GAJENDRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard learned Counsel for the appellants and learned A.G.A. and perused the record of the case. The contention of appellants' Counsel is that the oral testimony of witnesses is in contradiction with the medical evidence as no punctured wound was found on the deceased though accused-Gajendra is said to have wielded Bhala. To the contrary the injuries like lacerated wound, multiple abrasions and traumatic swelling have been found on the deceased which may be caused by blunt weapon alone. Even the firearm which was initially alleged to have been used, as per the version of the F.I.R., has not caused any corresponding injury. Further submission is that the F.I.R. is an ante-timed document as the time which the first informant is said to have taken in reaching the police station does not tally with the time of F.I.R. and he, according to his own statement, could not have reached the police station at the alleged time of lodging of the F.I.R. It has also been submitted that there is no convincing motive for the accused for committing the said crime and the witnesses produced being related to the deceased cannot be termed as reliable witnesses.

(2.) Per contra, learned A.G.A. has opposed the prayer for bail and has submitted that the iron-rod, termed as Bhala because of its typical shape by the witness, had been recovered at the instance of the appellants. Attention of the Court has been drawn to the statement of doctor to whom the weapon of offence was shown in the Court and who has described as to how the iron-rod was pointedly compressed at its end. The contention is that an iron-rod with such a shape shall more appropriately be termed as Bhala by anyone. It has also been submitted that such kind of weapon can be equally used as a rod also and if a particular weapon is not used in a particular way and has been used in another manner, there is no illegitimacy in the same, and therefore, if the aforesaid Bhala (iron-rod) was not used by the appellants as a piercing weapon but was used as a blunt weapon, the same cannot be made a ground to detract the evidentiary value of the witness. Because of the same reason, therefore, if instead of a punctured wound, lacerated wounds were found on the deceased, there is no incompatibility or inconsistency between the medical evidence and oral evidence. It has also been submitted that the law on the point is too well settled that unless the medical evidence is wholly irreconcilable with the oral evidence, the oral evidence must be allowed to prevail. The medical evidence cannot always be treated as a 'constant' nor the oral testimony be always treated as a 'variable'. Further submission is that the P.W.-1 is an injured witness who had even received a fracture on his person at the hands of the appellants and his testimony cannot be lightly brushed aside just because he happens to be the son of the deceased.

(3.) The genesis of the occurrence is that while P.W.-1 was taking his meals in the hotel the appellants came up and demanded money from him for taking liquor. When the witness refused to oblige them, he was brutally beaten. It was thereafter that his father Kamal Singh deceased rushed to his rescue. But the appellants made the innocent father victim of their unruly wrath who succumbed to the injuries inflicted on him by the accused-appellants.