Case: Daryao Singh Vs. State of Madhya Pradesh

2. On 25th September, 1970, the deceased, Negji, was working in his field along with his son PW 4--Bhanwar Singh. At that time the appellant went there in the company of Nagusingh Govardhansingh and Bapusingh. Nagusingh was armed with a gun and a stick with dharia like blade, Govardhansingh was armed with a similar weapon, the appellant was armed with a sword and Bapusingh possessed a gun. They lanuched an attack on the deceased Negji whereupon the the latter raised an alarm which attracted the attention of Pw 1--Bherusingh and Pw 3--Bhuwan Singh, who were working in the adjacent filed. They reached the spot and witnessed the incident. On their raising a hue and cry, the appellant and his companions fled away. PW 4 had run away frightened when a shot was fired at him. The deceased, Negji, sustained serious injuries on the head and his right leg was cut into two. PWs 1 and 3 went in search of PW 4 but on the way met two police constables PW 8--Chhotelal and PW 10- Itratkhan. They narrated the incident and disclosed the names of the assailants to them. All the four returned to the place of occurrence, placed Negji in a cart and proceeded towards the police station. But the injured passed away on the way. The dead body appears to have been taken to the hospital on the next day at about 5.20 p.m. PW 2--Dr. Sharma, performed the post-mortem examination on 27th September, 1970 at about 7.00 a.m. Except the appellant the rest of the assailants could not be put to trial as they were reportedly absonding.3. The prosecution mainly relies on the evidence of PW 1,3 and 4. In addition, the prosecution seeks corroboration from the evidence of the two Police Constables PWs 8 and 10 whom the names of the assailants were disclosed immediately after the incident. PW 8, however, turned hostile and was permitted to be cross-examined by the learned Public Prosecutor. This, in brief, is the prosecution evidence against the appellant.4. The learned Trial Judge on an appreciation of the prosecutiion evidence concluded that having regard to the long standing enmity between the two families it was hazardous to place implicit reliance on the interested testimony of PWs 1,3 and 4, more so because their testimony was not corroborated in material particulars by independent evidence. Besides, according to the Trial Judge, the evidence of DW 3--Keshav Shanker Varang established that the appellant was a physically disabled person who could not have weilded the sword with such ferocity as to cut the right leg into two pieces. To disbelieve the prosecution case the learned Trial Judge referrd to the evidence of the hostile Constable, PW 8, but failed to take note of the evidence or PW 10. As the three eye-withnesses were closely related to the deceased, the learned Trial Judge applied the rule of prudence and thought it wise not to base a conviction on thier uncorroborated evidence. He therefore, acquitted the appellant.5. Feeling aggrieved by the order of acquittal passed by the learnd Trial Judge, the State of Madhya Pradesh preferred an appeal of the High Court which was disposed of by a Division bench by its impugned judgment and order dated 3rd, 1979. The Division Bench held that although the three prosecution witnesses were closely related to the deceased their evidence could not be discarded solely on the ground that they were interested and partisan witnesses, but all that the rule of prudence demanded was to evaluate their evidence with caution. On a close scrutiny of the evidence of the said three witnesses, the Hight Court found that nothing was brought out in their cross-examination to doubt their credibility. On the contrary the High Court felt that their evidence was partly corroborated by PW 10 and medical evidence. So far as the evidence of PW 8 is concerned the High Court observed that he had turned hostile and had deliberately departed from his earlier statement to the Police as well as the entry in his police diary. In this view of the matter, the High Court reversed the order of acquittal and convicted the appellant under section 302/34, IPC. It is this conviction which is assailed before us in this appeal by the appellant.

Reasoning:
11. Counsel for the appellant, however, emphasised that the statement of PW 2 in cross-examination clearly established the existence of blisters, an objective fact, which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post-mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September, 1970.It was lastly submitted that the evidence of the radiologist. Keshav Shanker Varang, DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts. In this connection, our attention was drawn to paragraph 7 of his deposition, wherein he has stated that looking to the fracture of the appellants leg and his chest condition he was a disabled person who could not run fast or walk quickly and, therefore, argued counsel, he could weild the sword with such ferocity as to cut the leg in to parts. In cross-examination he has admitted that he had not examined the muscle power the appellant. He conceded that the elbow was free and, therefore, he could use the weapon but not with great force. The High Court has considered this submission in paragraph 8 of its judgment and has rejected it. We do not think that having regard to the fact that the appellant alone was weilding the sword, it is to rely on this opinion evidence in preference to the direct evidence of three witnesses. High Court has rigtly rejected this submission and we need not dilate on it.