RAKHAN RAMJILAL v. STATE OF M P — 1983 DIGILAW 63 (MP)

JUDGMENT : ( 1. ) THE appellant Rakhan alias Lakhan alias Lakharam has been convicted under section 302 Indian Penal Code and sentenced to life imprisonment for the murder of one Basudeo on 7-3-1976 at about 9. 30 in she morning at village Kathava, P. S. H. Mehgaon, District Bhind, M. P. , by means of a gun. The deceased had sustained gun shot injuries over (i) left leg upper part just below knee, (ii)the area of xiphisternum, (iii) right scapula lower part medial side and (iv) right shoulder upper part posterior region. All the injuries were ante mortem and the cause of death was shock and excessive internal haemorrhage due to gun-shots. The injury No. (ii) on the xiphisternum area was said to be dangerous to life and sufficient in ,the ordinary course of nature to cause death. ( 2. ) ACCORDING to the prosecution, P. W. 1 Mahavir Prasad and the appellant have adjoining fields separated by a common embankment. On the date of the incident, mahavir Prasad went to his field, accompanied by his deceased brother Basudeo and the labourer Layak Jatav (P. W. 16), with a bullock-cart for the purpose of collecting "masoor" crop from the field. On reaching the spot, he found that the appellant had twice driven his bullock- cart through his (Mahavir Prasads) field, instead of carrying it through the path. He, therefore, asked the appellant to desist from driving the cart through his field, lest the crops were damaged, but the appellant insisted that he would drive his cart through the field of Mahavir Prasad, and would see, who slopped from doing so. The deceased Basudeo, thereupon, threw a challenge to the appellant to show, how he drove the cart through their field, if he was a true son of his father. The appellant then went to his house, returned with his gun and stood on the embankment of the field. Witnessing this, Basudeo asked the appellant as to why he had come armed with a gun. The appellant, thereupon, loaded his gun and abused Basudeo by calling bad name to his mother. Realising the critical situation, Mahavir Prasad ran to the South, while his brother Basudeo ran to the West to save their lives. Witnessing this, Basudeo asked the appellant as to why he had come armed with a gun. The appellant, thereupon, loaded his gun and abused Basudeo by calling bad name to his mother. Realising the critical situation, Mahavir Prasad ran to the South, while his brother Basudeo ran to the West to save their lives. From behind a "neem" tree, Mahavir Prasad saw his brother on the ground after being hit by a gun-shot and the appellant going away from the spot after further firing on Basudeo from close proximity. Basudeo died on the spot. ( 3. ) THE appellant denied his guilt, but relying on the prosecution story, he was convicted and sentenced as aforesaid by the Court below. ( 4. ) ALTHOUGH several persons were examined as eye-witnesses to the incident, the conviction is based on the sole testimony of P. W. 1 Mahavir Prasad. It was, therefore, attacked on the ground that he was a partisan witness, was on inimical terms with the appellant and was contradicted by medical evidence. It was argued that according to mahavir Prasad, the first shot was fired from a distance of about 15 paces, which had hit the deceased near his left knee, while he was in the process of running away. But according to P. W. 12 Dr. M. A. Ahmad, this injury could have been caused, when the victim was lying on the ground or the assailant had fired from a lying position. Similarly, according to P. W. 1 Mahavir Prasad, the second shot was fired from a distance of about 9 to 10 paces, when the deceased was on the ground in a sitting position due to leg injury and the fourth shot was fired on the chest, throwing him flat on the ground. But according to Dr. Ahmad, the injury on the right scapula could have been caused, when the assailant might have fired from a lower level from the victim, while the injury on the chest might have been caused from the left side. Learned counsel for the appellant submitted that these were material contradictions in the testimony of Mahavir Prasad with that of the medical evidence about the manner in which the injuries were alleged to have been caused to the deceased. Besides this, it was argued that (here was also inconsistency about the distances from which the shots were fired. Learned counsel for the appellant submitted that these were material contradictions in the testimony of Mahavir Prasad with that of the medical evidence about the manner in which the injuries were alleged to have been caused to the deceased. Besides this, it was argued that (here was also inconsistency about the distances from which the shots were fired. For these reasons, it was urged that the evidence of Mahavir Prasad was liable to be rejected. In support of his contentions, the learned counsel relied on the cases reported in A. I. R. 1953 S. C. 415 (Mohinder Singh vs. State of Punjab ). A. I. R. 1956 S. C. 526 (Santa Singh vs. Stale of Punjabi. A. I. R. 1975 S. C. 1400 (Jagir Singh vs. State (Delhi Admn.) A. I. R. 1975 S. C. 1727 (Ram Narain vs. State of Punjab and A. I. R. 1976 S. C. 383 (Karuna Karan vs. State of Tamil Nadu ). ( 5. ) BEFORE dealing with the said submissions of the learned counsel for the appellant, it may be mentioned that there is no material conflict between the testimony of P. W. 1 Mahavir Prasad and the medical evidence, in so far as the number and nature of injuries sustained by the deceased are concerned. The inconsistencies pointed out only relate to the ocular evidence of P. W. 1 Mahavir Prasad with that of the opinion evidence of Dr. Ahmad in relation to the manner in which the injuries were caused to the deceased. While considering such inconsistencies, it must be remembered thai "ordinarily, the value of medical evidence is only corroborative. It proves thai the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the maimer alleged by the eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. "a. I. R. 1983 S. C. 484 (Chimanbhai Ukabhai vs. State of (Jujarat ). ( 6. ) WITH reference to the leg injury, P. W. 12 Dr. "a. I. R. 1983 S. C. 484 (Chimanbhai Ukabhai vs. State of (Jujarat ). ( 6. ) WITH reference to the leg injury, P. W. 12 Dr. Ahmad stated, "three gun shot wounds with lacerated inverted margins each of the size of 1/2 x 1/2" over medial surface. These were the wounds of entry and there was no blackening found over margins. " absence of blackening or scorching marks demonstrates firing of the gun from some distance and this substantially is the statement of P. W. 1 Mahavir Prasad, when he says that the gun-shot was fired from a distance of about 15 paces. So far as the position of firing is concerned, the medical evidence does not completely rule out the possibility of the injury being caused in the manner stated by Mahavir Prasad. In other words, it does not say that the leg injury could have been caused only if the victim was lying on the ground or the assailant had fired from a lying position. It could well have been caused, if the gun was fired with its barrel slightly bent downward. So is the case with the other injuries, which were found on the person of the deceased. The Doctor found gun-shot entry wound with blackened and burnt margins on the xiphisternum area. This means that the gun was fired from a close proximity, which is also the evidence of P. W. 1 mahavir Prasad in para 3 of his deposition. The estimated distance of 9 to 10 paces mentioned in para 16 of his deposition cannot be given much weight in the light of his specific statement in para 3 that : *** thus, we find that there is no such serious conflict between the oral evidence of P. W. 1 mahavir Prasad and the medical evidence, as to call for rejection of his evidence as unreliable or unsafe for basing a conviction. ( 7. ) THE various cases relied on by the learned counsel for the appellant in support of his contentions are all distinguishable on facts. In Mohinder Singhs case (supra), the evidence of the doctor was found unsatisfactory and gun produced in the Court was also not found proved to have been used in the commission of the offence. Further, there was no adequate explanation in the oral evidence for certain puzzling features of the injuries on the deceased. In Mohinder Singhs case (supra), the evidence of the doctor was found unsatisfactory and gun produced in the Court was also not found proved to have been used in the commission of the offence. Further, there was no adequate explanation in the oral evidence for certain puzzling features of the injuries on the deceased. For these reasons, it was held that the evidence adduced in the case fell short of proof in regard to a very material part of the prosecution case and that "in a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be 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. " In the case of Santa Singh (supra), a wound with burnt inverted margin was found on the person of the deceased and on this basis, the expert evidence was to the effect that the distance between the muzzle and the victim might have been a few inches and not more than nine inches. But the two site plans prepared with the help of the eye-witnesses showed the distance between the two places as 25 feet by exact measurements and, therefore, the Supreme Court found a material conflict between the oral evidence and the medical evidence and allowed the appeal. As pointed out earlier, there is no such material conflict between the oral and the medical evidence, justifying rejection of the evidence of P. W. 1 Mahavir Prasad. ( 8. ) THE other cases relied on by the learned Counsel for the appellant may also be seen. In Jagir Singhs case (supra), the evidence of the two alleged eye-witnesses was rejected because they had failed to disclose the name of the assailant at the earliest opportunity and because their conduct after leaving the victim in the hospital was strange and inexplicable. An additional ground for rejection of their evidence as unreliable was found in its inconsistency with the unimpeachable expert evidence about the manner in which the incident happened. An additional ground for rejection of their evidence as unreliable was found in its inconsistency with the unimpeachable expert evidence about the manner in which the incident happened. In Ham Narain s case (supra) the medical evidence showed that the deceased would have got two gun-shots, whereas it was never the case of the prosecution that any of the accused fired a second shot at the deceased at any time. After the examination of the doctor, the alleged eye-witnesses in order to corroborate their testimony with the evidence of the doctor introduced embellishment in the story of the assault on the deceased by deposing that the deceased had put his arm on the right side of his chest, which accounted for the two wounds by one gun-shot. Under these circumstances, the Supreme Court found that the evidence of the eye-witnesses was seriously inconsistent with the medical evidence, which rendered their evidence liable to be rejected as untrustworthy. In the case of Karuna Karan (supra), from the medical evidence, it was manifest that there were more than one assailant and yet from the F. I. R. it appeared that there was only one assailant. As the Supreme Court itself observed, this may not, in a given case, be considered as a very serious infirmity since the witness may not have seen the other assailants when he came running on the place of occurrence. But the fact that the witness has stated in the first information report that the deceased was only mentioning the name of accused Karuna Karan as his assailant, this earlier version appears to be contradicted by the medical evidence. " besides this, the witness was found to have "deliberately changed his own stand in Court when he deposed that he saw two other persons running ahead of Karuna Karan being chased by his two brothers and Ramaswamy. " Thus, these cases, being distinguishable on facts, are of no help to the appellant. ( 9. ) THE presence of P. W. 1 Mahavir Prasad at the place and time of the incident is proved by cogent evidence. He had lodged the F. I. R. (Ex. P-1) soon after the incident. " Thus, these cases, being distinguishable on facts, are of no help to the appellant. ( 9. ) THE presence of P. W. 1 Mahavir Prasad at the place and time of the incident is proved by cogent evidence. He had lodged the F. I. R. (Ex. P-1) soon after the incident. The name of the appellant was mentioned and all necessary details about the weapon of offence, the manner in which the quarrel started and the shots fired were given in the F. I. R. There is no inconsistency between his evidence and the medical evidence about the number and nature of injuries sustained by the deceased. The inconsistencies pointed out about the manner in which the injuries were caused, are also not material enough to throw away his evidence. As a whole, the evidence of P. W. 1 Mahavir Prasad inspires confidence and is trustworthy. It cannot, therefore, be brushed aside simply on the ground that he was closely related to the deceased or on the ground that he was on mimical terms with the appellant. Consequently, we are of the view that he has been rightly believed by the Court below for convicting the appellant under section 302 Indian Penal Code. ( 10. ) IN the result, this appeal fails and it is accordingly dismissed. The conviction and sentence of the appellant under section 302 Indian Penal Code are hereby maintained. ( 11. ) THE order-sheet, dated 17-5-1978 shows that the appellant was ordered to be released on bail and was also granted exemption from personal appearance before this court. He was not directed to make appearance before any other Court. We, therefore, direct the appellant to surrender to his bail bonds and make appearance before the chief Judicial Magistrate, Bhind, on 28-3-1985 to undergo the unexpired term of his life imprisonment. Appeal dismissed.