JUDGMENT P.S. Shah and V.V. Vaze, JJ. - Criminal Appeal No. 947 of 1980 has been preferred by the original accused No.2 Shashikant Babu Dinkar Surve against his conviction under Section 302 read with Section 34 and under Section 307 read with Section 34 of the Indian Penal Code. For the offence under Section 302 read with Section 34 of the Indian Penal Code he has been sentenced to imprisonment for life and for that under Section 307 read with Section 34 he has been sentenced to rigorous imprisonment for seven years. Criminal Appeal No. 873 of 1982 has been filed by the original accused No.1 Kishor Parashuram Sawant against his conviction under Section 302 and 307 of the Indian Penal Code. For both the offences he has been sentenced to imprisonment for life. Both the accused were jointly tried for the aforesaid offences in the Sessions Court, Bombay, on the allegation that on or about July 10, 1979, at about 7 p.m. near Shirin Talkies, Jacob Circle, Bombay, in furtherance of their common intention of both the accused caused the death of Suryakant Sakpal by stabbing him with a knife and attempting to commit the murder of P.W. 3 Ramakant Kharangati. The trial proceeded before the Addl. Sessions Judge, Shri Jalisadgi, and the prosecution examined eleven witnesses. Both the accused were in custody. However, accused No.1 escaped from the custody on or about April 2, 1980, and as the presence of this accused could not be secured, the trial of accused No.2 was separated and proceeded further. The prosecution produced further witnesses in support of its case. Accused No.2 who was examined under Section 313 of the Code of Criminal Procedure also produced evidence of two witnesses in his defence. The learned trial judge by his judgment and order dated August 30, 1980 found the accused guilty and sentenced him as above. Criminal Appeal No. 947 of 1980 is directed against the said order of conviction of accused No.2. Thereafter, accused No.1. who was arrested by the police some time before the end of 1980 was produced before the Court. The trial against the said accused was commenced before the Addl. Sessions Judge Shri Desai. Criminal Appeal No. 947 of 1980 is directed against the said order of conviction of accused No.2. Thereafter, accused No.1. who was arrested by the police some time before the end of 1980 was produced before the Court. The trial against the said accused was commenced before the Addl. Sessions Judge Shri Desai. Apart from the evidence of 11 witnesses, which was already recorded in the presence of the accused before he absconded, the prosecution examined five more witnesses and the evidence of two witnesses was taken on record under Section 299 of the Code of Criminal Procedure. The accused was examined under Section 313 of the Code of Criminal Procedure. Unlike accused No.2, he did not produce any witness in his defence. On a consideration of the evidence and material produced, the learned judge found accused No. 1 guilty as above, by his Judgment and order dated October 26, 1982. This order of conviction is challenged by accused No. 1 in Criminal Appeal No. 873 of 1982. 2. We heard Mrs. Bhonsale for accused No.1 and Mr. Rane for accused No.2. We also heard Mrs. Keluskar, the learned Public Prosecutor, for the State. Evidence in both the cases is common. Both the appeals arise out of the same incident and as a matter of fact there would have been occasion for a separate judgment in the trial court but for the fact that accused No. 1 absconded while the trial was going on. The material evidence against both the accused is the same. The material witnesses were examined before accused No. 1 escaped from custody and absconded. In the circumstances, both the appeals can be disposed of by common judgment. 3. The facts leading to the prosecution are these. P.W. 4 Sadanand Sahadeo Sakpal is the brother of the deceased Suryakant Sahadeo Sakpal. Both of them were residing jointly in a tenement in Chawl No. 58 at World, Bombay, known as B.D.D. Chawls. Accused No.1 is residing in Chawl No. 33 while accused No.2 is residing in Chawl No. 32 in the same area and known as also B.D.D. Chawls. The relations between the residents of Chawl Nos. 32 and 33 on the one hand and the residents of Chawl No. 58 had become strained since a few years prior to the incident on account of dispute regarding the contribution to be paid for the celebration of Navaratri festival. The relations between the residents of Chawl Nos. 32 and 33 on the one hand and the residents of Chawl No. 58 had become strained since a few years prior to the incident on account of dispute regarding the contribution to be paid for the celebration of Navaratri festival. Quarrels used to take place between the residents of the said Chawls every year on that account. A couple of days prior to the incident, i.e., on July 8, 1979, there was an incident of maramari between some of the residents of Chawl No. 58 on one hand and some residents of Chawl Nos. 32 and 33 on the other. In that incident amongst others, accused No.2 was also injured. In connection with that the incident P.W. 4 Sadanand Sakpal and P.W. 5 Narendra Surve were arrested on July 9, 1979, and were produced before the Metropolitan Magistrate, Dadar, on July 10, 1979, when they were remanded to the police custody for seven days. While he was in the Magistrate Court P.W.4 Sadanand Sakpal had told his brother deceased Suryakant to bring him food and clothes. Apart from P.W. 4 Sadanand P.W. 5 Narendra was also remanded to police custody and both of them were kept at the Divisional Police lock-up at Jacob Circle. It is the prosecution case that at about 5 p.m. in the evening deceased Suryakant approached P.W. 3 Ramakant Kharangati and requested him to accompany him to the police lock-up as he was taking food and clothes for his brother who was detained there. Then both Suryakant and Ramakant along with a satchel containing food and clothes went to the police station at Worli and obtained permission for delivery of food to P.W. 4 Sadanand in the lock-up at Jacob Circle. Then both Suryakant and Ramakant went to the lock-up at about 6 p.m. It is alleged that P.W. 4 Suryakant and P.W. 5 Narendra had at about that time seen both the accused entering into the compound of the lock-up through the main gate on a scooter and looking around for a few seconds and going away. They had again seen both of them there in the compound for a short while after about 10 minutes and proceeding towards Jacob Circle. They had again seen both of them there in the compound for a short while after about 10 minutes and proceeding towards Jacob Circle. Soon thereafter at about 6.30 p.m. Suryakant and Ramakant came to the lock up and handed over the memo of permission to P.W. H C. Salunke who was then in. charge of the lock-up and with his permission the tiffin carrier and the clothes were delivered to P.W. 4 Sadanand through P.C. Borate. At that time P.W. 4 Sadanand told Suryakant to come after some time for collecting the tiffin carrier as it would take some time for him to eat the food. Suryakant and Ramakant then went away saying that they would come back after some time. After leaving the lock-up, Remakant and Suryakant went towards Shirin Talkies which is in the vicinity of the lock-up. After easing themselves they were walking on the foot path for going back towards the lock-up. It is alleged that when both of them so walking on the pavement near the pan shop at about 7 p.m. the two accused came in front of them. Accused No.2 said to them in Marathi 'Aata Kuthe Janar'? (i.e., how wi1l you escape now?). At that very time accused No. 1 immediately started stabbing Suryakant with a knife. While being assaulted with knife Suryakant started running towards the lockup along the foot-path. In the meanwhile, accused No.2 caught hold of P.W. 3 Ramakant by standing behind him and then accused No. 1 stabbed him with a knife on the right side of his chest. Ramakant shouted for help and then both the accused ran away from the spot. Then Ramakant started walking along the foot-path towards the lock-up keeping his hands on the stabbed wound. As soon as he approached the main gate of the compound of the lock-up he noticed that his companion Suryakant was lying on the road near the compound. He proceeded towards the lock-up Sadanand was then inside the lock-up near the wire meshing. By standing outside near the wire meshing, he told Sadanand that both the accused had stabbed him and Suryakant with knife. The two policemen, H.C. Salunke and P.C. Borate, were present at the lock-up. P.C. Borate then brought a taxi and carried Ramakant to Nair Hospital for treatment. By standing outside near the wire meshing, he told Sadanand that both the accused had stabbed him and Suryakant with knife. The two policemen, H.C. Salunke and P.C. Borate, were present at the lock-up. P.C. Borate then brought a taxi and carried Ramakant to Nair Hospital for treatment. H.C. Salunke went to the spot where Suryakant was lying on the road and found him dead in a pool of blood. He then immediately proceeded to the Home Guard Office located in the same compound and sent a telephonic message to Agripada Police Station. The message was recorded at 7.20.p.m. at Entry No. 31 in the station diary register. "H.C. 1213/D informed on telephone that one Ramakant Mahadeo Karangate came running to lock-up at Jacob Circle informing that he and Suryakant Sakpal stabbed by two persons namely Kishore Sawant and Babu Surve and the injured Suryakant was lying dead on the road in front of Jacob Circle lock up gate and traffic was jammed." 4. After recording this entry. S.I. Jadhav along with a police constable proceeded to the Jacob Circle lock-up which is about a couple of furlongs from the police station and reached there by about 7.25 p.m. He then contacted H.C. Salunke and recorded his First Information Report. By that time the other police officers of the Agripada Police Station, viz. S.I. Khan who was detection officer attached to Agripada Police Station and Inspector Baware and others also came to the scene of offence. After recording the First Information Report the investigation of the case was commenced by S.I. Jadhav. The panchanama of the scene of offence and the dead body was recorded. The blood-stained clothes on the person of the deceased and other articles belonging to him were seized. Blood stained were noticed in front of the pan shop as well as at some distance towards the lock-up. The satchel in which he had carried the tiffin carrier which was found somewhere with blood was also seized. The dead body was sent for post-mortem examination. The evidence of P. W. 8 Dr. Kapse who conducted the post-mortem examination shows that there were 13 external injuries out of which 10 were incised wounds. The satchel in which he had carried the tiffin carrier which was found somewhere with blood was also seized. The dead body was sent for post-mortem examination. The evidence of P. W. 8 Dr. Kapse who conducted the post-mortem examination shows that there were 13 external injuries out of which 10 were incised wounds. He gave his opinion that the death was due to haemorrhage and shock as the result of the stab wound on the neck which was external injury No. 13 and internal injury No.2 involving major blood vessels. According to him, external injury No. 13 with the corresponding internal injury No.2 necessarily fatal. P.W. 3 Ramakant was admitted to Nair Hospital at about 7.50 p.m. P.W.9 Shilotri examined the injured Ramakant. He noticed an incised wound 1” X ½” in the right 5th inter costal space in the anterior auxiliary line which had gone deep and had reached the pleural cavity. Entry of air on that side was diminished or reduced. On x-ray examination, it was found that there was collapse of right lung with peoumothorax and homothorax on account of collection of blood and air in the pleural cavity and also there was collapse of left lung due to haemo-peoumothorax. Ramakant was conscious and at about midnight his statement was recorded by S.I. Khan after ascertaining from Dr. Shilotri and the patient was in a position to give statement. On July 15, 1979, both the accused came to be arrested. A knife was discovered at the instance of accused No. 1. However, it is not necessary to give the details of the discovery since the trial Judge has not believed the evidence in that behalf. After the investigation was completed, charge-sheet against both the accused was submitted by the police, and they were tried for the offences in question as mentioned above. 5. The prosecution case against the accused rests on the single eye witness, P.W.3 Ramakant. He has fully supported the prosecution story against the accused. He has described the main incident in the following words: "After easing we were walking on the foot-path for going towards the lockup. When we came on the pavement near the pan shop we saw the accused No.1 Kishore Sawant, and accused No.2 Babu Surve. They came in front of me and Suryakant. Babu Surve addressed to us in Marathi and asked us How will you escape now? When we came on the pavement near the pan shop we saw the accused No.1 Kishore Sawant, and accused No.2 Babu Surve. They came in front of me and Suryakant. Babu Surve addressed to us in Marathi and asked us How will you escape now? (Aata Kuthe Janar?)". When Babu Surve said so, the accused No. 1 Kishore Sawant immediately started stabbing Suryakant with a knife. While being assaulted with knife Suryakant started running towards the lock-up, along the foot-path. I was frightened on seeing Suryakant being stabbed. In the meantime, Babu Surve caught hold of me by standing behind me and accused No. 1 Kishore assaulted me and stabbed me with knife on the right side of my chest. He gave me only one blow with knife." 6. It was urged by the learned counsel for the accused that bearing in mind the fact that there is enmity on account of the disputes between the residents of Chawl No. 58 on one hand and Chawl Nos. 32 and 33 on the other, the evidence of this witness who was admittedly friendly with the deceased should not be accepted without corroboration. Apart from pointing out some of the discrepancies in the evidence, it was urged that the prosecution has failed to examine other independent witnesses who must have witnessed the incident which took place on a public road and there was considerable traffic at the time of the incident. It is well-known that in a city like Bombay the witnesses even if they are eye witnesses do not come forward to give evidence. There if nothing to show that the prosecution has deliberately withheld the witnesses who knew about the occurrence. The real question is whether the testimony of 'Ramakant is reliable. In the first place the presence of Ramakant at the time of the incident cannot be doubted since he himself was a victim of the assault. The telephonic message received by the police station within a short time after the occurrence clearly refers to Ramakant having informed the police at the lock-up about Suryakant and he himself having been stabbed by the two accused. The information has been lodged without any loss of time or without any pre-meditation. The telephonic message received by the police station within a short time after the occurrence clearly refers to Ramakant having informed the police at the lock-up about Suryakant and he himself having been stabbed by the two accused. The information has been lodged without any loss of time or without any pre-meditation. The information is almost simultaneous to the occurrence and is recorded in the station diary book of the police station at 7.20 p.m. There is no reason to doubt the genuineness of the information contained in the entry. The entry establishes that Ramakant was present at the scene of offence, that both himself and Suryakant were stabbed by two known persons, viz., the two accused. Under the circumstances, we see no reason to reject the testimony of Ramakant merely because he, happened to be a single eye witness and was a friend of the deceased and the accused belonged to the opposite camp. It is improbable that Ramakant who himself was seriously injured would have thought of fabricating a false information or falsely implicating any of the accused persons and let off the real culprits. Moreover, the evidence shows that his statement was recorded on that very night. It is true that Ramakant has stated in his cross-examination that his statement was recorded at about 11.30 a.m. in the next day. However, looking to his deposition as a whole we find he is unable to correctly remember the time when his statement was recorded. S.I. Khan has stated that his statement was recorded at midnight after consulting Dr. Shilotri. Dr. Shilotri has corroborated S.L Khan on this question. There is no reason to reject the evidence of Dr. Shilotri on this aspect. Dr. Shilotri's evidence shows that the statement was recorded after a minor operation was performed for the purpose of draining blood and air collected in the chest which operation was carried out at 12.30 a.m. It is true that the learned trial judge has not accepted the prosecution case of the accused having come on a scooter to the lock-up prior to the incident. However, that by itself would not be a reason for rejecting the evidence of Ramakant who has implicated both the accused as the assailants. Undoubtedly, the learned counsel pointed out some contradictions in the evidence of Ramakant with reference to his police statement. However, that by itself would not be a reason for rejecting the evidence of Ramakant who has implicated both the accused as the assailants. Undoubtedly, the learned counsel pointed out some contradictions in the evidence of Ramakant with reference to his police statement. We find that the contradictions are minor and do not affect the credibility of the witness on the material aspects of the case as to the involvement of the two accused. It was urged that the message recorded in the station diary attributes to stabbing by both the accused while in his evidence Ramakant has clearly stated that it was only accused No. 1 who stabbed both Ramakant and Suryakant. Now, we must bear in mind that the information was given by a seriously wounded person and was passed on hurriedly to the police station. In a situation like this one cannot expect a detailed information being given. We do not think that the story given by Ramakant in his evidence about the incident is inconsistent with the information given by him to the police. 10-11-1983 7. Ramakant's statement was recorded by the police on that very night. The defence was unable to bring on record any material contradiction so far as the main incident is concerned with reference to his police statement. The circumstances that Ramakant gave information to the police immediately after the occurrence which information has been duly recorded in the station diary at the police station lends credence to the veracity of the story given by Ramakant as to the complicity of the accused. The evidence of Ramakant does not stand alone, but finds corroboration in the testimony of four other witnesses, viz, P.W. 4 Sadanand, P.W.5 Surve, P.W.2. H.C. Salunka and P.W.6 P.C. Borate. The evidence of Sadanand has fully corroborated the prosecution story. In his evidence, Sadanand has stated that while himself and Narendra were taking food he heard a commotion coming from the road side outside the main gate of the lock-up compound. He and Narendra then went near the wire - meshing of the lock-up and while they were so standing near the wire-meshing, Ramakant entered into the compound of the lock-up through the main gate keeping his palm on his chest. Ramakant told him in Marathi, "Suryakant and myself were assaulted by Kishore Sawant and Babu Surve. He and Narendra then went near the wire - meshing of the lock-up and while they were so standing near the wire-meshing, Ramakant entered into the compound of the lock-up through the main gate keeping his palm on his chest. Ramakant told him in Marathi, "Suryakant and myself were assaulted by Kishore Sawant and Babu Surve. Suryakant is lying outside and I have come here." He has also deposed that Ramakant told him that he was assaulted near Shirin Talkies. Narendra has also stated that Ramakant had told Sadanand that he and Suryakant were assaulted with knife and Suryakant had fallen down outside the main compound gate of the lock-up. Their evidence shows that witnesses H.C. Salunke and P.C. Borate were also then present. H.C. Salunke has stated in his evidence about the visit of the deceased and Ramakant to the lock-up for delivery of the tiffin carrier to Sadanand. His evidence further shows that while he was in the building adjacent to the lock-up where A.C.P. 'D' Division office is housed, he heard the shouts of Ramakant and rushed towards the lock-up. When asked Ramakant told him that he and Suryakant were assaulted with knife on the road in front of Shirin Talkies by Kishore Sawant and Babu Surve and that Suryakant was lying on the road in front of the compound gate of the lock-up. H.C. Salunke sent the telephonic message about the incident to the Agripada Police Station. To the same effect is the testimony of P.C. Borate. The evidence of these four witnesses has not been shaken in the cross-examination though some minor contradictions in their evidence have been brought on record. On going through their evidence we see no reason to doubt their testimony. In our view, the learned judge has, therefore, rightly relied on the testimony of the eye witness and these four witnesses. We have no hesitation in accepting the testimony of Ramakant that it was accused No.1 who inflicted the stab injuries to Suryakant and also stabbed Ramakant. It was tried to be contended by Mrs. Bhonsale that the possibility of Ramakant not having witnessed the assault on Suryakant cannot be ruled out. According to her, Ramakant might have been ahead on Suryakant and must have seen the accused only after he himself was assaulted. It is not possible to accept this contention. It was tried to be contended by Mrs. Bhonsale that the possibility of Ramakant not having witnessed the assault on Suryakant cannot be ruled out. According to her, Ramakant might have been ahead on Suryakant and must have seen the accused only after he himself was assaulted. It is not possible to accept this contention. Both Suryakant and Ramakant had come together to the lock-up and then went towards Shirin Talkies. According to Ramakant, both of them were returning together. Under the circumstances, it is futile to contend that Ramakant could not have witnessed the incident w far as the assault on Suryakant is concerned. Admittedly, Ramakant himself was assaulted within a short distance of the place where the assault on Suryakant took place. In our view, the learned trial Judge has rightly relied on the testimony of Ramakant. It is not disputed that it was accused No. 1 who inflicted the incised injuries to Suryakant. The medical evidence clearly establishes that injury No. 13 at the neck was necessarily fatal. The learned Judge was, therefore, right in convicting accused No.1 under Section 302 of I.P.C. for the murder of Suryakant. As far as the assault on Ramakant is concerned, it is quite clear that accused No.2 caught hold of Ramakant and then accused No. 1 stabbed Ramakant on the chest with knife causing him grievous injury. The medical evidence shows that this injury would have proved fatal, but for the medical aid which was promptly provided. Accused No.1 is, therefore, clearly guilty under Section 307 of I.P.C. We, therefore, uphold the conviction of accused No. 1 under Section 302 and 307 of the Indian Penal Code. 8. As far as accused No.2 is concerned, he has been convicted under Section 302 read with Section 34 of the Indian Penal Code for the murder of Suryakant and tinder Section 307 read with Section 34 of the Indian Penal Code for causing grievous injury to Ramakant. Mr. Rane submitted that the mere fact that accused No.2 had uttered 'Aata Kuthe Janar?' Before the assault on Surya kant could not necessarily show that he had shared common intention with accused No.1 to commit the murder of Suryakant. He submitted that accused No. 2 did not carry any weapon nor did he inflict any injury whatsoever to Suryakant. Mr. Rane submitted that the mere fact that accused No.2 had uttered 'Aata Kuthe Janar?' Before the assault on Surya kant could not necessarily show that he had shared common intention with accused No.1 to commit the murder of Suryakant. He submitted that accused No. 2 did not carry any weapon nor did he inflict any injury whatsoever to Suryakant. This circumstance, according to the learned counsel, raises a doubt as to whether he shared a common intention with accused No. 1 to commit the murder. We see force in the submission of the learned counsel. The question is whether from the part attributed to accused No. 2 by Ramakant in the evidence it is possible to say with reasonable certainty that accused No.2 shared a common intention with accused No. 1 to commit the murder of Suryakant. Now, what has been stated by Ramakant is that while he along with Suryakant were proceeding by the side of the pan shop accused Nos. 1 and 2 came in front of them and then accused No.2 addressed to them in Marathi 'Aata Kuthe Janar'? This is all the part attributed to accused No.1 at the time of the first incident of assault on Suryakant. Now, though there is an indication in the words said to have been uttered by accused No.2 that they were addressed to both of them, Ramakant has not attributed any overt-act to accused No.2 as far as the assault on Suryakant is concerned; whereas he had caught hold of Ramakant at the time of the assault on him he had not taken any part when accused No.1 stabbed Suryakant with the knife. Accused No.2 was not armed with any weapon nor did he use it either against Ramakant or Suryakant. In the absence of any over-act on the part of accused No.2 so far as Suryakant's incident is concerned, it cannot be said with reasonable certainty that he shared a common intention with accused No.1 to commit the murder of Suryakant. In this connection, we may also consider the circumstance that as far as Ramakant is concerned accused No.2 caught hold of him and only a single blow was inflicted on him by accused No. 1. In this connection, we may also consider the circumstance that as far as Ramakant is concerned accused No.2 caught hold of him and only a single blow was inflicted on him by accused No. 1. Under the circumstances, accused No. 2 is entitled to a benefit of doubt so far as the charge under Section 302 read with Section 34 of the Indian Penal Code is concerned. In the absence of clear evidence to show that both the accused had a common intention to commit the murder of Suryakant, accused No.2 cannot be held guilty under Section 302 read with Section 34 of the Indian Penal Code. However, as far as the assault on Ramakant is concerned, it is seen that accused No.2 caught hold of Ramakant by standing behind him and then accused No.1 stabbed him with a knife on the right side of his chest. Since only a single blow was inflicted it cannot be said that accused No.2. shared a common intention to kill Ramakant. However, from his conduct in holding Ramakant from his backside and facilitating the stabbing at the hands of accused No.1 from the front side, he must be held to have shared a common intention with accused No.1 to cause grievous hurt to Ramakant. The weapon used is a knife and therefore, accused No.2 must be held gui1ty under Section 326 read with Section 34 of the Indian Penal Code. 9. Mr. Rane urged that having regard to the age of accused No.2 and the fact that only a single blow was dealt with by accused No. 1 as also the fact that accused No.2 is being held liable only under Section 34 of I.P.C. and he himself did not actually assault Ramakant a lenient view be taken. Having regard to all the facts and circumstances of the case, in our view, ends of justice would be met if substantive sentence of five years is imposed in the case of accused No.2. The judgment of the trial Court shows that accused No.2 has been in custody as an under trial prisoner for one year, one month and fifteen days. He would be entitled to a set off for this period against the term of five years imprisonment. 10. In the result, Criminal Appeal No. 873 of 1902 preferred by accused No. 1 is dismissed. He would be entitled to a set off for this period against the term of five years imprisonment. 10. In the result, Criminal Appeal No. 873 of 1902 preferred by accused No. 1 is dismissed. Criminal Appeal No. 947 of 1980 preferred by accused No.2 is partly allowed His conviction under Section 302 read with Section 34 of the Indian Penal Code is set aside. His conviction under Section 307 read with Section 34 of the Indian Penal Code is altered to one under Section 326 read with Section 34 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for five years. 11. Mr. Rane requests that accused No.2 be given some time to surrender. Accused No.2 is given one month's time to surrender to his bail. Ordered accordingly.