Ramesh vs State Of Madhya Pradesh

Vivek Agarwal, J

This criminal appeal has been filed by the convict Ramesh son of Late Mulu alias Mulla alias Malla under the provisions of Section 374 (2) of Cr.P.C.

being aggrieved by the judgment dated 3.5.2008 passed by the Court of Sessions Judge, Sheopur, in Sessions Trial No.68/2007 convicting the appellant

under the provisions of Section 302 of IPC and sentencing him to life imprisonment.

Prosecution case in short is that on 8.5.2007 between 9 to 10 pm appellant approached the house of Besati Bai (PW-2) and shot from point blank

range on her husband Mangilal, who was sleeping on a cot. Besti Bai (PW-2) was sleeping by the side of her husband on a different cot and was

feeding her infant baby. When she shouted for help, then her father Kishan (PW-3) and her brother-in-law Bhagu arrived at the scene of crime and

on the basis of such narration Kishan (PW-3) lodged the FIR (Ex.P/2 and Ex.P2-A). Thereafter, Naksha Panchayatnama was prepared vide Ex.P/7,

dead-body was sent for postmortem vide Ex.P/8 and vide Ex.P/1 postmortem was carried out by Dr. M.S.Sagar (PW-1). In the postmortem report,

following injuries have been found:-

(i) Gun shot entrance wound- lacerated size 3 ½ x 3 cm on lateral side of arm, direction from lateral to medial side. It is on left arm.

(ii) Gun shot exit wound-lacerated 4 x 3 ½ cm on medial aspect of arm of left upper limb.

(iii) Gun shot second entrance wound -lacerated 3 ½ x 3 cm over right axillary line at the 5th and 6th ribs.

it has also come in the postmortem report that there was fracture of 6th, 7th and 8th ribs on left side. Cause of death has been shown as excessive

haemorrhage on account of gun shot injury as a result of injury to vital organs. Death was termed to be homicidal.

After investigation was over, charge-sheet was submitted in the Court of JMFC, Sheopur, who committed the case to the Court of Sessions.

Charges were framed against the appellant who abjured his guilt and demanded complete and fair trial.

Prosecution examined seven witnesses; Dr. M.S.Sagar (PW-1) who conducted postmortem, Besati Bai (PW-2) widow of the deceased and eye-

witness to the incident, Kishan (PW-3), Magan (PW-4), Harsingh (PW-5), Kuber Singh (PW-6) and L.P. Chanderiya (PW-7) SHO police Station,

Karahal. However, appellant did not examine any witness in his defence.

It is the contention of learned counsel for the appellant that appellant has been falsely implicated. In fact, Besti Bai (PW-2) was having illicit

relationship with one Tensingh and two days prior to the incident in a marriage function, she was dancing with Tensingh when appellant had

commented that Besti Bai is in fact wife of Tensingh on which deceased Mangilal had slapped the appellant. It is submitted that it has come in the

cross-examination of Besti Bai (PW-2) that after death of Mangilal she has entered into marriage alliance with said Tensingh. It is submitted that it

was in fact Tensingh and Besati Bai who committed murder of Mangilal and appellant has been falsely implicated.

Learned counsel for the appellant submitted that ocular evidence and medical evidence is not corroborating. Besti Bai (PW-2), who is the sole eye-

witness, has mentioned in her deposition that Mangilal was shot after barrel of the country-made gun was put on his chest, whereas Dr. M.S.Sagar

(PW-1) has mentioned that gunshot was fired at least from a distance of 4 ft. because there was no blackening or charring. Based on such

discrepancy, it is submitted that appellant deserves to be acquitted. It is also submitted that though requisition was sent to FSL vide Ex.P/13, but no

FSL report has been received, and therefore, it cannot be said that firearm which was seized from the appellant vide Ex.P/12 was the same as was

used in commission of crime.

Learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in the case of Mohinder Singh vs. The State as

reported in AIR 1953 SC 415 wherein it has been held that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always

the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with

which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it

must prove the whole of the case. Reliance has also been placed on the judgment of the Supreme Court in the case of Awadhesh and another v. State

of Madhya Pradesh as reported in AIR 1988 SC 1158 wherein there was inconsistency between medial and ocular evidence and opinion of the doctor

was that person who caused injuries to deceased was at higher level than deceased which was not consistent with the testimony of eye-witness and

the opinion of the medical expert was corroborated with other circumstances indicating that eye-witness had not seen the actual occurrence and in

such circumstances the Apex Court held that conviction is improper. Learned counsel has also placed reliance on the judgment of the Apex Court in

the case of Santa Singh v. State of Punjab as reported in AIR 1956 SC 526.

On the other hand, learned Public Prosecutor for the State has supported the impugned judgment. He has placed reliance on the judgment of the

Supreme Court in the case of State of Rajasthan v. Om Prakash as reported in AIR 2007 SC 2257 to point out that minor contradictions are to be

ignored.

Learned Public Prosecutor also submits that firearm has been recovered from the appellant and though FLS report was sought but was not

produced but eye-witness Besti Bai (PW-2) in para 14 of her testimony has given details of country-made pistol made of cycle pipe which

corroborates with the arm recovered from the appellant. In view of such facts, he prays for dismissal of the appeal.

After hearing learned counsel for the parties and perusing the record, the issues which emerge for consideration are that whether the death of

Mangilal was homicidal and whether the evidence which has been brought on record is sufficient to convict the present appellant and whether alibi

which has been put forth by the appellant before this Court about extramarital relationship has some force or not.

As far as nature of death is concerned, Dr. M.S.Sagar (PW-1) in para 5 of his deposition has categorically mentioned that death was homicidal.

This fact has not been contested, and therefore, this Court has no hesitation to affirm the view that death was homicidal.

As far as the issue as to whether the evidence led by the sole eye-witness Besti Bai (PW-2) is reliable or needs to be discarded on the basis of

certain contradiction in regard to distance from which deceased was fired at is concerned, this Court is of the opinion that eye-witness Besti Bai (PW-

2) has given correct description of the arm which matches with the arm which was recovered from the accused. Besti Bai has also deposed that

appellant fired two shots one at chest and one at hand which is corroborated from the postmortem report as well as Naksha Panchayatnama (Ex.P/7).

Kishan (PW-3) who is father-in-law of the deceased has supported the statement of his daughter Besti Bai (PW-2) by saying that on hearing the

shriek of his daughter and sound of gunshot he reached at the scene of crime and found that Mangilal has died and her daughter told that appellant

Ramesh has killed her husband. Thus, the sole testimony of Besti Bai is corroborated with other circumstances and evidence, and therefore, testimony

of sole eye-witness can be safely relied on as held by the Apex Court in the case of Yakub Ismail Bhai Patel Vs. State of Gujarat as reported in

(2004) 12 SCC 229 and mere contradiction in distance is not sufficient to hold that the evidence led by the eye-witness is totally inconsistent.

In the case of Thaman Kumar Vs. State of Union Territory of Chandigarh as reported in (2003) 6 SCC 380 Supreme Court has laid down the

parameters of appreciation of evidence in case of conflict between ocular testimony and medical evidence. It has explained the reliability of ocular

testimony in each situation. It has been held that where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the

medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. It has further held

that the conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total

absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of

the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the

weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are

not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn

in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category, it may legitimately be inferred that

the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such

inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity

available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into

consideration in judging the reliability of ocular testimony. Present case falls under second and third category.

In fact, contention of learned counsel for the appellant that Besti Bai had illicit relationship with one Tensingh as a result of which they had

conspired to kill Mangilal, is neither proved nor established by the defence. There is no evidence to show that when such conspiracy was hatched by

Besti Bai (PW-2) and her so called paramour Tensingh. Merely Besti Bai married to Tensingh after four months of death of her husband is not a

sufficient circumstance looking to the socio- economic tradition and customs of tribal society to which the witness belongs. There is no plea of alibi on

the part of the appellant as to where he was when such incident had taken place.

In absence of any of the circumstances being established or supported by defence, it cannot be said that minor contradiction in regard to distance

is sufficient to secure acquittal for the appellant. In fact, appellant has failed to bring on record any of the circumstances except creating doubt on the

prosecution story and that too unsuccessfully on the basis of theory of extramarital relationship.

Thus the prosecution has been able to prove its case beyond doubt. There was a motive as the appellant was insulted just two days prior to the

incident and as per the eye-witnesses he had threatened Mangilal with dire consequences.

Consequently, the appeal fails and is hereby dismissed affirming the impugned judgment of conviction and sentence. The appellant, who is in jail,

shall suffer the sentence as imposed by the trial Court.