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2000 DIGILAW 271 (HP)

BALBIR SINGH @ KAKA v. STATE OF HIMACHAL PRADESH

2000-10-05

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.:- Appellant Balbir Singh alias Kaka, hereinafter referred to as th.e accused, stands convicted by the learned Additional Sessions Judge (1), Kangra at Dharamsala, in Sessions Case No. 8-K/98 for the offence under seciton 302, Indian Penal Code, for having committed the murder of one Megh Raj on 16.9.1997 at about 7 PM in village Ustehar, near "Shiv Mandir". Upon such conviction, he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5, 000/-. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for a further period of one year. 2. Briefly, the matrix of the case may be thus stated. PW 2 Jagroop Singh is the elder brother of the deceased Megh Raj. He is a resident of village Amtrar, Tehsil Kangra. On the relevant day, that is, 16.9.1997 at about 11 AM he had gone to cut wood for a marriage party. His younger brother, namely, the deceased, as usual had gone to the jungle to graze cattle in the company of some other boys. In the evening at about 7 PM the deceased after tethering the cattle in the cowshed, located about 4 kms from his house, was returning home in the company of Pratap Chand and PW 3 Parveen Kumar. PW2 alongwith Jagan Nath, Hans Raj and PW 4 Ramesh Chand, was also at that time returning home after having cut the wood. They were walking about 25 yards behind the deceased and his companions. PW 2 and his companions heard the shouts of PW 3 Parveen Kumar that the accused had stabbed the deceased Megh Raj and was running away alongwith one Satpal. PW 2 with the help of Jagan Nath, Hans Raj and PW 4 Ramesh Chand was able to catch the abovenamed Satpal while he was trying to escape. The accused was, however, able to run away. PW 2 and his abovenamed companions took Satpal to the spot near a "Shiv Mandir", where they found the deceased lying injured with a stab-wound on his chest. The injury was profusely bleeding. The deceased was unable to respond. The deceased was carried to Nagrota Hospital by PW 2 with the help of others. The deceased on reaching the hospital was declared dead by the doctor on duty. 3. The injury was profusely bleeding. The deceased was unable to respond. The deceased was carried to Nagrota Hospital by PW 2 with the help of others. The deceased on reaching the hospital was declared dead by the doctor on duty. 3. Information about the deceased having been brought to the hospital dead with a stab injury was given to the police by the doctor on duty. On the basis of such information PW 15 Sub Inspector Ram Chand went to the hospital where he recorded the statement Ex. PW 2/A of PW 2 under section 154, Code of Criminal Procedure. On the basis of such statement, a case for the offence under section 302, read with section 34, Indian Penal Code, came to be registered tit Police Station, Kangra vide F.I.R. No. 402 of 1997 (Ex. PW 10/A). 4. During the course of investigation, the investigation officer prepared the inquest report Ex. PW 2/B, got the dead body photographed and sent the body for post mortem. PW 8, Dr. D.P. Swamy conducted the post- mortem. He found the following ante-mortem injury on the person of the deceased:- "Stabbed wound on left side of the chest mid-portion (midclavicular line) just 2 cm. above the left nipple oblique, tailing above downwards. Margins are sharply cut, reddish, spindle shaped, penetrating deep upto left side of heart in between 4th and 5th intercostal space, size lxl/2x 5(L x B x D). 5. In the opinion of PW 8, the deceased had died of blood loss and shock due to the above ante-mortem stab injury to the heart. The time lapse between injury and death was one to fifteen minutes, and, between death and post-mortem was 12 to 18 hours. PW 8 also was of the opinion that the injury found on the person of the deceased was possible with the knife Ex.P. 1. 6. PW 15, the investigation officer also took into possession blood stained earth and the shoes of the deceased from the spot. The accused was arrested on 6.10.1997. While in custody during the course of interrogation, the accused made a disclosure statement Ex. PW 5/B leading to the discovery of knife Ex. P.l from the bushes near the "Shiv Mandir". 6. PW 15, the investigation officer also took into possession blood stained earth and the shoes of the deceased from the spot. The accused was arrested on 6.10.1997. While in custody during the course of interrogation, the accused made a disclosure statement Ex. PW 5/B leading to the discovery of knife Ex. P.l from the bushes near the "Shiv Mandir". On the completion of the investigation, a case for the offence under section 302, read with section 34, Indian Penal Code, was found against the accused and Sarvshri Satpal and Bipin Kumar; They were accordingly sent up for trial. 7. The accused and his abovenamed two companions, on having been charged for the offence under section 302, read with section 34, Indian Penal Code, pleaded not guilty and claimed trial. 8. The prosecution, in support of its case, in order to bring home the offence against the accused and his two companions S/Shri Satpal and Bipin Kumar, examined sixteen witnesses in all. 9. The case set up by the accused and his two companions in their statements recorded under Section 313, Code of Criminal Procedure, is that of denial and false implication. Each one of them in answer to question No. 18 has stated in the following terms:- "I am innocent. It is all got up case. I stabbed none. The prosecution story has been subsequently concocted by PW Jagroop Chand with active assistance of other PWs and I.O. I have been rounded up only for the reason that they wrongly suspected me of the offence with which they got me charged." 10. One witness was examined by the accused in his defence to prove the date and time of receipt of the copy of the F.I.R. by the Additional Chief Judicial magistrate, Kangra. 11. The learned Additional Sessions Judge on consideration of the evidence led before him convicted and sentenced the accused as aforesaid. His two companions, namely, Satpal and Bipin Kumar were however, acquitted vide judgment dated 24.11.1998. 12. Be it stated that the acquittal of S/Shri Satpal and Bipin Kumar as recorded by the learned Additional Sessions Judge, has not been assailed by the State by way of an appeal. Such acquittal has, thus, become final. 13. His two companions, namely, Satpal and Bipin Kumar were however, acquitted vide judgment dated 24.11.1998. 12. Be it stated that the acquittal of S/Shri Satpal and Bipin Kumar as recorded by the learned Additional Sessions Judge, has not been assailed by the State by way of an appeal. Such acquittal has, thus, become final. 13. By way of the present appeal preferred under Section 374, Code of Criminal Procedure, the accused has assailed the conviction and sentence imposed upon him by the learned Additional Sessions Judge, vide the impugned judgment dated 24.11.1998. 14. We have heard Shri M.S. Chandel, Advocate, the learned counsel for the accused and shri M.S. Guleria, the learned Deputy Advocate General for the State respondent and have also gone through the record of the case. 15. While assailing the conviction and sentence imposed upon the accused, the learned counsel for the accused has raised the following contentions:- (i) Identity of the accused to be the assailant has not been established; (ii) The F.I.R. is ante-timed. The same has not been recorded at the time it is shown to have been recorded and there has been delay in dispatching the copy thereof to the Magistrate; (iii)Eye witness cannot be said to be a natural witness; (i v) Recovery of weapon of offence not proved to be at the instance of the accused and weapon of offence not connected with the crime; (v) Cloths of PW 2 Jagroop Singh and PW 4 Ramesh Chand, which had become blood stained while carrying the deceased to the hospital, not taken into possession and sent to the chemical examiner; (vi) Delay in recording the statements of the witnesses by the investigation officer; (vii)Contradictions coming in the evidence of the witnesses. 16. The learned Deputy Advocate General, on the other hand, has supported the conviction and sentence imposed upon the accused on the grounds and for the reasons stated in the impugned judgment. It has further been contended that the circumstances pointed out by the learned counsel for the accused either do not exist or stand fully and satisfactorily explained. 17. It is well settled that suspicion howsoever strong cannot take the place of proof and if from the evidence coming on record two views are possible, one pointing to the guilt of the accused and another his innocence, the view which is favourable to the accused has to prevail. 17. It is well settled that suspicion howsoever strong cannot take the place of proof and if from the evidence coming on record two views are possible, one pointing to the guilt of the accused and another his innocence, the view which is favourable to the accused has to prevail. It is euqally well settled that in case the court entertains reasonable doubt about the accused being guilty, the accused has to be given the benefit of doubt. However, the rule that benefit of doubt must be given to the accused does not warrant a verdict of acquittal on the basis of surmises, conjectures and fanciful considerations. 18. Keeping in view the above well settled principles in mind, we proceed to examine the contentions raised on behalf of the accused. Contention No. (i). 19. The occurrence, as per the prosecution story, had taken place at about 7.00 P.M. on 16.9.1997 near a "Shiv Mandir". It has been contended by the learned counsel for the accused that since it had become dark at the time of occurrence, it was not possible to identify the accused, who appears to have been roped in on mere suspicion. In support of his contention he has drawn the attention of the court to the statement of PW 2 Jagroop Singh, the brother of the deceased. PW 2 has, during the course of his cross-examination stated:- "Balbir ran away towards the Nallah and no attempt could be made to catch him due to darkness. It was going to be dark but was not pitch dark. It was cloudy weather." 20. The learned counsel for the accused has further contended that since due to darkness the assailant could not be identified, PW 2 had introduced the story of there being electricity light in the "Shiv Mandir" near the place of occurrence for the first time in the court, though there is no mention about such light either in his statement Ex. PW 2/A made to the police Under Section 154, Code of Criminal Procedure or in the site plan Ex. PW 15/B prepared by the investigation officer at the spot. Nor there is any mention of such light in the statement of any other witnesses. The story as to existence of light in the temple has been introduced as an after thought. 21. PW 15/B prepared by the investigation officer at the spot. Nor there is any mention of such light in the statement of any other witnesses. The story as to existence of light in the temple has been introduced as an after thought. 21. It was also contended by the learned counsel for the accused that the name of the accused was not disclosed at the first available opportunity either by PW 2 or by PW 4 when they are alleged to have carried the deceased to the hospital. The deceased on being brought to the hospital was examined by PW 1 Dr. Ruby Bhardwaj. Ex. PW I/A and PW 1/B are the medical certificates prepared by PW 1 in respect of the deceased. There is no mention of the name of the assailant therein though it is stated that the injured was brought dead to the hospital with history of stab injury left side of the chest. According to the learned counsel, failure on the part of PW 2 and PW 4 to disclose the name of the accused as assailant to PW 1 renders the prosecution case doubtful. In support of his contention, reliance was placed by the learned court for the accused on the decision of the Honble Supreme Court in Satguru Singh v. State of Punjab (AIR 1995 SC 2449). 22. The ratio relied upon by the learned counsel for the accused is not applicable to the facts of the present case. In the case relied upon by the learned counsel for the accused, the occurrence had taken place on 21.9.1984 at about 7.30 A.M. The injured had been immediately removed to the hospital by his uncle. Information to .the Police was sent by the Doctor about the arrival of the injured at the hospital. The injured was declared fit to make a statement on 22.9.1984. The injured, however, refused to disclose anything to the investigation officer on the plea that respectables of the village were trying to have the matter compromised and he did not wish to initiate action against anybody. The case came to be registered only on 1.10.1984. During the trial, none of the respectables of the village was examined to support the version of the injured that any efforts to compromise the matter were being made by them. The case came to be registered only on 1.10.1984. During the trial, none of the respectables of the village was examined to support the version of the injured that any efforts to compromise the matter were being made by them. Except the ipse dixit of the injured and the investigation officer, there was no material on the record to substantiate the explanation for the first information report being lodged so belatedly. On these facts it was held: "...We also find that the injured, at the very first opportunity also did not disclose the name of his assailants to the medical officer at the hospital and only disclosed to him that he had received the injury during a fight. Surely, at the point of time, when he had been removed to the hospital in an injured condition soon after the receipt of the injury, he would not have been aware of any compromise talks. His failure to disclose the name of his assailant, therefore, renders the prosecution case doubtful. The prosecution has hopelessly failed to offer any explanation, much less a satisfactory explanation, for the inordinate delay in lodding of the First Information Report....." 23. Admittedly, PW 2 Jagroop Singh, the brother of the deceased, is not an eye witness to the actual assault. He derived the knowledge about the accused having stabbed the deceased only from the shouts raised by PW 3 Parveen Kumar, who at the relevant time was accompanying the deceased. Therefore, his version that there was electric light in the temple near the place of occurrence is not of much consequence. 24. PW 3 Praveen Kumar has categorically stated in the following words as to the occurrence:- "On 16.9.1997 at about 7.00/7.30 PMI alongwith Megh Raj was coming to village Amtrar from Kali Jang, Partap chand was following us. Hans Raj, Jagroop, Jagar Nath and Ramesh were coming hebind Partap chand. When we (both) reached near a temple named shivala, in village Ustehar, accused Balbir singh and Sat Paul came from the opposite side. They asked us to leave path for them. We took the side of Shivala (temple). Balbir accused went two steps ahead and then, turned backward and stabbed Megh Raj on his chest. After receiving the stab injury Megh Raj tumbled down firstly towards the wall side and then on the path. For a movement I got stunned. They asked us to leave path for them. We took the side of Shivala (temple). Balbir accused went two steps ahead and then, turned backward and stabbed Megh Raj on his chest. After receiving the stab injury Megh Raj tumbled down firstly towards the wall side and then on the path. For a movement I got stunned. Thereafter, I alongwith Partap Chand shouted that Balbir Singh after stabbing Megh Raj fled away towards the side, they were coming....." 25. Nothing has been brought on the record during the cross examination of PW 3 that there was pitch darkness at the spot and the assailant could not be identified or that the accused has been wrongly roped in on the basis of suspicion. It is in the statement of PW 2 that the accused was known to him. 26. In Nathuni Yadav & Ors. v. State of Bihar & Anr. AIR 1997 SC 1808 the murder took place on the moonless night of June, 1987 on the roofless terrace. A contention was raised that there was no possibility at all for the witnesses to identify the assailants as it was moonless night and there was no lamp burning in the vicinity and hence it would have been pitch dark when the incident happened. Repelling the contention, it was held:- "We have considered the said contention from all its angles. Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glove of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that assailants were no strangers to the inmates of the tragedy bound house, the eye witnesses being well acquainted with the physiognomy of each one of the killers. We are therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available though meagre, was enough for the assailants why should we think that same light was not enough or the injured who would certainly have pointedly focused their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander." 27. As noted above, the occurrence had taken place at about 7.00 P.M. on 16.9.1997. The deceased was carried to the hospital by his brother PW 2 and PW 4 Ramesh Chand. They reached the hospital at about 8.00 P.M. Information to the police about the deceased having been brought dead to the hospital was given by PW 1 Dr. Ruby Bhardwaj at about 8.15 P.M. vide Ex. PW 15/A. PW 15 Sub Inspector Ram chand on reaching the hospital recorded the statement of PW Jagroop Singh (Ex. PW 2/A) Under Section 154, Code of Criminal Procedure, at about 8.45 P.M. In such statement the accused has been named as the assailant. There has been no delay in naming the accused as the assailant. 28. Insofar as the non mentioning of the name of the accused as assailant to PW 1 is concerned, it is significant to note that PW 1 is concerned, it is significant to note that PW 1 has categorically stated that the name of the assailant was neither enquired by her nor disclosed to her by the person accompanying the deceased. 29. Much stress was laid by the learned counsel for the accused on the statement of PW 2 to the effect that he had disclosed the name of the person who had stabbed the deceased to Megh Raj. Such part of the statement of PW 2, made during the course of cross-examination, reads:- "Megh Raj was not in a position to talk. I had disclosed the name and other particulars of my brother Megh Raj to the doctor. Such part of the statement of PW 2, made during the course of cross-examination, reads:- "Megh Raj was not in a position to talk. I had disclosed the name and other particulars of my brother Megh Raj to the doctor. Doctor had asked me about the cause upon which I had stated that the injured was stabbed. On this, the doctor had advised me to inform the police. Doctor had telephoned the police. I had disclosed the name of the person who had given stab injury to Megh Raj. I had given the name of one person who had stabbed Megh Raj. It is wrong to suggest that on asking the name of assailant by the doctor, I had specifically stated that I was not knowing the name of the assailant." 30. The learned counsel for the accused has contended that this significant contradiction coming in the evidence of PW 1 and PW 2 as to the disclosure of the name of the assailant makes the prosecution story, as to the identity of the accused being the assailant, doubtful and the only inference is that the accused has been implicated on mere suspicion. 31. We do not find any merit in the contention of learned counsel for the accused. The contridiction pointed out is not significant. Besides, neither PW 2 was required under the law to ask for the name of the assailant nor PW 2 was required to disclose such name. Moreover, this disclosure/non-disclosure of the name of the assailant by PW 2 to PW 1 loses its significance in view of the fact that the name of the accused as assailant was disclosed by PW 2 to the police in his statement Ex. PW 2/A which came to be recorded immediately thereafter. 32. On the evidence coming on the record, we are satisfied that the identity of the accused to be the assailant has been duly established beyond any shadow of doubt. Contention No. (ii). 33. Ex. PW 10/A is the formal First Information Report which was recorded on the basis of statement (Ex.PW2/A) of PW2 Jagroop singh Under Section 154, Code of Criminal Procedure. Ex. PW 10/A is shown to have been recorded at the police station at 9.30 PM. The statement Ex. PW 2/A was recorded at the Hospital Nagrota Bagwan at 8.45 PM. As per the endorsement appearing on Ex. Ex. PW 10/A is shown to have been recorded at the police station at 9.30 PM. The statement Ex. PW 2/A was recorded at the Hospital Nagrota Bagwan at 8.45 PM. As per the endorsement appearing on Ex. PW 10/A, the same was received by the Magistrate on 17.9.1997 at 7.10 AM. Such endorsement reads "Received today at 7.10 AM. Earlier telephonic information was received at 11.15 PM on 16.9.1997. Sd/ Addl. Chief Judicial Magistrate, Kangra." 34. Nothing has come on the record to show that the statement Ex. PW 2/A of PW 2 Jagroop Singh under Section 154, Code of Criminal Procedure was not recorded at 8.45 PM on 16.9.1997 as indicated therein. In the absence of such evidence the mere fact that formal F.I.R. Ex. PW 10/A was sent to the Magistrate late will not be relevant. The endorsement made by the Magistrate on Ex. PW 10/A besides recording the time of receipt also indicates that telephonic information was received by him about the case at 11.15 PM on 16.9.1997. There is nothing on the record to show that the endorsement made on Ex. PW 10/A regarding receipt of telephonic message is wrong. 35. It is well settled that the object of the report under Section 157, Code of Criminal Procedure, is to enable the Magistrate to have early information of every serious crime so that he may be in a position to act, if necessary, under section 159, Code of Criminal Procedure. 36. It has been held in Sarwan Singh & Ors. v. State of Punjab AIR 1976 SC 2304 that delay in dispatch of First Information Report to the Magistrate is not a circumstance which can throw out the case of the prosecution in its entirety. Again in State ofU.P. v. Gokaran & Ors. AIR 1985 SC 131, it has been held that every delay in sending report to the Magistrate under Section 154, Code of Criminal Procedure, would not necessarily lead to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and forthright. 37. The effect of delay in sending the report to the Magistrate under Section 154, Code of Criminal Procedure, would depend upon facts of each case. 37. The effect of delay in sending the report to the Magistrate under Section 154, Code of Criminal Procedure, would depend upon facts of each case. Mere delay in sending the report by itself would be of no consequence in the absence of suspicion or other infirmities attaching to the recording of the report or the conduct of the investigation officer. 38. In the present case the report is shown to have reached the Magistrate after about ten hours of its having been recorded. The fact cannot be lost sight of that the First Information Report was recorded at night at about 9.30 PM. Considering the night time, it cannot be said that there has been a delay in the despatch of the report. Even otherwise, on the facts of the case, in the absence of any evidence showing suspicion or other infirmities attaching to the recording of the report or as to the conduct of the Investigation Officer, the delay of about 10 hours is of no consequence. Contentions No. (Hi) & (vi) 39. Both these contentions are being discussed together as they are corelated and inter-connected. 40. PW 3 Parveen Kumar is, according to the prosecution, an eye witness of the occurrence. At the relevant time, he was accompanying the deceased when the accused is alleged to have inflicted the stab blow on the chest of the deceased. The entire prosecution case, thus, revolves around and rests on the testimony of PW 3 Parveen Kumar. 41. It is well settled that conviction can be based on the testimony of a single witness provided the court finds from the scrutiny of his evidence that he is wholly reliable witness. Where, however, the court is of the opinion that the single eye witness is only partly reliable; prudence requires that corroboration of his testimony in material particulars should be sought before recording conviction. 42. The learned counsel for the accused has contended that PW 3 Parveen Kumar was not a wholly reliable witness and his conduct was so unnatural that it would not be safe to rely upon his testimony to uphold the conviction of the accused. The learned counsel, in this connection, has pointed out that though he was available to the police right after the occurrence and was on fact meeting the police, no effort was made by him to make a statement to the police. The learned counsel, in this connection, has pointed out that though he was available to the police right after the occurrence and was on fact meeting the police, no effort was made by him to make a statement to the police. His statement came to be recorded by the investigation officer only on 18.9.1997, that is, on the third day of the occurrence. 43. The Apex Court in Mohd. Iqbal M. Shaikh & Ors. v. State of Maharashtra 1998 (4) SCC 494, while dealing with the question of the effect of delay in the examination of witnesses by the investigation officer, has held that merely because a witness was examined after considerable period from the date of occurrence, his evidence need not be discarded on that ground alone. While testing the credibility and assessing the intrinsic worth of such witness(s) the delay in their examination by the police has to be borne in mind and their evidence would require a stricter scrutiny before being accepted. 44. In Ramesh v. State ofM.P. & Ors. 2000 1 SCC 243, the occurrence had taken place on 1.10.1985. The two alleged eye witnesses were examined by the police respectively on 4.10.1985 and 6.10.1985. It was held that the delay in examining the two eye witnesses ipso facto cannot be a ground to discard their testimony; more so, when in the cross examination of the witnesses, nothing tangible had been brought out to impeach their testimony. 45. The delay in the examination of witnesses in the present case may be termed as an irregularity on the part of the investigation officer, it has been held by the Apex court in Leela Ram (dead) through Dull Chand v. State ofHaryana & Anr. 1999 (9) SCC 525 that irregularity or illegality during the course of the investigation does not constitute a ground to reject the prosecution case. 46. In the present case as well though PW 3 Parveen Kumar was examined by the police on 18.9.1997, such delay alone ipso facto is not sufficient to discard his testimony. Nothing tangible has been brought out in his cross-examination to impeach his testimony. There is not even the suggestion that he was not present at the spot at the relevant time. Nothing tangible has been brought out in his cross-examination to impeach his testimony. There is not even the suggestion that he was not present at the spot at the relevant time. PW 2 Jagroop and PW 4 Ramesh Chand fully corroborate the presence of PW 3 at the spot and that at the relevant time he was accompanying die deceased. Besides, PW 3 was having no reason to falsely implicate the accused nor interested in any of the prosecution witnesses. He has withstood the test of cross-examination. PW 3 is a natural witness and his testimony is reliable. The court below was, therefore, justified in relying upon the testimony of PW 3, while maintaining the conviction of the accused. Contention No. (iv) 47. The weapon of offence, that is, knife Ex.P.l is alleged to have been recovered in pursuance of the disclosure statement Ex.PW 5/B made by the accused before the investigation officer on 10.10.1997 in the presence of PW 5 Onkar Chand and one Hoshiar Singh. 48. It is in the statement of PW 15, Sub Inspector Ram Chand, and the investigation officer, that the accused was arrested on 6.10.1997 and that he remained in police custody till 16.10.1997. It is also in the statement of PW 15 that the accused was being interrogated from 7.10.1997 till he made the disclosure statement Ex.PW5/B on 10.10.1997. 49. The learned counsel for the accused contended that the alleged disclosure statement Ex.PW 5/B was as a result of prolonged interrogation which continued for about four days, therefore, such disclosure statement cannot be said to have been voluntarily made andas such inadmissible in evidence. In support of the contention, reliance was sought to be placed on the decision of a Division Bench of this court in Smt. Santosh Kumar & Ors. v. State 1973 Cri. L.J. 1651. 50. In the case relied upon by the learned counsel for the accused, interrogation of the accused therein continued for about five hours from 10 AM to 3 PM and during this period the accused gave out different stories and it was only at 3 PM that he made the disclosure statement. v. State 1973 Cri. L.J. 1651. 50. In the case relied upon by the learned counsel for the accused, interrogation of the accused therein continued for about five hours from 10 AM to 3 PM and during this period the accused gave out different stories and it was only at 3 PM that he made the disclosure statement. On these facts, the Division Bench observed:- "In such a case where it is the result of a long interrogation and where the accused has made different versions during this long interrogation, it would follow that he was subjected to harassment which renders his disclosure statement involuntary and as such inadmissible." 51. Besides, while discarding the disclosure statement from consideration, the Division Bench also took note of the circumstance that the recovery in pursuance to the alleged disclosure statement was not made on the date the disclosure statement was allegedly made, but such recovery was deferred till the following day. The Division bench has observed in this regard in the following terms:- "......Further if the disclosure had been made on the 5th, why the recovery was deferred for the 6th. This also creates doubt with regard to the truthfulness of this story of the prosecution. It is quite possible that during this period the police may have got this Shishi planted after they knew that the accused was a Compounder and they could really manufacture a story of having administered something whereby she could become unconscious before she was done to death by fire. In the circumstances the disclosure statement as also the recovery are not at all believable." 52. PW 15, the investigation officer, has deposed in the following terms with regard to the interrogation of the accused and the making of disclosure statement by him. "......I do not remember the time when Balbir Singh accused was handed Over to me on 6.10.1997, but it was evening time. I did not investigate or inquire into the matter as to from where and where he was arrested. No memo of arrest was given to me by Brahm Dass ASI when Balbir Singh was handed over to me. Brahm Dass did not disclose me as to whether he had interrogated Balbir singh accused. I did not interrogate accused Balbir Singh on 6.10.1997. I was busy in other part of the investigation of the present case. No memo of arrest was given to me by Brahm Dass ASI when Balbir Singh was handed over to me. Brahm Dass did not disclose me as to whether he had interrogated Balbir singh accused. I did not interrogate accused Balbir Singh on 6.10.1997. I was busy in other part of the investigation of the present case. I do not remember the other part of the investigation which was carried on by me on 6.10.1997. I did not interrogate accused Balbir Singh till he was produced for remand before magistrate on 7.10.1997. It is wrong to suggest that during the night intervening 6th and 7th Oct. 1997 I tortured accused Balbir Singh. I interrogated him on 7.10.1997 for about 10/15 minutes. I do not remember whether accused was interrogated on 8.10.1997. The accused was not interrogated on 8.10.1997. He was interrogated on 9.10.1997 from 2 P.M. to 4 P.M. No independent witness was associated during the said interrogation. On 7.10.1997 no witness was associated during the interrogation. It is wrong to suggest that every possible third degree method was applied against accused till 10.10.1997. I do not remember the time at which I interrogated accused on 10.10.1997. The witnesses were brought by me myself at about 7. a.m. I interrogated the accused thereafter. I do not remember the time within which the accused made the disclosure statement. It must have taken 15/20 minutes. Most probably by 7.30 a.m. the disclosure statement had been made. The accused was interrogated in P.S. Kangra. The witnesses were taken to Police Station Kangra. After the interrogation we went to the spot. It is wrong to suggest that no disclosure statement was made by Balbir singh and the same has been concocted by me..." 53. Though the accused in his statement recorded under Section 313, Code of Criminal Procedure, in answer to question No. 14 has stated that no disclosure statement was made by him and that he was subjected to third degree method for a considerable period, no such suggestion was put either to PW 15 or to PW 5 Onkar Chand, the attesting witness of the disclosure statement Ex. PW 5/B. The case made out during the cross-examination of these witnesses to the effect that no statement was made by the accused. PW 5/B. The case made out during the cross-examination of these witnesses to the effect that no statement was made by the accused. In the absence of any circumstance to the contrary, the learned trial court has rightly concluded that disclosure statement was made by the accused. 54. The knife Ex.P. 1 is alleged to have been got recovered by the accused from the hedge near the temple in the presence of PW.5 Onkar Chand and one Hoshiar Singh. Such recovery has been proved by PW.5 Onkar Chand and PW. 15 Sub Inspector Ram chand. The learned trial court has not accepted such recovery to be the one under section 27, Evidence Act on the grounds that the same was made a long time after the occurrence, and, that such, recovery was made from an open place which was accessible to all. The learned trial court, however, has relied upon such evidence under Section 8 of the Evidence Act. 55. The Apex Court in State of Himachal Pradesh v. Jeet Singh, 1992(2) Crimes 31 (SC), has held that there is nothing in Section 27, Evidence Act, which renders the statement of the accused inadmissible if recovery of the article was made from a place which is "open or accessible" to others. The crucial question is not whether the place was accessible to other or not, but whether it was ordinarily visible to others. If not, then it is immaterial that the concealed place is accessible to others. 56. In the present case, there is nothing on the record to show that the place of recovery was ordinarily visible to others. Therefore, mere fact that it was accessible to others would not be material. As such the recovery of the knife would be admissible under Section 27, Evidence Act. Mere delay in recovery of knife after the occurrence, in the absence of any incriminating circumstances would not be sufficient to discard such evidence as to recovery. 57. Another contention raised by the learned counsel for the accused is that knife Ex.P. 1 has not been connected with the offence and, therefore, even if the recovery thereof is proved to be at the instance of the accused, the same cannot be pressed into service as a circumstance against the accused. 58. Admittedly, knife Ex.P. 1 was not sent for chemical examination. PW. 1 Dr. 58. Admittedly, knife Ex.P. 1 was not sent for chemical examination. PW. 1 Dr. Ruby Bhardwaj who had initially examined the deceased and PW 8 Dr. DP. Swamy, who had carried out the post mortem of the deceased, have deposed that the injury found on the person of the deceased could have been possble with the knife Ex.P.l. Even if it be held that knife Ex.P.l is not the weapon of offence, even then the same would not materially affect the prosecution case in view of the categorical evidence of the eye witness PW.3 Parveen Kumar that it was the accused who had inflicted the fatal stab injury on the person of the deceased. Contention No. (v). 59. As per the prosecution case, the deceased was carried from the spot to the hospital by his brother PW.2 Jagroop Singh and PW.4 Ramesh chand. PW.2 Jagroop Singh has deposed during cross-examination:- "After he was found injured we took him to the hospital. I lifted him on my shoulder and took him to the hospital. He was first lifted by me and then by Ramesh Chand upto the road-head. Our clothes had become blood stained. We had not handed over our blood stained clothes to the police. We were asked by the police about our clothes but the same were not taken into possession." 60. PW.4 has admitted that he had assisted PW.2 in carrying the deceased to the hospital. However, he is silent as to whether their clothes had become blood stained. Nor he was cross examined on this aspect. 61. There is no denying that the clothes of PW.2 and PW.4 were never taken into possession by the police during the course of investigation. However, such failure would have no effect on the merits of the case. The blood stains on the clothes of PW.2 and PW.4 would have only proved that it were they who had carried the deceased to the hospital. Such blood stains have no bearing on the actual occurrence. The fact that the deceased was brought to the hospital by PW2 Jagroop Singh and others also stands proved by PW.l Dr. Ruby Bhardwaj. On the facts of the case we hold that failure to take into possession the clothes of PW.2 and PW.4 is of no consequence. Contention No. (vii): 62. The fact that the deceased was brought to the hospital by PW2 Jagroop Singh and others also stands proved by PW.l Dr. Ruby Bhardwaj. On the facts of the case we hold that failure to take into possession the clothes of PW.2 and PW.4 is of no consequence. Contention No. (vii): 62. Some of the contradictions coming in evidence of witness have been dealt with while discussing contentions No.(i) to (vi) above. Other contradictions pointed out by the learned counsel are of trivial nature and insignificant and, therefore, can be ignored. The apex court in Leela Ram (dead) through Duli Chand v. State ofHaryana & Anr. 1999(9) S.C.C. 525 has held that there are bound to be some discrepancies between the narration of different witnesses when they speak on details and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence of the prosecution in its entirety. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. 63. A contention was raised on behalf of the accused that if the accused is found to have inflicted the fatal blow, the same was inflicted on the spur of the moment without any pre-meditation and/or malice. There was no intention to kill inasmuch as only one blow was inflicted. Therefore, the accused, at the most, can be held guilty of the offence under Section 304 Part-II, Indian Penal Code. 64. We do not find force in the contention of the learned counsel. There is nothing on the record to show that the stab blow was given following any quarrel. Merely because a single knife blow was inflicted which resulted in death will not take the offence out of the purview of section 302, Indian Penal code. Dealing with a similar situation, the Apex Court in Mahesh Balmiki alias Munna v. State ofM.P. 2000(1) S.C.C. 319 has held:- "Ad verting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302IPC is not attracted. Dealing with a similar situation, the Apex Court in Mahesh Balmiki alias Munna v. State ofM.P. 2000(1) S.C.C. 319 has held:- "Ad verting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302IPC is not attracted. A single blow may, in some cases, entail conviction under section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife-blow given by him was so immkinently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death:" 65. In the present case the requirements of Exception 4 to Section 300, Indian Penal code, are lacking. The impact of the single blow with the knife proved disastrous. Therefore, it cannot be said that the accused had not taken undue advantage or not acted in a cruel or unusual manner. He was having the knowledge that the injury caused was likely to cause death. Therefore, the accused rightly stands convicted for the offence under Section 302, Indian Penal code. 66. In the result, we do not find any infirmity with the judgment of the learned Additional Sessions Judge convicting and sentencing the accused for the offence under Section 302, Indian Penal code requiring interference by this court. The appeal, therefore, fails and the same is dismissed.