JUDGMENT
K.C. Sharma, J.
1. Both the appeals, one by accused appellant Chhitar against his conviction and sentence and another by State against acquittal of respondents Abdul Haleem and Rafiq arise out of the judgment and order dated 15.12.1998 passed by the learned Sessions Judge, Kota in Sessions Case No. 88/95. Therefore, both the appeals are decided by a common judgment.
2. On 13.11.94 at 9.45 AM, PW 12 Virendra Jakhad, SHO, Police Station, Vigyan Nagar, Kota recorded Parcha Bayan of injured Hamendra Dwivedi while injured was admitted in M.B.S. Hospital, Kota. In his Parcha Bayan, injured Hamendra stated that Shanker Lal Teli (accused respondent) was tenant in their house and had not paid rent for last six months. The accused and his mother were avoiding payment of rent on one pretext or the other. On 17.10.94 when they were asked to vacate the house, accused Shanker Lal, Chhitar Teli, his servant Kailash along with 3-4 others came to the house and threatened him to kill, of which a report was also lodged at Police Station Gumanpura and Shri Khurana, Circle Officer was also informed of the same, who in turn, had also visited his house. The injured further stated that the accused had also sat at are the doors of the rooms of his house on 1.11.94 and 6.11.94. These incidents were also reported to the police. The injured having disclosed some more instances, stated that on 13.11.94 at about 7.00 AM his brother Karmendra (since deceased) had gone to Meghdoot Hotel, who was working as Manager in the said Hotel. At about 7.30 AM he left for Hotel Meghdoot to collect the Moped. Soon he reached in front of the hotel, he found that accused Chhitar, Shanker and 5-6 others were forcibly taking out by pulling his younger brother Karmedhra from reception. Chhitar and Shanker had knives in their hands. He saw accused Chhitar and Shanker inflicting numerous knife blows on the person of his brother. When he rushed to save his brother, accused Chhitar struck a knife blow near his neck with an intention to kill him. As per Parcha Bayan, injured Hamendra managed to escape from the scene, but his younger brother Karmendra was lying there in badly injured condition. Injured Hamendra then came to his house and informed his father of the incident. Thereafter, his father took both the injured to Hospital. Karmendra succumbed to the injuries in the hospital. Lastly, it was stated that Chhitar and Shanker along with their 5-6 associates murdered his brother and caused injuries to him.
3. On the basis of above Parchas Bayan, Ex. P. 1, a criminal case vide FIR, Ex. P. 5 was registered at Police Station Vigyan Nagar, Kota on 13.11.94 at 10.10 AM. The SHO prepared memo Ex. P. 23 showing the condition of dead body and prepared inquest report Ex. P. 34. He seized the blood stained shirt, trouser, baniyan, underwear and sweater of the deceased vide Ex. P. 25. He got conducted autopsy on the dead body by PW 9 Dr. Rakesh Sharma and collected the post mortem report Ex. P. 15. He also got the injures of Hamendra examined and collected injury report, Ex. P.16. The cloths of injured Hamendra, which he was wearing at the time of incident were also seized on 14.11.94 vide memo Ex. P. 2. In the course of investigation, the SHO rushed to the place of incident and prepared site plan Ex. P. 7 and its details, Ex. P.26 in the presence of PW 5 Mahendra. He collected blood stained soil and prepared memo Ex. P.8.
4. Accused Shanker and Chhitar were arrested on 16.11.94 vide arrest memos Ex. P. 28 and P. 29, respectively, while accused Mohd. Rafiq and Abdul Haleem were arrested vide memos Ex. P. 30 and P.31. Accused Shanker and Chhitar gave informations (Exs. P32 and P33 respectively) under Section 27 of the Evidence Act for getting the knives recovered. Pursuant to the above informations, the SHO recovered a knife vide memo Ex. P. 11 at the instance of accused Shanker and another knife vide memo Ex. P. 12 at the instance of accused Chhitar. On 28.1.95, the SHO sent the seized items to the Forensic Science Laboratory, along with PW 10 Deshraj Singh, who collected receipt, Ex. P17. The FSL report is Ex. P. 18.
5. Having completed investigation, the SHO submitted a charge sheet against accused Shanker, Chhitar, Abdul Haleem and Mohd. Rafiq in the court of learned Additional Chief Judicial Magistrate No. 1. The learned Magistrate, having found the case exclusively triable by the court of Sessions, committed the case to the court of Sessions.
6. The learned Sessions Judge, on the basis of evidence and material collected during trial and placed before it and after hearing counsel for the parties, framed charges against the accused persons under Sections 302 in alternate under Section 302/149, 307, 307/149, 147, 148 and 149 IPC. The accused denied the charges and claimed trial. In support of its case, the prosecution examined as many as 14 witnesses and got exhibited some documents. Thereafter, the accused were examined under Section 313 Cr.P.C. In defence, the accused examined 6 witnesses.
7. At the completion of trial, after perusal of evidence and material on record and hearing counsel for the parties, the learned trial Judge did not find the charges established beyond reasonable doubt as against accused Abdul Haleem and Mohd. Rafiq and accordingly acquitted them of the offences charged with. However, the learned trial Judge convicted accused appellant Chhitar for offence under Sections 302/34 and 324IPC and sentenced him to undergo life imprisonment with a fine of Rs. 10000/-, in default thereof, to further undergo imprisonment for 3 years on the first count and to undergo rigorous imprisonment for 3 years on the second count. Hence these two appeals, one by appellant Chhitar against conviction and another by the State against acquittal of accused Abdul Haleem and Mohd. Rafiq. Accused Shanker absconded during trial.
8. We have heard learned counsel for the parties and have carefully gone through the judgment under appeal and the evidence and material on record.
9. In assailing the conviction of appellant Chhitar, learned counsel has strenuously contended that the recovery of weapon of offence at the instance of accused appellant is not of any consequence since the alleged weapon was not put for its identification in the identification parade and, therefore, the use of knife to inflict injuries on the persons of Karmendra and Hamendra becomes highly doubtful. In support of his argument learned counsel has relied upon a decision of this court in Narain v. The State of Rajasthan (1).
10. We have considered the above arguments and have gone through the case law cited at the bar. Having tallied the facts involved in the present case with the facts in Narain’s case (supra) we are of the firm view that it has no application to the facts of this case. In Narain’s case (supra), the prosecution witness Shiv Lal had categorically deposed that police recovered the axe stained with blood from the place of incident, while the Investigating Officer deposed that he recovered the axe in consequence of the information furnished by the appellant. Therefore, the Division Bench of this court was of the view mat the story of the axe having been found buried under-ground near the back side wall of the Saal of the appellant and of having been taken out by the appellant and produced before the Police in consequence of his information recorded under Section 27 of the Evidence Act was highly incredible and palpably false. As such, there was considerable doubt as to the recovery of axe from the place and in the manner alleged by the prosecution. It was in this background that the Division Bench of this court observed as under:
“. . .. Apart from this, there is no evidence to show that this axe was put up for identification in a test parade prior to its production in the court and it was got identified in the parade by some identifying witnesses to be of the appellant. Hence the circumstance of the blood stained axe is of no value”.
11. In the case at hand, the recovery of knife in pursuance of the information furnished by Chittar, from his house stands proved from the statement of PW 7 Abhishek Pokharna and PW 12 Virendra Singh Jakhar. PW 7 Abhishek has categorically deposed that the police took him along with Chhitar to the house of accused Chhitar. Accused Chhitar himself took out the knife kept in the ventilator and handed it over to the police and the police, in turn, seized and sealed the same in a cloth and prepared a seizure memo Ex. P. 12, which bears his signature. PW 12 Virendra Singh Jakhar has deposed that after arrest, accused Chhitar furnished information as regards recovery of knife. Accordingly, he prepared information memo Ex. P.33, which bears his signature from ‘A’ to ‘B’ and the signature of accused from ‘C’ to ‘D’. He further stated that pursuant to the said information, accused Chhitar got recovered a knife from his house and he prepared a seizure memo Ex. P. 12, which bears his signatures from ‘C’ to ‘D’. He also prepared site plan, Ex. P.13 of the place from where accused got recovered the knife, which bears his signature from C to D and the signature of Chhitar from ‘G’ to ‘H’.
12. In this view of the matter, the: recovery of knife, Ex. P.12 at the instance and on the information of accused Chhitar stands proved and therefore, the first argument advanced by the counsel for the appellant is devoid of merit and hence rejected.
13. The argument of the learned counsel that the recovered weapon of offence ought to have been shown to PW 9 Dr. Rakesh Sharma to have his opinion that injuries found on the person of dead body could have been the result of the weapon like the recovered weapon, is also of no consequence. PW 9 Dr. Rakesh sharma has categorically deposed that injuries found on the person of deceased could have been caused by knife. In these circumstances, had the knife been shown to this witness, there could not have been opinion different that what he has deposed in his statement. We have also gone through the decision of the Apex Court in Ishwar Singh v. State of U.P. (2), relied upon by the counsel for the appellant. It appears that in Ishwar Singh’s case (supra), the eye witnesses of the incident deposed that Ishwar Singh accused struck the deceased with a ‘ballam’ and a ‘ballam’ was recovered from the house of Ishwar Singh. It had also come in the evidence that one ‘bhalla’ was also recovered from the house of Harpal. The Medical Jurist who conducted autopsy did not know the difference between ‘ballam’ and ‘bhalla’. In this context, their Lordships of the Supreme Court in Ishwar Singh’s case (supra) observed that:-
“Had the doctor seen the weapons seized from the houses of Ishwar Singh and Harpal, it might have been possible for him to say which of them caused the injury.”
14. Whereas, in the presence case no such situation has arisen as PW 9 Dr. Ramesh Sharma has specifically deposed that injuries could have been caused by knife. Therefore, Ishwar Singh’s case being on different footing is also of no help to the accused appellant.
15. It is next contended by the counsel for the appellant that the learned trial court has committed serious error in relying upon the report Ex. P. 18 of the Forensic Science Laboratory. He submitted that a perusal of FSL report would make it clear that there was presence of human blood group ‘B’ on the T-shirt and Baniyan of injured. Hamendra, while in seizure memo, Ex. P.2 itself it is mentioned that T-shirt and Baniyan were washed of this background it was contended that the FSL report cannot be read against the accused appellant. Reliance was placed on State of Rajasthan v. Pooran and Ors. (3), wherein it was held that where it has not been mentioned in the recovery memo that Fawra was blood stained, the report of Serologist cannot be read against the respondents. No doubt true that in seizure memo, Ex. P. 2 it is mentioned that the cloths were washed off before handing over to the police and further it is not mentioned that T-shirt and Baniyan were stained with blood. Therefore, it casts a shadow of doubt on the report of Serologist as regards the presence of blood of ‘B’ group on T-shirt and Baniyan. Be that as it may, the report of Serologist regarding presence of blood of ‘B’ group on the cloths of deceased viz., Pent, Baniyan, underwear, kameej (open shirt), blood swab collected from the place of incident and the blood found on the knife recovered from accused Chhitar cannot be doubted as the memo Ex. P.8 concerning blood swab from collected from the place of incident, memo Ex. P12 regarding recovery of knife and the memo Ex. P.25 regarding seizure of cloths of deceased clearly indicated the presence of blood on these items. Further, the sweater of deceased also found to be stained with blood. However, blood group could not be ascertained on it as it being disintegrated.
16. Having gone through the judgment under appeal it appears that the trial court has not relied upon the testimony of eye witnesses, namely, PW 2 Pradhuman Singh and PW 4 Yash Khandelwal on the ground that their names were not mentioned in the Parcha Bayan of injured Hamendra and further the witnesses were found to be interested witnesses. The reasons assigned by the trial court for discarding the testimony of two eye witnesses do not appeal to us. The incident happened on 13.11.94. The statement (Ex. D2) of injured Hamendra under Section 161 Cr.P.C. was recorded on the same day after recording his Parcha Bayan, Ex. P.1, wherein injured Hamendra has mentioned the names of these two witnesses who had witnessed the incident. Secondly, the statements of these two eye witnesses cannot be discarded merely on the basis of friendship of witness Pradhuman with Jitendra younger brother of deceased. On careful scrutiny, we found the testimony of these two eye witnesses reliable and worthy of credence because they had a purpose to be there at the place of incident. Eye witness Pradhuman Singh was willing to purchase a jeep and therefore, he along with another eye witness Yash Khandelwal went to Meghdoot Hotel to meet Karmendra.
17. With a view to arrive at a just conclusion, we would like to discuss the relevant ocular and documentary evidence. In the earlier part of his statement PW 1 Hamendra, injured eye witness has deposed that on 13.11.94 at about 7.00 AM his brother Karmendra (since deceased) had gone to Meghdoot Hotel. At about 7.30 AM he left for Hotel Meghdoot to collect the Moped No, RJ 20/8350. Soon he reached at the gate of the hotel, he found that accused Shanker Lal, Chhitar @ Chhotya, Rafiq and Aleem were forcibly taking out by pulling his younger brother Karmedhra from reception. He found accused Chhitar and Shankar inflicting 5-7 knife blows on his brother Karmendra, as a result thereof, he got badly injured. His brother raised hue and cry and when he rushed to save his brother, accused Chhitar struck a knife blow on his with an intention to kill him. Accused Shanker also inflicted knife blows to him. He further stated that blows struck by accused Shanker touched his T-shirt only, whereas the blow struck by accused Chhitar hit below his neck. According to this witness, accused Rafiq and Aleem had caught hold the hands of his brother and therefore his brother was not in a position to save himself. He stated that Yash Khandelwal and Pradhuman Singh Chauhan had also witnessed the incident. Injured Hamendra managed to escape from the scene, came to his house and informed his father of the incident. When he and his father reached Meghdoot Hotel, they found Karmendra lying there in badly injured condition. In the mean time, Pradhuman hired auto-rickshaw and then he and his father with the help of Pradhuman took Karmendra to Police Station Gumanpura, where the police personnels asked them to go to the hospital.
18. PW 2 Pradhuman Singh has deposed that he had to purchase a jeep and for that purpose Hamendra had called him at his hotel on 13.11.94. He stated that he reached the hotel at 7.30 AM. Soon he reached there, he saw accused Shanker, Chhitar, Rafiq and Haleem pulling Karmendra from the hotel. Thereafter, Shanker and Chhitar took out knives and started inflicting knife blows on the person of Karmendra. The witness was not sure as to which accused struck at which part of the body. However, the witness clarified that accused Chhitar was inflicting blows from front side, while accused Shanker was inflicting blows from back and accused Rafiq and Haleem had caught hold of the deceased. The witness stated that in the course of striking blows, Hamendra had also reached the place of incident. Accused Chhitar also struck knife blows on the chest and neck of Hamendra when Hamendra tried to intervene. Thereafter all the accused ran away. After the accused escaped from the scene, Hamendra rushed to his house and called his father. He hired auto and then all the three left the place and he left for hospital on his scooter.
19. PW 4 Yash Khandelwal happened to be the friend of PW 2 Pradhuman Singh. He reached the house of Pradhuman Singh at 7.10 AM on 13.11.94 at the call of Pradhuman Singh as he had to purchase a jeep and in this context, he had a talk with Pradhuman Singh on 11.11.94. Thereafter, he and Pradhuman Singh reached at Meghdoot hotel and law accused Rafiq and Haleem catching hold of Karmendra, while shanker and Chhitar were inflicting knife blows on the person of Karmendra. Shanker struck blows at the front of Karmendra, while Chhitar struck blows at the his back. The witness stated that accused Chhitar and Shanker also inflicted knife blows to Hamendra when he came running from his house and tried to save his brother Karmendra. Thereafter, they hired auto, wherein Hamendra, Karmendra and their father Rajendra Narain Dwivedi left for hospital and he and Yash Khandelwal reached hospital on a scooter.
20. PW 13 Rajendra Narain Dwivedi, father of the deceased has deposed that accused Shanker and Chhitar were his tenants for last 5-7 years. He wanted the accommodation on rent to be vacated as he had to marry his son deceased Karmendra. A glance at the evidence of this witness, it appears that relations between the parties became strained after the landlord wanted to get the rented premises vacated from accused Chhitar and Shanker. The witness has also narrated some of the incidents of abusing, threatening and causing damages to his property, which took place at the instance of accused Shanker and Chhitar, prior to the present incident. The witness stated that on 13.11.94 at 7.00 AM, Karmendra had left for his duty to Hotel Meghdoot. At about 7.30 – 7.45 AM, his another son Hamendra had gone out to collect ‘moped’ and after a short-while he came back weeping’ and informed him that Shankar, Chhitar, Rafiq and Saleem have murdered Karmendra and he has also sustained injury at the hands of Chhitar. He then immediately rushed to the place of occurrence and found his son lying at the gate of Hotel. On being asked to one-two persons, it was found that there were four accused and they ran away on motor cycle. According to this witness, Yash Khandelwal hired auto-rickshaw and thereafter, he with their help took Karmendra to the hospital.
21. On 13.11.94, PW9 Dr. Rakesh Sharma, Medical Jurist conducted autopsy on the dead body of deceased Karmendra and found four external injuries. In his opinion, the cause of death of deceased was shock as a result of ante mortem sharp penetrating injury to right vertricle of heart. He has certified the post mortem report Ex. P.15. He also examined the injuries of injured Hamendra and found two injuries, one stab wound of the size of 3/4 x 1/2 cm CD just as per injury report Ex. P. 16 above the chest and another abrasion on left elbow. In his statement, Dr. Rakesh Sharma has deposed that he had prepared the post mortem report, Ex. P. 15, which bears his signature. After post mortem, he was of the view that the cause of death was injury to right ventricle, as a result of excessive bleeding. The injury to heart was the result of external injury No. 1. The said injury was sufficient in the ordinary course of nature to cause death. The injuries found on the dead body were inflicted by sharp edged weapon.
22. All these witnesses were subjected to lengthy cross examination and nothing could be elicited from them so as to draw an adverse inference and/or to disbelieve their testimony. Having scanned the evidence as above, we are of the firm view that the presence of two eye witnesses, namely Yash Khandelwal (PW 4) and Pradhuman Singh (PW 2) at the time and place of occurrence cannot at all be doubted. Their presence was natural. It stands proved that PW 2 Pradhuman Singh, who happens to be the friend of Hamendra had to visit Hotel Meghdoot to meet deceased Karmendra Dwivedi for some transaction concerning purchase of some jeep as per pre decided programme. Similarly, the presence of Yash Khandelwal at the place and time of incident was also just natural as is proved from the statement of Pradhuman Singh that Yash Khandelwal being his friend had accompanied him to Hotel Meghdoot as he had to purchase a jeep. Therefore, these two witnesses had every reason to be present at the scene and to have witnessed the incident. The report of the incident was lodged immediately after the incident occurred, with promptness and without sparing any time so as to rule out possibility of any concoction or false implication. That apart, the SHO first recorded the Parcha Bayan of injured eye witness Hamendra and then registered a case. Thereafter he recorded the statement of Hamendra under Section 161 Cr.P.C., Ex. D.2, wherein he has categorically stated the presence of Yash Khandelwal and Pradhuman Singh. Merely because Pradhuman Singh happend to be friend of Jitendra, his evidence cannot be discarded. On a careful scrutiny of the evidence of PW 1 Hamendra Dwivedi, we are of the considered view that the evidence of PW 1 Hamendra, injured eye witness is of sterling worth and worthy of credence and we do not see any reason to discard his testimony. It may also be taken note of that there is cogent evidence on record to establish that appellant Chhitar had the motive behind commission of offence, inasmuch as, prior to the present incident the accused had threatened the members of complainant party and had caused damages to the property, for which reports were also lodged with the police.
23. The prosecution has been able to prove the recovery of knife in pursuance of the information furnished by appellant Chhitar from the room of his house, on the basis of evidence of PW 7 Abhishek Pokharna and PW 12 Virendra Jakhar, investigating Officer. PW 7 Abhishek has categorically deposed that the police took him, along with, Chhitar to the house of accused Chhitar. Accused Chhitar himself took out the knife kept in the ventilator and handed it over to the police and the police, in turn, seized and sealed the same in a cloth and prepared a seizure memo Ex. P.12, which bears his signature. PW 12 Virendra Singh Jakhar has deposed that after arrest, accused Chhitar furnished information as regards recovery of knife. Accordingly, he prepared information memo Ex. P.33, which bears his signature from ‘A’ to ‘B’ and the signature of accused from ‘C’ to ‘D’. He further stated that pursuant to the said information, accused Chhitar got recovered a knife from his house and he prepared a seizure memo Ex. P.12, which bears his signatures from ‘C’ to ‘D’. He also prepared site plan, Ex. P. 13 of the place from where accused got recovered the knife, which bears his signature from C to D and the signature of Chhitar from ‘G’ to ‘H’.
24. The cloths of deceased were seized and sealed by the Investigating Officer and were sent to the Forensic Science Laboratory for serological examination. The report of Serologist (Ex. P.18) regarding presence of blood of ‘B’ group on the cloths of deceased viz., Pent, Baniyan, underwear, kameej (open shirt), blood swab collected from the place of incident and the blood found on the knife recovered from accused Chhitar cannot be doubted as the memo Ex. P. 8 concerning blood swab from collected from the place of incident, memo Ex.P. 12 regarding recovery of knife and the memo Ex.P.25 regarding seizure of cloths of deceased clearly indicated the presence of blood on these items. Further, the sweater of deceased also found to be stained with blood. However, blood group could not be ascertained on it as it being disintegrated.
25. Thus, from the evidence discussed above, it must be concluded that accused appellant Chhitar having common intention with Shanker to cause death of deceased Karmendra went to hotel Meghdoot in the early morning of 13.11.94, forcibly pulled Karmendra out and then inflicted knife blow on his person, thereby causing his death and that appellant Chhitar also caused knife injuries to PW 1 Hamendra when he tried to save his brother Karmendra. The trial court was justified in recording conviction of the appellant under Section 302/34 IPC for causing the death of Karmendra and under Section 324 IPC for causing injuries to Hamendra. The judgment of the trial court, therefore, calls for no interference and deserves to be maintained.
26. Lastly, it has been argued that the prosecution has not been able to pin pointedly prove as to who inflicted the fatal blow causing death of deceased and therefore, the conviction of the appellant under Section 302 IPC cannot be sustained. In support of his argument, learned counsel has relied upon a decision of the Apex Court in Ram Lal v. Delhi Administration (4).
27. We have given our anxious consideration to the above argument and have carefully gone through the case law cited above. In Ram Lal’s case (supra), the prosecution version was that there were two lathi blows on the head of deceased and it could not be ascertained as to who caused the fatal injury. In that case, it was established that the common intention of the accused was to cause grevious hurt only. It was in these circumstances that their Lordships of the Apex Court held that the offence does not travel beyond Section 325/34 IPC. However, in the case at hand, it stands proved beyond any shadow of doubt that accused appellant Chhitar with accused Shanker had the common intention to commit murder of Karmendra and for that purpose he went to Hotel Meghdoot in the early morning, duly armed with knife and inflicted knife blows on the vital part of body of the deceased, after he was forcibly pulled him out. Therefore, the accused appellant had the common intention to cause death of deceased and for that purpose, he inflicted injuries on the person of deceased, which have been proved by PW 9 Dr. Rakesh Sharma, who conducted autopsy. In this view of the matter, the facts of the case cited, above being totally different than those involved in the present case and thus Ram Lal’s case (supra), is of no help to the appellant. It must, therefore, be held that accused appellant Chhitar with Shanker had the common intention to cause death of deceased Karmendra and for that purpose appellant Chhitar and Shanker both came together duly armed with knives and repeatedly inflicted knife blows. Even appellant Chhitar, as stated hereinabove, caused knife injury to PW I Hamendra who tried to intervene and save the deceased. As such the trial Judge was fully justified in holding the appellant guilty of having committed offence punishable under Section 302/34 and 324 IPC for causing death of Karmendra and causing injuries to Hamendra.
28. Now we come to the appeal against acquittal of accused respondents Rafiq and Haleem filed by the State. The learned trial Judge after considering the evidence of PW 1 Hamendra Dwivedi, PW 2 Pradhuman Singh, PW 4 Yash Khandelwal and PW 13 Rajendra Narain Dwivedi came to the conclusion that the prosecution has not been able to prove beyond doubt the participation of two accused respondents in the commission of crime. Having gone through the judgment and the evidence on record, we are also of the considered view that the finding arrived at by the trial court as to the innocence of accused respondents is based on proper appreciation of evidence, both ocular and documentary and also on correct application of mind.
29. On scanning the evidence it appears that Parcha Bayan, Ex.P.1 of injured Hamendra (PW 1) does not contain either the names of accused respondents or their description. Even in cross examination, PW 1 has admitted that he knows accused Rafiq and Haleem only by face. The witness was not even aware of the fact that accused Rafiq was Muslim by caste and he came to know about their names only after their test identification parad in the central Jail. He also denied the fact names of these two accused having been disclosed by PW 2 Pradhuman Singh and PW 4 Yash Khandelwal. PW 13 Rajendra Narain Dwivedi deposed that Hamendra had gone to Hotel to pick up the moped. He returned after a short while and informed that Shanker, Rafiq, Aleem (4 persons) have committed murder of Karmendra and accused Chhitar caused injury to him as well. He then went to the hotel along with Hamendra and found Karmendra lying badly injured. According to this witness, Yash Khandelwal and Pradhuman Singh informed him in the hospital that Rafiq and Haleem had caught hold the hands of Karmendra, while Shanker and Chhitar had inflicted knife blows. The trial court disbelieved this part of his statement that Pradhuman Singh and Yash Khandelwal may have disclosed the names of accused respondents. In their examination in chief, PW 2 Pradhuman Singh and PW 4 have deposed that accused Rafiq and Haleem had caught the hands of Karmendra while Shanker and Chhitar inflicted knife blows, but in cross examination both the witnesses stated that names of Rafiq and Haleem were not known to him. The learned trial Judge has also considered the evidence as regards test identification parade and has arrived at a conclusion that the manner in which the accused respondents were identified in the identification parade was not sufficient to establish beyond doubt that the accused respondents had participated in the commission of offence.
30. For the reasons aforesaid, we are of the view that the prosecution has not been able to establish beyond doubt the participation of accused respondents in the commission of offence and therefore the judgment of the trial court acquitting the accused respondents calls for no interference and deserves to be maintained.
31. In the result, the appeal filed by accused appellant Chhitar is dismissed. The judgment of the trial court convicting accused appellant Chhitar for offence under Section 302/34 and 324 IPC and the sentences awarded thereunder is maintained. The State appeal filed against acquittal of accused respondents Rafiq and Haleem also stands dismissed.