Kanchhedi and another vs The State of Madhya Pradesh

The appeal is of the year 2004. Since no one is appeared on behalf of the appellants, hence, Shri Ajay Tamrakar, Advocate, who is Panel

Lawyer of Legal Service committee, is appointed as amicus-curie to assist the Court. With the assistance of Shri Ajay Tamrakar, Advocate appeal

is heard finally.

Appellants have filed this appeal against the judgment dated 10/06/2004 passed in Sessions Trial No. 196/2002. The trial court held appellants

guilty for commission of offence punishable under Sections 302, 302/34, 323 and 323/34 of IPC and awarded sentence of life and three months

(two counts).

Prosecution story in brief is that on the date of incident at around 6.30 in the evening, Babulal was standing in front of his kirana shop accused

Kanchhedi and Purshottam abused him and told that why he used to pass from his field. He defended about the said act thereafter Kanchhedi

inflicted a blow of Ballam on the head of Babulal. He also inflicted injuries to Rakesh son of Babulal by Baka. Pursottam inflicted injuries on the

right hand of the deceased. Wife of Babulal and his daughter-in-law Kamla came to save Babulal they had also beaten by the accused persons.

Second incident had taken place near the house of Addhi @ Ajuddhi Patel. Bhoora Sahu had inflicted injuries to Ajuddhi Patel and other persons

Gorabai, Pancho Bai and Prembai. Deceased Babulal himself lodged report at police station which is Ex. P/35. He was sent to Medical College,

Jabalpur for treatment where he was died. Police conducted investigation and filed charge-sheet. Accused persons abjured their guilt during trial

and pleaded innocence, however, the trial court held appellants guilty and awarded sentence. Four accused persons were tried out of four, two

accused persons Kalyan and Bhoora were acquitted by the trial court.

Learned counsel for the appellants has contended that the appellants and their family members received injuries during quarrel. Accused

Kanchhedi received grievous injuries. Those injuries have not been explained by the prosecution. He has further submitted that injured eye

witnesses deposed that appellants caused injuries to Babulal by Ballam and Baka, however, doctor PW/10 who examined Babulal and doctor

PW/ 13 who performed Autopsy of Babulal deposed that there were no injury on the person of the body of deceased caused by sharp edged

weapon and penetrating weapon, hence, conviction of the appellants is liable to be set-aside.

Contrary to this learned Government Advocate for the State has submitted that family members of the deceased and deceased himself received

number of injuries. There are injured eye witnesses. Deceased himself lodged FIR and trial court has appreciated the evidence and awarded

proper sentence to accused persons.

Admitted facts of the case are that accused persons also received injuries in the same incident. PW/1 Kamla Bai who is daughter-in-law of the

deceased and is an injured eye witness deposed that his father-in-law and other family members were at the house, accused persons came at my

house and they were abusing us. Kanchhedi was armed with Ballam and he had inflicted a blow of Ballam on the head of deceased Babulal.

Purshottam had inflicted a blow of Baka on the back side of head of the deceased and Kalyan had inflicted a blow of Parena on the left hand of

the deceased. Accused Bhoora also inflicted injuries to Babulal. We have not mentioned the act of other accused persons because they have been

acquitted by the trial court and no appeal has been filed against acquittal. She further deposed that accused appellant Kanchhedi had inflicted a

blow of Ballam which had hit my left hand. In her cross-examination she denied the fact that quarrel had taken place on the road and accused

persons had also received injuries.

PW/2 Batto Bai who is also an injured eye witness deposed the same facts. She specifically deposed that Kanchhedi had inflicted a blow of

Ballam on the head of the deceased and Purshottam inflicted a blow of Baka on the back side of the head. She denied the fact that the incident had

taken place on the road.

PW/3 Harnam Singh, an eye witness deposed that there was abusing between Babulal and accused persons and Kanchhedi had inflicted a blow

of Ballam which had hit front side of head of the deceased and Purshottam inflicted a blow which had hit back side of the head. Same facts have

been deposed by PW/5 Rakesh Kumar Sahu who is also an injured eye witness and son of the deceased.

PW/8 Dr. Gaurav Jain, deposed that he was posted at Medical College, Jabalpur on 07/07/2002 and examined Babulal, he deposed that I

noticed a lacerated wound on left hand and a lacerated wound on right frontal region on the person of body of the deceased.

PW/10 Dr. Shyam Singh Thakur, who examined Babulal deposed that I noticed following injuries on the person of the body of the deceased.

Contusion on right side of left forearm.

Another contusion on left forearm.

Contusion on left forearm.

Lacerated wound on the left side of head size 1.5""x1"".

He further deposed that on the aforesaid date I examined Addhilal, Rakesh, Kamla Bai, Batto Bai, Pancho Bai and Prem Bai and noticed certain

injuries. In para 24 of the cross-examination he admitted the fact that injuries suffered by Babulal were caused by hard and blunt object. Same

facts were mentioned by him in MLC report Ex. P/19. He admitted the fact that Ballam is a penetrating weapon and Baka is a incised weapon, he

did not notice any injury on the person of the deceased of punctured or incised wound. All the injuries caused to Babulal could not be caused by

Ballam, Baka and Parena. The injuries could be caused by lathi. In para 27, he admitted the fact that on 06/07/2002 he examined Kanchhedi and

noticed five injuries on his person. MLC report is Ex. D/5. Similarly he also examined Kalyan and notice certain injuries vide MLC Ex. D/6. He

admitted that he had examined accused Purshottam and noticed following injuries on his person.

Lacerated wound in right side of forehead size .5 cm. X 2cm. skin deep.

Contusion in right hand.

Injuries were simple in nature. MLC is Ex. D/10

PW/13 Dr. Praveen Kumar Sharma, who performed Autopsy of deceased Babulal, he deposed that I noticed following injuries on the person

of the deceased.

Stitch wound size 3 cm. on frontal region of head.

Abrasion in thumb and finger right hand.

Joint of the right elbow was uprooted.

There were fracture on right hand bone.

Fracture of 6,7,8 and 9 ribs of left side.

Contusion on left frontotemporal region of the head.

As per opinion of doctor, the injuries could be caused by hard and blunt object and cause of death of the deceased was due to head injuries.

FIR is Ex. P/35 it was lodged by the deceased himself. It is mentioned in the FIR that Kanchhedi had inflicted a blow of Ballam on forehead of

the deceased.

PW/9 verified the fact that from the possession of accused Kanchhedi on his memorandum Ex. P/8 Ballam and Baka were recovered vide

seizure memo Ex. P/9. Similarly from the possession of accused Purshottam Lathi and Baka were recovered vide seizure memo Ex. P/11.

PW/12 Rajkumar Sharma investigating officer deposed that on the information of Babulal an offence was registered against the accused

persons vide FIR Ex. P/35 and I signed the same. Thereafter, the deceased and other injured persons were send for medical examination. On the

next date I prepared spot map where maar peet had taken place which is in front of bazar Ex. P/36, I signed the same and second quarrel had

taken place in front of the house of Addhi Patel. I also seized plain earth and red earth vide seizure memo Ex. P/25 and after death of deceased

Babulal on 09/07/2002 offence was modified to Section 302 and 302/34 of IPC. He further deposed that on 06/07/2002 on the memorandum of

Kanchhedi Ex. P/8 Ballam and Baka were seized from his house vide seizure memo Ex. P/9. I signed the same. On the memorandum of

Purshottam Ex. P/11 lathi and Baka were seized vide seizure memo Ex. P/13. He admitted the fact that on 06/07/2002 Kanchhedi also lodged a

report which is Ex. D/9 in his cross examination.

In the present case both the accused persons Purshottam and Kanchhedi received injuries. As per MLC report Ex. D/5 which has been

verified by doctor PW/10. Kanchhedi received following injuries:-

Swelling 11 cm. X 6 cm on the top of ---CLW on middle of gt, ------measuring 6cmx1cm muscle deep.

LW 1cmx1/4 cm skin deep forehead seft side.

L.Wound 1cmx1/2 cm muscle deep.

L. Wound 6cmx1/2cm bone deep.

Swelling 6cmx6cm on the Dorsal of left foot.

Purshottam had received following injuries:

Lacerated wound in right side of forehead size .5 cm. X 2cm. skin deep.

Contusion in right hand.

Injuries were simple in nature. MLC is Ex. D/5.

Apart from this Kalyan Singh, Bhoora and Geeta Bai also received injuries. Their MLC report are Ex. D/6, D/7 and D/8.

From the aforesaid fact it has been proved that there were a quarrel between the accused persons and the family members of the deceased and his

family members. Both the parties received injuries. There was allegation that Kanchhedi had inflicted a blow by Ballam on the head of the

deceased. There was lacerated wound on the head of the deceased which has been verified by doctor, hence accused Kanchhedi is responsible

for his own act because he himself received injuries, hence, in our opinion, the offence committed by accused Kanchhedi would fall under Section

304 Part-I of IPC. There is allegation that accused Purshottam caused injuries by Baka on the head of the deceased, however, as per the evidence

of doctors PW/10 and PW/13. There was no injury cause by Baka on the head of the deceased.

Hon''ble Apex Court in the case of Mahavir Singh Vs. State of Madhya Pradesh (2016) 10 SCC 220 has held as under in regard to

appreciation of evidence where there is contradiction between medical evidence viz-a-viz ocular evidence:-

The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that

though the ocular testimony of a witness has greater 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 far

that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved

The Principle of law is that if medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular

evidence may be disbelieved.

In the present case medical evidence ruled out, injury caused by Baka, hence the allegation and evidence of injured eye witnesses that

appellant Purshottam caused injuries by Baka on the person of the body of deceased has to be discarded and unbelievable. He is entitled to

benefit of doubt.

There is evidence that accused persons caused simple injuries to the injured persons, hence, in our opinion, the trial court has rightly convicted

the appellants for commission of offence punishable under Section 323 and 323/34 of IPC. Consequently, the appeal filed by the appellants is

partly allowed. Conviction and sentence awarded by the trial court for commission of offence punishable under Section 302 and 302/34 is hereby

set-aside. Appellant Kanchhedi is convicted for commission of offence punishable under Section 304 Part-I of IPC. He is awarded sentence of

R.I. ten years. Accused Purshottam is acquitted from the offence punishable under Section 302 and 302/34 of IPC. However, the conviction and

sentence awarded by the trial court for commission of offence punishable under Section 323 and 323/34 of IPC is hereby upheld. The fine amount

imposed by the trial court is hereby set-aside.

Appellant Purshottam is on bail, he has already undergone jail sentence as awarded to him by the trial court for commission of offence

punishable under Section 323 and 323/34 of IPC, hence his bail bonds are discharged. Appellant Kanchhedi is in jail. He has undergone jail

sentence of more than ten years, he be released forthwith if he is not required in any other case.