JUDGMENT S. K. Kaul, J. 1. FIVE persons; Neeraj (Rama Kant Srivastava) (18), living in Bhoosa Mandi, police circle Aminabad (Lucknow), Kishan Agarwal of Bhoosa Mandi, Irfan, living in Jangliganj, police circle Naka Hindola (Lucknow), Ashok Kumar Sharma of Bhoosa Mandi and Shishir Chand, resident of Khursheed Bagh, police circle Naka Hindola (Lucknow), were tried by the Ilnd Additional Sessions Judge, Lucknow, for various offences. Kishan, Irfan and Ashok were tried for offences under Sections 120-B and 302/34 Penal Code, and in the alternative under Section "302/109 Penal Code ; Shishir was tried for the offence under Section 120-B Penal Code and Neeraj was tried for the offence under Section 120-B Penal Code and Section 302 Penal Code simpliciter for having entered into a conspiracy to murder Ajay Tewari (15) at about 7.35 P. M. in the locality known as Khursheed Bagh. Out of the accused persons only Neeraj has been convicted and sentenced to a term of life imprisonment under Section 302 Penal Code simpliciter and the remaining of the accused were extended the benefit of the doubt and acquitted. The State of Uttar Pradesh directed an appeal against the order acquitting them whereas Neeraj has come up in appeal against his conviction under Section 302 Penal Code 2. THE prosecution story, as it was set out at the trial, was this : Neeraj and Kishan were frequent visitors to Shishir. They used to roam about in Khursheed Bagh and at times they teased girls of the locality. Ajay Tewari resented this. Madhukar Misra (PW 1) had also expressed his indignation over their activity. About a fortnigh prior to this incident, the deceased had remonstrated with them. Shishir then took a defiant attitude and Ajay Tewari gave him a couple of slaps. Thereafter, on one occasion Madhukar Misra also rebuked Shishir about eve teasing. On this occasion Shishir told Madhukar Misra that he had been humiliated by Ajay Tewari also and that he would take revenge for the insult. At that time Shishir was accompanied by Ashok and Neeraj A day before the occurrence there was an exchange of hot words between Neeraj and Shishir on one hand and the deceased and Bishun Murari (PW 7) on the other. Shishir and Neeraj told them that Ajay Tewari should not interfere. Ajay Kumar Singh (PW 5) and others also intervened. At that time Shishir was accompanied by Ashok and Neeraj A day before the occurrence there was an exchange of hot words between Neeraj and Shishir on one hand and the deceased and Bishun Murari (PW 7) on the other. Shishir and Neeraj told them that Ajay Tewari should not interfere. Ajay Kumar Singh (PW 5) and others also intervened. Shishir and Neeraj then went away extending a threat to see Ajay Tewari, the neat day. Ajay Tewari used to go to the Stadium every day to play hockey. On 17th May, 1972, he and his elder brother Sanjay Tewari (PW 4) were returning together on separate cycles from the Stadium. Sanjay stopped in the way and Ajay Tewari rushed to his home. When he arrived in Khursheed Bagh near house No. 22, he saw at about 7 or 7.30 P. M. Madhukar, Vishnu Murari and Pankaj standing and talking there. Ajay joined them. It was about dusk time and one electric pole and two bulbs burning in the nearby were sheding light. At that time the accused except Shishir arrived there and exhorted their companions that Ajay be assaulted. Neeraj whipped out a knife and stabbed Ajay in the right side of his abdomen. Ajay fell down. Thereafter, the four accused ran away uncaught. San jay Tewari, who was coming back home, heard these four saying to Shishir standing by the peepal tree that "the work had been done". The witnesses at the spot then conveyed the information to the mother of Ajay and one B. P. Tewari brought his car and carried Ajay to the Medical College where he was declared dead. 3. MADHUKAR Misra (PW 1), who lived in Khursheed Bagh, went to the police station and dictated the report of the occurrence at 8.15 p. m. Head Constable Jwala Prasad (PW 3) registered a case under Section 307 Penal Code in the general diary. Station Officer Jagdamba Prasad Misra (PW 14), who was present at the police station, rushed to the spot reaching there at 8.50 p. m. He examined fiiskun and Pankaj; he collected blood-stained earth lying on the spot. Station Officer Jagdamba Prasad Misra (PW 14), who was present at the police station, rushed to the spot reaching there at 8.50 p. m. He examined fiiskun and Pankaj; he collected blood-stained earth lying on the spot. He had to stop his further investigation because on receipt of the information about the death of Ajay, he rushed to the Medical College where he performed the inquest on the dead body and in that very night he handed over the dead body to constable Deo Narain (PW 2) for being taken to the mortuary. The descriptive roll and other papers taken by the constable were handed over to the Doctor in the following morning at about 8 a. m. The autopsy on the dead body was performed by Dr. K. K. Singhal, Medical Officer, Mahanagar Dispensary, at 8.00 a. m. on 18th May, 1972. The case had been converted into one under Section 302 IPC. After performing the inquest the Station Officer went back to the spot and recovered the bloodstained earth (Ext. Ka-17). 4. SHISHIR was arrested on 19th May, 1972, and Neeraj on the 20th. Neeraj told him that the blood-stained knife (Ext. 1) had been given by him to Shamim. The Investigation Officer then went to Shamim and at his pointing out he recovered the knife from the house of Shamim and sealed it by the memo (Ext. Ka-18). Irfan was arrested on 21st May and with a veiled face he was sent to jail with due precautions on 22nd May. Ashok surrendered in court on 26th May and was sent to jail with a veiled face. Thereafter, Irfan and Ashok were put up at test identification held under the suprevision of a Magistrate First Class, the identification memo, being Ext. Ka-10. The result of the test identification was that Ashok was correctly identified by Ganga and Irfan was correctly identified by Madhukar Misra and Bishun Murari. The recovered earth was found stained with human blood by the Chemical Examiner and the Serologist, but no human blood was found on the blade of the knife as the blood-stains had become disintegrated. After doing the necessary investigation the charge-sheet (Ext. Ka-25) was submitted against all the accused persons. The autopsy on the dead body revealed the presence of three antemortem injures : (1) Penetrating incised wound 2 cm. x 3/4 cm. After doing the necessary investigation the charge-sheet (Ext. Ka-25) was submitted against all the accused persons. The autopsy on the dead body revealed the presence of three antemortem injures : (1) Penetrating incised wound 2 cm. x 3/4 cm. x chest cavity deep on the right side of chest on the front and upper part; (2) Abrasion 1 cm x 3 cm on the upper outer and back sides of right shoulder ; and (3) Abrasion H cm x I cm on left side of back in the middle and outer side 8 cm below the left armpit. Underneath injury No. (1) the third rib in the lower part was injured and cut through and through and this wound went through the third and fourth ribs upto the lung on the right side which was injured in the front and middle outer parts. According to the Doctor, injury No. (1) was sufficient in the ordinary course of nature to cause death and it was caused by a sharp and pointed weapon, to instance, a knife. 5. THE plea of the accused was of an absolute denial of their guilt. The four acquitted accused asserted their false implication in the crime. Neeraj stated that Madhukar, Pankaj and Bishun Murari used to take betel at a betel shop run by the daughter of Ganga where they used to tease her and other girls. His father had scolded them and threatened a report. They did not, however, produce any evidence in defence. 6. AT the trial, the prosecution examined Madhukar Misra (PW 1), Bishun Murari (PW 7), Bechey Lal (PW 6), a lad of 12, Bishun Murari and Madhukar Misra being the avowed eye-witnesses mentioned in the report dictated by the latter at the police station. Bechey Lal was one of those witnesses, who had been interrogated by the Investigating Officer in that very night. Sanjay (PW 4), the brother of the deceased, was produced to depose that when he was entering Khursheed Bagh and was near the Peepal tree, he saw Neeraj, Kishan and two others, they being Irfan and Ashok coming that way. Shishir was standing near the Peepal tree. Sanjay (PW 4), the brother of the deceased, was produced to depose that when he was entering Khursheed Bagh and was near the Peepal tree, he saw Neeraj, Kishan and two others, they being Irfan and Ashok coming that way. Shishir was standing near the Peepal tree. They told Shishir that "the work has been done " Ajay Kumar Singh (PW 5), a resident of Khursheed Bagh, who was known to Shishir, Neeraj and Kishan from before, stated in his turn that on the evening of 16th some verbal altercation was going on between Ajay Tewari and Bishun Murari on the one side and Kishan and Neeraj on the other. Ajay was objecting to the conduct of Neeraj and Shishir in teasing the girls ; they, however, turned a deaf ear to his protest and instead Neeraj went away with Shishir saying that "it will be seen." Sanjay Tewari (PW 4) and Ajay Kumar Singh (PW 5) were examined by the prosecution to support their claim that the accused persons had come there in pursuance of a conspiracy and in the course of the conspiracy the fatal blow was caused to Ajay who had given no provocation, whatsoever. The trial court upon an appraisal of the evidence returned a finding of not guilty against the accused persons other than Neeraj holding that Kishan was not a privy to the crime ; the evidence was discrepant whether they surrounded Ajay with others or exhorted Neeraj to assault him, it being in evidence that Neeraj had suddenly whipped out a knife from his pocket and gave the blow. The evidence about the alleged presence of Irfan and Ashok and the existence of any conspiracy, to which they were parties with Shishir and Neeraj, was not found trustworthy. The evidence adduced in that behalf, as analysed by the trial court," did not carry the case to a degree of proof beyond reasonable doubt. On the finding, therefore, that Neeraj inflicted the fatal blow, he alone was convicted and sentenced in the terms stated in the above. 7. THE State of Uttar Pradesh sought for leave to appeal under Section 378 (3) CrPC in respect of the acquitted persons. The leave was given against Kishan, Irfan and Ashok, but it was refused against Shishir. 8. 7. THE State of Uttar Pradesh sought for leave to appeal under Section 378 (3) CrPC in respect of the acquitted persons. The leave was given against Kishan, Irfan and Ashok, but it was refused against Shishir. 8. COUNSEL appearing on behalf of Neeraj has assailed the correctness of the finding of guilty upon a variety of [grounds. Whereas the Government Advocate has contended that the finding of the trial court culminating in the acquittal of the various accused persons has been improperly arrived at and the triad court has in arriving that finding not given due weight to the evidence, in the light of the probabilities of the case. We shall dispose of these contentions in seriatim. 9. TO turn to the submission canvassed by the learned counsel appearing on behalf of Neeraj, an endeavour has at the out set been made to persuade the Court to hold that the F. I. R. lodged by Madhukar Misra PW I at 8.15 p. m. was ante-times, it having been prepared in consultation with the investigating officer, after he had visited the locality, that night. TO the head constable Jwala Prasad PW 3, it was suggested that the report was entered at the (police station, at sometime after 8.15 p. m., and to Madhukar Misra it was told that it was dictated sometime after 9 p. m. Notwithstanding these varying suggestions, we have to see whether such a contention could on the facts of the present, be sustained. We are unable to agree with the submission. TO begin with, the occurrence was registered as an offence under Section 307 IPC and it was only on the receipt of the information of death that it was altered to an offence under Section 302 IPC. The investigating officer had already left for the scene of occurrence at 8.50 p. m. soon after the information was lodged by Madhukar Misra. There is nothing in evidence to show that the police at P. S. Naka Hindola was in any way inimical to the accused persons or any of them, and even the dead body having been sent to the mortuary that very night, in the custody of the police constable, it is too much to say that the General Diary at the police station was fabricated in order to bolster up a false case against the accused persons. The internal evidence furnished from the F. I. R. itself, further and to a very large degree, negatives the contention. In the F. I. R. the proximate motive of the occurrence, the verbal altercation, as is now told by Ajai Kumar Singh PW 4, which took place on the previous day between the deceased on one side and Neeraj and Shishir on the other, and in the course of which Neeraj had held out a threat to the deceased, does not find place. Likewise, the dying declaration alleged to have been made by the deceased to his brother Sanjay Tewari PW 4, when he reached there soon after the occurrence, and where Madhukar Misra (PW 1) and Bishun Murari PW 7 were also present, is conspicuously absent from the F. I. R. Sanjay Tewari claims to have seen Neeraj, Kishan, Irfan and Ashok running from, the place of occurrence and Shishir standing under the nearby Bargad tree, telling them "the work has been done," but this circumstance which the prosecution subsequently brought in at the trial to prove the complicity of Irfan, Kishan and Ashok in the crime, does not find a place in the F. I. R. although by the time Madhukar Misra had left: for the police station, Sanjay Tewari had arrived at the spot. According to Madhukar Misra PW 1, Bishun, Pankaj and others had chased the miscreants, but the F. I. R. omits to state that fact. Further, according to Madhukar Misra, as he now tells at the trial, all those who accompanied Neeraj, exhorted him to assault Ajai, whereupon Neeraj whipped out a knife and gave a blow at the abdomen of the deceased. In the F. I. R. the part assigned to these persons was that they surrounded the deceased; it was not stated that they instigated Neeraj to beat the deceased. That there was any talk between Madhukar Misra and Ajai about the indecent behaviour of Shishir, Kishan and Neeraj and that Madhukar Misra had advised Shishir not to tease the girls in the presence of Neeraj and Kishan, the report does not mention. That there was any talk between Madhukar Misra and Ajai about the indecent behaviour of Shishir, Kishan and Neeraj and that Madhukar Misra had advised Shishir not to tease the girls in the presence of Neeraj and Kishan, the report does not mention. Further according to the prosecution story, Bishun Murari PW 7 had wielded his hotkey stick upon the assailants, perhaps to assure his presence at the spot, was not given out in the F. I. R. Bachchey Lal PW 6, examined the next day by the Investigating Officer, has deposed to the occurrence. He knew the assailant and his companions from before. He deposed to the place of occurrence, as also to what happened after the escape of the culprits, but his name does not find mention in the report. Obviously, had the report been prepared after close deliberation and in consultation with the investigating officer, some of the facts which were material, would not have been found missing from it. Cumulatively considered all these circumstances, in our opinion, warrant us to infer that the report was lodged by Madhukar Misra PW 1 at 8.15 p. m. that night. We may note that the accused have brought out nothing from which it could follow that the informant was deposing falsely due to some ill will or oblique motive. This disposes of the first submission. 10. COUNSEL has next assailed the testimony of Madhukar Misra PW 1 and Bishun Murari PW 7 and in this connection he has laid particular emphasis on what he maintains that there was absence of motive for the accused persons to murder the deceased. It appears from the evidence that Kishan, Neeraj, Shishir, Ashok and Ajai were students receiving education in various institutions of the city. Kishan, Shishir and Ajai were living in Khursheed Bagh ; Neeraj used to come off and on to meet Shishir. The eve teasing, as it appears from the evidence, was being indulged in by all of them. Evidence would also have it, as told by Bishun Murari PW 7 that Shishir had been reprimanded for his conduct by Ajai as well a few days before the occurrence. The verbal altercation and the protest made by the deceased may not have furnished a ground to avenge, but at the same time when direct evidence has been led, the adequacy or inadequacy of motive recedes to the background. The verbal altercation and the protest made by the deceased may not have furnished a ground to avenge, but at the same time when direct evidence has been led, the adequacy or inadequacy of motive recedes to the background. We have, therefore, to advert to the ocular testimony and, in our opinion, it does not suffer from any such infirmity as may render their presence doubtful on the spot. It may be that persons living in the close vicinity of the place of incident were not examined, but Madhukar Misra and Bishun Murari reside in this very locality, one at a distance of 125 paces and another at a distance of 80 paces from the place of incident. The law looks to the quality of the evidence. It is not necessary for the prosecution to multiply witnesses. We have to see whether the evidence, led at the trial, is in accord with the probabilities of the case and is cogent and reliable. The two witnesses, were not interested witnesses ; they did not bear any prejudicial bias to the accused persons or any of them. The F. I. R. made by Madhukar Misra, soon after the occurrence, discloses the presence of Bishun Murari at the spot, when the occurrence had taken place. The F.I.R. having been lodged without any inordinate delay it being free from the taint of deliberation or fabrication, it affords to the prosecution a strong corroboration. Counsel has urged, on the basis of some admissions made by Ajai Kumar Singh PW 5, that the identity of the assailants was not known to the members of the family of the deceased and to others who had collected at his house Soon after the occurrence. It is, therefore, urged that Neeraj had been falsely named We find considerable difficulty in agreeing with the contention. On the contrary, there are indications in the testimony of Ajay Kumar Singh from which it is demonstrably clear that he had been won over by the accused persons. He was not an eye witness to the assault. In cross-examination he said : "I had heard about the murder of Ajai when I went to his house in that very night. He was not an eye witness to the assault. In cross-examination he said : "I had heard about the murder of Ajai when I went to his house in that very night. There Madhukar Misra, Pankaj and Bishun Murari were also present ; they were talking there that it should be found out as to who had committed the murder." In the examination-in-chief, he had claimed to have known Neeraj, Kishan and Shishir from before, but in the cross-examination on behalf of some of the accused he said that he did not know other companions of Shishir. When the D, G. C. cross-examined him, he was constrained to admit that he knew Neeraj and Kishan from before. When further cross-examined, the witness said that he had learnt about the murder of Ajai from Ranbir when he returned at 8.30 p. m., but he acknowledges that he did not enquire from Ranbir or from others, who met him there as to the identity of the assailants. He went to the house of the deceased, but he did not care to find out as to how the occurrence took place and at what hour. Madhukar Misra as we have already held in the above, had already left for the police station to lodge the report and B. P. Tewari had taken the injured to the Medical College for medical examination and treatment. It does not stand to belief that Madhukar Misra was there at the house of the injured when the witness claims to have gone there. It is also quite strange that the witness does not go to the place of occurrence in that night. That the accused persons had, in the present made an effort to tamper with the prosecution evidence, is again manifestly clear from the evidence of Bachchey Lal PW 6. The Trial court has made a note at the end of his deposition that the witness had after lunch interval been crying and informed the court that he had been threatened by Neeraj. In this background, there is no justification for us to disbelieve the ocular testimony. 11. COUNSEL had also mentioned that it was all dark and, therefore, the assailants could not have been identified at the spot. In this background, there is no justification for us to disbelieve the ocular testimony. 11. COUNSEL had also mentioned that it was all dark and, therefore, the assailants could not have been identified at the spot. The site-plan and the evidence adduced at the trial shows that there were two electric bulbs-one at a distance of 29 paces from the place of occurrence and another at a distance of 30 paces from the place of occurrence and that bulbs were also there in the adjoining houses. Madhukar Misra PW 1 stated that bulbs burning on the electric poles were giving light. Bachchey Lal PW 6 has said that the electric bulbs were not burning and that it was dark. He also said that the sun was about to set. Neeraj and Kishan were known to Madhukar Misra and Bishun Murari; they were also known to Ajai. When they came and as Madhukar Misra has stated in his examination-in-chief, the verbal altercation ensued between them, even if there was darkness, they could have been identified by their features, gait and voice. Moreover, as told by Bishun Murari, it was not pitch dark. In the dusk, near about the sun set, it was, not difficult to identity the culprits even if it were assumed that the electric bulbs were not burning. It was thus not a case of mistaken identity or of those who saw the crime drawing upon their imagination in identifying the assailants. This disposes of the third submission. 12. COUNSEL has next urged that the: eye witnesses have falsely implicated] Kishan, Ashok and Irfan and, therefore,, no reliance should have been placed upon their evidence. Falsus in una Falsus in omnibus is not a sound rule; for the reason that hardly one comes across a witness, whose evidence does not contain a grain of untruth or at any rate embroidery or embellishment. But, from this it cannot be inferred that their evidence is to the salient features of the case, after cautious and skilful scrutiny, should not be considered. See Sohrab v. The State of Madhya Pradesh, AIR 1972 SO 2020. It may also be mentioned here that minor variance in the statements of the witnesses cannot dislodge the prosecution story. But, from this it cannot be inferred that their evidence is to the salient features of the case, after cautious and skilful scrutiny, should not be considered. See Sohrab v. The State of Madhya Pradesh, AIR 1972 SO 2020. It may also be mentioned here that minor variance in the statements of the witnesses cannot dislodge the prosecution story. See Sheo Darshan v. State of U.P., AIR 1971 SC 1794 There is, in our opinion, credible and convincing evidence that it was Neeraj who caused on the person of the victim, an injury which eventually took away his life. It is true that the knife, recovered on the information of the accused, has not been proved to be stained with human blood, the discovery has no substance. The recovery of the weapon of offence is only a corroborative piece of evidence. If such corroboration is lacking, it would not affect the credibility of eye witnesses. Lastly, learned counsel submitted that the accused should not have been convicted under Section 302 IPC. The Government Advocate, on the other hand, urged that in the face of precise medical evidence that abdominal injury was sufficient to have caused death, the case falls within the mischief of Section 302 IPC. 13. COUNSEL for Neeraj has invited us to para 28 of the deposition of PW 1 Madhukar Misra where it was stated by PW 1 that the assault was perpetrated about 10 minutes after the arrival of the accused persons and in the interval verbal altercation, with noise, was going on between them. It is also the common ground that the deceased was returning to his house from the Stadium where he used to go to play hockey and that before his arrival, at the place where Madhukar Misra and others were talking together, none of the accused has been sighted. On the basis of this evidence, learned counsel has sought to bring the case within Exception I to Section 300 IPC. Under this Exception, culpable homicide is not murder if the offender causes death of the person who gave the provocation or of any other person by mistake or accident provided the provocation was grave and sudden and by reason of the said provocation the offender was deprived of his power of self control and the offence was committed during the continuance of deprivation of the power of self-control. But, in our opinion, the case is not covered by the Exception. Hard words or abusive epithets by themselves break no bones. The quarrel between the deceased and the assailant was not such, as could have prompted the accused to make a homicidal attack upon Ajai. It may be that some abuses might have been exchanged, as is common, but the abuses were not such as to deprive the assailant of the power of self-control by grave and sudden provocation. Therefore, the question is whether the offence can be said to be covered by clause Thirdly of Section 300 Indian Penal Code. 14. THE Supreme Court in Virsa Singh v. State of Punjab, AIR 1958 SO 465 has laid down the following tests before a case can be brought under Section 300 Thirdly :- "First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved ; these are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Fourthly, it must be proved that the injury of the type just described made up of the three elements "set out above is sufficient to cause death in the ordinary course of nature." This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." In Rajwant Singh v. State of Kerala, AIR 1966 SC 1874 Hidayatullah, J. (as he then was) quoted with approval the observations of the Court in Anda v. State of Rajasthan, AIR 1966 SO 148 at page 151 wherein it was stated "the emphasis in clause Thirdly is on the sufficient of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensuses and if the causing of the injury is intended, the offence is murder'' In Harjinder Singh v. Delhi Administration, AIR 1968 SC 867 , it was emphasised that the intention of the assailant to inflict the particular injury on the particular place has to be found for the application of clause 'Thirdly' of Section 300 IPC to the act of the accused. Following the law laid down in the above, the evidence indicates that the injury was inflicted on a vital part of the body ; it was sufficient in the ordinary course of nature to cause death. The evidence also indicates that verbal altercation ensued between the deceased and in the course of that verbal altercation Neeraj took out a knife and gave one blow to the deceased. No second blow was given to the victim of the crime. It is also not proved that they had come together in furtherance of a common intention to kill the deceased in order to pay off old scores. When the blow was given in the course of a verbal altercation which had generated heat, it cannot be said with any definiteness that Neeraj gave a blow at the particular part knowing that it would pierce the abdomen. In these circumstances, it cannot be said that it has been proved that it was the intention of Neeraj to inflict the particular injury. The evidence does not rule out the possibility of an accidental blow being given in the heat of the moment. It is, therefore, not possible to apply Clause 'Thirdly' of Section 300 to the act of the accused. But, at the same time when the appellant struck the deceased with a knife he must have known that the blow dealt on a vulnerable part of a human body, was likely to result in his death. In these circumstances, it would be quite legitimate to hold that he struck the deceased with the knife with the intention to cause an injury likely to cause death. We are, therefore, of the opinion, that the offence falls under Section 304, Part I, Indian Penal Code. With this modification the finding of guilt against Neeraj is sustained. 15. NOW, as to other appellants, the evidence falls short of proving their actual complicity in the crime or their being in any manner accessory to it. In the F.I.R. it was stated that they came abusing and surrounded the deceased. At the trial Madhukar Misra tried to improve the case by saying that they asked their companions to kill the deceased whereupon the knife blow was given by Neeraj. The development introduced at the trial has been stated in order to be merely rejected. In the F.I.R. it was stated that they came abusing and surrounded the deceased. At the trial Madhukar Misra tried to improve the case by saying that they asked their companions to kill the deceased whereupon the knife blow was given by Neeraj. The development introduced at the trial has been stated in order to be merely rejected. That to Shishir, the escaping culprits told "the work has been done" in the hearing of Sanjay Tewari PW 4, does not find a place in the F. I. R. although he had turned up to the spot before Madhukar Misra had left for the police station. Ashok and Irfan, the two unknown men, were put up at the parade, but Sanjay Tewari was not sent to the jail parade to identify them, although he says that he had seen them returning with Neeraj near the Peepal tree where Shishir had been waiting. It may be that they came together, but there is nothing to show that they had hatched any conspiracy. No overt act of theirs has been proved. The presence of Ashok and Irfan has been rendered doubtful. Madhukar Misra pointed out Ashok in the court as having been of the culprits at the spot, but at the identification parade he failed to identify Ashok. Bishun Murari PiV 7 did not identify Ashok either in the court or in the test parade. Bachchey Lal knew him from before but he did not name Ashok in his statement to the Investigating Officer. If he was known, Bachchey Lal would not have been sent up for his identification at the test parade. Irfan was know to Bachchey Lal, but even he was sent for identification in jail and there he failed to pick out Irfan. Madhukar Misra and Bishun Murari identified him both in the parade and in the court, but Madhukar Misra made one mistake in the parade of Ashok held about the same time and the same date. Moreover, according to Sanjay Tewari, the day following the incident, Irfan was brought by the police at the spot. Irfan has stated that he was arrested and taken to the spot and shown to the witnesses. If that was so, the identification evidence loses all its value. Kishan shares his house with Neeraj. Moreover, according to Sanjay Tewari, the day following the incident, Irfan was brought by the police at the spot. Irfan has stated that he was arrested and taken to the spot and shown to the witnesses. If that was so, the identification evidence loses all its value. Kishan shares his house with Neeraj. He may have accompanied Neeraj, but that circumstance alone will not warrant us to hold that he shared the common intention. It being not in evidence that he instigated Neeraj to kill the deceased or to assault him, it cannot be said that any such common intention was formed at the spot before the attack was made by Neeraj. It is in evidence that Neeraj had suddenly whipped out a knife from his pocket and given the blow. There is nothing to show that any accused, other than Neeraj, was in possession of the knife. In these circumstances, Kishan cannot be held vicariously liable, for the act done by Neeraj. Considered in that manner, the trial court was perfectly correct in construing these variations in the evidence in favour of the accused who have been acquitted. The finding of not guilty arrives at against them, is neither unreasonable nor has been improperly arrived at. 16. COUNSEL for the appellant Neeraj has contended that since the appellant was on the date of the initiation of the proceedings against him and at the time of his arrest a child under the age of 16 years, the benefit of the Children Act, 1952, should be extended to him. Section 75 of the Children Act provides that a person shall be deemed to be a child if, at the time of the initiation of any proceedings against him under the Act or at the time of his arrest in connection with which any proceedings are initiated against him under the Act, such person has not attained the age specified in clause (4) of Section 2. At no stage of the trial the accused claimed the benefit of the Children Act. The charge-sheet for his prosecution was submitted on 14th August, 1972. He was arrested on 20th May, 1972. In the committal court he disclosed his age as 17 years. At no stage of the trial the accused claimed the benefit of the Children Act. The charge-sheet for his prosecution was submitted on 14th August, 1972. He was arrested on 20th May, 1972. In the committal court he disclosed his age as 17 years. The statement in the committal court was recorded on 10th October, 1972 and the date of arrest being 20th May, it inevitably follows that on that date the appellant was over 16 years of age. In the court of Sessions he disclosed his age in the (statement made by him on 2nd December, 1974, as being about 18 years and six months. But the statement made in the court of Sessions as regards the age cannot be accepted at its face value because when the statement in the committal court was read to the accused and which had stated his age as 17 years, the accused did not deny the correctness of that part of his statement. Unless the appellant had put material before the Court to show that he was under 16 years of age at the relevent time for the purposes of Section 75 of the Act and when there was the statement of his in the committal court which goes to prove that his age was more then 16 years at the relevant time, we find ourselves unable to extend the benefit of the Act to him. For the discussion in the above the appeal preferred by the State of Uttar Pradesh is dismissed; the order acquitting Kishan Agarwal, Irfan and Ashok Kumar Sharma is maintained. They are on bail. They need not surrender to their bail. Their bail bonds are cancelled and sureties discharged. 17. NEERAJ (Rama Kant Srivastava) is convicted and sentenced to a term of seven years' rigorous imprisonment under Section 304, Part I, Penal Code. His conviction and sentence under Section 302, Penal Code, is set aside. He is on bail. He is to surrender to his bail and serve out the unexpired portion of his sentence. The Chief Judicial Magistrate, Lucknow, shall send compliance report within 6 weeks. 18. WITH this modification his appeal is dismissed. Appeal dismissed.