Malik Sharief-ud-din, J.
(1) Sat Pal appellant in criminal appeal No. 27 of 1986 Ashok and Prem Singh appellants in criminal appeal No. 42/1986 have been convicted under section 302/34, section 323/34, Indian Penal Code, and sentenced to imprisonment for life under section 302/34 Indian Penal Code and to the payment of fine of Rs. 500.00 each, in default of which they are to undergo further rigorous imprisonment for six months. They have also been sentenced to undergo rigorous imprisonment for six months under section 323/34 IPC. Sat Pal appellant was also convicted u/s 27 of the Indian Arms Act and sentenced to undergo rigorous imprisonment for one year. All the sentences have been made concurrent. The appellants have made a grievance against these orders of conviction and sentence dated 30.1.1986 and 31.1.1986 respectively.
(2) The facts are that on 16.10.1982 at about 8.30 P.M. the appellants came to the shop of one Dhruv, a panwalla. This shop was situated in front of the house No. 6-166, Mohalla Maharam belonging to the deceased Jai Prakash. At that time the deceased was sitting outside his house. On their arrival near the aforesaid shop, the appellants started abusing each other. When the deceased Jai Prakash objected and asked them to behave, the appellants are alleged to have beaten him. After beating the deceased, the appellants left the place but the deceased followed them. Having seen the deceased following the appellants, his two nephews Lalit Kumar (P.W.2) and Shri Kailash Chand (P.W.3) also followed. It is also alleged that P.W.7 Diopadi, wife of the deceased also followed l^e deceased. When the appellants reached Oali No. 6, opposite house No. 6/42, Mohalla Moharam they attacked the deceased with knives and also dragged him. It is also alleged that when Dropadi (P.W.7) intervened she was pushed by the appellants as a result of which she fell down. The appellants are said to have escaped from the scene of incident thereafter.
(3) The deceased Jai Prakash was removed to hospital by Lalit Kumar (P.W.2) and Kailash Chand (P.W.3). In the hospital itself Lalit Kumar (P.W.2) is said to have made a statement marked Ex. Public Witness 2/A before the police giving full details about the sequence of events and also the particulars of the persons responsible for the commission of this crime. It was this statement which was made the basis for the registration of the F.I.R. We may notice that the statement of Lalit Kumar was dispatched from the hospital at 11.15 p.m. by Hoshiar Singh S.I. and the F.I.R. was registered at 11.55 p.m. on the same date. It was delivered to the concerned Magistrate at 5.45 a.m. on 17.10.1982.
(4) The injuries sustained by the deceased and the case of death is not in dispute. We, however, still find it necessary to make a brief reference to the testimony of autopsy surgeon Dr. G.K. Sharma.(P.W.19) only to find out how far the medical evidence is consistent with the prosecution case. P.W.19 has found as many as 20 injuries on the person of the deceased, out of which injuries No. 2, Ii, 12, 13, 14 and 16 are incised wounds and the remaining are either lacerated punctured wounds or abrasions. Injuries No. 2 & 14 proved to be fatal in this case. P W.19 also opined that injuries No. 1,3,4,6,7,9,17,18 and 20 were caused by impact of blunt force while injuries No. 5 and 16 were earned by sharp cutting weapon. According to him, injuries No. 2,11,12,13 and 14 were caused by pointed penetrating weapon.
(5) It is apparent from the evidence of the autopsy surgeon that injuries with sharp weapons were caused by more than one person. Medical evidence also sustains the prosecution case that the deceased was beaten and dragged resulting in a number of simple injuries. The injuries resulting in death were so fatal that the deceased died shortly after his admission to hospital.
(6) At this stage, we may make a reference to what Lalit Kumar (P.W.2) had stated in his earliest statement Ex PW2/A before police and we quote:
'I along with my parents and my uncle Shri Jai Prakash live in house No. 6/166, Mohalla Maharam together with the family members of Jai Prakash. On 16.10.82 at about 8.30 P.M when my uncle Jai Prakesh was sitting outside the door of his house, three boys namely Ashok alias Billoo son of Pt. Shiv Charan, R/o House No 6/29 Mohalla Mabaram, Prem Singh alias Babu who is bother of above mentioned Ashok and Sat Pal alias Pappu s/o Pritam Singh, R/o Mohalla Moharam came over there and started indecent talks while standing on the Pan Shop of Dhruv which is situated adjacent to our house. When my uncle Jai Prakash asked them not to do so, all the boys picked up a quarrel with him and gave beating. After giving beating when they tried to run away, my uncle followed them and after covering a little distance they again gave beating and dragged him and attacked him with knives in Gali No 6 in front of House No. 6/42 All the three were having knives- with them and they all gave knife blows to Jai Prakash. This quarrel has been witnessed by my brother Kailash and myself. On receiving the information when my 'Mousi' (.mother's sister) Dropadi w/o Jai Prakash (now deceased) came to Oali No. 6, the place of occurrence, she also sustained minor injuries, on the left arm. Thereupon, my brother Kailash and myself took our uncle to J.P.N. hospital and we sent our 'Mousi' to the house. These boys have run away from the spot. My uncle died on reaching the hospital. The aforesaid three boys have caused knife injuries to him on both sides of neck, on both sides of stomach, left foot and the buttock.'
(7) On a careful examination of the testimony of Lalit Kumar (P.W.2) and Kailash Chand (P.W.3) we find that the version of the incident given in the F.I.R. has been supported by both of them in all material particulars. They have directly held Ashok and Prem Singh appellants responsible for the commission of this crime. However, while testifying at trial they defused to identify Sat Pal appellant as the third culprit. According to them, since the back of the third person who was involved in the crime was towards them they could not identify him. This they have done even though they knew all the appellants before-hand and that is how Lalit Kumar (P.W.2) had mentioned their full particulars in the F.I.R. Moreover, since all the appellants also reside in the same Mohalla, the witnesses are bound to know them.
(8) In our view these two eye witnesses have clearly attempted to save Sat Pal appellant. The reason why they do so, we can only guess The fact, however, remains that Sat Pal appellant cannot be convicted on the basis of the fact that his name has been mentioned in the FI.R. Substantive evidence is one tendered at trial and it is on that evidence that the court may or may not base a conviction F.I.R. can at the most be used for the purpose of corroboration. Both Public Witness 2 and Public Witness .3 have gone on record saying that they identified Sat Pal at test identification parade only after they were shown his photographs by the police. Mr. Mathur, learned counsel, urged that if the court finds these two witnesses lying on a particular feature of the case, then their testimony is not worthy of any credit. We do not agree for the simple reason that the conduct of a witness does in no way absolve the court of its duty to separate grain from the chaff.
(9) Mr. Malhur's contention that the conduct of these two witnesses in not interfering at the time of the incident shows that they are not the eye' witnesses, in our view, is unsustainable. The reason is that it is actually these two witnesses who removed the deceased to the hospital. Name of P.W.3 Kailash appears in M.L C. The shirt of Lalit Kumar was found having blood stains of the same group as that of the deceased. Lalit Kumar (P.W.2) made the statement Ex. Public Witness 2/A immediately after the incident giving full details and also the names of the eye witnesses. The F.I.R. was sent to the Magistrate within time leaving no room for any manipulation. Public Witness .3 Kailash Chand could not be examined on the same night as, according to him, he left for Kota in Rajasthan to inform the son of the deceased about the incident. He made the statement immediately on his arrival back from Kota.
(10) Mr. D.C. Mathur invited our attention to the statement of Public Witness .6 one Radhey Sham to press his point that Kailash Chand was not an eye witness. Relying on the testimony of Radhey Sham it is contended that the son of the deceased was in Delhi as it was he who had informed Public Witness .6 about the incident at 11 P.M. same night. We do not agree. It is nowhere stated by Public Witness .6 Radhey Sham that Subhash, the boy who informed him is the son of deceased, or that he is the only son of the deceased. All he states is that the deceased was his 'sala' (brother-in-law) and Subhash Chand was the son of his brother-in-law How can the presence of Public Witness .3 Kailash Chand be doubted when his name also appears in the M.L.C. as the person who brought the deceased to hospital We, however, agree with the learned counsel that Public Witness .7 Dropadi is not an eye-witness. She is not so described in the F.I.R. and it seems to us that she came to the place of incident only after it was over Her plea that she was pushed by the appellants resulting in injury is not sustainable. There is no medical evidence about her sustaining an injury.
(11) In our view, the presence of Public Witness .2 and Public Witness .3 at the scene of incident is clearly established. As already observed, the medical evidence is also consistent with the eye-witnesses account. The only point now left for our consideration is who, if any, is to be held responsible for the commission of this crime The case of the prosecution rests on the direct evidence of P.W.2 and Public Witness 3 and we find them worthy of credit- The only departure they have made in their testimony at trial is their refusal to identify Sat Pal appellant as the third culprit. Thus. we are left with no evidence against Sat Pal appellant regarding his involvement in the commission of this crime. As far as the appellants Ashok and Prem Singh are concerned the prosecution has established their guilt beyond any doubt. The shirt recovered from Ashok appellant was stained with the blood group of the deceased. In this case the nature of injuries, the force used in inflicting the fatal injuries, the seat of the injuries and the cruel manner in which these were inflicted clearly go to show that the appellants intended to kill the deceased. In this case, the facts amply establish that the assault on the deceased was extremely vindictive and merciless. The force used was out of all proportion: The accused worked with one design and object and were definitely in know of the fatal consequences that in fact ensued as a result of conjoint attack which makes everyone who participated in the crime responsible for the same. This is a case wherein all the accused simultaneously attacked with knives clearly establishing their common intention. However, there is no evidence that the knife recovered from Sat Pal is a prohibited weapon.
(12) The result is that the appeal No. 27/86 of Sat Pal is allowed. His conviction and sentence is set aside and he is acquitted of all the charges. The appeal No 42/86 of Ashok and Prem Singh is dismissed and their conviction and sentence under sec. 302/34 Indian Penal Code is confirmed. They are. however, acquitted of the charge u/s. 323/34 Indian Penal Code and their conviction and sentence on that count is set aside. To that limited extent their appeal is allowed.