Vishnu vs State (N.C.T. Of Delhi)
2001 Latest Caselaw 765 Del

ORDER

Mahmood Ali Khan, J.

1. These four appeals filed by Mahinder, Vishnu, Daulat Ram @ Kalia and Salim @ Langra under Section 374 of the Cr.P.C. are directed against an order of Additional Sessions Judge, Delhi dated 15.4.1996/18.4.1996 whereby he has convicted the four appellants for commission of offences under Section 302 read with Section 34 of the IPC and has sentenced each of them to undergo imprisonment for life and further sentenced appellants Mahinder and Vishnu to pay fine of Rs.8,000/- each and in default to undergo rigorous imprisonment for period of three years each and sentenced appellants Daulat Ram @ Kalia and Salim @ Langra to pay a fine of Rs.4,000/- each and in default of payment to undergo rigourous imprisonment for two years each. He further convicted appellant Vishnu for committing offence under Section 27 of the Arms Act and has sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2500/- in default whereof to further undergo rigorous imprisonment for six months. The sentences awarded to appellant Vishnu were to run concurrently.

2. The facts, as disclosed in the F.I.R. and the evidence led by the prosecution, are that on 7.7.1991 at about 8.45 A.M. a wireless message was received at P.S. Anand Parbat that a person named Khushi Ram has been murdered by. knives near B-524, Bhairo Factory, Nehru Nagar, Anand Parbat and an officer should be sent. The information was recorded in D.D.No.3A Ex. PW-15/A by the duty officer of the police station where after Inspector Manmohan Singh, SHO of the P.S. Anand Parbat along with his staff rushed to the spot where on the side of the road he found the dead body of Khushi Ram apparently caused by sharp-edged weapon. Devraj PW-1, who is brother of deceased Khushi Ram, was present at the site. Insp. Manmohan Singh recorded his statement Ex.PW-1/A. In his statement Devraj alleged that he was residing at House No. 217-B, Gali No.6, Nehru Nagar at Anand Parbat. On that day (7.7.1991) at about 8.30 A.M. he and his brother Khushi Ram were going to the factory at Plot No. T-524 main road, Nehru Nagar. Khushi Ram was walking ahead. When the factory was about 40-50 steps from them he saw appellants Mahinder, Vishnu, Daulat Ram @ Kalia and Salim @ Langra, who were known to him since they resided in the same area, coming from the direction of the railway line, armed with open knife. They came towards main road, Nehru Nagar. On spotting them he alerted his brother and asked him to ruin away as Mahinder and others were coming. At the same time appellant Mahinder called out that Khushi Ram should be done away with and should not escape alive. They started chasing them. Near Shop No. 929, Janta Clinic appellant Salim @ Langra and Daulat Ram owerpowered and fastened Khushi Ram in their grip. Their accomplices Mahinder and Vishnu, who had opend knife with them, started murderous assault with knife on khushi Ram. Khushi Ram on sustaining knife injuries started bleeding and collapsed to the ground. All the four assailants succeeded in escaping from the scene of Crime.

The occurrence was witnessed by him, Ram Swarup and some other residents of the locality. The four appellants in order to take revenge on account of old enmity have murdered his brother Khushi Ram.

3. On this statement Insp. Man Mohan Singh recorded his endorsement Ex.PW-17/A and sent it through a constable to the P.S. Anand Parbat for registration of a case under Section 302/34 IPC and also called dog squad, crime team, photographer and the copy of the FIR to the place of occurrence. PW-15 Head Constable Sher Singh was working as a duty officer in the Police Station at the relevant time. On receipt of the report of Insp. Singh along with statement of PW-1 Dev Raj Ex. PW-1/A he registered the FIR of the case at about 10.20 A.M. on the same day. Copy of the FIR recorded by him is Ex. PW-15\B. After the registration of the case a copy of FIR was sent to Insp. Man Mohan Singh I.O. vide D.D.No.5A Ex. PW-15/C. The crime team, dog squad and photographer were also called to the place of occurrence. Special report was also sent to the higher officers.

4. I.O. Insp. Man Mohan Singh collected blood soaked earth from the site and sealed it. It was taken into possession vide Memo Ex.PW-1/B. He also picked up earth control and took into possession vide Memo Ex.PW-13/A.

5. The body of Khushi Ram was identified at the site by PW-1 Dev Raj and another brother of the deceased, namely, Hardwari PW-10 vide Identification Memo Ex, PW-17/D and PW-10/A. Before the body was sent to the mortuary for post-mortem examination I.O. Insp. Manmohan Singh (PW-17) had conducted the inquest proceedings at the place of occurrence where the body of Khushi Ram was found on the main Road, Nehru Nagar. He has joined the witnesses. His inquest report is Ex.PW-17/C. There is no quarrel about the correctness of these proceedings from the side of the appellants.

6. After completion of the inquest proceedings the I.O. sent the body to the mortuary where it was received at 4.30 P.M. on 7.7.1991. However, the inquest papers Ex.PW-17/B and Ex.PW-17/C, letter of request to the autopsy surgeon for conducting post-mortem Ex.PW-17/DA and the letter of request for giving opinion as to the cause of death, the time since death, preservation of sample blood and clothes etc. were received there at 9.00 A.M. on 8.7.1991. The I.O. also prepared the site plan of the place of occurrence Ex.PW-17/E. After due identification of the body the post-mortem examination on the body of Khushi Ram was conducted by PW-14/16 Dr. L.K. Barua of Civil Hospital. He prepared his report Ex. PW-14/16/A. Mortuary also handed over the clothes taken off the body of Khushi Ram, the blood sample for grouping and the sample of the hospital seal which were taken into possession by Head Constable Sher Singh vide Memo Ex. PW-2/A and which were deposited in the malkhana of P.S. Anand Parbhat. The extract of the entries of malkhana register are Ex.PW-4/B.

7. After the post-mortem examination the body of Khushi Ram was handed over to Dev Raj and Hardwari Lal PW-1 and PW-10 for creamtion.

8. The I.O. also got a sketch plan of the scene of occurrence made by PW-11 Insp. Devinder Singh of Crime Branch of the Police Headquarters. It was made on the pointing out of PW-1 Dev Raj and is Ex. PW-11/A. The phogotraphs of the deceased Khushi Ram were taken at the place of occurrence by PW-14 Constable Gaj Raj Singh, who was a police photographer. They are Ex.PW-14/1-5.

9. On 13.7.1991 on a clue given by an informer, Insp. Manmohan Singh arrested t he appellants Mahinder, Vishhnu and Daulat Ram @ Kalia from Sanjay Park, Mangolpuri. They were interrogated soon after their arrest. Appellant Mahinder made his disclosure statement Ex.PW-13E, appellant Vishnu made his disclosure statement Ex.PW-13/G. They were arrested and their personal search was conducted vide Memos Ex.PW-13/B, PW-13/C and PW-13D. In consequence of the disclosure statement made by appellant Vishnu, a chhuri/dagger Ex.P-1 was recovered from the bushes near railway line Zakhira Village where it was buried in the earth. Its sketch was prepared which is Ex. PW-6/A. It was sealed and taken into possession vide Memo Ex. PW-6/B. Appellant Mahinder also in his disclosure statement stated about the concealment of the weapon of offence in the roof of his house and he led the I.O. and his staff to his house but nothing incriminating was recovered.

10. The sealed packet containing chhuri Ex.P-1 was sent to the autopsy surgeon vide application Ex.PW-17 and his opinion was obtained which is Ex. PW-14/C. The blood sample and clothes received from the mortuary were also sent to the CFSL. The report of the CFSL is Ex. P-A and P-B.

11. The appellant Salim @ Langra, however, could not be apprehended. Proceedings under Sections 82 and 83 of the Cr.P.C. were initiated against him and non-bailable warrants were issued against him. On completion of investigation against the other three appellants, namely, Mahinder, Vishnu and Daulat Ram @ Kalia the challan was submitted in the court for their prosecution for commission of offence under section 302/34 IPC and against Vishnu under Section 27 of the Arms Act also. Subsequently, appellant Salim @ Langra was also arrested and a supplementary challan was submitted in the court. Both the challangs were jointly tried by the learned Additional Sessions Judge.

12. The learned Additional Sessions Judge framed charges against the appellants Mahinder, Vishnu, Daulat Ram @ Kalia and Salim @ Langra under Section 302 read with Section 34 IPC and a separate charge was framed against appellant Vishnu under Section 27 of the Arms Act. The appellants pleaded not guilty to the charges framed against them and claimed to be tried.

13. The prosecution examined as many as 17 witnesses to bring home the charge against the appellants. Thereafter statement of the appellants were recorded under Section 313 of the Cr.P.C. for explaining the evidence and the incriminating circumstances which were proved by the prosecution against them. The appellants did not lead any evidence in defense. By the impugned order under challenge in these appeals the learned Addl. Sessions Judge convicted the appellants and had passed order of sentence as afore-mentioned. The appellants have felt aggrievated and have filed these appeals.

14. There is no dispute that the death of Khushi Ram was homicidal in nature. Post-mortem report conducted on the body of Khushi Ram is Ex. PW-14/A. The report is proved by autopsy surgeon Dr.L.K. Barua Ex. PW-14/16/A who had found following 13 injuries on the body of Khushi Ram on external examination.

1. One incised wound was seen in the middle line of the neck placed almost horizontally of size 5 Qcms x 2 cms x ?

2. Two incised wounds were seen in the Supra Sternal notch and were placed almost obliquely of six 3 cms x 1.5 cms and the other one 1.5 cms x 1 cm x ?.

3. One incised wound 2.5 cms. below injury No.2 placed almost horizontally of size 2.5 cms x 1 cm x ?.

4. One incised wound 3 cms. below injury No.3 placed obliquely horizontally of size 3 cms x 1 cm x ?.

5. One incised wound 4 cms. above the left nipple placed horizontally of size 2.8 cms. x 2 cms. x ?

6. One incised wound on left upper front of the chest just below laternal (outral) third of the left side collar bone of size 2.5 cms x 2 cms x ?.

7. Incised wound below right middle of the collar bone of size 5 cms. x 2 cm x ? and was placed obliquely.

8. Incised wound just below end medical to the right nipple placed obliquely of size 5 cms. x 2 cms. x ?.

9. Incised wound on the base of the right thumb finger of size 2 cms. x 0.5 cm skin to muscle deep.

10. One incised wound on the left epigastrium placed horizontally of size 2.5 cms. x 1.5 cms x ?.

11. One incised wound on the left hypochondrium 8 cms. left to the ambillicus placed horizontally of size 2.5 cms. x 1.5 cms x?.

12. One incised wound on the posterior aspect of the left arm 4 cms. above the left elbow joint placed obliquely size 7 cms x 2 cms muscle deep.

13. 2 big incised wounds on the back side of lower part of chest of sizes 4 cms. to 4.5 cms. in length and 3 cm to 3.3.3 cms. in width and were 7 deep.

15. On internal examination he noticed that injury No.1 had cut the thyroid cartilage completely and also it had cut the left side major blood vessels. Further, injury No.2 had cut out the trachia and major blood vessels on both the sides of the neck. Injury No.3, on the other hand, had entered the cess cavity between 2nd and 3rd rib on its left side and had also cut part of sternum and medical border of left upper lob of the lopunge partly and totoal depth of injury was approx. 4 cm. Injury No. 4 had entered the cess cavity on t he left side between 3rd and 4th rib and had cut the upper part of right ventricle of the heart as well as right auricle of the heart and had total depth of approx. % cms. Injury No. 5 had entered the cess cavity between 3rd and 4th rib and had cut the left lung and total depth of this injury was approx. % cms. Injury No. 6 was only cess cavity deep but had not cut the lung. Injury No.7 had entered the right chest cavity and had cut the apex of the right upper lobe of the lung and total depth of this injury was about 5 cms. Injury No.8 had entered the chest cavity between 4th and 5th rib and had cut the middle and lower lob the right lung. The total depth of this injury was about 6 cms. Injury No. 13 on t he back side of the chest had entered chest cavity between 10th and 11th rib and had cut the lower lob of left lung. Injury No.10 had cut the left dome of the liver and also the stomach. The total depth of this injury was about 10 cms. While injury no.11 had cut the intestines at two places and also the mesentry. The total depth of the injury was 11 cms.

16. In the opinion of Dr. L.K. Barua all these injuries were ante-mortem. Injuries No. 1 to 5, 7, 8, 10, 11 & 13 were individually sufficient to cause death in the ordinary course of nature. In his opinion the death in this case was due to shock and haemorrhage resulting from these injuries. The appellants have neither questioned the post-mortem examination report Ex.PW-14/A nor have cross-examined Dr. L.K. Barua.

17. Prosecution also led ocular evidence to prove that Khushi Ram was murdered. The prosecution evidence in particular the post-mortem examination report Ex.PW-14/A and the testimony of Dr.L.K. Barua, autopsy surgeon have proved that Khushi Ram had a homicidal death.

18.The prosecution in all had examined 17 witnesses to prove the case. Needless to state that common evidence was recorded on both the challans, the main challan against 3 accused Mahinder, Vishnu and Daulat Ram @ Kalia and the supplementary challan submitted against appellant Salim @ Langra and both the cases have also been decided by the learned Addl. Sessions Judge, who tried them for the offences charged with, by a common judgment. Of t he 17 witnesses examined by the prosecution the material witness are four in number. PW-1 Dev Raj who is a brother of deceased Khushi Ram and also an eye witness of the occurrence. PW-7 Smt. Shanti, PW-89 Smt. Kailash Devi @ Kailasho and PW-9 Ram Swarup are the other eye witnesses who saw the crime being committed. PW-14/16 is the autopsy surgeon, Dr.L.K. Barua whose testimony have been discussed in the foregoing paragraphs. PW-17 is Insp. Manmohan Singh, who was SHO of P.S. Anand Parbat, and was the Investigating Officer. PW-6 Gur Prasad, PW-13 SI Shyam Phool and Inspector Manmohan Singh PW-17 are also witness of recovery of dagger Ext.P-1, the weapon used by one of the appellant vishnu for committing the offence. The testimony of other witnesses is formal in nature and is not subject matter of such controversy. PW-2 Const. Gangotri Prasad was among the staff of Insp. Manmohan Singh, SHO who went to the site of crime with the Investigating Officer on receipt of the information of the crime. He had also taken the body of Khushi Ram to mortuary and received the sealed parcels of clothes of the deceased, blood sample etc. from the mortuary and had got it deposited in the malkhana of the police station. PW-3 Head Const. Om Prakash had also gone to the place of occurrence with the Investigating Officer. He has stated that the SHO gave ruqqa at about 10.00 AM which he took to the police station for registration of a formal FIr and then brought a copy of the FIR with ruqqa and delivered it to the SHO. PW-4 Head Const. Satbir Singh was working at malkhana At P.S. Anand Parbat on the relevant date when I.O. Insp. Manmohan Singh deposited two sealed parcels on 7.7.1991, which were duly entered in the register bearing No. 19. Head Const. Sher Singh also deposited two sealed parcels which were also entered in t he register on 8.7.1991. On 13.7.1991 I.O. Insp. Manmohan Singh again deposited one sealed parcel containing dagger which was also entered in register No. 19. on 24.7.1991 he sent the parcel which was deposited on 7.7.1991 to CFSL through constable. He also handed over the parcel containing dagger on 28.9.1991 to S.I.Shyam Phool. Besides, he also proved a copy of the FIR No. 125/91 dated 4.4.1991 and FIR No. 135/91 dated 27.4.1991 Ex. PW-4/E. According to him the case property which were deposited in the malkhana remained intact and was not tempered with. PW-5 had taken the special report on 7.7.1991 at 11.00 AM for delivering it to the Metropolitan Magistrate, Addl. DCP and the ACP. PW-10 Hardwari Lal is another brother of deceased Khushi Ram who has identified the body of his brother and had also received it after post-mortem examination. PW-11 Insp. Devinder Singh had taken the measurement and had prepared the site plan of the place of occurrence on 13.8.1991 Ex. PW-11/A. Const. Hoshiar Singh PW-12 has taken the case property from the police station to CFSL and stated that it was not tempered with. PW-13 SI Shyam Phool had also accompanied the I.O. Insp. Manmohan Singh, SHO to the place of crime on receipt of the information and had joined the investigation. He was also a witness to the arrest of the appellants, Mahinder, Vishnu, Daulat Ram @ Kalia from Mangolpuri Park on 13.7.1991 and subsequent disclosure statement made by Daulat Ram and Vishnu and also recovery of dagger Ex.P-1, as a consequence of the disclosure statement of appellant Vishnu. We may discuss his testimony also along with the testimony of other witnesses of recovery of dagger P-1 at a later stage in some detail. Const. Gajraj Singh PW-14 was a photographer who had taken photographs at the scene of crime where the body of Khushi Ram was lying. He proved the photographs Ex.PW-14/1-5. Head Const. Sher Singh (PW-15) was duty officer in the police station on 7.7.1991 when on receipt of information on wireless he recorded DD No.3 Ex. PW-15/A and later registered the formal FIR Ex.PW-15/B on the basis of ruqqa of the I.O. Insp.Manmohan Singh. He proved his endorsement on the ruqqa Ex.PW-1/A and recording of the corresponding entries in the DD No. 4A. He also deposed that he had sent special report to the Metropolitan Magistrate and the higher police officers through Const. Jagpal Singh and recorded DD No.5A Ex.PW-15/C. On 8.7.1991 Const. Gangotri Prasad and Suresh Kumar brought two selaed packets from the mortuary which he had taken into possession vide Memo Ex.PW-2/A. PW-17 is Insp. Manmohan Singh, SHO as noted above. His testimony may also be discussed at the appropriate stage later on.

19. There was plain denial of the prosecution case by all the appellants, Mahinder, Vishnu, Daulat Ram @ Kalia and Salim @ Langra in their statement recorded under Section 313 Cr.P.C. Appellant Daulat Ram @ Kalia sated that he was falsely implicated in the case. He had sent a compliant against PW-1 Dev Raj in a murder case and on his compliant a vigilance inquiry was conducted in which police personnel of P.S. Anand Parbat were reprimanded. Accordingly to him it was a blind murder case and the police had implicated him in collusion with the complainant. Appellant Salim @ Langra stated that he was innocent and has been falsely roped in this case. The statement of appellant Vishnu and Mahinder is similar to the statement made by appellant Daulat Ram. They have stated that they made complaint against Dev Raj PW-1 and the police officers in a murder case wherein vigilance inquiry was held against police officials as well and that they have been implicated falsely.

20. The hostility and animosity between appellants mahinder, Vishnu and Daulat Ram @ Kalia on the one hand and the family of the deceased Khushi Ram is not in dispute. Even otherwise the two FIRs Ex.PW-4/D and PW-4/E have been proved. Ex. PW-4/D was registered at P.S. Anand Parbat on the statement of Ram Singh, son of Khushi Ram, deceased on 14.4.1991 in which allegations were made that appellants Vishnu, Daulat Ram @ Kalia and Mahinder had assaulted him with a dagger. FIR No.135/91 dated 27.4.1991 under Section 324 Cr.P.C. read with Section 34 IPC was also registered at P.S. Anand Parbat. Ex.PW-4/E was registered on the basis of statement of one Rajinder Singh that Ram Singh (son of deceased Khushi Ram) and Mangal Sen (brother of deceased Khusi Ram) had murdered his younger brother Jaspal Singh @ Jassu. Appellants Mahinder, Vishnu and Daulat Ram @ Kalia were alleged to be a friend of Jaspal Singh @ Jassu. In their statement under Section 313 Cr.P.C. they have stated that they made complaint against Dev Raj and the police officers and some vigilance enquiry was conducted, as a result the police officials in collusion with the complainant Dev Raj have got them falsely implicated in this case. The complaint of Ram Singh, s/o deceased Khushi Ram was of causing hurt on his arms by the three appellants named above by sharp-edged weapon. Whereas the friend of these appellants was allegedly murdered by Ram Singh. Though the enmity is a double-edged weapon but in the instant case according to the statement of the appellants Mahinder, Vishnu and Daulat Ram @ Kalia the police was not fair in the investigation in the murder case of Jaspal Singh @ Jassu who was their friend and associate. These appellants, therefore, have a greator motive for taking revenge form the family of Ram Singh and Mangal Sen who were the accused in the case FIR No.135/91 and, therefore, had motive to kill the father of Ram Singh and brother of Mangal Sen on finding an opportunity to avenge the murder of their friend. As stated above appellant Salim @ Langra is a friend and associate of the other three appellants. Though in the oral argument it is stated on his behalf that he came over to Delhi only about a month before this occurrence and because of his handicap in the leg could not run fast, but nothing has been brought on record to substantiate this allegation.

21. The appellants have challenged their conviction in the case mainly on the following grounds:-

1. PW-1 Dev Raj is real brother of deceased Khushi Ram and is an interested person. His conduct when his brother Khushi Ram was being assaulted and other discrepancies in his testimony makes his presence doubtful and evidence un-trustworthy.

2. PW-7 Smt. Shanti, PW-8 Smt. Kailash Devi and PW-9 Ram Swarup were the chance witnesses. They have contradicted each other and also PW-1 Dev Raj. The material in their statements infirmities/discrepancies proved that they were planted by the prosecution and were not present at the time of the perpetration of the crime.

3. The recovery of the dagger Ex. P-1 as a consequence of the disclosure statement of appellant Vishnu was from an open place easily accessible to the public and is not reliable.

4. According to the I.O. PW-17 Insp. Manmohan Singh the dagger Ex.P-1 was rusted on its blade when recovery was affected but according to Dr. L.K. Barua PW-14/17 when he examined it the blade was blood-stained which means that the weapon of offence was changed during the investigation of the case.

5. The FIR was registered at 10.20 AM on 7.7.1991 and the special report is alleged to have been sent to the Metropolitan Magistrate and higher police officers at 11.00 AM but it reached the Metropolitan Magistrate only at about 8.50 PM on the same day and the delay in the FIR showed that the FIR is ante-time in order to name the appellants as accused in the case after due deliberation and consultation.

6. The dead body of Khushi Ram was received in the mortuary at 4.30 PM on 7.7.1991 but the inquest report and other papers were delivered to the mortuary at 9.00 AM on 8.7.1991.

7. In this case the dog squad was used and the dog squad is used only in cases where the perpetrators of crime are not known.

8. At best the prosecution case is that the appellants Daulat Ram @ Kalia and Salim @ Langra were assigned the role of catching hold of deceased Khushi Ram and they had not inflicted any injury on his person although the FIR alleged that they also had knives. Therefore, they cannot be held to share common intention with co-accused and the criminal liability for the offence of murder cannot be fastened on these two persons with the help of Section 34 IPC.

22. Before proceeding to consider the ocular evidence produced by the prosecution, it will be of advantage of keep in view the observation of the Apex Court regarding appreciation of evidence in criminal cases. In the State of U.P. Vs. M.K. Anthony , the Supreme Court made the following observations:-

"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken is to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial Court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible".

23. Earlier thereto the Supreme Court in the State of U.P. Vs. Shankar held:-

But the mere fact that the witness had not told the truth in regard to a peripheral matter would not justify a wholesale rejection of his evidence. Time and again, this Court has pointed out that in this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is fainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in toto".

24. Let us now examine the statement made by PW-1 Dev Raj. He is real brother of deceased Khushi Ram. He is also the author of the FIR of the case. He was found present at about 8.45/9.00 AM by the I.O. PW-17 Insp. Manmohan Singh and his statement was recorded then and there. After making endorsement it was sent to the police station where the FIR was registered at about 10.20 AM. The occurrence had taken place at 8.30 AM. In the statement he has deposed that on 7.7.1991 at about 8.30 AM he along with his brother deceased Khushi Ram was going to premises No.T-524 in Nehru Nagar. Khushi Ram was walking about four or five paces ahead of him. They were about 40 to 50 paces from the premises when he saw appellants, Mahinder, Vishnu, Daulat Ram @ Kalia and Salim @ Langra coming from the side of the railway line. They were armed with daggers. He knew them because they resided in his area. He alerted his brother Khushi Ram and asked him to escape warning that Mahinder and others were coming. Appellant Mahinder called out that the life of Khushi Ram should not be spared and all of them then started running after Khushi Ram. Dev Raj PW-1 and Khushi Ram were near shop No. 925 on the main Road, Nehru Nagar when appellants Daulat Ram @ Kalia and Salim @ Langara caught hold of Khushi Ram and their accomplices appellants Mahinder and Vishnu started stabbing him. Khushi Ram on receiving injuries by daggers collapsed to the ground. Dev raj then raised hue and cry. A number of persons gathered. Smt. Shanti and Smt. Kailash Devi and ram Swarup were eye witnesses to this crime. The appellants ran away warning the persons present that if they gave evidence against them, they would also meet the same fate. The police arrived after half an hour and recorded his statement Ex.PW-1/A. Thereafter site plan was prepared, blood soaked earth and sample earth etc. were picked up and put in sealed parcels and other formalities were completed. In the cross-examination his deposition was that he did not try to catch any of the appellants because he himself felt danger to his life. He also did not try to attack the appellants with stones or any other object in order to apprehend them. The shops were closed. On hearing his cries 10 to 12 persons had collected but nobody had apprehended the accused. Dev Raj PW-1 tried to lift his brother but he did not remove him to any place or put him on the cot. He also did not try to take him to any doctor or dispensary. He did not hold his brother in his arm. He simply wept by putting his hands on the feet of the deceased and put him a little aside. he had tightened the knot of the tehmad of the deceased. He did not get any blood stains on his clothes while tightening the knot of tehmad or removing the body a little aside. His hands were also not smeared with blood. The blood was oozing out from the wounds but he had taken precaution that he should not get the blood stains on him. He further stated that he did not know about Jaspal Singh and his mother. Khushi Ram was not an accused in a murder case but he did not know whether Ram Singh and Mangal Singh were tried in a murder case. He denied that the police was conducting enquiry into the murder of Jaspal Singh or that he was interrogated in any such case. It was also denied that the accused Daulat Ram @ Kalia was required by the vigilance department of the police in connection with the murder of Jaspal Singh. He is being tried in a case under Section 308 IPC in which mother of accused, Daulat Ram @ Kalia and Vishnu were the witnesses. There is no other case. He also denied that accused Daulat Ram @ Kalia and Vishnu were tried in a case under Section 324 IPC in which he was a witness. He further denied that he was apprehended under Section 107 and 151 Cr.P.C. or was released on bail in such case. He also expressed his ignorance as to whether the deceased was a B.C. of the area or was standing trial for offence under Section 307 IPC. It was denied that he along with deceased Khushi Ram, Ram Singh and Mangal Singh had committed murder of Jaswant Singh. Mangal Singh was his brother and Ram Singh was his nephew. He did not remember if FIR 125/91 dated.4.4.1991 of P.S. Anand Parbat was registered against the accused on the report of Ram Singh. He did not appear as a witness in FIR No. 125/91. He denied that he was an accused along with Mangal Singh, Khushi Ram and Ram Singh in FIR No. 296/1990 under Section 186, 353, 307 read with Section 34 IPC. He volunteered that a case under Section 452/324 IPC has been registered against him at the instance of the mother of Vishnu and Daulat Ram @ Kalia in order to put pressure upon him to favor the appellants. It was admitted that case FIR No.47/87 under Sections 323, 454, 34 IPC was registered against him, Mangal Singh and Khushi Ram but he did not remember that the case FIR No.57/93 of P.S. Anand Parbat was also registered against him, Mangal Singh and Ram Singh. But it is the same case which was registered at the instance of the mother of the appellant in order to put pressure on him. He did not notice any PCR van stationed at a little distance from the place of occurrence. He could not recall whether he made a report of the incident to the police on telephone No. 100. But he had requested a passer-by to inform the police about the murder. He did not know his name and he was also not previously knows to him. He also did not happen to meet him again. He denied that he informed the PCR van staff that when he reached the spot he saw the dead body of his brother. The dog squad came at about 11.00 AM. It had taken the police party up to a little before the railway line. In the FIR he did not name Smt. Shanti and Smt. Kailash Devi as eye witness. He also denied that Khushi Ram had enmity with a number of persons and one of his enemy had killed him and that he reached the place of occurrence after the assailants had left. He did not have any enmity with appellants Vishnu and Daulat Ram prior to the occurrence but one or two cases were registered against Vishnu, Mahinder and Daulat Ram @Kalia on the report of the son of deceased Khushi Ram and when Khushi Ram intervened, he was intimidated in his presence but no report was made to the police. He denied that he did not know the assailants and had given the name of the appellants as an accused on mere suspicion. It was denied that appellant Vishnu had an iron rod fixed in his leg and was unable to walk properly. He asserted that he could run. He denied that he was interrogated by the police in connection with the murder of Jaspal Singh @ Jassu. He did not know whether his brother Mangal Singh and his newphew Ram Singh were accused in the case of Jaspal Singh Jassu. The police station Anand Parbat was 2 kms away from the place of occurrence. He did not tell the police that the stabbing was in the abdomen or that the appellants were giving threats before leaving the place that anyone who gave statement against them would be given the same treatment. The police arrived at the spot within half an hour. The photographs were taken after 11.00 AM. Deceased Khushi Ram was residing in premises No. T-524 and was also running a moulding factory in that premises. He himself was residing about half a kilometre from that place. Railway line was at a distance about 50 feet from the place of occurrence. He did not go to the house of Khushi Ram to inform about the occurrence. He had gone to the mortuary. He denied that Ram Swarup was an employee of deceased Khushi Ram. Deceased Khushi Ram had fallen to the ground and on his back side. Ram Swarup, Smt.Kailash Devi and Smt. Shanti were interrogated in his presence. He denied that he was making false statement.

25. The first and the foremost argument of the learned counsel for the appellants is that Dev Raj PW-1 is brother of the deceased Khushi Ram and he is an interested person. His testimony should be scrutinised with great care and caution before it is relied upon. The case of the prosecution does not rest on the sole testimony of PW-1 Dev Raj. There are other eye witnesses as well who have been examined and have corroborated the testimony of Dev Raj Pw-1. The learned counsel pointed out that Dev Raj PW-1 had stated that on the relevant date he along with his brother Khushi Ram was going to premises No.T-524 at about 8.30 AM, without disclosing that Khushi Ram was rasing as well as carrying on his business in that premises and Dev Raj himself was living in a separate premises and carrying on a separate business at some distance. Simply because the witness deposed that he and his brother were going to premises No. T-524 in which the deceased Khushi Ram resided and worked does not mean that the statement of the witness that at about 8.30 AM both of them

were proceeding towards that premise was untrue. No question has bene put in the cross-examination about the purpose of his going to the premises of the deceased or the reason why the deceased Khushi Ram was with him at that time. There is no good reason to hold that Dev Raj PW-1 and deceased Khushi Ram could not have gone to the premises and workshop of the deceased at that time. It has been strenuously argued that Dev Raj PW-1 did not try to help and rescue his brother deceased Khushi Ram from the assailants and that he did nothing not even throwing stones on the appellants when they caught hold and stabbed his brother. Moreover, it is stated, that after Khushi Ram fell to the ground with injuries on his person Dev Raj touched the body of the deceased. He tightened the knot of the tehmad worn by the deceased. He shifted the deceased a little but did not get any blood stains on his hands or his clothes, which according to the counsel for the appellant, is a strange circumstance enough to dis-believe the presence of this witness at the site. They referred to the judgment of the Hon'ble Supreme Court in Maharaj Singh Vs. State of U.P. 1994 SCC (Crl.) 1390, State Delhi Administration Vs. Khan Chand 1993 JCC 490, Anil Phukan Vs. State of Assam 1993 Cri.L.J. 1796 and Raj Kumar Vs. State 1997 (2) C.Cr.J 650 in support of his arguments.

Human psychology is complex. Different people react differently in a given emergent situation. Even the same person may show a different behavioral pattern in similar situations at times. The behavior of a man cannot be put in a strait jacket. It is indeed true that there are certain accepted norms of behaviors of a human being but there is no dearth of deviation from such norms. PW-1 Dev Raj is real brother of deceased Khushi Ram. He witnessed the brutal and murderous assault on his brother by four desperadoes and inflicting of fatal injuries on him causing his instantaneous death. He was at some distance. There was admitted enmity between the deceased, his son and his brother including PW-1 Dev Raj on the one hand and the three appellants - Vishnu, Mahinder and Daulat Ram @ Kalia on the other. There was a murder of a friend of these appellants in which the son and brother of deceased Khushi Ram were standing trial. The cross-examination of Dev Raj PW-1 has amply shown that he appellants had motive to take revenge upon the deceased and his family including brother for the murder of their friend, Jaspal @ Jassu. This witness could have also been a target had he been near his brother Khushi Ram when the assault was on. He was at some distance when the attack took place on the deceased and two of the appellants inflicted injuries on the body of the deceased Khushi Ram swiftly and the deceased collapsed before anyone could have reacted. It is not that the deceased was assaulted for a considerable long time to give his near and dear muster courage and help for his rescue. The behavior of PW-1 Dev Raj in nt rushing and standing as a human shield between the appellants and his brother Khushi Ram, therefore, is understandable. He may be called a interested witness being real brother of deceased Khushi Ram but the prosecution case is not based on his sole testimony. There are other eye witnesses examined by the prosecution who corroborated his statement. It is not a case where the prosecution chose to examine only a close relative of the deceased when other independent witnesses were available to make the testimony of the interested eye witness untrustworthy as held recently by the Apex Court in Sohan and another Vs. State of Haryana AIR 2001 SCW 1168. From the prosecution evidence it appears that the death of Khushi Ram was instantaneous and he collapsed after receiving 13 stab injuries on his body, 10 of which were fatal individually. There is no evidence to suggest that he was alive when PW-1 Dev Raj reached near him. There was nothing left to Dev Raj PW-1 to help his brother. His not taking the deceased to a hospital or to a doctor, therefore, could not give rise to an inference that he was not present. A doctor's clinic was there but whether he was a qualified doctor who could have attended to the injuries suffered by Khushi Ram is not known. Only blood was oozing out of the injuries when Dev Raj PW-1 went to his brother who had already fallen to the ground sustaining multiple stab injuries.

Absence of blood stains on the clothes or hands of Dev Raj PW-1 is not a sure shot proof of his not being an eye witness of the occurrence. It is not in evidence that his brother was alive and breathing his last which could have impelled Dev Raj PW-1 out of love to take the brother in his embrace and comfort him. He was already dead lying on the ground. Dev Raj PW-1 has stated that he touched the feet of his brother and wept by his side. He did remove him a little aside, he also tightened the tehmad worn by his deceased brother but it has not come in evidence that he had touched his brother at such a place that his clothes or hands were bound to have blood stains on them. It is not that a fountain of blood was erupting from the wounds of the brother giving stains to every one who came near him. The blood was only oozing out. The prosecution has proved photographs of the deceased which are Ex.PW-14/1-5. They show the deceased in different positions. The photographs show that the shirt on shoulder and the arms of the deceased did not have blood. Similarly the photographs Ex.PW-14/1&5 show that the place where knot of the tehmad is tied did not have any blood. Therefore, there is no possibility of Dev Raj's clothes and hands being smeared with blood. The statement of PW-1 Dev Raj that he had taken precaution that he did not get blood on his clothes at a first glance would look an odd behavior for a brother but since the brother had already died, therefore, his avoiding blood stains would not lead to the conclusion that he could not have been present. The presence or absence of blood stains on the relatives or the eye witnesses would not be the sole criteria for ruling out the presence or dis-believing the presence of the eye witnesses. It is one of the factors which along with other facts and circumstances will decide the credibility of ocular evidence.

In Maharaj Singh Vs. State of U.P. (supra) the Supreme Court was dealing with a blind murder case. The FIR was found ante-time to introduce eye witnesses to support the prosecution case. One of the eye witnesses was a wife of the deceased who claimed that she was present with her husband in the agricultural field which was away from human habitation at the time of the occurrence. The assault on her husband continued for some time and her husband tried to run and save himself from assault. Her husband suffered a number of gun shot wounds on his body beside eight incised wounds. The assailants fired pistol shots at her husband the husband tried to escape when he was again fired upon and fell down. He was then given knife injuries by the assailants. The assailants had also re-loaded their fire arms once and had fired the deceased twice. The assault with knife continued for about half a minute to one minute. She did not take any step to save her husband either by falling on her husband or taking the assault on herself. She did not receive even a scratch during the entire occurrence and her clothes neither got torn nor got stained with blood. It was on these facts the Apex Court observed that in a situation like that the normal conduct of wife would be firstly to make effort to save her husband by taking the blow on herself and if that was not possible, then at least to go so close to his person at least after the assailants had left that there would be no escape from the blood oozing out of the injuries of the deceased to come on to her clothes. Other eye witnesses also did not get blood stains. They came after hearing the gun shot. The Supreme Court discarded the evidence of the wife and rules out her presence at the scene of occurrence in the peculiar facts and circumstances of the case and not on the only ground that her clothes were not blood stained. There were other strong facts and circumstances which showed that the eye witnesses were introduced after due deliberation and consultation. In fact it was held that the FIR was ante-time in order to gain time for naming the eye witnesses. One of the reasons for reaching the conclusion was the facts and circumstances as discussed above which ruled out the possibility of the wife and other eye witnesses to be present at the scene of the crime. Therefore, this judgment is based on its own peculiar facts and circumstances and does not advance the case of the appellants.

In Anil Phukan Vs. State of Assam (supra) the sole eye witness was a close relative of the deceased and he did not attempt to save the deceased though he claimed to be present at the place of occurrence. There were also material contradictions in his statement about the time of occurrence and the medical evidence produced. The Apex Court held that his testimony could not be believed without corroborations by independent witnesses. In the instant case three more eye witnesses, who are not related to the deceased have bene examined. Similarly in the case of Raj Kumar Vs. State (supra) a Division Bench of this High Court held that the testimony of an eye witness could not be wholly reliable and trustworthy considering his conduct soon after the occurrence for not removing the injured to the hospital and waiting for his father to come by keeping the injured at the corner of the street and also not revealing the name of the assailants. It was also held that if a witness has made an inconsistent statement changing his deposition from time to time he cannot be regarded reliable and truthful witness of the occurrence. In the instant case the conduct of PW-1 Dev Raj soon after the occurrence is nothing comparable with the conduct of the witnesses in the cited case. Deceased Khushi Ram had died at the spot and it is not the evidence that he needed some medical help which PW-1 Dev Raj did not provide by removing him to the hospital or to a nearby doctor's clinic or was not revealing the name of the assailants to the I.O. soon after he reached the place of occurrence and recorded his statement which is the basis of the FIR. There are no material discrepancies and contradictions in the statement of Dev Raj PW-1 making his statement unreliable.

Coming to the statements of other eye witnesses it is indeed noteworthy that all of them namely, PW-7 Smt. Shanti, PW-8 Smt. Kailash Devi and PW-9 Ram Swarup are chance witnesses. But it has to be borne in mind that the occurrence has taken place on the main road of Nehru Nagar in broad day-light at about 8.30 AM in the month of July. The area where the occurrence had taken place was a congested residential as well commercial colony. It is not a case of the appellants that it is a deserted place, particularly in the morning hours when the occurrence had taken place. Smt. Shanti, Smt. Kailash Devi and Ram Swarup all are the resident of this locality residing not far off from the place where this occurrence had taken place. The possibility and probability of their presence can hardly be doubted because of some minor aberrations and discrepancies which are pointed out in their statements. PW-7 Smt. Shanti has stated that she was a mid-wife and was going to attend her work when in Nehru Nagar near clinic at about 8.30 AM on 7.7.1991 she saw the appellants chasing Khushi Ram and two of them namely Daulat Ram @ Kalia and Salim @ Langra fastening in their hold Khushi Ram and the other two appellants Mahinder and Vishnu giving dagger blow to him. She stated that Khushi Ram fell down after receiving injuries. She informed the mother of Khushi Ram. She also testified that PW-1 Dev Raj and Ram Swarup were also present there. It was stated that she knew all the appellants before this occurrence. In the cross-examination she stated that she was going to a place in Nehru Nagar to attend a delivery case, which was not far off from the place where the occurrence had taken place. After the incident she went to her patient and attended to the delivery. She was walking on foot and would have taken about half an hour in reaching the house of her patient. But the house of Khushi Ram was at a distance of about five minutes walk from her house. She had not stayed back at the place of occurrence and did not know the name of other residents of the mohalla where the occurrence had taken place. The police did not come to her before that. She also did not saw dog squad coming. She had seen the knife only in the hands of two appellants. Khushi Ram was over-powered after running for two or three steps. She did not raise any alarm but had rushed back to inform the mother of the deceased Khushi Ram. She first went back to her own house and after taking a glass of water again proceeded to the house where she had attended the delivery case. She did not remember the dates but if some particular date/event is to be remembered, then she does not forget it. The relationship between Khushi Ram and appellant Vishnu were somewhat strained. She denied that she was tenant of Hardwari who was brother of Dev Raj PW-1. Nobody had intervened to save Khushi Ram from the assault. She also did not see anybody lifting up Khushi Ram after he fell down. The blood was oozing out from his body and she immediately rushed to his mother. She did not witness anybody attending to the injuries of the deceased or anyone going to fetch a doctor or going to the police station. There had been no scuffle or grappling. Soon after Khushi Ram was caught, he was stabbed. There are shops and houses near the place of occurrence. Many persons were present in the factory of Khushi Ram. She did not notice anyone coming out of that factory. She did stay there for long. On seeing the occurrence she immediately left the place of occurrence. According to her both the appellants Mahinder and Vishnu had started stabbing Khushi Ram but she did not remember how many blows were given by them and which of the accused inflicted injury on which part of the body of the deceased Khushi Ram. Deceased Khushi Ram was wearing a kurta and tehmad. She did not tell the police that she had to attend the delivery case on that day but had mentioned that she was going to attend her work. Her house was at a distance about one kilometre from the spot which fell on her way. She denied that she was making false deposition. She does not have any shop for doing mid-wifery. She was at the place of occurrence for two minutes and the occurrence was over within two minutes. She did not know for how long the police stayed at the spot because she had left the place. Deceased Khushi Ram might have run about 10 to 12 feet before he was caught. She did not remember how many persons gathered there and there could be hundreds of people. She had seen Dev Raj PW-1 but she did not notice others. The house of Khushi Ram was about 20 feet from the place of occurrence. She denied that she was related to Khushi Ram and for this reason she was making false statement or that she had not seen the occurrence.

PW-8 Smt. Ksilash stated that about four years back at about 8.00 AM she was going to buy milk when near the shop of a doctor she saw appellants Mahinder and Vishnu armed with knife and the other two assailants present. They caught hold of Khushi Ram and appellants Mahinder and Vishnu gave knife blows to him in the abdomen. The occurrence has taken place in front the house of Khushi Ram. The appellants continued to give knife blows to Khushi Ram till he was dead. PW-1 Dev Raj and Ram Swarup PW-9 were also present and had witnessed the incident. Dev Raj PW-1 shouted that his brother was being killed. All the appellants were known to her from before. The people had collected at the spot. Khushi Ram succumbed to his injuries at the spot and the appellants ran away on seeing the public. In the cross-examination it was stated that the police came at the spot. Her statement was not recorded but inquiries were made from her. She was living not far off from the house of deceased Khushi Ram at a distance about five minutes walk. She did tell the police that appellants Vishnu and Mahinder kept on stabbing Khushi Ram till he was dead and that she was going to buy milk. She was confronted with her statement recorded under Section 161 Cr.P.C., Ex. PW-8/DA where the reason that she was going to buy milk was not stated. Deceased Khushi Ram was chased for about 8 to 10 meters before he was apprehended and stabbed. First appellant Daulat Ram @ Kalia caught Khushi Ram. Vishnu and others were following him. She stated that she had stayed there for about half an hour and then had gone to the house of Khushi Ram. Dev Raj PW-1 and Ram Swarup PW-9 had also come shouting that his brother was being killed. A large crowd had collected but she did not remember the number of persons who had collected. In her presence the statement of any of the persons was not recorded. The police did not come to her after that day. There was a milk shop in front of her house but she used to buy milk from another shop. The doctor had telephoned the police. After five minutes the police arrived. She did not remember the name of other persons since there was a big crowd. She remembered the name only of those whose names are mentioned above. The public had removed Khushi Ram to the hospital after three or four minutes then she went to the house of deceased Khushi Ram. Nobody was running with Khushi Ram and nobody was chasing the appellants. She denied that Smt. Kailash Devi has died and that her own name was Jugna or that she was impersonating as Kailash Devi or that she was living in Pahar Ganj or that she had given wrong address. The dog squad did not come in her presence. The body of deceased Khushi Ram was taken to the hospital on a cot. She knew Dev Raj PW-1. He did not lift the cot. Khushi Ram was taken to Tis Hazari hospital and she had accompanied the body to that hospital with other public men. She did not remember the full name of the doctor but he was known as Dr. Jain whose clinic was near the house of Khushi Ram and it was almost opposite to the place where the occurrence had taken place. The doctor did not examine Khushi Ram. The people did not apprehend the assailants. About 400 or 500 persons had collected when the accused were assaulting Khushi Ram but nobody had apprehended them. Nobody came with lathis and pelted stones on the appellants. In fact, nobody dared to do that because of the open knives in their hands. After the police came somebody brought the cot on which the police-man sat. The appellants had already ran away. She did not know as to who had removed Khushi Ram to the hospital but his body was put on a cot and she did not know whether it was the police which had taken him or the public men. The name of her son was Nand Kishore. She also did not know any Nand Kishore who suffered life imprisonment in a murder case. She denied that she was pursuing the case of Nand Kishore or that she had made false statement or that she was not present at the spot and was making statement at the behest of relatives of Khushi Ram.

The last eye witness is Ram Swarup PW-9. His deposition is that he knew Khushi Ram and also knew appellants Mahinder, Vishnu, Daulat Ram @ Kalia and Salim @ Langra. On 7.7.1991 at about 8.30 AM he was going to Prem Nagar to attend some work. Near Janta Clinic in Nehru Nagar he saw Dev Raj PW-1 going and shouting. He noticed that Khushi Ram was being chased by four persons out of them two were armed with knives. The persons who were chasing Khushi Ram were appellants present in the court. The appellants Mahinder and Vishnu inflicted knife blows to Khushi Ram whereas the remaining two appellants caught hold of him. The people collected there. Khushi Ram died of his injuries and the appellants ran away. About 150-200 persons had collected. He did not know name of all the persons. He could remember the name of Dev Raj PW-1, Smt. Shanti PW-7 and another women whose name he could not recall at the moment. During cross-examination he stated that he did not know the name of the woman who has been examined as a witness that day but he knew the other witness Smt. Shanti by her name. He did not know Smt. Kailash Devi but had seen her. He lived near the house of Khushi Ram in the gali next to the house of Khushi Ram. He had seen PW-8 (Smt. Kailash Devi) in that area in street No. 6 but did not know her by her name. He is not standing trial in any criminal case. He denied that he had broken open the house of the appellant Vishnu. He did not appear in the court of Shri Gurdeep Singh Saini in the case of filing a complaint by appellant Vishnu. He also denied of any non-bailable warrants having been issued against him by any such court. He had a factory and was engaged in manufacture of compass in house No. 287, Nehru Nagar. He is living there and had a ration card of that address. Since then he had shifted his residence and factory to premises No. 138, gali No. 4 in Nehru Nagar after disposing of that house. At the relevant time he was going to engage rikshaw for carrying badarpur sand. He did not go to the hospital when the body of Khushi Ram was removed in a cart. He did not know the person who had carried the cot. He left five minutes after the occurrence. Deceased Khushi Ram's factory was near that place. Four persons were chasing Khushi Ram. He did not see anybody else also running after Khushi Ram. Khushi Ram was caught after he ran 30 to 40 steps. Police came to the spot in a vehicle. He was present at the distance of 10 pace from the clinic of the doctor. His statement was recorded by police on 7.7.1991 at about 8.30 AM and he left the place after his statement was recorded. No other statement was recorded in his presence. He did not tell the police that he heard Dev Raj shouting. Khushi Ram was given 3/4 stab injuries and the assailants remained there for about 5 to 7 minutes. Nobody tried to save Khushi Ram. Dev Raj PW-1, he or any other public men did not try to save him. The police did not see him after that day. Sometime after him Dev Raj PW-1 also reached there. Dev Raj was coming while shouting. Almost at the same time 300-400 persons were present when he came. None of them had removed Khushi Ram to the hospital. None of them gave first-aid or bandaged the wounds of Khushi Ram. The cot was also not brought in his presence. He cannot distinguish between a PCR van and the police of local police station. PCR van came about 5-7 minutes but did not know whether words "Police Control Room" were written on it or not. He did not know whether Khushi Ram was removed to the hospital in that vehicle as he had stayed at the place for about 5 to 7 minutes. In his presence dog squad did not come to the spot. The road where the occurrence took place was about 20 ft. wide. Janta Clinic was in front the place of the occurrence. Occurrence had taken place in a market place and there were other shops as well. Doctor of Janta clinic did not attend to Khushi Ram. He did not notice how many shopkeepers were present. He also did not notice any public men having caught hold of the assailants. He saw only two of the assailants with knife and the other two did not have knife. Hi knew Smt. Shanti PW-7 & Smt. Kailash Devi pw-8 and Hardwari. They had come at the spot in a shortwhile after he reached the spot. He denied that he had made false statement.

The learned counsel for the appellant has pointed out that Dev raj PW-1 in his initial statement made to the I.O. Insp. Monmohan Singh Ex. PW-1/A had stated that he saw all the four appellants coming with open knife in their hands. But all the three eye witnesses namely, Smt. Shanti PW-7, Smt. Kailash Devi PW-8 and Ram Swarup pw-9 have stated that only two of the appellants namely, Mahinder and Vishnu were armed with knife and the remaining two namely Daulat Ram @ Kalia and Salim @ Langra did not have knife. He further stated that this is a material contradiction in the statement of Dev Raj PW-1 and other eye witnesses. It is further stated that none of the eye witnesses tried to intervene and save Khushi Ram and none of them had taken Khushi Ram to the hospital. Their deposition is also discrepant on the point as to who had come at the place of occurrence and when making it improbable for them to witness the crime. They also stated that large number of persons had collected at the spot but those persons did not try to apprehend the assailants or save Khushi Ram.

A perusal of PW-1/A shows that it was Dev Raj who had first spotted the four assailants coming from the direction of the railway line with brother Khushi Ram and asked him to run away. The assailant had given chase to Khushi Ram. It is also mentioned in the statement that he was walking a little behind Khushi Ram and further that assailants were chasing Khushi Ram and wanted to kill him. Same is his statement as of PW-1. We have already noticed that PW-1 Dev Raj could have been a target of the assailants himself, therefore, his conduct at the time of the assault is not such as to completely rule out his presence near the scene of occurrence and witnessing the assault on his brother. The site plan Ex. PW-11/A showed the place where Dev Raj PW-1 and other Smt. Shanti, Smt. Kailash Devi and Ram Swarup PWs 7 to 9 were present when the appellants gave stab blows. It is also in evidence that multiple stab blows were given and Khushi Ram died instantaneously. There may be people who reached the place ahead of Dev Raj , Smt. Shanti, Ram Swarup and Smt. Kailash Devi. The statement of the witnesses is to be read as a whole and of it is read in such a manner it does not in any way show that any of these witnesses came after the whole incident was over and the assailants had escaped. Three witnesses Smt. shanti, Smt, Kailash Devi and Ram Swarup saw the appellants chasing Khushi Ram for a short distance when he was over-powered and the injuries were inflicted on his person. These witnesses saw the weapon of offence only in the hands of two of the assailants, namely, Mahinder and Vishnu but they are also consistent in saying that the other two remained continued to keep hold of Khushi Ram in their grip during the repeated stab injuries given by their accomplices on vital parts of the body of the deceased. May be attention of none of these witnesses was drawn to the assailants when they were near the railway line and before they started chasing Khushi Ram. The appellants Daulat Ram @ Kalia and Salim @ Langra might not have been holding the knife when they neared Khushi Ram and fastened him in their grips. No pointed question has been put to Dev Raj PW-1 as to what happened to the daggers which Daulat Ram @ Kalia and Salim @ Langra had in their hands before they started the chase. These witnesses were resident of locality. Except Smt. Kailash Devi, the appellants have not disputed the statements of other witnesses that they resided in this area and assailants were known to them or that the witnesses knew Khushi Ram and Dev Raj. About Smt. Kailash Devi it is stated that her name was Smt. Jugna and she was a resident of Pahar Ganj and she was impersonating as Smt. Kailash Devi. A separate statement of I.O. Insp. Manmohan Singh was recorded and he has stated that he recorded the statement of Smt. Kailash Devi who had been examined as a witness during the investigation under Section 161 Cr. P.C. No other evidence has been led by the appellants to show that she was not real Kailash Devi whose statement was recorded by the I.O. and that she was not a resident of that locality. About the statement of Smt. Shanti, it is stated that it is materially contradictory. Prosecution story is that her statement was recorded on 7.7.1991 and not after nine days of the incident. It is her statement that she remained at the spot for a short while and had gone to the house of Khushi Ram and had informed his mother and wife. Statement of the I.O. is that her statement was recorded on 7.7.1991 itself. There is some discrepancy about the date on which her statement was actually recorded but for this reason alone she cannot be held to be a planted witness. In substratum there in corroboration of the testimony of each other by these witnesses on all material aspects. There is a ring of truth making their testimony worthy of credence.

It is also to be remembered that the incident had taken place in July, 1991 and the statement of these witnesses in the court were recorded about four years thereafter. Had their testimony been verbatim reproduction of their statement made under Section 161 Cr. P.C. or identical or without infraction and minor discrepancies it could not have been without tutoring and prompting.

The learned counsel for the appellant cited the case of State of Delhi Admn. Vs. Khem Chand (supra) where a Division Bench of this court had observed that all the three witnesses were chance witnesses and none of them had tried to intervene in scuffle going on between the deceased and the accused persons and even alarm was not raised. None of them informed the police or the relative of the deceased. They also shifted the deceased who was bleeding profusely to another place but did not have blood stains on their clothes. For these reasons and some other reasons like infirmity in the recovery of the weapon of offence and delay in recording of the FIR, it has been held that the testimony of the witness was not trustworthy. It is not a case here. Nobody had a chance to attend to the injuries of the deceased. As many as 13 stab injuries, 10 of which were fatal individually, were suffered by Khushi Ram and he died instantaneously. His brother Dev Raj pw-1 was already present at the place of occurrence. Therefore, the facts of the cited case materially different and distinguishable. The law laid down in that case cannot be applied to the instant case to hold that the eye witness account given by PWs was not reliable. The facts of Raj Kumar Vs. State (supra) were also distinguishable. It has already been discussed in the foregoing paragraphs. It does not advance the arguments of the appellants that the ocular evidence produced by the prosecution should be discarded, being unreliable.

The object of insisting upon registration of FIR promptly is to ensure recording of information regarding circumstances in which the crime was committed, the name of the accused and the role of each of them, the weapon of offence used and also the name of eye witnesses, if any at the earliest opportunity. Delay in recording it brings infirmity and leads to an inference that it is a result of deliberation and consultation. The delay of course may be explained by leading cogent evidence. For the same reason expeditious delivery of the copy of the FIR to the local Magistrate is insisted upon. Sending of copy of FIR along with the report and other parers and the dead body to the autopsy surgeon is also insisted upon for the same reason. Argument of the learned counsel for the appellant is that the FIR in this case is ante-time since the occurrence has taken place at about 8.30 AM and the copy of the FIR was delivered to the Metropolitan Magistrate in the evening at about 8.50 PM. It is further contended that the body of deceased Khushi Ram was delivered at the mortuary at 4.30 PM on 7.7.1991 but the necessary papers were delivered there only on the next day at 9.00 Am. It is stated that the delay in recording of the FIR was due to the fact it was a blind murder case and the police planted the brother of the deceased Khushi Ram, PW-1 Dev Raj and other pliable witnesses Smt. Shanti, Smt. Kailash Devi and Ram Swarup as eye witnesses, who in fact were not present. The incident had taken place in broad daylight during the summer season in a busy and congested locality having shops and residential premises. It was not a deserted place. The offence was committed by the appellant who were not stranger to this place. They belonged to this area and were known to the people of the locality. A number of persons had gathered at the time of the commission of the offence on the scene of crime. It is difficult to think that they would not have been able to identify the assailants or at least some of them. Therefore, the argument that it was a blind murder case and the delay in dispatch of the FIR to the local Magistrate was in order to rope in the appellants does not have force. The house of the deceased Khushi Ram was not far off from the place of occurrence. Anyone of other members of family or employee of the deceased could have been introduced. On the other hand Dev Raj PW-1 lived about half a kilometre away. The police arrived at the scene at 9 or 9.15 AM and found Dev Raj PW-1 to be present there. His statement was recorded and was sent to the police station at 10.00 AM and the FIR was recorded at 10.20 AM. Indeed the copy of the FIR reached the local Magistrate at 8.50 PM and there is some delay but in the totality of the facts and circumstances concerning the commission of this offence it cannot lead to an inference that the FIR was an after thought or there was possibility of the innocent person being roped in. The copy of the FIR and other papers indeed reached the mortuary on the next day morning. Since the copy has already been delivered to the Magistrate in the evening on 7.7.1991 the delay in the dispatch if these papers cannot bring infirmity and embellishment in the FIR.

Another circumstance pointed out by the learned counsel for the appellants in support to this arguments is that it was a blind murder case as the dog squad was called to the spot. It is stated that the dog squad is called to a scene of crime only where the culprits of the crime are not known. This is a fallacious view. The crime team was called which included the photographer and the dog squad. The dog squad which came did not go even up to the railway line. The crime was committed at a time and place where it could have been seen by a number of persons and the appellants being of the same locality and operating in the same locality, would not have gone unidentified by them. PW-17 Inspector Manmohan Singh, IO, has stated that the dog squad was called to the scene of occurrence in all serious crimes. He categorically denied that it was called only when eye witnesses were not available at the spot. PW-13 SI shaym Phool who was in the staff of SHO which went to the place of occurrence is also emphatic in saying that even if names of accused are known dog squad is called to pursue the direction and place where the accused might have gone. He denied that it is called in a murder case where eye witnesses are not available. There is no reason to disbelieve them. Therefore, calling of dog squad would not necessarily lead to the only inference that the perpetrator of the offence were not identified. Those arguments are, therefore, repelled.

The learned counsel for the appellants have then assailed the evidence which the prosecution has led to prove recovery of one of the weapons of offence, the dagger/knife Ex. P-1, at the behest of the appellant Vishnu. Under Section 27 of the Evidence Act an information and disclosure made by an accused in custody which leads to the discovery of some incriminating facts and material like weapon of offence, the dead body etc. is admissible. But the information given by the accused must be such as has caused discovery of the fact and it should also relate distinctly to the fact discovered.

I.O. Insp. Manmohan Singh PW-17 has stated that the appellants Vishnu, Mahinder and Daulat Ram were apprehended on 13.7.1991 and their disclosure statements Ex. PW-13/F, PW-13/E and PW-13/G respectively were recorded soon after. Appellant Vishnu had led the police party to the bushes near railway line of the Zakhira bridge and he had taken out a chhuri from the bushes after removing the mud. He then prepared the sketch of the chhuri Ex.PW-6/1 and sealed it and it was taken into possession Ex. PW-6/B. No weapon of offence was recovered as a consequence of his disclosure statement made by appellant Mahinder. It is also his statement that the sealed packets containing dagger Ex. P-1 was deposited in the malkhana of the police station. The lengthy cross-examination of this witness has not brought any infirmity in his testimony.

His statement finds corroboration from the deposition of PW-13, SI Shyam Phool. This witness has deposed that on 13.7.1991, he was joined in investigation of the case along with other police personnel when secret information was received by the I.O. and the appellants Mahinder, Vishnu and Daulat Ram @ Kalia were apprehended from Sanjay Park, Mangol Puri. They were interrogated and they made their disclosure statements. The disclosure statement of appellant Mahinder is Ex. PW-13/E, that of Vishnu was Ex. PW-13/F and the disclosure statement of Daulat Ram @ Kalia was Ex. PW-13/G. The appellant Vishnu in custody led them to the railway line Zakhira in Nehru Nagar and he took out a dagger from the ground after removing the mud/sand. The sketch of the dagger Ex. PW-6/A was prepared and the dagger was put in a sealed parcel which was seized vide memo Ex. PW-6/B. He identified the dagger as the same which was recovered as a consequence of the disclosure statement made

by appellant Vishnu. In the cross-examination it was stated that the disclosure statements of the appellants were recorded in hand on 13.7.1991 after they were arrested and interrogated. According to him first the appellant Mahinder had taken them for recovery of weapon of offence and after that appellant Vishnu took them for recovery of the dagger from an open place from the bushes that was accessible to everybody. He admitted that anybody could have thrown article into those bushes but he volunteered that the dagger Ex. P-1 was lying there buried and the appellant Vishnu had scooped out the earth and soil from under the bushes and had taken out the dagger. It was not buried very deep. He denied that dagger Ex. P-1 was planted and for any such reason the site plan of the site of recovery was not prepared. PW6 Gurprashad was a witness of recovery and no other public men was joined. He also denied that appellant Vishnu did not make any disclosure statement or no dagger was recovered at his instance.

PW-6 Gurprashad is the third witness examined by the prosecution for recovery of Ex.p-1 at the instance of appellant Vishnu. His statement is that on 13.7.1991 when he was returning home at about 5.30 PM a police party met him in Nehru Nagar. The appellant Vishnu was with them. Appellant Vishnu recovered a dagger from under the ground from the bushes which were near the railway line if one proceeded towards Zakhira. The knife recovered was measured and its sketch Ex. PW-1/A which bears the thumb impression. The dagger was then kept in the parcel and was sealed and it was also taken into possession vide memo Ex. PW-6/B which also bears his signatures. He identified Ex.P-1 as the same dagger which was recovered at the instance of appellant Vishnu. In the cross-examination he deposed that the bushes situated at an open place and were accessible to all. He did not make any statement to the police. He denied that Ex. P-1 as the same dagger which was recovered at the instance of appellant Vishnu. In the cross-examination he deposed that the bushes situated at an open place and were accessible to all. He did not make any statement to the police. He denied that Ex. P-1 was not make any statement to the police. He denied that Ex. P-1 was not recovered in his presence or he did not see appellant Vishnu earlier. He also denied that his thumb marks were obtained by the police at the police station.

Examination of the statements of all the three witnesses namely I.O. Insp. Manmohan Singh PW-17, S.I. Shyam Phool PW-13 and the public witness Gurprashad PW-6 proved that the appellants Mahinder, Daulat Ram Kalia and Vishnu were arrested by the police in the evening of 13.7.1991 and thereafter they were interrogated. Their disclosure statements were also recorded. In consequence to the disclosure statement made by accused Mahinder, the police party went to his house but nothing incriminating or the weapon of offence was recovered from there. However, appellant Vishnu led the police party and the public witness to the bushes near railway line near Zakhira and after removing the mud he recovered the dagger Ex. p-1 from under the bushes. All the three witnesses have identified the dagger Ex. p-1 as the same dagger which was recovered as consequence of the disclosure statement made by appellant Vishnu. They are also consistent in their statements that dagger Ex. P-1 was buried under the ground though not very deep. However, it is not the case of the appellant Vishnu not has it been put to any of these witnesses that the dagger was lying on the ground open to the sky and was visible to any passer-by. May be the place of recovery is accessible to all being near the railway line but the dagger was under the ground buried in earth. The sand and mud was over it and it was not visible to anyone. It was under the bushes. Therefore even if the place was open and accessible to all and sundry, the existence of the dagger Ex.P-1 could have been known only to the appellant Vishnu. It was recovered after he made disclosure statement and took the police party and the public witnesses to the place of recovery. The recovery cannot be doubted simply because sketch of the place of recovery was not prepared. All the three witnesses have stood the test of cross-examination well as regards the recover of the weapon. The evidence about the recover, therefore, is strictly in accordance with the provision of Section 27 of the Indian Evidence Act and is admissible under law as a piece of evidence.

Dr. L.K. Barua has stated that the knife examined by him was blood smeared single edged knife, sketch of which was drawn Ex. PW-14/B. It is stated that according to the I.O. Insp. Manmohan Singh and the seizure memo Ex.PW-6/B the blade of the dagger recovered at the instance of appellant Vishnu had rust on it. It was stated that the dagger which was placed before Dr. L.K. Barua was not the one which was recovered at the instance of appellant Vishnu and was a different knife. It is true that the statement of Dr. L.K. Barua Ex.PW-14/16 shows that it was smeared with blood and the seizure memo show the blade had rust. However, the report of Dr. Barua Ex.PW-14/16 shows that it was smeared with blood and the seizure memo show the blade had rust. However, the report of Dr. Barua Ex.PW-14/C does not show that the knife was smeared with blood when it was produced. Furthermore, the sketch of the dagger which was produced before him is given on his report as Ex. PW-14/B. The sketch which was prepared at the time of recovery of the offence is also on the file as Ex. PW-6/A. Both are identical in shape and design. May be Ex. P-1 was not closely examined by the doctor and he seems to have mistaken stain of rust on the blade as a stain of blood. The doctor has opined that the injuries No. 1,2,4,5,6,7,8,9,12 & 13 are possible to have been caused by the knife Ex.P-1. As such, there does not appear any dispute about the identify of the dagger/knife Ex.P-1 which the Dr. L.K. Barua had examined and one which has been produced before this court and marked Ex.P-1. There does not seem any merit in this argument.

It has been strenously argued on behalf of the appellants that the prosecution story is that out of four only two appellants namely appellants Vishnu and Mahinder had given stab injuries to Khushi Ram and the other two appellants namely Daulat Ram Kalia and Salim Langra have been assigned the role of only catching hold of the deceased. It is stated the although Dev Raj PW-1 has alleged that appellants Daulat Ram Kalia and Salim Langra also had daggers in their hands but they did not use them which indicates that they did not share common intention of causing death of Khushi Ram. As regards Daulat Ram Kalia and Salim Langra being in possession of the dagger, it has already been noticed that these daggers in their hands were noticed by PW-1 Dev raj when he first spotted them coming from the side of the railway line. Thereafter the chase started. Dev Raj PW-1 did not state that they were holding the knife even when Khushi Ram was being inflicted injuries by the other two appellants.Anyhow, none of the other eye witnesses Smt. Shanti, Smt. Kailash Devi and Ram Swarup saw the daggers in the hands of appellants Daulat Ram Kalia and Salim Langra when they were keeping Khushi Ram in their hold and the injuries were being inflicted by the other appellants.

Section 34 IPC recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for an offence which is not actually committed by him but is committed by another person with whom he shared the common intention of committing that offence. Section 34 IPC postulates:-

1. The criminal act (consisting of a series of acts) should have been done, not by one person but more than one person.

2. Doing of every such individual act cumulatively resulting in the commission of the criminal offence should have been in furtherance of the common intention of all such persons.

3. The act done by the accused must have nexus with the offence.

4. The act done need not necessarily be overt. It may be a covert act. Even an omission can, in certain circumstances, amount to an act.

5. It will not be applicable to an accused who only keeps the common intention in his mind but does not do any act at the scene of occurrence.

6. The acts may be separate, similar or diverse by several persons.

7. Exhortation and guarding of the scene of crime would amount to participation.

8. Accused must be physically present at the scene of occurrence and mere distance from the scene will not exclude him.

9. It is not necessary that the co-accused who shared common intention should have done really something.

10. Mere presence at or near the scene of occurrence without doing anything more, without carrying even the weapon, without even marching along with other assailants need not necessarily lead to the conclusion that the accused shared common intention.

11. Common intention presupposes prior concert which requires pre-arranged plan of the accused participating in an offence.

12. Such a pre-concert or pre-plan may develop on the spot or during the course of the commission of the offence but it should precede the act constituting an offence.

13. Common intention is different from same intention or similar intention.

14. Common intention may be proved by the direct proof of prior concert or proof of circumstances.

(See State of U.P. Vs. Iftikhar Khan & others ; Mehbub Khan Vs. Emperor AIR 1945 PC 118; Tuka Ram Ganpat Pandare Vs. State of Maharashtra ; Ramaswami Ayhangar Vs. State of Tamil Nadu ; Rambilas Singh Vs. State of Bihar ; Surendra Chauhan Vs. State of M.P. ; and Suresh and others Vs. State of U.P.)

Examining the evidence led by the prosecution against the appellant in the light of the law enunciated above it is note worthy that all the four appellants Mahinder, Vishnu, Daulat Ram Kalia and Salim Langra had come together. Appellant Mahinder exhorted his companion appellants to kill Khushi Ram to be precise asking them that he should not escape alive. All the appellants together started chasing Khushi Ram. Two of them namely, Daulat Ram Kalia and Salim Langra caught Khushi Ram and the remaining two appellants Vishnu and Mahinder inflicted injuries to the body of Khushi Ram with the dagger/knife in their hands. As many as 13 injuries were inflicted on Khushi Ram. As many as 10 injuries were given on the vital part of the body Khushi Ram and were fatal. All through the period Mahinder and Vishnu continued to stab Khushi Ram, their accomplices Daulat Ram Kalia and Salim Langra continued to keep Khushi Ram in their hold and thus facilitated the other appellants to murder Khushi Ram by giving fatal blows by daggers. The appellants Daulat Ram Kalia and Salim Langra were present at the scene of occurrence and they actually participated in the crime. They had pre-concerned and shared the common intention to commit murder of Khushi Ram when on the exhortation of appellant Mahinder all of them started chasing Khushi Ram in order to kill him. Appellants Daulat Ram Kalia and Salim Langra were not mere spectators. Their overt act which helped their accomplices appellants Mahinder and Vishnu in committing the murder has proved the common intention which all the four accused proved the common intention which all the four accused shared for the commission of murder of Khushi Ram. The view finds support from the judgment of the Supreme Court in Rana Pratap Singh Versus State of Haryana, wherein it was observed:

"The circumstance that the third accused came together and that two of them held the deceased while the third one stabbed him clearly indicates that they shared common intention."

The reliance of the counsel for the appellants on the judgment of the Supreme Court in Ramashish Yadav and others Vs. State of Bihar 1999 (2) AD (Crl.) SC 561 is mis-placed as the facts are totally different. In that case two of the accused had caught hold the deceased while two other accused came with gandasas and gave blows on the head of the deceased as a result of which he died. The Supreme Court on the evidence led in that case came to the view that it could not be said the accused who had inflicted gandasa blows on the head of the deceased and the co-accused who had caught hold of the deceased had shared the common intention with the assailants and, therefore, the accused who were holding the deceased cannot be convicted with the help of Section 34 IPC. It is not the case here. Daulat Ram Kalia and Salim Langra were not holding deceased Khushi Ram when Mahinder and Vishnu came with daggers and killed Khushi Ram. Rather all of them ran after Khushi Ram, over-powered him and while two fastened him in their grips, the remaining two killed him with daggers which is a clear case of pre-concert and sharing of common intention between all the four assailants. Similarly, the appellants have cited a case of Chhotu Vs. State of Maharashtra 1997 (II) AD (Crl.) SCC 793. In that case one of the accused was standing with a knife in his hand. He did not assault the deceased who had suffered as many as 55 injuries and on the evidence of the case the Supreme Court held that it would not be justified in reaching the firm conclusion that he shared the common intention with other assailants, so, could not be convicted with the help of Section 34. This judgment also does not come to the rescue of the appellant Daulat Ram and Salim.

A feeble argument has also been advanced on behalf of the appellants that it has not been proved as to which was the two assailants, Vishnu and Mahinder, had caused which of the 13 stab injuries on the body of Khushi Ram. According to the post-mortem report and the statement of Dr. L.K. Barua Ex. PW-14/16 injuries No. 1-5, 7, 8, 10, 11 & 13 were individually sufficient to cause death in the ordinary course of nature and further that injuries No. 1-4, 5, 6, 7, 8, 9, 12 & 13 were possible to be caused by knife Ex. P-1. The dagger/knife Ex. P-1 was recovered in consequence to the disclosure statement of accomplice Vishnu and was used in the commission of the offence. Since all the appellants shared common intention, it becomes immaterial which of the two appellants, Vishnu and Mahinder, has caused which of the fatal injury. With the help of Section 34 all the appellants have to be held guilty of committing the murder of Khushi Ram.

Having regard to the above discussion, facts and circumstances we do not find any infirmity in the judgment and order of learned Additional Sessions Judge impugned in this appeal. The appeal has no merit. It is dismissed with no murder as to costs.