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2011 DIGILAW 2518 (ALL)

KHEM CHAND v. STATE OF U. P.

2011-11-04

SHRI KANT TRIPATHI

body2011
JUDGMEMT Hon’ble Shri Kant Tripathi, J.—By this appeal the appellants Khem Chand (since dead), Rajendra and Surender Singh have impugned the judgment and order dated 1.7.1981 rendered by Mr. Sushil Kumar, the then learned I-Additional Sessions Judge, Ghaziabad in Session Trial No. 1 of 1978 whereby the learned Additional Sessions Judge convicted and sentenced each of the appellants Khem Chand and Rajendra to undergo rigorous imprisonment of ten years under Sections 304/34 IPC and rigorous imprisonment of six months under Section 323/34 IPC. The learned Additional Sessions Judge convicted and sentenced the appellant Surender Singh to under go rigorous imprisonment of four years under Sections 304/34 IPC and rigorous imprisonment of six months under Sections 323/34 IPC. All the sentences have been directed to run concurrently. 2. The prosecution story leading to this appeal in nutshell is that on 6.10.1977 at about 10.30 a.m. P.W.-1, Rati Ram (the complainant) had proceeded on his motorcycle from village Sikree and when he reached behind Modi Sugar Mill, Modinagar, the deceased Nanak met him near the gate and requested him to give lift up to the railway station. The complainant allowed the deceased Nanak to sit on the pillion of the motorcycle. When the complainant and the deceased reached near the railway godown towards east of the factory wall, a cycle ridden by the appellants Surender and Rajendra took a sudden turn but the complainant safely avoided the accident. The deceased Nanak reprimanded the said two appellants. The appellants Surender and Rajendra dropped their cycle and caught hold of the deceased Nanak. The appellant Rejendra took out knife from his font of Tehmad and called his father Khem Chand (appellant No. 1) also to come with Khutpavri. Accordingly, all the three appellants caused injuries to the deceased Nanak with their respective weapons. The complainant, (P.W. -1, Rati Ram) came to the rescue of the deceased but he was also assaulted by the appellants. In the meantime, P.W. -2, Tota Giri and four constables, namely Om Prakash, P.W.-4, Devendra Sharma, P.W.-5, Pramod Kumar and P.W.-6, Qasim Raza also arrived there. All the three appellants were arrested on the spot alongwith their arms. The deceased Nanak had sustained serious injuries, therefore, the aforesaid persons took the deceased on a rickshaw to a hospital in Modinagar but the deceased succumbed to the injuries on way to the hospital. All the three appellants were arrested on the spot alongwith their arms. The deceased Nanak had sustained serious injuries, therefore, the aforesaid persons took the deceased on a rickshaw to a hospital in Modinagar but the deceased succumbed to the injuries on way to the hospital. One constable was left with the dead body of the deceased and three other constables took the appellants alongwith their arms to the Police Station Modinagar, where the complainant lodged the FIR (Exhibit Ka-2), on which basis the police registered the case and proceeded to investigate the matter. P.W.-10, Ram Chander Singh, Inspector, undertook the investigation. He prepared inquest report, Exhibit Ka-1 and other formal papers and sealed the dead body of the deceased and sent the same for post-mortem examination. The Investigating Officer, thereafter, visited the place of occurrence, prepared the site plan (Exhibit Ka-10), took blood stained and plain earth and concrete from the place of occurrence and prepared their memos. The Investigating Officer recovered the complainant’s motorcycle from the place of occurrence and also prepared its memo. During the course of investigation, the Investigating Officer (P.W.-10 Ram Chandra Singh) was transferred, consequently the investigation was undertaken by his successor, P.W.-8, Sher Singh, who completed the remaining part of the investigation and submitted the charge-sheet (Exhibit Ka-4) against all the appellants. 3. P.W.-11, Dr Dilwar Singh, Medical Officer, PL Sharma Hospital, Meerut conducted the post-mortem examination on the dead body of the deceased on 7.10.1977 at 3.45 p.m. and found the following ante-mortem injuries on the dead body of the deceased: (1) Incised wound 2 cm x 1 cm x muscle deep on the front neck, left side lower part. (2) Incised wound 1 cm x 0.5 cm x muscle deep on the face left side. (3) Stabbed wound 3 cm x 1.5 cm x chest cavity deep on left side 3 cm inside left nipple. (4) Incised wound 1 cm x 0.5 cm x muscle deep on back right side middle part. (5) Multiple abrasion in area of 7 cm x 3 cm on back muscle of the chest both sides. 4. The complainant Rati Ram was also medically examined on 6.10.1977 at about 7.00 p.m. by P.W.-12, Dr. (4) Incised wound 1 cm x 0.5 cm x muscle deep on back right side middle part. (5) Multiple abrasion in area of 7 cm x 3 cm on back muscle of the chest both sides. 4. The complainant Rati Ram was also medically examined on 6.10.1977 at about 7.00 p.m. by P.W.-12, Dr. DV Jindal posted as Medical Officer in the aforesaid hospital who found the following injuries on the person of the complainant: (1) Lacerated wound 4 cm x ½ cm x bone deep on the back of head 10 cm. above right ear. (2) Lacerated wound 4 cm x ½ cm x bone deep on the left side of head. 12 cm above the left ear. (3) Abrasion ½ cm x ½ cm on right eye brow. 5. The learned trial Court framed charges under Sections 302/34 and 323/34 IPC against the appellants. They denied the charges and claimed to be tried. 6. To prove the aforesaid charges, the prosecution has examined as many as 12 witnesses. The prosecution evidence can be classified into the following three categories, namely; (a) Occular testimonies: (i) P.W.-1, Rati Ram, P.W.- 2, Tota Giri, P.W.-4, Devendra Sharma, P.W.-5, Pramod Kumar and P.W.-6, Qasim Raza are the eye-witnesses of the incident. (ii) P.W.-1, Rati Ram is not only the complainant but is also the injured witness. At the time of the incident, the deceased was moving alongwith this witness on his motor-cycle. This witness has supported the prosecution story in the witness box and stated that when he reached alongwith the deceased near the godown, three persons (accused persons) stopped his motor-cycle. The accused persons started assaulting the deceased Nanak and when he came to the rescue of the deceased he was also assaulted. This witness further stated that the accused persons had weapons like knife etc. but he could not locate the exact weapon each accused had at the time of the incident because he was to save his own life. He has further proved the story of the arrival of the aforesaid police personnels but showed his ignorance regarding spot arrest of the accused persons because he had fled away from the scene of occurrence. When this witness was shown the knife, produced in the Court, he stated that the accused persons had weapon like that but denied that the Khutpavri was in the possession of the accused persons. When this witness was shown the knife, produced in the Court, he stated that the accused persons had weapon like that but denied that the Khutpavri was in the possession of the accused persons. This witness further declined the story of lodging of the FIR. During the cross-examination, he has, however, clarified that when he moved towards north about 15-16 yards from the place of the occurrence, 4-5 Constables met him. He has further stated that he had left his motor-cycle at the place of occurrence, which was subsequently recovered by the police personnels from the place of occurrence. He has further stated that when he stopped the motorcycle, the accused persons assaulted the deceased. He again came to the place of occurrence alongwith the Constables. In this way, P.W.-1, Rati Ram (injured witness) has supported the prosecution story regarding the time, place and manner of the occurrence and also regarding the involvement of the appellants in causing injuries to the deceased and also to him. If this witness, on account of any reason failed to identify the Khutpavri weapon in the Court or did not support the story of lodging the FIR, it cannot be contended that the entire prosecution story was false. The occurrence took place in the broad day light and there was no reason for P.W.-1, Rati Ram to falsely implicate the appellants. In this view of the matter, the aforesaid discrepancies do not appear to have any material bearing on the merits of the case, specially when the prosecution contradicted P.W. 1, Rati Ram with his previous supporting statement Exhibit Ka 16 recorded under Section 161 of the Code of Criminal Procedure and duly proved by P.W. 10, Ram Chandra Singh. (iii) P.W.-2, Tota Giri is also an eye-witness of the occurrence. He was going from Modinagar to his village. When he reached near the godown at about 12.30 p.m., he saw four Constables had been running up towards the place of occurrence. He also moved towards the place of occurrence alongwith the Constables and when he reached the place of occurrence, he saw that the appellant Khem Chand had the Khutpavri (Exhibit 1) and appellant Rajendra had knife (Exhibit 2) and the third appellant Surender was involved in assaulting the deceased Nanak. He also moved towards the place of occurrence alongwith the Constables and when he reached the place of occurrence, he saw that the appellant Khem Chand had the Khutpavri (Exhibit 1) and appellant Rajendra had knife (Exhibit 2) and the third appellant Surender was involved in assaulting the deceased Nanak. At that time, the knife which was in the possession of the appellant Rajendra was stained with blood and the Khutpavri was also stained with blood. The deceased Nanak and the complainant Rati Ram had sustained injuries. All the three appellants were arrested on the spot by the police personnels, who, thereafter took the deceased to a hospital on a rickshaw but Nanak died on way to the hospital. In this way by P.W.-2, Tota Giri has also supported the prosecution story. The statement of this witness seems to be quite natural and consistent with the other evidence on record, specially when he has narrated the prosecution story from the stage of his arrival at, or near, the place of occurrence. (iv) P.W.-4, Devendra Sharma, P.W.-5, Pramod Kumar and P.W.-6, Qasim Raza, Constables were on patrolling duty and had arrived the place of occurrence from the railway station on hearing alarm. These three witnesses have also supported the prosecution story in the witness box and have given eye-witness account of the occurrence and they have further proved that all the appellants were arrested on the spot alongwith their respective weapons. These witnesses have further proved that the appellant Rajendra had a knife, the appellant Khem Chand had a Khutpavri. When they reached the place of occurrence all the appellants had been assaulting the deceased and the injured. (b) Medical evidence (i) The prosecution has placed reliance on the evidence of P.W.-11, Dr. Dilwar Singh for proving ante-mortem injuries sustained by the deceased. This witness had conducted the post-mortem examination on the dead body of the deceased and found the ante-mortem injuries, referred to paragraph 3 of this judgment, on the dead body of the deceased. He further clarified that on internal examination of the dead body, he found left lung and pleura punctured and further found left ventricle of heart also punctured through and through. Dr. Dilwar Singh was of the opinion that the death of the deceased occurred due to shock and further opined that injury Nos. 1 to 4 were caused with a sharp edged weapon. Dr. Dilwar Singh was of the opinion that the death of the deceased occurred due to shock and further opined that injury Nos. 1 to 4 were caused with a sharp edged weapon. (ii) P.W.-12, Dr. DV Jindal, who had medically examined the complainant Rati Ram, has proved his injuries referred to paragraph 4 of this judgment. According to Dr. Jindal, the injuries sustained by the injured Rati Ram were simple, fresh and could be caused with a blunt object. In this way, the medical evidence fully corroborates the ocular testimonies. (c) Formal evidence (i) P.W.-3, Mool Chand and P.W.-7, Nanhe are the witnesses of the inquest proceedings of the dead body of the deceased, recovery of the motor-cycle of the complainant from the place of occurrence and also taking of the blood stained and plain earth and concrete from the place of occurrence. These two witnesses have supported the prosecution story with respect to these material aspects of the matter and stated that the inquest proceeding was done in their presence and the Investigating Officer took in his possession the blood stained and plain earth and concrete from the place of occurrence and sealed them in two different containers. They further proved that the complainant’s motor-cycle was also recovered from the place of occurrence. (ii) P.W.-8, Sher Singh was the second Investigating Officer, who undertook the investigation after transfer of P.W.-10, Ram Chander Singh. This witness had interrogated certain prosecution witnesses and had also sent blood stained and plain earth and concrete as well as blood stained clothes of the deceased for chemical examination. He has proved all these formalities in the witness box and further proved the charge-sheet (Exhibit Ka-4), which was submitted by him after concluding the investigation. P.W.-10, Ram Chander Singh was the first Investigating Officer, who had conducted the inquest proceeding of the dead body of the deceased and accordingly proved the inquest report. He has further proved that he got sealed the dead body of the deceased and referred the same to Meerut for post-mortem examination and visited the place of occurrence and prepared the site plan (Exhibit Ka-10), which was proved by him in the witness box. He has further proved that he got sealed the dead body of the deceased and referred the same to Meerut for post-mortem examination and visited the place of occurrence and prepared the site plan (Exhibit Ka-10), which was proved by him in the witness box. He had also taken blood stained and plain earth and concrete from the place of occurrence and prepared the fard relating to that proceeding and proved the blood stained and plain earth and concrete (Exhibit Ka 3 and 4). This witness has further proved that the motor-cycle of the complainant was also recovered from the place of occurrence and also proved the blood stained knife and Khutparva during the trial, which were recovered from the possession of the appellants at the time of their arrests. He has also proved the memo relating to the recovery of the motorcycle from the place of occurrence. 7. The appellants were examined under Sections 313 of the Code of Criminal Procedure. They denied the allegations made against them and stated that they have been falsely implicated due to enmity. With regard to the spot arrest, the appellants claimed that they were arrested from their house. 8. P.W.-9, Dr. KL Sharma, Medical Officer, State Dispensary, Govindpuri had medically examined the appellant Khem Chand and appellant Surender on 7.10.1977 during the period 10.20 a.m. to 10.50 a.m. and found the following injuries on the body of the appellant Khem Chand: (1) Partially scabbed abrasion 2.2 cm x 0.2 cm on the root of left thumb towards index finger. (2) Abrasion 3.2 cm x 0.2 cm with no scab and no discharge on the back of left hand opposite little finger. (3) Abrasion 1 cm x 0.5 cm, 1 cm x 0.2 cm, 0.8 cm x 0.5 cm on the inner aspect of left wrist. (4) Scabbed wound 1.6 cm x 0.5 cm and 1 cm x 0.8 cm on the back of left elbow. (5) Scabbed house shoe shaped abrasion 5.2 cm x 0.6 cm on the outer aspect of right fore arm, upper half with two depressed factors in the middle. (6) Four scabbed connected abrasion 3.5 cm x 0.5 cm on the right elbow and around of different sizes. (7) Abraded area 5 cm x 2.5 cm with scab on the front of knee. (6) Four scabbed connected abrasion 3.5 cm x 0.5 cm on the right elbow and around of different sizes. (7) Abraded area 5 cm x 2.5 cm with scab on the front of knee. (8) The whole area below the right knee about 8 cm x 6 cm with numerous small abrasion of different sizes. (9) Incised wound partially scabbed 2.2. cm x 3 cm on the upper layer of skin. 9. According to P.W. -9, Dr KL Sharma the aforesaid injuries of the appellant Khem Chand were about one day old. Injury No. 5 could be caused with a teeth bite and injury No. 9 could be caused with a sharp edged weapon and other injuries could be caused with friction. 10. P.W.-9, Dr KL Sharma further proved the solitary injury of the appellant Surender, which was in the form of abrasion on the right knee. Dr. Sharma clarified that the injury of the appellant Surender was also one day old and simple in nature, which could be caused with friction. Dr. Sharma has proved also the injury report (Exhibits Ka-5 and Ka -6) relating to the appellants Khem Chand and Surender. 11. The learned trial Court, after considering the evidence on record, believed the prosecution story and held that the charges under Sections 304/34 and 323/34 IPC were proved beyond all reasonable doubts against all the appellants. 12. Heard learned amicus curie for the appellants and the learned AGA for the State and perused the record. 13. Ms. Seema Pandey, learned Amicus curie appearing for the appellants, made the following submissions: (a) P.W.-1 Rati Ram (the complainant) has not proved the FIR and has also half heartedly supported the prosecution story, therefore, the learned trial Court committed error of law in placing reliance on his statement. (b) The prosecution has failed to explain the injuries sustained by the appellants Khem Chand and Surender, therefore, the statements of the prosecution witnesses were highly doubtful because they have disclosed only one side version of the occurrence which, in view of the injuries of the aforesaid two appellants, was not correct. (c) The presence of the police personnels, namely, P.W.- 4, Devendra Sharma, P.W.-5, Pramod Kumar and P.W.- 6, Qasim Raza at the scene of the occurrence was doubtful. Local residents, who had arrived at the scene of occurrence, have not been examined. 14. (c) The presence of the police personnels, namely, P.W.- 4, Devendra Sharma, P.W.-5, Pramod Kumar and P.W.- 6, Qasim Raza at the scene of the occurrence was doubtful. Local residents, who had arrived at the scene of occurrence, have not been examined. 14. The learned AGA on the other hand made the following submissions: (a) Presence of P.W.- 1, Rati Ram (the complainant) at the time of the incident was highly probable, in view of the fact that he had also sustained injuries, which have been proved by P.W.-12, Dr. DV Jindal. (b) If P.W.-1, Rati Ram, on account of certain reasons did not support the story of lodging the FIR and showed ignorance with regard to certain facts, his evidence cannot be discarded in its entirety on account of that infirmity. Besides, the statement of P.W.-1, Rati Ram, there were statements of other eye-witnesses, namely, P.W.-2 Tota Giri, P.W. 4, Devendra Sharma, P.W.- 5, Pramod Kumar and P.W.- 6, Qasim Raza to support the prosecution story of the occurrence including the story of spot arrests of all the appellants alongwith blood stained weapons. P.W. 4, Devendra Sharma, P.W.- 5, Pramod Kumar and P.W.- 6, Qasim Raza were on patrolling duty at the police station and they reached there from to the place of occurrence, therefore, their presence at the time of the occurrence could not be said to be doubtful. (c) The injuries sustained by the appellants Surender and Khem Chand were highly superficial, therefore, the prosecution was not required to explain their injuries. Injury No. 9 of the appellant Khem Chand could have been caused on account of using the khutpavri by him at the time of the incident. 15. The occurrence took place in the broad day light in an open place, therefore, there was hardly any scope of false implication on account of some misunderstanding or wrong identification of the assailants. Neither P.W.-1, Rati Ram (the complainant) nor deceased Nanak had any enmity with the appellants from before the occurrence nor they had any reason to make a false case implicating the appellants. Neither P.W.-1, Rati Ram (the complainant) nor deceased Nanak had any enmity with the appellants from before the occurrence nor they had any reason to make a false case implicating the appellants. More so, P.W. 4, Devendra Sharma, P.W.- 5, Pramod Kumar and P.W.- 6, Qasim Raza, who were police personnels, had no reason to give false evidence, and they had not only arrived at the place of occurrence on hearing alarm but also witnessed the occurrence and arrested all the appellants alongwith their weapons and took the deceased to the hospital on a rickshaw but he succumbed to the injuries on way to the hospital. In this way, the prosecution story finds also full support from the statements of the aforesaid police personnels. Even P.W. -2, Tota Giri, an eye-witness of the occurrence, has supported the prosecution story in the witness box. The statements of the aforesaid eye-witnesses, whose presence at the time of the incident seems to be believable, find corroboration from the medical evidence of P.W.- 11, Dr. Dilwar Singh and P.W. -12, Dr. DV Jindal. 16. Moreso, it is a case of spot arrests of the appellants alongwith their blood stained weapons, which have been proved by the aforesaid prosecution witnesses. The appellants have not satisfactorily explained their spot arrests nor there is any reliable evidence to show that the arrests of the appellants alongwith their weapons were not correct. The blood stained and plain earth and concrete further corroborate the prosecution story. 17. It may also be mentioned that the testimonies of P.W.-1, Rati Ram, P.W.- 2, Tota Giri, P.W. 4, Devendra Sharma, P.W.- 5, Pramod Kumar and P.W.- 6, Qasim Raza could not be shaken in any way on any material point during the cross-examination nor any material inconsistency or infirmity could be brought in their statements, therefore, their statements seem to be consistent, natural and probable. As such, the prosecution case cannot be discarded on account of the fact that local residents have not been examined or the complainant Rati Ram disowned the FIR to certain extent after about more than one year of the occurrence, specially when he has been contradicted, according to the procedure laid down in Section 145 of the Evidence Act, with his previous statement, Exhibit Ka 16, recorded under Section 161 of the Code of Criminal Procedure, in which he had supported the story of lodging the FIR. As already observed, the complainant’s statement Exhibit Ka 16 has been proved by the Investigating Officer, P.W.-10 Ram Chandra Singh. In this view of the matter, the prosecution story cannot be discarded only on the ground of the aforesaid discrepancies in the statement of P.W.-1, Rati Ram. In the case of Bhagwan Dass v State (NCT) of Delhi, 2011 Cr LJ 2903, the Apex Court reiterated the relevancy of the previous statement under Section 161 and held as follows: “............................. We are of the opinion that the statement of Smt. Dhillo Devi to the police can be taken into consideration in view of the proviso to Section 162(1) Cr.PC, and her subsequent denial in Court is not believable because she obviously had afterthoughts and wanted to save her son (the accused) from punishment. In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in the Court she denied that she had made such statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso of Section 162(1) Cr.PC.” .................................. “Thus it is the duty of the Court to separate the grain from the chaff, and the maxim “falsus in uno falsus in omnibus” has no application in India vide Nisar Ali v. The State of Uttar Pradesh, AIR 1957 SC 366 . In the present case we are of the opinion that Smt. Dhillo Devi denied her earlier statement from the police because she wanted to save her son. Hence we accept her statement to the police and reject her statement in Court. The defence has not shown that the police had any enmity with the accused, or had some other reason to falsely implicate him.” 18. In the present matter, the complainant Rati Ram had supported the entire prosecution story in his statement under Section 161 of the Code of Criminal Procedure (in short “the Code”) including the story relating to lodging of the FIR by him and possession of weapon Khutpavri by the appellant Khem Chand. It is also pertinent to mention that P.W.-1, Rati Ram has even admitted in the examination in chief at one place that the FIR was lodged by him but later on he resiled therefrom. It is also pertinent to mention that P.W.-1, Rati Ram has even admitted in the examination in chief at one place that the FIR was lodged by him but later on he resiled therefrom. In view of the facts and circumstances of the case narrated herein before and also in view of the legal position settled by the Apex Court in the aforesaid case, the alleged discrepancy that P.W.-1 Rati Ram did not support the story of lodging the FIR and possession of Khutpavri by the appellant Khem Chand, does not appear to be so material as to reject the entire prosecution case duly proved by the other witnesses as also by P.W.-1, Rati Ram specially when P.W.-1 Rati Ram has supported the entire prosecution story except the aforesaid discrepancies. 19. With regard to the submission (c) of the learned Amicus curie, it may be mentioned that during the cross-examination of P.W.-1, Rati Ram, P.W.-2, Tota Giri, P.W. 4, Devendra Sharma, P.W.- 5, Pramod Kumar and P.W.- 6, Qasim Raza the defence counsel did not put to these witnesses the injuries sustained by the accused Khem Chand and Surender nor provided any opportunity to them to explain injuries of the aforesaid appellants, therefore, the said prosecution witnesses cannot be blamed for not explaining the defence injuries. Moreso, the case of Lakshmi Singh and others v. State of Bihar, (1976) 4 SCC 394 , regarding consequences of non explanation of the injuries sustained by the accused is still an authority on the subject and is being relied upon in other cases by the Apex Court and also by this Court and the other High Courts. According to the principles laid down in that case, it is a must for the prosecution to explain the injuries sustained by the accused and in absence of any explanation, the following three inferences can be drawn: (1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. 20. 20. However, the Apex Court further clarified in the aforesaid case that there may be cases where non-explanation of the injuries of the accused by the prosecution may not affect the prosecution case and that principle would obviously apply to the cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. This principle has been reiterated by the Apex Court in Waman v. State of Maharashtra, (2011) 7 SCC 295 . In that case, in para 36, the Apex Court observed that : “36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the Court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case...” 21. No doubt, it is true that P.W.- 9, Dr. KL Sharma has proved the injuries sustained by the appellants Khem Chand and Surender but their injuries were almost superficial, therefore, the prosecution was not required to explain such type of injuries of the accused. More so, when the prosecution evidence is highly clinching, truthful and consistent and there is no material infirmity at all and the defence has not come forward with any definite counter version as to how the aforesaid two appellants sustained injuries, the appellants cannot be set free only on account of mere non explanation of their superficial injuries by the prosecution. 22. Keeping in view the statements of the aforesaid eye-witnesses coupled with the medical evidence, I am of the view that the prosecution has succeeded in proving the charges under Sections 304/34 and 323/34 IPC against the appellants beyond all reasonable doubts. 22. Keeping in view the statements of the aforesaid eye-witnesses coupled with the medical evidence, I am of the view that the prosecution has succeeded in proving the charges under Sections 304/34 and 323/34 IPC against the appellants beyond all reasonable doubts. The finding of the learned trial Court to this extent is perfectly correct and requires no interference. 23. On the question of the sentence, the learned Amicus curie submitted that the occurrence is of the year 1977 and since then 34 years have elapsed, therefore, it would not be proper to send the appellants again in jail as they had been in jail for certain period as under trials and also after their convictions. As such, they may be sentenced to the period already undergone. The learned Amicus curie further submitted that the appellant Surender Singh has been sentenced to undergo four years rigorous imprisonment under Sections 304/34 IPC, therefore, there was no justification to sentence the other two appellants to undergo rigorous imprisonment of ten years. The appellant No. 1, Khem Chand has died during the pendency of the appeal, therefore, the appeal stood abated against him The appellant Rejendra and Surender are alive. It appears that the trial Court made a distinction between the appellants Rejendra and Surender on the point of sentence due to the reason that the appellant Rejendra had a knife and was the main assailant whereas the appellant Surender had acted merely in furtherance of the common intention. In this view of the matter, the distinction drawn by the learned Additional Sessions Judge between these two appellants cannot be said to be unreasonable. All the appellants have been in jail for few months only, therefore, it does not appear to be proper to sentence them for the period already undergone for committing the heinous offence punishable under Section 304/34 IPC. 24. Keeping in view the facts and circumstances of the case, nature of the crime and complicity of the appellant Rejendra and also the fact that the occurrence is of the year 1977, I consider it just and expedient to reduce the sentence of ten years rigorous imprisonment to eight years rigorous imprisonment. So far as the sentence against the appellant Surender under Section 304/34 IPC is concerned, it requires no modification as the learned trial Court has already taken a very lenient view. 25. So far as the sentence against the appellant Surender under Section 304/34 IPC is concerned, it requires no modification as the learned trial Court has already taken a very lenient view. 25. The sentence passed under Sections 323/34 IPC against the both the appellants is liable to be reduced from six months to three months rigorous imprisonment. 26. For the reasons stated above, the appeal is partly allowed. The convictions of the appellants Rejendra and Surender under Sections 304/34 and 323/34 IPC are confirmed. The sentence passed against the appellant Rejendra under Section 304/34 IPC is reduced from ten years to eight years rigorous imprisonment. However, the sentence passed against the appellant Surender under Section 304/34 IPC is confirmed. The sentence passed against each of the appellants Rejendra and Surender under Section 323/34 IPC is reduced from six months to three months rigorous imprisonment. All the sentences shall run concurrently. The appeal is abated against the appellant Khem Chand (since dead). 27. The Amicus curie Ms. Seema Pandey shall be paid a sum of Rs. 10,000/- (Rs Ten Thousand) as fee for arguing the appeal on behalf of the appellants as Amicus curie. 28. Let the lower Court’s record alongwith a copy of this judgment be transmitted forthwith to the trial Court for compliance. —————