JUDGMENT Hon’ble Chandra Dhari Singh, J.—Heard Mr. Ashish Malhotra learned Amicus Curiae for the appellant, Ms. Usha Kiran, learned A.G.A. for the State and perused the record. 2. This instant jail appeal has been filed against the impugned order dated 19.11.2008, passed by the Additional District and Sessions Judge, Gautam Budh Nagar in Session Trial No. 349 of 2006, whereby the accused-appellant was convicted for offence punishable under Section 394 read with Section 34 and under Section 302 read with section 34 I.P.C. and sentenced to seven years rigorous imprisonment and Rs. 50,000/- fine for offence under Section 394 read with section 34 I.P.C. In default of payment of fine, he further suffers six months simple imprisonment. Sentences under both the sections shall run concurrently. 3. Brief facts of the case. (I) The story of the prosecution is that on 17.8.1998, when the complainant Smt. Niti Pandit was sleeping with her husband namely Rajiv Pandit and her in-laws were sleeping in their respective rooms. At about 1-1:30 a.m., 3-4 unknown persons entered in her house with lathi and started beating them ruthlessly. Family members of the complainant got serious injuries. The miscreants looted/robbed cash, jewelry etc. from the house. After the miscreants left the house, then the complainant called on 100 number and informed the police about the incident. After 10 minutes, police arrived at the place of incident. All injured persons were sent to Kailash Hospital through ambulance. On the same day i.e. 17.8.1998, the complainant Niti Pandit lodged the F.I.R. at around 4:30 a.m. in the police station Sector-20, Noida, District Gautam Budh Nagar against unknown persons. (II) In the hospital, Rajiv Pandit, Ravi Pandit, Vinita Pandit, Sanjeev Pandit and Niti Pandit were medically examined. The injures of the respective injured persons are as follows: Injuries of Rajiv Pandit i. Fracture mandible ii. Lacerated wound upper lip 4 x 1 cm. and 3 x 1 cm. on lower lip. iii. Scalp wound - mid front 2 x ½ cm. iv. Fracture left collar bone and fracture on index finger of right hand. v. Blood clot found on the left side of the brain as per C.T. Scan. Injuries of Ravi Pandit i. Lacerated wound of 2.5 cm. x 1 c.m. x bone deep on the middle of scalp. ii. Lacerated wound of 2 cm. x 5 cm. x muscle deep on back side of the right temporal region. v. Blood clot found on the left side of the brain as per C.T. Scan. Injuries of Ravi Pandit i. Lacerated wound of 2.5 cm. x 1 c.m. x bone deep on the middle of scalp. ii. Lacerated wound of 2 cm. x 5 cm. x muscle deep on back side of the right temporal region. iii. Lacerated wound of 1 cm. x 5 cm. x muscle deep on right occipital region. iv. Fracture on left collar bone. v. Fracture on upper part of the index finger of the right hand. vi. Blood clot found on the left side of the brain as per C.T. Scan. Injuries of Vinita Pandit i. Lacerated wound of 6 x 2 cm. on the right side of forehead. ii. Lacerated wound of 1 x 5 cm. on the right eye lower lid. iii. Contusion on the right shoulder and arm Injuries of Sanjeev Pandit i. Lacerated wound of 10 cm x 3 cm. x bone deep on the right frontal region. ii. Lacerated wound of 8 x 2 cm on the right parietal region. iii. Lacerated wound of 6 x 2 cm over left parietal region. iv. Abrasion over face and neck. v. On both eyes there were blackish mark of wound. vi. Fracture on the upper portion of the index finger of right hand. vii. Blood clot found on the left side of the brain as per C.T. Scan. Injuries of Niti Pandit i. Lacerated wound of 4 x ½ cm x bone deep over right temporal region. ii. Lacerated wound of 2 x ½ cm through and through over right lip. iii. Right incisor tooth half broken. iv. Fracture 5th meta carpol bone. III. PW-7 Dr. Lalit Mohan Upadhyay who has conducted the post-mortem of the dead body of Kusum Pandit on 17.8.1998 about 3:00 p.m. According to post-mortem report, the following injuries were found on the dead body : i. Multiple contusion ranging from .05 cm x 5 cm. in an area of 26 cm x 15 cm on the front of face (whole) including both cheeks and nose. ii. Lacerated wound of 4 x ½ cm x bone deep on the left side of the face near the jaw towards lower direction. iii. Lacerated wound 5 cm x ½ cm x bone deep on right side of scalp (right parietal area of head), 4 cm. ii. Lacerated wound of 4 x ½ cm x bone deep on the left side of the face near the jaw towards lower direction. iii. Lacerated wound 5 cm x ½ cm x bone deep on right side of scalp (right parietal area of head), 4 cm. above and backward from top of right ear and 4 cm above hair line of neck. iv. Lacerated wound of 7 cm x 3 cm x bone deep on right occipital area of head, 11 posterior to right ear, 10 cm, hair line. v. Lacerated wound 6 cm x 4 cm inside brain cavity near occipital region. vi. Multiple contusions in the area of 16 cm x 11 cm of left shoulder. vii. Contusions of 8 cm. x 4 cm. on the lateral aspect of middle right thigh. viii. Contusions of 8 cm x 6 cm on left knee and on left foot over 5 cm of upper portion. ix. Contusions of 4 cm x 2 cm on the joint of left knee. The doctor opined that the injuries caused by sariya or lathi. The injured Kusum Pandit died during treatment on 17.8.1998. IV. The Investigating Officer has taken the statement of all the witnesses, collected the evidence and made site plan. Since no information of the unknown accused persons were obtained by the police, therefore, the police had filed a final report on 1.9.1998 before the concerned Court. Due to the instructions of the higher police officers, the investigation of above said case was continuing and meanwhile Sri R.L. Pandit came in the police station Sector-20 and gave an application and informed the police that in Manohar Kahani, published on June, 2000, the story of the incident was published with photograph of the accused. After seeing the photograph, he identified the accused persons. He also met Inspector Mr. Chawla of crime branch and informed the same facts. He further informed the police that the accused persons will be produced in the Court of Karkardooma and in the Court of Bahadurgarh. He went to Karkardooma Court and he saw the accused person in the Court premises at the time of his production before the Court, he identified the accused. When he identified the accused, he asked the name of accused and accused told him that his name is Harphool @ Kala. He went to Karkardooma Court and he saw the accused person in the Court premises at the time of his production before the Court, he identified the accused. When he identified the accused, he asked the name of accused and accused told him that his name is Harphool @ Kala. He got the information that some accused person will also be produced in the Court of Bahadurgarh, Haryana on 29.6.2000. He went to Court of Bahadurgarh and identified one accused and asked the name of accused, he told his name Rishal Singh. He stated in the application that on his information and identification the police may proceed in the case in which the final report had already been filed by the police. V. On 3.11.2000 the S.H.O., police station Noida, Sector-20 submitted an application to S.P., Noida for cancellation of final report bearing No. 336/99 dated 1.9.1998 in pursuance of new development in the case. He stated in the application that during the investigating, it was brought in the notice that Harphool @ Kala son of Rishal Singh and Rishal son of Ranjeet Bavariya, resident of Vikaspuri, Delhi were involved in the crime. There were sufficient evidence against both the accused for the purpose of filing the charge-sheet. He enclosed all documentary/material evidence alongwith the application for perusal and further action. VI. After completing investigation, the police has filed the charge-sheet under Sections 394 and 302 I.P.C. against the accused Harphool @ Kala and Rishal Singh in the Court below. During trial the accused Rishal was died, therefore, the case against him was abated. VII. To bring the guilt of the accused-appellant, the prosecution has examined PW-1, PW-2, PW-3 and other relevant witnesses for incriminating. The evidence and circumstances were put to accused-appellant under Section 313 Cr.P.C, and the appellant denied all the charges leveled against him. He stated in the statement that he was falsely implicated in the present crime. VIII. In the statement under Section 313 Cr.P.C., the accused had taken plea that he was falsely implicated in the said crime. He is innocent and not committed any crime. IX. The trial Court after concluding the proceedings, vide judgment and order dated 9.11.2008, convicted the appellant herein for committing the offence punishable under Sections 394/34 I.P.C. and 302/34 I.P.C. and sentenced him to life imprisonment and fine of Rs. He is innocent and not committed any crime. IX. The trial Court after concluding the proceedings, vide judgment and order dated 9.11.2008, convicted the appellant herein for committing the offence punishable under Sections 394/34 I.P.C. and 302/34 I.P.C. and sentenced him to life imprisonment and fine of Rs. 50,000/- for offence punishable under Section 302/34 I.P.C., in default of payment of fine further will go for six months. He was awarded sentence for seven years and fine of Rs. 50,000/- for offence punishable under Sections 394/34 I.P.C., in default of the payment of fine he will further undergo for six months simple imprisonment. All the sentences shall run concurrently. X. Aggrieved by the said judgment and order dated 9.11.2008 of Additional District and Session Judge, Gautam Budh Nagar, the instant jail appeal was filed. 4. The learned counsel appearing for the appellant has submitted that material contradictions in the statement of witnesses. PW-1, complainant has failed to identify the accused in the Court room. The appellant was falsely implicated in the crime which was not committed by him. No recovery of the robed articles were made. Police had already filed the final report in the case after investigation. 5. Per contra, learned A.G.A. for the State submitted that the prosecution has established beyond any doubt that appellant has committed the crime under Sections 394 and 302 I.P.C. on 17.8.1998. PW-2 Colonel Ravinder and PW-3 Colonel Sanjeev Pandit corroborated the prosecution case. They identified the appellant in the Court. In their deposition, it was stated that the appellant beaten them with iron rod. After appreciation of the oral evidences and other material evidences on record, the Court below rightly convicted the appellant. The impugned judgment warrants no interference. 6. We have considered rival contentions and perused the impugned judgment and material available on record. 7. PW-1 Smt. Niti Pandit who was complainant in the case has supported the incident but during the examination in the Court, failed to identify the accused person. 8. PW-2 Colonel Ravinder Pandit, corroborated the prosecution case and had confirmly identified the accused in the Court. In his examination he had admitted that accused person had beaten him with iron rod. 9. PW-3 Colonel Sanjeev Pandit, had identified the accused in the Court and has confirmed that he was involved in the incident. 10. 8. PW-2 Colonel Ravinder Pandit, corroborated the prosecution case and had confirmly identified the accused in the Court. In his examination he had admitted that accused person had beaten him with iron rod. 9. PW-3 Colonel Sanjeev Pandit, had identified the accused in the Court and has confirmed that he was involved in the incident. 10. PW-4 Head Constable Mahavir Sharma had admitted that he scribed F.I.R. and that F.I.R. bears his signature, therefore, he proved the F.I.R. and signature. 11. PW-5 S.I. Har Prasad Singh, explained as to how again the investigation was initiated once the final report had been submitted. He further deposed that after getting information about accused person, he initiated to make production warrant against the appellant. Proceedings with respect to “B” warrant report of accused were initiated. 12. PW-6 Dr. B.K. Patta, in his deposition explained the medical examination conducted by him of the injured persons in incident took place on 17.8.1998. In his deposition he opined that injuries had been caused by lathi or iron rod or by blunt object. 13. PW-7 Dr. Lalit Mohan, conducted post-mortem of deceased Kusum and found nine injuries. He opined that injuries might had been caused by sariya or danda/lathi or any blunt object. 14. PW-8 Rakesh Kumar Paliwal had deposed that while recording the statements, witnesses had told him that they could identify the accused/miscreants who entered in the house. 15. PW-9 Narendra Chawla Inspector Security Department Delhi Police had deposed that accused admitted during investigation in other Case Crime No. 77/98, that he and his father etc. were involved in Case No. 645/98 and had looted the house near Sector-14 in Noida. 16. PW-10 S.I. Balram handed over body of deceased Kusum Pandit to other constable for post-mortem. 17. Before we proceed to examine the impugned judgments of the Court below and facts of the case, it may be desirable to refer to the settled principles of law which have to apply in the instant case. 18. Section 394 I.P.C. reads as under: “394. 17. Before we proceed to examine the impugned judgments of the Court below and facts of the case, it may be desirable to refer to the settled principles of law which have to apply in the instant case. 18. Section 394 I.P.C. reads as under: “394. Voluntarily causing hurt in committing robbery.—If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 19. Section 394 describes punishment for voluntarily causing hurt in committing or attempting to commit robbery. Section 394 postulates and contemplates the causing of harm during commission of robbery or in attempting to commit robbery when such causing of hurt is hardly necessary to facilitate the commission of robbery. Section 394 applies to cases where during the course of robbery voluntary hurt is caused. 20. In the present case, according to the doctor who conducted post-mortem over the dead body of the deceased, nine injuries were found which could have been caused by the blunt object. As per the witnesses, the appellant entered in the house and started beating the deceased and other family members with iron rod, which is a blunt object. PW-2 and PW-3 clearly stated in their depositions that the person who was present in the Court was accused who killed deceased and gave injuries to family members by iron rod. He robbed the jewelry available in the house. 21. In the light of the medical evidence, there are three points which are to be prominently kept in view; firstly, there was a lacerated wound on the left side of the face near the jaw towards lower direction and other lacerated wound on right side of scalp above and backward from top of right ear and 4 cm. above hair line of neck. The deceased suffered from nine injuries which were in the form of multiple contusion lacerated wound fractures due to which caused by a hurt and blunt object. Secondly, the internal injuries which were the immediate cause of death would have been caused by hurt and blunt object. According to the prosecution, the deceased was hit by an iron rod. Thirdly, the injuries in question were ante-mortem. Secondly, the internal injuries which were the immediate cause of death would have been caused by hurt and blunt object. According to the prosecution, the deceased was hit by an iron rod. Thirdly, the injuries in question were ante-mortem. In this statement of evidence, it is clear beyond reasonable doubt that the person/persons infected the wound in the process of robbery in the house. 22. The question is whether the appellant guilty of the grievous offence of murder where murder and robbery had taken place as a part of the same transaction. According to the prosecution, case, which is supported by the medical evidence, the deceased was hit by the iron rod. In the instant case, the appellant carried iron rod with him and the injuries were inflicted with that weapon with intention to kill the deceased. Therefore, there was premeditated plan to kill the deceased. The common intention of all other co-accused to kill her or family members, therefore, they all came with the deadly weapon like iron rod and lathi. 23. There are no occasion to falsely implicate the appellant in the said crime as the complainant and her family members had no previous enmity with him. The appellant was unknown for the entire family and therefore, when the complaint was filed in the police station Noida, Sector-20, no name was mentioned in the F.I.R. 24. The counsel appearing for the appellant submitted that no recovery was made from the appellant, therefore, the offence punishable under Section 394 I.P.C. has not been proved. In this regard, after perusal of all the evidences on the record, it is found that no cross-examination in respect to the recovery from the concerned Investigating Officer had been made. Since the incident was took place on 17.8.1998 and after completing the investigation, the police had filed final report in the said matter. The same case was reopened by the police on the application of the Colonel R.N. Pandit and on his application, the Investigation had been started against the accused-appellant. During the investigation, sufficient material against the accused Harphool @ Kala and other accused Rishal were found. 25. The counsel for the appellant submitted that Smt. Niti Pandit (PW-1) did not identify the appellant during the trial, therefore, his identification by PW-2, Colonel Ravinder Pandit and PW-3 Colonel Sanjeev Pandit became doubtful. During the investigation, sufficient material against the accused Harphool @ Kala and other accused Rishal were found. 25. The counsel for the appellant submitted that Smt. Niti Pandit (PW-1) did not identify the appellant during the trial, therefore, his identification by PW-2, Colonel Ravinder Pandit and PW-3 Colonel Sanjeev Pandit became doubtful. If one of the witness could not identify the assailant on her own account, that does not mean that the evidence of identification by the other witnesses would render doubtful. In fact, this depends on the capacity of each witnesses as also various opportunities which they get to identify a person and situation in which they get such opportunities. 26. It is well-settled that if the evidence of the Investigating Officer is found to be trust-worthy and dependable, nothing material has been brought to discredit his evidence in the cross-examination or his evidence is otherwise not unreliable, the Court below would be justified in connecting the appellant. 27. We have carefully examined the evidence of all witnesses including Investigating Officer. They have proved the prosecution beyond any doubt. Nothing adverse could be brought in their cross-examination, so as to hold these witnesses unreliable. 28. On appreciation of entire evidence on record, we do not find any infirmity in the judgment and findings recorded by the Additional District and Session Judge, Gautam Budh Nagar, whereby it was held that appellant participated in commission of offence punishable under Sections 394 and 302 I.P.C. 29. In the case of State of U.P. v. Chet Ram, (1989) 2 SCC 425 , the Hon’ble Supreme Court confirmed the conviction under Sections 394/34 and 302/34 I.P.C. having regard to reliable testimony of eye-witnesses as corroborated by circumstantial evidence including strong motive of the accused persons and their abscondence after the crime. 30. There is no material on record, on the basis of which, this Court may take a different view or conclusion form the Court below. We do not find any force in this appeal, which is accordingly dismissed. 31. The Registry is directed to sent the certified copy of the judgment and all original record of this case to the concerned Court below for compliance. 32. The learned Amicus Curiae Mr. Ashish Malhotra shall be paid Rs. 10,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.