MATHUR, J. - (1.) THESE two appeals are preferred to challenge the judgment and order dated 1/5/2003 passed by learned Additional Sessions Judge (Fast Track), Churu convicting the accused appellants for the offence punishable under Section 302/34 IPC,
(2.) THE trial court after recording the conviction aforesaid, sentenced the appellants to undergo rigorous imprisonment for life term with a fine of Rs.500/- and in default to payment of the same further to undergo three months' simple imprisonment. As per the prosecution, on 13/6/2002 at 11:30 PM, the Station House Officer of Police Station Kotwali, Churu recorded 'parcha bayan' (Ex.P/12) of Shri Noratmal son of Ramlal stating therein that at about 10:00 PM of the same day when he along with Salim, resident of Rajaldesar was sitting at the stairs of Shyam Hall, Vinod son of Surajbhan Brahman and Paharia son of Dungar Bhaat came with knives and then Vinod put him down and gave a knife blow on his chest. Paharia gave a knife blow at the thigh of his left leg. A knife blow was again given by Vinod at his back. On gathering of nearby persons, including the cinema employees, the assailants ran away from the spot. Noratmal further. stated that Vinod quarreled with him two days earlier too on the issue of his coming to the colony and only for that reason he and Paharia assaulted him with an intention to kill. - As per the statement of Noratmal, after some time his maternal uncle Vinod etc. came to the spot and brought him to the hospital. On basis of the statements aforesaid, a case was lodged for commission of offences under Sections 307, 324 IPC and regular investigation was initiated. On 14.6.2002 Noratmal was referred to Sawai Maan Singh Hospital, Jaipur for further treatment but in transit he succumbed to the injuries, therefore, investigation was made for the offences punishable under Section 302/34 IPC. After regular investigation, charge sheet was filed and charge's were framed for commission of offences under Sections 302 and 302/34 IPC, On denial of the same, trials was conducted and during the course of trial ten witnesses were examined in support of the prosecution and 29 documents were exhibited. The accused persons were also put forth for examination as per provisions of Section 313 Cr.P.C, wherein they denied entire case of the prosecution and they also produced two documents in defence. Learned trial court, while relying upon witnesses PW-6 Asharam; PW-9 Goruram; PW-7 Vinod; PW- 10 Fariyad Khan, the Investigating Officer, and also the prosecution documents, convicted the accused appellants. While challenging the same, it is contended by Shri Mridul Jain, learned counsel for appellant Vinod that two eye witnesses viz. PW-6 Asharam and PW-9 Goruram are not at all eye witnesses and they were introduced with the prosecution case as an after thought. Learned counsel specifically pointed out that in 'parcha bayan' Ex.P/12, Noratmal nowhere referred presence of Asharam and Goruram though both the persons were known to him. It is further pointed out that Goruram in his statements in quite specific terms stated that Asharam was accompanying him while carrying Noratmal to the hospital, whereas PW-6 Asharam stated that Noratmal was taken to the hospital, whereas by Vinod and Goruram only. It is also urged that Noratmal in 'parcha bayan' Ex.P/12 stated about presence of Salim with him but prosecution failed to produce him in evidence and as such entire story is concocted one with support of PW- 6 Asharam and PW-9 Goruram who happen to be the persons belonging to the caste of deceased Noratmal. The next argument advanced by counsel for the appellants is that the recovery of knives on basis of disclosure statements is not at all in accordance with law. It is urged that Ex.P/24 is the report relating to disclosure statements made by accused Vinod Kumar as per provisions of Section 27 of the Indian Evidence Act, wherein he has said that. As per counsel for the appellants the information said to be given is ambiguous as it nowhere mentions about the incident in that the knife concern was said to be used. Same is the position with the disclosure statement made by accused Pahar Singh under Ex.P/22. While challenging the worth of the evidence relating to recovery of weapon, it is also stated that as a matter of fact the knife was not even marked at the time of recovery as that is apparent from Ex.P/10 and Ex.P/16, but as per Ex.P/9-A while sending them for forensic.examination to the Forensic Science Laboratory, those were shown to be marked and, that creates doubt about bonafides of the prosecution, as such the court should not have relied upon recovery of these articles. It is also urged that Ex.P/19 i.e. the letter dated 13.6.2002 seeking necessary information regarding fitness of Noratmal for getting his .statement recorded which also bears a note of the doctor about fitness of Noratmal to give statement, was not a part of charge sheet and that was placed on record first time on 21.1.2003. Being submitted at a later stage, it was not possible for the defences to cross examine the doctor in this regard and as such the trial court erroneously considered the contents of the document Ex.P/20 dated 14.6.2002. At last and in' alternative, learned counsel for the appellants urged that no motive is shown by the prosecution for assaulting deceased Noratmal by the accused persons and the intention to kill him is also conspicuously absent, therefore, even by accepting prosecution story, case against the appellants does not travel beyond an offence under Section 304 part-II IPC. While supporting the conviction recorded and the sentence awarded, learned Public 'Prosecutor pointed out that PW-9 Goruram and PW-6 Asharam in quite unambiguous terms narrated the entire incident and no reason is available to disbelieve their testimony.
(3.) AS per learned Public Prosecutor the grievous injuries given by the accused persons at the vital parts of the body of deceased Noratmal clearly establishes that the accused persons were intending to give such blows those may cause death. Considered the arguments advanced by learned counsels and also examined the record. AS per the 'parcha bayan' Ex.P/12, Noratmal stated that Vinod gave him a knife blow at first instance on his chest and then at his back and in the meanwhile one knife blow was given at the thigh of his left leg by accused Paharia. At the time of incident as per the Ex.P/12 Salim was with Noratmal and subsequently his maternal Uncle Vinod etc. came and brought him to hospital. The term used "etc." in Ex.P/12 is quite important. Learned counsel for the appellants during the course of arguments, much emphasised on the fact that Noratmal in his 'parcha bayan' Ex.P/12 nowhere referred presence of Asharam and Goruram though they were known to him, thus, they in fact were not eye witnesses of the occurrence. On consideration of the entire material available on record, we are of the view that such omission is not much relevant in present case. As a matter of fact Noratmal in Ex.P/12 stated that his maternal unde Vinod etc. came and this "etc." includes other persons who took him to the hospital. Expectation from a person seriously injured as a consequent to stabbing for giving each and every details immediately after the incident is too high. A person suffering from such grievous injuries at that stage could have given broad outlines relating to the crime occurred, making the investigating agency able to make further probe in the matter. In the instant matter all necessary preliminary informations to make further investigation with the entire incident are available in Ex.P/12. As such, non-reference of Goruram and Asharam with 'parcha bayan' is not material or to say enough to demolish the prosecution case, specially looking to the fact that the term "etc." was used qy Noratmal while referring other persons present with his maternal uncle Vinod. PW-6 Asharam, in his statements, stated that he was watching a film in Shyam Cinema and being thirsty he came out and saw two persons assaulting one person with knives. At that time Goruram too came. This .witness identified these two persons as Vinod and Pahar Singh. He also stated that Noratmal was taken to hospital in tempo by his maternal unde and Goruram. In his entire statement, there is nothing on basis of which it can be said that he was not a person trustworthy. True it is, that he was not having any memory of film's name that he was watching, but that is of no consequence in view of the fact that after the incident he did not choose to continue to watch the film. Similarly, PW-9 Goruram also stated that on the fateful day he was standing outside the picture hall with his tempo and was waiting for passengers and at that time he saw Vinod Kumar and Pahar "Singh stabbing Noratmal. He also stated, about presence of Asharam at the spot and further presence of Vinod' (maternal uncle of deceased) at the spot on calling. He also stated that he accompanied Vinod and Asharam in carrying Noratmal to hospital. True it is, PW-6 Asharam in his statement did not stated that he also accompanied to Vinod and Goruram while carrying Noratmal to Hospital, but merely on that count testimony of Goruram or Asharam cannot be disbelieved. There is no contradiction of such a nature in statements of both the eye witnesses that may warrant their total ignorance in evidence. ;