Both the appeals arising out of a common judgment have been argued together and are being disposed of by a common judgment.Present appeals have been instituted under Section 374 of the Code of Criminal Procedure, 1973 (Cr.P.C.) against the judgment dated 10.11.2014 and order on sentence dated 13.11.2014 passed by the Additional Sessions Judge (Trial Court) in Sessions Case 08/2014 arising from FIR 17/2013 Police Station Ambedkar Nagar, by virtue of which both the appellants have been convicted under Section Crl.A. 1702/2014 & 158/2015 Page 1 of 42 302/34 of the Indian Penal Code (hereinafter referred to as IPC) and sentenced to undergo simple imprisonment for life with a fine of Rs.20,000/- each and in default of payment of fine, to further undergo simple imprisonment for one year.A. 1702/2014 & 158/2015 Page 1 of 42The present case pertains to the murder of one Rohit (deceased) at the hands of the appellants and one Asif (declared juvenile in conflict with law JCL)."1. DD No.51-A regarding stabbing of a person near the bus stop of Bus Route No. 521, Sector 5, Ambedkar Nagar, was received in Police Station Ambedkar Nagar on 14.01.2013 and the said DD was marked to ASI Mam Chand for necessary action.After receiving the DD No.51- A, ASI Mam Chand along with Ct.Ram Avtar reached near bus stand 521, the road dividing C and D Block, Dakshin Puri, but could not find any public witness there.Police officials came to know that injured has been taken to hospital in PCR Van.In the meanwhile, staff of the beat also reached the spot.ASI Mam Chand left beat HC Ratan Lal and Ct.Vineet at the spot and proceeded to Trauma Centre, AIIMS with HC Ram Avtar and in the hospital collected the MLC of Rohit Gupta s/o Sh.Rakesh Kumar Gupta, The injured was declared dead in the hospital by the concerned Doctor and no public witness was found at the hospital.ASI Mam Chand came at the spot and found lot of blood there.No public witness was found at the spot.Hence, an FIR u/s. 302 IPC, PS Ambedkar Nagar was Crl.A. 1702/2014 & 158/2015 Page 2 of 42 lodged and investigation was marked to the SHO PS Ambedkar Nagar Inspector Abhay Singh Yadav, the then SHO PS Ambedkar Nagar.The spot was got inspected by the crime team, photographs were taken.Investigating Officer prepared the site plan of the spot.Investigating Officer collected the chappals of the deceased, earth control and blood samples from the spot and got them sealed in sealed pullanda and deposited the same in the police station.Thereafter Himanshu, brother of the deceased, came to the spot and Investigating Officer recorded the statement of Himanshu.Himanshu in his statement u/s 161 Cr.PC stated that he is running a dhaba at Bus Stand Route No. 521, Dakshin Puri and his brother Rohit used to come to his dhaba occasionally to assist him.On 14.01.2013, at about 11 pm when Himanshu and deceased Rohit were in the process of closing the dhaba, accused Raj Kumar @ Lala, Rahul @ Bhuri and Asif, who were known to Himanshu came to the dhaba and demanded food from Rohit.Rohit told them that dhaba has been closed and food is not available.On hearing this accused Raj Kumar and his associates started abusing Rohit.Himanshu intervened and rescued his brother and accused Raj Kumar @ Lala, Rahul @ Bhuri and Asif left the dhaba.After sometime, Himanshu and Rohit closed the dhaba and started going to their house.Himanshu was 20-25 steps ahead of Rohit, when all of a sudden Rohit cried and when Himanshu turned back, he found that Raj Kumar, Rahul and Asif were fighting with Rohit.Himanshu was terribly scared.After sometime, PCR Van came to the spot and took Rohit to Trauma Centre.Himanshu reached Trauma Centre after sometime and found that Rohit was unable to speak and Rohit was declared dead by the Doctor.Himanshu was highly perturbed and stayed outside the hospital for one and half hour.After sometime, when Himanshu became normal, he went to his house and from the house he went to the spot.Himanshu specifically stated in his statement u/s 161 Cr.PC that accused Raj Kumar, Rahul and Crl.Thereafter, Investigating Officer searched for the accused but the accused could not be found.The dead body was got identified by relatives.On 17.01.2013, Investigating Officer received a wireless message that three boys have been apprehended in case FIR No.18/13 and one of those boys is juvenile and those three boys have disclosed their involvement in the present case.On receiving this information, Investigating Officer along with his staff reached big park at H-Block, Dakshin Puri and Inspector Investigation presented the three boys to the Investigating Officer and told him that these three boys have admitted their involvement in the present case.The names of those boys came to be known as Asif, Raj Kumar and Rahul.Asif was found to be juvenile and separate proceedings were conducted with respect to Asif as per the directions of the Juvenile Justice Board.Accused Rahul @ Bhuri and Raj Kumar @ Lala were interrogated by the Investigating Officer and they were arrested in the present case.Accused Raj Kumar got recovered a knife used in the commission of the crime from the H-Block park, Dakshin Puri.chief deposed that his family consists of parents and three brothers including him.Rahul is the eldest brother, the deceased was the middle one, while he is the youngest.On 14.01.2013 at about 11:00 PM, he alongwith his elder brother/deceased were present in their dhaba and were closing down for the day.Three persons, being the appellants and Asif (JCL), came to his dhaba and demanded food to be served, to which his deceased brother declined and told that the Crl.A. 1702/2014 & 158/2015 Page 14 of 42 dhaba had closed for the day.They then started using abusive language and grappled with the deceased.He intervened and rescued his brother.Thereafter, all the three persons left.After 5-10 minutes of their leaving, they closed their shop and started walking towards their home.Somewhere before the park, he heard the cries of his deceased brother.On looking behind, he saw the appellant Raj Kumar stabbing the deceased 4-5 times on his thighs.The other two persons including appellant Rahul were holding his deceased brother.He started shouting due to which the appellants and Asif (JCL) fled away from the spot.He rushed towards the deceased, who was bleeding extensively and had fallen infront of the shop of PW-1 Sharwan.Thereafter, his neighbouring shopkeeper PW-1 Sharwan, who sells flowers, informed PCR officials.PCR vehicle came and took the deceased to Trauma Centre.PW-2 followed them to the Trauma Centre by an auto rickshaw.He was informed by the doctor that his brother had died.He became highly perturbed for 1-1 hour.Thereafter, he returned home and informed his parents as he was not carrying his phone at that time.He alongwith his family returned to the hospital at about 2:30/3:00 AM.His statement was recorded by the police in the hospital.A. 1702/2014 & 158/2015 Page 14 of 42The witness was thoroughly cross-examined, where he stated that he had left the dhaba first and was followed by the deceased.At the time of the incident, there was no public witness around.He had tried to lift his brother up.The deceased had moved in the direction of their shop and had come near the flower shop of PW-1 Sharwan.All other shops in the area were closed and only the flower shop of PW-1 Sharwan was open, who was the first person to come near Crl.A. 1702/2014 & 158/2015 Page 15 of 42 them.The deceased had not stated anything to PW-1 at the time.He remained with the deceased till the PCR vehicle reached the spot and remained at the spot for about 25-30 minutes after PCR van left the spot.Police officials had started investigation when he left for the Trauma Centre.He further stated that he had first taken a lift on motorcycle from a passerby till the corner, from where he had taken an auto rickshaw.He categorically denied the suggestion that he had any conversation with the police officials who had come to the spot before he left for the Trauma Centre.Upon reaching the Trauma Centre, he first saw his brother and on seeing him, became perturbed and came out.He was unable to gather his senses for one and a half hour.It was only later that the doctor had informed him that his brother had died.At the stage, the PCR officials were still in the hospital.His statement was recorded by the PCR officer when he had returned to the hospital after visiting his house.From the hospital, he was taken to the scene of incident and later to the police station.A. 1702/2014 & 158/2015 Page 15 of 42The only other public witness is PW-1 Sharwan Kumar who deposed that he is engaged in the business of selling flowers and has a shop opposite bus stop of route no.521 in the area of Dakshin Puri, New Delhi.A dhaba is run close to his shop by two brothers, namely Himanshu and Rahul along with their father who used to come off and on.On 14.01.2013 at about 11-11.30 PM, he saw deceased Rahul to have come and fallen in front of his flower shop with bleeding injuries.He informed the police on 100 number from his mobile 9716078703 and informed the Police officials.The deceased was drenched in blood.Thereafter, Police reached the spot.His statement was recorded by Police after a week or 10 days.A. 1702/2014 & 158/2015 Page 16 of 42During cross-examination, he denied the suggestion that he had disclosed the name of the deceased to the police officials.He had known Rahul and his brother for over 2-2 years prior to the incident.He stated that he had left for home after the police had arrived at the spot.On the day, he was neither questioned by the police nor did he volunteer to make any statement to the police.He had informed PW-2 Himanshu using the same mobile phone.PW-2 Himanshu had arrived at the spot within 5-7 minutes of the telephone call.Thereafter, PW-1 left for his home.He had later enquired from PW-2 Himanshu and learnt that the Rahul had died.This conversation had been picked up by the elder brother Rohit and had taken place at about 1:30 AM.He further stated that the PCR officials had removed the injured/deceased to hospital in their official vehicle and PW-2 Himanshu had followed them in some other conveyance.He further stated that when he had called PW-2 Himanshu, he seemed perturbed and told that he was coming in his direction only.The information was received by PW-20 ASI Rameshwar, who was posted at K-55, PCR Van, who deposed that at about 11:35 PM, a call was received from the Control Room to the effect that one person had been stabbed near Bus Stand of Bus Route No.521 near Baba Street, Dakshin Puri.He along with his staff members reached the spot in the PCR Van where one person had sustained stab injuries on both thighs near groin region was lying there.They removed him to Trauma Centre, AIIMS.They came to know that the name of the injured was Rohit Gupta.During cross- examination, he stated that besides him, there was one driver and gunman in the PCR and no relative or friend of the injured was present.He stated that he cannot comment if the relatives or friends of the injured were present in the hospital as he did not know them.He further stated that when they were removing the injured in the van to the hospital, they were told by some person that his name was Rohit Gupta and he was running a dhaba in the vicinity.PW-20 had passed on the particulars at the time of preparation of MLC.PW-13 Ct.Jagbir was posted in Police Station Safdarjung Enclave and was on duty in the Trauma Centre, AIIMS.He deposed that sometime after midnight, PCR Van No.K-55, of which PW-20 ASI Rameshwar was the in-charge had brought an injured person, whose name was probably Rakesh and again said Rohit.He was examined by the doctor and declared brought dead.He had conveyed the information to PS Ambedkar Nagar on telephone.In his cross- examination, he stated that he had collected the name and address of the deceased person from the MLC.A. 1702/2014 & 158/2015 Page 18 of 42PW-7 ASI Mam Chand deposed that on 14-15.01.2013 at about 11:50 PM, he had received the information through DD 51-A (Ex.PW-7/A), which was handed over by PW-15 HC Rattan Lal.Thereafter, he along with PW-9 Ct.Ram Avtar reached the spot and noticed that blood was lying on the road.The injured was removed to the hospital.No eyewitness was available and in the meantime, PW-15 HC Rattan Lal and Ct.Vineet also came there.On his direction, PW-15 HC Rattan Lal and Ct.Vineet remained at the spot in order to guard the same; PW-7 proceeded with PW-9 Ct.Ram Avtar to the Trauma Centre, AIIMS.The deceased was found admitted in an injured condition.He was declared dead by the doctor.He did not find any eyewitness in the hospital.He received the MLC and returned to the spot.But again, no eyewitness was present there.The copy of the FIR was brought by PW-9 Ct.Ram Avtar at about 3 AM and handed over to the SHO.At that stage, one public witness PW-2 Himanshu in highly perturbed state came to the spot and told the facts about the incident to the SHO.PW-2 disclosed that he is the brother of the deceased and narrated the incident in detail also disclosing the names of the assailants.The SHO (PW-22) then took over the investigation and prepared the site plan, which had been signed by PW-7 as a witness.During cross-examination, PW-7 stated that when he had received DD 55-A, he was outside the police station and around the place of Crl.A. 1702/2014 & 158/2015 Page 19 of 42 Mahila Mandal.PW-15 HC Rattan Lal was with him when he went to the spot.He had made enquiry to find out if anyone connected with the victim was present in the hospital or not, but no one could be found there.When he returned to the spot from the hospital, only PW-15 HC Rattan Lal and Ct.Vineet were present at the spot.He had arrived there at about 1:15 AM and prepared the rukka while sitting on his motorcycle at the spot.No other police official or public witness had arrived before the rukka was sent.PW-9 Ct.Ram Avtar had returned to the spot after the SHO had arrived at the spot.He further stated that he had not seen PW-2 Himanshu arriving and therefore, could not comment on the mode of transportation used by him; he went on to voluntarily state that he only saw him coming to the SHO.He was unaware of the facts disclosed to the SHO by PW- 2 Himanshu.He further stated that he had assisted the SHO in preparing the site plan (Ex.PW-7/C) by pointing out the place where the blood had been found and chappals were lying.A. 1702/2014 & 158/2015 Page 19 of 42PW-15 ASI Rattan Lal deposed that on 14.01.2013, he was posted as Head Constable in police station Ambedkar Nagar and at 11:40 PM, ASI Liyakat Ali handed over DD 55-A to him.He took the DD entry to the bus stand on Route 521 in Dakshin Puri, where he met PW-7 ASI Mam Chand and PW-9 Ct.Ram Avtar and handed over the DD entry to him.There was blood lying on the road at the said place.PW-7 ASI Mam Chand made efforts but could not find any eyewitness.It was learnt that the injured had been taken to Trauma Centre, AIIMS by PCR vehicle.PW-7 ASI Mam Chand left him at the spot and proceeded to Trauma Centre.He returned at about 1:15 AM on 15.01.2013 from the hospital.PW-7 ASI Mam Chand made further enquiries, however he was unable to locate any eyewitness Crl.A. 1702/2014 & 158/2015 Page 20 of 42 even at that stage.Around the same time, PW-22 SHO Abhey Singh had also arrived at the scene.The tehrir was sent by PW-7 ASI Mam Chand at about 2:25 AM.The SHO had inspected the scene.The site plan (Ex.PW-7/C) was prepared at the instance of PW-7 ASI Mam Chand.Around the time of proceedings, PW-9 Ct.During cross-examination, PW-15 stated that he had reached the spot at about 11:50 PM and left the spot at about 3:45 AM the next morning.Public persons were standing at a small distance from the place of occurance and upon enquiry by PW-7 ASI Mam Chand, they informed that one person had been stabbed and after a call to 100, he has been taken to Trauma Centre.In his presence, PW-7 ASI Mam Chand did not record the name and address of those persons and voluntarily stated that in his presence, PW-7 ASI Mam Chand was conducting enquiries from public persons.PW-7 ASI Mam Chand left the spot at about 12:15 AM and returned at about 1:15 AM.The SHO reached the spot after the rukka was prepared and sent.In his presence, the SHO had recorded the statement of one public witness, namely PW-2 Himanshu, who had reached the spot.He stated that he did not know the mode of transport used by PW-2 Himanshu and voluntarily stated that he had seen him coming on foot.The site plan was prepared by the SHO in his presence and he had signed the site plan.PW-9 Ct.Ram Avtar had accompanied PW-7 ASI Mam Chand, who deposed that on the intervening night of 14-15.01.2013, he was on Crl.After receiving DD 51-A, he had proceeded with PW-7 ASI Mam Chand to the spot.Blood was lying there and no eyewitness was found.PW-15 HC Rattan Lal and Ct.Vineet had also reached the spot.They were left at the scene of incident, while PW-9 and PW-7 ASI Mam Chand went to the Trauma Centre, AIIMS.One injured person named Gupta was found in the hospital and he had been declared dead.PW-7 ASI Mam Chand collected the MLC; no eyewitness was present in the hospital.They returned to the spot.Again, no eyewitness was found.PW-7 ASI Mam Chand had given him the rukka at 2:25 AM on 15.01.2013, which was taken by him to the police station where FIR was registered.PW-9 brought the copy of FIR and rukka back to the spot.PW-22 Ins.Abhey Singh was also present there and he took over the investigation.During cross- examination, PW-9 stated that they had learnt from a public person that the victim had been taken by PCR vehicle to Trauma Centre AIIMS.He further stated that he did not know the particulars of the public person.They stayed at the Trauma Centre from about an hour and had reached there about 12:30 AM or so.A. 1702/2014 & 158/2015 Page 21 of 42The investigation in the matter was undertaken by PW-22 Ins.PW-7 ASI Mam Chand, PW-15 HC Rattan Lal, Ct.Vineet and PW-9 Ram Avtar were present at the place and PW-7 was in the process of preparing his rukka.He informed the entire sequence of events and sent his rukka through PW-9 Ram Avtar, on which the FIR 17/2013 (Ex.PW-10/A) was registered.PW-22 further deposed Crl.A. 1702/2014 & 158/2015 Page 22 of 42 that he had prepared the site plan (Ex.PW-7/C) at the instance of PW-7 ASI Mam Chand.PW-22 was thoroughly cross-examined, wherein he stated that on 15.01.2013 at 1:15 AM, he had received the information of the incident.He returned at 5 AM after conducting the proceedings.The distance between the place of occurrence and the dhaba of the deceased is about 25-30 steps.When he had prepared the site plan PW-1 and PW-2 were not present at the spot and immediately said that only one witness PW-2 Himanshu came at the spot.He voluntarily stated that PW-1 was involved afterwards in the investigation.PW-2 Himanshu had come to the spot after the exhibits were collected and had come at about 3 AM.The site plan (Ex.PW-7/C) was not prepared in the presence of PW-2 Himanshu; again said that the final site plan was prepared in the presence of PW-2 Himanshu.The site plan was signed by PW-2 Himanshu and PW-7 ASI Mam Chand.The site plan was prepared on the pointing out of PW-7 ASI Mam Chand.No specific location was indicated separately by PW-2 Himanshu.The exact location of point A and B in the site plan (Ex.PW-7/C) were described to PW- 22 by PW-7 ASI Mam Chand and voluntarily stated that the same was also confirmed by PW-2 Himanshu.He further stated that he went for the search of the accused at different places.A. 1702/2014 & 158/2015 Page 23 of 42 person was accompanying him.He did not visit the house of the accused in the course of the search.Coming back to the story unfolding from ocular evidence on record.The deceased was stabbed on two occasions between point A and B when appellant Rahul and Asif (JCL) tried to immobilize the deceased and appellant Raj Kumar gave stab blows.As per Ex.PW-1 Sharwan had called the Police Control Room; which was inturn relayed to Kite 55 PCR Van under the charge of PW-20 ASI Rameshwar.The PCR Van rushed to the spot, where someone had informed PW-20 of the name of the deceased.Indubitably, the information sent by Kite 55 at about 1 AM states that "ghar wale saath hain" (relatives are along) and the same remains in clear contradiction with the ocular account, however it cannot shake the otherwise consistent ocular account supported by medical evidence.PW-20 has stated that no relative or friend of the injured was present.The deceased was received at the Trauma Centre by the PW-13 duty officer.The PCR Van reached the Trauma Centre sometime after midnight and declared by the doctor to be brought dead.The MLC (Ex.PW-6/A) was prepared wherein the particulars of the deceased are given, though in the column of relative name, the name of Rameshwar, i.e. PW-20, is written.This is once again in tune with the testimony of PW-20 that he, as Crl.A. 1702/2014 & 158/2015 Page 26 of 42 the in-charge of Kite 55, had taken the deceased to the Trauma Centre.The information was also relayed by the control room to the police station, where DD 51-A was recorded and allotted to PW-7 ASI Mam Chand.Accordingly, PW-7 along with PW-9 reached the spot where they were joined by PW-15 HC Rattan Lal and Ct.There was no eyewitness there.Upon coming to know that the injured had been removed to the Trauma Centre, PW-7 proceeded with PW-9 Ct.Ram Avtar to the Trauma Centre, AIIMS at about 12:15 AM.The deceased was found and he was declared dead by the doctor.Again, no eyewitness was found.They returned to the spot at about 1:15 AM and investigation ensued.Abhey Singh have deposed that on 17.01.2013, during the course of investigation of another FIR 18/2013, Asif (JCL) had pointed to the appellants herein as his accomplices and thereafter, pursuant to his disclosure statements (Ex.PW-15/A and Ex.The appellant Raj Kumar @ Lala was also convicted under Section 27 of Arms Act, 1959 and was sentenced to undergo simple imprisonment for a period of three years with a fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of six months.Both the sentences awarded to the appellant Raj Kumar @ Lala were ordered to run concurrently.Himanshu run [sic: ran] to save his brother and found that accused Rahul @ Bhuri and Asif have caught hold of Rohit and Raj Kumar @ Lala attacked Rohit on his thigh with a knife a number of times.When Himanshu cried for help, accused Raj Kumar @ lala and Rahul @ Bhuri alongwith Asif (juvenile in-conflict with law) ran away.Someone called 100 number.A. 1702/2014 & 158/2015 Page 3 of 42 Asif (juvenile) have killed his brother in pursuance of a conspiracy.A. 1702/2014 & 158/2015 Page 2 of 42The knife was seized and kept in a pullanda.The place of incident was identified by both the accused persons."After completion of the investigation chargesheet was filed against both the appellants.Charge under Section 302 read with Section 34 of IPC was framed against both the appellants.A charge under Section 27 of Arms Act was also framed against the appellant Raj Kumar.To bring home the guilt of the appellants, prosecution examined 23 witnesses in all.The statement of the appellant Rahul was recorded under Section 313 Cr.P.C wherein he pleaded innocence and stated that he was picked up from his home and falsely implicated in the present case.In his statement under Section 313 Cr.P.C., the appellant Raj Kumar stated that on 15.01.2013, he had gone to Karkardooma Court Complex to attend the proceedings of his case; his father was forced to call him to the Police Station and Crl.A. 1702/2014 & 158/2015 Page 4 of 42 after attending the case at Karkardooma Court, he went to the Police Station where he was falsely implicated.The appellants examined three witnesses in their defence.A. 1702/2014 & 158/2015 Page 4 of 42The Trial Court found that the testimonies of PW-2 Himanshu and PW-1 Sharwan Kumar coupled with the medical evidence if properly appreciated, without taking into consideration the defects in the investigation, it could safely be concluded that the accused/appellants had committed the murder of the deceased and convicted the appellants as noticed in paragraph 2 aforegoing.Mr. Jitender Sethi, learned counsel appearing for the appellant Rahul submits that the judgment of the Trial Court is based on surmises and conjectures.The Trial Court has failed to take into consideration that PW-2 Himanshu was in fact not an eyewitness as he was not present at the time of the crime, which is evident from the fact that PW-2 did not accompany his injured brother from the place of the incident to the hospital.Moreover, his name does not find mentioned in the MLC prepared by the doctor and further from the testimony of PW-7 ASI Mam Chand, it has emerged that there was no eyewitness at the spot.Elaborating his arguments further, Mr. Sethi contends that the statement of PW-2 Himanshu who is real brother of the deceased cannot be believed as having been present at the place of the incident he would have tried to save his brother or at least made a call to police officials or his own family members.It is, thus, contended that the testimony of PW-2 is unreliable and cannot be trusted.Reliance is placed on the judgments in the cases of State (Govt. Of NCT of Delhi) v. Naresh & Anr, 2012 (2) JCC 830 (paragraph 8) and Balraj Singh v. The State of Punjab, 1976 Crl.LJ 1471 (P&H) (paragraphs 13 and 20).A. 1702/2014 & 158/2015 Page 5 of 42Relying on the testimony of PW-7 ASI Mam Chand, it is further contended that this witness has deposed that he received a call at 11:50 PM on the intervening night of 14-15.01.2013 and thereafter he came at the spot and found no eyewitness either at the spot or in the hospital.Reliance was placed on the rukka to show even at that stage no person was named and PW-2 appeared only around 03:00 AM.i.e. after three and half hours of the incident.Mr. Sethi contends that a phone call was made to the Police by PW-1 Sharwan Kumar from his mobile phone No.9716078703 who is running a flower shop near the place of the incident.This witness has also testified that he had informed Himanshu (brother of the deceased) about the incident.PW-1 also deposed that Himanshu arrived at the spot within 5-7 minutes of the telephone call.It is also contended that had Himanshu been at the spot there was no occasion for PW-1 Sharwan Kumar to inform PW-2 Himanshu.The attention of this Court has been drawn to the PCR form, wherein the name of Himanshu also does not find mention though it is stated that at 01:00 AM family members were present at the hospital but how the deceased was stabbed was not known.This is in direct contravention to the testimony of PW-2 that after the incident he went home to get his family members while according to the PCR form, his family members were already present at 01:00 AM at the hospital.Mr. Sethi, learned counsel for the appellant Rahul further goes on to submit that PW-2 Himanshu being an eyewitness, the site plan should have been prepared at his instance while the testimony of PW-22 Insp.Abhay Singh would show that the site plan was prepared by him at the instance of PW-7 ASI Mam Chand.It is Crl.A. 1702/2014 & 158/2015 Page 6 of 42 strenuously argued before us that PW-2 has been introduced as an eyewitness which is evinced by a careful examination of serial number of witnesses at the site plan, which would show that initially PW-2 was not shown as a witness, but as a mere cover up his name was added by renumbering the witnesses.A. 1702/2014 & 158/2015 Page 6 of 42Learned counsel for the appellant submitted that on a careful examination of the site plan placed on record would show that there were three places where the incident took place; firstly, where the deceased was stabbed; secondly, where the deceased was stabbed again; and thirdly, where the deceased dropped while no such description was given by PW-2, who claims to be an eyewitness, which casts a serious doubt with regard to his presence.by the Investigating Officer and sent to the Doctor with a request to conduct post-mortem does not show the name of either PW-2 Himanshu as an eyewitness or the name of the appellants.No question was put for recording of the statement at the hospital or at the place of the incident.Sheikh Israr Ahmed, learned counsel appearing for the appellant Raj Kumar, additionally contended that the testimony of PW-2 would show that he knew all the accused persons and appellant Raj Kumar resides at a distance of 250-300 meters from the place of Crl.A. 1702/2014 & 158/2015 Page 8 of 42 incident and 30 meters from the dhaba of PW-2 Himanshu and deceased and in case, PW-2 would have disclosed the names of the appellants, then his house would have been raided, but no such raid had taken place.The deceased and his brother were known to the appellant Raj Kumar as they had been tenants for two years in the house of appellant Raj Kumar and they would have raided the house of appellant Raj Kumar within hours of the incident which was not done.A. 1702/2014 & 158/2015 Page 8 of 42The incident took place in the heat of moment, when the deceased had refused to serve food to the appellants claiming that the dhaba had been closed.It is also contended that the appellant Raj Kumar stabbed the deceased not on a vital part of the body but only on the thigh.If there was an intention to kill the deceased, he would have attacked one of the vital parts of the body and not only on the thighs.The post-mortem report and the opinion of the doctor does not state that any blow which was inflicted on the deceased could have resulted in his death.Learned counsel submits that much should not be read into where the statement of PW-2 was recorded as PW-2 in his testimony has stated that after the incident, he went to the Hospital from where he went to the place of the incident and was then taken to the Police Station and in such a situation, his answer could have been misunderstood and in any case no prejudice would have been caused to the appellants herein.A. 1702/2014 & 158/2015 Page 9 of 42A. 1702/2014 & 158/2015 Page 12 of 42We have heard the learned counsel for the parties, considered their rival submissions and given thoughtful consideration to the matter.The prime prosecution witness remains the brother of the deceased PW-2 Himanshu.(v) The factum that PW-1 had to call PW-2 and inform about the incident proves the absence of PW-2;A. 1702/2014 & 158/2015 Page 13 of 42(vi) The name of PW-2 is absent in the PCR Form, though it is mentioned that the family members were present though how the deceased was stabbed was unknown;Since numerous contentions have been raised regarding the evidence and the inconsistencies in the sequence of events, we proceed to analyse the testimonies of the police witnesses.PW-18 L/Ct.The information was passed on to the network/PCR van/Police Station at 23:35:15 hours.PCR Form Crl.A. 1702/2014 & 158/2015 Page 17 of 42 (Ex.PW-18/A) also reads "ek admi ko chaku mar diya hai" (one person has been stabbed with a knife).Thereafter, PW-7 prepared the rukka on the above information and handed it over to PW-9 Ct.Ram Avtar at 02:25 AM on 15.01.2013 with a direction to take it to the police station for getting FIR registered.PW-22 SHO Abhey Singh Yadav had also arrived at the spot.Ram Avtar had returned with copy of FIR and the original tehrir.During the proceedings at the spot, PW-2 Himanshu (brother of the deceased) had also joined.SHO recorded his statement and thereafter, efforts were made to trace the assailants, but no one could be found on the day.A. 1702/2014 & 158/2015 Page 20 of 42PW-9 had returned with a copy of FIR and handed over the same to him/SHO with the original tehrir.Then the witness tried to trace the assailants.A. 1702/2014 & 158/2015 Page 22 of 42When he reached, PW-7 ASI Mam Chand was writing the rukka.A. 1702/2014 & 158/2015 Page 23 of 42We may also notice the medical evidence, which corroborates the ocular testimony on record.Both the MLC (Ex.PW-6/A) and the postmortem report (Ex.PW-17/A) show two stab wound on the inner aspect of the right thigh of the deceased.Though at first blush, the contentions of the learned counsel for appellants seem persuasive, however, on a careful analysis of the ocular evidence of the aforegoing witnesses, we find that a complete sequence of the chain of events is established.On the fateful night intervening 14-15.01.2013, the deceased and PW-2 Himanshu were in the process of closing down their dhaba, when three persons including the appellants and Asif (JCL) came and demanded food.The deceased declined by informing that the dhaba had been closed for the day.This did not please the accused, who started abusing and grappling.The PW-2 Himanshu intervened and saved his elder brother.Then they closed the shop and started walking towards their home.PW-2 Himanshu was 22-25 paces ahead of the deceased when the accused returned and stabbed the deceased.The appellant Rahul and Asif (JCL) tried to hold the deceased, while the appellant Raj Kumar gave two stab blows on his thighs.The shrieks of his brother drew the attention of PW-2, who looked behind to witness the incident.PW-2 Himanshu started shouting and rushed towards the deceased, however, the accused were able to flee.The deceased was extensively bleeding and fell infront of shop of PW-1 Sharwan.This was witnessed by PW-1 Sharwan, who called the Police Control Room (PCR) at 23:33:23 (Ex.PW-18/A) from his Crl.A. 1702/2014 & 158/2015 Page 24 of 42 mobile number 9716078703 and informed that "ek admi ko chaku mar diya hai" (one person has been stabbed with a knife).A. 1702/2014 & 158/2015 Page 24 of 42We stop here to note as to which place the appellant was actually stabbed.PW-2 Himanshu had specifically stated in his cross-examination that his brother "had moved in the direction of our [their] shop and had come near the shop of Sharwan." Similarly, PW-1 Sharwan deposed that he saw the deceased "to have come and fallen" infront of his shop.PW-7 ASI Mam Chand, PW-15 ASI Rattan Lal and PW-22 Ins.Abhey Singh had consistently testified that the site plan (Ex.PW-7/C) was prepared by PW-22 at the instance/pointing out of PW-7 ASI Mam Chand, who had pointed based on the blood and the chappal.PW-2 Himanshu had come at about 3 AM, when the site plan (Ex.PW-7/C) was being prepared and had confirmed the points.His name was, accordingly, added and probably because there was no space to add the name of a witness at the bottom of the page, the name of PW-2 Himanshu was added at serial number 1 after renumbering the witnesses.The same can, by no means, lead to the conclusion that the document was tampered as the same remains in consonance with the ocular testimony.We have also gone through the photographs (Ex.PW-5/1 to Ex.PW-5/15) placed on record and particularly Ex.PW-5/10, Ex.PW-5/11, Ex.PW-5/14 and Ex.PW-5/15, which clearly show the Crl.A. 1702/2014 & 158/2015 Page 25 of 42 presence of blood at points A and B infront of shop Om Sai Service in the background in consonance with the site plan (Ex.PW-7/C) and the scaled site plan (Ex.PW- 3/A, the distance between points A and B is 730 cms (about 24 ft) and from B to C, where the deceased finally collapsed infront of shop of PW-1 Sharwan is 2490 cms (about 82 ft).We proceed to the events after the stabbing.Rukka was prepared and sent through PW-9 Ct.Ram Avtar at about 2:25 AM for the registration of FIR.In the meantime, PW-22 Ins.Abhey Singh arrived at the spot and took over the investigation.At about 3 AM, PW-2 Himanshu came to the spot on foot and his statement was recorded.In this sequence of events, there was no question of the name of the eyewitness, i.e. PW-2 Himanshu, or of the assailants being present in the rukka or the PCR Form.The question then is where was PW- 2 Himanshu after witnessing the murder of his brother? The answer is found in the testimony of PW-2 only.He had deposed that when he had heard the cry for help of his brother, he had turned around to witness the stabbing of the deceased.He started shouting and rushed to his brother, however, the assailants ran away.He tried to lift his brother.He became extremely perturbed and went into a state of trance.PW-2 Himanshu waited till the PCR Van (Kite 55) Crl.A. 1702/2014 & 158/2015 Page 27 of 42 took his brother.His perplexed state did not allow him to approach the police.Both PW-1 Sharwan and PW-7 ASI Mam Chand have confirmed that they found PW-2 in a highly perturbed state.We find no reason to disbelieve the same as it is not unusual for one to get disturbed after witnessing the death of his own brother first hand.After the PCR van left, PW-2 took a lift on motorcycle from a passerby till the corner, from where he had taken an auto rickshaw.He reached the Trauma Centre and was informed by the doctor about the death of his brother.A coordinate bench of this Court was faced with a similar situation in Noor Mohd. v. State NCT of Delhi, 2012 Cri LJ 28: 2011 SCC OnLine Del 3604 wherein the appellant had alleged that the brother of the deceased, an alleged eyewitness, was unreliable as the MLC was silent about the name of the injured and recorded that the police had brought the body.The same was rejected by the Bench while observing as under:A. 1702/2014 & 158/2015 Page 27 of 42It is urged by learned counsel for Dalip that PW-3 could not be believed because there was no corroborative material in support of his assertion about having accompanied his brother to the hospital.Reliance was placed upon the MLC (Ex. PW-15/A), which is silent about the name of the injured; besides it recorded that the police had taken the body.Learned counsel argued that if indeed Rahisuddin had witnessed the incident and had either accompanied the PCR or had gone with it, there was no reason for the hospital authorities to exclude the mention of his name. ... ...Often the relatives who accompany the injured Crl.It might well have been that when he was admitted, PW-3 had not reached or having reached, was searching for the place where his brother had been taken."A. 1702/2014 & 158/2015 Page 28 of 42(Emphasis Supplied)The details in the MLC, infact, show that PW-2 had approached the doctor, though he missed the police officials.The knowledge of the death of his brother, further worsened the mental condition of PW-2, who came out from the Trauma Centre and lost senses for 1 and a half hours.Since PW-2 had already left the Trauma Centre, there was no question of him being found by the police officials (PW-15 or PW-9).It was only when he regained his senses did he return home and came back with his family.Now, there is a contradiction as to the place where the statement of PW-2 was recorded, but considering the state of PW-2 Himanshu, not much can be made from such a minor contradiction.Similarly, we do not find that the inconsistency of PW-2 and PW-1 regarding the phone call and the possession of mobile phone by PW-2 Himanshu is sufficient to discredit their testimonies in toto, which otherwise are reliable and consistent.Such inter-se discrepancies are normal and can be attributed to errors of observation and lapses of memory [See Asha v. State of Rajasthan, 1997 SCC (Cri) 712 (paragraph 9); Leela Crl.A. 1702/2014 & 158/2015 Page 29 of 42 Ram (Supra) (paragraphs 9, 10, 12 and 13); and Sukhdev Yadav (Supra) (paragraphs 1 to 3)].This erupted into a sudden fight, which was pacified by PW-2 Himanshu.Thereafter, the deceased and PW- 2 closed their dhaba and within a couple of minutes, the appellants and Asif (JCL) returned and appellant Raj Kumar stabbed the deceased while the other two held him.There was no cooling off period and the tempers continued to run high [See Jite (Supra) (paragraphs 38-43) and Arjun v. The State (Govt. of NCT of Delhi), Crl.A. 1702/2014 & 158/2015 Page 40 of 42 Crl.A. 983/2015 dated 14.07.2017 (paragraph 35)].Accordingly, the conviction of the appellant is modified from Section 302 to one under Section 304 Part II of the Indian Penal Code.A. 1702/2014 & 158/2015 Page 40 of 42We had also called for the fresh nominal rolls of the appellants, as per which, appellant Raj Kumar has undergone about 5 years 5 months imprisonment including remission, while appellant Rahul has undergone 5 years 1 month imprisonment including remission.The order of the Trial Court with regard to fine under Section 302 shall be read as for one under Section 304 Part II and remains the same.The appeals stand disposed of.

Relevant sections: Section 300 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 34 in The Indian Penal Code; Section 304 in The Indian Penal Code