Judgment ( 1. ) THE above two convicted accused have preferred separate appeals against the judgment dated 31-3-1999 of the learned Ist Add1. Sessions Judge, Indore, in session Trial No. 402/1995, by which the learned Addl. Sessions Judge has convicted each of the appellants for offence punishable u/s. 302 of the Indian penal Code read with Section 34 thereof and sentenced them to undergo imprisonment for life and to pay fine of Rs. 1,000/ -. In default of payment of fine, the judgment directs the accused in default to suffer rigorous imprisonment for three months. ( 2. ) THE appellants were prosecuted for offence u/s. 302, in the alternative, u/s. 302/34 of IPC for having committed the murder of Anna @ Hari bhau, on 28-10-1992, at about 07. 25 p. m. in Lal Gali, Pardeshipura, Indore, by means of hard and sharp weapons in furtherance of their common intention along with the absconding accused - Vijay and his father. According to the prosecution, information was received at the Police Station which was recorded in the General Diary at S1. No. 3610, with regard to an injured person having been brought for treatment to M. Y. Hospital, Indore. For verification of the said information, the Police proceeded to M. Y. Hospital, where a Dehati Nalish was lodged by Raju (PW 2), brother of the deceased, to the effect that while he was returning from Lal Gali after purchasing vegetables, he witnessed an altercation between his friend Mohan and accused Vijay. He tried to intercede, but accused rushed at him with the result he came back to his house where he related the incident to his brother, the deceased, to Bahadur and uncle @ Anand. His brother then proceeded towards the place to pacify Vijay, but Vijay, his father accused Nasir and another person assaulted him by means of Knife and Sword at various places in his body and caused penetrated wounds. Persons present on the spot raised alarm and he rushed to the place to find that his brother Anna was lying near the shop of Rampal. He picked him up and inquired from him as to what had transpired. Deceased then informed him that Vijay by means of a knife, Nasir with a satur (Butchers Knife), Vijays father with a Sword and their another accomplice with a Sword had mercilessly attacked him and caused several injuries. He picked him up and inquired from him as to what had transpired. Deceased then informed him that Vijay by means of a knife, Nasir with a satur (Butchers Knife), Vijays father with a Sword and their another accomplice with a Sword had mercilessly attacked him and caused several injuries. He was taken in a Rickshaw to M. Y. Hospital. Ajay Kaith was (PW 17), after recording Dehati Nalish (Ex. P/2), recorded FIR. (Ex. P/17) and registered a case u/s. 307/34 of IPC and recorded statement u/s. 161 of Cr. P. C. of Rajesh s/o Chauthmal. In further steps of investigation he seized blood stained clothes of the deceased. Accused Sabu was arrested and so also accused nasir. On the disclosure made by the accused persons and duly recorded under the provisions of Sec. 27 of the Evidence Act, discovery of the Knife was made at the instance of Nasir and Sword was recovered from Shahbuddin, of which memoranda (Exs. P/6 and P/7) were prepared. Seizure were effected vide Exs. P/10 and P/11 of the blood stained weapons. Inquest was held and Inquest report (Ex. P/12) was prepared. The dead body was forwarded to M. Y. Hospital for post-mortem under Requisition (Ex. P/12 ). Samples of blood stained and control earth were seized from the spot, vide Ex. P/14. Spot Map was prepared vide Ex. P/16 and after completion of the investigation, the two accused were prosecuted. Accused Vijay and his father could not be prosecuted as they absconded and could not be apprehended. The matter was proceeded against them under the provisions of Sec. 299 of the Cr. P. C. ( 3. ) ON the appellants being charged for the above offences, they pleaded not guilty and stated that they were innocent. However, on trial, the learned Addl. Sessions Judge found them guilty and convicted and sentenced them as hereinabove stated. It is against the said conviction and sentence that the appellants have filed these separate appeals which are now being disposed of by this common judgment. ( 4. ) WHILE not disputing that Anna @ Hari Bhau has died and that his death was homicidal, learned Counsel for appellant Shahbuddin has urged that despite the fact the Raju (PW 2) knew Shahbuddin by name, his name does not figure in the Dehati Nalish (Ex. ( 4. ) WHILE not disputing that Anna @ Hari Bhau has died and that his death was homicidal, learned Counsel for appellant Shahbuddin has urged that despite the fact the Raju (PW 2) knew Shahbuddin by name, his name does not figure in the Dehati Nalish (Ex. P/2) which shows that had Shahbuddin been present, there was no reason why Raju (PW 2) would omit to mention his name and only state that there was another person who had also participated. Learned counsel has also referred to the testimony of Raj Kumar (PW 15) in support of his contention that the eye-witness Raj Kumar also does not attribute any overt-act to him which shows that even if it is assumed that Shahbuddin for some reason was present at the place of occurrence, it cannot be ruled out that his presence was innocuous. About Bahadur Singh (PW 18), learned Counsel for appellant Shahbuddin submits that he has also made a vague statement against shahbuddin and in view of the absence of name of Shahbuddin in the FIR and in the statement of Rajkumar, coupled with the fact that Shahbuddin was well known to Raju (PW 2), but still not mentioned in the FIR, the testimony of bahadur Singh (PW 18) also looses its significance. In these premises, learned counsel submits that involvement of Shahbuddin in the incident in question appears extremely doubtful. Learned Counsel for appellant Nasir has urged that both Raj Kumar (PW 15) and Bahadur Singh (PW 18) were chance witnesses and none was examined from the locality where the incident occurred. Under these circumstances and especially when the witnesses have a predilection towards the deceased, the learned Trial Court ought not to have convicted the appellants on the basis of the uncorroborated testimony of Raj Kumar (PW 15)and Bahadur Singh (PW 18 ). ( 5. ) THE prosecution has alleged participation of four persons with hard and sharp instruments in causing the injuries to the deceased. Deceased was first rushed to the Hospital where he was examined by Dr. Pradeep Goyal (PW 9) who gave his Report (Ex. P/10) (M. L. C), in which he recorded the following injuries on his body:- (1) Incised wound on left side of chest on rib 7th and 8th, 2 cm x 1 cm x ? deep bleeding present. (2) Incised wound on engina 2 cm x 1 cm bleeding present. Pradeep Goyal (PW 9) who gave his Report (Ex. P/10) (M. L. C), in which he recorded the following injuries on his body:- (1) Incised wound on left side of chest on rib 7th and 8th, 2 cm x 1 cm x ? deep bleeding present. (2) Incised wound on engina 2 cm x 1 cm bleeding present. (3) Incised wound on abdomen on left side of omentum 2 cm x 1 cm. (4) Incised wound on left side 2 cm x 1 cm bleeding present. (5) Multiple wounds over left thigh 2 cm x 1 cm bleeding present. (6) Incised wound on the left side of face 2 cm x 1 cm bleeding present. (7) Incised wound on head on (m) size 2 cm x 1 cm bleeding present. (8) Incised wound (m) side of face on maxillary paninals 2 cm x 1 cm bleeding present. (9) Incised wound left maxillary paninals 1 cm x 1 cm bleeding present. (10) Incised wound on parietal region 2 x 1 cm bleeding present. (11) Incised wound on parietal region 2 x 1 cm bleeding present. (12) Incised wound left leg below knee 2" x 1" x ? deep bleeding present. (13) Incised wound (left leg) below knee size 1 cm x 1 cm bleeding present. (14) Incised wound (right) thigh on front side 2 cm x 1 cm bleeding present. (15) Incised wound below knee 2 cm x 1 cm bleeding present. (16) Incised wound below 15th 1 cm x 1 cm bleeding present. (17) Incised wound over right serum 2 cm x 1 cm ? deep. (18) Incised wound left side of back of scapula 2 cm x 1 cm bleeding present. (19) Incised wound below 18th 2 cm x 1 cm bleeding present. (20) Incised wound right serum 2 x 1 cm bleeding present. (21) Incised wound on right side of 2 cm x 1 cm bleeding present. ( 6. ) AFTER the death of the patient, autopsy was performed by Dr. Raj kumar Singh (PW 4) who recorded the external injuries in the report Ex. P/3, as follows:- (1) Surgically stitched wound over left medical condyle region vertical oblique, lower end is narrow and anterior 2 x 0. 5 x 0. 5 cm. (2) Surgically stitched wound 0. 5 cm lower to injury (no. 1)obliquely vertical 4 x 0. 5 x 0. 5 cm. P/3, as follows:- (1) Surgically stitched wound over left medical condyle region vertical oblique, lower end is narrow and anterior 2 x 0. 5 x 0. 5 cm. (2) Surgically stitched wound 0. 5 cm lower to injury (no. 1)obliquely vertical 4 x 0. 5 x 0. 5 cm. (3) Surgically stitched wound 2 cm lateral to left tibial tubusif vertical 2 x 0. 5 x 1 cm lower end is narrow. (4) Stab wound present on left thigh middle part antrolateral aspect vertical 2 x 0. 5 x deep 4 cm. the wound is communicated to another wound (i. e. , erect wound) in anterior aspect of his thigh size is vertical 1 x 0. 5 cm upper end is narrow, lower end is broad. Margins clear cut. (5) Stab wound 2 cm above anteriorly injury No. 4 vertical 1. 5 x 0. 5 x 3 cm lower end is narrow. (6) Incised wound present in left forearm anteriorly 3 cm above wrist medial border two in number 1. 5 x 0. 5 x 0. 5 and 0. 2 cm aspect 1. 4 x 0. 5 x 0. 5 cm. (7) Incised wound 5 cm above injury (no. 6) obliquely transverse 2. 5 x 0. 5 cm lower end is medial and narrow x 0. 4 cm deep. (8) Incised wound just above injury number 7, transverse 0. 5 x 0. 2 cm. (9) Stab wound anterior lateral aspect left upper arm. Upper 1/4 x lower 3/4 junction part obliquely transverse lower x lateral end narrow 2 x 0. 5 x 6 cm. (10) Incised wound present on right maxillary emerging from right traverse coming out upwards 5 x 2 x 0. 2 cm. (11) Incised wound on left maxillary eminence region transverse 1. 5 x 0. 5 x 0. 5 cm. (12) Incised wound on right frontal eminence region 4 x 5 x 0. 2 cm half scalp deep. (13) Incised wound 3 cm above medial end of right suprantal region transverse 4 x 0. 2 x 0. 2 cm. (14) Incised wound present in left angle of mandible region, vertical 3 x 1 x 0. 5 cm. (15) Three stab wounds present 5 cm lower to left anterior glutted fold each measuring 2 x 0. 8 cm x 5 to 6 cm deep vertical lower and narrow. 2 x 0. 2 cm. (14) Incised wound present in left angle of mandible region, vertical 3 x 1 x 0. 5 cm. (15) Three stab wounds present 5 cm lower to left anterior glutted fold each measuring 2 x 0. 8 cm x 5 to 6 cm deep vertical lower and narrow. (16) Stab wound just below right inferior glutted fold obliquely transverse 2. 5 x 0. 5 x 6 cm deep medial end narrow. (17) Stab wound on right buttock middle transverse 1. 5 x 0. 5 x 5. 5 cm obliquely vertical, lower end is narrow. (18) Stab wound 8 cm below left anterior auxiliary fold obliquely vertical 1. 5 x 0. 5 x 2 cm in cavity obliquely upper end is narrow. (19) Surgically stitched wound present 3 cm above injury No. (18) transverse 2 x 0. 5 cm x 8 cm deep in thorasic cavity. Left lung upper pole shows sharp cut 0. 5 x 0. 2 cm x 1 cm deep. (20) Stab wound 5. 5 cm medial to injury no (18), surgically stitched obliquely vertical upper end is narrow, medial and anterior 2 x 0. 5 x 8. 5 cm deep. In left lung wound is 0. 5 x 0. 2 x 1. 5 cm. Lower thorasic cavity contains about 500 ml of blood some of which is clotted. (21) Stab wound just above on lateral to left nipple, obliquely transverse 0. 5 x 0. 2 cm x 1 cm. (22) Stab wound present left side of abdomen 22 cm below left anterior auxiliary fold placed obliquely vertical 2 x 0. 5 x 7. 5. Lower end is medial and narrow. A sharp cut present on intestine loop corresponding part size 0. 5 x 0. 2 on lower deep. (23) Stab wound 2 cm lateral to injury no. (22), obliquely vertical, upper and posterior end is narrow size 2. 5 x 0. 8 x 5 cm intestine loop is showing sharp cut 0. 5 x 0. 2 cm lower deep. (24) Surgically stitched wound at epigastirc region 2 x 0. 5 cm vertical, lower end is narrow, it has given cut in liver region to be correspondingly, total depth of wound is 7. 5 cm. (25) Stab wound right upper arm anterior aspect 6 cm above cubital fossa 0. 5 x 0. 2 x 4 cm deep transverse medial end is narrow. 5 cm vertical, lower end is narrow, it has given cut in liver region to be correspondingly, total depth of wound is 7. 5 cm. (25) Stab wound right upper arm anterior aspect 6 cm above cubital fossa 0. 5 x 0. 2 x 4 cm deep transverse medial end is narrow. (26) Incised wound present on right frontal region scalp 1 cm posterior to eminence obliquely normal 6 x 1 cm whole scalp deep. (27) Incised wound 1 cm posterior to anterior half part of injury no. (26) transverse 3 x 0. 5 cm x whole scalp deep. (28) Incised wound just anterior to parietal eminence, obliquely normal 7 x 1 cm x whole scalp deep. Wound beneath shows sharp cut present on its outer table. ( 7. ) IN the opinion of the Doctor, death occurred due to shock and haemorrhage as a result of multiple wounds to the body. ( 8. ) FROM the medical report two things are amply clear : (1) that a large number of injuries, in all 28, were caused by hard and sharp weapons which is compatible with the prosecution version of four persons having assaulted the deceased; and, (2) that death resulted on account of excessive haemorrhage through the injuries thus caused. In the backdrop of the above medical evidence, we now proceed to examine the ocular testimony adduced by the prosecution. ( 9. ) ACCORDING to the prosecution the eye-witnesses to the incident one mohan (PW 3), Hiralal (PW 6), Anand @ Uncle (PW 8), Rajesh (PW 10), rajkumar (PW 15) and Bahadur Singh (PW 18 ). Out of these witnesses, Mohan (PW 3) has deposed on the basis of the information received, Hiralal (PW 6), anand (PW 8) and Rajesh (PW 10) have not supported the prosecution and they have been declared hostile and the only eye-witnesses who have supported the case of the prosecution are Rajkumar (PW 15) and Bahadur Singh (PW 18 ). Name of Raj Kumar does not figure in the FIR, while name of Bahadur Singh has been mentioned. Before adverting to their evidence, we may briefly consider the arguments of the learned Counsel in respect of these two witnesses. Learned counsel for the appellants have submitted that these eye-witnesses were inimical to the accused, their evidence is not consistent with the medical evidence and they were chance witnesses. Before adverting to their evidence, we may briefly consider the arguments of the learned Counsel in respect of these two witnesses. Learned counsel for the appellants have submitted that these eye-witnesses were inimical to the accused, their evidence is not consistent with the medical evidence and they were chance witnesses. In this connection reference has been made to the decision of the Apex Court in Patel Chela Viram Vs. State of Gujarat (AIR 1994 SC1250 ). The attention was also invited to the decision in Shankarlal vs. State of Rajasthan (2004 Cr. LJ. 2874), especially insofar as the attempt of these witnesses to modulate their version was concerned. Reference was also made to the decision in Bahal Singh Vs. State of Haryana ( AIR 1976 SC 2032 )laying stress on close scrutiny of the testimony of such chance witness. ( 10. ) WE may, at the outset, point out that there is not even a whisper either in the cross-examination of Rajkumar (PW 15) or Bahadur Singh (PW 18)to the effect that they were chance witnesses and requiring them to explain as to how they happened to be at the place of the incident while they were resident of a distance place. Question was also not put to the Investigating Officer as to whether he made any effort to interrogate persons in the neighbourhood to find out if any person was acquainted with the facts of the case. Their evidence has been assailed on this ground for the first time at the appellate stage without there having been laid any foundation for the same during trial. Having not raised the point or given an opportunity to the witness concerned to explain his presence at the place of the occurrence, it appears quite futile to brand the said witnesses as chance witnesses at this stage. There is also no dispute that the statement of these witnesses u/s. 161 of Cr. P. C. was recorded on the same day and, therefore, also it does not appear to us that the evidence was subsequently procured. We are, therefore, not impressed by the contention that these witnesses were chance witnesses and they should not be believed and in any case, their testimony requires close scrutiny. ( 11. P. C. was recorded on the same day and, therefore, also it does not appear to us that the evidence was subsequently procured. We are, therefore, not impressed by the contention that these witnesses were chance witnesses and they should not be believed and in any case, their testimony requires close scrutiny. ( 11. ) RAJKUMAR (PW 15) has categorically asserted that on the date of the incident, he distinctly saw that Vijay had assaulted with a Knife, his father with a sword and Nasir had caused injuries with Gandasa. Bahadur Singh (PW 18) also ascribes overt-acts to each one of them. The medical evidence corroborates the ocular testimony which is further strengthened by the prompt FIR (Ex. P/2) and the other circumstances such as the recovery of weapons from the accused. Learned Counsel for the appellants have not been able to demonstrate that there is any enmity between the eye-witnesses and the accused persons or that the eye-witnesses have an axe to grind against them. Even Rajkumar (PW 15)has attributed general participation of Shahbuddin. The fact that all the accused persons conjointly participated in the incident, is enough to hold them constructively liable with the aid of Sec. 34 of IPC even in the absence of overt-acts. In the present case, Bahadur Singh (PW 18) an eye-witness, mentioned in the FIR itself, ascribes overt-act also to Shahbuddin. Under these circumstances, we find there is clinching evidence against the appellants implicating them in the commission of the offence in question and their conviction does not call for any interference. ( 12. ) IN the result, we find no merit or substance in these appeals. The appeals are dismissed. Appellant Shahbuddin is on bail. He is directed to surrender to his bail bonds to serve out his remaining sentence. ( 13. ) THIS judgment be retained in Cr. A. No. 617/1999 and a copy be placed in the record of connected appeal Cr. A. No. 665/1999. Criminal Appeals dismissed.