S. S. SHARMA, J. ( 1 ) IN Sessions Trial No. 51 of 1980, Additional Sessions Judge, Narsimpha Pur, by his judgment dated 10-12-1980 convicted the two appellants for the murder of Sukka and sentenced each of them to imprisonment for life. Appellant Somtibai and appellant Vishal have also been respectively convicted under Sections 328 and 328/34, Indian Penal Code and each has been sentenced to 5 (five) years R. T. for that offence. The sentences have been ordered to run concurrently. By this appeal the two appellants have challenged their convictions and sentences. ( 2 ) APPELLANT Vishal is the son of deceased Sukka. Appellant Somtibai was living with Sukka as his keep since last five years prior to this incident. Appellant Somtibai, from deceased Sukka had a daughter aged about 3 to 4 years, Deceased Sukka and Todal Prasad (P. W. 1) used to work as labourers with one Har Prasad (P. W, 3) who had his brick kiln near river Tinsra. For that reason deceased Sukka, appellant Somtibai and the daughter used to live near the brickkiln in a hut. Todal Prasad (PW. 1) his wife Mantiya (P. W. 2) and three children also lived nearby in a hut at the brickkiln. ( 3 ) THE prosecution case briefly stated is that appellant Vishal had come to his mother appellant Somtibai and was staying with her and the deceased since last three to four days. In the evening of 7-5-1980 shortly before the work was over appellant Somtibai returned to her hut for cooking the food. After sometime deceased Sukka also came there but went away to answer call of nature. In the meantime appellant Vishal and Somtibai ate their food. When deceased Sukka returned back after answering the call of nature, he also ate his food. The deceased then started talking in coherently. Todal Prasad (P. W. 1) and Mantiya (P. W. 2) asked Sukka as to what has happened but Sukka could not answer. Sukka even committed twice. At about mid-night Todal Prasad (P. W. 1) had taken his minor son for answering the call of nature. Mantiya was also in front of her hut. At that time appellant Vishal inflicted knife blows on Sukka. Sukka even committed twice. At about mid-night Todal Prasad (P. W. 1) had taken his minor son for answering the call of nature. Mantiya was also in front of her hut. At that time appellant Vishal inflicted knife blows on Sukka. Todal Prasad (P. W. 1), who was then returning with his son, told the appellant Vishal as to what he has done but Todal Prasad was threatened by Vishal and ran away from there. ( 4 ) TODAL Prasad (P. W. 1) went to Police Station Kareli and lodged the First Information Report Ex. P/i on 8-5-1980 at about 7 a. m. This report was recorded by Sub-Inspector J. S. Patel (P. W. 11 ). The Sub-Inspector then went to the spot. He recorded the statements of some witnesses and held an inquest of the dead body of Sukka. He had also seized the blood stained and unstained earth from the spot vide Memo Ex. P/3. He had also seized the vomit which was at a distance of about three feet from the place where the dead body was lying. At a distance of about 12 feet from that spot where the dead body was, he had also seized a white PUDA with fold containing some sugar particles and some powder like thing which was seized vide memo Ex. P/5. On appellant Somtibai's production, an aluminum THALI containing some dried particles was seized vide Memo Ex. P/6. Later on the same day a PUDIYA containing powder like article was also seized at the instance of appellant Somtibai from the hut which was found behind a tin containing flour. Memo Ex. P/7 was prepared in this behalf. ( 5 ) FROM appellant Vishal a shirt and a fullpant were seized from his body vide Memo Ex. P/il. Appellant Vishal had taken the Police Officer to village Aamgaon and from the enclosure behind a house a piece of stone with marks of grinding containing some particles of the article grinded was seized vide Memo Ex. P114. On the same day i. e. on 10-5-1980 appellant from behind his house produced five pieces of outer layer of Dhatura, which were seized vide Memo Ex. P/13. Appellant Vishal had also produced a knife (CHHURI), which was lying concealed near his GHURE. This knife was seized vide Ex. P/12. ( 6 ) DR. P114. On the same day i. e. on 10-5-1980 appellant from behind his house produced five pieces of outer layer of Dhatura, which were seized vide Memo Ex. P/13. Appellant Vishal had also produced a knife (CHHURI), which was lying concealed near his GHURE. This knife was seized vide Ex. P/12. ( 6 ) DR. Mohnot (P. W. 9) on 8-5-1980 performed the post mortem examination over the dead body of Sukka. He found that the cornea was hazzy and pupils were dilated. Frothy secretions present over the nostrils and mouth. Food particles were also noticed around the wound of the neck. There were two incised wounds one measuring 21/2 x 11/2 x 1 over the front of the neck and the other measuring 1 x 11/2 X peritonial deep over the epigastic region. Multiple loops of small gut were protruding out of the wound. Trachea and oesophagus were cut completely. There was tear in the inferior surface of the right liver as also in the mesentry at two places in the small gut. These injuries were ante-mortem. The deceased died of shock and haemorrhage due to injuries to the mesentry and liver. Stomach contained semi digested food with predominance of rice. Portions of the liver, spleen, kidney and heart lung, brain, small cut and stomach with content were preserved. ( 7 ) DIFFERENT articles which had been seized during investigation were sent to the chemical analyser. According to the chemical analysers report Ex. P/21 the vomit soil allegedly of Sukka, the stone, Dhatura seeds and the pieces of viscera of Sukka gave the test of Dhatura alkalodis. No chemical poison could be detected in the yellowish dust seized from the two places, the aluminum THALI and the bottle containing preservative sample. Ex. P/20 is the report of the Chemical analyser with regard to the finding of the blood stains. However, in the report Ex. P/22 of the Serologist human blood was found only in the earth seized from the spot and the Baniyan and underwear of the deceased. ( 8 ) APPELLANTS in their respective examinations denied the prosecution allegations and pleaded false implication. Appellant Vishal alleged that a quarrel had taken place between Sukka and Todal Prasad, because Todal Prasad had alleged about his wife having been caught hold of by Sukka. Todal Prasad then used to say that he would beat Sukka. ( 8 ) APPELLANTS in their respective examinations denied the prosecution allegations and pleaded false implication. Appellant Vishal alleged that a quarrel had taken place between Sukka and Todal Prasad, because Todal Prasad had alleged about his wife having been caught hold of by Sukka. Todal Prasad then used to say that he would beat Sukka. Somtibai stated that there were illicit relations between Sukka and Mantiya and for that reason Todal Prasad bore an ill will against Sukka. It was Todal Prasad who had killed Sukka and they have been falsely implicated. Appellants did not examine any witness in defence. ( 9 ) HARPRASAD (P. W. 3) and Todal Prasad (P. W. 1) are the attesting witnesses of the Memo Ex. P/4 whereby the vomit of deceased Sukka was seized from near the dead body. Both these witnesses have supported this seizure. However, so far as the seizure of Puda containing the sugar particles with some powder is concerned Harprasad while admitting his signature on the memo Ex. PIS denied that any such article was seized. Even Todal Prasad (P. W. 1) does not support the seizure of the article seized vide Memo Ex. P/s. His version is that the police had been searching the Puda but it could not be found. ( 10 ) LEARNED trial judge has found that Dhatura poison had been administered to Sukka. However, the difficulty arises in fixing the liability against the two appellants or either of them. It may no doubt be probable that in all likelihood appellant Somtibai may have put the poison in the food which Sukka had taken but this would not be enough to hold her liable under section 328 Indian Penal Code. From the evidence and the circumstances it has to be conclusively found that it was she alone who had put the poisonous substance in the food of Sukka. It is in the evidence that even appellant Vishal was very much present at that place during that time. It could be, if at all either of these two who would have mixed the Dhatura poison in the food of the deceased. Premsingh (P. W. 8) who is an attesting witness to the Memo Ex. P/13 and Ex. P/14 relating respectively to seizures of outer layers of Dhatura and the stone, did not support these seizures. It could be, if at all either of these two who would have mixed the Dhatura poison in the food of the deceased. Premsingh (P. W. 8) who is an attesting witness to the Memo Ex. P/13 and Ex. P/14 relating respectively to seizures of outer layers of Dhatura and the stone, did not support these seizures. That apart they have been seized from an open place, and therefore, appellant Vishal cannot be connected with those articles. From the evidence we are satisfied that neither of the two appellants could be found guilty for an offence under section 328 Indian Penal Code and each of them is at- least entitled to a benefit of doubt. ( 11 ) SO far as the question of causing knife injuries to deceased Sukka is concerned, the evidence of Todal Prasad (P. W. 1) and Mantiya (P. W. 2) is quite consistent. They have denied the suggestions made in support of the plea that appellant Vishal has been falsely implicated. The incident is of the month of May and so there was nothing unnatural for Todal Prasad (P. W. 1) and Mantiya (P. W. 2) to have slept outside. It bas been stated by Todal Prasad (P. W. 1) that he had taken his child for answering the call of nature. The conduct of Somtibai and Vishal further supports their evidence inasmuch as that even after such serious injuries to Sukka neither Somtibai nor Vishal took any step to either lodge a report or help Sukka in any other manner. Somtibai was obviously interested in her son Visual. This conduct further supports the evidence of Todal Prasad (P. W. 1) and Mantiya (P. W. 2) that it was appellant Vishal who had inflicted the fatal blows. This explains the reason why the First Information Report was lodged at 7 a. m. in the morning by Todal Prasad. The child must not have been taken by Todal Prasad to any long distance for answering the call of nature but obviously must have been taken quite nearby. From such short distance, Todal Prasad could have well identified appellant Vishal who was known from before. There is evidence also to indicate that there was some moonlight also. The child must not have been taken by Todal Prasad to any long distance for answering the call of nature but obviously must have been taken quite nearby. From such short distance, Todal Prasad could have well identified appellant Vishal who was known from before. There is evidence also to indicate that there was some moonlight also. ( 12 ) FROM the evidence of Todal - Prasad (P. W. 1) and Mantiya (P. W. 2) we are fully satisfied that it was appellant Vishal who had inflicted the knife blows on Sukka. Though there is some evidence regarding motive also but in view of the direct testimony even the absence of motive is not relevant. The injuries that had been inflicted by Vishal were on vital parts of the body with serious corresponding internal damage. In view of the facts and circumstances, Clause Thirdly of Section 300 Indian Penal Code would clearly be attracted. Appellant Vishal would, therefore, clearly be guilty of murder. ( 13 ) LEARNED trial judge has found appellant Somtibai also to be guilty for the murder with the aid of Section 34 Indian Penal Code. Neither Todal Prasad (P. W. 1) nor Mantiya (P. W. 2) attribute any overt act to Somtibai so far as infliction of the knife blows by appellant Vishal on Sukka are concerned. There is nothing in the evidence of Todal Prasad (P. W. 1) and Mantiya (P. W. 2) from which even an inference of common intention for the murder of Sukka could be drawn against appellant Somtibai. It need not be said that there is a difference between some intention and common intentiontt. No such evidence or circumstances were pointed out by the learned counsel appearing for the State, which could support the conviction of appellant Somtibai for the murder of Sukka with the aid of Section 34 Indian Penal Code. Appellant Somtibai is, therefore, entitled to acquittal even for the murder of Sukka. ( 14 ) CONSEQUENTLY, this appeal is partly allowed. The convictions of appellants Somtibai and Vishal for offences respectively under section 328 Indian Penal Code and 328/34 Indian Penal Code are set aside. The sentence of five years rigorous imprisonment awarded to each of these two appellants under sections 328 and 328/34 Indian Penal Code are also set aside. ( 14 ) CONSEQUENTLY, this appeal is partly allowed. The convictions of appellants Somtibai and Vishal for offences respectively under section 328 Indian Penal Code and 328/34 Indian Penal Code are set aside. The sentence of five years rigorous imprisonment awarded to each of these two appellants under sections 328 and 328/34 Indian Penal Code are also set aside. The conviction of appellant Somtibai under section 302/34 Indian Penal Code and sentence of imprisonment for life are also set aside. Accordingly Somtibai stands acquitted of the charges framed against her. Appellant Vishal stands acquitted of the charge under section 328/34 Indian Penal Code. The conviction of appellant Vishal under section 302 Indian Penal Code and sentence of imprisonment for life for the murder of Sukka are upheld. Somtibai be set at liberty if not required to be otherwise detained in connection with any other case. Appeal partly allowed. .