Through: Mr. Sanjay Lao, APP for State in all Appeals.[Crl.A.28, 65, 66/10 & 131/11] Page 1The case of the prosecution is that on 08.10.2001 at about 07:30 PM, DD No. 26 was recorded regarding information received from HC Jagdish about a stabbing incident at Shahabad Kankarkhera.Again DD No.29 was recorded regarding admission of one Vijender to Bhagawan Mahavir Hospital with the history of stabbing.Thereafter at about 08:15 PM DD No.32 was recorded on receipt of the information from Bhagwan Mahavir Hospital regarding death of injured Vijender.On receipt of this, SI Umed Singh (PW-17) with Ct.Bhim Singh (PW-6) went to the hospital and collected the MLC of deceased Vijender.PW-17 Umed Singh recorded the statement of the brother of the deceased, Ravinder Singh (PW-1), whom he met at the hospital.According to PW-1, in the morning a quarrel had taken place between the deceased, Ravi, Soni, Bonny and Amar Singh.It was resolved then due to intervention of some people around.Ravi had threatened the deceased at that time.In the evening when PW-1 and his brother, Shailender were going towards Kankarkhera drain, to ease themselves, they heard cries for help; they both rushed to the spot and saw that Vicky and Neeraj had caught hold of Vijender and Ravi was stabbing him with a knife; Soni was shouting "maro saale ko isme bahut akad hai".PW-1 further stated that he and PW-3 managed to overpower Neeraj and Vicky, however Ravi and Soni managed to escape.On the basis of PW-1s statement, a rukka (Ex.PW-17/A) was prepared and FIR No. 378 of 2001 was registered with PS Bawana.The investigation was handed over to the SHO.The SHO got the spot photographed and on the pointing out of PW-1 got the site plan prepared.The blood stained earth and earth control were seized.The SHO interrogated the accused Neeraj and Vicky and recorded their disclosure statements; the accused were arrested on 09.10.2001 at about 05:30AM by arrest memos Ex.PW-17/C and Ex.The quarrel was settled with the intervention of neighbours and others around.However, according to the account of PW-1, Ravi swore to look out for the deceased.PW-1 deposed that on 08.10.2001 at about 08:00 AM a quarrel took place between the deceased (Vijender) and Ravi, Soni, Bobby and Amar Singh; the matter was settled due to the intervention of local people but Ravi threatened the deceased that he will "see" him later.Thereafter in the evening at about 07:00PM the witness and his brother Shailender (PW-3) were going towards Kankarkhera drain to urinate when they heard the deceased shouting bachao bachao.PW-1 further stated to the police that he and PW-3 managed to overpower Neeraj and Vicky however Ravi and Soni managed to escape.He further stated that his uncle Jagdish (PW-5) was passing from there and on hearing the noise, he too came to the spot and he (PW-5) and PW-3 took the accused Neeraj and Vicky to the police station.PW-1 further stated that he took his injured brother to Nanaks (PW-13s) house in the village from where Nanak informed the police and they took Vijender to Shahbad on a motorcycle.From Shahbad they hired a Maruti Van and took Vijender to Bhagwan [Crl.A.28, 65, 66/10 & 131/11] Page 6 Mahavir Hospital where Vijender was declared brought dead.On the basis of PW- 1s statement, the rukka (Ex.PW-17/A) was prepared and an FIR bearing no. 378/ 2001 was registered with PS Bawana.The investigation was handed over to the SHO.The SHO got the spot photographed and on the pointing out of PW-1 got the site plan prepared.The blood stained earth and earth control were seized.The SHO interrogated the accused Neeraj and Vicky and recorded their disclosure statements; the accused were arrested on 09.10.2001 at about 05:30AM by arrest memos Ex.PW-17/C and Ex.PW-17/B.Further on 10.10.2001, PW-1 met the SHO on Kankarkhera Road and informed him that accused Soni was present in the village.He further stated that he took the deceased to Nanaks house; it took 10-15 minutes.He further stated that he had instructed PW-3 and PW-5 to take the accused persons to the police post.In his further cross-examination, he denied that his brother Vijender was lying injured in the field and the accused Vicky and Neeraj brought injured Vijender to his (PW-1s) house.He denied that his mother informed the police by telephone at that time and that all the family members took Vijender to the hospital.He further denied that accused Vicky and Neeraj had been implicated in this case on mere suspicion.He stated that they raised an alarm when they were [Crl.A.28, 65, 66/10 & 131/11] Page 8 running towards Vijender; they were at a distance of about 7 to 8 paces from Vijender when they saw him being stabbed.He further stated that he took Vijender to Nanaks house in the chowk and not to his own house.The appellants appeal against a judgment and order of the learned Additional Sessions Judge, dated 2-12-2009 in SC No. 41/01 whereby they were convicted of the offences punishable under Sections 302/34 IPC and sentenced to undergo imprisonment for life, with other sentences.PW-17/B. Ravi and Soni were arrested subsequently, the next day.The police conducted the investigation, after [Crl.A.28, 65, 66/10 & 131/11] Page 2 which, on the basis of the report, the accused were charged with committing the offences punishable under Sections 302/34 IPC.They denied guilt, and claimed trial.The prosecution in support of its case examined 19 witnesses and relied on several exhibits such as post mortem report, FSL report etc. The defense also examined two witnesses.After considering all these and the submissions of the parties, the Trial Court held the appellants guilty.The Learned Counsel for the appellants submitted that the prosecution failed to prove the case against them beyond reasonable doubt and that this Court should acquit them of all charges.The Counsel submitted that in DDs No.26, 29 and 32 the information was only regarding a stabbing incident and the names of the accused were not mentioned.The Counsel submitted that had there actually been eye-witnesses then the name of the accused persons would have appeared in the DDs.Furthermore the MLC, Ex.However the name of only one accused Ravi is mentioned; the other accused are not mentioned.It was also pointed out that the person whose Maruti Van was hired to take the deceased to the hospital was not examined.The Appellants Counsel argued that PW-1 and PW-3 have contradicted each other on material aspects which go to the root of the case and therefore their testimony should be discarded.He submitted that PW-1 and PW-3 contradicted each other as to whether PW-1 was wearing a T-shirt or a vest.Further PW-1 stated that his statement was recorded on the bench whereas PW-3 stated that PW- 1s statement was recorded on the scooter.The Ld. Counsel further submitted that both the witnesses admitted that there was no electricity at the spot and therefore it would not have been possible for them to see the deceased being stabbed.Further [Crl.A.28, 65, 66/10 & 131/11] Page 3 there was full grown Jawar crop in the field and therefore it is highly unlikely that they would have seen the incident taking place.It was submitted that the accused, Neeraj and Vicky in their statements under Section 313 Cr.PC stated that they were going home from their work-place when they found deceased lying in an injured condition in the field; they (Neeraj and Vicky) brought him to the village chowk and informed his family members.The mother of the deceased dialed 100 number and at about 08:30 PM, the police came to the house of Neeraj and Vicky and took them to the police station.To support their story, they have examined two defense witnesses.DW-1, Baljeet deposed that he knew accused Neeraj and Vicky as well the deceased and his family as they were his neighbours.He deposed that about 6-7 days after 2nd October at about 7/7:30 PM, he heard some noise and came out of his house and saw accused Neeraj and Vicky bringing deceased Vijender to the village chowk.He further deposed that immediately the mother of the deceased, his brothers Ravinder and Shailender and uncle Jagdish also reached the chowk.Nanak (PW-13) took the deceased along with Ravinder (PW-1) on his motorcycle to the hospital.He further deposed that after about an hour and a half, the police came to the village and took Neeraj and Vicky away.He further stated that on inquiry, he came to know from Neeraj and Vicky that he was brought from a field where he was lying in an injured condition.He denied the suggestion that he was deposing falsely at the instance of the accused.Counsel submitted that DW-2 Om Narain deposed that on 08.10.2001 he had gone to the shop of Bhure Lal for getting his scooter painted and at about 8 PM a gypsy with 3 police officials came there.He further deposed that accused Ravi was painting his scooter at that time and accused Soni was carrying out painting work [Crl.A.28, 65, 66/10 & 131/11] Page 4 on a four wheeler.He further deposed that the police officials took the accused persons away after getting their clothes changed.He denied the suggestion that he had cooked up the story.The Ld. Counsel for the appellants submitted that the deposition of the two defense witnesses proves that the accused have been falsely implicated in this case and that they have been arrested on mere suspicion.These circumstances, coupled with the fact that the names of the attackers were identified at the earliest point, ruled out the possibility of false implication.However they spotted a boy coming on foot about a half kilometer before the village and on the pointing out of PW-1 accused Soni was apprehended.Accused Soni upon interrogation disclosed that co-accused Ravi was hiding in Parhladpur.Thereafter, the accused Ravi made a disclosure statement and got the weapon of offence i.e. a knife recovered from the bushes; the knife was seized and a sketch of the knife was prepared.The police also seized the blood stained clothes accused Ravi was wearing at the time of the commission of the offence.In cross-examination PW-1 stated that they had no enmity with the accused persons.He also stated that his house was "pucca" but there was no toilet due to which all the family members used to go outside to ease themselves.He further stated that he spotted Vijender from a distance of about 40-50 paces when he along with Shailender (PW-3) was easing himself; they were sitting before the pulliya in the agricultural field and no crop [Crl.A.28, 65, 66/10 & 131/11] Page 7 had come up at that time.He stated that he heard the noises when he was about to sit.He further stated that the faces of the accused were towards them (PW-1 and PW-3) and they saw Vicky and Neeraj holding Vijender.He further stated that he saw accused Ravi attacking Vijender with a knife when he (PW-1) was running towards the deceased.He stated that when he reached the spot, the deceased was about to fall however he supported him and also caught hold of accused Neeraj; he pulled the collar of Neeraj from behind.He further stated that PW-3 caught hold of accused Vicky; the other two accused ran away.He admitted that as per his visibility, the deceased was stabbed four times.He further admitted that there was no electricity on the road but as it was dawn some natural light was available.He admitted that he alongwith Nanak (PW-13) went to Shahbad on Nanaks motorcycle and from Shahbad they took a van belonging to Shyam Sunder and reached the hospital; the police arrived at the hospital after about half an hour.He stated that the police recorded his statement and from the hospital he alongwith the SHO and the police staff went to the spot in the police car; from the spot they went to the PS where he saw accused Neeraj and Vicky.He further stated that they had left his house at about 06:45 PM and the incident took place at about 7 PM; it took him 15 minutes to reach the chowk from the spot.On reaching the chowk Nanak (PW-13) took out his motorcycle.Blood had fallen on the way to the chowk.He admitted that they reached the hospital at about 8 PM.From the hospital he went to the police post and from the police post he went to the spot.In his further cross-examination he stated that when he reached the spot, accused Ravi and Soni were running away as they heard his cries.He further stated that he informed the police about accused Sonis presence in the village on 10.10.2001 and he was apprehended at about 8/8:30 AM.The accused Soni disclosed about accused Ravis whereabouts and Ravi was apprehended from village Pralhad.He admitted that at the time of the incident Jawar crop was fully grown.He further admitted that after the incident his brother was not able to speak to him due to the injuries and Vijender was not able to tell who had caused the injures.18. PW-3 Shailender who is an eye-witness to the incident has fully corroborated PW-1s version.Both the witnesses were cross-examined at length but the defense was not able to shake their account.Both the witnesses clearly saw accused Neeraj and Vicky holding the deceased and Ravi stabbing the deceased while accused Soni was shouting maar saale ko'.The MLC, Ex.PW-14/A also records the name of accused Ravi.Even PW-5 has deposed that when he reached the spot he saw injured Vijender in a serious condition and accused Neeraj and Vicky were in his custody.The Ld. APP submitted that they have proved the [Crl.A.28, 65, 66/10 & 131/11] Page 9 accused persons guilt beyond reasonable doubt and that the Trial Courts decision should not be interfered with.19. PW-10 Dr. RK Punia, the doctor who conducted the post mortem of Vijender and prepared the post mortem report Ex.PW-10 /A has deposed that in his opinion the injuries were caused by a sharp edged weapon and the cause of death was due to shock and hemorrhage as a result of stab injury to the heart.He further deposed that on 08.11.2001 he received a request from the SHO along with a parcel of a weapon.He gave an opinion Ex.PW-10/D that the injuries mentioned in the post mortem could have been caused by the knife examined by him.Therefore, PW-10s deposition also corroborates with the eye-witness account.The injured Vijeder was taken to the hospital, at 8:30 PM (Ex PW-14/A).The rukka was recorded at 11-20 PM (Ex PW-17/A), the FIR registered at 12:20 AM (Ex. PW-2/A).These circumstances, coupled with the fact that the names of the attackers were identified at the earliest point, in the rukka, recorded at 11-20 PM, improbibilizes false implication of the accused.[Crl.A.28, 65, 66/10 & 131/11] Page 10The testimony of witnesses is corroborated by the post mortem report, which says that the deceased had been inflicted four sharp edged injuries; two on the face, and two on the chest.One of the chest injuries was deep enough to penetrate to the heart.The post mortem report and the testimony of PW-10 proved that the knife injury which penetrated the heart was the cause of death.PW-17/B and Ex. PW-17/C are arrest memos in respect of Vicky and Neeraj, who were nabbed at the spot; the police showed their arrest at 5-30 AM.This fact, together with the timing of the FIR and the rukka, in the opinion of the Court, provide external corroboration to the prosecution witnesses version.He clearly was waiting for an opportunity to get even with him.The knife, wielded by him, and the nature of injuries inflicted on a vital part of the body, i.e the chest, which was deep enough to cause the fatality, rule out the applicability of explanation to Section 300 fourth exception, IPC.The intention here was to clearly kill Vijender, and the appellant Ravi succeeded in doing it.The other three accused were unarmed.

Cited provisions: Section 302 in The Indian Penal Code; Section 34 in The Indian Penal Code; Section 300 in The Indian Penal Code; Section 326 in The Indian Penal Code; Section 304 in The Indian Penal Code