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2010 DIGILAW 10 (CHH)

BAHADUR SINGH v. STATE OF M. P. (NOW C. G. )

2010-01-21

DHIRENDRA MISHRA, MANINDRA MOHAN SHRIVASTAVA

body2010
JUDGMENT As per Hon'ble Shri Manindra Mohan Shrivastava, J. :- 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 27th September, 1993 passed in S.T. No. 150/1990, passed by learned 7th Additional Sessions Judge, Bilaspur, by which the appellants have been found guilty for commission of offence under Section 148 & 302 read with Section 149 of the IPC and have been sentenced to undergo R.I. for 2 years under Section 148 of the IPC and life imprisonment for commission of offence under Section 302 read with Section 149 of the IPC. 2. During pendency of appeal, appellant No.4- Smt. Mankunwar died and statement to this effect was earlier made on 29.8.2005. Learned counsel for the State was directed to verify and at the time of hearing of this appeal, he stated upon verification that she so died. Appellant No.5- Babulal has also undergone the sentence imposed upon him and he was directed to be released by this Court vide order dated 29.8.2005. 3. The case of the prosecution, is that one Aghorilal lodged first information report at Police Station- Malkhoroda on 29.9.1988 that in the morning at 7:00 a.m., when Sakara Bai and her daughter Laxmin Bai had gone to throw the garbage, they saw that appellant-Bahadur and others were beating deceased Guharam with lathi, upon which they rushed back to their house and informed him. Thereafter when he rushed to Dabaripar and was standing there, he found Guharam lying dead and appellants Bahadur, Gangaram, Mehethar were standing with lathi. Thereafter he came back and called Horilal in the field and after his arrival they went to the house of appellant - Bahadur. Seeing them Bahadur went inside his house. He found that Guharam had died and due to deep head injury, blood was oozing. He also saw 3-4 injuries on his neck under chin which was also bleeding. He also stated in FIR that a day before he had asked Bahadur not to indulge in gambling, upon which Bahadur had beaten him, the report of which was lodged by him in Police Station - Malkharoda and then he returned home at 11 :30 in the night. It has also been stated in the FIR that Guharam had also accompanied him for lodging the aforesaid report and because of this appellant-Bahadur and others have murdered his brother-Guharam. It has also been stated in the FIR that Guharam had also accompanied him for lodging the aforesaid report and because of this appellant-Bahadur and others have murdered his brother-Guharam. Intimation of merg was recorded vide Ex.P-21 by B.R. Mandavi (P.W-13), Sub Inspector. Inquest over body of the deceased was prepared vide Ex.P4 in the presence of witnesses and thereafter the body was sent for autopsy vide Ex.P-12. From the place of incident, blood stained soil and plain soil was seized in the presence of witnesses vide Ex.P-1. A club was seized from the place of incident vide Ex.P-2. One Lungi worn by the deceased was also seized vide Ex.P-7. On memorandum of appellant-Babulal a club was seized from him vide Ex.P-6 in the presence of witnesses. On the memorandun1 of appellant - Bahadur Singh, a club was seized from him in the presence of witnesses vide Ex.P-8. One Tangi (axe) was seized from appellant-Mehethar vide Ex.P-9 and a club was seized from Babulal vide Ex.P-5. Vide Ex.P-10 one white sando baniyan containing 3 blood like stains was seized from appellant- Bahadur Singh. Map of the spot of Ex.P-11 was prepared by Patwari-Omkar Prasad Tiwari (P.W.9) of village -Faguram. Postmortem report of Ex. P-12 dated 30.9.1988 prepared by Dr. laisingh Sahu (P.W. 10) disclosed that blood was oozing out from the mouth and the head of the deceased-Guharam, Teeth were found broken, mandible and auxiliary bone were broken. Blood stained the whole face, ear, neck and chest. Following injuries were found on the body of the deceased. 1. Four lacerated wound at scalp 2. One punctured wound at chin below. 3. One abrasion at left cheek. 4. Fractured frontal bone of scalp mandible, maxilla, trachea cartilage right side 2,3,4,5,6 ribs and cervical bone dislocated. 4. Seized club and soil were sent for examination to the Asst. Surgeon, P.H.C. Malkharoda vide Ex.P-13A and vide report Ex.P-13, it concluded that clothe i.e. lungi had blood stain at one side. A club (bamboo lath i) seized and sent for examination to Dr. Jaisingh Sahu (P.W. 10), who opined that the lathi may cause death of deceased. Lathi seized from appellant - Babulal on memorandum was sent for examination vide P-15A and vide report of Ex.P-15 it was found that the lathi sent may cause death of person Gunaram. A club (bamboo lath i) seized and sent for examination to Dr. Jaisingh Sahu (P.W. 10), who opined that the lathi may cause death of deceased. Lathi seized from appellant - Babulal on memorandum was sent for examination vide P-15A and vide report of Ex.P-15 it was found that the lathi sent may cause death of person Gunaram. Vide Ex.P-16A Baniyan seized from Bahadur was sent for examination and in its report, it was opined that the Baniyan contained blood spots. Seized lungi. soil, lathi and Baniyan were sent for examination to Forensic Science Laboratory, Sagar and vide its report of Ex. P-22 Articles Earth, Lungi, lathi Baniyan & lathi which were marked as A. C, D. E and F were found blood stained, whereas plain soil marked as article 'B' was not found blood stained. Report of Serologist (Ex.P-23) stated that item No.41 (earth) 42 (lungi) were found stained with human blood, whereas the blood stains on item No. 43 (lathi), 44 (Baniyan) and 45 (lathi) were found disintegrated and their origin could not be determined. However, the blood group of the stains on item noted could not be determined as item No. 41 and 42 i.e. earth and lungi respectively were not found sufficient for its examination. Item No. 43,44 and 45 were found to be disintegrated. 5. After completing usual investigation, the Investigating Agency prepared chalan and the same was filed in the Court of Additional Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Court of Sessions Jude, Bilaspur. The learned Sessions Judge made over the case to 4th Additional Sessions Judge for trial. The learned trial Court framed charges against each of the appellants for commission of offense under Section 148 & 302 read with Section 149 of the IPC. The appellants abjured their guilt. 6. Prosecution examined in all 13 witnesses. In their examination under Section 313 of Cr.P.C., the appellants pleaded innocence and stated that they have been falsely implicated. Appellants Babulal, Bahadur, Gangaram stated that in the morning there was a talk that Guharam died, whereupon police arrived at the spot and they pleaded that they did not know what happened in the night and they did not know anything and the incident might have happened in the night and therefore nobody has witnessed. 7. Appellants Babulal, Bahadur, Gangaram stated that in the morning there was a talk that Guharam died, whereupon police arrived at the spot and they pleaded that they did not know what happened in the night and they did not know anything and the incident might have happened in the night and therefore nobody has witnessed. 7. The learned trial Court relying upon the testimony of Sakara Bai (P.W.1) and Laxmin Bai (P. W.2) as eyewitnesses of the incident and upon proof of seizure of lathi and tangi (axe) from the accused persons and also taking into consideration the prompt FIR and further relying upon the testimony of Kanrruddin Khan (P. W.11) that there was a quarrel a day before the date of incident between Aghori Lal, brother of deceased and appellant Bahadur, held the appellants guilty of commission of the offence under Section 148, 302 read with Section 149 of the IPC and sentenced them accordingly. 8. Learned counsel for the appellants assailed the impugned judgment by arguing that the same is illegal and unsustainable in law. It has been argued that the learned trial Court has grossly eared in holding the appellants guilty by relying upon the testimony of Sakara Bai (P.W.1) and Laxmin Bai (P.W.2) which does not inspire confidence on account of material contradictions and omissions and that the same has not been supported by other prosecution witnesses. It has also been argued that there was no motive on the part of the appellants to cause death of deceased Guharam. It was further contended that the case of the prosecution is liable to be disbelieved as the prosecution has failed to prove beyond reasonable doubt that the appellants caused death by inflicting injury on deceased Guharam. He submits that ocular testimony is liable to be disbelieved as the same is belied by medical evidence. He further submits that seizure of tangi (axe) has not been proved. Aghorilal and person namely Horilal, husband of Sakara Bai and her father-in-law who had arrived at the spot on call made by Sakara Bai were not examined. He submits that ocular testimony is liable to be disbelieved as the same is belied by medical evidence. He further submits that seizure of tangi (axe) has not been proved. Aghorilal and person namely Horilal, husband of Sakara Bai and her father-in-law who had arrived at the spot on call made by Sakara Bai were not examined. He submits that the entire case of the prosecution and lodging of FIR itself is under serious doubt on account of non-compliance of Sect ion 157 Cr.P.C. as the prosecution has failed to prove that a report as contemplated under Section 157(1) of Cr.P.C. was sent to the Magistrate empowered to take cognizance on such offence upon a police report. According to him the appellants have been falsely implicated in the crime in question. 9. On the other hand, learned counsel for the State/respondent has supported the impugned judgment and argued that the judgment of conviction and sentence is based on trustworthy and creditworthy testimony of eyewitnesses namely Sakara Bai (P.W.1) and Laxmin Bai (P.W.2) which is supported from other circumstances i.e. seizure of offending weapon from the accused persons and from the proved fact and circumstances of enmity between the parties in view of quarrel between appellant - Bahadur and the brother of deceased a day before the incident. He submits that medical evidence fully supports the case of the prosecution and proves homicidal death of deceased Guharam caused by accused with the help of offending weapon like lahti, tangiya (axe) and therefore the impugned judgment of conviction and sentence does not warrant any interference by this Court in appeal. 10. We have heard learned counsel for the parties and have also perused the records of the case. 11. Homicidal death of deceased Guharam is not disputed. Even otherwise it has been proved by Dr. Jaisingh (P.W.10) that deceased Guharani. sustained various injuries on his person and because of excess bleeding and obstruction in windpipe succumbed to death which was homicidal in nature. 12. Sakara Bai (P.W.1) in her deposition before the Court has clearly deposed that at about 7:00 in the morning while she was going along with Laxmin Bai, she heard Guharam crying. He was being assaulted and they saw that appellant Bahadur was holding Farsa (axe), Mehathar was holding tangi (axe) and Babulal was holding a club. 12. Sakara Bai (P.W.1) in her deposition before the Court has clearly deposed that at about 7:00 in the morning while she was going along with Laxmin Bai, she heard Guharam crying. He was being assaulted and they saw that appellant Bahadur was holding Farsa (axe), Mehathar was holding tangi (axe) and Babulal was holding a club. Koshil came out with two clubs from her house, one of which was given to appellant-Gangaram and other to appellant-Mankunwar. She deposed that all the accused persons were assaulting Guharam with the help of weapon they were holding and when she asked the appellants not to assault, she was also abused. She ran away to call her husband Horilal and after that her father-in-law and son came there. Appellant - Bahadur told her that he has murdered Guharam and she may call her husband who would also be murdered. She further deposed that injury was caused on the head of Guharam by Farsi (axe) thereafter her husband and father-in-law also arrived at the spot. After the incident, accused persons went inside their house. She has been subjected to incisive and detailed cross-examination. She has stated that on account of injury caused by Bahadur with the help of Farsi (axe) Guharam received head injury. She further deposed that Mehethar assaulted with the help of tangi on the face of the deceased. She also states that Laxmin Bai was present with her. 13. Laxmin Bai (P. W.2) has fully supported the case of the prosecution and has narrated about the incident. She has deposed that she heard Guharam crying that Bahadur is assaulting him. She saw that appellants -Gangaram and Mankunwar had caught hold of hands of deceased while appellant-Bahadur assaulted the deceased with Farsi (axe). Appellant - Mehethar assaulted with tangi (axe) on his face and appellant - Babulal came out with lathi and inflicted blow on the head of the deceased. When they were so assaulting, appellants Gangaram and Mankunwar left the hands of the deceased and started assaulting deceased with the help of lathi (club) which was brought by accused Koushil. When she approached to save Guharam, appellants Gangaram and Mankunwar told her that she may also come and she would be also beat. Upon which she did not proceed further. In her detailed cross-examination, she has stated that marpit went on for about half an hour. When she approached to save Guharam, appellants Gangaram and Mankunwar told her that she may also come and she would be also beat. Upon which she did not proceed further. In her detailed cross-examination, she has stated that marpit went on for about half an hour. She has clearly deposed that appellant - Gangaram cauht hold of one hand of Guharam and other was held by appellant Mankunwar. Appellant Bahadur came from his house and assaulted with Farsi. Thereafter Mehethar also came out with tangi (axe) and assaulted followed by Babulall who came out with club and assaulted, whereupon Guharam fell down. She has also stated that Aghori, her father had gone to lodge the report in the police station as she narrated the incident to her father and at that time Sakara was also there. 14. From the testimony of Sakara (P.W.1) and Laxmin (P. W.2), it is clearly proved that all the accused persons assembled at the place of incident one by one and surrounded deceased Guharam. They were armed with deadly weapon like farsa, tangi and also club. 15. B.R. Mandavi (P.W. 13), Sub-inspector has stated that a club was seized from Bahadur vide Ex.P-8, whereas a tangi ( axe) was seized from Mehethar vide Ex.P-9. Ramprasad (P. W.6) has proved seizure of club from Bahadur in which an iron hook was fastened. One club was also seized from Babulal vide Ex.P-5. Padum (P.W.4) is a witness of seizure of club from Babulal, he deposed that club was seized from Babulal. Maniram (P. W.5), Kotwar also deposed that a Kalari (bamboo) was seized from appellant -Babulal which contained an iron hook. 16. From the testimony of above prosecution witnesses, it is established that all the accused persons armed with deadly weapon and club had assembled and gathered around the deceased Guharam. From the prosecution eyewitnesses namely Sakara Bai (P.W.1) and Laxmin Bai (P.W.2) it is proved that injury was inflicted with the help of lathi and other weapon on the deceased Guharam. It is relevant to state that the testimony of these two eyewitnesses further proves that appellants- Bahadur and Mehethar remained present at the spot all along during the period when injury was inflicted on deceased Guharam and appellants Gangaram, Babulal and Mankunwar had assaulted him. It is relevant to state that the testimony of these two eyewitnesses further proves that appellants- Bahadur and Mehethar remained present at the spot all along during the period when injury was inflicted on deceased Guharam and appellants Gangaram, Babulal and Mankunwar had assaulted him. Sakara Bai (P.W.1) also deposed that appellant-Bahadur told that he has committed murder of Guharam and she may call her husband who would also be murdered. She also says that when she approached at the place of incident to save Guharan1 the accused persons abused her. Laxmin Bai (P. W.2) stated that when she approached to save Guharam, accused Gangaram and Mankunwar challenged her to come so that she may also be assaulted. Her testimony also proves that Gangaram and Manunwar caught hold hands of deceased Guharam. 17. Dr. laisingh Sahu (P.W.10) who conducted autopsy and has proved the report of Ex.P-12 has deposed that mouth and nose was bleeding and following injuries were found by him 1. Four lacerated wound on the scalp 2. One punctured wound at chin below. 3. One abrasion at left cheek. 4. Fractured, frontal bone of scalp mandible, maxilla, trachea cartilage right side 2,3,4,5,6 ribs and cervical bone dislocated. In para-2 of his testimony, he further deposed that injuries and were caused by hard object whereas injury caused by pointed and sharp edged weapon. Details of fractures were also described by him in para- 3 of his testimony. In his opinion, the cause of death was excessive bleeding and choking caused due to obstruction in windpipe. 18. The presence of the prosecution witnesses- Sakara Bai (P. W. 1) and Laxmin Bai (P. W.2) at the time of occurrence is also proved from the FIR which was also promptly lodged, wherein their names have been mentioned by Aghori Lal who lodged the report on the date of the incident and it has been stated in the FIR that report was lodged on the basis of information given by Sakara Bai (P.W.1) and Laxmin Bai (P.W.2). B.R. Mandavi (P.W. 13) has deposed that he registered crime on the report ofAghori Lal vide Ex.P-20. Merg intimation was also recorded vide EX.P-21. B.R. Mandavi (P.W. 13) has deposed that he registered crime on the report ofAghori Lal vide Ex.P-20. Merg intimation was also recorded vide EX.P-21. It is thus proved that all the accused persons who were armed with deadly weapons assaulted Guharam with the common object to cause his death and in furtherance of that common object natured by all the accused persons, proved horn their presence, they being armed, inflicting in injury, administering warning to Sakara Bai (P.W.I) and Laxmin Bai (P.W.2) and also threatening, inflicted fatal injury causing death of deceased Guharam. 19. Learned counsel for the appellant vehemently argued that the testimony of eyewitness does not inspire confidence makes their presence doubtful as their testimony suffers from material contradiction and omissions. We are not impressed with this argument. whatever omissions or contradictions have come, are not so material so as to create any doubt with regard to their presence at the time of incident. FIR Ex.P-20 itself contains the name of these two eyewitnesses. 20. Other contention of larned counsel for the appellant that no motive has been established also cannot be accepted. Kamruddin (P. W. 11) has deposed that when he was posted in Police Station -Malkhkoroda, on 28.9.1988 Aghori, brother of deceased Guharam had lodged report relating to quarrel between him and appellant- Bahadur and which was recorded by him in Rojnamcha Sanha No. 889 vide Ex.P-17. Thereatler, Aghori was also sent for medical examination and Dr. Roopam Mishra (P. W.12) who examined Aghori Lal found injury on his person caused by hard object B.R. Mandavi (P.W.13) has deposed in para-8 of his cross-examination that the FIR was lodged by Aghori Lal stating that he had asked Bahadur not to indulge in gambling upon which 13ahadur assaulted him and after lodging the report in police station he returned only late in the night about 11 :30 pm. and Guharam had also accompanied with him for lodging the report. In the FIR, it has also been stated that because of this incident, on the next date appellant-Bahadur and others committed murder of his brother Guharam. The incident in the present case happened on 29.9.1988 i.e. very next day of the aforesaid incident of quarrel between Bahadur and Aghori Lal and lodging of report by said Aghori Lal. In the FIR, it has also been stated that because of this incident, on the next date appellant-Bahadur and others committed murder of his brother Guharam. The incident in the present case happened on 29.9.1988 i.e. very next day of the aforesaid incident of quarrel between Bahadur and Aghori Lal and lodging of report by said Aghori Lal. Contention of learned counsel for the appellants that there was no motive is therefore not liable to be accepted and is rejected. 21. Learned counsel for the appellants next argues that the story of the prosecution and testimony of Sakara Bai (P.W.1) and Laxmin Bai (P.W.2) is not trustworthy and the prosecution has foiled to prove its case beyond reasonable doubt inasmuch the ocular testimony is not supported by medical evidence. From the testimony of Sakara Bai (P.W.1) and Laxmin Bai (P.W.2), it is clearly established' that all the accused persons had arrived at the spot, surrounded deceased Guharam and started inflicting injury. The medical evidence clearly establishes lethal blow on deceased Guharam and also injury caused by pointed and sharp edged weapon. In the above discussions, it has been fow1d by us after detailed examination of the testimony of prosecution witnesses that all the accused persons had gathered with the common object armed with deadly weapon and looking to their behaviour and providing hill support to each other by inflicting injury and desisting others from saving deceased Guharam and also challenging other that if they arrived at the spot they would be murdered, clearly establishes commission of offence under Sections 148 and Section 302 read with Section 149 of the IPC. Having so found, merely because each and every injury has not been proved to be caused by weapon lalhi,farsa, tangi (axe) but de1initely caused by lahti (club) and pointed sharp weapon, it cannot be said that ocular testimony is not supported by medical evidence, reliance placed in the matter of Rambilas and others Vs. Stale of Madhya Pradesh-1 and the judgment of High Court of M.P. in the matter of Kunja Vs. State of M.P-2 is misplaced as they are distinguishable on facts and circumstances of the case on the basis of discussion which goes to prove that both Sakara Bai (P.W.1) and Laxmin Bai (P.W.2) were present at the scene of occurrence and witnessed the whole incident. 1. 1997 Cri.L.J. 4649 2 MPWN 2004(11) Note 7 22. State of M.P-2 is misplaced as they are distinguishable on facts and circumstances of the case on the basis of discussion which goes to prove that both Sakara Bai (P.W.1) and Laxmin Bai (P.W.2) were present at the scene of occurrence and witnessed the whole incident. 1. 1997 Cri.L.J. 4649 2 MPWN 2004(11) Note 7 22. It is lastly contended by learned counsel for the appellants that the prosecution has failed to prove that copy of FIR was sent to the Magistrate and therefore compliance of Section 157 Cr.P.C. is not proved and very lodging of the FIR becomes highly doubtful and the same is anti- timed and anti-dated. At first blush, the argument appears to be attractive but if the same is considered in the background of proved facts and circumstances of the case, it deserves rejection. True it is that the prosecution has failed to place on record copy ofrep0l1 sent to the Magistrate in compliance of Section 157 of Cr.P.C., otherwise, credible and trustworthy testimony of Sakara Bai (P.W1) and Laxmin Bai (P.W.2) is not liable to be disbelieved. FIR has been proved by B.R. Maravi (P. W. 13). Aghori could not be examined as he died, as reflected from the order sheets of learned trial Court. After lodging the report, on 29.9.1988 i.e. on the date of incident, the Police seized blood stained soil and one club from the place of incident vide Ex.P1. Prepared inquest vide Ex.P-4 and thereafter blood stained tungi of deceased Guharam and then seized club from accused-Bahadur on the very next date and seized club from Bahadur vide ex.P-8 and tangi from accused Mehethar on the very next day vide Ex.P-9. One blood stained Baniyan was also seized vide Ex.P-10 on 30.9.1988 from appellant Bahadur. The body of the deceased was sent for autopsy on the date of incident itself vide Ex.P-12. Merg intimation was also recorded on that very date vide ex.P21 which contains registration number 144/ 88 in which also the names of accused persons were mentioned. Seizure of offending weapon from the accused persons is also proved. Therefore we are not inclined to throwaway the case of the prosecution only on the ground of noncompliance of Section 157 of Cr.P.C more so when the testimony of Sakara Bai (P. W.1) and Laxmin Bai (P.W. 2) has been found to be trustworthy and inspires confidence. Seizure of offending weapon from the accused persons is also proved. Therefore we are not inclined to throwaway the case of the prosecution only on the ground of noncompliance of Section 157 of Cr.P.C more so when the testimony of Sakara Bai (P. W.1) and Laxmin Bai (P.W. 2) has been found to be trustworthy and inspires confidence. The testimony of above two prosecution witnesses is fully consistent with the first information report. Failure of compliance of Section 157 of the Cr.P.C. is not by itself sufficient to warrant conclusion that the investigation was tainted or unfair but may assume importance with other infirmities or discrepancies. Reliance placed by the appellants on the judgment in the matter of L/NK. Meharaj Singh Vs. State of Uttar Pradesh-3 is also misplaced inasmuch as in that case prosecution failing to prove compliance of Section 157 of Cr.PC. was considered as one of the circumstances while finding several discrepancies in the case of the prosecution including statement of prosecution witnesses. It was in the background of the peculiar facts and circumstances in that case that it was found that FIR had lost its value and authenticity. 3. 1995 Cri.LJ. 457 23. It has also been argued that though Sakara Bai (P. W.1) has stated that when she cried for help and her husband and father in-law also arrived at the spot and witnesses, they have neither been examined nor any explanation has been offered by the prosecution for their non-examination. Reliance is placed on the judgment in the matter of Hem Raj and others Vs. State of Haryana-4. In the matter of Hemraj-4 (supra), the Hon'ble Supreme Court in para -9 has held that- 4. 2005 C.G. CrJ. 216 (SC) "9. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witness raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness-Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others, (2001) 6 SCC 145 : ". . ...If already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. This Court pointed out in Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others, (2001) 6 SCC 145 : ". . ...If already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case, the Court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself-whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein." In the present case, after detailed examination of the testimony of prosecution witnesses Sakara Bai (P.W.1) and Laxmin Bai (P. W.2), they have been found to be trustworthy and credible. Their names were mentioned in the FIR. Their testimony regarding use of weapon, present of accused is supported by other circumstances of the case i.e. injury proved by prosecution and seizure made. It is not a case where Sakara Bai alone has witnessed the incident. Laxmin Bai has also witnessed the incident and has been examined as P.W.2. Moreover B.R. Mandavi (P.W.13), Investigating Officer has not been examined on this point in his cross-examination as such the aforesaid decision does not support the submission of the learned counsel for the appellants. 24. Hon'ble the Apex Court in the matter of State of Madhya Pradesh Vs. Dharkole alias Govind Singh and others-5 held in paragraphs 8, 9, 10, 11, 12 & 13 as under: 5. 2005 Cri.LJ. 108 "8. 24. Hon'ble the Apex Court in the matter of State of Madhya Pradesh Vs. Dharkole alias Govind Singh and others-5 held in paragraphs 8, 9, 10, 11, 12 & 13 as under: 5. 2005 Cri.LJ. 108 "8. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". 9. It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. 10. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case? Referring to of probability amounts to 'proof is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says; (See "The Mathematics of Proof II; Glanville Willian1s: Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342). "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other." 11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law Cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. 12. The concepts of probability, and the degrees of it, Cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninfom1ed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P Vs. Krishna Gopal and Anr. (AIR 1988 SC 2154). 13. On that score also the High Court's conclusion that the medical evidence varied with the ocular evidence suffers from vulnerability." 25. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P Vs. Krishna Gopal and Anr. (AIR 1988 SC 2154). 13. On that score also the High Court's conclusion that the medical evidence varied with the ocular evidence suffers from vulnerability." 25. The learned trial Court has recorded finding of guilt after taking into consideration the evidence on record and in view of the above we do not find any reason to interfere with the finding of guilt and the ultimate judgment of conviction and sentence passed by the learned trial Court. 26. There is no merit in this appeal. The appeal is liable to be dismissed and is accordingly dismissed. 27. As appellant No.4 has died and appellant No.5 has served out/undergone the sentence and has been released from jail, therefore their bail bonds stand discharged. Appellants No.1, 2 & 3 are already on bail, therefore, their bail bonds are cancelled and they be taken into custody forthwith to serve out remaining period of their sentence. Appeal Dismissed.