JUDGMENT 1. The sole appellant has been convicted and sentenced under section 302 I.RC. to life imprisonment and to pay a fine of Rs. 500/- (in default of payment of fine to undergo rigorous imprisonment for two months) vide judgment dated July 20, 1993 in Sessions Case No. 90/91 for committing murder of one Ashok Kumar aged 20-21 years. The appellant has preferred this appeal against the aforesaid judgment and challenges his conviction and sentence. 2. The facts reveal that the incident took place at about 6 p.m. on July 26, 1991 in Nutan Market in front of the shop of PW. 14, Ram Avtar in the town of Pilani. RW. 14 Ram Avtar was running a 'betle shop' and also used to let Novels on hire for reading purposes. The deceased Ashok Kumar had come to his shop to purchase `Gutka' (a small packet containing mixture of Pan, hard-nut and Zerda). The appellant had also come there to take a Novel on hire. Some oral altercation ensued between the appellant and Ram Avtar when the latter asked him to tell the name of the Novel as he wanted to note the same in the Register and the appellant abused him. The deceased intervened and asked the appellant to behave decently. Whereupon, the appellant caught his collar asking him as to who was he to teach him manners. Then, they entangled in a scuffle, but were separated by the witness Ram Avtar and other shop keepers. Thereafter, the appellant left the place throwing a challenge to the deceased to stay there and wait for him for ten minutes. Ashok remained sitting on the shop of Ram Avtar and after ten minutes or so, the appellant came on the spot on an Auto-Cycle (Vikki) with a `Katar' in his hand and soon after reaching on the spot, he rushed at Ashok Kumar and inflicted a blow on his chest. Ashok Kumar, in order to save him, tried to run away, but he was chased by the appellant and two more blows were inflicted with the Katar possessed by him. Ashok Kumar fell down on the ground and the appellant ran away from the place leaving his Auto-Cycle there. The injured Ashok Kumar was immediately shifted to the Hospital at Chirawa in a Jeep by PWs. Prem Prakash, Daya Nand, Ram Avtar, Dalip Singh and Roshan Singh. Ashok Kumar fell down on the ground and the appellant ran away from the place leaving his Auto-Cycle there. The injured Ashok Kumar was immediately shifted to the Hospital at Chirawa in a Jeep by PWs. Prem Prakash, Daya Nand, Ram Avtar, Dalip Singh and Roshan Singh. However, he breathed his last in the way and by the time they reched at the hospital he was declared dead by the Doctor. Thereafter, a written report of the incident was made at Police Station, Pilani by PW. 7, Prem Prakash at 8.30 p.m. on the same day. On this report, Crime No. 92/93 was registered under Section 302 IPC. 3. After registration of the case, investigation commenced. Site-plan of the place of incident and site inspection report were prepared which are Exs.P 9 and P 9A on record. The Auto Cycle was also seized vide memo Ex.P 10. The dead body of the deceased Ashok Kumar was inspected and inspection report Ex.R 14 and inquest report Ex.R 15 were prepared by the Investigating Officer Shri Jafar Ali. The clothes of the deceased were also seized vide memo Ex.P. 16. The appellant was arrested on 28.7.91 vide arrest memo Ex. 17 and on his information, the weapon of the offence Katar' was recovered on 4.8.91 vide Ex.P. 11. The `Katar' was sent to Forensic Science Laboratory, Rajasthan, Jaipur for examination and human blood was detected on the `Katar' vide report Ex.R 20. After completion of the investigation, a charge-sheet was filed against the appellant under Section 302 I.RC. and Section 4/25 of the Indian Arms Act. As the case was exclusively triable by the Court of Sessions, it was committed to the Court of learned Sessions Judge, Jhunjhunu, where charges under Sections 302 IPC and 4/25 of the Indian Arms Act were framed against the appellant on 16.1.92. Who pleaded not guilty. During trial, 16 witnesses were examined by the prosecution. Shri Brijesh Kumar Dagra, the then Munsiff and Judicial Magistrate, Chirawa was examined as a Court witness. The plea of the accused was that of denial. No witness was examined in defence. The learned trial Judge, after completion of the trial convicted and sentenced the appellant as aforesaid. 4. The learned trial Judge placed reliance on the evidence of eye witnesses, RW. 7 Prem Prakash, RW. 8 Daya Nand, RW. 9 Dilip Singh and RW. 14 Ram Avtar. No witness was examined in defence. The learned trial Judge, after completion of the trial convicted and sentenced the appellant as aforesaid. 4. The learned trial Judge placed reliance on the evidence of eye witnesses, RW. 7 Prem Prakash, RW. 8 Daya Nand, RW. 9 Dilip Singh and RW. 14 Ram Avtar. The other eye witnesses, namely, P.W. 1 Kishori Lal, PW. 2 Sri Ram, RW. 3 Manoj Khanna, RW. 4 Mangtu Ram and RW. 13 Roshan Singh did not support the prosecution version and they were declared hostile. The statement of P.W. 6 Manohar Lal, eye witness of the incident, was not believed by the trial Court. The learned trial Court also did not place any reliance on the evidence of recovery of the weapon of offence i.e. Katar. 5. During the course of arguments, learned counsel for the appellant read over statements of all the eye-witnesses. The judgment under challenge in the appeal was also gone through by us with the help of the learned counsel for the appellant. In order to appreciate the submissions made by the learned counsel we minutely examined entire materials on record. 6. PW. 14, Ram Avtar, is the star witness of the occurrence as the incident took place in front of his shop. He has stated the incident from the beginning to end which supports the prosecution case in entirety. He has given a graphic picture of the entire incident and stated that there was a scuffle between the deceased and the appellant and the appellant left the place throwing a challenge to the deceased Ashok to stay there for some time. Thereafter, he came on an Auto cyqle with a 'Katar' and inflicted a knife blow on the chest of deceased Ashok Kumar. Two more blows with the Katar were given to deceased and he fell down on the ground. The appellant, then, ran away. He also stated that the witnesses Dilip Singh, Manohar Singh, Prem Prakash, Roshan Singh etc. were present at the time of incident and Ashok was taken to hospital in a jeep in seriously injured condition. This witness was cross examined at length, but after going through the entire cross examination, we find that his testimony has not been shattered at all. His statement appears to be quite straight-way and firm. were present at the time of incident and Ashok was taken to hospital in a jeep in seriously injured condition. This witness was cross examined at length, but after going through the entire cross examination, we find that his testimony has not been shattered at all. His statement appears to be quite straight-way and firm. The only criticism to his testimony made by the learned counsel is that his statement was recorded after two-three days of the occurrence and that he belonged to the village of the deceased, as such, was highly interested in the prosecution. From the record it transpires that the statement of this witness (Ex.D. 2) was recorded by the Police on 27.7.91 i.e. the next day of the occurrence, though, he has stated in cross examination that his statement was recorded after three days of the occurrence. The statement of this witness that his statement was recorded after 3 days of the occurrence appears to be incorrect due to lapse of memory and his statement in 'Court was recorded on 2.11.92 i.e. after more than one year of the incident. We are not inspired by the argument of the learned counsel that his evidence should be discarded as he belonged to the village of the deceased. Admittedly, the witness had no enmity with the appellant to falsely implicate him. The very' fact that the deceased belonged to his village appears to be a reason as to why the deceased intervened when the appellant had abused the witness. We find no ground that this witness would have substituted the appellant as an assailant of the deceased in order to screen the real offender. In our view, the trial Court rightly placed reliance on the testimony of this witness. 7. PW. 7 Prem Prakash, is another important eye witness of the incident. He was working on a Tailor's shop in Nutan Market - Pilani where the incident took place. He came on the spot when there was a scuffle between the appellant and the deceased Ashok Kumar. The witness has stated that they were separated by the witnesses, Ram Avtar and Manoj Khanna. That the appellant had left the place after throwing a challenge to the deceased to stay there and after 15 minutes or so, he came on an Auto-cycle with a knife and inflicted a knife blow on the chest of the deceased Ashok Kumar. The witness has stated that they were separated by the witnesses, Ram Avtar and Manoj Khanna. That the appellant had left the place after throwing a challenge to the deceased to stay there and after 15 minutes or so, he came on an Auto-cycle with a knife and inflicted a knife blow on the chest of the deceased Ashok Kumar. Ashok tried to run away in order to save him but he was inflicted two more knife blows by the appellant after chasing him. Ashok fell down after sustaining injuries and the appellant ran away with knife leaving the Auto-cycle at the spot. Ashok Kumar was, then, taken to hospital at Chirawa in an injured condition by him and other persons, but he breathed his last on the way. Thereafter, he made a written report Ex.R 7 at Police Station, Pilani. A formal F.I.R. Ex.p. 8 was chalked out and his signatures were obtained on the same. That the police inspected the site in his presence and prepared site plan Ex.P 9. and also seized auto-cycle (Vikki) vide Memo Ex.P 10. In cross-examination the witness has stated that he knew the name of the appellant when report was made by him, but he did not know his father's name and the place of his residence. That the Police also entered the F.I.R. in a register and his signatures were taken thereon. That his statement was recorded by the police on the same day. According to the witness, the deceased Ashok Kumar had come to Pilani for sight-seeing. That he was working on the shop of `Rebo Tailor' at that time. He also clarified that on reaching at the hospital, the doctor declared Ashok as dead and thereafter he went at the Police Station to lodge the report.After carefully examining the entire statement of this witness, we find that it inspires confidence and has a ring of truth. We find his statement straight-forward and convincing. In cross examination nothing has come to discredit his testimony In our view, the trial Court committed no error in placing reliance on his evidence. We also find that his evidence gets full corroboration from the written report Ex.P 7 which was promptly made at the Police Station. The Medical evidence also corroborates the testimony of the witness regarding inflicting knife blows to the deceased. 8. We also find that his evidence gets full corroboration from the written report Ex.P 7 which was promptly made at the Police Station. The Medical evidence also corroborates the testimony of the witness regarding inflicting knife blows to the deceased. 8. Learned counsel strongly contended that this witness had not seen the occurrence and he was made eye witness being in close relationship of the deceased We find no merit in this contention, the presence of this witness at the place of occurrence is quite natural as he was working in the same market at the shop of Rebo Tailor Immediately after the occurrence, he was one of the persons who shifted Ashok in injured condition to the hospital and when he was declared dead by the doctor, he made a report at the concerned Police Station detailing out the entire story of the incident The report at the Police Station has been made with promptitude and it contains the name of the appellant as assailant of the deceased and all other details. The witness is a cousin of the deceased having no oblique motive to falsely implicate the appellant and to screen the real offender. The argument of the learned counsel that no efforts were made by this witness to save the deceased Ashok when he was being assaulted is not appealing. As per the prosecution case and evidence on record, it transpires that the appellant rushed on the deceased and inflicted a knife blow immediately after reaching at the spot leaving no time for intervention by a third person to save him. Further, no cross has been made in this regard seeking explanation from the witness. We do not find any unnatural conduct of the witness either at the time of occurrence or immediately thereafter. On the contrary, we find that Ashok was immediately taken to hospital in injured condition and attempts were made to save his life by the witness. When he was declared dead by the doctor, report of the incident was made at the police station immediately thereafter. In our view the trial Court rightly placed reliance on evidence of the witness. 9. PW. 8 Daya Nand is another eye witness who has also supported the prosecution case in entirety. When he was declared dead by the doctor, report of the incident was made at the police station immediately thereafter. In our view the trial Court rightly placed reliance on evidence of the witness. 9. PW. 8 Daya Nand is another eye witness who has also supported the prosecution case in entirety. In cross- examination, this witness has admitted that he did not know the appellant or his name prior to the incident and his name was given to him by PW.. Ram Avtar. The greatest criticism to the testimony of this witness is that no attempt was made by the investigating agency to hold prior identification parade and the witness first time identified the accused in Court. Though the name of this witness finds place in F.I.R. and his presence stands established from the record at the time of the incident but still it is not safe to rely upon his evidence in absence of prior identification test parade. 10. PW 9 Dalip Singh is yet another eye witness of the incident. Admittedly, he is an independent witness having no relationship with the deceased. This witness has also supported the prosecution case that the appellant, after throwing a challenge to the deceased, came with a weapon like a knife and inflicted first blow on the chest of the deceased. The deceased was inflicted further two blows when he tried to run away to save himself. Three-fold criticisms were made by the learned counsel to discard the testimony of this witness. The first criticism is that his statement during investigation was recorded after delay of 2-4 days. Another criticism is that there was no prior test identification parade, as such, his evidence identifying the accused in Court for the first time should not be accepted. The last criticism is, he was chance witness and had close contacts with the informant-Prem Prakash. In our view, none of the above criticisms has any merit. It is true that the witness, in his cross examination, has admitted that his statement was recorded by the Police after 2-4 days of the incident, but no cross examination in this regard has been made to the Investigating Officer - Shri Jafar Ali. No explanation was sought from him as to why the statement was not recorded soon after the incident. The name of the witness finds place in the F.I.R. which was made with promptness. No explanation was sought from him as to why the statement was not recorded soon after the incident. The name of the witness finds place in the F.I.R. which was made with promptness. Hence, it cannot be said that he was subsequently made as an eye- witness of the occurrence. No benefit can be derived by the accused from the fact that his statement was recorded by the Police after 2-4 days of the incident in the facts and circumstances of the case. On the question of prior identification parade suffice is to say that the appellant was seen by the witness being involved in other incident 2-3 days prior to the present incident. As such, he had occasion to see the appellant second time committing the offence. Hence, the witness could identify the appellant correctly in Court even without prior identification parade and his evidence was rightly acted upon by the trial Court. The last criticism is not of much significance as by mere acquaintance of this witness with Prem Prakash - informant and PW. Manohar Lal his evidence could hardly be discredited. Taking into consideration all the aspects of the matter, the learned trial court rightly placed reliance on the testimony of PW. 14, Ram Avtar, Pw. 7 Prem Prakash and PW. 9 Dalip Singh. 11. Pw. 5 Dr. Rameshwar Lal, Medical Officer, Government Hospital, Chirawa, conducted post-mortem of the deceased on July 27, 1991 and he found following injuries on his person : 1. Stab wound 11/2" x 3.5" (5-6 ribs of Lt. side of chest). 2. Stab wound 1.5" x .5" Lt. shoulder joint just above the Lt. Arm pit. 3. Stab wound 1.5" x .5" Lt. side of chest (I & II ribs). 4. Abrasion 1 " x 1 " on Rt. knee joint. 5. Abrasion 1.5"; x 1 " on Lt. shoulder joint. 6 Abrasion .5" x .5" on nose. 7. Abrasion 1" x .5" on chin. A perusal of the above injuries shows that the deceased had sustained three stab wounds which fully supports and corroborates the prosecution case. The Doctor has also opined that cause of death of the deceased was shock caused by haemorrhage (internal/intra rupture of Lt. lung & vessels-vital organs). 7. Abrasion 1" x .5" on chin. A perusal of the above injuries shows that the deceased had sustained three stab wounds which fully supports and corroborates the prosecution case. The Doctor has also opined that cause of death of the deceased was shock caused by haemorrhage (internal/intra rupture of Lt. lung & vessels-vital organs). The Doctor has also opined that injuries No. 1 and 3 collectively and injury No. 1 individually, were sufficient to cause.death of the deceased Ashok Kumar in ordinary course of nature. 12. We may now advert to other contentions urged by the learned counsel for the appellant. The first contention is that the Investigating Officer-Shri Jafar Ali has tried to screen true facts of the case and Investigating Agency was not fair in investigation of the case. Learned counsel, in this connection, referred to the evidence relating to the disclosure and the recovery of the weapon of offence. He also drew our attention towards late recording of statements of some eye witnesses during investigation. Learned counsel also contended that one Ram Avtar son of Mool Chand was an eye witness in fact and RW. 14 Ram Avtar has been substituted in his place. We have carefully examined this aspect of the case. It is true that one Ram Avtar son of Mool Chand Kumhar has been shown as an attesting witness of the inspection report Ex.R 9A. In our opinion, from this fact reliability of the evidence of PW. 14 Ram Avtar is not diminished in any manner. So far RW. 14 Ram Avtar is concerned, his presence at the place of occurrence can hardly be denied or disputed as the incident had taken place in front of his shop and he was a party in earlier altercation with the appellant. Further, this witness has denied his presence when site inspection was made by the Investigating Officer. If site inspection was made in presence of another Ram Avtar s/o Phool Chand Kumhar, the testimony of RW. 14-Ram Avtar is not disturbed from this fact. 13. It is true that the first disclosure about the weapon of offence was made by the appellant on 29.7.91 vide Ex. 18 and thereafter, second disclosure was made on August 4, 1991 vide Ex.R 19. No efforts were made by the Investigating Officer to recover the weapon between 29th July and 4th August. 13. It is true that the first disclosure about the weapon of offence was made by the appellant on 29.7.91 vide Ex. 18 and thereafter, second disclosure was made on August 4, 1991 vide Ex.R 19. No efforts were made by the Investigating Officer to recover the weapon between 29th July and 4th August. The trial Judge, on account of this infirmity, has rightly discarded the evidence regarding recovery and seizure of `Katar', the weapon of offence. However, from this fact the entire investigation on prosecution case cannot be discredited or disbelieved. 14. We also find that statement of PW. 3 Manoj Khanna was recorded by the Police on 28.8.91 and there is inordinate delay in recording his statement. This witness has not supported the prosecution case and his testimony has been discarded by the trial Court. From this fact the evidence of other witnesses relied upon by the trial Court cannot be rejected. We have examined independently the evidence of RW. 14, Ram Avtar, PW. 7 Prem Prakash and RW. 9 Dalip Singh and as observed earlier, their evidence is reliable and could be basis for recording conviction of the appellant. 15. Next argument of the learned counsel for the appellant is that independent witnesses of the incident, who were shopkeepers of the locality, have not supported the prosecution case and as such, it is not safe to record conviction of the appellant. Pw. 1 Kishori Lal was examined as a witness of the incident. He admitted his prsence on his shop in Nutan market at the time of incident. He also admits his presence when the incident had taken place, but still he denied to have seen the actual incident. In his statement recorded by the Police during investigation (Ex.P 1), he has stated to be an eye witness of the whole incident. Similar situation is about P.W. 2 Shri Ram, another shop-keeper. RW. 3 Manoj Khanna, though admitted his shop in Nutan Market and to be present on his shop at the time of the incident, but still denied to have seen the occurrence. 16. PW. 4-Mangtu Ram has also deviated from his police statement and he too was declared hostile by the prosecution. Similarly, RW. 13 Roshan Singh, another eye witness of the incident, has been declared hostile. 16. PW. 4-Mangtu Ram has also deviated from his police statement and he too was declared hostile by the prosecution. Similarly, RW. 13 Roshan Singh, another eye witness of the incident, has been declared hostile. From the statements of these witnesses one fact is established that the incident took place in front of the shop of Ram Avtar. It appears that these witnesses were won-oever and they have deliberately deviated from their earlier statements given to the police. There is material on record that relatives of the appellant have tried to threaten the witnesses to change their statements. This fact is borne out in cross-examination of P.W. 9 Dalip Singh. 17. It is unfortunate that the above witnesses have not supported prosecution case even though the occurrence had taken place near their shops and their presence at the time of the incident is admitted. In a number of cases,w e have come across where independent witnesses have hesitated to support the prosecution case. Such indifferent attitude on their part some times leads to miscarriage of justice. The prevailing situation of insecurity is one of the reasons due to which independent witnesses do not dare and come forward to speak the truth in Court. This needs serious consideration. In the present case, however, there is enough other convincing evidence to bring home the guilt of the accused. 18. The next contention urged by the learned counsel is that the appellant has also sustained injuries which have not been explained by the prosecution. From the evidence of P.W. 5 Dr. Rameshwar Lal it appears that the accused had sustained five simple superficial abrasions and one simple cut wound of the size 1/4" x 1/4" on left thumb. The evidence on the record shows that there was a scuffle between the deceased and the appellant and the injuries of the nature sustained by the accused could be sustained in that scuffle. Looking to the nature of the injuries and the facts and circumstances of the case, non-explanation of the injuries of the accused is not significant and can hardly discredit the prosecution case. Further the prosecution witnesses have not been cross-examined, for the injuries sustained by the accused and the accused has also not stated anything about the injuries in his statement Under section 313 Cr.RC. Further the prosecution witnesses have not been cross-examined, for the injuries sustained by the accused and the accused has also not stated anything about the injuries in his statement Under section 313 Cr.RC. It is not the case of the accused that he acted in exercise of the right of private defence. On the other hand, the appellant has denied his participation in the incident. Learned counsel for the appellant also did not argue before us that the appellant had acted in exercise of the right of private defence. 19. Taking into consideration the totality of the circumstances, the nature of the injuries and the fact that there was bodily scuffle between the appellant and deceased, no adverse inference can be taken against the prosecution for non-explanation of the injuries sustained by the accused-appellant. 20. Lastly, it was contended that offence under section 302 I.P.C.. is not made out against the appellant in the facts and circumstances of the case. We have deeply considered this aspect also and we find no merit in it. The manner in which the incident has taken place and the fact that the appellant gave three blows with a knife on vital parts of the body of deceased after throwing a challenge to him clearly establishes his intention and the offence of murder. 21. The case is also covered by clause 3rdly of Section 300 I.P.C. This aspect has been considered by the Apex Court in Virsa Singh v. State of Punjab, (AIR 1958 S.C. 464 : 1958 S.C.R. 1495) . This decision has through-out been followed in a number of cases by all the High Courts as well as the Supreme Court. If the intention of the accused to cause that particular injury is made out and if the injury is found to be sufficient in the ordinary course of nature to cause death, then clause 3rdly of Section 300 is attracted. Analysing Clause 3rdly and as to what the prosecution must prove, it was held in Virsa Singh's case (supra) as under: "First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Analysing Clause 3rdly and as to what the prosecution must prove, it was held in Virsa Singh's case (supra) as under: "First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourtly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." It was further observed as under "If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional." 22. In the instant case, the doctor has opined that injuries No. 1 to 3 sustained by the deceased were sufficient in the ordinary course of nature to cause death and there is nothing on record that the injuries sustained by the deceased were unintended by the appellant. Once the existence of the injuries proved the intention to cause it will be presumed unless the evidence or the circumstances warrant a opposite conclusion. If a man leaves the place of occurrence after throwing a challenge and comes with a deadly weapon like knife and deliberately strikes successive blows on vital parts of the body, he must, in the absence of any circumstance negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, part of the body hit and the circumstances attending upon the death. The whole thing depends upon the intention to cause death and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, part of the body hit and the circumstances attending upon the death. We are fully satisfied that in the present case, both clause firstly and clause thirdly are attracted and the offence under Section 302 I.P.C. is clearly made out. The trial Court committed no error in convicting the appellant under Section 302 I.PC. 23. Consequent to the above discussion, we find no merit in this appeal and is hereby dismissed. *******