Indian penal code

Laxmi Devi & others

vs
State

Submitted to: submitted By :

Mrs Pushpinder Priya Bhagat Negi
B. Com LLB (HONS)
293/16
 Facts Of Case
1. Criminal law was set into motion, when on 05.03.1995, at about 08:30 PM HC Harinder
Singh, who was on picket duty in Seelampur area was informed by a person that an
incident of quarrel and stabbing had taken place near Valmiki Mandir, C-Block,
Seelampur, upon which HC Harinder Singh proceeded to the said spot where he saw a
person named Hari Shankar (here in after referred to as the “deceased”) lying injured on
the road his father Ram Kumar bleeding from the head. HC Hrarinder Singh arranged a
TSR and one Sansar Singh removed Ram Kumar and his son i.e. the deceased to GTB
hospital in the said TSR. At that time, a bystander informed HC Harinder Singh that wife
of Ram Kumar namely Shanti Devi was also injured in the incident in question and had
already been removed to GTB hospital in a PCR van. HC Harinder Singh transmitted the
aforesaid information trough wireless to Police Station Seelam Pur where DD No.52B
Ex.PW-21/DA was recorded; noting the aforesaid information.

2. Being handed over a copy of DD entry Ex.PW-21/DA, Const. Raj Kumar, Inspector Iqbal
Mohd., ASI Ramesh Chand and SI Baldev Singh, proceeded to the spot where HC
Harinder Singh informed them that the injured persons have already been removed to
GTB hospital. Leaving HC Harinder Singh at the spot, the remaining police officers
proceeded to the hospital where they learnt that the deceased had been declared brought
dead as recorded in the MLC Ex.PW-24/B of the deceased. Be it noted here that the MLC
Ex.PW-24/B of the deceased records t of that the deceased was brought to the hospital by
one Sansar Singh.

Report
 Thereafter Inspector Iqbal Mohd. PW-19, collected the MLCs Ex.PW-24/D and Ex.PW-
23/A of Ram Kumar, the father of the deceased and Shanti Devi, the mother of the
deceased, respectively. The relevant portion of the MLC Ex.PW-23/A of Shanti Devi, the
mother of the deceased, notes as under:-
I. CLW over scalp 5cm x0.5cm
II. Incised would (illegible) long over Rt arm
III. Incised would 3cm long over Rt forearm
IV. Abrasion with contusion over Lt shin 5cm long. The kind of weapon used or
poison (1 & 4) Blunt suspected in case of poisioning (2 & 3) Sharp Name of
injuries Simple (Simple, Grievous, dangerous)
 The relevant portion of the MLC Ex.PW-24/D of Ram Kumar, the father of the
deceased, records as under:-
“Name of relative or friend B/by Sansar Singh s/o Itwari Lal, C-9, New Seelampur
Delhi…injuries:
I. A penetrating injury in the LT side of the chest between Ant & Post axillary line
in between 6th & 7th rib length -4 – 5cm: sucking wound 2. Bruise over forehead
The kind of weapon used or poison 1. Sharp suspected in case of poisoning 2.
Blunt”
 On 05.03.1995 at about 10.00 PM the doctor declared Ram Kumar PW-3, the father of
the deceased to be fit to make a statement pursuant to which SI Baldev Singh PW-22,
recorded the statement Ex. PW-3/A of Ram Ku mar. The statement Ex.PW-3/A of Ram
Kumar is in Devnagri script. Translated, it reads as under:-
“I reside at the aforesaid address with my family and do my private business. Today, at
about 06:00 P.M. my wife had a minor quarrel with Sanjay s/o Shyam Babu is my
neighbor and resides in C PB 20 over the parking of TSRs. My son Hari Shankar parks
his TSR on the road in front of his house and his neighbor Anil s/o Shyam Babu also
parks his TSR on the said road and also quarrel with them over the said issue. Today, my
wife alone went to the police station to lodge a report in connection with the quarrel she
had with Sanjay earlier in the day however on account of neighborly relations I brought
her back from the police station before she could lodge a report. After about one hour i.e.
08:30 P.M. my wife Shanti Devi was standing in front of his house when Anil s/o Shyam
Babu came there and started abusing her and said that they would not not let our TSR to
be parked on the road in question. On hearing the same my son Hari Shankar also came
out and said to Anil @ Pappu that “why are you abusing my mother?” upon which Anil
said that “as of now he had only hurled abuses, now he would tell him”. At that very
time Anil went inside his house and brought a knife from inside and his father Shyam
Babu was also accompanying him. Shyam Babu caught my son Hari Shankar from
behind and Anil inflicted several knife blows on my son Hari Shankar. When my
Wife Shanti Devi tried to save my son wife of Babu Laxmi Devi gave a blow on her
head with a rod and Anil inflicted a knife blow on the right hand of my son Rajesh s/o
Shyam Babu caught me from behind and Sanjay stabbed me with a knife which hit me on
my (illegible). My wife who was in an in an injured condition ran from there to inform
the police. My neighbor Sansar Singh put me and my son Hari Shankar in a TSR and got
us admitted in the hospital. The doctor declared my son Hari Shankar as brought dead.
Shyam Babu, his wife Laxmi Devi and his son Anil @ Pappu, Sanjay and Rajesh
launched a murderous attack on us with a common intention which caused the death of
my son Hari Shankar. I and my wife sustained serious injuries. An action be taken against
the said persons.
I have read my statement and the same is correct.”
 Thereafter SI Baldev Singh PW-22, made an endorsement Ex.PW-22/A on the statement
Ex.PW-3/A of Ram Kumar, and at about 10.50 PM on 05.03.1995 handed over the same
Const. raj Kumar PW-14, for the purposes of registration of an FIR. Const. Raj Kumar
took the endorsement Ex.PW-22/A to the police station where HC Abdul Hamid PW-12,
registered the FIR No. 149/1995 Ex.PW-12/A.
 Soon after the registration of the FIR, Shanti Devi PW-4, the mother of the deceased,
made a statement Ex.PW-4/DA under Section 161 Cr.P.C.to SI Baldev Singh PW-22,
which statement Ex.PW-3/A of Ram Kumar and also implicated the appellants and one
Rajesh as the assailants of the deceased.
 There after Const. Raj Kumar PW-14, Inspector Iqbal Mohd. PW-22, returned to the
place of occurrence where they saw that the earth in front of the house of the deceased
was stained with blood at two different spots. SI Baldev Singh PW-22, lifted the earth
stained with blood as also the earth control and seized the same vide memo Ex. PW-
18/A.
 Since the deceased was declared brought dead at the hospital, his body was sent to the
mortuary, where at about 11.15 A.M. on 06.03.1995 Dr. A.K. Tyagi PW-11, conducted
the post-mortem of the deceased and gave his report Ex. PW-11/A,

 which records that following external injuries were found on the person of the deceased:-
I. “Incised stab wound of 3.2 X 1.1. cms present obliquely over right side of chin.
II. Incised stab wound of 2.5 X 1.5 X cavity deep slightly obliquely over middle
front of left side of chest. The upper angle is 2.5cms obliquely downwards and
inwards to the nipple. Both the angels are acute. Entering the left side chest cavity
through 3rd intercostals space then entered the upper rib of left lung in its middle
near the inner margin by making a cut of 2.5 X 0.5cms and then came out through
the inner surface and further going obliquely upwards and backward and ended by
making a cut of 1.0 1cms into 0.1cms in the wall of ascending arch of aorta. Total
depth of the injury was 105cms.
III. Incised wound of stab of 2.2 X 0.8cms present obliquely over middle centre of
left side abdomen. Both the angles were acute and injury was going backward and
slightly inwards from left to right into the muscle of abdomen, up to a depth of
2.0cms.
IV. Three small abrasions in an area of 3.0 X 0.5cms present over middle front of
right leg.
V. Abrasions of 2.8 X 0.8cms present over lower outer front of right knee.
VI. Abrasions of 1.0 X 0.8cms present over lower inner front of right knee.
VII. Incised stab wound of 2.5 X 1.0cms present over upper outer and middle outer of
right buttock, 7cm outer to ant. Sup. Iliac spine going inward and forwards and
 right to left and into the muscle of buttock pierce the iliac bone entered and pelvic
cavity. Both the angles were acute with plenty of effusion of blood in the pelvic
structures.
VIII. Incised stab wound of 3.8 X 1.8cms X? cavity deep present obliquely, over lower
outer of right side abdomen, 2cms above the injury no. 7. Both the angels were
acute going obliquely upwards inward and forward into the tetro peritoneal upto a
depth of 10.8cms with plenty of effusion in the area.
IX. Incised stab wound of 3.8 X 0.8cms was present obliquely over middle back of
left side abdomen. Both the angels were acute. The injury went obliquely upwards
slightly inwards and forward into the abdominal muscle upto the depth of 10cms.”
 The post-mortem report Ex. PW-11/A of the deceased further records that the death of
the deceased was caused due to shock as a result of hemorrhage caused by multiple
injuries found on the person of the deceased; that the injuries Nos. 1,2,3,7,8 and 9 found
on the person of the deceased were caused by sharp double edged stabbing cutting
weapon; that injuries Nos. 4,5 and 6 found on the person of the deceased were caused by
blunt force impact and that the injuries Nos. 1,2,3,7,8, and 9 on the person of the
deceased were sufficient to cause death in ordinary course of nature.
 On the same day i.e. 06.03.1995 the police recorded the statement of Sansar Singh PW-2,
under Section 161 Cr. P.C. wherein he claimed to have witnessed the incident in question
and impliaced the appellants and accused Rajesh as assailants of the deceased.
 Since the parents of the deceased had implicated the appellants and accused Rajesh as the
assailants of the deceased, the police set out to apprehend them. Appellants Shyam Babu
and Laxmi Devi were arrested by the police in the intervening night of 05.03.1995 and
06.03.1995 while the remaining appellants i.e. Anil and Sanjay and accused Rajesh were
arrested on 08.03.1995.
 Upon being interrogated by SI Baldev Singh PW-22 in the presence of Const. Jagpal PW-
1, appellant Anil made a disclosure statement Ex. PW-1/B and stated that he can get
recovered the dagger used by him in murdering the deceased. Pursuant thereto, appellant
Anil led SI Baldev Singh and Const. Jagpal to a drain and got recovered a dager from the
said drain, which dagger was seized by SI Baldev Singh vide memo Ex. PW-1/C. since
no recoveries were made pursuant to the disclosure statements of the other accused, we
need not note what they stated.
 On 24.03.1995 the dagger recovered at the instance of appellant Anil was sent to Dr.
A.K. Tyagi PW-11, for his opinion regard weapon of offence. Vide his opinion Ex. PW-
11/B, Dr. A.K. Tyagi opined that the injuries Nos. 1,2,3,7,8, and 9 found on the person of
the deceased are possible to have been caused by the dagger recovered at the instance of
appellant Anil.
 Armed with the aforesaid materials, the police filed a charge sheet against the appellants.
Needless to state, the appellants were sent for trial. Be it noted here that the trial of co-
accused Rajesh was conducted before a Juvenile Court as he i.e. Rajesh was juvenile
 when the crime was committed. We are not concerned with Rajesh in as much as the
decision impugned before us pertains to the appellants who are husband and wife and
their 2 sons. Charges were framed against the appellants for having committed offences
punishable under Sections 302 and 307 IPC read with Section 34 IPC.
 At the trial, the prosecution examined 25 witnesses. The various police officers whose
names we have noted here in above while setting out the registration of the FIR, the
investigation conducted deposed facts pertaining to the seizures made, arrest of the
appellants and the recovery of a dagger at the instance of appellant Anil and learned
counsel for the appellant conceded that he had no worthwhile points to argue qua the
same. Thus, we need not note in detail the testimony of the said police officers.

nsar Singh PW-2, turned hostile and denied having made a statement to the police to the
effect that he had witnessed the incident in question. He deposed that he had removed the
deceased and his father Ram Kumar to the hospital on the day of the incident.

 Ram Kumar PW-3, the father of the deceased, deposed in complete harmony with his
statement Ex.PW-3/A. Be it noted here that suggestions were given on behalf of the
appellants to the witness in his cross-examination that a quarrel had taken place on
05.03.1995 few hours prior to the incident in question when and objection was raised by
appellant Sanjay over parking of a TSR; that the police had come to the spot in
connection with the said quarrel and that son of Ram Swaroop i.e. Swaraj Singh had
invented in the said quarrel.
 Laxmi Devi PW-4, the mother of the deceased, deposed on same lines as her statement
recorded by the police under Section 161 Cr. P.C. and which we note is in sync with the
statement of her husband on basis where of the FIR has been registered and thus we do
not note the same in detail, but we note that as against her statement to the police in
which she said that accused Sanjay caught hold of Ram Kumar and accused Rajesh
inflicted knife blows on his person, in her deposition in Court she stated that Rajesh
caught hold of Ram Kumar and Sanjay inflicted knife blows on his person. When
confronted with the said discrepancy during cross-examination she stated:- (Quote) “I do
not remember now whether I had told in my statement before police Sanjay accused got
hold of my husband and Rajesh hit him with a knife. Confronted with portion A to A of
statement Ex.4/DA where it is recorded that Sanjay got hold of my husband and Rajesh
stabbed him. (Vol. I had told the police as already stated by me in chief).
 Dr. A.K. Tyagi PW-11,deposed that he had conducted the post-mortem of the deceased
and that the post-mortem report Ex. PW-11/A of the deceased and the opinion Ex. PW-
11/AB regarding weapon of offence were prepared by him. Dr. Sandeep Arora PW-24,
deposed that the MLCs Ex. PW-24/A and Ex. PW-24/B of Shanti Devi and the deceased
respectively were prepared by him and that the MLC Ex. PW-24/D of Ram Kumar was
 prepared by Dr. S.S. Tripathi and that he can identify the handwriting and signatures of
the said doctor.
 In their statements under Section 313 Cr.P.C. the appellants denied everything and stated
that the parents of the deceased have falsely implicated them in the present case as they
were inimically disposed towards them. Appellants Shyam Babu and Laxmi Devi stated
that on 05.03.1995 the deceased had a quarrel with some unknown persons in the market
of Seelampur and that the said unknown persons murdered the deceased and inflicted
injuries on the person of parents of the deceased when they tried to save the deceased.
Appellants Anil and Sanjay stated that they were not present in their house on 05.03.1995
i.e. the day of the incident as they had gone to their maternal uncle on that day and stayed
on that day and stayed there until 07.03.1995.
 Relevant would it be to note that in their statements under Section 313 Cr.P.C. Shyam
Babu and Laxmi Devi have admitted the present of the deceased evidenced by their
statement that the 2 received injuries when they tried to save their son, whom these 2
persons claim was attacked by strangers.
 The appellants examined 5 witnesses in defence.
 Ram Swaroop DW-1, deposed that on 05.03.1995 at about 06.00 P.M. the mother of the
deceased Shanti Devi quarreled with his son Swaraj Singh over the parking of a TSR and
that she had got his son arrested by the police in connection with the said quarrel. On the
same day i.e. 05.0503.1995 at about 08.30 P.M. he and Virender Jhan were standing
infront of his house and talking to each other when standing infront of his house and
talking to each other when they saw that the deceased who was standing near his house
had started running in the direction of Balmiki temple after seeing some unknown 6-7
boys and that he also saw the father of the deceased going in that direction. The deceased
had a quarrel with said unknown 6-7 boys. He further saw that some jostling too place
between mother of the deceased Shanti Devi and the said 6-7 boys upon which Shanti
Devi fell on ground. He claimed to have narrated the entire incident to the police.
 Amrit Lal DW-2, the maternal uncle of appellants Anil and Sanjay, deposed that
appellants Anil and Sanjay were present in his house the entire day on 0.03.1995 and that
he and Anil and Sanjay had watched a movie between 06.00 P.M. to 09.00 P.M. on that
day.
 Virender Jha DW-3, deposed that on 05.03.1995 at about 08.30 P.M. he and Ram
Swaroop were standing in front of the house of Ram Swaroop and talking to each other
when he saw that the deceased who was standing in front of his house had started running
in the direction of Balmiki temple after seeing some unknown 6-7 boys. He also saw
mother of the deceased Shanti Devi running in the direction of her house.
 Swaraj Singh DW-4,deposed that on 05.03.1995 at about 5.30/6.00 P.M. the mother of
the deceased quarreled with him over the parking of a TSR and that she had got him
arrested by the police in connection with the said quarrel.
  Rakesh Kumar DW-5, deposed that he resides in the house bearing Municipal No.C-18,
New Seelampur, Delhi. On 05.03.1995 at about 08.30 P.M. he saw that the deceased was
lying injured on the ground in front of his house.
 Holding that the evidence of the parents of the deceased Ram Kumar PW-3 and Shanti
Devi PW-4,inspires confidence and that the defence set up by the appellants is
completely demolished in as much as suggestions contrary to the defence set up by the
appellants were given on behalf of the appellants of Ram Kumar PW-3, the father of te
deceased, in his cross-examination, vide impugned judgment dated 22.01.1999 the
learned Trial Judge has convicted the appellants for the offence of committing the
murder of the deceased. As regards the charge under Section 307 IPC read with Section
34 IPC framed against the appellants or having attempted to murder Ram Kumar and
Shanti Devi, the learned Trial Judge has held that in view of the facts that the injuries
found on the person of Ram Kumar and Shanti Devi were simle in nature and that there is
no evidence to show that the appellants intended to murder Ram Kumar and Shanti Devi
the appellants cannot be convicted for the offence punishable under Section 307 IPC and
has convinced them for the offence of having caused simple injuries on the person of
Ram Kumar and Shanti Devi by sharp-edged weapons i.e. offence punishable under
Sections 323 and 324 IPC. For the offence punishable under Section 302 IPC read with
Section 34 IPC, the appellants have been sentenced to undergo imprisonment for life and
pay a fine in sum of Rs.5,000/- each; in default to undergo rigorous imprisonment for a
period of six months. For the offence punishable under Section 324 IPC, read with
Section 34 IPC, the appellants have sentenced to undergo rigorous imprisonment for a
period of two months and pay a fine in sum of Rs 1,000/- each; in default to undergo
rigorous imprisonment for a period of two months.

Submissions
 In support of the appeals, learned counsel for the appellant advanced following four
submissions:-
A. The first submission advanced by the learned counsel for the appellants was
predicted upon the testimony of Ram Kumar and Shanti Devi that the . Counsel
argued that the testimonies of Ram Kumar and Shanti Devi, forms the plank of
the case of the prosecution against the appellants and that the learned Trial Judge
has committed an illegality in accepting the testimonies of the said witnessed at
its face value. Counsel argued that the learned Trial Judge ought to have
appreciated the testimonies of Ram Kumar and Shanti Devi, with great caution for
 the reason said witnessed were inimically disposed towards the appellants in as
much as there was a dispute between them over the parking of TSRs.

B. The second submission advanced by the learned counsel for the appellants was
that there are discrepancies in the evidence of Ram Kumar and Shanti Devi . The
first discrepancy pointed out by the learned counsel was predicted upon the post-
mortem report of the deceased. Counsel pointed out that both Ram Kumar and
Shanti Devi deposed that appellant Shyam Babu had caught the deceased from
behind and that appellant Anil inflicted upon the person of the deceased and the
post-mortem report of the deceased records that one stab wound was found on the
back side of the body of the deceased. According to the counsel, had appellant
Shyam Babu caught the deceased from Behind as claimed by Ram Kumar and
Shanti Devi it would not have been possible for appellant Anil to inflict a knife
blow on the back side of the body of the deceased. The second discrepancy
pointed out by the learned counsel pertained to the statement of Shanti Devi. The
counsel pointed out that Shanti Devi stated in her statement that appellant Sanjay
caught hold of Ram Kumar and accused Rajesh inflicted knife blow on his person
while she deposed in her testimony that accused Rajesh caught hold of Ram
Kumar and appellant Sanjay inflicted knife blow on his person. Counsel argued
that various judicial decisions have recognized that there is an incurable tendency
in the complainant group to rope in innocent members of the opposite group along
with the guilty and manipulate and twist the facts with regard to the mode and
manner of the occurrence so as to make their case appear true with the innocent
members of opposite faction also as participants in the occurrence. Counsel
argued that in such circumstances, the discrepancies pointed out by him in the
evidence of Ram Kumar and Shanti Devi assume significance and strongly
probablize that the said witnesses have twisted facts with regard the mode and
manner of the occurrence in order to rope in the entire family of the appellants in
the present case.
C. The third submission advanced by the learned counsel for the appellants was that
only overt acts attributed to appellants Laxmi Devi and Sanjay were that they
prevented the parents of the deceased Ram Kumar and Shanti Devi from saving
the deceased. As per the counsel, in such circumstances, it cannot be said that
appellants Laxmi and Sanjay were sharing any common intention with the other
appellants to murder the deceased, therefore, they ought not to have been
convicted under Section 302 IPC and with Section 32 IPC for committing the
murder of the deceased.
D. Lastly, a feeble attempt was made by the learned counsel for the appellants to
show that the present case does not warrant conviction for offence of murder
 punishable under Section 302 IPC. Counsel argued that evidence of Ram Kumar
and Shanti Devi, if accepted as true, establishes that the occurrence took place
without any pre-meditation in a sudden quarrel and thus the present case is
squarely covered under the fourth exception to Section 300 IPC vis-vis appellant
Anil, and as such appellant Anil, could only be held guilty for offence of culpable
homicide not amounting to murder, punishable under Section 304 Part-I IPC.
 Since the first few submissions advanced by the learned counsel for the appellants pertain
to the alleged discrepancies in the ocular evidence of Ram Kumar and Shanti Devi, we
first proceed to consider the veracity of the evidence of said witnesses.
 In dealing with submissions pertaining to credibility of the witnesses; Ram Kumar and
Shanti Devi , we first proceed to note the following judicially evolved principles
regarding the appreciation of ocular evidence in a given case:-
I. While appreciating the evidence of a witness, the approach must be whether the
evidence of a witness read as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the Court to scrutinize the
evidence more particularly keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence given by the witnesses and whether the
earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidences had the opportunity to form
an opinion about the general tenor of the evidence given by the witness, the
appellate court which had not this benefit will have to attach due weight to the
appreciation of the evidence by the trial court and unless there are reasons
weighty and formidable it would not be proper to reject the evidence on ground
of minor variations or infirmities in the matter of trivial details.
III. A format statement though seemingly inconsistent with the evidence need not
necessarily be sufficient to amount to contradiction. Unless the former has the
potency to discredit the later statement, even if the later statement is at variance
with the former to some extent it would not helpful to discredit said witness.
IV. Animosity is doubled-edged weapon. It cuts both sides. It could be a motive for
committing the crime.
V. The presence of an injured witness at the place and time of the occurrence cannot
be doubted unless there are material contradictions in his deposition.
VI. Unless, it is otherwise established by the evidence, it must be believed that an
injured witness would not allow the real culprits to escape and falsely implicate
the accused.
VII. The evidence of an injured witness has a greater evidently value and unless
compelling reasons exist, their statements are not be discarded lightly.
VIII. The evidence of injured witness cannot be doubted on some embellishment in
natural conduct or minor contradictions.
 IX. If there be any contradiction, exaggeration and immaterial embellishments in the
evidence of an injured witness, then such contradiction, exaggeration or
embellishment should be discarded from the evidence of injured, but not the
whole evidence.
X. In a situation of a kind where the entire members of a family are roped in as
accused, it is the duty of the judge to carefully see whether the complainant group
is using an opportunity where the folly of a few of the opposite group is used;
may misused, as a golden opportunity to ensnare in the clutches of criminal law
the entire family of the ones who have committed the folly. How is this task to be
performed? No straight jacket formula can be prescribed, but the quintessence
and signature tune of whatever formula is applied will have a common
denominator i.e. use of commonsense as a prudent person and have a 360 degree
microscopic look at the evidence.
 From the afore-noted judicial principles, it is clear that the first step in appreciating the
evidence of a witness is to examine his evidence de-hors the discrepancies appearing
therein and see whether the evidence appears to be a truthful account.
 It is most significance to note that Ram Kumar and Shanti Devi , are injured witnesses.
Conscious of the fact that the presence of an injured witness at the place and time of the
incident cannot be easily doubted, a defense was taken by the appellants that the injuries
found on the person of witnesses Ram Kumar and Shanti Devi as also the deceased were
inflicted upon them by some unknown 6-7 boys and not the appellants. To make good the
said defence, evidence was led and arguments were advanced by the appellants before the
learned Trial Court to show that the incident in question did not take place in front of the
house of the family of the deceased as claimed by Ram Kumarand Shanti Devi but had
taken place near Valmiki temple which is situated 400-500 yards away from the house of
the family of the deceased. The aforesaid defence and arguments advanced by the
appellants did not cut any ice with the learned Trial Court has not been challenged by the
counsel for the appellants before us.
 In the instant case, the incident occurred around 08.30 P.M. on 05.03.1995. The statement
of Ram Kumar, which formed the basis of the FIR was recorded at about10.50 P.M. on
05.03.1995. The statement of Ram Kumar was recorded at GTB hospital as evident from
the deposition of SI Baldev Singh was cross-examined at length, but his testimony on the
point of the recording of the statement could not be shaken by the defence. It can
reasonably be taken that it must have taken at least 30 minutes for Ram Kumar in
reaching GTB hospital from the place of occurrence. In these circumstances, the
possibility of Ram Kumar contriving facts and spinning a false story in such less time is
remote.
 SI Baldev Singh, deposed that he had recorded the statement of Shanti Devi under
Section 161 Cr.P.C. soon after recording the statement of Ram Kumar, meaning thereby,
that the statement of Shanti Devi was recorded by SI Baldev Singh soon after the
 occurrence. Be it noted here that the said deposition of SI Baldev Sngh has not been
controverted by the defence. Except for one discrepancy which shall be dealt by us
shortly herein after, the version of the incident given by Shanti Devi in her testimony is
almost similar to the one given by her in her statement. In the decision reported as
Machhi Singh v State of Punjab (1983) 3 SCC 470 it was held by the Supreme Court that
the fact that the version of an incident given by a witness in her testimony is substantially
similar to the one given by a witness in her testimony is substantially similar to the one
given by her in his statement recorded under a section 161Cr.P.C. soon after the
occurrence attaches a ring of truth to the evidence of the said witness.
 In the decision reported as Malkiat Singh v State of Punjab (1991) 4 SCC 391 the
Supreme Court has held that it is settled law that the First Information RReport is not
substantive evidence. It can be used to contradict the maker there of or for corroborating
his evidence and also to show that the implication of the accused was not an after-
thought. In the instant case, the recordings contained in the FIR that Ram Kumar has
stated that he had sustained injuries at the time of the incident stand corroborated by the
of Ram Kumar which records presence of injuries on head and right arm of Shanti Devi.
Furthermore, the recording contained Ram Kumar and the deceased respectively that
Sansar Singh had brought the deceased an Ram Kumar to the hospital and the unshaken
deposition of SI Baldev SSingh, that he recorded that statement of Ram Kumar at GTB
hospital corroborate the recording contained in the statement of Ram Kumar and Sansar
Singh had removed the deceased and Ram Kumar to GTB hospital, which in turn,
establishes the presence of Ram Kumar at the place of occurrence at the time of the
incident.
 The evidence of witnesses; Ram Kumar PW-3 and Shanti Devi PW-4, receives
corroboration from a most unexpected source. Both Ram Kumar and Shanti Devi have
deposed that a quarrel had taken place between Shanti Devi and appellant Sanjay over the
parking of a TSR on 05.03.1995 few hours prior to the happening of the incident in
question. In his cross-examination, a suggestion was given to Ram Kumar on behalf of
the appellants that a quarrel had taken place on 05.03.1995 few hours prior to happening
of the incident in question when an objection was raised by appellant Sanjay over parking
of TSRs. The aforesaid suggestion corroborates the evidence of Ram Kumar and Shanti
Devi that a quarrel had taken place between Shanti Devi and appellant Sanjay over the
parking of a TSR on 05.03.1995 sometime prior to the happening of the incident in
question. Not only that, the aforesaid suggestion prior to the happening of the incident in
question. Not only that, the aforesaid suggestion completely demolishes the defence
taken by appellant Sanjay that he was not present in his house on the entire day of
05.03.195 as he along with appellants Anil and accused Rajesh had gone to the house of
his maternal uncle on the said day.
 The two eye-witnesses; Ram Kumar and Shanti Devi, have corroborated each other on
maternal aspects relating to the incident.
Judgement

 Therefore, the conclusion which emerges from the first reading of the evidence of the
witnesses in question is that they are prima facie truthful witnesses.
 Next, it needs to be considered, whether the so-called discrepancies pointed out by the
learned counsel for the appellants in the evidence of Ram Kumar and Shanti Devi, are in
fact discrepancies? If yes, the effect thereof?
 Is there a discrepancy between the evidence of Ram Kumar and Shanti Devi , and the
post-mortem report of the deceased as contended by the learned counsel for the
appellants?
 We may note that even the learned Trial Judge has concluded as aforesaid while
explaining the injuries on the person of the deceased and the argument that if the
deceased was caught by appellant Shyam Babu having caught the deceased from the
behind would not mean that Shyam Babu was stuck to the deceased from the behind, a
view with which we concur. We shall be discussing this aspect a little more in detail in a
few paragraphs away.
 As contended by the learned counsel for the appellants, there is a discrepancy between
the statement of Shanti Devi as made to the police as her testimony regarding the manner
of attack on Ram Kumar by appellants Sanjay and accused Rajesh. The recording
contained in the statement of Shanti Devi before the police regarding the manner of
attack on Ram Kumar by appellants Sanjay and accused Rajesh is not in sync with the
evidence led by the prosecution on the said point. But the question would be whether the
said discrepancy in the testimony of Shanti Devi is material and destroys the case of the
prosecution. In our opinion the answer is “NO”.
 We have already noted herein above that Shanti Devi statement under Section 161
Cr.P.C. was recorded soon after the occurrence. The deceased had dies by said time. The
husband of Shanti Devi Ram Kumar had sustained injuries on his person. Shanti Devi
herself had sustained injuries on her person. Shanty Devi herself had sustained injuries on
her person. Undoubtedly, Shanti Devi must have been under great stess and trauma at the
time she made the statement to the police. In such circumstances, the possibility that
Shanti Devi was not able to think straight and mixed up the rles of Sanjay and Rajesh is a
natural variation.
 Have Ram Kumar and Shanti Devi taken advantage of the incident in question and ropes
in innocent members of the family i.e. husband, wife and their sons.
 Thus, we find substantial corroboration to the testimony of the two injured eye-witnesses
that the participants in the assault were quite a few. The injuries on the deceased and the
injured eye-witnesses probablizes to the extent of virtual proof that at least four persons
 were involved in the assault and thus we see no reason to doubt the two that five persons
participated in the assault.
 At this juncture, we proceed to deal with the third submission advanced by the learned
Counsel for the appellants.
 Section 34 IPC does not create a substantive offence. The Section fastens constructive
liability if two or more persons sharing the common intention act in furtherance thereof.
The constructive liability under this section would arise if following two conditions are
fulfilled:-
a) There must be a common intention to commit a criminal act
b) There must be participation of all in doing of such act in furtherance of that
intention. Common intention need not be anterior in point of time when the crime
was committed and may develop at the spur of the moment when the crime was
committed.
 In view of above discussion, we do not find any merit in the present appeals. The same
are here by dismissed. The bail bonds and surety bonds of the appellants are cancelled.
The appellant shall surrender forthwith to serve the remaining sentences.
BIBLIOGRAPHY

 Indian Penal Code, 1860 –S.N. Mishra, 17th ed. Central Law
Publication Company, 2012 Essay on Indian Penal Code, 1860 –
K.N. Chandrashekhar, Pillai, Universal Law Publication, 2012.
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