Ravinder Kumar vs State of Himachal Pradesh

Lokeshwar Singh Panta, J.—The Appellants in this appeal viz. Ravinder Kumar (A-1), Rajinder Singh, (A-2), Chandan -Singh (A-3), Janak Singh (A-5) alongwith Rajinder Paul (A-4) were charge-sheeted to stand session trial for the murder of Desh Raj on October 31, 1989 at 8.30 P.M. at a place known as Sapru. Rajinder Paul (A-4) was acquitted but the Appellants were convicted u/s 302 of the Indian Penal Code by the Additional Sessions , Judge (I), Kangra Division at Dharamshala on 21.9.1991 and sentenced to life imprisonment and to pay a fine of Rs. 5000/- each. In default of payment of fine to suffer rigorous imprisonment for five years.

The facts of the prosecution case may be briefly stated:

The Appellants were employed by M/s Mahesh Wood Product, Sonipat, which was carrying on the. work of extraction of ''Hatha'' at village Pansal. There existed a rival firm in the name and style of M/s Mahesh Udyog dealing in the extraction of ''Katna''. Desh Raj Sood was an employee of the rival firm M/s Mahesh Udyog. The Appellants were the employees of M/s Mahesh Wood Product. Some altercation took place in between Desh Raj and A-5 on October 31, 1989. A-5 lodged a report at Police Station, Haripur on the basis of which First Information Report No. 65 of 1989 was registered under Sections 324 and 247 IPC. According to the report Desh Raj alleged to have stabbed A-5 on the right side of the back. After reporting the matter to the Police, A-5 went to ''Dera'' (quarter) of Desh Raj at village Sapru to take vengeance of such altercation. Desh Raj was living at the ''Dera'' alongwith Yash Pal, Kulvinder Singh and Roop Singh. The Appellants went to the ''Dera'' of Des Raj at about 9 P.M. in a Maruti Van. They called out Desh Raj and on hearing their call Desh Raj came out of his ''Dera''. Thereafter, A-1 and A-2 took Desh Raj a little further from the ''Dera'' to a dark place. It is the prosecution case that they stabbed Desh Raj and thereafter all the five accused persons boarded the Maruti Van and fled away from the place. Desh Raj was with great difficulty able to crawl back to the ''Dera'' with a stab wound on his stomach. He thereafter instantaneously succumbed to the injury there and then on the cot in front of the ''Dera''. The matter was reported by Roop Singh and Sushil to Shri Lachman Singh, Pradhan of Gram Panchayat Kherian. When Shri Lachman Singh confirmed about the death of Desh Raj, then he alongwith Sushil Kumar, Roop Chand and Yash Paul went to the Police Station, Haripur for the purpose of lodging the report. FIR No. 66 of 1989 (Ext.PD) was registered at Police Station, Haripur at 2.30 A.M. u/s 302/34 IPC S.I. Durga Datt, Police Station Haripur went to the scene of occurrence and reached at village Sapru at 3.15 A.M. and started investigation. He filled the inquest report (Ext.PE) and had taken photographs of the dead body of Desh Raj through Sukhi Ram. He thereafter arranged to send the dead body of Desh Raj for post-mortem examination to Zonal Hospital Dharamshala. The Investigating officer prepared a site plan (Ext.PR) recovered one ''Thaintha'' (Ext.P-12) which was lying near the place of (occurrence and took the same in possession through recovery memo (Ext.PF). He also took into possession the bamboo stick (Ext.P-13) through recovery memo (Ext.PF) . Maruti Van allegedly used by the accused was also taken into possession through recovery memo.(Ext.PL). He recorded the statements of witnesses and arrested the accused. During the interrogation, on November 6, 1989 A-1 made disclosure statement (Ext.PM) in the presence of Panch witnesses namely Jeet Ram and Surinder Kumar. On the basis of the disclosure statement knife (Ext.P-11) was recovered on November 7, 1989 through recovery memo (Ext.PH) and sketch of the knife is Ext. PG.

After completion of the investigation, charge-sheet was laid before the Judicial Magistrate, Dehra who committed the same to the Court of Sessions Judge, Kangra at Dharamshala and ultimately case was assigned to the Additional Sessions Judge, for trial.

On May 16, 1990 charges u/s 302 read with Section 34 of the Indian Penal Code were framed against the accused. At the trial in the Court of Additional Sessions Judge, the accused abjured their guilt. Appellant Ravinder Kumar in his statement u/s 313 Code of Criminal Procedure has stated that on October 31, 1989 he was going in the Barat of the younger brother of Appellant Janak Singh to village Haripur. They were travelling in a Maruti Van. When Maruti Van reached at village Sapru then Desh Raj and Roop Chand etc. being tipsy stopped the Van. When he, Janak Singh and other occupants of the Van came out cf the same, then Desh Raj and his companion started beating them with ''Lathies''. The driver had taken the Van a little ahead. When Janak Singh was going to sit in the Van then he was stabbed by somebody. He also received injuries in that incident and thereafter at about 9 P.M. they lodged the FIR at Police Station Haripur. He has further stated that he is an employee of M/s Mahesh Wood Products which is owned by Ved Parkash Mehta of Delhi. The deceased was working in M/s Mahesh Udyog, the owner of which is Shri Bishan Dass Mehta. The prosecution witnesses produced are also employees of M/s Mahesh Udyog and that is the reason that they have deposed against him falsely. Appellant Rajinder Singh has also stated that the witnesses are workers of M/s Mahesh Udyog whereas he is an employee of Mahesh Wood Products and due to the rivalry of the firms involved in the extraction of ''Katha'' all the prosecution witnesses have falsely implicated them in this case. Appellant Janak Singh has also made the same statement as stated by Appellant Ravinder Kumar. Appellant Chandan Singh has also made similar statement as that of Rajinder Singh. Rajinder Paul has also stated that due to the rivalry between the two firms . involved in the extraction of ''Katha'', the prosecution witnesses are falsely implicating him in this case. In support of defence one witness namely Vijay Sood Clerk of Court of Sub Divisional Judicial Magistrate, Dehra was examined. He has proved the entry in the register kept by the court and according to him FIR No. 66 of 1989 (Ext.PD) was received in the Court on 1.11.1989 at 11 A.M. and entered at serial No. 66.

The prosecution examined as many as 15 witnesses. The trial Judge after protracted trial held that the deceased Desh Raj met with homicidal death at the hands of the Appellants, convicted and sentenced them as aforesaid, whereas accused Rajinder Paul (A-4) was acquitted for lack of evidence. The Appellants have assailed their conviction and sentence through this appeal.

There is no dispute that the deceased Desh Raj died a homicidal death. The prosecution has placed strong reliance on the evidence of Yash Paul, (PW-3) Kulwinder (PW-4), Roop Singh (PW-5), Lachman Singh (PW-6), besides evidence of Sub Inspector Durga Datt (PW-14), medical evidence and evidence of the recovery Witnesses namely Amin Chand (PW-7) and Surinder Kumar (PW-10). The post-mortem of the dead body was conducted by Doctor J.R. Azad (PW-1) on 1.11.1989 at 11.50 A.M. and he found the following injuries:

There were two incised wounds over the body on the chest wall in the left lateral side.

The incised wound was situated on the left side of the chest wall in the posterior axillary line at the 5th inter-costal space obliquely directed and penetrating into the chest cavity. On dissection, the wound was traced on the inner side of the chest wall and entered the lung left lower lobs. Obliquely with clean cut margins directed from left lateral side to the medial side. Size 2-1/2 Cms long with clean cut margins. The opposing margins of the incised wound were lying near each other (no gaping). The lung was cut on medial side 3/4 cm in size, reaching upto the pericardium, but pericardium was slightly cut about 1/6 cm deep x 1 cm long. Heart was, not injured. There was massive blood lying in the chest cavity.

The incised wound was situated on the left chest wall 6 cms below the first incised wound situated in the infrascapular area and obliquely directed. Margins were regular and clean cut. Clotted blood was present around the wound. Size 4 cms x 2 cms x 2 cms.

Single abrasion was present on the left side over the superior iliac spine 3 cms into 2 cms.

Lacerated wound on fore-head on right side 2-1/2 cms above the right eye.

According to the report (Ext,PA) of the Doctor the injury Nos. 1 and 2 were caused by sharp edged weapon and all injuries were antemortem. The one stab wound was penetrating into the chest cavity, cutting the left lung, causing massive haemorrhage, shock and death. In his cross-examination he has admitted the suggestion of the defence that the viscera of the deceased was not sent to the Chemical Examiner for analysis and the consumption of the liquor by the deceased'' could have been ascertained by sending the viscera to the Chemical Examiner. He also stated that by styling the above injuries to cause death in the ordinary course of nature, he meant that the injuries were dangerous to life. It is clear from the medical evidence that the deceased died a homicidal death.

Now the only question is whether the prosecution has been able to prove beyond reasonable'' doubt that it were the Appellants who caused the death of the deceased. In this regard we may first of all turn to the evidence of material witnesses.

Yash Pal (PW-3) was employed as labourer with M/s Mahesh Udyog at the relevant time. He stated that on 31st October, 1989 he had gone to attend his work at village Pansal and returned to his quarter at Kherian at about 5.30 P.M. PW Kulvinder Singh and Sushi 1 also came to his quarter at about 6 P.M. At about 8 P.M. Desh Raj deceased, Roop Chand, Budhi Singh, Ramesh Chand and Rajinder also came there. Rajinder took water and sat on the cot. In the meantime, the vehicle came there and Rajinder accused went away in the said vehicle. Desh Raj, (deceased) Roop Chand, Budhi Singh, Ramesh Chand and Rajinder Kumar were also serving in the firm Mahesh Udyog at that time and were residing with him in the same ''Dera''. He and PW Kulvinder after taking the meal sat on the cot and other persons were taking the meals in the ''Dera''. After some time a Van bearing registration No. DNH-3017 came there from Haripur side. Appellants namely Ravinder, Rajinder, Janak and Chandan alighted from the Van. He identified them in the court. Appellants Ravinder and Rajinder shouted ''Sood'' ''Sood''. On hearing their call Des Raj came outside from ''Dera'' and after seeing them again went into the ''Dera''. Thereafter Appellants Ravinder and Rajinder went inside the ''Dera'' and brought Des Raj outside and was taken to a dark place. Appellants Chandan and Janak Singh also followed them. After covering few paces ahead, Appellant Ravinder took out knife from his pocket and went towards the dark side. He told Roop Chand, Sushil Kumar and Budhi Singh that Desh Raj Sood had been taken away by the Appellants. He also told the above said persons that Appellant Ravinder had a knife in his hand and Desh Raj Sood had been taken towards the dark side by the Appellants. They all came out from the ''Dera'' and from the verandah of the ''Dera'' they saw Desh Raj coming back with a hand on his stomach. The Appellants fled away towards the Van and engine of the Van was on at that time. Desh Raj laid down on the cot and demanded water. Kulvinder brought water and after taking it Desh Raj breathed his last. Thereafter Roop Chand and Sushil Kumar went to inform the Pradhan of the Gram Panchayat, who came at about 12 in the night. Pradhan inspected the spot and told them to report the matter to the Police and a Ward Panch was deputed by him to preserve the scene. He reported the matter to the Police through Ext.PD. In his cross-examination he has admitted the suggestion of the defence that Roop Chand, Sushil Kumar and Pradhan were discussing as to who were the accused involved in the accident. He has stated in his cross-examination that he had made the mention of the names of five accused persons in the first information report (Ext.PD) and the Police did not ask about the identification of the accused. He has also stated that he knew Appellant Janak Singh personally before the incident and also Ravinder Kumar and Chandan Singh, as they used to visit their quarter. However, he deposed that he did not know Rajinder Paul (A-4). He also admitted that Appellants Ravinder and Rajinder brought Desh Raj Sood (deceased) from the ''Dera'' and Appellants Janak and Chandan also joined them and took deceased towards the dark side upto a distance of 10 to 15 metres in a friendly way. He saw Appellant Ravinder at a distance of 4-5 ft. going towards the dark side when he took out knife from his pocket. He admits that there was no blood stains on the spot nor blood trail from the place where Desh Raj Sood was taken towards the ''Dera''. According to his deposition the blood remained within the clothes of Desh Raj (deceased). He denied the suggestion of the defence that deceased Desh Raj Sood and PW Roop Chand had consumed a lot of liquor on that day and they were stopping and checking the vehicle passing through that road. He also denied the suggestion that Van of the Appellants was also stopped by Desh Raj (deceased) and Roop Chand and the occupants of the Van including the Appellants, Ravinder, Rajinder, Janak Singh and 5-6 more persons were given beatings with the help of ''Lathi'' by Desh Raj (deceased) and PW Roop Chand. He has shown his ignorance about receiving injuries by Appellants Janak Singh and Ravinder Kumar in an attack. He admits the suggestion of the defence that on the following morning of the day of incident ''Thaintha'' was lying at the spot. He denied the suggestion of the prosecution that because of rivalry between the two firms, he made a false statement against the Appellants. Kulvinder Singh (PW-4) was also working as a labourer with M/s Mahesh Udyog during the relevant time. He stated that on 31.10.1989 he had gone to Pansal to apprise the concerned parties for the demarcation and came back to his ''Dera'' at about 5.30 in the evening. PW Yash Pal was also with him and both of them prepared food. At about 6 P.M. Sushi 1 also joined them. Desh Raj (deceased) PW Roop, Budhi Singh, Ramesh and Rajinder also came in their ''Dera'' at about 8 P.M. Appellant Rajinder took water and went in a vehicle which came from Dehra side and left towards Haripur side. He and Yash Pal after taking their meals came out of ''Dera'' and sat on the cot and other persons were taking meals inside the ''Dera''. After some time a Van bearing registration No. DNH-3017 came from Haripur side and halted in the road near their ''Dera''. Thereafter, four persons namely Ravinder, Rajinder, Chandan and Janak Singh (Appellants) alighted from the Van. Appellants Ravinder and Rajinder shouted for ''Sood'' and on hearing their call Desh Raj Sood came out and thereafter he again went inside the ''Dera''. Then Appellants Ravinder and Rajinder brought him outside the ''Dera'' and thereafter they took him towards the dark side and Appellant Ravinder took out the knife from his pocket. The other two persons Janak and Chandan who were near the Van also followed Ravinder and Rajinder in the dark side. On seeing this incident, he and Yash Pal went inside the ''Dera'' to call for P Ws Roop Chand, Budhi Singh and Sushil. When they all came outside from ''Dera'', they saw Desh Raj Sood coming towards them and also saw Appellants Chandan, Janak, Ravinder and Rajinder going towards the Van and thereafter the Van left the place. Desh Raj Sood came towards them and laid down on the cot outside the ''Dera'', He took water and after taking it, he breathed his last. PW Roop and Sushil went to the house of Pradhan to inform him regarding the incident who came at about 12 at night and saw the spot and deputed Panch to look after the dead body of the deceased. Thereafter, the matter was reported to Police by P Ws. Yash Pal, Roop Chand, Pradhan and Sushil and he remained present in the ''Dera''. In his cross-examination he said that he had deposed to the Police on the same day when the Investigating Officer visited the spot that he had also witnessed the occurrence. He denied the suggestion of the defence that he also accompanied Yash Pal and others to report the matter. He has stated that he was acquainted with all the Appellants even prior to the incident. He denied the suggestion of the defence that the Appellants were not known to him earlier to the incident. However, he admitted that he did not know Rajinder Paul (A-4) nor he knew the name of Appellant Chandan Singh. He denied the (sic) of the defence that on the day of occurrance, Desh Raj Sood deceased and PW Ramesh Chanrd had consumed liquor and they were stopping the vehicle on the road under - the influence of liquor. He also denied the suggestion chat Desh Raj Sood (deceased) and PW Roop Cnand halted the van in question wherein there were 8-10 persons sitting inside and they forced them to come out and attacked the occupants of the Maruthi Van with ''Lathies''.

Roop Singh (PW-5) has corroborated the versions of P Ws. Yash Pal and Kulvinder Singh on all material aspects. He was acquainted with the Appellants prior to the incident. He has stated that he did not recognize the driver of the Van during that night. Appellant Rajinder is his relative. He denied the suggestion of the prosecution that Appellant Janak Raj had also lodged a report in the Police Station prior to the jodging of the FIR by them. However, he has admitted that when Appellants Ravinder, and Rajinder entered their ''Dera'' and took Desh Raj (deceased) out it was in cordial atmosphere. He has also denied the suggestion of the prosecution that in order to fill up the lacuna in respect of the identification, parentage and addresses of the Appellants, he had been examined and tutored in this behalf as the discrepancies regarding such facts had been left by other witnesses. He denied the suggestion that on the day of occurrence, he and Desh Raj Sood deceased were drunk and were stopping the vehicles on the road during that night. He also denied the suggestion that the vehicle in which Appellant Janak Raj alongwith 5-6 other persons was going to attend the marriage party at Haripur was also stopped by them and asked the occupants to come out and started giving beatings to them by ''Lathies''. He also denied the suggestion that the stab wound was also inflicted on the back of Appellant Janak and in the scuffle Appellant Ravinder also sustained injuries. He also denied the suggestion that the Appellants ran away from the place after saving their lives at his hands and Desh Raj (deceased). He also denied the suggestion that ''Thaintha'' which -was used for turning the ''Chapaties'' was stained with human blood. However, he has admitted that there was competition between Swang Katha Udyog and Mahesh Katha Udyog regarding purchase of ''Kher'' trees.

Lachman Singh (PW-6) was Pradhan of Gram Panchayat Kharian. He stated that on 31.10.1989 at about 10 or 11 PM PW Roop Chand and Sushil apprised him that there had been a fight in which their man was killed by Appellants Ravinder and Rajinder. He visited the spot and saw a man who had breathed his last. He went to the house of Ward Fanch Shri Amin Chand and deputed him to safeguard the dead body and thereafter he went to the Police Station alongwith Sushil Kumar and P Ws Roop Chand, Yashpal and another man, whose name he did not remember. PW Yash Pal lodged the report. Thereafter the Police came with them at about 2 or 2.30 A.M. to the spot. Inquest report (Ext.PE) was prepared and signed by him. The Police took into possession ''Thaintha (Ext.P-12) and its handle (Ext. P-14) which were lying separately on the spot. One ''Danda'' (Bamboo) (Ext.P-13) was also taken into possession from the spot. In his cross-examination, he stated that he did not ask Sushil, Roop Lal, P Ws. Yash Pal and Budhi Singh regarding the occurrence nor they told him anything about it. Shri Amin Chand (PW-7) was Panch of Sapru Panchayat since 1986. He stated that on 31.10.1989 in the mid-night PW Lachman Singh, Pradhan'' came to him and told him that he had to accompany him to the place i.e. ''Dera'' of ''Munshies'' and further told him that there had been a fight and a person had expired. PW Lachman Singh deputed him to guard the body and himself went to the Police Station alongwith ''Munshies''. On November 7, 1989 Police called him and was taken to Dehri-Nala. Besides, him one Chaudhary Sher Singh and Police party were with him and Police told him that they had to make the search regarding knife in the nullah. Chaudhary Sher Singh found knife (ext.P-11) in the bushes and produced it to the Police. In his cross-examination he has denied the suggestion that the Police had pointed out the bush where the knife was lying. He has also denied the suggestion that before reaching on the spot, some Policewallas were already there in the nullah. Sukhi Ram (PW-8) took photographs of the dead body of Desh Raj deceased and produced negatives (Exts.P-18) and P-19).

Surinder Kumar (PW-10) is the Panch witness of the recovery of Maruti Van and disclosure statement (Ext.PM) made by Appellant Ravinder Kumar. He stated that on 6.11.1989 he had gone to Police Station Haripur in connection with his own work. The Station House Officer was inquiring from the Appellant Ravinder and on such inquiry he told to the S.H.O. that he had thrown knife near Pullia (culvert) behind Sapru. The disclosure statement was made by Appellant Ravinder in the presence of Jeet Ram. In his cross-examination, he has admitted that he was a water carrier in the Police Station. However, he has admitted that since he was posted as a Water carrier in the Police Station therefore, he had been tutored to depose the aforesaid statement.

S.I. Durga Datt (PW-14) was posted as Station House Officer at Police Station, Haripur in the year 1989-90. He stated that on November 1, 1989 PW Yash Pal reported the taking place of the incident of commission of an offence to him and he scribed the FIR (Ex.PD). He reached the place of incident at 3.15 A.M. and investigated the case. In his cross-examination, he has admitted that deceased Desh Raj and PW Roop Chand has interrupted the car in which Appellant Janak Raj was going to Haripur accompanied by the other Appellants and some other persons. He also states that statement of Appellant Janak Raj was scribed on October 31, 1989 who lodged the FIR 65 of 1989 under Sections 324/247 etc. of the Indian Penal Code, and complained that Desh Raj (deceased) had assaulted him. The said case was sent for cancellation by him. He has also stated that the name of Appellant Janak Raj may find place in the FIR and the inquest report. Janak Raj was not arrested till November 5, 1989 as he was undergoing treatment in the Hospital for the wound. He also stated that the knife was searched by PW Sher Singh from the place which Appellant Ravinder Kumar had pointed out.

Doctor S.K. Sharma (Pw-2) was posted as Medical Officer at Primary Health Centre Haripur since August, 1981. On 31st October, 1989 at 9.30 P.M. he conducted the medical examination of Appellant Janak Singh and found the following injuries on his person:

There was stab wound on the right side of the back in the 9th and 10th intercoastal space, oblique in direction, below the inferior angle of scapulla 2.5 x .4 cm. (The depth of the wound could not be ascertained as there was profused bleeding from the site) 8.5 cms from the mid line at the level of T.10 and T.11 (Thoracic vertebra) Air bubbles were coming out from the injury site. There was surgical emphysema around the wound.

Bruise through the right side of the chest below the right mammary region. 1.5 x 1 cm pink in colour.

The patient was referred to District Hospital, Dharamshala for ascertaining the depth of injury No. 1 and X-ray chest P/A wound. According to him injury No. 2 was simple in nature. The probable duration of the injuries was 1/2 to 1-1/2 hours and weapon used for injury No. 1 was sharp. He issued Medico legal certificate (Ext.PB) in this respect. He rules out the possibility of causing the injuries mentioned in certificate (Ext.PB) by ''Thaintha'' (Ext.P-12).

On the same day at about 10.45 PM he also medically examined Appellant Ravinder Kumar Sharma and found the following injuries on his person:

There was an abrasion on the right index finger, dorsolateral sidie of first phylanx .8.x.6 cm Fresh oozing blod.

Vertical abrasion on the dorsal side of left fore-arm in the middle place medially 4.5 x 1 cm in size. No covered with black scab.

Haemotomma over occiput 1.5 x 1 cm in size with abrasion over it measuring .5 x .5 cms. in size.

Oblique bruish over the left leg, placed middle to the knee joint 5 x 2 cm in size. Pink in colour.

All the injuries were found simple in nature and probable duration of the injuries was 1 to 2 hours. Weapon used was blunt. He issued Medico Legal Certificate (Ext.PC) in this regard. He admitted that these injuries could be caused by a fall. In his cross-examination he admitted that injury Nos. 3 and 4 mentioned in Ext.PC could be caused by ''Danda'' blow. Injured were examined at the instance of the Police. He has stated that he neither received X-ray nor the report conducted by the Doctor of Civil Hospital Dharamshala regarding injury No. 1 on the person of Appellant Janak Singh. According to him there might be a slight fracture of pleura of lungs in case of Appellant Janak Singh as mentioned in injury No. 1 of Ext.PB. However, he showed his ignorance whether Appellant Janak Singh was admitted as indoor patient in District hospital at Dharamshala. He also stated that injury No. 1 could have been dangerous to the life of Appellant Janak Singh.

Doctor S.K. Sharma was recalled for re-examination on 25.6.1991. On such re-examination he has stated that he received photostat copy (Ext.PQ) of the opinion of the Surgeon from Dharamshala on 6.11.1990. However, he has admitted in his cross-examination that the depth of the injury had not been given by the Surgeon. He stated that injury No. 1 could have been proved dangerous if it had ruptured the pleura.

Doctor R.K. Chaudhary (PW-15) was posted as surgical Surgeon at Zonal Hospital Dharamshala in the year 1989. He examined Injured Janak Singh at 2.00 A''.M. on 1.11.1989 and found the following injuries on his person:

There was a stitched wound on right side of the chest on the back aspect.

The wound was in the intra scapular region in the line of about 3" medial to posterior axillery lone.

There was no sign of haemopheumothorax.

The vital signs were normal.

The injured was X-rayed on 2.11.1989. On perusal of the X-ray film, it was found to be normal. The injured was discharged on November 3, 1989.

Shri T.R. Chandel, learned Counsel appearing on behalf of the Appellant has pointed out some contradictions in the FIR and testimony of PW Yash Pal. The first contradiction pointed out is that in the FIR the witness had stated that Appellants Ravinder Kumar and Rajinder Singh entered the room, took Desh Raj outside by dragging and started scuffling with him and there was a quarrel for some time, whereas in his statement he has stated that Appellants Ravinder and Rajinder also went inside the ''Dera'' and brought Desh Raj outside. We find that this minor variation cannot always be termed to be the result of embellishment, concoction and padding. This minor contradiction does not affect the merit of the case since it does not improve the defence version. The material witnesses P Ws.. Yash Pal, Kulvinder Singh and Roop Chand have stated in" one voice that Desh Raj was called by Appellants Ravinder and Rajinder and was taken to a dark place. The evidence of the prosecution witnesses do find corroboration from the defence of the Appellants. The Appellants Janak Singh and Ravinder Kumar have stated in their statements u/s 313 Code of Criminal Procedure that (deceased) Desh Raj has attacked them on the fateful evening when they alongwith others were going in a Maruti Van for attending the ''Barat'' of brother of Appellant Janak Singh. According to their statements Desh Raj (deceased) and other persons accompanying him were drunk and when the Appellants reached at Sapru they were stopped and were given beatings by Desh Raj (deceased), Roop Chand and few other persons with ''Lathies''. According to Appellant Janak Singh when he was trying to go inside the Van then someone stabbed him from behind. This incident is stated to have occurred at about 8 or 8.30 P.M. Appellants Janak Singh and Ravinder Singh went to the Primary Health Centre Haripur for medical treatment. The presence of the Appellants at the scene of occurrence at about 9 P.M. and their participation in the commission of the offence have been clearly established by the evidence of P Ws. 3,4 and 5. These witnesses have come to this place to earn their livelihood by catering the labour demand of M/s Mahesh Udyog. They have no reason to falsely implicate the Appellants.

The next submission of Shri T.R. Chandel, was that the medical evidence had not supported the ocular version of the prosecution. According to the learned Counsel Dr. J.R. Azad has stated that size of the knife (Ext.P-11) was not sufficient enough to cause the injury in question especially injury No. 1. In support of this contention he has relied upon Mohinder Singh Vs. The State, . In that case their Lordships of the Supreme Court have held that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or atleast possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case. In the present case it has come in the evidence of P Ws. Yash Pal, Kulvinder and Roop Chand that the Appellants came in a Maruti Van bearing registration No. DNH-3017, to the ''Dera'' where the deceased was taking meal with them. The Appellants alighted from the said Van and shouted the name of Desh Raj as ''Sood'' ''Sood''. On hearing his name being called by the Appellants, Desh Raj came outside the ''Dera'' and on seeing the Appellants, he went inside the ''Dera''. Appellants, Ravinder Kumar and Rajinder Singh entered the ''Dera'' and brought Desh Raj outside the ''Dera'' and took him on a side of the ''Dera'' where it was dark. In the meanwhile, the other Appellants followed Sood by joining them. It is clear from the evidence of PW Yash Pal, that when Appellant Ravinder took out a knife, he shouted to the other witnesses saying that the deceased was being taken to a dark place by the Appellants; but by the time all could collect the Appellants had fled away in the Maruti Van as the driver of the vehicle had kept the engine on so that it could take off immediately. Dash Raj returned to the ''Dera'' with a severe wound on his stomach. He lied on the cot and breathed his last instantaneously. These three witnesses have adduced their evidence in a straightforward manner and remained unshaken in cross-examination. We are unable to discover any reason to discredit their testimony. There is no denial of the fact that Desh Raj had any wound before he was attacked by the Appellants in the manner aforesaid. The deceased could not be expected to have been assaulted by any other person than the Appellants. There cannot be any dispute regarding identity of the Appellants as they were known to the witnesses and were together though in different firms. The witnesses had placed their identities with clarity. The Doctor has opined that injury Nos. 1 and 2 were caused by a sharp edged weapon and probable time between injuries and death was within an hour. He had also stated that injury Nos. 1 and 2 could be caused with a knife and injury No. 1 was sufficient in the ordinary course of nature to cause death. The medical evidence has corroborated the ocular version of the prosecution witnesses in its entirety. The opinion of Doctor J.R. Azad to the fact that injury No. 1 was not caused by knife (Ext.P-11) is not sustainable. This opinion was given by him because according to him blade of the knife was short and the wound found on the chest of the deceased was longer than the blade of the knife. According to Doctor Modi''s Medical Jurisprudence and Toxicology Twentieth Edition the learned Author at page 212 observed as under:

The depth of a stab or punctured wound is much larger than its length or width, and may be equal to, or less than, the length of the. blade of the instrument causing it. In some cases the depth may even be greater than the length of the blade owing to the fact that the force of the blow may depress the tissues of the part struck, allowing the point to reach the deeper tissues such as in abdomen.

Therefore, it is clear from the passage referred to above that in some cases the depth of the wound can be greater than the length of the blade. The opinion to the contrary given by Doctor Azad is not sustainable in the facts and circumstances of the present case.

Shri Chandel has also cited Pratap Misra and Others Vs. State of Orissa, and Kusa and Others Vs. State of Orissa, .

We have perused these decisions and are of the view that these decisions are not helpful to the Appellants. In Pratap Misra''s case it was observed that where there was a discrepancy of some hours between the opinion of the Doctor and the version of the prosecution about the time of commission of rape, it was futile for the Courts to make a detailed research on the point and the opinion of the Doctor should not have been disbelieved on that ground alone. In Kusa''s case (supra) their Lordships observed that while making dying declaration the deceased was fully conscious and was not suffering from any confusion of hallucination and in the absence of any question put to the Doctor by the accused 1n his cross-examination regarding view expressed by the author regarding the state of mind of the deceased, the dying declaration could not be attacked on the ground that the deceased was in a state of shock. In our humble view the facts of those cases are not at all relevant to the facts of the present case.

The next contention of the learned Counsel for the Appellants was that Appellant Janak Singh was attacked at the first instance by Desh Raj (deceased), PW Roop Chand and other persons at the road side when he was going in the Maruti Van for attending the marriage ceremony of his brother alongwith other occupants and he lodged the First Information Report earlier to the alleged occurrence. According to the learned Counsel the prosecution has failed to explain the injuries sustained by Appellants Janak Singh and Ravinder Kumar. In the facts and circumstances of the case the Appellants are entitled to benefit of doubt. Undisputedly, Appellant Janak Singh lodged First Information Report earlier to the incident in which Desh Raj (deceased) died. He was also medically examined by the PW Doctor S.K. Sharma on 31st October, 1989 at 9.30 PM and found injuries on his person. Similarly, Appellant Ravinder Kumar was also examined by him on the same day at about 10.45 PM and found some minor injuries on his person. The defence of these two Appellants was that they were given beatings by Desh Raj (deceased), and PW Roop Chand and some other persons under the influence of liquor1 while they were going to Haripur to attend the marriage of brother of Appellant Janak Singh and Janak Singh was also stabbed by one of the assailants.S.I. Durga Datt (PW-14) has no doubt admitted that the deceased Desh Raj and Roop Chand have interrupted the car in which Janak Raj was going to Haripur accompanied by the Appellants and some other persons. From the evidence on record, it appears that some dispute arose between the Appellants and deceased Desh Raj on the day of occurrence at about 8 or 8.30 PM in which Appellants Janak Singh and Ravinder Kumar received injuries and FIR was also lodged about the occurrence by Appellant Janak Singh against deceased Desh Raj and others. From these facts it appears that the Appellants had come to the ''Dera'' of the deceased with intention to take revenge and ultimately Desh Raj deceased was done to death with lethal weapon like knife which Appellant Ravinder was concealing in his pocket. In the facts and circumstances of the case the Appellants had taken law in their hands by killing Desh Raj deceased, therefore, they are not entitled to get benefit of doubt in the facts and circumstances of the case.

The last submission of the learned Counsel for the Appellants was that the alleged eye-witnesses did not name any of the assailants to PW Lachman Singh, Pradhan at the first instance which shows that their names were subsequently inserted in the FIR after due deliberations. We are afraid we cannot accept this submission. After perusing the evidence of the material witnesses, as discussed above, we are left with the impression that they are truthful witnesses. One of the witnesses namely Roop Singh (PW-5) is the relation of Appellant Rajinder. There is also no such suggestion as to why PW Roop Singh the relative of the Appellant Rajinder has deposed falsely against the Appellants nor any enmity has been shown against other witnesses by the Appellants. The totality of the evidence and the circumstances relied on clearly establishes the guilt of the Appellants. The learned Additional Sessions Judge reached the correct conclusion after assessing the entire evidence on record.

No other submission was made by the learned Counsel appearing for the parties.

For the aforesaid reasons, we uphold the conviction and sentence imposed by the trial Judge and dismiss the appeal. The Appellants are on bail, they shall surrender to their bail bonds which are hereby cancelled and they shall be taken into custody and sent to jail to serve out the remaining portion of the sentence.