Per Hon’ble Mahendar Kumar Goyal, J.

Under challenge in this criminal appeal is the judgement dated 01.04.2017 passed by learned Additional Sessions Judge No.2, Alwar (for short-`the learned trial court’) in Sessions Case No.45/2013, whereby, the accused-appellant (for short-`the appellant’) has been convicted and sentenced as under:

1. Section 341 IPC: One month’s simple imprisonment and fine of Rs.500/-; in default whereof, ten days’ additional simple imprisonment.

2. Section 324 IPC: Three years’ rigorous imprisonment and fine of Rs.1000/-; in default whereof, one month’s additional rigorous imprisonment.

3. Section 302 IPC: Life imprisonment and fine of Rs.10,000/-; in default whereof, six months’ additional rigorous imprisonment. Sentences to run concurrently.

The facts, in a nutshell, germane for disposal of the present appeal are that the complainant Mahendra Singh (PW1) submitted a written report (Ex.P1) with the Police Station Aravali Vihar, Alwar on 20.09.2013 and as per the police endorsement on it, at about 9 am stating therein that the dead body of his son Naresh with marks of incised weapon on various body parts was lying in the mortuary of Government Hospital. It was further averred that another boy namely Anoop was also injured in the incident and was sent to SMS Hospital, Jaipur for treatment. A strong suspicion was cast upon a boy namely Sunny behind the incident. Based thereupon, an FIR dated 20.09.2013 was registered for the offences under Sections 341, 323, 324, 307 and 302 IPC. After investigation, the appellant was charge-sheeted under the aforesaid provisions whereunder, charges were also framed. After trial, the appellant has been convicted and sentenced, as stated hereinabove.

                  Assailing the impugned judgement, learned counsel for the appellant contended that the findings of the learned trial court are based on conjectures and surmises and there was no legally admissible evidence available on record to warrant his conviction. He submitted that the learned trial court erred in relying upon the testimony of so-called eye witness Anoop Kumar (PW7) ignoring and overlooking that his police statement (Ex.D2) was recorded as late as on 26.09.2013, whereas, the incident was dated 19.09.2013. Elaborating his submission, he argued that the prosecution has miserably failed to offer any explanation for this inordinate delay in recording his statement under Section 161 Cr.P.C. which is fatal to his credibility. He further canvassed that as per his injury report (Ex.P11), the x-ray report (Ex.P20) and the Sonography report (Ex.P19), the injury on his body was found to be simple in nature and therefore, there was no reason for this inordinate delay in recording the police statement.

                  Learned counsel asserted that while holding him guilty, the learned trial court seriously erred in relying upon recovery of a knife-the alleged weapon of offence at his instance. In this regard, inviting the attention of this Court towards the seizure memo of the knife (Ex.P13) as also statement of the Investigating Officer Shri Ganpatram (PW20), he contended that therefrom, it was established that the place of recovery was not under his exclusive possession rather, was accessible to all and sundry. Learned counsel argued that in the aforesaid factual backdrop, he could not have been connected with the alleged offence with the aid of recovery of the knife. He, prayed that the appeal be allowed, the judgement dated 01.04.2017 be quashed and set aside and he may be acquitted of the charges framed against him. Learned counsel relied upon a coordinate bench judgement of this Court dated 16.01.2026 in the case of Mangal Pandit @ Mangal Pandey vs. State of Rajasthan, D.B. Criminal Appeal No.131/2021 and five connected appeals in support of his contentions.

                  Per contra, learned Public Prosecutor opposing the submissions, contended that the learned trial court has held the appellant guilty of the charges levelled against him based on cogent evidence available on record and therefore, the appeal deserves to be dismissed being devoid of merit.

                  Heard. Considered.

                  Vide judgement impugned, the appellant has been held guilty of, inter alia, murder of Naresh. As per the postmortem report of his body (Ex.P15), he has received 7 stab wounds on thoracic and abdominal cavity, i.e., vital part of the body and as per opinion of the Medical Board which conducted the autopsy, cause of death was hemorrhage shock due to lungs injuries which, in the ordinary course of nature, were sufficient to cause death. The autopsy report was duly proved by Dr. Rajeev Kumar Gupta (PW13), a Member of the Medical Board. Nothing has borne out from his cross examination to indicate that the death of Naresh did not occur on account of ante-mortem injuries received by him. On that premise, it is found to be an established case of culpable homicide.

                  The question before us is whether the prosecution has been able to bring home the charge of murder of Naresh against the appellant.

                  In support of its case, the prosecution has relied upon testimony of S/Shri Rahul, Anoop Kumar, Praveen, Ms. Manisha and Ms. Pooja as the eye witnesses of the incident. Amongst them, their star witness is Anoop Kumar (PW7)-an injured eye witness. As per his testimony, in the evening of fateful day, i.e., 19.09.2013 at about 5.30 pm, after purchasing a lock from the Hope Circus, he, along with the deceased Naresh and Rahul went on a motorcycle to Mani-ka-bad where the deceased purchased a book for himself. Thereafter, they went near old RTO where Praveen was already standing and all four of them had “pani ke patase” (golgappa). He stated that in the meanwhile, two girls also came there to have golgappa and since, Rahul knew them, he requested them to become friend with him and the deceased but, they did not respond and went away. Whereafter, they all four left for hostel and in the way, Naresh requested Praveen and Rahul to fetch the book which he inadvertently had left at the golgappa cart. He further deposed that thereafter, when they were proceeding to the hostel, they found both the girls at electricity house near RTO office along with the appellant who, alleging that they had teased the girls, inflicted an injury with a knife on his left thigh and stabbed 5-7 times in the abdomen and chest of Naresh. He stated that in the meanwhile, Praveen and Rahul had also reached the scene of crime whereupon, the appellant fled away. It was alleged that Naresh had died at the spot and initially, he was taken to Solanki Hospital, but, on account of his serious condition, he was shifted to the SMS Hospital, Jaipur.

                  A perusal of his cross-examination reflects that his testimony remained unshattered although, he admitted that some of the averments made in the examination-in-chief were not part of his police statement (Ex.D2) but, we do not find the same to be of such material worth so as to discredit the substance of his testimony reflecting complicity of the appellant in the crime.

                  In the case of Balu Sudam Khalde & Anr. vs. State of Maharashtra-(2023) 13 SCC 365, the Hon’ble Supreme Court has laid down the following legal principles to be kept in mind while appreciating the testimony of an injured eye witness:

                  “26. When the evidence of an injured eyewitness is to be appreciated, the undernoted legal principles enunciated by the courts are required to be kept in mind.

                  26.1    The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

                  26.2    Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

                  26.3    The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

                  26.4    The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

                  26.5    If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

                  26.6    The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.”

                  If the testimony of the injured eye witness in the instant case, i.e., PW7 is tested on the touchstone of the aforesaid legal principles, we find the same to be natural, reliable and free from material contradictions or embellishments so as to discredit the same.

                  Further, his testimony stood corroborated from the deposition of Praveen (PW8). Supporting the deposition made by Anoop Kumar, he has further stated that when he reached to the scene of the crime after fetching the book left by the deceased at the golgappa cart, he saw the appellant inflicting knife blows on the body of the deceased and upon seeing them, he fled away. Although, during his cross-examination, he admitted that he did not inform either the family members of the deceased or the police and his police statement was recorded on 22.09.2013 but, we are of the view that mere non-information to either the family members of the deceased or the police of the incident would not impeach his testimony which otherwise, is found to be creditworthy as well as trustworthy in the attending facts and circumstances. It is trite that every person reacts differently in unexpected and sudden extreme distress situation and nobody can be expected to do exactly in similar fashion a normal prudent human being would have done in identical circumstances.

                  Another prosecution witness Rahul (PW4), although declared hostile inasmuch as he declined to identify the appellant; but, in his deposition, he has corroborated the statement of S/Shri Anoop Kumar and Praveen to the extent that they had gone at the given time on the fateful day to purchase a lock from the Hope Circus Alwar, whereafter, the deceased purchased a book, wherefrom, they came to golgappa cart where Praveen was already standing and they all had the golgappa. He has also stated that in the meanwhile, two girls also reached there to have golgappa and he knew one of them namely; Pooja. He has further stated that he had requested Pooja to talk to Naresh and Anoop. Further, he has corroborated the prosecution evidence that he, along with Praveen, went back to golgappa cart to fetch the book purchased by Naresh, who had inadvertently left it there and when they reached the scene of crime on motorbike, he saw Naresh fallen on the ground with injury to Anoop. Similarly, though the girls, namely, Manisha (PW5) and Pooja (PW6) were declared hostil inasmuch as they had feigned ignorance as to how Naresh died but, in the course of their deposition, they have supported the prosecution case that at about 6.30 pm on 19.09.2013, they had met the deceased and his friends at golgappa cart where they tried to talk to them but, they refused. They have further admitted that two boys namely; Naresh and Anoop came behind them.

                  It may be worthy to notice here that the allegations levelled against the appellant of causing death of Naresh Kumar by stabbing him with the knife 5-7 times on his chest and abdomen as also infliction of a knife injury on the left thigh of injured Anoop Kumar, stood corroborated from the postmortem report of the body of deceased Naresh (Ex.P15) and the injury report of Anoop Kumar (Ex.P11).

                  Therefore, in the conspectus of aforesaid testimony of the injured eye witness namely; Anoop Kumar and other eye witnesses, we are convinced that it was established that the four boys including the deceased met PW5 and PW6 at golgappa cart in the evening of the fateful day, i.e., 19.09.2013 and while, two boys namely; Praveen and Rahul went back to the cart to fetch the book purchased by the deceased Naresh, Naresh and Anoop Kumar went towards the scene of crime. Further, from the testimony of the injured eye witness Anoop Kumar (PW7), the eye witness Praveen (PW8) and the medical evidence, it was also established that while, the appellant inflicted a knife blow on the left thigh of the injured, Anoop Kumar was stabbed 5-7 times on his chest and abdomen resulting into his instant death.

                  In so far as submission of learned counsel for the appellant as to delay in recording police statement of PW7 destroying the probative value of his deposition is concerned, we do not find any force in it. Although, the police statement of Anoop Kumar (PW7) was recorded with delay, i.e., on 26.09.2013 but, we are not persuaded to record a finding that it discredited his entire testimony. From the ocular evidence, as discussed hereinabove as also from the injury report (Ex.P11) and the deposition of Dr. Udai Bhan Yadav (PW18) who has prepared it, it was established that Anoop Kumar had received a stab wound on left thigh near his private part entailing his admission in the hospital. His police statement also reflects that it was recorded while he was under treatment in the City Ward Bed No.11, SMS Hospital, Jaipur and its scribe namely; Shri Banbihari Sharma (PW17), the then ASI at Police Station Aravali Vihar, Alwar, has categorically stated that he recorded this statement at SMS Hospital, Jaipur which was not challenged during his cross-examination. We also notice from the record that the Investigating Officer Shri Ganpat Ram (PW20) was not confronted during his cross-examination as to delay in recording the police statement of the PW7. In the case of State of U.P. vs. Satish-(2005) 3 SCC 114, the Hon’ble Supreme Court has held as under:

                  “18. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination for the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion [See Ranbir and Ors. vs. State of Punjab, AIR (1973) SC 1409, Bodhraj v. State of Jammu and Kashmir, [2002] 8 SCC 45 and Banti v. State of M.P., [2004] 1 SCC 414.]”

                  (Emphasis supplied).

                  Further, in somewhat identical circumstances, their Lordships have, in the case of Ganesh Lal vs. State of Maharashtra-(1992) 3 SCC 106, declined to discredit the testimony of Moti Ram (PW6) who, otherwise, was found to be a natural witness and reliable on the premise that there was delay of nearly two and a half months in recording his statement as the investigation did not proceed in the desired lines initially and only after PW16 took over the investigation, he recorded the statement of the PW6. It was further observed that his presence at the scene of crime was natural, he had no axe to grind against the appellant or any of the members of his family and was an independent witness though, he was a Compounder working with Dr. Chitlange, brother-in-law of PW5, an interested witness. Further, it was categorically held that since, the PW6 was a natural witness, his evidence could not have been doubted due to delay in his statement.

                  In the instant case as well, the presence of the witness Anoop Kumar along with deceased at the time of incident is found to be proved beyond an iota of doubt. It is not the defence case that either he had any enmity with the appellant or that he had any relationship with the deceased. His testimony is otherwise found to be natural and trustworthy and therefore, in the backdrop of the aforesaid precedential law, we have no hesitation to hold that mere delay in recording his Section 161 Cr.P.C. statement would not discredit it.

                  So far as recovery of weapon of offence-the knife at behest of the appellant is concerned, although, the learned trial court has recorded a finding that the prosecution was able to connect him with its recovery; however, we have a different view. As per its seizure memo (Ex.P13), it was recovered from the room rented to the appellant in the residential house of Shri Chedi Lal. However, Shri Ganpat Ram (PW20)- the Investigating Officer has categorically admitted in his cross-examination that the room wherefrom the knife was recovered, was open and in the remaining portion of the subject house, the landlord and his family members were residing. He has also admitted that a possibility could not be denied that the room was accessible to one and all. Further, from the testimony of Shri Hamesh Prakash (PW10), one of the motbir witnesses to the seizure memo, it is not reflected that the subject room was opened by the appellant rather, it was found to be open. From the aforesaid testimony, it is established that the subject room was not under exclusive possession of the appellant and the learned trial court erred in connecting the appellant with the recovered knife. However, in view of the wholly reliable ocular testimony establishing the guilt of the appellant, we are of the considered view  if the prosecution has not been able to establish recovery of the weapon of offence, it would not come to rescue of the appellant. Dealing with an identical situation, it was held by the Hon’ble Supreme Court of India in the case of State through Inspector of Police vs. Laly & Ors.-AIR 2022 SC 5034 as under:

                  “7. xxxxxxxxxxxxxxxxxxxxxxxxxxx Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convictedxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”

Reliance placed by the learned counsel for the appellant on the judgement of this Court in the case of Mangal Pandit (supra) is of no help to him having been rendered in entirely different factual context.

Upshot of the aforesaid discussion is that we find that the learned trial court did not err in returning the finding of guilt of the appellant under Sections 341, 324 and 302 IPC as the prosecution was able to establish the ingredients thereof to the hilt.

Resultantly, the appeal is dismissed being devoid of merit.