JUDGMENT (1) This appeal has been preferred against the judgment-dated 14/12/ 2007 passed by the Second Additional Sessions Judge, Damoh in S.T. No. 10/2007, whereby each one of the appellants, though charged with the offence punishable under Section 302 and in the alternative S. 302 read with S. 34 of the IPC, was convicted under Section 304, Part I read with S.34 of the IPC and sentenced to undergo R.I. for 11 years and to pay fine of Rs.5000/-and in default, to suffer R.I. for 6 months. (2) Prosecution story, in short, may be narrated thus – (i) At the relevant point of time, Sharda Prasad (since deceased) was residing in village Sunpura. In that village, his agricultural land as well as land belonging to Madan (for short "A1") were contiguously situated. (ii) On 3/11/2006, A1 tried to drive his tractor through the field of Sharda who, in turn, objected to this by saying that passing of the vehicle would cause damage to the pipes laid by him. This led to an altercation and in the course of which, A1 threatened that he would see the person who dared to object. (iii) Against this backdrop on 4/11/2006 at about 5 p.m., at the time when Sharda was sitting in the hotel run by Munna Yadav (PW9) and situated near Khermai temple at Bandakpur, A1 armed with a rod, appellant Nos.2, 3 and 4 namely Vimal, Rajjan alias Rajendra and Pradeep (hereinafter referred to as A2, A3 and A4 respectively) carrying a lathi, pharsa and rod, arrived there. They jointly assaulted Sharda with respective weapons. Alarm raised by Sharda attracted attention of Nannu Soni, Ajay Jain, Gudda Pujari, Munna Swami, Chandra Kumar Swami and Rajneesh, son of Sharda who intervened and saved Sharda from further assault. (iv) In a severely injured condition, Sharda was taken to Out Post Bandakpur where, at his instance only, the FIR (Ex.P-26) was recorded by ASIR. Chourasia (PW12). He registered a case under Sections 323 and 307 read with S.34 of the IPC and immediately sent Sharda to District Hospital, Damoh for medical examination and treatment. Noticing as many as 9 injuries all over the body, Dr. S.K. Jain (PW8) referred the injuries found on fingers of both the hands and right' foot for radiological examination. On 4/11/ 2006 only at about 10.40 p.m., Sharda succumbed to the injuries. Dr. Sanjay Gupta (PW4) informed the. Noticing as many as 9 injuries all over the body, Dr. S.K. Jain (PW8) referred the injuries found on fingers of both the hands and right' foot for radiological examination. On 4/11/ 2006 only at about 10.40 p.m., Sharda succumbed to the injuries. Dr. Sanjay Gupta (PW4) informed the. police accordingly by way of memo (Ex.P-14). Accordingly, the case was converted into one under Section 302 of the IPC. (v) After inquest proceedings, dead body of Sharda was sent for post-mortem. It was conducted by Dr. S.K. Jain (PW8) only. In his opinion, cause of Sharda's death was hypovolemic shock as a result of haemorrhage due to injuries caused to left lungs by the fractured ends of right ribs. He also preserved shirt, vest and underwear worn by Sharda for forensic examination. (vi) During investigation, the ordinary as well as blood stained soil and bloodstained gunny bag were seized from the spot. The appellants were apprehended and at their instance, respective weapons were recovered. These weapons were sent along with clothes of the deceased and the ordinary and blood stained earth seized from the spot to the FSL Sagar. The report (Ex.P-33) indicated that soil, gunny bag and Sharda's clothes were found to contain human blood. The appellants pleaded false implication due to prevailing animosity at the instance of Nannu and Chandresh and also raised plea of alibi. According to them, at the relevant point of time, their presence at village Bandakpur, where a famous temple of Lord Shiva is located, was not probable in view of the fact that it was the auspicious day of Vaikuntha Chaturdashi (that falls on the fourteenth day of Kartik month's Shukla Paksha), whereon traditionally, the devotees get glimpse of Lord Shiva after the evening Aarti. In the examination, under Section 313 of the Code of Criminal Procedure, - (i) A1 further asserted that Sharda himself was a man of quarrelsome nature and had criminal antecedents. (ii) A2 further stated that at the relevant point of time, he was posted as teacher at village Gunji. (iii) A3 also submitted that at the relevant point of time, he was posted as teacher at village Keolary. (3) The prosecution sought to prove the charges by examining as many as 17 witnesses including Rajneesh, son of Sharda and Nannu, eye-witness to the incident as well as the medical experts. (iii) A3 also submitted that at the relevant point of time, he was posted as teacher at village Keolary. (3) The prosecution sought to prove the charges by examining as many as 17 witnesses including Rajneesh, son of Sharda and Nannu, eye-witness to the incident as well as the medical experts. One Kailash Dubey (DW1) was produced by the defence as owner-cum-driver of the jeep wherein Sharda was taken from the spot to the hospital. (4) Upon a critical analysis of the entire evidence on record, learned trial Judge, for the reasons recorded in the judgment, proceeded to reject the plea of alibi and to conclude that – (i) The appellants were involved in the joint assault leading to death of Sharda. (ii) The injuries found on the body of Sharda were not sufficient in the ordinary course of nature to cause death. Accordingly, he convicted the appellants for the offence of culpable homicide not amounting to murder and sentenced them as indicated hereinabove. Legality and propriety of the conviction have been challenged on the following grounds - (i) In view of the admission made by Autopsy Surgeon; Dr. S.K. Jain that the injury to the left lung could be caused due to negligent handling of the person of Sharda who had sustained; fractures in ribs, it was not a case of homicide. (ii) The FIR (Ex.P-26) said to have been lodged by Sharda was shrouded with doubt as the thumb impression thereon did not contain any bloodstain and further, the fact as stated by Kailash Dubey (DW1) that from the spot, Sharda was taken in a jeep driven by him directly to the hospital, was more probable. (iii) Amongst the eye-witnesses, Munna (PW9), Nirbhay (PW15) and Guttu alias Praveen (PW 16) did not substantiate the prosecution version as against A2 and A3. Further, identity of Nannu (PW2) as one of the eye-witnesses named in the FIR was not established. (iv) There was an apparent conflict between the ocular testimony and medical evidence as no pharsa injury allegedly caused by A3 was found on the head of Sharda In response, learned Govt. Advocate has submitted that the incriminating pieces of evidence on record were sufficient to bring home complicity of the appellants in the joint assault leading to Sharda's death. (iv) There was an apparent conflict between the ocular testimony and medical evidence as no pharsa injury allegedly caused by A3 was found on the head of Sharda In response, learned Govt. Advocate has submitted that the incriminating pieces of evidence on record were sufficient to bring home complicity of the appellants in the joint assault leading to Sharda's death. (5) In order to appreciate the merits of the rival contentions in a proper perspective, it is necessary to first advert to the medica) and forensic evidence available on record. (6) Dr. S. K. Jain (PW8) testified that in the medical examination conducted on 04.11.2006, he had noticed the following external injuries on the body of Sharda :- (i) Lacerated wound (Vi" x 1/8") on the left frontal region of the scalp. (ii) Lacerated wound (pea) on the left forehead. (iii) Lacerated wound (pea) on the P.P. of right ring finger. (iv) Diffused swelling on the right hand, deformity present on the right little finger. (v) Lacerated wound (2" x 1/4") on left palm between thumb and index finger, swelling present in whole of left hand. (vi) Two incised wounds (pea) on the left leg, anterior and m/3. (vii) Abrasion 1/4" long on right leg, anterior and m/3. (viii) Diffused swelling on right foot. (ix) Contusion (3 x 1") on the left chest, red, oblique. In his opinion, the injury No.(vi) [above] could be inflicted by hard and sharp object whereas the other injuries could be caused by hard and blunt object. No dispute was raised as to contents of the corresponding report (Ex.P-17) indicating that medical examination of Sharda was conducted at about 6.35 p.m. The assertion made by Dr. Sanjay Gupta (PW4) that he had informed the SHO of Kotwali Damoh about death of Sharda by way of a memo (Ex.P-14) was also not challenged in the cross-examination. Contents of the memo clearly suggested that Sharda, who was admitted to the District Hospital, Damoh at 6.30 p.m., breathed his last at 10.40 p.m. (7) Dr. S.K. Jain (PW8), who also conducted autopsy on the dead body, again described the external injuries in the following terms - (i) Lacerated wound 1/2" long on the left frontal region of scalp. (ii) Lacerated wound.1/4" long on the left forehead. (iii) Contusion 3" x 1" on the left chest. (iv) Diffused swelling on the left hand. S.K. Jain (PW8), who also conducted autopsy on the dead body, again described the external injuries in the following terms - (i) Lacerated wound 1/2" long on the left frontal region of scalp. (ii) Lacerated wound.1/4" long on the left forehead. (iii) Contusion 3" x 1" on the left chest. (iv) Diffused swelling on the left hand. (v) Contusion (1" x 1") on the left elbow. (vi) Two peas sized incised wound on the mid and anterior part of left leg. (vii) Diffused swelling on the right foot. (viii) Lacerated wound 1" x 1/8" on anterior and m/3 of left leg. (ix) Diffused swelling on the right hand. (x) Lacerated wound on left palm between thumb and index finger. (xi) Abrasion (1/2" x 1/2") on the lateral and m/3 of left arm. The medical expert further deposed that on internal examination, he had found- (i) Mild haematoma on left frontal (forehead). (ii) Small lacerated wound in the anterior lateral aspect of left lung. Bleeding present. Pleural cavity full of blood. Right chamber of heart was full of blood. (iii) Fractures in the 4th, 5th rib. (iv) Fractures in left 4th and 5th Meta carpal bones. (v) Fractures in right 3rd, 4th, 5th Meta carpal bones. (vi) Fracture in 1st right Meta torsal bone. (8) According to Dr. S.K. Jain, fractured ends of the ribs had damaged left lung where -from bleeding started and led to hypovolemia shock resulting in death. In the cross-examination, he clearly admitted that the fractures could be sustained due to dash against a hard surface like a bench of stone whereas the injury to the lung could be caused due to negligent handling in lifting and carrying the body of the injured who had received fractures in the 4th and 5th ribs. He further expressed agreement with the suggestion that the incised wound found on the body of Sharda could be caused due to fall on any pointed or sharp edged object embedded in the earth. Nevertheless, Investigation Officer R. Chourasia (PW12) was not cross-examined on the point as to whether he had found any sharp edged article embedded in the earth at the place of occurrence. The spot map (Ex.P- 27) also did not reflect existence of any such article. Nevertheless, Investigation Officer R. Chourasia (PW12) was not cross-examined on the point as to whether he had found any sharp edged article embedded in the earth at the place of occurrence. The spot map (Ex.P- 27) also did not reflect existence of any such article. Further, no bloodstains were noticed on the stone bench placed in the betel-cum- tea shop run by Munna (PW9) and shown in the map at Point 'A'. As indicated in the FSL report (Ex.P-33), human blood was detected in the soil and pieces of stone as well as on a gunny bag seized from the spot. All this evidence clearly suggested that none of the injuries was sustained due to dash against the bench or a fall on a sharp edged article. (9) In this view of the matter, learned trial Judge did not commit any error in holding that Sharda's death was homicidal in nature. (10) Coming to the contention as to veracity of the FIR (Ex.P21), it may be observed that ASI R. Chourasia (PW12) duly corroborated the fact that it was recorded at the instance of Sharda only. According to him, he had taken nearly 25 minutes for scribing the report wherein time of recording was mentioned as 5.40 p.m. As pointed out already, Sharda was examined by Dr. S.K. Jain (PW8) at 6.35 p.m. in the Civil Hospital at Damoh. Nothing was indicated in the MLC report (Ex.P-17) so as to suggest that Sharda had lost his consciousness. Moreover, no bleeding injury was found on anyone of his thumbs. Further, cause of his death was ascertained as hypovolemic shock as a result of haemorrhage in the left lungs. The FIR contained a categorical assertion that Sharda was brought to the Outpost at Bandakpur, that was located at a distance of only 2 furlongs from the spot, by his son Rajneesh (PW1) only. This recital drew ample corroboration from the evidence of Rajneesh who further stated that the FIR was written as per information given by his father only. Even though, Kailash Dubey (DW1), the driver of the jeep wherein Sharda, in an injured condition, was taken to the hospital, came forward to substantiate the defence that in the transit, Sharda had not informed the police about the incident yet, fact of the matter is that Dr. Even though, Kailash Dubey (DW1), the driver of the jeep wherein Sharda, in an injured condition, was taken to the hospital, came forward to substantiate the defence that in the transit, Sharda had not informed the police about the incident yet, fact of the matter is that Dr. S.K. Jain (PW8) clearly deposed that he had examined Sharda upon the requisition received from officer-in-charge of Bandakpur Outpost. Under these circumstances, no doubt could be cast upon the authenticity of contents of the FIR, that was also admissible as the dying declaration under Section 32(1) of the Evidence Act. (11) Direct evidence comprised of statements of five persons named in the FIR as eye-witnesses to the incident. Amongst these, Rajneesh (PW1), the son of the deceased, and Nannu (PW2) duly substantiated the allegation that all the four appellants, respectively armed with rod, lathi, pharsa and rod, were involved in the joint assault resulting in Sharda's death. According to them, the first blow was given by A3 with a pharsa on Sharda's head and, thereafter, A1 and A4 assaulted with iron rods and A2 wielded lathi on the person of Sharda. Their evidence did not suffer from any material inconsistency as to the corresponding details. Although, both of them clearly admitted that Nannu, who was referred in the FIR and their police statements(Ex,.D-1 and D-2) as Nannu Swami, was suffixing Tiwari' as his surname yet, this discrepancy did not assume any significance because of the fact that identity of any other person, who was addressed as Nannu Swanii in the FIR, was not established from the evidence on record. Furthermore, even if the admission made by Rajneesh that Nannu is related to him as brother is accepted, it would not be sufficient to discredit his eyewitness' account that was otherwise found to be truthful. This apart, relationship of these witnesses with the deceased was not a factor to affect their creditability, as they were more interested in bringing the real assailants to book. (12) It is true that other witnesses to the incident viz. This apart, relationship of these witnesses with the deceased was not a factor to affect their creditability, as they were more interested in bringing the real assailants to book. (12) It is true that other witnesses to the incident viz. Munna (PW9), the occupier of the betel-cum-tea shop, Nirbhay alias Abbu alias Abhay (PW15) named as Ajay in the FIR, and Guttu alias Praveen (PW16) did nof state any incriminating fact against A2 and A3 but their non-corroborative evidence in respect of both these appellants, who had raised defence of alibi, was of no consequence as none of the appellants was able to prove his presence elsewhere. As explained by the Apex Coulrt in Vijayee Singh v. State of U.P., (1990) 3 SCC 190 : ( AIR 1990 SC 1459 ) - In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence; the court, after due consideration ofthe evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly. However, these principles cannot be made applicable to a case where the accused sets up alibi. There the burden entirely lies on him and plea of alibi does not come within the meaning of these exceptions. Circumstances leading to alibi are within his knowledge and as provided under Section 106 of the Act he has to establish the same satisfactorily. (Emphasis supplied) (13) Reverting to the facts of the case, it may be seen that the alibi though pleaded by A2 and A3, who are Govt. Teachers, had failed for want of cogent evidence. As such, a presumption could be raised that they were present at the place of occurrence. For this, reference may be made to the following observation made by a Special Full Bench of the Calcutta High Court in Sarato Chandra Dhupi v. Emperor, (AIR 1934 Cal 719) - "Whenever a defence of alibi is set up and that defence utterly breaks down, it is a strong inference that if the prisoner was not in fact where he says he was then in all probability, he was where the prosecution say he was. " [Quoted with approval by a Division Bench of Punjab and Haryana High Court in Mohinder Singh v. State of Punjab 1971 Cri LJ 1764]. (14) As stated already, veracity of the evidence of Rajneesh (PW1) and Mannu (PW2) has also been challenged on the ground that no incised injury corresponding to the pharsa blow allegedly dealt by A3 on the head of Sharda was noticed by the medical expert. Learned counsel of the appellants, while making reference to the decision rendered in Hallu v. State of M.P, (1974) 4 SCC 300 : ( AIR 1974 SC 1936 ), have contended that normally, when the witness says that sharp edged weapon like axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used Placing reliance on the decisions of the Supreme Court in Amar Singh v. State of Punjab, (1987) 1 SCC 679 : ( AIR 1987 SC 826 ), Devatha Venkataswamy v. Public Prosecutor, High Court of A.P., (2003) 10 SCC 700 : ( AIR 2003 SC 3217 ) and Khambam Raja Reddy v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239 : ( AIR 2006 SC 3236 ), they have further submitted that entire prosecution case deserves to be discredited in the light of an apparent conflict between medical and ocular evidence. (15) In Amar Singh's case, no injury conforming to the weapons allegedly used was found on the body whereas in the present case, incised wounds were noticed on the body of Sharda. Devatha was charged with piercing the forehead of the deceased with a spear but the injury, that was noticed, was opined to be caused by the used of a blunt weapon and in Khambam Raja Reddy's case, there was no depressed injury corresponding to the allegation that the accused had picked up a big stone and had hit the deceased on his head. Thus, none of these decisions is applicable to the facts of the case on hand. (16) This apart, as explained in Thaman Kumar v. State of Union Territory of Chandigarh (2003) 6 SCC 380 : ( AIR 2003 SC 3975 ) :- "The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. Thus, none of these decisions is applicable to the facts of the case on hand. (16) This apart, as explained in Thaman Kumar v. State of Union Territory of Chandigarh (2003) 6 SCC 380 : ( AIR 2003 SC 3975 ) :- "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 eyewitnesses. 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 categories no such inference can straight away 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 distances, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. " Accordingly, no significance could be attached to the discrepancy, as it did not fall under the fust category (supra). Moreover, in absence of examination with the help of magnifying glass, it was not possible to determine the exact nature of the scalp wound (See. Shankaria v. State of Rajasthan AIR 1978 SC 1399 ). " Accordingly, no significance could be attached to the discrepancy, as it did not fall under the fust category (supra). Moreover, in absence of examination with the help of magnifying glass, it was not possible to determine the exact nature of the scalp wound (See. Shankaria v. State of Rajasthan AIR 1978 SC 1399 ). For this, relevant observations made by Modi in his treatise on Medical Jurisprudence and Toxicology (Twenty- Second edition) edited by B. V. Subrahman- yam, may usefully be quoted thus - "...A scalp wound by a blunt weapon may resemble an incised wound, hence the edges and ends of the wound must be carefully seen to make out a torn edge from a cut and also to distinguish a crushed hair bulb from one cut or torn......" [referred to by the Apex Court in Dashrath Singh v. State of U.P. AIR 2004 SC 4488 ]. (17) For these reasons, none of the contentions raised against veracity of the prosecution version has any merit or substance. The conviction, therefore, deserves to be affirmed as well merited. However, taking into consideration the social impact of the crime, nature and situs of injuries and other facts and circumstances of the case, interests of justice would be met if the term of custodial sentence is reduced to seven years. (18) In the result, the appeal is allowed in part. The impugned conviction and fine sentence are hereby affirmed. But, the term of consequent sentence of imprisonment is reduced from 11 years to 7 years' R.I. Although, the custodial sentence has not been suspended yet, as informed by learned counsel, the appellants have already been released by the jail authorities in the light of the remission granted by the State Government by virtue of circular-dated 04.12.2010. If that be so, learned trial Judge shall verify and take follow up action in accordance with law. Order accordingly.