JUDGMENT : ( 1. ) THE judgment in Criminal Appeal No. 1215 of 1984 shall also govern the disposal of Criminal Appeal No. 1191 of 1984, Nabbu @ narbad vs. State of M. P. , since both the appeals arise out of the judgment dated 1-10-1984 by the Fourth A. S. J. , Jabalpur in Sessions Trial No. 124 of 1984. The appellants in above appeals are Om Prakash and Nabbu @ Narbad, respectively. Both have been convicted under section 302 read with section 34, Indian Penal code and sentenced to undergo R. I. for life. Furthermore, both have been convicted under sections 294 and 506-11, Indian Penal Code and each has been sentenced to undergo two months and six months R. I. , respectively, with a direction that the sentences shall be concurrent. ( 2. ) BESIDES these two appellants, one Santosh @ Santosh Kumar, was also tried in the said trial, but he has been acquitted of the charge under section 304/34, Indian Penal Code though convicted under sections 294/506 and 506-11, indian Penal Code and also sentenced to undergo two months and six months r. I. respectively. It seems that there is no appeal preferred by him. ( 3. ) ACCORDING to the prosecution, on 25-12-1983, Pohumal Sindhi (deceased) along with his son P. W. 2 Shhchand, and Munna and Anand Kumar, respectively, driver and conductor of Pohumals truck MBR 8769, came from madan Mahal to Ghamapur at about 10 p. m. The truck was parked by Pohumal by the side of the road and the three cycles kept in the truck were being shifted. All the three accused, who were seated on a a scooter CPK 6439, finding the truck on the road protested as to why the vehicle was kept there. It seems that there was some exchange of hot words between the three accused namely, Nabbu @ Narbad, Om Prakash and Santosh Kumar on the one hand, and Pohumal (deceased) on the other. At that stage, the accused gave threats and went away. Meanwhile, Pohumal brought his truck near his house. It is further alleged, that after a short interval the accused came to that place and the appellants Nabbu and Om Prakash, armed with knives, jointly assaulted Pohumal, who fell unconscious. During that assault, Santosh Kumar did not participate, but stood at some distance. Meanwhile, Pohumal brought his truck near his house. It is further alleged, that after a short interval the accused came to that place and the appellants Nabbu and Om Prakash, armed with knives, jointly assaulted Pohumal, who fell unconscious. During that assault, Santosh Kumar did not participate, but stood at some distance. The injured Pohumal was rushed for medical aid to the Victoria hospital, Jabalpur, but he succumbed to the injuries. P. W. 2 Shrichand lost no time in filing the F. I. R. (Ex. P-4) on the same night, at 10. 40 p. m. at P S. Ghamapur, Jabalpur. P. W. 6 Shri Parihar, Investigating Officer, visited the place of incident and samples of blood stained earth were taken from the place of incident, besides a blood-stained knife which was found lying at that place. The witnesses P. W. 2 Shrichand, P. W. 3 Raju, P. W. 4 Baldeo, Munna and Anand kumar were interrogated the same night. A site plan was also prepared by Shri Parihar. ( 4. ) THE further allegations are, that the accused were arrested on 27-12-1983, and on basis of discovery-statement by appellant Nabbu, blood-stained pant and baniyan (Articles I and H) which were hidden in the house of one Jagdish Kumar, were recovered at his instance. Similarly, a knife (Article D) was also seized from his house pusuant to discovery statement made by him. During investigations, the scooter belonging to the appellant Om Prakash was seized by the police along with the driving licence. The knife and blood-stained articles were sent for chemical examination, and according to the report of the Chemical Examiner, they were stained with blood, though there does not appear any Serologists report. ( 5. ) DURING investigations, the accused were subjected to test identification parade also, which was held before P. W. 5 Markam, Naib Tahsildar and executive Magistrate. They are said to have been indentified by all the witnesses. ( 6. ) THE autopsy was performed by P. W. I Dr. Sakalley on 26-12-1983 who found as follows : external INJURIES " (i) One incised wound which was horizontal and was situated on right side of the chest and was showing tailing on the medial end. The margins of the wound were clean cut and the ends were pointed. The diamensions of the wound were 3" X 3/4" X 3/8". The wound was deepest at the lateral end. The margins of the wound were clean cut and the ends were pointed. The diamensions of the wound were 3" X 3/4" X 3/8". The wound was deepest at the lateral end. This wound was situated one and a half inches of the right nipple, and 3% right to mid line. The underlying tissues were cut. (ii) One penetrating wound situated on the left side of the chest 2", left to mid line, in the second intercostal space. It was transverse. Its size was 1/4 X 3/8". It entering the thorasic cavity. The medial end of the wound was more pointed. The margins of the wound were clean cut and everted. The direction of the wound was medial and backward. (iii) One penetrating wound situated on left hypochondium just below the costal margin. This was oblique and was one and half inch left to mid line. The medial higher end of the wound was more pointed. The margins were clean cut and ecerted. The size was 1" x 3/8" X 3/8". (iv) Abrasion on front of head half inch above and right to bridge of nose. The size was 1" X X. " INTERNAL EXAMINATION " (i) In the track of injury No. 3 the peritoneum was cut on 1 3/8" length and then there was cut on antero lateral wall of stomach near the pylorus of 3/8" length. The margins were clean cut and ends were pointed. . . The total depth of this wound was four inches. (ii) On dissection over injury No. 2 there was cut in tit ; underlying tissues and the inter costal muscles. There was penetrating wound at the medial margin of upper lobe of left lung. . . . . Beyond this there was a through and through cut in the arch of aorta in the middle part. . . . Injuries 1, 2 and 3 were caused by sharp cutting penetrating object and injury No. 4 by friction with hard and rough object. "the cause of death was haemorrhagic shock due to injury to lung and aorta as a result of injury No. 2". . . . . Injury No. 2 was sufficient to cause death. (Post mortem report, Ex. P-1)". ( 7. ) ALL the three accused were charge-sheeted for offences under sections 302/34, 294 and 506-11, Indian Penal Code. "the cause of death was haemorrhagic shock due to injury to lung and aorta as a result of injury No. 2". . . . . Injury No. 2 was sufficient to cause death. (Post mortem report, Ex. P-1)". ( 7. ) ALL the three accused were charge-sheeted for offences under sections 302/34, 294 and 506-11, Indian Penal Code. They pleaded not guilty and stated that they have been falsely implicated. ( 8. ) THE learned trial Court, placing reliance on the statements of P. W. 2 shrichand, P. W. 3 Raju and P. W. 4 Baldeo convicted and sentenced the appellants as stated above. ( 9. ) BOTH counsel for the appellants as also the learned Government advocate for the State heard. Record perused. Before turning to the principal criticism against the evidence, it would be convenient to recapitulate the prosecution evidence against the appellants. The incident was witnessed by p:w. 2 Shrichand, P. W. 3 Raju alias Rajkumar, P. W. 4 Baldeo and the Truck driver and Conductor viz. Munna and Anand, respectively. Prosecution examined only 3 witnesses and the remaining two were summoned but could not be served as they were reported to be out of town. ( 10. ) P. W. 2 Shrichand had deposed that along with his two younger brothers, they boarded the truck at their shop at Madan Mahal. His father was already in the truck. The truck, according to Para 11, was loaded, and therefore, it would have gone to Bilaspur. The truck was stopped at the cross-road, near the house of deceased Pohumal where the occupants were taking out their cycles. At this first stage of the incident, the three accused came together on a scooter. Finding the truck on the road, and may be, it was in the middle of the road causing some inconvenience (but the fact as stated by this witness) (accused) hurled abuses and said "are you blind to park the vehicle in the middle of the road?" pohumal tried to pacify them. On this occasion, the accused Om Prakash, in a challenging tone, uttered boastfully, "mujhe AAP LOG NAHIN JANTE? mera NAAM OM PRAKASH HAI". They tried to pacify him also and thereafter, the accused left the place giving threats. There seems to have occurred some exchange of hot words. On this occasion, the accused Om Prakash, in a challenging tone, uttered boastfully, "mujhe AAP LOG NAHIN JANTE? mera NAAM OM PRAKASH HAI". They tried to pacify him also and thereafter, the accused left the place giving threats. There seems to have occurred some exchange of hot words. This witness mentions about the presence of P. W. 3 Raju Sindhi and P. W. 4 Baldeo Sindhi besides the truck driver and the conductor. Thereafter, the truck was brought near the house of Arjundas, which according to this witness is very close to the house of Pohumal. Gurmukh and gurdas, the younger brothers of this witness, went inside the house, and while his father Pohumal (deceased) was talking to the driver, with the conductor standing nearby, the appellants Nabbu and Om Prakash came with knives in their hands, and uttered "badi RANGDARI DIKHATE HO" and then jointly assaulted pohumal. P. W. 2 Shrichand states that the appellant Nabbu dealt two knife-blows and the appellant Om Prakash dealt one blow and Pohumal fell down unconscious. The injuries were on the chest and stomach. The third accused santosh, during the assault, was standing at some distance. P. W. 2 Shrichands another younger brother and others put Pohumal on the truck. Then Girdhari, munna and Anand went to Victoria Hospital, and P. W. 2 Shrichand straightway went to P. S. Ghamapur and lodged the report forthwith, at 10. 40 p. m. Then he has deposed that his father died in the hospital and he was present when the Lash panchnama (Ex. P-5) was prepared the following day. After about a month, the test identification parade was held in the jail. He identified all the three accused. In fact his evidence shows that he knew those two appellants, Nabbu and santosh, before the incident because they had been living in that locality for the last seven years. It has also come in the evidence that there was sufficient street light. ( 11. ) P. W. 3 Raju has a cycle shop near his house which is also close to the place of the incident. He was about to close his shop. He too has deposed about both the stages of the incident. Thus we find that the evidence of P. W. 2 is fully corroborated by P. W. 3 Raju. ( 11. ) P. W. 3 Raju has a cycle shop near his house which is also close to the place of the incident. He was about to close his shop. He too has deposed about both the stages of the incident. Thus we find that the evidence of P. W. 2 is fully corroborated by P. W. 3 Raju. Furthermore, he has deposed that at about 4 Oclock in the morning, the police had taken him to the house of Santosh who lived in that locality where the Pushpak Scooter and a driving licence and a bunch of keys were seized by the police (Ex. P-8 ). It is noteworthy that initially the three accused are said to have come on the scooter, but when the appellants came with knives, they had come on foot and had run away together. It has further come in the evidence that the licence holder of that scooter is the appellant Om Prakash. ( 12. ) P. W. 3 Raju had further deposed that on 27-12-1983 the appellant nabbu made a discovery statement, and at his instance, the pant and the baniyan were seized from the house of one Jagdish Dumar at Pachpedi. The clothes were kept in a "hidden" condition. The appellant Nabbu had led the police and witnesses to house of Jagdish Dumar for the recovery. There is another discovery statement. The appellant Nabbu took the police and the witnesses to his house and the knife was recovered from under roof (Information Memo Ex. P-11 and seizure Memo Ex. P-12 ). ( 13. ) P. W. 4 Baldeo lived just in front of the house of Pohumal, divided by a road in between, at a distance of about 25 feet. He also knew the accused Nabbu and Santosh since last 5-6 years as they lived in the same locality. He is a student, and after his studies, he was just having a stroll. He too has corroborated the evidence of other witnesses described earlier. Thus, there is unanimity in all the three statements regarding the arrival of the appellants on a scooter; the utterances attributed to them; the incident about abuses; the boastful and challenging utterances of Om Prakash; and their return after a short interval; and the final i. e. assault by two appellants. ( 14. ) THE learned counsel for the appellants have assailed the evidence on various grounds. ( 14. ) THE learned counsel for the appellants have assailed the evidence on various grounds. Firstly, it is submitted that the police had recorded the statements of both P. W. 2 and P. W. 3 under section 164, Criminal Procedure code, which means, that the police had doubts of its own and apprehensions that they might change their versions. On basis of Badri vs. State of Rajasthan, AIR 1976 SC 560 (Para 9) and Balakram vs. State of U. P. , AIR 1974 SC 2165 (Para48), it was contended, that such evidence should be discarded. With respect, we would like to mention that this is not the ratio of those decisions. Both these authorities lay down the principle that such statements must be appreciated and approached with caution, and cannot be rejected only on the ground that they have been recorded under section 164, Criminal Procedure Code. In Ramcharan vs. State of U. P. , AIR 1968 SC 1270, it was observed, "that if the statement of a witness is previously recorded under section 164, Criminal Procedure Code it may lead to an inference that at one time the police thought that it may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under section 164, Criminal procedure Code will not be sufficient to discard it. " Also see, Gopi Shanker vs. State of Rajasthan, AIR 1967 Raj. 159 : "witness is not to be treated unreliable merely because he was examined under section 164, Criminal Procedure Code. " this is a case where the presence of the witnesses examined was natural at the alleged place of incident. P. W. 2 is the son of the deceased, and ordinarily in absence of any previous enmity as in this case, he would be the last person to falsely implicate the appellants. The F. I. R. was lodged immediately in which 3 accused have been named. ( 15. ) NAME of Om Prakash was known with the help of his utterances and the other two were already known to P. W. 4 and P. W. 2 Shrichand. Medical evidence fully supports and corroborates the testimony of assault. The F. I. R. was lodged immediately in which 3 accused have been named. ( 15. ) NAME of Om Prakash was known with the help of his utterances and the other two were already known to P. W. 4 and P. W. 2 Shrichand. Medical evidence fully supports and corroborates the testimony of assault. For all those reasons, we find that there is no substance in the contention that the evidence of those witnesses should be discarded because their statements were recorded under section 164, Criminal Procedure Code. Such statements are not "substantive evidence" and they could be used only for corroboration or contradiction as laid down in section 145, Evidence Act. Having examined their evidence closely and with caution, we find that their testimony is fully reliable. Also because the two witnesses had seen Om Prakash twice, first when there was wrangling and they tried to pacify him and secondly during the attack. ( 16. ) SECONDLY, much has been said about the conduct of those witnesses on the occasion of assault. The learned counsel referred to State of Punjab vs. Sohan singh, AIR 1974 SC 300 , Arunachalam vs. P. S. R. Setharathnam, AIR 1979 SC 1284 (which are quite distinguishable on facts) to support the contention, that the evidence shows that those five witnesses present during the assault did not directly intervene, nor they tried to "encircle the assailants", nor there is further evidence about the chase. To cut short the discussion, as P. W. 2 Shrichand has pointed out in Para 15 of his deposition, the whole incident occurred in quick succession, and was over within a couple of minutes. They were stunned and shocked at the moment, and none of them went forward to save Pohumal. It was suggested that none of them picked up any stone or stick to hit. It is very easy to make such arm-chair suggestions after the event is over, stating, that they could have done this or that. The two appellants suddenly came brandishing the knives and actually assaulted. Hence out of fear none went forward to incur any risk. Behavioural patterns and reactions differ from person to person. During an incident, a more courageous person may directly intervene, the other may be a coward in actually run away on sighting slightest danger. No strait-jacket formula could be laid down, applicable to all situations. Hence out of fear none went forward to incur any risk. Behavioural patterns and reactions differ from person to person. During an incident, a more courageous person may directly intervene, the other may be a coward in actually run away on sighting slightest danger. No strait-jacket formula could be laid down, applicable to all situations. However, P. W. 2 emphatically stated that during the assault they "shouted" which was not unnatural. P. W. 3 raju, when the accused took to their heals, also shouted and chased them for a short distance till they disappeared in the direction of the nala. Thus we do not find any infirmity in the evidence before us, much less it could be said to be dented because of their behavioural reactions and much criticised conduct. ( 17. ) THIRDLY, it is said that there are discrepancies in the evidence because in their Court Statements they have omitted reference to head injury, though this fact was earlier stated in the FIR (Ex. P-4), and also in the statements under section 164, Criminal Procedure Code respectively by Raju and Baldeo (Portion a to A of Ex. D-7 and Portion B to B in Ex. D-8 ). The medical report shows head injury, but it is an abrasion. It generally happens that there is a tendency among the witnesses not only to speak about the assault in a general way by knives, but also try to particularize the details. All the witnesses have deposed about the general assault by the appellants and have specifically attributed two blows to both the appellants. This discrepancy therefore is not sufficient to detract the veracity of their statements. ( 18. ) FOURTHLY, it was urged that there is non-compliance of section 157, criminal Procedure Code. Inlshwarsingh vs. State of U. P. , AIR 1976 SC 2423 (at 2425), the Supreme Court expressed "that the section requires the FIR to be sent forthwith to the Magistrate. Where no explanation was offered for the extraordinary delay of two days, the circumstances provide a legitimate basis for suspecting that the FIR was recorded much later than stated date and hour, affording sufficient time to the prosecution to introduce the improvements and embellishments and to set up a distorted version of the occurrence". Where no explanation was offered for the extraordinary delay of two days, the circumstances provide a legitimate basis for suspecting that the FIR was recorded much later than stated date and hour, affording sufficient time to the prosecution to introduce the improvements and embellishments and to set up a distorted version of the occurrence". "but if the f. I. R. was actually recorded without delay and the investigation started on the basis of the F. I. R. and there is no other infirmity in the investigation which could be said either improper or objectionable, the delay in receipt of the report by magistrate cannot by itself justify the conclusion that the investigation was dented. " The only question, in the instant case, occurs in Para 18 where it was casually asked "whether a copy of the F. I. R. was filed with the Challan". But the witness answered that on 26-12-1983, a copy was sent to the Magistrate, though "such copy has not been annexed with the challan. " This is the total challenge, and looking to the fact that the F. I. R. was lodged forthwith and there are no other infirmities in evidence, we find that actually there was no delay in sending a copy of F. I. R. to Magistrate and the prosecution evidence cannot be said to be doubtful on the alleged ground. The contention is therefore, without any merit. ( 19. ) FIFTHLY, P. W. 3 Raju is said to be a "stock witness" inasmuch as, it is urged, that he had appeared as a witness in other prosecution cases. Ex. D-2 shows that he has been examined as a witness in a criminal case which related to some road accident. It shows that while he was returning, he had found one injured person in an unconscious state, who was taken by the public to the hospital though he himself knew nothing about the incident. Ex. D-3 also shows that while he was at his shop which, as other evidence shows is near the cross-roads, he had seen some accident. Ex. D-4 seems to be some seizure memo and Ex. D-5 also is some statement in a criminal case. Thus he appears to be a witness in 2 accident cases and one criminal case. In Tarsemlal vs. State of punjab, AIR 1965 Pun. Ex. D-4 seems to be some seizure memo and Ex. D-5 also is some statement in a criminal case. Thus he appears to be a witness in 2 accident cases and one criminal case. In Tarsemlal vs. State of punjab, AIR 1965 Pun. 27, it was contended "that some PWs have been appearing in police cases before and therefore, they should be dubbed as stock witnesses, and consequently, their statements should be ruled out of consideration. " It was held, "that this proposition is untenable for the reason that merely because a person appears for the police as a witness is not enough, to dub him as a stock witness and unreliable unless some strictures against such witness have been passed, or at least he has been disbelieved by any competent court. In any case it can be said that the evidence of such witness should be scrutinized with care". In the case before us, he was a neighbour whose presence was natural when the incident occurred. ( 20. ) SIXTHLY, it was strenuously urged that the two other accused were persons known to the witnesses but the appellant Om Prakash was unknown. To recall, he has been named in the F. I. R. because in the first stage of the incident; like a bully he made a boastful utterance which disclosed his name. All the concerned witnesses have denied the suggestion that his photograph on the driving licence was shown to the indentifying witnesses. Only P. W. 4 Baldeo in para 14 stated that 2 or 3 days after the incident he had seen the accused at the police station. But he further stated that Shrichand was not accompanying him at that time. P. W. 5 I. S. Mercam has conducted the test identification parade in a proper manner. There is apparent delay since test identification parade was held on 11-1-1984 and the only explanation elicited in Para 15 of the cross-examination is that the conductor and the driver were not available being out of town. In para 18 the only suggestion is that before T. I. Parade, the photo was shown and the accused were already shown by the police which has been denied by P. W. 6 Shri parihar. However, we find that Om Prakash has been named on basis of his own utterance. In para 18 the only suggestion is that before T. I. Parade, the photo was shown and the accused were already shown by the police which has been denied by P. W. 6 Shri parihar. However, we find that Om Prakash has been named on basis of his own utterance. Moreover, there seizure of the scooter belonging to him which has been seized on the same night immediately in the small hours of the morning from the house of his associate Santosh Kumar. In context of the prosectuion story, it can be said that all those three accused Om Prakash, Nabbu and Santosh Kumar were already known. They had come together on a scooter. The substratum of all this evidence confirms not only the presence of the appellants but the identity of om Prakash and his involvement in the incident. The trial Court had also found, as a matter of fact, that Santosh Kumar was present, though the further finding is that he did not participate in the attack. The defence evidence of D. W2 Kamta prasad (who is the father of Om Prakash) is to the effect that the scooter and licence were actually seized from the house of Om Prakash i. e. in other words, not from the house of accused Santosh Kumar. Similarly D. W. 3 Babulal, who is father of Santosh Kumar, denies the seizure of scooter from their house, as stated by the prosecution that evidence is a sheer afterthought. There was not a whisper of such suggestion in the cross-examination of P. W. 3 Raju or P. W. 6 Shri Parihar, investigating Officer. ( 21. ) LASTLY, it was urged that it is not a case under section 302/34, Indian penal Code. In the totality of the circumstances, we concur with the findings of the learned trial Court that after the first stage of the incident the appellants, after about 10 minutes, came armed with knives which are deadly weapons; they jointly assaulted Pohumai who was totally unarmed and was taken unawares; the knife blows were dealt on vital parts; the joint assault was preconceived, pre-planned and premeditated. This is a clear case under section 302/34, Indian penal Code, well established against the appellants. ( 22. ) HOWEVER, we find though no arguments were addressed on this point viz. This is a clear case under section 302/34, Indian penal Code, well established against the appellants. ( 22. ) HOWEVER, we find though no arguments were addressed on this point viz. that the convictions of the appellants under section 294, Indian Penal Code are unsustainable, in Sobaran Singh vs. State, 1962 JLJ Note 135. As regards the abuses, it was held that no literal significance be attached to them. "the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. Mere platitudinous utterances signifying the enraged state of the persons mind would not be sufficient to attract the application of the provisions of section 294, indian Penal Code". Such is also the view taken in Dal Singh vs. State of M. P. , 1957 MPLJ Note 62 and Chandrakant Kakodkar vs. State of Maharashtra, AIR 1970 SC 1390 . Thus, "mere vulgar abuses" do not constitute offence under section 294, Indian Penal Code, though of course in certain circumstances intentional insult with intent to provoke breach of peace may enable a court to frame charge under section 504, Indian Penal Code. ( 23. ) IN the result, both the appeals viz. Cri. As. Nos. 1191/84 and 1215/84 are partly allowed. The conviction of the appellant Om Prakash in Cri. A. No. 1215/84, and that of Nabbu alias Narbad in Cri. A. No. 1191/84, for offence under section 302/34 and the sentences awarded i. e. to undergo RI for life as also their convictions and sentences under section 506, Part II, Indian Penal Code awarded by the trial Court are maintained with the direction that the sentences shall be concurrent. However, the convictions and sentences awarded against both the appellants under section 294, Indian Penal Code are hereby set aside. The case property shall be disposed of as directed by the trial Court. The result of these appeals be communicated to the concerned appellants who are in jail. Appeals partly allowed.