Judgment 1. Appellants Satish @ Bobby and Vijay @ Nikku challenge their conviction under Sections 302/323/34 IPC, for which they have been sentenced to undergo life imprisonment, apart from other lesser sentences. 2. At the outset, learned Counsel for the appellants submitted that appellant No. 1 Satish @ Bobby died in April 2004. 3. Accordingly, appeal qua him is dismissed as abated. 4. We are, thus, required to consider the appeal of Vijay @ Nikku only. 5. Case of the prosecution is that on 3.3.1996 at 9 PM, Satish @ Bobby and Vijay alias Nikku assaulted Rajinder deceased. Vijay had a lathi of bamboo and put his left foot on the chest of the deceased. Satish had a sharp-edged weapon and gave blows including the one in the abdomen of the deceased. Joginder Kumar PW9 tried to intervene, on which he was also given an injury. Rajinder was taken to the hospital but he died on the way. On receipt of message from the Hospital, ASI Madan Lal PW 14 went to the hospital and recorded the statement of Shamsher Singh Ex.PS at 1.15 AM, who was also injured and was in the hospital and on that basis, FIR was registered. PW8 Shamsher Singh did not support the prosecution version in Court subsequently. According to the statement Ex.PS of Shamsher Singh PW8, the deceased had got seized liquor of Satish, on account of which he was annoyed. PW 14 ASI Madan Lal prepared inquest report Ex.PD and sent the dead body for post mortem. He went to the spot of occurrence and prepared rough site plan, lifted blood stained earth. He also recorded statement of Joginder Kumar PW9 under Section 161 Cr.PC, which is substantially similar to version contained in Ex.PS. He arrested the accused Satish and Vijay on 7.3.1996. He recovered weapons of offence Ex.P1 lathi and Ex.P2 Knife, on the basis of disclosure statements from the said accused. On 9.3.1996, he also arrested co-accused Kishan Lal against whom allegation was of assaulting PW8 Shamsher Singh and who has been acquitted. 6. After investigation, the accused was sent up for trial. 7. The prosecution examined Dr. RK Choudhary as PW 1, Dr. Shub Jyoti Parkash as PW 2, Dr. On 9.3.1996, he also arrested co-accused Kishan Lal against whom allegation was of assaulting PW8 Shamsher Singh and who has been acquitted. 6. After investigation, the accused was sent up for trial. 7. The prosecution examined Dr. RK Choudhary as PW 1, Dr. Shub Jyoti Parkash as PW 2, Dr. Ravinder Garg as PW 3, HC Jage Ram as PW 4, Constable Ramesh Kumar as PW 5, Constable Baljeet Singh as PW 6, Constable Sumit Kumar as PW 7, complainant Shamsher Singh as PW 8, an eye witness of occurrence Joginder Kumar as PW9, Inspector Davender Yadav as PW 10, ASI Kartar Singh as PW 11, ASI Sube Singh as PW 12, Constable Ram Mehar as PW 13 and ASI Madan Lal as PW 14. 8. The accused denied the prosecution allegations and stated that the deceased used to sell illicit liquor alongwith PW9 Joginder Kumar and some one else caused injuries to the deceased. 9. We have heard learned Counsel for the parties and perused the record. 10. Learned Counsel for the appellant raised the following points: (i) Statement of PW9 Joginder Kumar under Section 161 Cr.PC was recorded only at 10 AM on 4.3.1996 and not immediately after the occurrence and, thus, his presence at the place of occurrence was doubtful. (ii) In site plan Ex.PB and Ex. PB/1, name of the accused is not mentioned in the title of the case nor name of PW9 Joginder Kumar is shown. (iii) Name of Joginder Kumar PW9 was not mentioned in the DDR, which is the gist of FIR as per police rules, which again created doubt about his presence at the place of occurrence. He relied upon judgment of this Court in Gurdev Singh and Ors. v. The State 1963 PLR 409. In his crossexamination, PW9 Joginder Kumar admitted that people of the locality told the police that no body knew who caused injuries to the deceased in the darkness. (iv) Joginder Kumar PW9 was a chance witness and nature of injury found on him did not make him a stamped witness. Accused Satish had head injury but this fact was not put to him in statement under Section 313 Cr.PC. (v) Solitary statement of Joginder Kumar PW9 could not be accepted without corroboration when his version qua Kishan Lal, co-accused had not been accepted. 11. We are unable to accept the above submissions. 12. Accused Satish had head injury but this fact was not put to him in statement under Section 313 Cr.PC. (v) Solitary statement of Joginder Kumar PW9 could not be accepted without corroboration when his version qua Kishan Lal, co-accused had not been accepted. 11. We are unable to accept the above submissions. 12. We are of the view that the case of the prosecution stands established against appellant Vijay @ Nikku and his conviction and sentence are liable to be affirmed. 13. PW 8 Shamsher Singh, uncle of the deceased and author of the FIR, did not support the version of the prosecution in the witness box and merely stated that a crowd of 30-40 persons came and caused injuries. He even denied having lodged the FIR. However, PW9 Joginder Kumar has fully supported the prosecution version of Satish and Vijay accused having assaulted the deceased. He deposed that Vijay accused put his foot on the chest of the deceased and Satish gave blows. Satish gave knife blow to PW9 Joginder Kumar also. Later Kishan Lal joined in causing blows to Shamsher Singh. Rajinder injured was taken to the hospital and he died on the way. 14. Presence of Joginder Kumar on the place of occurrence cannot be dipsuted merely because injury found on him was not serious. PW 3 Dr. Ravinder Garg medico-legally examined Joginder Kumar PW9 in the night at 12.20 AM itself with the alleged history of assault on him on 3.3.1996. The injuries found on him are quoted below: 1. The patient was complaining of pain on right side of chest. 2. Lacerated wound 1x1x1/2 cms in size on left lower forearm dorsum with fresh bleeding. 15. The fact that PW9 Joginder Kumar had accompanied the injured to the hospital, stands established by clinching evidence of Dr. Ravinder Garg PW 3 and even if the injury found on his person was not very serious, it did not establish his absence from the place of occurrence. His evidence could also not be rejected on the ground that he was a chance witness merely on the ground that his house was located 10/12 furlong away which cannot be said to be far away. The Investigating Officer having recorded statement of PW 8 Shamsher Singh and proceeded to the place of occurrence, there was hardly any delay in recording the statement of PW9 Joginder Kumar. 16. The Investigating Officer having recorded statement of PW 8 Shamsher Singh and proceeded to the place of occurrence, there was hardly any delay in recording the statement of PW9 Joginder Kumar. 16. Once presence of Joginder Kumar PW9 is established at the place of occurrence, mere fact that his name was not mentioned in the DDR or in the site plan, was of no significance. Though, FIR is not substantive piece of evidence, it may be mentioned that name of PW9 Joginder Kumar was mentioned in the FIR also. 17. His statement in cross examination that police made enquiries from other persons, who showed ignorance about the occurrence, does not, in any manner, advance the case of the defence. It does not affect the truthfulness of testimony of PW 9 Joginder Kumar. It was nobodys case that other persons had also seen the occurrence. 18. Acquittal of Kishan Lal did not make testimony of PW9 Joginder Kumar partly unreliable. The trial court, on the contrary, has recorded that PW 9 Joginder Kumar was honest, reliable and truthful witness. Only reason for acquittal of Kishan Lal was that he had not participated in the first occurrence resulting in the death of Rajinder but appeared on the scene of the occurrence later and only caused injuries to Shamsher Singh. He had been charged only under Sections 323/34 IPC but was acquitted, as PW 8 Shamsher Singh injured himself did not support the version of the injury having been caused to him by Kishan Lal. This aspect does not, in any way, affect the value of evidence of PW 9 Joginder Kumar. 19. Sharing of common intention by appellant Vijay could not be disputed. Vijay had put his foot on the chest of the deceased, which facilitated causing of fatal blow by Satish. He was also armed with a lathi. 20. Dr. R.K.Chaudhary PW 1 conducted post mortem examination on the dead body of Rajinder on 4.3.1996 at 12.45 PM and found the following injuries: 1. 8.5 cm 2.5 cm eliptical incised wound over upper part of left side of neck starting from midline over thyroid prominence and going upto upper part of left sterio mastoid muscle 3 cm below left mastoid process. It was cutting subcutaneous fat and superficial layer of platisma muscles. Clotted blood was present all over. 8.5 cm 2.5 cm eliptical incised wound over upper part of left side of neck starting from midline over thyroid prominence and going upto upper part of left sterio mastoid muscle 3 cm below left mastoid process. It was cutting subcutaneous fat and superficial layer of platisma muscles. Clotted blood was present all over. There was 2.5 cm superficial patchy lenear abrasion extending antero-downward over front of neck from anterior edge of the wound. 2. 2.3 cm x 1 cm eliptical/wound over left side of chest in anterior axillary line 7 cm below anterior axillary fold and 15 cm left to mid line in 7th inter costal space. Both margins were sharp. Upper and outer edge was torn and wide, while lower inner edge was clean cut. On dissection the track from this wound was cutting lower edge of 6th rib and upper end of left 7th rib through 7th inter costal space entering left plural cavity and then going downward medically and posteriorly causing a cut in left dome of diaphragm and then penetrating supero lateral surface of spleen upto hylum of spleen. Left plural cavity contained about 200 cc blood. Left lung was healthy. Length of the track was about 10 cm. 3. 3 cm x 1 cm eliptical vertically placed wound in the epigestrium just left to mid line 2.5 cm below xiphisternum. Both margins were sharply cut. Upper edge of the wound was torn and slightly wide while lower edge was clean cut. Both margins of wound were oblique cut with track directed towards right side, slightly downward and posteriorly. On dissection of this injury, the track was passing obliquely through muscle of anterior abdominal wall piercing paritoneum and cutting anterior surface of right lobe of liver and penetrating obliquely towards right, posteriorly and slightly downward. Length of the track was about 15 cm. 4. 2.5 cm x 1.5 cm elipitacal/wound over left flank of abdomen just above top of left iliac crest. A loop of sigmoid clon and omentum was protruding through it. Margins were sharply cut. Upper inner edge was torn and wide while lower and outer edge was clean cut. Length of the track was about 15 cm. 4. 2.5 cm x 1.5 cm elipitacal/wound over left flank of abdomen just above top of left iliac crest. A loop of sigmoid clon and omentum was protruding through it. Margins were sharply cut. Upper inner edge was torn and wide while lower and outer edge was clean cut. On dissection of this injury, the track was piercing through left flank muscle entering peritoneum piercing left mesocolon through and through causing haemotoma all around, going upward and medically and slightly posteriorly causing through and through rent in small gut loop 2 feet from Dudeno-jejunal injunction. 21. The said witness also made following observations: In my opinion, the cause of death of the deceased was haemoragic shock as a result of thoraco abdominal injuries described. The injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. 22. As regards injuries on the person of Satish, there is nothing to show that the said injuries were caused in the same occurrence. He denied his presence at the place of occurrence. The prosecution was not required to explain the said injuries. No prejudice was, thus, caused to the accused by the fact of injury of the accused Satish not put to him in statement under Section 313 Cr.PC. 23. Judgment of this Court in Gurdev Singh (supra) does not help the appellant. Therein, the effect of delay in lodging of the FIR and value of statement of facts in the inquest report has been discussed. Requirement of police rules has also been discussed. On the facts of that case, an inference was drawn that there was delay in FIR, which was fatal to the prosecution in that case. There was delay of 34 hours in receipt of copy of the report by the Magistrate. The substance of the FIR had not been incorporated in the DDR. 24. In the present case, copy of the FIR had reached the Ilaqa Magistrate at 4.30 AM. FIR itself had been registered on the basis of statement recorded at 1.15 AM in the hospital. As already discussed, there is sufficient evidence to establish presence of PW 9 Joginder Kumar at the place of occurrence and his version is wholly reliable. 25. In these circumstances, we have no hesitation in holding that the case of the prosecution has been established beyond reasonable doubt. 26. As already discussed, there is sufficient evidence to establish presence of PW 9 Joginder Kumar at the place of occurrence and his version is wholly reliable. 25. In these circumstances, we have no hesitation in holding that the case of the prosecution has been established beyond reasonable doubt. 26. As a result of above discussion, there is no merit in this appeal and the same is, accordingly, dismissed.