JUDGMENT
S.D. Pandit, J.
1. Prem Chand s/o Sher Singh, Mahinder s/o Maha Singh, Kamal Singh s/o Daulat Ram, Raj Kumar alias Raju s/o Hari Singh and one Mohd. Kamil were challaned by the police after registering a F.I.R. No.275/88 on 13th March, 1990 for the offence punishable under Section 302 read with Section 34 and Section 120B of the Indian Penal Code. On the evidence led before him the learned Additional Sessions Judge found appellants Prem Chand, Mahinder in Cr. Appeal No. 71/90, appellant Kamal Singh in Cr. Appeal No. 91/90 and appellant Raj Kumar alias Raju in Cr. Appeal No. 125/90 guilty of the offence punishable under Section 302 read with Section 34 and has sentenced each of them to suffer imprisonment for life whereas he acquitted accused Mohd. Kamil of the offences with which he was charged. As these three appeals are arising out of one and the same Session’s case No. 26/89, they are being disposed of by this common judgment.
2. The case of the prosecution is that on the 18th September, 1988, there was a party on account of marriage of one Rajesh and in the said party first informant Vinod Kumar s/o Hari Chand, deceased Bodh Raj, deceased Vinod and appellants Kamal Singh, Mahinder and Prem were also present. In the said marriage party a quarrel had taken place between appellant Kamal Singh and deceased Bodh Raj alias Bodha and in the said quarrel deceased Bodh Raj alias Bodha spat on the face of appellant Kamal Singh and at that time Kamal had gone away by threatening to take revenge of his insult.
3. The incident in question is alleged to have taken place on the next day i.e. on the 19th September, 1988. On that day first informant Vinod Kumar, deceased Vinod Kumar s/o Ganga Dass, deceased Bodh Raj alias Bodha were sitting in front of Community Hall of Kabir Basti and were enjoying a cup of tea. At that time appellants (1) Prem Chand (2) Mahinder (3) Kamal Singh and (4) Raj Kumar alias Raju came there together. It is the case of the prosecution that all these four appellants are close friends. After going there appellant No. 2 Mahinder in Cr. Appeal No. 71/90 threatened Bodh Raj by saying that he would do away with him on that day and he would not be left alive because he had spitten on the face of his friend Kamal in the party on Sunday and therefore he wanted to take revenge. At that time Mahinder had a knife in his hand. On seeing the same and hearing the said threat first informant Vinod Kumar s/o Hari Chand, deceased Bodh Raj alias Bodha and deceased Vinod Kumar s/o Ganga Dass took to their heels in order to save their lives. At that time they were chased by the present appellants and appellant Prem had given threats that if anybody happened to come ahead he would not be spared. At some distance in the said galley appellant Raj Kumar alias Raju (in Cr. Appeal No. 125/90) overpowered Bodh Raj and caught hold of him. Thereupon Bodh Raj raised alarm saying save me ‘save me’. On hearing the said cries P.W. 7 Santosh Kumar and P.W. 8 Naresh Kumar were attracted there. After Raju had overpowered Bodh Raj, appellants Mahinder and Prem who were armed with knife and dagger went there and gave blows of their weapons. In the meantime, appellant Kamal had overpowered deceased Vinod. After Bodh Raj had fallen down on receiving the blows, both appellants Mahinder and Prem went to Vinod. They gave the blows of their weapon on Vinod. Appellant Kamal also had a razor in his hand. He also gave blows from his weapon on Vinod and thereafter all the four appellants ran away.
4. First informant Vinod Kumar had gone to the police but the Police Station Officer did not record his complaint there and he came Along with him on the spot and there he recorded first information report of Vinod Kumar s/o Hari Chand. On the strength of the said report the offence was registered at FIR No. 275/88 on the same day in Krishna Nagar Police Station. Then the inquest punchnama of both the dead bodies were prepared on the spot as both Bodh Raj alias Bodha and Vinod Kumar s/o Ganga Dass had met with death instantaneously. Then the sketch of the spot was prepared. Statements of P.W. 7 Santosh Kumar and P.W. 8 Ramesh Kumar, two eye-witnesses were also recorded on the same night between 30th and 31st March, 1988. The dead bodies were sent for post mortem.
5. Appellants Prem Chand and Raj Kumar alias Raju were arrested near Victor Tower on 22nd November, 1988. After their arrest they had made discovery statements leading to the discovery of the weapons which were buried in the ground. On the next day, i.e. on 23rd November, 1988, appellants Kamal and Mahinder surrendered themselves before the Metropolitan Magistrate and they were taken in police custody. Both of them also made discovery statements leading to the discovery of the weapons which were buried in a ground by them. Then all those weapons as well as the other articles seized during the investigation were sent to the Chemical Analyser and on completion of the necessary investigation all the accused and one Mohd. Kamil were challaned before the Metropolitan Magistrate. According to the prosecution Mohd. Kamil had made an extra judicial confession to P.W. 9 Harish Kumar of his having got rid of Bodh Raj with the help of appellants Prem Chand and Mahinder and therefore he was charge-sheeted by taking aid of Section 120B of Indian Penal Code.
6. As the offence punishable under Section 302 is exclusively friable by the Court of Sessions, learned Metropolitan Magistrate committed the appellants to the Court of Sessions vide order dated 18th January, 1989.
7. A charge is framed against the appellants and Mohd. Kamil on 19th August, 1989, for the offence punishable under Section 302 red with Section 120B and Section 34 of the Indian Penal Code. All the accused had pleaded not guilty to the charge. Their defense is of total denial and false implication.
8. In order to prove its case against the appellants prosecution has examined in all 20 witnesses. Out of 20 witnesses, P.W. 3 Vinod Kumar, P.W. 7 Santosh Kumar, P.W. 8 Ramesh Kumar are direct eye-witnesses to the incident in question. The learned Additional Sessions Judge came to the conclusion that the evidence of these three eye-witnesses is cogent and clear and it is supported and corroborated by the medical as well as the circumstantial evidence on record. He, however, found that the evidence of the alleged extra judicial confession made by Mohd. Kamil to P.W. 9 Harish Kumar was not at all believable and acceptable. He also found that the prosecution had failed to prove any conspiracy. He, therefore, acquitted all the accused for the offence punishable under Section 120B. He also acquitted Mohd. Kamil of the offence punishable under Section 302 read with Section 34 as well as Section 120B. However, he found all the four appellants before us, guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them as stated earlier.
9. Out of the 20 witnesses examined by the prosecution P.W. 3 Vinod Kumar, P.W. 7 Santosh Kumar and P.W. 8 Ramesh Kumar are direct eye-witnesses to the incident in question. P.W. 3 Vinod Kumar has stated that on that day of 19th September, 1988, at about 8.15 p.m. he, deceased Vinod Kumar and deceased Bodh Raj were sitting in front of Community Hall of Kabir Basti, Shastri Gali and at that time all those four appellants came there and the appellant Mahinder had a knife in his hand and Prem Lal had a dagger in his hand. They had threatened to Bodh Raj and others that Bodh Raj had insulted their friend, appellant Kamal Singh, hence they had come to take revenge. On the threats given to them, first informant Vinod Kumar Bodh Raj and Vinod Kumar got up and took to their heels and they were chased by those four appellants. He has further deposed that at that time Bodh Raj raised shrieks ‘bachao’ ‘bachao’ and the appellant Raj Kumar alias Raju had overpowered Bodh Raj and he had caught hold of him and then appellant Prem Lal and appellant Mahinder reached near him and they stabbed Bodh Raj with their respective weapons. By that time appellant Kamal Singh had caught hold of Vinod Kumar and appellant Kamal Singh had a razor in his hand and he had given the blow of razor on Vinod Kumar and after attacking Bodh Raj, appellant Prem and appellant Mahinder went to Vinod and they had also stabbed Vinod with their weapons in their hand and due to the said attack both Bodh Raj and Vinod Kumar had fallen on the ground and they had met with instantaneous death. This evidence of P.W. 3 Vinod Kumar is fully supported and corroborated by other two witnesses P.W. 7 Santosh Kumar P.W. 8. Both Santosh Kumar and Ramesh Kumar had deposed that they had heard shrieks ‘bachao’ ‘bachao’ from the Shastri Gally and therefore, they ran towards the place from where those shrieks were coming. They have also deposed that they had seen appellant Raj Kumar alias Raju having caught hold of Bodh Raj whereas appellant Kamal Singh had caught hold of Vinod some distance away from Bodh Raj. Appellant Prem Chand and Mahinder first stabbed Bodh Raj and after he collapsed on the ground they turned towards Vinod who was caught by Kamal Singh. Kamal Singh had given a blow of his razor on Vinod and then accused Prem Chand and Mahinder stabbed him with their weapons and Vinod Kumar collapsed on the ground and thereafter all the accused had run away.
10. The said ocular evidence of these two witnesses is supported by the medical evidence on record. P.W. 16 Dr. D. N. Sharma had deposed that he had found that there were 5 incised wounds, 2 abrasions and 1 bruise on the body of Vinod Kumar whereas Bodh Raj had 7 incised wounds, 5 abraisons and 5 linear scratches. Dr. Sharma has further deposed that the injury No. 4 on the chest of Vinod Kumar was 10 cms. in depth and it was between 2nd and 3rd rib and had cut pericardial sec and had about aorta and that injury No. 4 was sufficient in ordinary course of nature to cause the death.
11. He has deposed that injury No. 6 on Bodh Raj had entered the chest cavity and had cut the medial border of left lobe through and through and then it has cut pericardial sec and same was in the ordinary course of nature sufficient to cause the death. Dr. Sharma is not at all cross examined and his opinion is not at all challenged.
12. The evidence on record also further shows that the dead bodies of Bodh Raj and Vinod Kumar s/o Ganga Dass were found in the said Shastri Gally when investigating officer P.W. 18 V. P. Kohli had reached there. If the cross examination of all the three prosecution witnesses P.W. 3 Vinod Kumar, P.W. 7 Santosh Kumar and P.W. 8 Ramesh Kumar is seen then it would be quite clear that they are not having any animosity or illwill towards any of the appellants. No doubt it has come in the crossexamination of Vinod Kumar that he was friend of deceased Vinod Kumar s/o Ganga Dass as well as Bodh Raj. But merely because he was a friend of the two deceased persons he could not be labelled as a totally interested person. Vinod Kumar has also given the first information report of the incident in question and the said information report is registered and recorded within three hours from the time of the incident. Therefore, that conduct of P.W. 3 Vinod Kumar also corroborates his version.
13. Vinod Kumar has deposed that on the previous day i.e. on 18th September, 1988 there was a marriage party at the house of P.W. 4 Mahesh Kumar and in the said marriage party there was some quarrel between appellant Kamal Singh and deceased Bodh Raj and in the said quarrel Bodh Raj spat on the face of appellant Kamal Singh and at that time Kamal had left the party by saying that he would take revenge. P.W. 4 Mahesh Kumar corroborates the version of Vinod Kumar regarding the motive and if the cross examination of P.W. 4 Mahesh Kumar is seen then it would be quite clear that his claim that on the previous day there was a quarrel between deceased Bodh Raj and appellant Kamal Singh and Bodh Raj spat on the face of Kamal Singh is not challenged and disputed. Vinod Kumar had deposed that when he and two deceased were sitting on that fateful night of 19th September, 1988, all the four accused came there and appellant Mahinder had said that they had come there in order to take revenge of the insult of their friend.
14. The learned advocate for the appellants have urged before us that in view of the conduct and other circumstances on record the trial Court was not at all justified in accepting the evidence of three eye-witnesses and therefore, we should discard the evidence of three eye-witnesses on the strength of those circumstances and acquit the accused.
15. It is urged before us that conduct of all the three witnesses is not natural and believable and therefore, they should not be believed and accepted. It has been asked in the cross-examination of all the three witnesses as to whether they were knowing the house of both deceased Bodh Raj and Vinod Kumar s/o Ganga Dass. All the three witnesses have stated that they were knowing their houses. They have also admitted in their cross-examination that they had not gone to the house of any of the deceased to inform the family members of the said deceased persons about the death of the deceased. Therefore, in view of the said admissions, it is urged before us that their evidence should be discarded. But it must be said that prosecution has examined P.W. 1 Mohan Lal, brother of deceased Bodh Raj and P.W. 3 Chaman Lal, brother of deceased Vinod. Mohan had deposed that he had heard the noise and had come to know the killing of the two persons and therefore he went to Shastri Gally at about 9.00-9.15 p.m. and at that time he had seen his brother and other person lying dead there. The said witness is not at all cross examined. P.W. 2 Chaman Lal is brother of deceased Vinod Kumar s/o Ganga Dass. He has deposed that at 8.40 p.m. some people informed him about the death of Vinod Kumar and therefore, he immediately went there. He is also not cross examined by any of the accused. Then it must be also mentioned that both these witnesses P. W. 1 Mohan Lal and P.W. 2 Chaman Lal are residing in the same locality and they had reached there within half an hour from the incident in question. Therefore, in these circumstances, it could not be said that three witnesses had not acted abnormally by not going to the houses of two deceased persons as the relatives of the deceased had come to the spot soon after the incident in question. The conduct of the witnesses remaining there at the spot, could not be said to be unnatural, improper and unbelievable. It must be also further mentioned here that that it has come in the evidence of all the three eye-witnesses that their statements were recorded by the police immediately on the same night within four hours from the incident in question. It has also come in the evidence that they had remained on the spot and Vinod Kumar had gone to the police station to call the police. Therefore, it could not be said that the conduct of these witnesses is unnatural. The learned advocate for the appellants, Shri Sethi has cited before us the case of Surjit Singh v. State of Punjab, . In that case P.W. 6, who claimed to be the eye-witness to the incident in question, had not informed anybody and had gone back to his house and had remained quite and calm for two days and therefore in the circumstances his conduct was said to be unnatural. Therefore, the facts of the said case are not applicable to the facts before us.
16. Another criticism levied on the conduct of P.W. 3 Vinod Kumar is that though Vinod Kumar was with the deceased and though he had seen the appellants attacking the deceased, he had not gone ahead to rescue his friends. It must be remembered that P.W. 3 Vinod Kumar as well as both the deceased were unarmed whereas out of the four accused three accused were armed with deadly weapons. Therefore, in these circumstances, when Vinod Kumar was seeing that the three accused were attacking with the deadly weapons in their hands, it is but natural that he would not go ahead to rescue them rather he wound try to save his own life. When P.W. 3 and his friends were being chased by three persons armed with deadly weapons it is but natural that he would try to run away in order to save his own life even though he happened to see that the appellants were killing his two friends. After all life is very dear to every body. Therefore, the failure of P.W. 3 to go ahead to rescue the two deceased persons is not at all unnatural or improbable. As regards the other two witnesses it must be said that the incident in question had taken place very swiftly and the other two witnesses were also unarmed and when they were seeing that the accused were armed with deadly weapons and were killing two person by making use of those deadly weapons, it is but natural that they would also refrain from going ahead to rescue the victims. Therefore, we do not think that the conduct of the witnesses is unnatural.
17. The next criticism made on behalf of the accused is that in the first information report P.W. 3 Vinod Kumar had not stated that appellant Kamal had a razor in his hand and he had given the blows of the same on deceased Vinod Kumar. If the first information report on record is seen then is would be quite clear that there is no mention of the fact that accused Kamal had a razor in his hand and that he had given the blows of the same on the person of deceased Vinod. But it must be remembered that the first information report is not a substantive piece of evidence. It can only be used for corroborating or contradicting its maker, when he appear as a witness. Its value must always depend on the facts and circumstances of a given case. FIR can by no means be utilised for contradicting or discrediting the other witnesses who do not have any desire to spare the real culprit and to falsely implicate others. Therefore, because there is no mention of razor in the first information report filed by P.W. 3 Vinod Kumar the prosecution case cannot be thrown out. (See Shri Dharam Ram Bhagare v. State of Maharashtra, , and Shankar v. State of U.P., .
18. Apart from this if the cross examination of P.W. 3 Vinod Kumar is seen then it would be quite clear that he has not been at all cross examined on this point. The non-mentioning of the presence of razor in the hand of Kamal and Kamal giving the blows of the said razor on the deceased in the F.I.R. is an omission and when there is an omission in the evidence of the previous statement his attention must be drawn to the said omission and explanation must be sought from him as to how the omission arose. But in the instant case it must be said at the cost of repetition that P.W. 3 Vinod Kumar is not at all cross examined in this respect. Whatever has been brought out in the cross examination is that this witness P.W. 3 Vinod Kumar had seen Kamal for the first time i.e. on previous day i.e. on 18th September, 1988 in the party and prior to that Kamal was not known to him. Therefore, that circumstances shows that Vinod Kumar had no animosity or illwill towards the accused Kamal and consequently could not be said to be interested in falsely implicating him. It must be remembered that other two eye-witnesses have consistently stated about the presence of razor in the hand of accused Kamal and Kamal giving the blows of the same on deceased Vinod Kumar. It must be remembered that P.W. 3 Vinod Kumar and deceased Bodh Raj and Vinod Kumar were sitting together. There the present appellants came and they had given a threat to take the revenge and then the appellants chased them and appellants had attacked and killed two of his friends, Bodh Raj and Vinod Kumar before his eyes. Therefore, it is but natural that he must be under tension and trauma. Vinod Kumar was not at all cross examined as to why he had not mentioned in the F.I.R. the presence of the razor in the hand of appellant Kamal and appellant Kamal giving blows of razor to Vinod Kumar. His evidence in Court is corroborated by other two independent witnesses. We are thus unable to hold that the failure of Vinod to make a reference in F.I.R. about presence of razor in the hands of appellant Kamal and appellant Kamal giving blows of the same to deceased Vinod Kumar should be the cause to throw away the prosecution case. It is quite probable and possible that on account of trauma and tension Vinod might have failed to mention the said facts in his first information report and only after he had come out of the trauma and tension of the said incident, he must have recollected the details of the incident in question.
19. It must be mentioned here that rukka was received in the police station at 10.35 p.m. and the first information report was dispatched from the police station at 10.35 p.m. Thus the registration of the offence had taken place within 2-1/2 hours from the time of the incident in question.
20. The learned advocate for the appellants have urged before us that there is a delay in lodging the first information report and therefore, the prosecution story should be disbelieved. We, however, do not find that any unusual delay has occurred in lodging the F.I.R. The learned counsel for the appellants had cited before us the case of Awadhesh v. State of M.P., . But if the facts of the said case are seen then it would be quite clear that in that case the occurrence took place at 4.15 hours and the record was created to show that the first information was lodged at 15.10 hours and the evidence on record and the attending circumstances clearly indicated that the first information was not lodged at 15.10 hours and it was lodged at about 17.00 hours and therefore, in view of the said circumstances it has been held by the Supreme Court that the said delay in lodging the F.I.R. created suspicion that the names of the assailants were not known and after fixing the names of the appellants at 17.00 hours the F.I.R. must have been recorded and it has been tried to show as recorded on 15.10 hours and therefore, in view of the facts of the said case the prosecution case was not believed.
21. The evidence of P.W. 3 Vinod Kumar shows that as a matter of fact he had immediately gone after the incident to the police station and then the police came on the spot and there they recorded the statements instead of recording the same in the police station house. No doubt the investigating officer is denying the fact that P.W. 3 Vinod Kumar had come to the police station. It is but natural that he did not want to accept his mistake in not recording the first information report in the police station itself when the first informant had gone to the police station and therefore he was not admitting the fact that Vinod Kumar had come in the police station. This lapse of the police would not lead to any inference that the statements of the eye-witnesses in any manner become doubtful.
22. Another criticism made by the learned counsel for the appellant is that the medical officer was not shown the weapons recovered in this case and his opinion as to whether the injuries found on the dead body were possible by the said weapon is not obtained and therefore, the prosecution case should not be accepted. In support of that submission the case of Ilam Singh v. State of U.P., , it cited before us and reliance is placed on the following head note :-
“In the present case had the doctor seen the weapons seized from the two appellants, it might have been possible for him to say which of them caused the injury. But the weapons seized were not shown to the doctor.”
Held
It is impossible to say with certainty whether the injury was caused by the ballam or the bhala that were seized, and therefore, whether it was one or the other of the appellants who was responsible for it, even if one believed that on the day of the occurrence one of them carried a ballam and the other a bhala. The conviction under Section 302, I.P.C. simpliciter cannot therefore be sustained.
The facts of the said case show that Ishwar Singh, Harpal, Brahm Singh and Deep Chand were tried by the Sessions Judge of Merrut for the offences punishable under Section 302, 323 and 324 read with Section 149 of the Indian Penal Code on the allegations of murdering Chauhal Singh. The Sessions Judge had convicted Ishwar Singh of the offence punishable under Section 302 of the simpliciter whereas other four accused Ilam Singh, Harpal, Brahm Singh and Deep Chand were convicted under Section 302 read with Section 149 and all the five accused were convicted of the offence punishable under Section 323 and 324 read with Section 149 of the Indian Penal Code. In appeal High Court had dismissed the appeal of Ishwar Singh as well as of the other appellants and in view of the absence of the doctor’s opinion as to whether the injury which had caused death was on account of blow of ballam or blow of bhala was not clarified by the doctor and therefore, Ishwar Singh’s conviction under Section 302 was not upheld. But in the said case the earlier decision of the Apex Court in Kartarey v. State of U.P., , was referred and principles laid down in the same were quoted as under :-
“It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in the course of justice.”
If the evidence in the instant case is considered then it would be quite clear that no doubt Dr. D. N. Sharma was not shown the weapons and his opinion was not sought. If his evidence is seen then it would be quite clear that he is not at all cross examined by any of the appellants as well as the acquitted accused. Dr. Sharma had clearly deposed that all injuries found by him were ante mortem and the injuries Nos. 1, 4, 5, 6, & 7 on the body of Vinod Kumar were caused by sharp edged weapons. Then as regards the injuries on the body of Bodh Raj Dr. Sharma has deposed that he had found that all the injuries found on the body were ante mortem and the injuries Nos. 4 to 10 were caused by sharp alleged weapons and the injury No. 6 was sufficient in the ordinary course of nature to cause death. That opinion of Dr. Sharma is not also challenged. As per the case of the prosecution and the evidence on record the appellants in Appeal Nos. 71/92 and 91/91 in furtherence of common intention of all the four appellants had stabbed to death the two persons. Therefore, in the circumstances of the case and the evidence on record the failure of the prosecution to seek the opinion of the doctor with regard to particular weapons used in stabbing the said two persons could not result into rejecting the prosecution case.
23. No doubt as per the evidence of prosecution witnesses appellant Raj Kumar alias Raju had not actually given blows of any weapon; on any of the two deceased, but the evidence clearly shows that he was present along with appellant Mahinder and other two accused when all the four of them appeared in front of first informant Vinod Kumar and two deceased. The evidence further shows that after going in front of them appellant Mahinder had taken out the knife in his hand and had given threats to the deceased Bodh Raj to finish him. Thereupon Bodh Raj and others started to run away. They were chased by these appellants Raj Kumar alias Raju and Raj Kumar caught hold of Bodh Raj and he saw that Bodh Raj was given blows of their weapons in their hands by appellants Prem Chand and Mahinder. Therefore in these circumstances, it is quite clear that appellant Raj Kumar alias Raju was sharing the common intention of appellants Prem Chand and Mahinder to cause death of Bodh Raj. Therefore, he has been rightly held guilty of the offence punishable under Section 302 read with Section 34 of the India Penal Code.
24. Thus we are of the opinion that the trial Court was quite justified in accepting the ocular evidence of the three eye-witnesses to the incident in question. The trial Court was thus justified to come to the conclusion that the two deceased were attacked by appellants Prem Chand, Mahinder and Kamal Singh in furtherence of common intention of them as well as appellant Raj Kumar alias Raju had caused the murders of Vinod Kumar and Both Raj. We do not find any reasons to differ with the finding of the trial Court in this respect. We, therefore, hold that the present appeals deserve to be dismissed and that the order of conviction and sentence passed by the trial Court are liable to be confirmed.
25. Thus all the three appeals are dismissed. The orders of conviction and sentence passed by the trial Court against the appellants are confirmed. Appellants be informed through jail authorities.
26. Appeals dismissed.