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Himachal Pradesh High Court · body

2003 DIGILAW 245 (HP)

BALDEV SINGH v. STATE OF H. P.

2003-08-21

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J. :- This appeal is directed against the judgment dated 6.3.2003 passed by the learned Sessions Judge, Solan whereby the appellants/accused Baldev Singh and Ajay Kumar (hereafter respectively referred to as A-1 and A-2) have been convicted under Sections 392 and 307 read with Section 34 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for seven years and pay fine of Rs. 5,000/- and in default of payment of fine, to undergo simple imprisonment for six months under Section 392 of the India Penal Code and to undergo rigorous imprisonment for seven years and fine of Rs. 5,000/- and in default of payment of fine to suffer further simple imprisonment for a period of six months under Section 307 of the Indian Penal Code. 2. Briefly stated, case of the prosecution against the accused persons is that on 17.5.2002 at about 4.30 p.m. complainant Bishan Dutt (PW-1) was going from Solan to Kalka on Scooter No. HR-61-A-7338 belonging to his friend Sachin Bassi (PW-8). When PW-1 reached about 200 meters ahead of Sanwara Bazar towards Jabli, he was stopped by the accused persons one of whom told him that they were coming from Shimla and their luggage was lying below the area on a gorge and requested him to help them. PW-1 told them that they were having good health and could help themselves. Saying so, when PW-1 was to start the Scooter, one of the accused persons took out a knife and gave a knife blow on the stomach of PW-1 as a consequence whereof the Scooter fell down. The accused persons pushed PW-1 off the road downward and followed him. One of the accused having a slim body and black complexion i.e. A-1, caught hold of PW-1 and asked A-2 to give injection. When a syringe was taken out and accused tried to give injection to PW-1, he struggled to save himself and in the process the knife in possession of A-1 got twisted causing injury to A-1 and broke into two parts. A-2 then asked A-1 to catch hold of PW-1 and hit him with a stone on the head resulting in bleeding injury. The accused persons then took out currency notes worth Rs. 400/- from the pocket of the complainant, pushed him down the precipice and filed away on the aforesaid scooter towards Parwanoo. A-2 then asked A-1 to catch hold of PW-1 and hit him with a stone on the head resulting in bleeding injury. The accused persons then took out currency notes worth Rs. 400/- from the pocket of the complainant, pushed him down the precipice and filed away on the aforesaid scooter towards Parwanoo. PW-1 managed to reach the road, took lift on a Motorcycle and came to Police Station, Dharampur where he reported the occurrence vide FIR Ext. PA and also revealed that one of the accused (A-2) had tattooed mark of snake on his right hand. The investigation followed. PW-1 was given first aid and medically examined in C.H.C. Dharampur by Dr. A.K. Singh (PW-15) who found the following injuries on the person of PW-1 :- "1. Vertical lacerated wound on mid parietal area of skull bleeding present, measuring 3 cm long. 2. 2 cm long horizontally incised wound cutting subcutaneous tissue 1 cm deep in the middle of spindle shaped in left hypothordriun and lumbar area of abdomen, tailing of wound was present from left to right fashion. Bleeding was present on separation of gap margin, are reverted and well defined. 3. Multiple abrasions of irregular shape on whole of back, front and both hands." As per the medical opinion given by PW-15 vide MLC Ext. PB( the aforesaid injuries were simple having been caused with a sharp edged weapon within 12 hours of the medical examination. After having seen the broken parts of the knife Ext. P-2 and P-4, he opined that injuries No. 1 and 2 supra could thereby be caused. 3. In the meanwhile, message regarding bolting away of the accused persons was sent to police barrier Parwanoo and other places. By a return wireless message, Dharampur police was informed from Police Barrier Parwapoo that two persons riding on the aforesaid Scooter on Which PW-1 was riding before the occurrence, were apprehended. Police party from Dharampur, along with PW-1, went to Parwanoo where the apprehended accused were identified as the assailants by PW-1 and he also identified the Scooter. The Scooter was taken in possession vide memo. Ext.PC. On search of A-2, currency notes worth Rs. 500/- Ext. P-14, cash memo, of petrol Ext. P-13 found in his possession, were also seized by the Police vide memo. Ext.PK. The accused after their arrest were got medically examined from PW-15 on the same day. The Scooter was taken in possession vide memo. Ext.PC. On search of A-2, currency notes worth Rs. 500/- Ext. P-14, cash memo, of petrol Ext. P-13 found in his possession, were also seized by the Police vide memo. Ext.PK. The accused after their arrest were got medically examined from PW-15 on the same day. On medical examination of A-1, following injuries were found on his person:- "1. 3 cm incised wound on hypothenar area of right palm, red in colour, 1/2 cm deep in middle of wound of spindle shaped tailing of wound towards was thenar eminence of right palm. 2. 3 cm horizontal incised wound on the near area of right palm red in colour, tailing of wound to hypothenar area. 3. Irregular abrasion of red colour on right knee joint." As per the medical opinion given by PW-15 vide MLC Ext. PB, all these injuries were simple in nature having been caused with sharp edged weapon within 12 hours of the examination. 4. On medical examination of A-2, no fresh injury was found on his person but a few old punctured wounds more than one week old were noticed revealing that he was habitual of taking intervenes injections. Blood samples of both the accused were taken for the purpose of chemical analysis. 5. At the time of their apprehension, the accused persons were carrying a Rexin bag. On search there of, registration certification Ext. P-16 of Scooter No. PB-33-A-6381 in the name of Gurdas Mahajan of Sunder Nagar, one light yellow T. Shirt, sky blue Jean Pant, Brown curduroy pant, Brown shirt, grey shirt, Telephone diary, two passport size photographs of A-2, one cutter (knife) having sky blue handle and a punish button, one brown corduroy pant, a grey coloured pant and a shirt were found in the bag and were taken in possession vide memo. No. PJ. On search of A-1, currency notes worth Rs. 20/- found in his purse, were taken in possession vide memo Ext. PM. 6. During the investigation, blood stained pant, Bunyan Ext. P-8 and pant Ext. P-9 belonging to PW-1 were taken in possession vide memo. Ext. PD. From the place of occurrence, a blood stained and partially torn short of the complainant, one cutter (knife) with a broken blade Ext. P-2 and Ext. PM. 6. During the investigation, blood stained pant, Bunyan Ext. P-8 and pant Ext. P-9 belonging to PW-1 were taken in possession vide memo. Ext. PD. From the place of occurrence, a blood stained and partially torn short of the complainant, one cutter (knife) with a broken blade Ext. P-2 and Ext. P-4, two stones one having a sharp edge having blood stains - one watch, one Dispo-Van (injection) were taken in possession vide memo. Ext. PPE. PW-1 on the spot identified the cutter as the weapon with which he was given a blow in the stomach by the accused and the stone with a sharp edge with which he was hit on the head and also identified the blood stained torn shirt as his shirt. Blood stained T. shirt Ext. P-10 and Pant Ext. P-11 which A-1 was wearing at the time of the occurrence, on identification by PW-1, were taken in possession vide memo. Ext. PE. A blood stained half sleeve shirt (Ext. P-12) was taken in possession from A-2 vide memo Ext. P-12. 7. Blood stained wearing apparels of PW-1 and the accused persons, broken pieces of the cutter, two blood stained stones, plastic syringe, blood samples of PW-1 and the accused persons were sent for chemical analysis to the State Forensic Science Laboratory. As per the report Ext. PZ/B received from (fie Laboratory, human blood of Group-A was found on the shirt, pant and Banyan of PW-1, stone and pant and T-shirt of A-1. Human blood was found on shirt of A-2 and the three samples were found human blood but the group thereof could not be ascertained. Similarly, human blood was found on the cuter and another stone but it was insufficient for further analysis. Blood was not found in the broken piece of the cutter and the syringe. However, vide report Ext. PZJC in the syringe contents Barbiturate was detected. Photographs of the place of occurrence were also taken which are exits. P-22 to P-30 and the negatives thereof are Ext. P-31. Extract of the register of Hotel Vatika Shimla, where the accused are stated to have stayed before the occurrence, Ext. P-21 was also taken in possession by the police. 8. PZJC in the syringe contents Barbiturate was detected. Photographs of the place of occurrence were also taken which are exits. P-22 to P-30 and the negatives thereof are Ext. P-31. Extract of the register of Hotel Vatika Shimla, where the accused are stated to have stayed before the occurrence, Ext. P-21 was also taken in possession by the police. 8. After completion of the investigation, charge-sheet was submitted against the accused persons and two separate charges under Sections 392 and 307 read with Section 34 of the Indian Penal Code were framed against the accused persons by the learned Sessions Judge, Solan. The accused pleaded not guilty to the said charges. To prove the charge against the accused persons, the prosecution examined as many as 16 witnesses. The accused were examined under Section 313 of the Code of Criminal Procedure wherein they denied the case of the prosecution and claimed that they have been falsely implicated in the case. The accused persons, however, did not lead any evidence in defence. 9. On consideration of the evidence on record, the learned trial Judge convicted and sentenced the accused persons as aforesaid. Hence, this appeal by the accused. 10. I have heard the learned Counsel for the accused persons and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 11. The learned Counsel for the accused assailed the impugned conviction on the following grounds:- (1) That the recovery of the knife, syringe etc. from the spot vide memo. Ext. PPE is not proved for want of cogent and reliable evidence; (2) That the prosecution version suffers from improbability; (3) That there are material contradictions in the statements of the witnesses; (4) That the accused were previously not known to the complainant and their test identification parade was not held which is fatal to the case of the prosecution and the accused are entitled for benefit of doubt; and (5) That the injuries suffered by the complainant, are simple in nature and admittedly not sufficient to cause death, therefore, the accused could not be convicted under Section 307 of the Indian Penal Code. 12. Per contra, the learned Deputy Advocate General while supporting the impugned judgment, contended that the learned Sessions Judge had taken into account the entire evidence on record and on right appraisal and appreciation thereof, had arrived at the right conclusion. 12. Per contra, the learned Deputy Advocate General while supporting the impugned judgment, contended that the learned Sessions Judge had taken into account the entire evidence on record and on right appraisal and appreciation thereof, had arrived at the right conclusion. The case of the prosecution is proved to the hilt and the impugned conviction and sentences does not suffer from any infirmity and, thus, call for no interference. Ground No. (1) 13. The recoveries of articles, i.e. knife, syringe, blood stained shirt etc., vide memo Ext PPE have been made by ASI Yusuf Ali (PW-14) in the presence of PW-1 and Sharanjit Singh. Said Sharanjit Singh has not been produced by the prosecution. PW-14 has stated that along with Sharanjit, PW-1 and other police officials, he went to the spot from where the blood stained torn shirt Ext. P-5 of the complainant, knife Ext. P-2 alongwith its broken blade Ext. P-4, stones Exts. P-6 and P-7, syringe Ext. P-1, and watch Ext. P-3 were recovered and taken in possession and were made into parcel which were duly sealed with seal impression H1 vide memo. Ext, PPE. It has nowhere been suggested to this witness in his cross-examination that the recovery of the aforesaid articles was not effected by him in the manner as stated by him and as mentioned in the recovery memo. Ext. PPE. Thus, there is no reason to disbelieve the statement of PW-14 regarding this recovery. It is more so when his statement on this account is fully corroborated by PW-1. 14. The contention of the learned Counsel for the accused in support of this ground is that said Sharanjit Singh, one of the marginal witnesses of the memo of recovery, has not been produced and no other independent witness from the vicinity was joined to witness these recoveries. This recovery cannot be disbelieved simply for the reason that Sharanjit Singh has not been examined or that some independent person from the locality has not been joined to witness the recovery. Be it stated that it was not a recovery on the basis of disclosure statement but a recovery on the basis of the inspection of the spot as identified by the complainant. There is no suggestion to either of the witnesses that it was a planted or fake recovery. Be it stated that it was not a recovery on the basis of disclosure statement but a recovery on the basis of the inspection of the spot as identified by the complainant. There is no suggestion to either of the witnesses that it was a planted or fake recovery. In view of the confidence inspiring and un -shattered statement of the Investigating Officer, (PW-14) duly corroborated by PW-1 recovery vide memo Ex. PPE is proved beyond any reasonable doubt. Therefore, he contention of the learned Counsel for the accused that recovery of the aforesaid articles is not proved for want of cogent and reliable evidence is devoid of any merit and substance. Ground No. (2) 15. It was contended by the learned Counsel for the accused that according to the prosecution, the occurrence took place at about 4.30 p.m. when PW-1 was traveling by Scooter No. HR-61-A-7338 from village Kanu to Kalka.-This Scooter is admittedly owned by Sachin Bassi (PW-8). It has been admitted by PW-8 in his cross-examination that the Scooter was taken from him by PW-1 on 17.5.2002 at about 6.30/7.00 p.m. at Kalka. If so, it is improbable that the complainant (PW-1) was traveling by the aforesaid Scooter at about 4.00 or 4.30 p.m. on the same day as stated by him. Thus, the version of the complainant that he was traveling as alleged by him, is rendered unreliable. 16. It is in fact the case of the prosecution that the occurrence took place on 17.5.2002 at about 4.30 p.m. near village Snawara between Dharampur and Kalka when PW-1 was traveling in the aforesaid Scooter. PW-8 has stated in his cross-examination that his Scooter was taken by PW-1 on the aforesaid date at Kalka at about 6.30 - 7.00 p.m. There is no dispute that PW-8 had made the statement about the time of lending his Scooter to PW-1 simply on the basis of memory and that too after more than half a year of the occurrence. The differences of time, thus, can be attributed to misconception and loss of memory and is not a factor which may prove fatal to the case of the prosecution. Ground No. (3) 17. It was also contended by the learned Counsel for the accused that there are contradictions in the statements of the prosecution witnesses, particularly PW-1 and the Investigating Officer. Ground No. (3) 17. It was also contended by the learned Counsel for the accused that there are contradictions in the statements of the prosecution witnesses, particularly PW-1 and the Investigating Officer. However, no such major contradiction in the statements of the witnesses has been pointed out which may go to the root of the case. I have perused the statements of PW-1 and PW-14 and do not find any such contradictions in their statements which may go to the root of the case. Minor contradictions in the statements of the witnesses who have stated about the same facts, are bound to occurred because of individual conception and perceptions, manner of describing the events and lapse of time. Therefore, such contradictions which do not go to the root of the case, has to be ignored. As stated hereinabove, no such material major contradictions in the statements of the prosecution witnesses have been pointed out which may go to the root and prove fatal to the case of the prosecution. Ground No. (4) 18. It was contended by the learned Counsel for the accused that the accused were admittedly not previously known to PW-1, therefore, it was essential to hold their test identification parade which has not been done in this case and such lapse on the part of the prosecution is fatal to the case and the accused are entitled for the benefit of doubt. To substantiate his contention, the learned Counsel for the accused has relied on Shano @ Shanti v. State, of Punjab, 2002(4) All India Criminal Law Reporter 327 : 2003(1) Cur.L.J. (Criminal) 174; Bhagwan Singh and others v. State of M.P., 2003(3) SCC 21 and Sarwan Singh v. State of Punjab, 2003(1) SCC 2401. 19. On the other hand, the learned Deputy Advocate General had contended that the complainant had sufficient time to see the accused persons and at the time of lodging the FIR, had stated their identification marks and almost immediately after the occurrence when the accused were apprehended, he had identified them as the assailants, therefore, the test identification of the accused persons in the case was not required and the identity of the accused persons is established beyond any reasonable doubt. 20. 20. In Shanos case (supra) a Division Bench of the Punjab and Haryana High Court held that when the accused is not previously known to the concerned prosecution witnesses, then identification of the accused by the witnesses soon after the arrest of the accused is of vital importance because it furnishes to the Investigating Agency an assurance that the investigation is proceeding on right lines and that identification of the accused by the witnesses for the first time at the trial is absolutely valuables unless there had been a previous test identification parade to test his power of observation. 21. In Bhagwan Singhs case supra a child eye-witness of the occurrence had stated that the accused committed the crime at midnight and two of the three accused were unknown to him. In these circumstances, the Honble Supreme Court held that it was necessary to hold test identification parade and the dock identification of the accused made by the child in the Court would not be reliable and acceptable. 22. In Sarwan Singhs case supra, the Honble Supreme Court held that ordinarily identification of an accused for the first time in the Court by a witness should not be relied upon for the purpose of passing an order of conviction without a definite corroboration. It has, however, been held further that once the requirement of concept of justice, i.e. acceptability and credibility of the evidence of the witnesses, stands completed, it would be difficult if not impossible to challenge a conviction only on the ground of failure to hold prior test identification parade. 23. There cannot be any dispute with the proposition that where the accused is not previously known to the witness, ordinarily test identification parade must be held to ensure proper identity of the accused. However, it is so required only in such cases where the witnesses have a fleeting view of the accused and had not seen him for such time during which he can preserve his facial features. In case the witness had seen the accused committing the offence when there is sufficient light and the witness has been the accused for sufficient time to preserve his facial features to identify him at a later stage the failure to hold test identification parade will be rendered inconsequential. It is more so when the identification by the witness is duly supported by other independent and reliable corroborative evidence. It is more so when the identification by the witness is duly supported by other independent and reliable corroborative evidence. 24. In Malkhan singh and others v. State of M.R.A 2003(5) SCC .746, while dealing with the consequences of failure to hold a test identification parade, the Honble Apex Court held as under "16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parader-is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after, the other, Before the rape was committed, she was threatened and intimidated by t he appellants. After the rape was committed, she was again threatened and intimidated by them,. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and (Lore was no chance of her making a mistake about their identity. The occurrence took place on 4.3.1992 and she deposed in court on 27.8.1992. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and (Lore was no chance of her making a mistake about their identity. The occurrence took place on 4.3.1992 and she deposed in court on 27.8.1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they ha not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record." 25. In Harish Kumar and others v. State of H.P., 2001 (1) Shim. L.C. 281, this Court held as under :- "30. PW-2, the informant has stated about the arrival of accused Ram Kedar and Laxmi Nand in the hotel at Tapri where the complainant party was staying and (regarding inquiries made by them about the complainant party having any permit (pass) to enter Kinnaur. When the witness informed them in the negative, the said accused told them that police would arrest and put therh behind the bears for having entered Kinnaur without permit. PW-2 has further stated that these two accused assured them that they would get the requisite pass from SDM, Bhawanagar. So has been stated by PW-1 and PW-3. This discussion was of serious nature so far as the complainant and his companions (PW-1 and PW-3) were concerned. Therefore, they must be attentive during discussion and thus had ample time and opportunity to see Ram Kedar and Laxmi Nand so as to preserve their facial features to identify them at a later stage. 31. In view of the above, the contention of the learned Counsel for these accused that they were not known to the witnesses earlier and their test identification parade was not held, therefore, their identification by the prosecutrix (PW-1), informant (PW-2) and PW-3 for the first time in the Court in unreliable, is not-sustainable." 26. In Kamaljeet Singh v. State of H.P., Cr. A. No. 345 of 2002, decided on 21.5.2003, this Court held as under :- "15. In Kamaljeet Singh v. State of H.P., Cr. A. No. 345 of 2002, decided on 21.5.2003, this Court held as under :- "15. In the case in hand, as already stated PW-1 to PW-4 had enough time to preserve the facial features of the accused and his companion to enable them to identify the accused at a later stage. Moreover, the witnesses have identified the wearing apparel i.e. Jacket of the accused having distinct marks and recovered from the accused vide memo Ex. PB. The accused was found traveling in the car in which the dacoits had arrived at the bank and bolted away therefrom and was apprehended with currency notes immediately after the occurrence. Therefore, neither test identification parade of the accused which is not substantive evidence was necessary nor this is a case of mistaken identity. Hence the contention raised for the accused is not sustainable." 27. It is, thus, in view of the above settled position in law that the contention raised for the accused requires examination. 28. There is no other eye-witness of the occurrence except the victim (PW-1). As per his evidence, he was stopped by the accused persons and they requested him for help and some discussion took place between them. When PW-1 wanted to derive away on the Scooter, A-1 gave him a knife blow. Thereafter both the accused pushed him off the road downwards. Both the accused followed him. Then they caught hold of PW-1 and A-1 put a knife on his neck and asked him to hand over whatever he had in his pocket and not to raise any alarm. PW-1 then asked them to take out themselves whatever he had in his pocket and the accused accordingly removed currency notes worth Rs. 400/- from the back pocket of his pant. Thereafter A-2 tried to inject him to which PW-1 offered resistance thinking that the injection might be of some poisonous substance. In the scuffle A-1 sustained knife injury on his hand A-2 then hit PW-1 with a stone. In the meanwhile PW-1 matched the injection from A-2 and threw it away. The accused then pushed down the victim and ran away from the spot. In the scuffle A-1 sustained knife injury on his hand A-2 then hit PW-1 with a stone. In the meanwhile PW-1 matched the injection from A-2 and threw it away. The accused then pushed down the victim and ran away from the spot. As is evident from the above evidence, the accused persons and the victim had been talking to each other, struggling with each other and the time spent in this process was definitely sufficient for PW-1 to preserve the facial features of the accused persons. He had not only preserved their facial features but while lodging the FIR. He had given description of the marks of identification of the accused persons. As per the version of PW-1 as contained in FIR Ext. PA one of the accused was having a bulky body, whitish complexion and broad nose and that person had a tattooed snake on his right arm. About the other accused he had given the description that he was having slim body and blackish complexion and whom A-1 called Ajay which is the name of A-2. PW-1 has further stated that the accused bolted away from the place on the Scooter No. HR-61-A-7338 by which he himself was traveling before the occurrence. He has further stated that at a later stage when the message was received by the police at Dharampure about the apprehension of two persons traveling in the aforesaid Scooter at Parwanoo, he also proceeded to Parwanoo with the police party and identified the persons apprehended by the police as the assailants. Be it stated that this message was received by the police on the same day and the apprehended persons were identified by PW-1 as the assailants on the same day after a short interval after the occurrence at about 6 p.m. as stated by Devi Chand (PW-2). 29. The statement of PW-1 about the correct identification of the accused is confidence inspiring and there is nothing in his cross-examination which may create any doubt about the correct identification of the accused by him. 30. Statement of PW-1 about identity of the accused is corroborated by the medical evidence. PW-1 has stated that at the time when A-2 wanted to inject some substance into his body, there was struggle between them and in that struggle the knife in the hand of A-1 caused injury in his hand. 30. Statement of PW-1 about identity of the accused is corroborated by the medical evidence. PW-1 has stated that at the time when A-2 wanted to inject some substance into his body, there was struggle between them and in that struggle the knife in the hand of A-1 caused injury in his hand. It is his further version that one of the accused, i.e. A-1, was having tattooed snake on his right arm. A-1 was medically examined by Dr. A.K. Singh (PW-15) and two incised wounds - one on the hypothenear area of right palm and another on thenar area of right palm - were noticed. These injuries are opined to have been caused with a sharp edged weapon and as per the contents of Ext. PB these were sustained by A-1 within 12 hours of his medical examination which period coincided with the time of occurrence. At the time of medical examination of A-2, PW-15 had recorded his marks of identification in Ext. PW and one of such marks of identification in Ext. PW and one of such marks is tattooed mark of snake on right upper arm on the basis of which A-2 was identified by PW-15 as the person medically examined by him. 31. It is admitted case of the accused persons that on the relevant day they left Shimla. They admit their presence at Dharampur bus stop on the relevant day, i.e. in the near vicinity of the place of occurrence. A-1 has specifically stated in his statement under Section 313 of the Code of Criminal Procedure that they had to alight and stop at Dharampur because they were running short of money. 32. Ramesh Chand (PW-5) has identified the cash memo Ext. P-13 issued by Tarun Filling Centre regarding purchase of petrol for the aforesaid Scooter and his document Ext: P-13 was recovered by the police on personal search of A-2 vide memo. Ext. PK. To the same effect is the statement of PW-6 regarding Ext. P-13. 33. Deepak Sharma (PW-7) who is running Modern Dhaba at Dharampur, has also identified the accused as the persons who took meals in his hotel and also used STD from his PCO. This also establishes the presence of the accused around the time of the occurrence in the near vicinity of the place of occurrence. 34. P-13. 33. Deepak Sharma (PW-7) who is running Modern Dhaba at Dharampur, has also identified the accused as the persons who took meals in his hotel and also used STD from his PCO. This also establishes the presence of the accused around the time of the occurrence in the near vicinity of the place of occurrence. 34. Rajesh Sharma (PW-9) has also identified the accused as the person who stayed in Hotel Vatika Fingask Estate, Shimla from 14.5.2002 onwards and left on 16.5.2002 at 9.00 a.m. 35. In view of the admission of the accused that on 16th they travelled from Shimla to Dharampur, it as established that before the time of occurrence, the accused had reached in the near vicinity of the place of occurrence. 36. In view of the above discussed evidence and the conclusions arrived there in it cannot be doubted in any manner that the accused persons have been rightly identified by PW-1 as the assailants. The case law cited in support of the contention for the accused is of no help to them as their identity is properly and correctly established in view of the evidence on record. 37. In view of the statement of PW-1, which is consistent, cogent, reliable and confidence inspiring and admission of the accused that they had to terminate their further journey at Dharampur because they were running short of money, there is no escape from the conclusion that the accused persons with the intention of securing money and eliminating evidence of their acts, caused injuries to PW-1, extracted a sum of Rs. 400/- from him, attempted to inject a sedative in his body and pushed him down the gorge, as is the case of the prosecution. Ground No. 5 38. It was contended by the learned Counsel for the accused that as per the medical opinion, only simple injuries were found on the person of PW-1 and were not sufficient to cause death, therefore, convictions of the accused persons under Section 307 IPC is unsustainable and at the most the accused could be convicted under Sections 324/34 IPC. 39. To constitute an offence under Section 307 IPC, viz. attempt to commit murder, the person accused of the offence, must be proved to have thee requisite intention or knowledge and it must be followed by an act. 39. To constitute an offence under Section 307 IPC, viz. attempt to commit murder, the person accused of the offence, must be proved to have thee requisite intention or knowledge and it must be followed by an act. If the act is done with the requisite intention or knowledge, the consequences of the act that is sustaining of injury by the victim or not sustaining any injury are inconsequential except that part of the body to which injury is caused, weapon of offence and the nature of the injury caused may be of help in determining the intention/knowledge on the part of the accused. Thus, the court has to see whether the act irrespective of the result was done with the intention or knowledge as contemplated under Section 307 IPC. 40. The causing of simple injuries to PW-1, the weapon of offence which broke into pieces during bodily struggle, cannot be said to be a deadly weapon and the attempt of the accused to inject only a sedative into the body of PW-1 are indicative of the fact that the intention of the accused persons was to commit robbery and the show of force was only to disable PW-1 from putting up resistance. Thus, in the facts and circumstances of the case, the requisite intention or knowledge as contemplated under Section 307 IPC cannot be inferred. Therefore, the head of charge under Section 307/34 IPC against the accused is not proved. However, causing of simple injuries by the accused persons to PW-1 with a sharp edged stone and knife in furtherance of their common intention is fully and firmly proved. The accused proved. The accused are, therefore, liable to be convicted accordingly. 41. As a result, while maintaining the conviction of and sentence awarded to the accused persons under Section 392 (PC, this appeal is partly allowed to the extent that conviction of the accused persons under Section 307/34 IPC is altered to be one under Section 324/34 IPC and each of them is sentenced to rigorous imprisonment for three years and fine of Rs.2000/- and in default of payment of fine, to undergo further imprisonment for three months.