to hospital, but on the way, he died. Police took their

statements.

24. During cross-examination, Kamla Bai (PW-5) has narrated

that her husband- Prabulal is doing work of plumbing. On hearing

noise, she and her husband reached the spot and saw that

deceased Laxminarayan was lying down near boundary. She

stated that she informed the police that near hand pump appellant

Pappu assaulted the deceased with Farsa as a result of which he

fell down in Khanti. But if this fact is not mentioned in her police

statement, she cannot give any reason. She denied that

complainant took her to a lawyer. She also denied that her

husband had borrowed some money from accused Ramesh, that's

why she is giving false evidence. Tingi is her son against whom

several cases are pending and he is behind the bar. She denied that

appellant- Ramesh gave statement against Tingi, and therefore,

she and her family are annoyed with him.

25. During cross-examination Roop Singh (PW-6) stated that

when the deceased was taking water from hand-pump, appellant

Pappu assaulted the deceased with Pharsa. If this fact is not stated

in his statement (Ex.D/5) he cannot say anything. He has a tea

stall in the village and on the date of incident 10-12 customers

were sitting in his shop. He does not know any difference

between Katarna and Pharsa. Due to the incident, he could not

supply tea to his customers. Appellant Gabbar was having knife.

He denied that he reached the spot after the incident when blood

was oozing out from the body of Laxminarayan. Lal Chand is son

of his elder grandfather. He has no knowledge of the quarrel

which took place between Pappu and Lalchand before two days of

the incident. He admitted that a case is pending against him on the

allegation of demanding ransom from Suresh Jain regarding his

son. He denied that he did not see the incident.

26. During cross-examination Raju (PW-8) has stated that

appellant Santosh and other accused came together on the spot.

Deceased- Laxminarayan could not reach near boundary and fell

down much before it. He saw from his shop appellant Pappu

assaulting the deceased with Pharsa. He admitted that one bus

goes from Ahmedpura crossing at 11:30 AM and on the date of

incident there was no bus standing near hand-pump. He denied

that on the date of incident, two buses were standing. He saw

deceased- Laxminarayan taking water from the hand-pump before

the incident. Deceased was sitting in his shop. Afterwards, his

wife called him to take bath and then he went to hand-pump to fill

water in his bucket. He denied that this witness, Umesh, Sanjay,

Roop Singh and deceased Laxminaraya were close friends. Father

of the deceased was repairing trolley nearby, therefore, he reached

the spot before his wife, mother and others. He cannot

differentiate between Pharsa and Katarna. Appellants Gabbar and

Santosh assaulted the deceased with knife. He denied that he did

not see the incident.

27. During cross-examination Shyam (PW-10) stated that one

bus which runs at 11:30 AM had already gone before the incident.

His house is situated adjacent to the deceased's house. Incident

took place behind wooden shops. On the place of incident, 20 to

25 persons assembled. Appellant- Pappu assaulted the deceased

with Pharsa. He admitted that deceased was his close friend. He

denied that because of friendship with the deceased, he is giving

false evidence against the appellants.

28. During cross-examination Umesh Kumar Rai (PW-11)

stated that he did not inform the police about the injuries

sustained by the deceased because the police personnel did not

ask from him. Tulsiram reached the spot before him. Appellants

were running behind the deceased carrying weapons.

29. During the cross-examination Sanjay (PW-9) stated that he

is not having close friendship with the appellants, but he knows

them. He cannot say that during the incident appellants were

carrying weapons or not. He was taking tobacco from Raju's shop

at the time of incident. At about 11:15 AM a quarrel started

between the deceased and appellants-accused. Afterwards, mother

and father of the deceased took the deceased in a trolley and later

on, he died. He could not see as to which accused assaulted at

which part of his body. He did not give any statement to the police

vide Ex. P/8.

30. By supporting the evidence of prosecution, the then SHO of

Police Station, Dehat, N.S. Rathore (PW-12) deposed that on

07.05.1998 at 11 am on the information of Tulsiram, father of the

deceased, Merg No.16/98 was recorded on the basis of Merg

No.0/98 recorded at District Hospital, Vidisha, vide Ex, P-1. On

the basis of Merg, case was registered under Section 302 read

with Section 34, 323 of IPC bearing Crime No.94/98 vide Ex.P-9.

During Merg enquiry, he gave notice to the witnesses vide Ex.P-

10 and prepared dead-body Panchayatnama vide Ex.P/11. After

preparing spot map (Ex.P-2), he seized plain and blood stained

soil vide Ex.P-3. On 08.05.1998 he took statement of appellant

Ramesh under Section 27 of the Evidence Act vide Ex.P-12 who

gave information regarding Danda. On production of Danda, he

seized the same vide Ex.P-7. At the behest of appellant Sanotsh,

vide ExP-6 he seized Gutti. Memorandum of appellant Santosh in

this regard is Ex.P-13. At the behest of appellant- Pappu @

Gajendra, he seized Katarna vide Ex.P-5. At the behest of

appellant Gabbar, he seized Katarna vide Ex.P-4. Memorandum

of appellant Gabbar in this regard is Ex.P-15. Later on, seized

weapons were sent for chemical analysis to FSL Sagar. The report

received from FSL Sagar is Ex.P-16.

31. During cross-examination, this witness (PW-12) denied that

under influence of the complainant he has fabricated the case

against appellants. Inquest notice was given to those persons who

were having information of the crime. In the spot map, he did not

mark the distance from one place to another on the basis of scale.

In the spot map, he has not mentioned about the hand pump. Near

Eucalyptus tree there is sloping ground. He has no knowledge

about the width of the sloping ground. Seizure memo Ex.P-5 was

written by Head Constable under his direction. Katarna was

seized from the bushes. Tulsiram in his police statement did not

mention that appellants Gabbar and Pappu were having Katarna.

He also did not mention in his police statement that when his son

fell down, all the appellants started beating him. In the report,

name of Gabbar is not mentioned, but when we see FIR lodged by

the complainant and recorded by N.S. Rathore, it is clear that in

column No.7 of FIR at serial No.4, it is written that "Makan

malik ka ladka jo basod hai Manohar urf Gabbar". Looking to

the FIR, statement of this witness does not appear to be true. He

also stated that Prabulal did not mention in his police statement

that on hearing hue and cry, he came out and saw

appellants/accused running away and he also did not mention that

Pappu was having Pharsa. Gulab Bai in her police statement

(Ex.D-3) did not mention that her daughter-in-law was running

and when she asked what happened, then she replied that "unhe

maar rahe hai". Kamlabai also did not mention in her police

statement that when appellant Ramesh assaulted the deceased by

means of Danda, he fell down. Roop Singh did not state in his

police statement that when deceased Laxminarayan was taking

water from the hand pump, appellant Pappu assaulted him with

Pharsa. He also did not state that Gabbar assaulted with knife at

chest and Santosh assaulted with Guptti at the stomach of

deceased Laxminarayan. Statement of Jasodabai, wife of the

deceased, was taken later on because at that time she was not in a

position to give statement. It is true that appellant Ramesh's left

hand is missing. Receipt of sending First Information Report to

the concerned Magistrate is not on record. Tulsiram gave Merg

intimation at the hospital. He cannot say that at what time he

reached the spot. He seized two Katarnas. When he reached at the

hospital, the deceased had died. He denied that FIR is ante-dated.

He performed his duty without any interest. After evidence

against appellant Gabbar came, he was arrested.

32. It is true that there are some contradictions and omissions in

the statements of the witnesses recorded by this witness N.S.

Rathore (PW-12), but witnesses in the present case are illiterate

villagers and incident occurred all of a sudden and in such

situation, it cannot be expected from these witnesses to state each

and every details minutely before the Court.

33. Doctor- R.C.Sonkar (PW-1), conducted postmortem of

deceased- Laxminarayan and found following injuries on the dead

body :

(1) incised wound over left lateral submandibular region placed obliquely size 10x2x4 cm muscular and vascular cut.

(2) incised wound over left front parital

mid-line placed obliquely three in number.

(a) placed obliquely towards left lateral 5x1x1 cm.

(b) towards right medial mid-line 5x1x1 cm.

(c) towards injury number 2-b direction 5x1x1 cm. A,B,C joint each other. (3) incised wound over manubrium sterni left ant. shoulder to right ant. axilla in one strake horizontally 38x1x1 cm. maximum depth and width over manubrium sterni spindle shaped caused by hard, sharp and blunt weapon. (4) stab injuries over sternum 4 cm left medial level of left nipple of chest spindle shaped 2x1 cm depth up to vital organ of lungs leading to massive bleeding in thoracic cavity. Injuries caused to sufficient cause of death leading to shock syncope caused by long pointed blade.

(5) Another I.W. below no. 4 size 3x1x0.5 cm (6) Another IW right chest size 2.5x1x0.5 cm.

(7) Stab injury over left lateral hypo chondrium spindle shaped over abdomen 4x2 cm deep upto upper pole of left kidney.

(8) S.I. over left antero lateral shoulder size 3x4x2 cm.

(9) IW left posterior lateral elbow joint size 10x3 upto muscle cut (10) IW below No.9 4x2x2 cm.

(11) Incised wound over left inter digital space of thumb and index finger muscle and 1st metacarpal cut 11x5 cm (12) I.W. left knee Jt. ant. placed obliquely size 3x2x1 cm (13) 18 cm below no.12 I.W. size 7x2 cm placed obliquely (14) I.W. Rt. Ant. medial wrist Jt. 5X1 cm (15) I.W. Rt medial thumb 2x1x1 cm (16) I.W. Rt. ventral ring finger middle phalanx 2x1x1 cm (17) I.W. Rt. lateral base of thumb 3x1x1 cm (18) I.W. Rt. Palm placed obliquely 10x2x1 cm.

All injuries are antemortem in nature caused by hard and

sharp long blade weapon. The cause of death was shock and

syncope leading to cardio respiratory failure as a result of

haemorrhage and cutting of blood vessels. Death was homicidal in

nature. According to the doctor, injuries number 1,4 and 7 are

sufficient to cause death. During cross-examination, this witness

admitted that left hand of appellant- Ramesh is already cut near

the shoulder. He also admitted that police did not send any weapon

before him for examination.

34. S.S. Sisodiya (PW-13) has stated that on 06.06.1998 he was

posted as Deputy Superintendent of Police AJAK. During

investigation, he took the statements of Gulab Bai, Kamla Bai and

Jasoda Bai. He could not state as to when statements of witnesses

were recorded. He admitted that Gulab Bai in his statement Ex.D-

3 did not state that when her daughter-in-law was running, she

asked that what happened, then she replied that 'Unhe Maar Rahe

Hai'. He further admitted that Kamla Bai in his police statement

did not mention that she was cooking food and on hearing hue and

cry, she went out from the house. He denied that statement of

Jasoda Bai was taken after 3-4 days of the incident. He also denied

that Jasoda Bai did not give any statement. He denied that

witnesses were not present on the spot, and therefore, earlier

Investigating Officer did not take their statements.

35. On going through the evidence of the above prosecution

witnesses, specially father of the deceased complainant Tulsiram

(PW-2) who himself sustained injury in his leg during the incident,

which is supported by the evidence of Gulab Bai (PW-4),

Jasodabai (PW-7) as well as evidence of independent witnesses

Prabhulal (PW-3), Kamlabai (PW-5), Roop Singh Kirar (PW-6),

Raju (PW-8) and medical evidence of Dr. R.C.Sonkar (PW-1), this

Court is of the considered view that the prosecution has proved its

case beyond reasonable doubt that appellants in furtherance of

their common intention have committed murder of deceased

Laxminarayan. The defence tried to establish that some unknown

persons have killed the deceased, but defence witness No.1

Kailash Rathore has admitted in his cross-examination that before

his reaching to the spot, the assailants had run away. Suggestions

given by the defence to the prosecution witnesses that on account

of enmity they are giving false evidence against the appellants

have been specifically denied by the prosecution witnesses. Only

minor discrepancies are there in the evidence of the prosecution

witnesses with regard to the weapons appellants were carrying at

the time of incident. The Supreme Court in the case of

Mallikarjun and Others vs. State of Karnataka, reported in

(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."

36. It is well-established principle of law that where the case is

based on direct evidence and the evidence led by prosecution is

worth-reliance, then the same cannot be discarded merely on the

ground of absence of any motive of the accused. The Hon'ble

Supreme Court in the matter of Yogesh Singh vs. Mahabeer

Singh and Others, reported in (2017) 11 SCC 195, has held as

under:-

''46.......It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. ''

37. So far as contention of learned counsel for the appellants

that name of appellant No.4- Gabbar @ Manohar was not

mentioned in the FIR is concerned, on perusal of the FIR (Ex.P/9)

lodged by the complainant, it is clear that in column No.7 of the

FIR at serial No.4 name of appellant No.4 has been written as

"Makan malik ka ladka jo basod hai Manohar urf Gabbar". As

regards the contention that the FIR is ante-dated, N.S.Rathore

(PW-12), SHO of police Station, Dehat, has deposed that FIR was

recorded after Merg enquiry and denied the suggestion that to

implicate more accused in the commission of offence he did not

lodge the FIR at the first instance.

38. Consequently, the appeal is dismissed. The conviction and

sentence of the appellants under Section 302/34 of IPC as well as

conviction & sentence of appellant No.1-Ramesh under Section

323 of IPC is affirmed. The appellants are on bail, they are

directed to surrender before the trial Court on or before 8.2.2022,

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

warrant against them.

       (RAVI MALIMATH)               (DEEPAK KUMAR AGARWAL)
      ......CHIEF JUSTICE                       JUDGE

LJ*


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 A JAIN
 2022.01.10
 18:15:46
 +05'30'