Ramdayal Yadav vs State Of M.P.
2022 Latest Caselaw 3462 MP

                                         1
                             Cr.A. No.635/2010



            THE HIGH COURT OF MADHYA PRADESH
                    BENCH AT GWALIOR
                     (DIVISION BENCH)
                  Criminal Appeal No.635/2010
Ramdayal Yadav and another                                  ..... Appellants
                                      Versus
State of M.P                                               ..... Respondent
-------------------------------------------------------------------------------------

CORAM

               Hon. Mr. Justice G.S. Ahluwalia, Judge

            Hon. Mr. Justice Deepak Kumar Agarwal, Judge.

-------------------------------------------------------------------------------------

Presence

       Shri O.P. Mathur, counsel for appellants.
       Shri    Pramod       Pachori,      Public     Prosecutor,          for    the
respondents/State.
-------------------------------------------------------------------------------------
                                 JUDGMENT

( 11/03/2022)

PER JUSTICE DEEPAK KUMAR AGARWAL

Appellants have filed this appeal under Section 374 of Cr.P.C

against the judgment of conviction passed by Sessions Judge,

Shivpuri, in S.T.No.31/10 on 06.08.2010 by which appellant No.1

Ramdayal has been convicted for the offence under Section 302/34 of

IPC and sentenced to undergo Life Imprisonment with fine of

Rs.5000/- and appellant No.2 Rameshwardayal has been convicted

Cr.A. No.635/2010

under Section 302 of IPC and sentenced to undergo Life

Imprisonment with fine of Rs.5000/-, under Section 25(1-b)(a) of

Arms Act and sentenced to undergo one year R.I. with fine of

Rs.500/- and under Section 27(1) of Arms Act and sentenced to

undergo 1 year R.I. with fine of Rs.500/- with default stipulation.

2. Brief facts of the case are that on 24.08.2009 at 8 P.M.

complainant Rampal Singh lodged a report against present appellants

and one Megh Singh at village Atarvai that in the morning at 8 A.M.,

he along with his uncle Kalyan Singh went to their field for doing

agricultural work. After finishing their work, they were returning, as

soon as they reached near Margat at 6.30 P.M, behind trees, appellant

Rameshwardayal having gun, Ramdayal lathi and accused Megh

Singh having gadasi in their hands, all of a sudden, came out and with

an intention to kill, appellant Rameshwardayal fired on his uncle

Kalyan Singh. Bullet hit at his stomach. Due to which, his uncle

Kalyan Singh fell down and became unconscious. From his stomach,

blood was oozing out. Thereafter, appellants and accused Megh

Singh ran away. Complainant and his brother, namely Sughar Singh,

present on the spot, tied a Safi around the wound and telephoned the

Police that they are having previous enmity with appellant

Rameshwardayal regarding financial transactions. Due to this, with

intention to kill his uncle Kalyan, accused Rameshwardayal fired with

Cr.A. No.635/2010

gun at his stomach. On this, Dehatinalshi was recorded at Police

Station Pohri, District Shivpuri, for the offence under Sections 307

read 34 of IPC and Sections 25/27 of the Arms Act.

3. Injured was sent on the same day to the District hospital,

Shivpuri by the Police for further treatment. Dr. V.C. Goyal

conducted medical examination of the injured. He found collection of

fluid in abdominal cavity on the stomach and blood was oozing out.

As per his opinion, injury was caused by firearm which was

dangerous in nature. Thereafter, injured Kalyan for further treatment

admitted as an indoor patient in District Hospital, Shivpuri, where,

during treatment, he died. During treatment in the hospital on the

certificate of Doctor, A.S.I. of Police Station Pohri, Santosh Sharma

recorded his dying declaration because after due attempt, Executive

Magistrate could not be arranged. In his dying declaration, he has

stated that due to civil dispute, appellant Rameshwardayal having gun

fired at his stomach. Ramdayal having lathi and Meg Singh having

Gadasi were present along with him. He got injury at his stomach and

the bullet hit at right side and passed through from the left side.

Incident took place on 24.08.2009 at 6. 30 PM. On the spot, his

nephew Rampal Singh and Sugar Singh were present. During

treatment, he died on 26.08.2009 at 10.15 A.M. Intimation about his

death was communicated to the Police Station Gwalior. On that

Cr.A. No.635/2010

intimation, Merg under Section 174 of Cr.P.C. bearing Merg

No.500/09 was recorded. Dead-body Panchnama was prepared.

Thereafter, dead-body was sent for postmortem. As per postmortem

report, Kalyan died between 6-24 hours from the time of autopsy due

to cardio-respiratory failure. On the basis of Dehatinalsi, offence

against appellants and Megh Singh was registered at Police Station

Pohri bearing Crime No.134/09 under Section 307 read with 34 of

IPC and Sections 25/27 of the Arms Act. F.I.R. was sent to the

concerned Magistrate. After postmortem, closed viscera was seized

by Police.

4. From the spot, plain and blood stained soil along with vest of

the deceased were seized. Appellant Rameshwar and Ramdayal were

apprehended. At their behest, 315 bore gun, 3 live cartridges and one

lathi were seized. Spot map was prepared. Statement of witnesses

were taken. Seized property was sent for chemical examination. After

investigation, charge-sheet against appellants under Section 302/34 of

IPC and 25/27 of Arms Act before the regular Court and charge-sheet

against Megh Singh before Juvenile Court was presented.

5. Trial Court after framing of charges conducted the trial and

found appellants' guilty of the aforesaid offences and convicted them

as aforesaid.

6. From the side of appellants, appeal has been preferred on the

Cr.A. No.635/2010

ground that both the eye-witness were not present at the place

occurrence. They are relative of the deceased. There is previous

enmity with the deceased and appellants, due to which they have been

falsely implicated and trial Court without considering their defence

on the contradictory evidence of prosecution convicted them.

7. From the side of respondent/State, it was argued that trial Court

after appreciating the evidence produced by the prosecution rightly

held the appellants guilty of aforesaid offences. No interference is

warranted.

8. As per Rampal Singh (PW-1) deceased Kalyan was his uncle.

On 24.08.2009 he alongwith Kalyan and brother Sughar Singh went

to the field. When he was returning at 6:30 pm, his brother Sughar

Singh was ahead of him and his uncle Kalyan Singh was behind him.

When they reached near Marghat, appellant Rameshwar, Ramdayal

and accused Megh Singh met them. Rameshwar was having gun,

Ramdayal was having Lathi and Megh Singh was having Gadasi.

They surrounded his uncle Kalyan and appellant Rameshwar fired on

the stomach of his uncle due to which Kalyan Singh fell down on the

spot. As soon as his uncle fell down, all of them ran away. He tied

Safi around the stomach of his uncle and through mobile informed

the police. On his information, at 8 pm police arrived on the spot and

took his uncle Kalyan to hospital. He lodged a report with the police,

Cr.A. No.635/2010

which is Ex.P-1. Afterwards police took his uncle to district hospital

Shivpuri where one bottle of blood was given to his uncle. Thereafter

he was referred to Gwalior. During treatment, at Gwalior he survived

for two days. Afterwards during treatment he died. Police prepared

dead-body Panchnama, which is Ex.P-2. Previously a dispute of field

arose between appellants and his uncle due to which they killed his

uncle.

9. During cross-examination, he has stated that he has studied

upto 9th standard. Apart from him, his family consists of his real

brother Shishupal, mother and father. He was having two uncles; one

is deceased Kalyan and another is Laluram. Sughar Singh is his

cousin, who is married and having children. They reside at one place.

They took field of Hakim Singh on barter. He denied that when they

were returning from the field to their house it was dark. From the

place of occurrence, distance of field is about 1 km. From the place

of occurrence, distance of village is about half km. On the way,

people usually come and go. There are bushes near the place of

incident. Near the place of incident, there is boundary wall of 3 ft.

height. In the nearby field Bajra was being cultivated. It is true that

height of Bajra crop is around 7-8 ft. He was 20 ft. ahead of his

uncle deceased Kalyan. Neither he nor his uncle chased the accused

persons, because if they chased them, they could have killed them.

Cr.A. No.635/2010

On the spot, nobody was there. They did not cry for help. They saw

the incident from the distance of 15-20 ft. Appellants came from the

field of Bajra and surrounded his uncle and then fired on him. He

informed his family members that Rameshwar fired on his uncle. On

this information, family members came on the spot. Distance of

police station from place of occurrence is 15 km. In his statement

(Ex.D-1) he has stated that his cousin Sughar Singh was ahead of

him and Kalyan Singh was behind him. If this fact is not stated in his

statement he cannot say. He has also stated in his statement (Ex.D-1)

and report (Ex.P-1) that appellants surrounded his uncle. If this fact

is also not there, he cannot say.

9.1 He denied that after assault, his uncle became unconscious. If

this fact is not mentioned in his report, he cannot say. From the time

of occurrence since death of his uncle, he alongwith Laluram was

present with him. After receiving gunshot, upto 2-5 minutes his uncle

remained conscious. Thereafter he was not feeling comfortable. He

cannot say the gun which was in the hand of appellant Rameshwar

was of single barrel or double barrel. He also cannot say that the gun

was small or long. He denied that nearby place of occurrence hunters

used to come for hunting. He also denied that fire made by hunters

hit his uncle. Bullet passed through the body of his uncle. Four years

before a case was pending in Pohari Court between Rameshwar,

Cr.A. No.635/2010

Ramdayal and Megh Singh and deceased, which has been decided.

From that time, enmity is going on. He denied that at the place of

occurrence he was not present and went with his father to Shivpuri.

He denied that due to previous enmity, false complaint has been

lodged.

10. On going through examination-in-chief of this witness and

cross-examination, it emerges out that on the date of occurrence

when he alongwith his uncle and cousin brother Shughar Singh was

returning from the field, appellant Rameshwar, Ramdayal and Megh

Singh having gun, Lathi & Gadansi met them and surrounded their

uncle and Rameshwar fired on his stomach due to which his uncle

fell down and thereafter appellant fled away. He telephoned his

family member and police. Police came on the spot. He lodged

Dehati Nalishi against appellant. Deceased Kalyan was taken to

District Hospital Shivpuri, thereafter to Gwalior. During treatment

deceased was unconscious. It is true that in his report ExP-1 and

statement Ex.D-1 there are some contradictions regarding

unconsciousness of his uncle. This contradiction in the opinion of

this Court is of no significance due to which defence could take any

benefit and this Court is of the opinion that his evidence cannot be

disbelieved. Apart from this, his evidence is well supported by

prompt Dehati Nalishi lodged at the place of occurrence by him vide

Cr.A. No.635/2010

Ex.P-1.

11. By supporting evidence of Rampal PW-1, his cousin brother

Sughar Singh (PW-2) has stated that on the date of incident at 6:30

pm, he alongwith his uncle Kalyan Singh and brother Rampal were

returning from the field. He and his uncle Rampal were ahead and

deceased was behind them. When they reached near Marghat,

appellant Rameshwar, Ramdayal and Megh Singh surrounded the

deceased and appellant Rameshwar fired on him. Bullet after

entering his stomach passed through. Thereafter they fled away.

Afterwards he with the help of Rampal tied a towel around the

wound of the deceased and Rampal telephoned police. Afterwards at

8 pm police came on the spot. Rampal lodged the report against

present appellants. Police took deceased Kalyan Singh to Shivpuri

hospital. Thereafter he was taken from Shivpuri to Gwalior for

further treatment where after two days he died.

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

incident they went to work in the field of Hakko Bai. Near the place

of occurrence, there is a way for coming and going. At the time of

incident, the place was secluded. He was 50 steps ahead from the

deceased. On listening the sound of fire, when he turned back, he

saw that appellants were fleeing away. They did not chase the

appellants. They informed family members. He alongwith his uncle

Cr.A. No.635/2010

did not go to Shivpuri and Gwalior. When police reached the spot, it

was dark. There was no facility of light at the spot. He cannot say

from how much distance Rameshwar fired the gun. Police lodged the

report and seized articles in the dark. He admitted that due to some

financial transaction, there was enmity between him and the

appellants. He denied that due to which, he is telling lie. He denied

that due to previous enmity, the appellants have been falsely

implicated by them.

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

of this witness, it emerges out that this witness supported the

evidence of Rampal and defence could not carve out any material

contradiction from his evidence, so that his evidence could be

disbelieved.

13. By supporting prosecution case, A.S.I., Santosh Sharma (PW-

16) has stated that on 24.08.2009, he was posed as A.S.I. at Police

Station Pohri. On 24.08.2009, through mobile phone, he got an

information that in village Atvai, appellant Rameshwar, Ramdayal

and Megh Singh fired at deceased Kalyan. By entering this

information in Rojnamcha No.980 (Ex.P/8C), he along with force by

Police vehicle M.P.03 7829 rushed to the spot. On reaching the spot,

he saw that deceased Kalyan was lying in unconscious state. One

Rampal met on the spot and he narrated the full story. Rampal lodged

Cr.A. No.635/2010

a Dehatinalsi (Ex.P/1) with him. He prepared spot map at the

instance of Sugar Singh which is Ex.P/27 and seized ordinary soil and

blood stained soil and blood stained vest from the spot in front of

Lalluram and Bharat vide Ex.P-17. Afterwards, along with deceased

Kalyan, he came to District Hospital Shivpuri at 9.40 P.M. and

admitted him there for treatment. From Shivpuri, Kalyan was referred

to Gwalior. At that time, he was conscious. He tried to call Executive

Magistrate for taking statement of the deceased, but no such

Magistrate was available. He enquired from the doctor about the

condition of Kalyan. Doctor told him that deceased was in a position

to give statement. After taking his note on Ex.P/15, he took the

statement of Kalyan in question and answer pattern. Deceased told

that Rameshwar fired on him with gun and along with him appellant

Ramdayal having lathi and Megh Singh having Gadasi were present

there. Due to enmity of barter of land, around 6 P.M. on 24.08.2009

he fired on his right side of stomach and the bullet passed through his

body. At that time, his nephew Rampal and Sugar Singh were

present.

13.1 Dying declaration of deceased Kalyan is at Ex.P/15. Thereafter,

in district hospital Shivpuri again he took statements in which he has

stated that he along with his nephew Rampal, Sugar Singh at 8.A.M.

went to cultivate the field. When they were returning in the evening

Cr.A. No.635/2010

near Margat road behind trees, appellant Rameshwardayal having

gun, Ramdayal having Lathi and Megh Singh having Gadasi came

out and appellant Rameshwardayal with an intention to kill him fired

on him on the right side of his stomach and the bullet passed through

his body. Due to which, blood was oozing out. He took off his vest.

Thereafter, he became unconscious. He gained consciousness at

district hospital, Shivpuri. The incident took place due to enmity of

field and money transaction. Incident was seen by Rampal and Sugar

Singh. He sent Dehatinalsi for registration to Police Station Pohri

through Head Constable Laxman. Thereafter, he took statements of

Rampal and Sugar Singh in the hospital. He tried to collect the bullet,

but could not trace the same.

14. During cross-examination, he has stated that from Police

Station, distance of village Atvai is 16 kms. Rampal informed him

about the incident that Rameshwar, Ramdayal and Megh Singh,

residents of Atvai fired on deceased Kalyan. He got the information

at 6.50 P.M. Within fifteen minutes, he departed for the place of

incident. On the spot, Kalyan Singh, Rampal and Sugar Singh were

there. Beside them, nobody was there. When he reached the spot, it

was dark. There is no arrangement of electricity on the spot. He

conducted investigation with the help of search lights and headlight of

jeep. He reached the spot in 50-55 minutes. It was raining at the

Cr.A. No.635/2010

place of occurrence. He did not took statement of witnesses at the

spot. Again he reached the spot at 3 A.M., then 10-15 persons of

nearby area assembled there. He tried to search the bullet, but could

not trace the same. He took 10-15 minutes in writing Dehatinalsi

(Ex.P-1). He prepared spot map at 8 P.M. Because deceased Kalyan

was in serious condition, he took him directly to the hospital. He

reached hospital about 8.30 to 9 P.M. He himself admitted Kalyan

Singh in the hospital. He informed Police Control Room. When he

was recording statement of deceased, doctor was present. He denied

that Kalyan Singh never gave statement under Section 32 of Cr.P.C.

He also denied that he did not take statement under Section 161 of

Cr.P.C. of the injured. He has recorded statements of Rampal and

Sugar Singh in the hospital. On the basis of Dehatinalsi, F.I.R. at

Police Station Pohri was registered at 11.30 P.M. as Ex.P/13. He

denied that after incident Kalyan Singh never gained consciousness.

He denied that Kalyan Singh never stated names of appellants. He

denied that he never went to the spot and conducted investigation by

sitting at the Police Station.

15. He did not collect record of Batai. Witnesses Rampal, Sugar

Singh never stated that deceased Kalyan took land of appellant

Rameshwar at the rate of Rs.6000/- per year on Batai. He is having

no knowledge that Kalyan and Bachhu committed Marpeet with

Cr.A. No.635/2010

Rameshwar due to Batai. He did not investigate the offence regarding

Batai.

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

examination, it emerges out that on the date of incident dated

24.08.2009, on the information of Rampal through mobile, he reached

the spot and saw that deceased was lying in unconscious state.

Rampal and Sugar Singh were present. After preparing spot map and

seizing aforesaid articles, he took statement of the deceased in the

hospital under Section 32 of Cr.P.C. in which he has stated that

appellants Ramdayal having lathi, Rameshwar having gun and Megh

Singh (juvenile Court) having Gadasi due to previous enmity

surrounded him and appellant Rameshwar fired on him. On the spot

Rampal and Sughar Singh were present. In the hospital, at the behest

of Rampal, he recorded Dehatinalsi (Ex.P/1). During treatment,

Kalyan died. Before recording statement under Section 32 of Cr.P.C.,

doctor certified that deceased Kalyan Singh is in a position to give

statement. As Executive Magistrate could not be available, therefore,

he recorded the statement of the deceased. Defence could not point

out any discrepancy from the evidence of A.S.I. Santosh Sharma.

Beside this, his evidence is well supported by Dehatinalishi (Ex.P./1).

17. By supporting the evidence of ASI Santosh Sharma, Dr. O.P.

Sharma (PW-8) has stated that on 24.08.2009 he was posted as

Cr.A. No.635/2010

Medical Officer in District Hospital Shivpuri. On 24.08.2009 at 9:40

pm ASI Santosh Sharma took dying declaration of deceased Kalyan

son of Kanchanlal. Before taking his statement, he examined the

deceased and found that he was in conscious state and in a position

to give statement and affixed his certificate on dying declaration

Ex.P-15. Recording of dying declaration was finished at 10:15 pm.

When ASI Santosh Sharma took statement of Kalyan Singh, he was

admitted in Surgical Ward. He was on night duty. Before recording

of statement of deceased, ASI Santosh Sharma called him.

18. During cross-examination, he has stated that before recording

of statement he had talk with deceased Kalyan Singh, during which

he inquired his name, time, place and circumstances. He cannot say

on which bed he was admitted. Afterwards on seeing sheet chart he

narrated that he was on bed No.1. Blood was transfused to him after

cross matching. He admitted that at the time of recording of Ex.P-15

condition of the deceased was serious. He can not say family

members of the deceased were present or not. In surgical ward, other

patients and staff were present. ASI Santosh Sharma told him that no

Executive Magistrate is available and due to serious condition of

deceased Kalyan Singh, he was referred to Gwalior. He wants to

record his statement. He denied that he has not examined deceased

Kalyan and found him fit to give statement. He also denied that

Cr.A. No.635/2010

before him ASI Santosh Sharma did not record his statement. He

denied that under the pressure of ASI Santosh Sharma he signed the

statement Ex.P-15. He denied that deceased Kalyan was in

semiconscious state and was not in a position to talk. Blood was

transfused at 9:55 pm. Beside this, defence did not put any question.

This Court is of the opinion that this doctor was on night duty. At the

request of ASI Santosh Sharma, he examined deceased Kalyan and

found him fit to give statement. In his presence, dying declaration of

deceased Kalyan was recorded.

19. As per Head Constable Rajendra Singh (PW-7) on 24.08.2009,

he was posted as Head Constable at Police Station Pohri. In the

evening at 6.50 P.M., Rampal (PW-1) by telephone gave an

information that Rameshwar, Ramdayal and Megh Singh fired at his

uncle Kalyan Singh and requested for sending the force immediately.

He entered the information in Rojnamcha No.980 at 6.50 P.M which

is Ex.P/8. On this information, A.S.I. Santosh Sharma, along with

Constable Dharmendra, Veerendra Babu and Ganpath by Police

vehicle No.MP33/7829 departed for the place of occurrence. That

entry is in Rojnamcha No.981. On 24.08.2009 Head Constable

Laxman Prasad submitted a Dehatinalsi 0/09 under Section 307/34

of IPC and Sections 25/27 of Arms Act for registration, on that basis

he registered Crime No.124/09 at Police Station Pohri under Sections

Cr.A. No.635/2010

307/ 34 and Sections 25/27 of the Arms Act which is Ex.P-13. On

24.08.2009 Head Constable Laxman Prasad brought one sealed

packet, blood stained Tahmad and seal, which was seized vide Ex.P-

14. Copy of Rojnamcha (Ex.P-8 and Ex.P-9) is in his handwriting.

After writing Rojnamcha, he showed Rojnamcha to A.S.I. Santosh

Sharma.

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

incident it was a rainy season. Place of occurrence is 12 Kms. away

from Police Station Pohri. F.I.R. was registered at 11.30 P.M on the

basis of Dehatinalsi. A.S.I. Santosh Sharma has sent Dehatinalsi for

registration of crime. On 24.08.2009 at 11.35 P.M. Head Constable

Laxman Prasad Sharma brought an sealed packet containing blood

stained clothes of the deceased and seal. He did not see as to

whether A.S.I. Santosh Sharma had returned to Police Station or not

in the night. In Rojnamcha, there was no entry of his return.

20. On the aforesaid discussion, it emerges out that this witness

received the information of the crime, entered the same in

Rojnamcha. Thereafter, A.S.I. Santosh Sharma proceeded along with

force to the place of occurrence. On the basis of Dehatinalsi, he

registered F.I.R. vide Ex.P-13 at Crime No.124/09 for the offence

under Section 307, 34 of IPC and Sections 25/27 of Arms Act.

21. As per Head Constable Vrikhbhan Singh (PW-6), on

Cr.A. No.635/2010

29.08.2009, he was posted as Head Constable at Police Station Pohri.

A.S.I. A.K. Bajpai, Police Station Kampoo, Gwalior, has recorded

the Merg No.500/09 under Section 174 of Cr.P.C. On that basis, he

registered Merg No.25/09 under Section 174 which is Ex.P/7. He has

produced Rojnammacha Sanha of Police Station Pohri, Dak-book,

counter F.I.R., inward and outward register. As per Rojnamcha Sanha

No.980 of 24.08.2099 at 6.50 PM it was recorded that Rampal (PW-

1) gave an information that his uncle Kalyan was assaulted by

Rameshwar, Ramdayal and Megh Singh by gun with a request to

send the force immediately. His uncle is lying down in injured

condition. Rojnamcha is at Ex.P-8. On this information, A.S.I.

Santosh Sharma, Constable Dharmendra Singh, Veerendra Babu,

Ganpat Pathak with arms & ammunition departed for the place of

occurrence. Entry to this respect is made in Rojnamcha which is at

Ex.P-9. Copy of the F.I.R. Crime No.134/09 under Section 307/ 34

of IPC and Sections 25/27 of the Arms Act was sent to the JMFC

Pohri and entry in this regard in inward register is Ex.P/11 and entry

in the Court of JMFC, Pohri, in this regard is Ex.P/12. During cross-

examination, he has admitted that entries in Rojnamcha are not in his

handwriting. Head Constable Rajendra Singh has made entry in

Rojnamcha. At what time copy of the F.I.R. was sent to concerned

Magistrate, he cannot say. On receipt, signature of the clerk is

Cr.A. No.635/2010

annexed, but there is no seal.

22. As per Pappu (PW-13), Rameshwar fired gunshot on stomach

of Kalyan and he was brought to Shivpuri Hospital, where he was

conscious. Police took statement of Kalyan in front of the doctor

which is at ExP-15. During cross-examination, he has stated that

Kalyan is his cousin. He was not present on the spot. On information,

he reached the spot. When he reached the spot, beside Kalyan, there

was nobody. He saw Rameshwar and Megh Singh running. By Police

vehicle, deceased was brought to District Hospital at 9.30 PM. He

denied that Kalyan was not in a position to state anything. From his

evidence, it emerges out that on the information he reached the spot.

Thereafter, along with the deceased he came to Shivpuri Hospital

where in his presence police took statement of the deceased (ExP-15).

23. Dr. V.C.Goyal, who conducted primary examination of

deceased Kalyan Singh, has stated that on 24.08.2009 he was posted

as Medical Officer at District Hospital Shivpuri. On the said date,

Head Constable Laxman Prasad of Police Station Pohari brought

injured Kalyan. He examined the injured. During examination, he

found following injuries on the body:-

(1) Two wounds over right lumber region on the stomach ad-measuring 1.5 x 1 cm deep to abdomen cavity. Omentum was coming out. Margins inverted near in place of mid axillary line. Bleeding

Cr.A. No.635/2010

present.

(2) One lacerated wound ad-measuring 2.5 x 2 cm. Around the wound, swelling was present. Right lumber region was near midclavicular line, from this omentum was coming out."

23.1 He advised x-ray for the wounds. Clothes of Kalyan were

blood stained. After seizing clothes, he handed over the same to the

Constable in which Lungi of Kalyan and towel was there. After

admitting him, he has referred the deceased to Surgical Specialist.

His general condition was not good. Pulse was slow. He was

nervous. His blood pressure was 70 mm. Injuries appear to be caused

by firearm six hours before examination. His report is Ex.P-3.

24. During cross-examination, he has stated that alongwith

deceased other persons also came to the hospital. He examined the

deceased on 24.08.2009 at 9:30 pm. He could not say at what time he

finished his examination. In examination of the deceased by him and

thereafter by Surgical Specialist it took near about one hour. Surgical

specialist was Dr. P.K. Khare. He came there and remained there for

sometime. He cannot say that by which firearm injuries were caused

and from what distance. Deceased was talking, but he was in

semiconscious state. He could not speak correctly. Beside this, no

question was put to this witness.

25. Corroborating the evidence of Dr. V.C. Goyal, Dr. M.L.

Cr.A. No.635/2010

Agarwal (PW-5) has stated that on 24.08.2009 he was In-charge of

Radiology at District Hospital. Dr. V.C. Goyal has referred deceased

Kalyan for x-ray of stomach and chest. He was not in a position to

stand, due to which in supine position he conducted x-ray. During x-

ray, liquid was seen in the stomach and haziness was present. His

report is Ex.P-5. During cross-examination, he has stated that he

does not remember the name of the technician who conducted x-ray

of the deceased. At what time x-ray was conducted, he could not say.

Beside this, no question was put to him.

26. As per Dr. Pramod Kumar Khare (PW-12) on 24.08.2009 he

was posted as Surgical Specialist at District Hospital Shivpuri.

Deceased Kalyan Singh was admitted in Surgical ward. On referral

by duty doctor V.C.Goyal, he examined the deceased. He was in

conscious state, but his condition was serious. On pressing his

stomach, he was feeling pain. Air was found in right lumber region

below the skin and lower region of ribs. One-one wound was present

on right and left lumber region. Omentum was coming out. Blood

was transfused. Afterwards he was referred to JAH Gwalior vide

P/19.

27. During cross-examination, he has stated that he saw the

deceased in hospital. At 9:10 pm treatment was started. At 10 pm he

was referred to JAH Gwalior. During this period, doctor transfused

Cr.A. No.635/2010

blood to him. Bullet passed through his body. Bullet was fired from 3

to 12-15 ft. Entry and exist wounds were present.

28. As per Sub Inspector R.P. Sharma (PW-18) on 26.08.2009, he

was posted at A.S.I. at Police Station Kampoo. On enquiry of Merg

No.500/09 (Ex.P-6), he prepared dead-body Panchnama of Kalyan

vide Ex.P-2 and sent the dead-body for postmortem vide P-30.

During cross examination, he has stated that in dead-body

Panchnama (Ex.P-2), he has given his opinion that Kalyan died due

to bullet injury by his experience. It is true that when dead-body was

covered with cloths, no body can say how that person died.

29. Head Constable Premnath Verma (PW-11) has stated that on

26.07.2009 he was posted as Head Constable at Police Station

Kampoo. He received information from JAH Hospital Gwalior vide

Ex.P-18 in regard to death of deceased Kalyan son of Kanchanlal. On

25.08.2009 at 2 pm deceased died during treatment. He registered

Merg No. 500/2009 under Section 174 CrPC which is at Ex.P-6. His

evidence is not challenged by the defence.

30. As per Lalu (PW-3), police prepared dead-body Panchnama of

deceased Kalyan Singh vide Ex.P-2. He saw the dead-body. Bullet

entered from one side and passed through from another side of the

stomach. On the information of his nephew, he reached by

motorcycle to Shivpuri Hospital, where blood was transfused to the

Cr.A. No.635/2010

deceased. Thereafter, he was referred to Gwalior hospital. During

cross-examination, he has admitted that at the time of incident he

was not present at the spot. Deceased was his real brother. Rampal

and Sugar Singh are his nephews. They are residing separately. He

also admitted that due to Batai of land, there is a dispute between the

accused and the complainant party. Deceased was in conscious state

at District hospital, Shivpuri. He went to Gwalior along with Kalyan.

He denied that he had not seen the injuries on the stomach of his

brother Kalyan. Deceased Kalyan narrated the incident to him. He

denied that he did not gave statement to the police. Deceased Kalyan

took land of appellant/accused Rameshwar @ Rs.3,800/- per year.

He denied that Kalyan has not paid the amount to Rameshwar. He

denied that being brother of the deceased, he is giving false evidence.

From his evidence, it is clear that in front of him, Police had

prepared the dead-body Panchnama of the deceased vide Ex.P-2.

31. As per Lalu (PW-10), before him Police seized blood stained

and plain soil along with blood stained vest vide Ex.P/17. During

cross examination, he has stated that aforesaid seizure was done at 7

P.M. by Police Inspector. He denied that no seizure was made before

him. As per Head Constable Premnath Verma (PW-11), on

25.08.2009 an information (Ex.P/18) came from J.A. Hospital at 2.00

PM that Kalyan died. On that basis, he registered Merg No.500/09

Cr.A. No.635/2010

under Section 174 of Cr.P.C. vide Ex.P-6.

32. As per Dr. Surendra Singh Jadon (PW-17) on 26.08.2009 he

was posted as Medical Officer at JAH Gwalior. On the said date, he

received dead-body of deceased Kalyan from Constable Angad Singh

of Police Station Kampoo District Gwalior. Dead-body was

identified by Constable Angad Singh and Bachchuram Prajapati.

During examination, he found following injuries on the body of the

deceased.

(1) Stitched wound present in meddle of abdomen.

(2) Stitched wound at left iliac region.

(3) Stitched wound at left iliac creast.

(4) Hallow wound at right iliac fossa 4 x4 cm.

Intestine visible.

Internal Examination

Scalp, spinal cord and brain were healthy in nature. Both

lungs were healthy and congested. Blood present in heart

chambers. 100 ml yellow coloured liquid was found in stomach.

Blood was present in lower intestine. Large intestine was

stitched and somewhere ficklematter was present. Liver and

pulp were healthy and congested.

Injuries occurred to large intestine, septicemia and

hemorrhage may cause death due to its complication. Having

Cr.A. No.635/2010

sealed clothes of deceased handed over the same to the

Constable.

In his opinion death was due to cardio respiratory failure

result injury to large intestine and its complication. Duration of

death 6-24 hrs. since postmortem.

33. During cross-examination, because wounds were already

stitched, he cannot say how such injuries were caused, neither he can

say about the size of the wound. There was one lacerated wound

which was created during operation. He cannot say about the actual

cause of death. Looking to the evidence of Dr.Surendra Singh Jadon,

we are of the opinion that deceased died due to injuries in intestine,

due to which septicemia occurred and he died.

34. On going through aforesaid evidence of eye-witness Rampal

Singh Prajapati (PW-1) and Sughar Singh (PW-2), dying declaration

of the deceased coupled with postmortem report, this Court is of the

opinion that death of deceased Kalyan Singh is homicidal.

35. As per Sub Inspector T.K.Jharia (PW-15) on 4.12.2009 he was

posted as Station House Officer, Police Station Sirsod. He got secret

information that appellant-accused Rameshwar Yadav, resident of

Atwai, is going to commit serious offence and his location is near

Marwali river. He along with his staff went there. On seeing police,

he tried to ran away, but with the help of police force he was caught.

Cr.A. No.635/2010

On enquiry, he narrated his name as Rameshwar Yadav son of Siddha

Yaddav. On search, from his right pocket one 315 bore country-made

Adiya riffle was seized along with cartridge and from the left pocket

three cartridges of 315 bore were seized. They were seized vide ExP-

25. Thereafter, appellant Rameshwar was arrested. During cross-

examination, he has stated that he had not sent ammunition to the

expert for examination. He deposited the article in Malkhana of

Police Station. He handed over further investigation to Head

Constable Prabhu Dayal Chaturvedi. From his evidence, it emerges

out that on the information he along with force reached the spot and

arrested appellant- Rameshwar Dayal and from his possession, one

315 bore country made pistol and three live cartridges were seized

vide Ex.P-25.

36. In view of aforesaid discussion, we are of the firm opinion that

on the date of incident when deceased Kalyan Singh alongwith

Rampal Singh Prajapati (PW-1) and Sughar Singh (PW-2) were

returning, appellants Ramdayal Yadav, Rameshwardayal Yadav and

accused Megh Singh with common intention having gun, Lathi and

Gadasi, all of a sudden, came before deceased Kalyan Singh,

surrounded him and appellant Rameshwardayal fired on him, due to

which he died.

37. So far as the ground raised in the present appeal that

Cr.A. No.635/2010

independent witnesses have not been examined in support of the case

of the prosecution, the Apex Court in Karulal v. State of M.P. , 2020

SCC OnLine SC 818 has held that testimony of related witnesses, if

found to be truthful, can be the basis of conviction.

38. As regards the ground raised in the present appeal that there are

contradictions in the statements of prosecution witnesses, in the

opinion of this Court there are only minor contradictions in the

statements of eye-witnesses and their evidence is firm on material

aspect. The Apex Court in the case of Mallikarjun and others vs.

State of Karnataka, (2019) 8 SCC 359 has held as under :

"14. Observing that minor discrepancies and inconsistent version do not necessarily demolish the prosecution case if it is otherwise found to be creditworthy, in Bakhshish Singh v. State of Punjab and another, (2013) 12 SCC 187, it was held as under:-

32. In Sunil Kumar Sambhudaya Gupta v. State of Maharashtra, (2010) 13 SCC 657 this Court observed as follows: (SCC p. 671, para 30)

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan (2008) 17 SCC 587.)"

33. ....... this Court in Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 has observed as under: (SCC p. 740, para43)

Cr.A. No.635/2010

"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)

39. In view of the aforesaid analysis, this Court is of the considered

opinion that trial Court has rightly convicted and sentenced the

appellants as aforesaid and accordingly this appeal is hereby

dismissed. Appellant No.2 is in jail, he is directed to serve remaining

jail sentence as awarded by the trial Court. Appellant No.1 is on bail,

he is directed to surrender before the trial Court on or before

18.04.2022, failing which the trial Court shall be at liberty to issue

arrest warrant against him.

                      (G.S.Ahluwalia)                    (Deepak Kumar Agarwal)
                         Judge                                   Judge

       mani

SUBASRI MANI
2022.03.11
17:06:40
-08'00'