JUDGMENT 1. - Ramu @ Ram Singh and Raju Rajendra Singh have called in question the judgment dated 19.6.1995 of the learned Additional Sessions Judge-cum-Special Judge, SC/ST (Prevention of Atrocities) Act, Cases, Jaipur, whereby they were convicted under sections 302 & 302/34 IPC and sentenced to imprisonment for life and a fine of Rs. 1,000/-. 2. The facts of the case may be, put in narrow compass. On 20.6.1990 at 10.15 p.m., Kishan Punjabi lodged a report at P.S. Bani Park, Jaipur, that at 10.15 p.m. when he was standing at the main gate of the Sindhi Camp Bus stand by the side of Madan Lal (deceased), he saw Ramu and Raju coming there, Raju giving a fist blow to Madan Lal and taking him in his grip. It was stated that Ramu whipped out a knife from his trouser and stabbed Madan Lal on his lumber region, neck, scapular region, chest etc. On this report, a case under section 307 IPC was registered. The police succeeded in arresting both the accused sometime after the occurrence. Madan Lal was sent to the hospital for treatment but he could not be saved and he succumbed to the injuries, whereupon. Section 302 IPC was added. The police inspected the site, interrogated the witnesses and recovered incriminating articles at the instance of the accused. After the completion of the investigation, a challan was submitted. 3. The learned Additional Sessions Judge framed a charge under section 302 IPC against Ramu and charge under section 302/34 IPC against Raju who pleaded not guilty. The prosecution examined Kalu Ram (PW 1), Ram Puri (PW 2), Kailash (PW 3), Babu Khan (PW 4), Laxman Dass (PW 5), Radhey Shyam (PW 6), Jainarain (PW 7), Kashi Ram (PW 8), Berishal Pareek (PW 9), Bhagwat Singh (PW 10), Het Ram Bishnoi (PW 11) and Dr. Madan Tripathi (PW 12). The accused in their statements under section 313 Cr.P.C. denied the accusation. They denied that any incriminating article was recovered at their instance. The learned Sessions Judge, after hearing the arguments of the counsel for the parties, held that Madan Lal had met homicidal death and accused-Ramu had caused fatal injuries to him. He, therefore, convicted Ramu under section 302 IPC. Holding that there was common intention of both the accused to cause the death of Madan Lal, he convicted Raju under section 302 with the aid of SEA. He, therefore, convicted Ramu under section 302 IPC. Holding that there was common intention of both the accused to cause the death of Madan Lal, he convicted Raju under section 302 with the aid of SEA. 34 IPC. 4. Shri Goyal, learned counsel for the appellants, pointing out that the prosecution has not examined the other eye-witnesses and the first informant Kishan Punjabi, contended that the trial Court has erred in convicting the appellants. He submitted that the testimony of Jainarain, police constable, is not worthy of credence. F9r the recovery of incriminating articles, the contention of the learned counsel for the appellants was that independent witness has not supported the same It was canvassed that Raju could not know that Ramu was having a knife with him and therefore, the trial Court was not justified in convicting Raju under section 302/34 IPC. 5. The learned Public Prosecutor, on the other hand, tried to support the judgment of the trial Court. His contention was that Kishan Punjabi was not deliberately with held, but on the contrary, efforts were made to locate him, but he was not traceable and therefore, the prosecution was not in position to produce him in Court. It was contended that the testimony of Jainarain should not be discarded merely on the ground that he is a constable. He submitted that the presence of Jainarain at the scene of occurrence was natural. 6. We have considered the above arguments. Dr. Madan (PW 12) deposes that he had found the following injuries on the person of Madan Lal on 21.6.1990 which were ante-mortem in nature : 1. Incised wound 2 x 1/2 x muscle deep obliquely placed mid lumber region on back with dark clotted blood. 2. Incised wound 2 x 1/2 cm x muscle deep lateral and right to injury No. 1 with dark clotted blood. 3. Incised wound 1 x 1/2 x muscle deep on right side back of abdomen in mid line obliquely placed with dark clotted blood. 4. Incised wound 21/2 x 3/4 cm x muscle deep obliquely 1 cm. below injury No. 3. 5. Incised wound 11/2 x 1/2 cm x muscle deep obliquenly right side lower part back of chest with dark clotted blood. 6. Incised wound 11/2 x 1/2 cm x muscle deep right side back of abdomen in mid line with dark clotted blood. 7. below injury No. 3. 5. Incised wound 11/2 x 1/2 cm x muscle deep obliquenly right side lower part back of chest with dark clotted blood. 6. Incised wound 11/2 x 1/2 cm x muscle deep right side back of abdomen in mid line with dark clotted blood. 7. Incised wound 2 x 1/2 cm x mucle deep on supra scapular region transversly placed with dark clotted blood. 8. Incised wound 11/2 x 1/4 cm x skin deep obliquely on right lateral side neck with dark clotted blood. 9. Lacerated wound 4 x 1 cm bone deep obliquely on left occipite parietal region with dark clotted blood. 10. Stab wound 3 cm x 1 cm x 7 chest cavity deep, placed transversely and obliquely, spindle shaped on left side front of chest. 8 cm below and medial to nipple. Margin clear cut regularly defined with dark clotted blood. On further dissection of chest, wound was found going medially reaching upto left ventricle of heart lower part, cutting 6th & 7th ribs. Pericadium was cut in the size 3/4 cm x 1/4. Dr. Tripathi says that injuries No. 1 to 8 and to had clear cut margins. Deposing that he had prepared the post-mortem report Ex.P/17, Dr. Tripathi opines that the cause of death of Madan was the shock, caused by the injuries on his vital organs including heart. He states that the injuries were sufficient in the ordinary course of nature to cause death. 7. There is absolutely no cause to see the evidence of the Medical Officer with suspicion. By the testimony of Dr. Tripathi, it is fully established that Madan had suffered 8 incised wounds and one stab wound, besides a lacerated wound which resulted in his death. The trial Court has not erred when it held that Madan Lal had met homicidal death. 8. Now, the question to be considered is whether the prosecution has been successful in proving the charges against appellants. The items of evidence produced in the case are the ocular testimony of Jainarain (PW 7) and the recovery of blood stained clothes and the knife at the instance of the accused. 9. 8. Now, the question to be considered is whether the prosecution has been successful in proving the charges against appellants. The items of evidence produced in the case are the ocular testimony of Jainarain (PW 7) and the recovery of blood stained clothes and the knife at the instance of the accused. 9. Jainarain (PW 7) deposes that he was on duty at the Bus stand at about 10.15 p.m. when he saw that there was scuffle between Ramu and Raju on one side and Madan Lal on the other and that Madan Lal was in the grip of Raju. He then says that Ramu had inflicted various injuries by knife to Madan Lal. He deposes that Kishan Punjabi had also reached there. He further says that on running of Ramu and Raju-accused towards Mayank Cinema, he had chased them but because of darkness, he could not apprehend them. 10. A searching cross-examination has been done to Jainarain, but nothing has come out as to discard his sworn testimony. Simply because, he is a constable, his evidence cannot be seen with suspicion. When he says that he was posted at Sindhi Camp Bus stand out post and he w&s on duty at the Bus Stand, it has to be accepted that his presence at the place of occurrence was natural. It has not been suggested to him that he was inimical to the appellants. The only question that has been asked to the witness is that Ram Singh, who was a clerk in the office of Roadways, Wanted to put a cabin but he was not allowed to do so by the accused and hence, there was dispute between them. jainarain has denied in emphatic terms that he had friendly relations with Ram Singh or that he bore ill will against the accused. Defence witness Vishnu does not say that Jainarain was for some cause interested in Ram Singh, who is said to be on inimical terms with the accused. 11. It was contended that there are discrepancies in the statement. Defence witness Vishnu does not say that Jainarain was for some cause interested in Ram Singh, who is said to be on inimical terms with the accused. 11. It was contended that there are discrepancies in the statement. of Jainarain, inasmuch as at one place he says that he had reached the place of occurrence while patrolling while at other place he says that he had reached there on hearing the cries and yet at the third place he states that somebody had informed him about the fight and therefore he had gone to the place of occurrence. In our opinion, on the said discrepancies, the testimony of Jainarain cannot be held to to unbelievable. All the situations could happen at a time. Jainarain might be going towards the place of occurrence while patrolling, and at that time he could hear the cries and also somebody could tell him that there was fight going on. It is significant to point that even in the FIR Ex.P/13 lodged by Kishan Punjabi, the presence of Jainarain was stated. Not only that, Jainarain was interrogated by the Investigating Officer immediately after the occurrence between 11.00 p.m. and mid night. It has not been brought on record that Jainarain had given different version of the occurrence in his police statement. 12. Having going through his statement and the other circumstances on record, we do not find any cause to disbelieve Jainarain. By his testimony, it is fully established that accused-Raju after giving fist blow to Madan Lal had held him in his grip and accused-Ramu had inflicted multiple injuries by knife to him, which had resulted in his death. 13. No doubt, it was the duty of the prosecution to examine Kishan Punjabi who had lodged the first information report Ex.P/13. However, it has been observed by the learned Additional Sessions Judge that his presence could not be secured because he was not available at the address given by him. It is thus not a case where the prosecution has deliberately withheld a witness. On the contrary, it is a case where the witness was not traceable and was not available at the address given by him. In these circumstances, no adverse inference can be drawn against the prosecution for the non-production of Kishan Punjabi. 14. It is thus not a case where the prosecution has deliberately withheld a witness. On the contrary, it is a case where the witness was not traceable and was not available at the address given by him. In these circumstances, no adverse inference can be drawn against the prosecution for the non-production of Kishan Punjabi. 14. It may be that some persons had opportunity to witness the occurrence while standing out side or sitting at restaurant but their non-production does not render the testimony of Jainarain unreliable. It is not necessary for the prosecution to examine each and every person to prove a fact. We have held the testimony of Jainarain as worthy of credence. The non-production of the other persons therefore does not render the prosecution case doubtful. 15. Apart from the aforesaid direct evidence, the prosecution has also led evidence that the accused were arrested sometimes after the occurrence and at that time the clothes when by them were blood stained, and the blood found on their clothes was of the same group, which was on the clothes of the deceased. 16. Het Ram Bishnoi (PW 11) deposes that after he reached the place of occurrence, he inspected the site and arrested accused-Ramu at 2.45 a.m. and Raju at 3.00 a.m. on 21.6.1990. He says that he had taken in possession the shirt worn by Raju and the trouser and Baniyan worn by accused-Ramu and sealed them at the spot. The prosecution has produced the report of the FSL Ex.P/18, wherein, it has been opined that Baniyan and open shirt were stained with 'AB' blood group. It has also been stated that blood on the blood swab and the clothes of the deceased was also of 'AB' group. It is, thus, established that the blood found on the clothes of both the accused tallied with the blood group of the deceased. This is the strongest circumstance against the accused. It unerringly goes to prove that the two accused were involved in the murder of Madan Lal. 17. There is yet one more item of evidence against accused-Ramu. Het Ram, I.O., says that Ramu, while in custody had given him the information Ex.P/5 and thereafter he had recovered a knife at his instance from the place pointed out by him and seized the same vide memo Ex.P/7. 17. There is yet one more item of evidence against accused-Ramu. Het Ram, I.O., says that Ramu, while in custody had given him the information Ex.P/5 and thereafter he had recovered a knife at his instance from the place pointed out by him and seized the same vide memo Ex.P/7. He also deposes that he had sealed the knife at the spot and had sent the same for chemical examination. The FSL report Ex.P/18 says that the blood found on the knife was of 'AB' group. The recovery of knife amply connects accused-Ramu with the crime. 18. Though the Motibirs of the recoveries Rampuri (PW 2), Kalu (PW 1) and Babu Khan (PW 4) had turned hostile, yet they have admitted their signatures on the recovery memos. The testimony of Hetram, I.O. does not suffer from any infirmity. It cannot be rejected on the ground that the Motbirs have not supported him. There could not be any reason for Shri Bishnoi to have prepared false recovery memos. It has not been suggested that Shri Bishnoi was inimical to the accused persons for any reason. 19. In our considered opinion, the recovery of blood stained clothes of the accused-appellants as also the recovery of the knife are the strongest circumstances against them. 20. The medical evidence also fully corroborates the ocular testimony of Jainarain. 21. On the evidence produced in the case, it cannot be said that the trial Court has erred in holding that accused-Ramu had caused multiple injuries by knife to Madan Lal causing his death. 22. Ramu, of course, was not having a knife in his hand at the initial stage and had taken out the same from his pocket, but by that it cannot be inferred that both the accused had not shared common intention to cause the death of Madan Lal. It is relevant to state that both the accused are real brothers, and they had gone to the place of occurrence together and both of them gave fist blows to Madan Lal and after Raju took him in his grip, Ramu caused multiple injuries by a knife. It is not the case of causing one injury only. Raju did not loose his grip even after causing one or two injuries. These circumstances lead to the irresistible conclusion that both the accused had shared common intention to cause the death of Madan lal. It is not the case of causing one injury only. Raju did not loose his grip even after causing one or two injuries. These circumstances lead to the irresistible conclusion that both the accused had shared common intention to cause the death of Madan lal. The trial Court has, therefore, not erred in convicting Raju with the aid of Section 34 IPC. 23. As a result of the foregoing discussion, we fully agree with the conclusions arrived at by the trial Court and we affirm the conviction and sentence of both the appellants. 24. This appeal, being devoid of merit, is hereby dismissed.Appeal dismissed. *******