JUDGMENT [ENTITY], J.
1. Instant appeals stem from the judgment dated August 22, 1996 of the learned Sessions Judge [ENTITY] in [CASE NUMBER] whereby the appellants [ENTITY] and [ENTITY] were convicted and sentenced as under-
[ENTITY] U/[SECTION] 1[ACT] to suffer imprisonment for life and fine of Rs. 500/-in default to further undergo three months S.I. [ENTITY] U/[SECTION] [ACT] to suffer imprisonment for life and fine of Rs. 500/-in default to further undergo three months S.I. U/[SECTION] [ACT] one year R.I. and fine of Rs. 100 in default to further suffer one month S.I. Acquittal of other four accused [ENTITY]. [ENTITY], [ENTITY] and [ENTITY] has however been assailed by the State of [ENTITY].
2. Incident giving rise to these appeals as per [ENTITY] of injured [ENTITY] occurred on June 6, 1994 at 9.45 a.m. when on his shop Arpan Garments [ENTITY] was sitting alongwith his father [ENTITY] (deceased), brother [ENTITY] (injured) and uncle [ENTITY] (deceased), suddenly [ENTITY], [ENTITY], [ENTITY] and two other persons-entered the shop and [ENTITY] dragged [ENTITY] out of the shop and inflicted blow with '[ENTITY]' on his back and [ENTITY] pierced [ENTITY] on the right side of his chest. When attempt to save [ENTITY] was made by [ENTITY], [ENTITY], [ENTITY] and [ENTITY], they were also assaulted by the accused with [ENTITY] and Knife. [ENTITY] fell down and was taken to the Hospital where he was declared dead. Police Station Man Town on the basis of said [ENTITY] registered a ease bearing FIR No. 160/94 under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] and Investigation commenced. Site was inspected autopsy on the dead body of [ENTITY] was conducted, injured were medically examined. Blood smeared soil was recovered and [ENTITY] of [ENTITY] was recorded. [ENTITY] also died on June 7, 1994 and dead body of [ENTITY] was subjected to post mortem. Statements of witnesses were recorded, accused were arrested and at their instance weapons allegedly used in offence were recovered. On completion of investigation charge sheet was fifed. In due course the case came up for trial before the learned Sessions Judge, Sawai Madhppur. Charges under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] were framed against the accused, who denied the charges and claimed to be tried. The prosecution examined as many as 27 witnesses and exhibited 50 documents. In the explanation under [SECTION] [ACT] the accused claimed innocence and stated that they were falsely implicated. Four witnesses in defence were examined by the accused and 10 documents were got exhibited. On hearing final submissions learned trial judge convicted and sentenced the appellants [ENTITY] and [ENTITY] but acquitted [ENTITY], [ENTITY], [ENTITY] and [ENTITY] as indicated hereinabove.
3. At the outset it may be noticed that superstructure of the prosecution case is built on the central evidence of three eye witnesses namely [ENTITY] (PW.7), [ENTITY] (PW. 8) and [ENTITY] (PW.9). This evidence is sought to be corroborated by dying declaration of deceased [ENTITY] (Ex.P. 17) and Ex.P. 18) and the testimony of [ENTITY] (PW.25) who investigated the case and recovered the weapons of the offence at the instance of the accused.
4. Deceased [ENTITY] as per post mortem report (Ex. P.22) sustained following antemortem injuries-
(i) Stab wound 1cm. x 1/2 cm. on upper right chest.
(ii) Abrasion 3 cm. x 1/2 cm.-6 cm. below injury No. 1 on right side of chest.
(iii) Abrasion 2cm. x 1cm. left elbow
(iv) Abrasion 4.5cm. x 1/4 cm. right arm.
(v) Slab wound 2cm. x 1/2cm. on right shoulder.
(vi) Stab wound 1.5cm. x 1/2 cm. x 1cm. on the right scapular region.
(vii) Stab wound 1 cm. x 3/4cm. leading inside the thoracic cavity (left side)
(viii) Stab wound 1 cm. x 1/2cm. x 3/4 cm. obliquely placed on back.
Injuries No. 1 and 7 were instantaneously dangerous to fife and sufficient to cause death in the ordinary course of life.
5. Injuries sustained by [ENTITY] were examined on June 6, 1994 vide injury report Ex. P. 15, according to which two injuries were found on his person. Injury No. 1 was lacerated wound 4 cm. x 3/4 cm. x 3/4 cm. bone deep obliquely vertical on left frontol region of scalp and injury No. 2 was stab wound 1cm. x 1/2 cm. leading inside the abdominal cavity. It was stated in the injury report that injured was fit to give oral statement. [ENTITY] died on June 7, 1994. As per his autopsy report (Ex. P. 20) antemortem stab wound on the left side of abdominal was found dangerous to life and sufficient to cause death in ordinary course of life.
6. [ENTITY] (PW.8) received following injuries as per his injury report (Ex.P.12)-
(i) Stab wound 1 cm. x 1/2 cm. x 1 cm. vertically on anterior surface of left chest 2 cm. below left nipple.
(ii) Incised wound 1/2cm. x 1-1/3 cm. x 1/3 cm. vertically on right back scapular region.
(iii) Linear abrasion 5cm. x 1/4 cm. on right side of chest.
(iv) Bruise 3cm. x 3/4cm. on left back.
(v) Lacerated wound 3cm. x 1/2 cm. x 1/4 cm. on right palmier surface.
7. [ENTITY] (PW. 7) sustained one stab wound 1cm. x 1/2 cm. x 1 cm. over left lateral surface of chest. Vide injury report (Ex. P.11).
8. A look at the impugned judgment of the learned trial court goes to show that it has not placed any reliance on the testimony of [ENTITY] (PW. 9) and his evidence was rejected in toto. We have also critically analyse the statement of [ENTITY] and we find that his presence at the time of incident could not be established by the prosecution beyond reasonable doubt. This witness was not named in the FIR and his testimony has been shattered in the cross examination.
9. That takes us to the testimony of [ENTITY] (PW.7) and [ENTITY] (PW.8) who according to prosecution received injuries while making attempt to save deceased [ENTITY]. Mr. [ENTITY] learned senior counsel canvassed that so called [ENTITY] (Ex.P. 10) of [ENTITY], being post investigative document, is hit by [SECTION] [ACT] and it cannot be treated as FIR of the occurrence. [ENTITY] was recorded at 11.15 a.m. much after the commencement of investigation. Dr. [ENTITY] (PW. 11) had examined [ENTITY] at 10.35 a.m. and [ENTITY], I.O. (PW.25) in his deposition stated that he got the injured [ENTITY], [ENTITY] and [ENTITY] medically examined in the course of investigation. In his cross examination he deposed that he entered the telephonic message in the diary at 10.30 a.m. that three persons who had received injuries in a quarrel were admitted in Hospital and one another person had died. He proceeded to Hospital and paid first attention to injured [ENTITY] whose condition was very serious. [ENTITY] (PW.8) also stated that the I.O. on coming to hospital first rushed to [ENTITY] and made inquiry from him. [ENTITY] (PW.7) also deposed that police when reached to the hospital had first talk with [ENTITY]. Learned counsel Mr. [ENTITY] further contended that [ENTITY], the scribe of [ENTITY] (Ex.P. 10) was not examined by the prosecution. The FIR was sent to Ilaqe Magistrate next day of the incident whereas distance between the Police Station and the Court was very short. All this goes to show that after due deliberations false case was concocted against the appellants.
10. Mr. [ENTITY] learned Senior Counsel next urged that witness [ENTITY] (PW. 7) and [ENTITY] (PW. 8) did not receive the injuries in the incident occurred with the deceased [ENTITY] and [ENTITY]. Duration of injuries sustained by them does not match with the duration of the injuries received by the deceased. Learned counsel on the basis of contradictions of their previous statements made an attempt to impair the credit of these witnesses. Drawing our attention to the cross examination of both these witnesses, learned counsel contended that they had not seen appellants [ENTITY] and [ENTITY] injuries on the person of [ENTITY] as both these witnesses admitted that after [ENTITY] fell down they turned their attention towards him. Both the witnesses indulged in making deliberate lies. They were found false qua the charges under [SECTION] and [SECTION] [ACT][ACT] and also qua the incident with deceased [ENTITY]. Substratum of prosecution case has been knocked out. [ENTITY] did not make any reference of '[ENTITY]' in his statement (Ex.P.17). Recoveries of weapons were fake and planted. Third degree methods were used by the police and the appellants were severally beaten for the purpose of extracting information. Weapons were not found stained with blood. [ENTITY] was allegedly recovered from the safe custody (Almirah). [ENTITY]es were never produced or shown to Dr. [ENTITY] in the court. The incident does not get corroboration from the site plan as no blood was found on the place of occurrence. The evidence of prosecution according to learned counsel consists of only chaff and the question of separating chaff from the grain would not arise. Reliance is placed on various authorities that shall be considered in the later part of the judgment,
11. Per contra Mr. [ENTITY] learned P.P. supported the conviction of [ENTITY] and [ENTITY] and canvassed that acquittal of other four accused was not justified and the prosecution had established the charges against them.
12. On a close scrutiny of material on record we find mat in the [ENTITY] (Ex. P.10) [ENTITY] (PW.7) attributed injuries on the back and on the right side of chest of deceased [ENTITY] respectively to [ENTITY] and [ENTITY]. The injuries were allegedly caused with [ENTITY]es. [ENTITY] is alleged to have inflicted injury with knife to [ENTITY]. [ENTITY] also caused injuries to [ENTITY] and [ENTITY] and [ENTITY] gave [ENTITY] blow on the stomach of deceased [ENTITY]. In his deposition before the trial court [ENTITY] almost repeated the version narrated in the [ENTITY] with slight improvement. In the [ENTITY] it was not stated that at which part of the body of [ENTITY], the injury was caused by [ENTITY] whereas in the statement before the trial court [ENTITY] is alleged to have caused injury by knife on the right side of chest of [ENTITY]. [ENTITY] (PW. 8) also stated that [ENTITY], [ENTITY] and [ENTITY] inflicted injuries to [ENTITY]. [ENTITY] caused injuries with knife to [ENTITY] and him ([ENTITY]). Witness [ENTITY] and [ENTITY] were subjected to searching cross examination and the defence was successful in extricating this fact in the cross examination that the witnesses turned their attention towards [ENTITY] only when he fell down. There are other discrepancies also in the testimony of these witnesses but they are not so incompatible with the credibility of their version and we find unable ourselves in jettisoning their evidence on that count. We have closely scanned their testimony from the point of view of trustworthiness and we find that they were very much present at the time of incident and received serious injuries in the course of the incident. It is fallacious to suggest that as duration of injuries did not match, the presence of these witnesses at the time of incident becomes doubtful. It is established on record that [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were simultaneously taken at the Hospital and [ENTITY] and [ENTITY] were admitted in the same ward. If there is a difference in time of their medical examination it hardly makes any difference.
13. "When an eye witness is examined, observed the Hon'ble Supreme court in [PRECEDENT], at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can necessarily make his testimony totally non discrepant. But court should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is unrealistic approach for judicial scrutiny."
The ocular testimony of [ENTITY] (PW.7) and [ENTITY] (PW. 8) finds support from the corresponding injuries on their person. [ENTITY] sustained one stab wound over left lateral surface of chest, so also [ENTITY] received as many as five injuries including stab wound and incised wound over chest and back scapular reason. If any independent witness is not associated, it does not render the testimony of [ENTITY] and [ENTITY] unreliable. We find their testimony honest and true and we do not feel inclined to disbelieve their evidence on mere variations falling in the narration of occurrence. In [PRECEDENT], it was held that nephew of the deceased who had suffered grievous injuries in the occurrence was a natural and stamped witness. In [PRECEDENT], it was indicated that the presence of witness who received injuries during course of incident, can not be doubted. Where there are number of injuries on the deceased and the witnesses have given some details about the manner in which they were inflicted each witness cannot be expected to note the details in seriatem. [PRECEDENT], was the case wherein Hon'ble Supreme Court observed that presence of the injured witnesses at the scene of occurrence cannot be doubted and being victim themselves they would not leave out real assailants and substitute them with innocent persons.
14. Their Lordships of the Supreme Court in [PRECEDENT], [PRECEDENT], and [PRECEDENT], propounded that failure of Investigating Officer to collect blood stains or notice blood at the spot by itself is not an infirmity. It is not proper to conclude that the incident did not happen at that spot at all when testimony of eye witnesses showing that the incident had occurred at that place. We thus find no force in the argument of learned counsel that the incident had not occurred at the place shown by the Investigating officer.
15. We are also not impressed by the submissions of Mr. [ENTITY], learned Senior Counsel that [ENTITY] (Ex.P.10) of [ENTITY], cannot be treated as FIR being post investigative document and it is hit by [SECTION] [ACT] Assertion of [ENTITY] I.O. (PW.25) that he got the injuries of [ENTITY], [ENTITY] and [ENTITY] medically examined during the investigation and that after entering the telephonic message in the diary at 10.30 a.m. rushed to the hospital and approached [ENTITY] at the outset, does not support this argument that investigation had already commenced. Only injuries sustained by [ENTITY] were examined by the doctor at 10.35 a.m. and if [ENTITY] (Ex.P.10) was recorded at 11.15 a.m., it does not mean that after examination of [ENTITY], [ENTITY] became a post investigative document. The FIR was sent to Ilaqa Magistrate next day of the incident and this fact does not go to show that after due deliberations false case was concocted against the accused. This may only be treated as a lapse on the part of the Investigating officer. Their Lordships of the Supreme Court in [PRECEDENT], indicated that the Japses on the part of the investigating officer should not be taken in favour of the accused. The prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not.
16. Coming to the evidence of dying declaration of the deceased [ENTITY] it may be noticed that he belonged to village Jahangirpur and came to meet his nephew [ENTITY] (deceased). According to his statement (Ex.P.17) given to the Magistrate on June 6, 1994 at 1.15 p.m. he wanted to go back to Jahangirpur by Katta (a small train) that was to leave [ENTITY] around 10 a.m. but incident had occurred at about 9.30 a.m. He was the stranger at [ENTITY] and acquainted with few persons. On being asked as to who killed [ENTITY], [ENTITY] replied that he did not know as he was outsider. He also stated that no body had enmity with him and he sustained injury when he made attempt to save [ENTITY]. He attributed his injury to one [ENTITY] but in his statement (Ex.P.18) recorded by I.O. at 2 p.m. he corrected his mistake and deposed that it was [ENTITY], who inflicted knife blow on his stomach, name of [ENTITY] was wrongly stated by him to the Magistrate. Learned trial judge granted benefit of doubt to accused [ENTITY] on the ground that as per the dying declaration (Ex.P.17) [ENTITY] was the author of injury caused to [ENTITY] and possibility of false implication of [ENTITY] could not be ruled out. Learned trial judge disbelieved the testimony of [ENTITY] (PW.7) and [ENTITY] (PW.8) qua [ENTITY] and held that [ENTITY] was falsely implicated by the interested witnesses as he was the real brother of [ENTITY] and [ENTITY].
17. We find ourselves unable to agree with this finding of the learned trial judge that evidence of [ENTITY] and [ENTITY] qua accused [ENTITY] is untrustworthy. As already noticed, [ENTITY] and [ENTITY] categorically deposed that [ENTITY] shared common object with [ENTITY] and [ENTITY] and came to the place of incident armed with knife and caused serious injuries to [ENTITY], [ENTITY] and [ENTITY]. Even after searching cross examination testimony of [ENTITY] and [ENTITY] could not be shattered. Their testimony finds support from their injury reports according to which [ENTITY] received one stab wound over left lateral surface of chest and [ENTITY] sustained stab wound and incised wound on his chest and back scapular region. Their testimony cannot be disbelieved on the ground that deceased [ENTITY] who was an out sider, did not name [ENTITY] in the dying declaration particularly when the deceased [ENTITY] stated that he did not know the assailants of [ENTITY] as he was an outsider. Learned trial judge ought not have given too much importance to the dying declaration of [ENTITY], who was totally stranger to the assailants. It was not a realistic approach on the part of the learned trial judge to give benefit of doubt to [ENTITY] on the basis of dying declaration of [ENTITY], who was an outsider.
18. Conduct of [ENTITY], [ENTITY] and [ENTITY] as unfolded during the course of incident demonstrates that all the three had common intention which animated them to commit a criminal act in furtherance of such intention. From the evidence it is established that there was a premeditated concert to kill [ENTITY]. [ENTITY] pulled [ENTITY] out of the shop and he and [ENTITY] gave [ENTITY] blows on his person. [ENTITY] also inflicted knife blow and when [ENTITY], [ENTITY] and [ENTITY] made attempt to intervene they were also attached.
19. In so far charges levelled against accused [ENTITY], [ENTITY] and [ENTITY] are concerned, the prosecution could not establish their participation in the offence beyond reasonable doubt and they were rightly acquitted from all the charges.
20. Ratio indicated in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] (12) and [PRECEDENT], is not applicable to the facts of the instant case.
21. In [PRECEDENT], it was propounded by their Lordships of the Supreme Court in para 19 that-
"We are quite aware of the principle that in a country like India where it is difficult to find witness who has not made any embellishment or exaggeration and therefore, in such case court would be justified in separating the chaff from the grain and then act upon the grain. But where the evidence consists of only chaff, as in the present case, question of separating chaff from the grain would not arise. Then again when all the eye witnesses suffer from the same infirmities as has been discussed by us, question of one corroborating the other would not arise. If a witness is partly reliable and partly unreliable then one may look for corroboration to the reliable part of the ocular version of a witness. But if a witness is wholly unreliable as has been assessed by us, the question of corroboration does not arise."
In the case on hand as already assessed by us, [ENTITY] (PW.7) and [ENTITY] (PW.8) are wholly reliable witnesses and the prosecution evidence conclusively-established that [ENTITY], [ENTITY] and [ENTITY] were the perpetrators of the crime. We find the recovery of weapons used in commission of offence, at the instance of [ENTITY], [ENTITY] and [ENTITY], established from the material on record.
22. In so far as injury caused on the stomach of [ENTITY] by [ENTITY] is concerned, the learned trial judge disbelieved the testimony of [ENTITY] on the ground of contradiction in the statement of [ENTITY] and [ENTITY]. [ENTITY] inflicted knife blow on the left side of his stomach whereas [ENTITY] deposed that injury on the left side of stomach of [ENTITY] was caused by [ENTITY] with [ENTITY]. We find this approach of the learned trial judge as not based on proper scrutiny of record. In the beginning of his examination in chief [ENTITY] specifically stated that [ENTITY] was armed with knife and if in a later part of statement he by mistake had used the word '[ENTITY]' in place of 'knife' it will not be treated so incompatible with the credibility of his version so as to reject his evidence qua the injury caused to [ENTITY]. We are unable to uphold the acquittal of [ENTITY] and hold the acquittal of [ENTITY] and hold him guilty, under [SECTION] and [SECTION] [ACT].
23. For the reasons aforementioned we see no merit in [CASE NUMBER] preferred by the Appellants [ENTITY] and [ENTITY] and it accordingly stands dismissed. The conviction and sentence awarded to them by the learned trial judge shall stand confirmed. Criminal Appeal No. [SECTION]/1997 filed by the Stale of [ENTITY] is allowed in part. While setting aside the impugned judgment of acquittal of accused [ENTITY] we convict and sentence him as under-
U/[SECTION] [ACT] to suffer imprisonment for life and fine of Rs. 500/- in default to further undergo three months simple imprisonment.
U/[SECTION] [ACT] to suffer one year rigorous imprisonment and fine of Rs.100/- in default to further suffer one month simple imprisonment.
The sentences are to run concurrently and the period already spent in custody shall be deducted. Accused [ENTITY] is on bail, he shall surrender to serve out the sentence. Warrants of arrest shall be issued against him to take him in custody forthwith.
The appeal of the State of [ENTITY] qua the accused [ENTITY], [ENTITY] and [ENTITY] is dismissed.