Aap Singh, S/O Gomta & 2 Others vs State Of Madhya Pradesh

This appeal has been filed by the appellants, being aggrieved by the judgment dated 29.09.2007, passed by First Additional Sessions Judge, Raisen in

S.T. No. 119/2007, whereby all the appellants have been found guilty for the offence punishable under Sections 302/34, 324/34 and 325/34 of the

Indian Penal Code and have been sentenced to imprisonment for life and fine of Rs.2,000/-, under Section 302/34 of the I.P.C. with a stipulation for

six months rigorous imprisonment in case of default, rigorous imprisonment for 1 year and fine of Rs.200/- under Section 324/34 of the I.P.C. with a

stipulation for 15 days rigorous imprisonment in case of default, rigorous imprisonment for 2 years and fine of Rs.500/- under Section 325/34 of the

I.P.C. with a stipulation for one month's rigorous imprisonment in case of default.Â

2. Prosecution case in brief, is that, on 05.04.2007, deceased Boota Singh alongwith his sons Kailash (P.W.-1) and Sitaram (P.W.-2) went to graze

his cattles, where on account of previous land dispute, he was attacked and assaulted by Aap Singh, who was carrying a bakka and bow and arrow,

Nan Singh carrying lathi and bakka and Gomta carrying bow and arrow and bakka. It is alleged that Nan Singh hit Kailash (P.W.-1) on his head

with lathi, seeing this, Boota Singh and Sitaram (P.W.-2) tried to run away, but Aap Singh chased them and assaulted Boota Singh with bakka, as a

result of which he fell down. When Sitaram (P.W.-2) tried to save Boota Singh, Nan Singh assaulted Sitaram with bakka and Gomta shot an arrow in

his back. Thereafter, Aap Singh, Nan Singh and Gomta, all simultaneously assaulted Boota Singh, as a result of which he died.Â

Information to this effect was lodged byKailash (P.W.-1) at police Station Noorganj. On the basis of this report, Station Incharge, Ram Kumar

Dhariya (P.W.-12), went to inspect the place of incident and recorded the statement of the witnesses. He also recorded the dehati nalishi (Ex. D-2)

and merg intimation (Ex.P-15).  Naksha Panchayatnama was prepared and blood stained soil, blood stained stone, one blood stained arrow, blood

stained knife and a green shawl were seized vide Ex P-2 and the injured persons were sent for medical examination and the dead body was sent for

postmortem. Gomta was arrested on 06.04.2007, whereas, Aap Singh and Nan Singh were arrested on 14.05.2007. On the basis of their

disclosure statements, one bow, three arrows and one bakka from appellant No.1 Aaap Singh vide Ex. P-7, one bakka and one lathi from appellant

No.2 Nan Singh vide Ex.8 and one bow, two arrows and one bakka from appellant No.3 Gomta vide Ex. P-18.

On completion of the investigation, the charge sheet was submitted against Gomta, Aap Singh and Nan Singh. The accused persons abjured the

guilt and pleaded innocence.

The trial Court after careful scrutiny of the evidence and documents on record, recorded a finding of guilt against the appellants and convicted and

sentenced them as aforesaid. The trial Court has mainly relied on the evidence of the injured eye witnesses Kailash (P.W.-1) and Sitaram (P.W.-

2).

The contention of the learned counsel forthe appellants is that there are discrepancies, omissions and contradictions in the statements of the injured

eye witnesses and the ocular evidence is belied by the medical evidence. It is urged that the overtact attributed to Gomta is that he shot deceased in

the ear and Sitaram (P.W.-2) in the back with arrow, however, there is no evidence to connect appellant No.3 Gomta with the crime as the doctor has

not found any punctured or penetrating wound to the deceased or to the injured witnesses. Â

The learned Govt. Advocate, on the other hand has supported the judgment and the findings of the trial Court.

Having heard the learned counsel for the parties and on perusal of the record, it is observed that it is undisputed that the appellants as well as the

deceased and Kailash (P.W.-1) and Sitaram (P.W.-2) are all related. Deceased is the brother-n-law of appellant No.3 Gomta and P.W.-1 Kailash

and P.W.-2 Sitaram are the nephews of appellant No.3.

P.W.-1 Kailash in his deposition has stated that on the fateful day, at around 1.00 P.M., he alongwith his father and brother had gone to graze the

cattles, where his phufa Gomta and his sons came and attacked his father Boota Singh. According to this witness, Gomta shot an arrow towards

the deceased, which went through and through his ears. At the same time, Nan Singh had struck a blow with bakka on the head of his father and Aap

Singh with lathi. Thereafter Aap Singh struck a blow with bakka in the chest of Sitaram (P.W.-2) and Gomta shot an arrow in the back of

Sitaram. He has further stated that Nan Singh had hit him on head with lathi and thereafter run away.

Similar is the statement of Sitaram (P.W.2), who has stated that while his father was grazing the cattles, Gomta came with bow and arrow and

bakka, seeing which, Boota Singh tried to run away, but Gomta shot an arrow towards his father. As a result of which, Boota Singh, the deceased

fell down. Thereafter Aap Singh hit his father in the neck with bakka and Nan Singh hit Boota Singh with lathi on his head and his father died

instantly. He has further stated that the accused persons thereafter ran after him and Nan Singh hit him with bakka on his shoulder and Gomta shot

an arrow which hit at him in the centre of his back. He has further stated that Nan Singh hit P.W.-1 Kailash with lathi and thereafter these accused

persons ran away.

P.W.-7 Bhagwan Singh has stated that he and Omprakash (P.W.-8) had gone to their fields, where they saw, Gomta shot an arrow, which hit the

deceased in his ear and he fell down. Thereafter, appellants No.1 and 2 repeatedly assaulted Boota Singh on his head with bakka and lathi, as a

result of which Boota Singh succumbed to the injuries and died. He has further stated that Nan Singh hit Kailash (P.W.-1) on head with farsa and

Aap Singh hit at Sitaram's back with bakka. Statement of P.W.-7 is also corroborated by the statement of P.W.-8, who had made a statement to

the same effect.

Dr. K.P. Yadav (P.W.-11), who examined Kailash (P.W.-1) has found the following injuries:-

Lacerated wound 3†x 1/2†x 1/4†in size over left parieto temporal region of scalp Opinion: Injury is simple if no complications caused with 24

hours by hard and blunt object.

Dr. K.P. Yadav (P.W.-11), who examined Sitaram (P.W.-2) has found the following injuries:-

Incised wound 2†x 1†x 1†in size over right supraclavicular region. Injury is fresh. 2. Lacerated wound 1 cm x 1 cm x 1 cm over back left

side just below to scapula

Incised wound 1â€​x 1/4â€​ x 1/4â€​ in size over medial surface of left ring finger middle phalanx.

All injuries are fresh occurred within 24 hours. Injuries No.1 and 3 caused by hard and blunt object. Injury No.2 is caused by hard and blunt

object.

Dr. K.P. Yadav (P.W.-11), who conducted the postmortem, found the following injuries on the body of the deceased:-

(1) Incised wound 2â€​x1/2â€​x bony deep overoccipital region of scalp in midline placed oblique with fracture occipital bone.

(2) Incised wound 1â€​ x 1/4â€​x bony deep just below to injury No.1.

(3) Incised wound over right mastoid region 1â€​ x 1/2â€​ x 1/4â€​

(4) Lacerated wound right ear 1 1/2â€​ x 1/4â€​ x1/4â€​

(5) Contusion 6†x 3†right parietal region with multiple fracture of fronto parietal region. (6) Contusion 4†x 3†left fronto parietal region with

multiple fracture of left fronto parietal bone.

(7) Contusion 4â€​ x 4â€​ over frontal region of scalp with fracture of frontal bone.

(8) Contusion left parieto temporal bone just above to left ear with fracture of scalp bone.

(9) Extensive multiple lacerations of frontal, parietal and occipital lobe of brain with blood clots present in it and surface of brain.Â

(10) Contusion 3â€​x3â€​ left palm with fracture of 4th and 5th metacarpals.

In the opinion of the doctor, the cause of death was coma and neurogenic shock resulting from multiple large extensive injuries of scalp and brain.

In his cross-examination, Dr. K.P. Yadav (P.W.-11) has clarified that the injuries No.1 to 10 could not have been caused by an arrow. He has

clearly stated that there was no punctured wound found on the person of the deceased. The doctor has opined that the cause of death was coma

and neurogenic shock due to the number of injuries caused on the head.

From the evidence on record, it is established that the incised and lacerated injuries caused to P.W.-1 Kailash and P.W.-2 Sitaram are

corroborated from the medical evidence and also consistent with their statements.  However, no injury by an arrow was found on the back of

Sitaram P.W.-2), as alleged by him or on the person of deceased, as clearly established by Dr. K.P. Yadav (P.W.-11).

In Mahavir Singh Vs. State of Madhya Pradesh (2016) 10 SCC 220, the Supreme Court has held that the position of law in cases where there is a

contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has

grater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in

the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular

evidence being true, the ocular evidence may be disbelieved. Â

In the instant case, the ocular evidence of P.W.-1 Kailash, P.W.-2 Sitaram and P.W.-7 Bhagwan Singh regarding the use of arrow by appellant

No.3 Gomta, which hit the deceased in ear and went out through and through is completely belied by the medical evidence, as is established from the

postmortem report (Ex. P-15) and the evidence of DR. K.P. Yadav (P.W. -11).

Admittedly, there was previous enmity and land dispute between the parties owing to the fact that appellant No.3, who was the brother-in-law of

the deceased and was given one acre of land by father of the deceased has broken down the boundary (medh) and had tried to encroach on the land

of the deceased. It is also admitted by father of the deceased that previously also there was an altercation between the parties and a report to that

effect was lodged by Ram Singh (P.W.-3). It is pertinent to mention that all the witnesses in the present case are related to each other. In such

factual situation, false implication of appellant No.3 Gomta cannot be ruled out. The deposition of the doctor is very clear that the injuries caused to the

deceased and the injured eye witnesses P.W.-1 Kailash and P.W.-2 Sitaram could not have been caused by arrow, whereas all the witnesses have

asserted that the arrow hit the deceased in the ear and came out from the other ear. It is nobody's case that the arrow had missed the

deceased.  Â

Similarly P.W.-2 Sitaram has stated that he was shot in the back by arrow, though no such injury by arrow was found on his back by the doctor.Â

It is true that testimony of injured witness generally considered to be very reliable as his presence at the place of occurrence could not be doubted.Â

However, in view of the clear medical evidence, which completely rules out possibility of any injury by arrow to the deceased or to Sitaram (P.W.-2),

the ocular evidence on record in this regard cannot be relied upon. There is no other allegation against appellant No.3 Gomta, apart from use

of arrow. As the medical evidence clearly makes the ocular evidence improbable, the statement of eye witnesses P.W.-1 Kailash and P.W.-2

Sitaram, in this regard cannot be believed. Under such facts and circumstances, it is clear that the prosecution has failed to establish the presence and

the involvement of appellant No.3 Gomta in the commission of crime. As a result, the conviction of appellant No.3 Gomta is not maintainable in law.

Resultantly, this appeal is partly allowed and appellant No.3 Gomta is acquitted of the Charges under Sections 302/34, 324/34 and 325/34 of the

I.P.C., whereas the conviction of appellants No.1 and 2 namely, Aap Singh and Nan Singh under Sections 302/34, 324/34 and 325/34 of the I.P.C. are

affirmed and upheld. Appellant No.3 Gomta who is on bail shall be discharged of his bail bonds. Appellants No.1 and 2 namely, Aap Singh and Nan

Singh are in jail. They shall remain incarcerated to undergo the remaining part of their jail sentence.