V. P. MATHUR, J. ( 1 ) THESE two appeals are directed against the same judgment passed on 19. 4. 1978 by Mr. A. B. Hajela, the then Vth Additional Sessions Judge of Varanasi in Sessions Trial No. 179 of 1977. Since they raise the same points of fact and law, they have been heard together and this judgment would govern them both. ( 2 ) OUT of the present appellants, Baiju and Chhannu are cousin brothers. Radhey and Ram Raj who are the other two appellants, are the brothers-in-law of Baiju and Chhannu. Lalji who was originally the victim in this case and has been examined as P. W. 2, comes claiming that he is the Pattidar of Chhannu and Baiju. Baijnath Pradhan who is P. W. 7 in this case, is the real brother of Doodhnath who unfortunately died as a result of a stab wound received at the hands of Radhey-appellant. ( 3 ) THIS occurrence took place at about 9. 00 P. M. on 26. 5. 1977 in village-Mavaiya Pokhara within the area of police station Jaitpura, District- Varanasi. The first information report was lodged by Lalji son of Tulsi Ram at 00. 20 hours on 27. 5. 1977. The prosecution story was that Lalji had his house in the locality known as Mavaiya and to the north of his home is the house of accused Baiju. The house of P. W. 7 Baijnath is also in the same village a little distance to the south of the main road. At the time in question P. W. 1 Sahdeo was running a betel shop which originally belonged to his deceased father Jagannath and which was in a part of the house of Bachcha. Baiju-accusedappellant wanted to grab the land lying in front of the house of complainant Lalji. About three days prior to this incident, a village panchayat had been convened at the house of Baijnath Pradhan (P. W. 7 ). The Panchayat gave a verdict which was against Baiju-appellant and he promptly refused to obey the Panchayat verdict. At about 900 P. M. on 26. 5. 1977 at the shop of Sahdeo (P. W. 1) where an electric bulb was burning by the side of tin shed of the shop, Lalji (P. W. 2) was sitting. Suddenly accused Radhey came to the shop while the other appellants remained standing close by on the pavement. At about 900 P. M. on 26. 5. 1977 at the shop of Sahdeo (P. W. 1) where an electric bulb was burning by the side of tin shed of the shop, Lalji (P. W. 2) was sitting. Suddenly accused Radhey came to the shop while the other appellants remained standing close by on the pavement. Radhey gave a signal and Ramraj gave a lathi blow to Lalji who started to run. He was given a chase by all the appellants who were burling brick-bats and stone pebbles at him. In this manner Lalji reached closed to the door of the house of Doodhnath being followed in hot chase by the appellants. There P. W. 3 Barsati, P. W. 4 Raja Ram P. W. 5 Bhola and the deceased Doodhnath were present. Doodhnath did not want any occurence to take place at his door. He, therefore, called upon the appeijants to move away and not to do anything at his door. Radhey Promptly pulled out a knife from his pocket and stabbed Doodhnath. Doodhnath collapsed on the spot. His wound was bandaged. Meanwhile the culprits ran away. Lalji had already been injured by Ramrajs lathi blow and the brick-bats thrown at him by other appellants and therefore, the two injured were taken to the S. S. P. Gupta Hospital, Varanasi. Dr. N. N. Rai (P. W. 6) Medical Officer Incharge examined the injuries of Doodhnath and found a single punctured wound 2 cm X 1 cm. X cavity deep on the chest left side 12 cms. below the left nipple. It was at 6 OTclock position, oblique with bleeding edges which were clean out. ( 4 ) HE also examined Lalji, vide, injury report Ext. Ka 3. One abraded contusion 3 cms. x 1 cm. on the back and lower part of the left fore-arm, (2) one abraded contusion 4 cm. x 3 cms. on the outer and upper part of the left thigh, and (3) one abrasion 1/2 cm x 1/2 cm. on the front and middle part of the left thigh were found on the person of Lalji. All these injuries were simple and had been caused by some blunt object and were fresh. In the opinion of the doctor, they could have been caused by lathi blow and also by brick bats and stone-pieces. on the front and middle part of the left thigh were found on the person of Lalji. All these injuries were simple and had been caused by some blunt object and were fresh. In the opinion of the doctor, they could have been caused by lathi blow and also by brick bats and stone-pieces. Similarly Doodhnaths injuires were also fresh and had been caused by some sharp edged weapon like a knife. ( 5 ) IN the beginning when the first information report was lodged at 00. 20 hours in the night, a case under sections-307, 336 and 325 I. P. C. was registered. But it appears that Doodhnath subsequently succumbed to his injuries and hence the case was converted to one under sections- 302 and 323 LP. C. vide, G. D. entry Ext. Ka-15. ( 6 ) THE post mortem examination on the dead body of Doodhnath was made by Dr. B. B. Subrahmanyam (P. W. 10) on 28-5-1977 at 2. 30. P. M. and the following ante-mortem injuries were noted: 1. A sutured cut (stab wound) 3 cms. x 1 cm. , After removal of the suture, it was found to be horizontally placed on the left upper abdomen untering into the abdominal cavity. It was found to cut the abdominal wan and the peritoneum. 2. Sutured wound on the front of stomach near the fundus 2. 5 cm. x 0. 5 cm. 3. Sutured wound on the stomach near the pyloric and 3. 5 cm x 0. 5 cm. 4. Abraded contusion 3 cm. x 0. 5 cm. adjacent to the injury No. 1. ( 7 ) THE death was due to shock and haemorrhage which was the result of the performation of the stomach by the stab injury. The post mortem examination report is Ext. Ka-8. ( 8 ) INVESTIGATION was taken up by Abdul Jabbar (P. W. 7) and he ultimately submitted the charge- sheet Ex. Ka-14 on 27-7-1977. ( 9 ) THE plea of the accused was that of not guilty. They challenged Laljis claim regarding his being Pattidar of Baiju and Chhannu. Their contention was that Lalji was given only one kothari by the members of the family of Baiju and Chhannu to live therein and the land near about did not belong to him, but was owned by Baiju and Chhannu. They challenged Laljis claim regarding his being Pattidar of Baiju and Chhannu. Their contention was that Lalji was given only one kothari by the members of the family of Baiju and Chhannu to live therein and the land near about did not belong to him, but was owned by Baiju and Chhannu. The whole story regarding the holding of village Panchayat was said to be false and it was contended that it was a case of false implication because of enmity between Baiju and Chhannu on the one hand and Lalji on the other. It was further said that Radhey used to stay with his in-laws and hence he has also been falsely implicated along with Ram Raj. Baiju also gave out that Lalji wanted to have this land and for that purpose he entered into a conspiracy with Pradhan Baijnath. Lastly it was contended that Lalji and Doodhnath were hurt somewhere else and the occurrence did not take place, as is suggested by the prosecution. ( 10 ) SO far as the question of motive is concerned, there is now no dispute as regards the fact that there was previous enmity between Lalji on the one hand and Baiju and Chhannu on the other, but, the accused persons claim false implication for that reason, while Lalji says that it was the basis for the attack upon him. It is undoubted now that atleast in respect of a kothari, even the accused persons admit that Lalji is its owner and that according to them it bad been given to his ancestors by their ancestors. This indicates some relationship between these persons. There is undoubtedly some dispute between these persons as regards the land lying in front of the western door of Laljis house. The accused Baiju and Chhannu claim it to be their land, while the first informant says that it is his land and his father had obtained it from one Babua. We are not presently concerned with the genes is of this dispute. It will suffice to say that there was enmity between Lalji on the one hand and the accused-appellants on the other with respect to a place of land of which title was claimed by both sides. We are not presently concerned with the genes is of this dispute. It will suffice to say that there was enmity between Lalji on the one hand and the accused-appellants on the other with respect to a place of land of which title was claimed by both sides. There is evidence on the record to show that in respect of this land there was a panchayat under the chairmanship of Baijnath Pradhan and the decision of panchayat was not accepted by Baiju appellant. The statement of Baijnath Pradhan goes to support the prosecution version in this respect. It is also in evidence vide, Ext. Ka. 4 that Laljis father had filed a case in the court of City Magistrate on 15. 11. 1976 against Baiju and others. There was thus sufficient enmity between Lalji on the one hand and the appellants on the other and for that reason if the appellant stock it into their heads to teach a lesson to Lalji by assaulting him and giving him a sound thrashing, there is nothing unnatural about the prosecution story in this respect. ( 11 ) THERE is no dispute as regards the date and the time of the occurrence. The only dispute is as regards the place of occurrence. The testimony of Dr. B. B. Rai clearly shows that the injuries to Lalji as well as to the deceased Doodhnath could have been caused at about 9. 00 P. M. on 26. 5. 1977. ( 12 ) SAHDEO Prasad (P. W. 1) who is the owner of the betel shop and who according to the prosecution was present when the first occurrence with Lalji took place, was examined as P. W. 1, but, he has not supported the prosecution version and simply says that he was not present and did not see anything, According to the first informant Lalji, the four appellants came near the shop of Sahdeo Prasad where he was sitting and appellant Radhey cried out that it was a good opportunity and that he should be beaten. Upon this appellant Ram Raj inflicted a lathi blow upon him and the others threw brick-bats at him, He tried to run away but he was chased. Upon this appellant Ram Raj inflicted a lathi blow upon him and the others threw brick-bats at him, He tried to run away but he was chased. It was then that the second occurrence took place at the door of Doodhnath who tried to stop, the assailants from taking the law in their own hands and creating trouble at his door. P. W. 1 Sahdeo Prasad who has turned hostile, at least says that the complainant Lalji used to visit his shop. Therefore, when Lalji said that even on that date he had gone to the shop of Sahdeo Prasad there is no reason why his testimony should not be believed. Of course Sahdeo has tried to wriggle out by saying that he was not present, but, that will not result in throwing over heard the prosecution story, P. W. 3 Barsati and P. W. 4 Raja Ram testified to the occurrence having started at the shop of Sahdeo Prasad. P. W. 4 Raja Ram who has also turned hostile, however, says that Laljis besting had started at the betal shop by some people. This all goes to give credence to the prosecution story regarding at least the first part of the occurrence, which happened between the appellants and Lalji and as a result of which Lalji sustained injuries at the hands of the appellants, one of whom assaulted his with lathi and the others with brick-bats and stone pieces. It is very natural that Lalji should have tried to run away from the spot, because he was unarmed and because four appellants had taken into their heads to assault him. The place where Doodhnath was stabbed also stands established in the light of the direct testimony of Lalji, Barsati and Bhola. The Investigating Officer who reached the spot in the morning at 5. 00, has prepared a site-plan with the help of the witnesses and has shown all the relevant positions which go to support the prosecution story. Of course no blood was found at the spot, but that is no reason to suspect the prosecution version regarding the place of the occurrence. According to Lalji (P. W. 2) the deceased had pressed his wound with his own hand and was not allowing the blood to sweep out. Of course no blood was found at the spot, but that is no reason to suspect the prosecution version regarding the place of the occurrence. According to Lalji (P. W. 2) the deceased had pressed his wound with his own hand and was not allowing the blood to sweep out. Barsati (P. W. 3) says that the injury was bandaged by the Gamaonha of the victim himself, which is also in the testimony of P. W. 5 Bhola. The fact that the Investigating Officer did not take any blood stained earth from the spot may be due to his laxity in thet matter or may also be due to the fact that the flowing of the blood had been prevented by the bandaging of the wound. It is also possible that after the occurrence, village people might have collected on the spot to make enquiries by way of curiosity and might have trampled the scope of occurrence. It is consistently in the testimony of all the witnesses that there was a bulb burning at the shop of Shadeo which was shedding sufficient light on the spot up to the house of Baijnath (P. W. 7 ). Even P. W. 1 Sahdeo says that whenever his shop is open in the night he hangs a lighted bulb to keep the entire area light flooded. The Investigating Officer has also shown in the site-plan (Ext. Ka-6) the position and the type of light. ( 13 ) IN regard to the manner in which the incident started, the prosecution evidence is worthy of reliance, Sahdeo (P. W. 1) simply says that he had only heard afterwards that an incident had taken place about 22 to 25 paces away from his shop. This also supports the prosecution version and in no way derogates from the value of the evidence of other witnesses. Laljis testimony is straight forward and he has not been shaken during cross-examination. A suggestion was put to him that prior to the incident he had gone to commit theft in the garden of one Girja Singh and had received a fire-arm injury and thereafter he had been beaten by the people of the co-operative society. Even if these are correct allegations, they will not in any way effect the present case. A suggestion was put to him that prior to the incident he had gone to commit theft in the garden of one Girja Singh and had received a fire-arm injury and thereafter he had been beaten by the people of the co-operative society. Even if these are correct allegations, they will not in any way effect the present case. Lalji might be a man not having very good antecedent, but then it does not mean that he could not have been beaten by the present appellants and the occurrence could not have taken place for that very reason. Insignificant omissions in the statement of this witness were pointed out. They have been dealt with by the learned Sessions Judge and they need not be repeated. ( 14 ) P. W. 3 Barsati is a witness who has been named in the first information report. At the time of this occurrence, he was a tenant in the house of the deceased. He also worked as a mason along with Baijnath (P. W. 7) under whose employment he was. His presence on the spot, therefore, is very natural and probable. Baijnath was a contractor. This witness belongs to village Hariharpur. It is very far away from the scene of occurrence. It was only very natural that when he had to work under the contractorship of Baijnath and worked every day, he should not have travelled all the distances between Baijnaths house and his own village every night. His presence on the spot therefore is very natural. He gives the entire prosecution story about the occurrence, concerning the part in which Doodhnath was stabbed. ( 15 ) P. W. 4 Rajaram partly supports the prosecution case. He says that he was sitting at the door of Baijnath. Lalji was beaten by certain persons at the shop of Sahdeo. According to him he could not identify them. These persons came running up to the house of Doodhnath, who tried to prevent any mischief near his house. Upon this Radhey protested. Thereafter what happened, he says that he does not remembers. Obviously he has now tried to screen the appellants. His statement, therefore, supports prosecution version to a very great extent. These persons came running up to the house of Doodhnath, who tried to prevent any mischief near his house. Upon this Radhey protested. Thereafter what happened, he says that he does not remembers. Obviously he has now tried to screen the appellants. His statement, therefore, supports prosecution version to a very great extent. He appears to have been won ever by the appellants and yet his statement corroborates the broad features of the story and the fact that the occurrence took place partly at the shop of Sahdeo and again in front of the house of Doodh nath. ( 16 ) P. W. 5 Bhola is a resident of village Tuna. He had come to Baijnath either to borrow money or to have realised his money due. But for one reason or the other he was present on the spot. He also proves the prosecution story in all broad details. ( 17 ) LASTLY Baijnath-brother of the deceased had entered the witness box as P. W. 7. He was not present on the spot when the occurrence took place. He reached afterwards and learnt everything from Bhola (P. W. 5 ). He ran to the hospital and there Doodhnath himself told him, how he had received the injury of knife at the hands of Radhey. ( 18 ) THE learned Sessions Judge has analysed the entire evidence and after considering the inconsistencies in the evidence as were pointed out by the learned counsel for the appellants still came to the conclusion that the prosecution story was satisfactorily made out beyond all shadow of doubt. ( 19 ) BEFORE us the learned counsel who argued these appeals, did not argue on the merits of the case. He conceded that the case was established but his contention was only two fold. Firstly he said that the incident at the shop of Sahdeo had no connection with the incident in front of the house of Doodhnath and since Doodhnath had tried to stop Radhey, it would be Radheys individual act, which could be taken to have resulted in injury and death to Doodhnath. The other appellants would not be connected with it and See. 34 of the Indian Penal Code cannot be pressed into service against Chhannu, Baiju and Ram Raj. The other appellants would not be connected with it and See. 34 of the Indian Penal Code cannot be pressed into service against Chhannu, Baiju and Ram Raj. In this context he also argued that accepting everything to be true, the guilt of Radhey would be under Sec. 304 Part-li I. P. C. and not under Sec. 302 I. P. C. ( 20 ) THE second point which he has pressed is that as regards the four appellants vis-a-vis their part in assaulting and causing of hurt to Lalji, it will simply be a case under Sec. 323/34 I. P. C. and since the accused-appellants have already pet in some time in jail, the sentence needs to be reduced to imprisonment already undergone and some fine may be imposed, which will not be treated to be an enhancement in the sentence. ( 21 ) ON the first point it is undoubted that according to the prosecution version itself, the other appellants namely Chhannu, Baiju and Ram Raj did not take any part in the occurrence, which took place between Radhey and Doodhnath (deceased ). It appears that when these persons were chasing Lalji and had arrived near the door of Doodhnath, Doodhnath interfered and tried to stop Radhey by asking him not to do anything at his door. It was then that there was an exchange of words between Radhey and Doodhnath and when Doodhnath did not pay need to Radheys request to move away and not to interfere, it was Radhey alone to bring out a knife from his pocket and stab Doodhnath. Obviously, there is nothing on the record to show that Chhannu, Baiju and Ram Raj had any knowledge of the fact that Radhey had a knife in his pocket. It was not the intention of the appellants at all to have killed or to have tried to assault Doodhnath because he was no where in the picture in the beginning. Their attempt was to assault and teach a lesson to Lalji. The affair with Doodhnath was just a sudden incident. Under these circumstances Sec. 34 of the Indian Penal Code will not apply so far as the incident with Doodhnath is concerned. Their attempt was to assault and teach a lesson to Lalji. The affair with Doodhnath was just a sudden incident. Under these circumstances Sec. 34 of the Indian Penal Code will not apply so far as the incident with Doodhnath is concerned. ( 22 ) IN the case of Jawahar Lal and another vs. State of Punjab1 which follows three earlier cases of Jagrup Singh vs. State of Haryana2 Randhir Singh vs. State of Punjab3 and Kulwant Rai vs. State of Punjab4 similar situations were considered. In Jawahar Lals case (supra) the accused was found to be an immature boy of 19 years, there was a trivial quarrel with the victim and the accused gave him a solitary blow of knife which fell on his chest. There was no malice between the accused and the victim and no earlier quarrel. The accused did not make any attempt to give a second blow, although he could have done so. It was held that the accused could not be said to have an intention to cause that particular injury. Even if injury proved to be fatal, the case would not be covered by Sec. 300 para-3. But because the accused could be attributed the knowledge that he was likely to cause him injury which was likely to cause death, he could be convicted under Sec. 304 Part-Il of the Indian Penal Code. ( 23 ) IN Kuiwant Rais case (supra), the fact was that the accused did not intend to inflict the particular injury which had resulted in the death of the victim and which injury was found by objective medical test to be sufficient in the ordinary course of nature to cause death. The Court considered the question whether in the circumstances in which the offence come to be committed, could it ever be said that the accused intended to inflict that injury which proved fatal. The circumstances were that there was an altercation, there was no premeditation and the whole matter was something like hit and run. In such a case, it was held that Part-I of Section-300 would not be attracted and it was simply a case in which the accused will be deemed to have inflicted and injury which he knew to be likely to cause death and the case will accordingly fall under Bee. 304 Part-Il of the Indian Penal Code. In such a case, it was held that Part-I of Section-300 would not be attracted and it was simply a case in which the accused will be deemed to have inflicted and injury which he knew to be likely to cause death and the case will accordingly fall under Bee. 304 Part-Il of the Indian Penal Code. ( 24 ) IN the present case also, the situation is similar. There is no previous enmity between Radhey and Doodhnath. The mere fact that Baijnath might have been a member of the panchayat between Lalji and Baiju at some earlier stage, will not make either Baijnath or his brother Doodhnath inimically disposed against the appellants. There was thus no previous enmity. There was no premeditation. But what happened was simply an altercation between Radhey and Doodhnath and Ra d hey 4. AIR 1932 SC 126. brought out a knife from his pocket, (for which there is co-evidence that the other appellants had knowledge) stabbed Doodhnath only once. There was none to stop him from stabbing Doodhnath again and again, if this intention had been to kill him. Immediately after this occurrence all the appellants ran away. All these facts point to the only conclusion that the intention of Radhey was not to commit the murder, but, with all this he is still to be credited with the knowledge that his set was likely to cause death and hence his case will fall under Sec. 304 Part-Il I. P. C. II As such the connection of Radhey is to be altered to one u/s 304 Part-Il I. P. C. and in our opinion the sentence of five years rigorous imprisonment to him will meet the ends of justice. ( 25 ) SO far as the other appellants namely Chhannu, Baiju and Ram Raj are concerned, their conviction under section 302/34 I. P. C. is uncalled for and has got to be set aside. ( 26 ) CAUSING to second point, it is undoubted that all the appellants are guilty under section 323/34 I. P. C. for having caused hurt to Lalji. The learned Sessions Judge has given them such a sentence of six months rigorous imprisonment. ( 26 ) CAUSING to second point, it is undoubted that all the appellants are guilty under section 323/34 I. P. C. for having caused hurt to Lalji. The learned Sessions Judge has given them such a sentence of six months rigorous imprisonment. It is true that they have already been in Jail custody for a short duration, But the circumstances cannot be ignored that it was Lalji who was the main victim of the appellants and it was due to the intervention of Doodhnath, that the unfortunate incident took place otherwise Lalji would have undoubtedly been severely injured or might have been killed. To such persons, therefore, who take law in their own hands and start acting in such callows manner, no leniency can be shown. Therefore, we will turn down the suggestion of the learned counsel that the sentence of imprisonment may be substituted with the imprisonment already undergone and fine. We shall uphold the learned Sessions Judges order directing these four appellants to undergo rigorous imprisonment for six months such on the charge under Section 323/34 I. P. C. 21. In the result, the appeal is partly allowed. The conviction of the appellants Chhannu, Baiju, Ram Raj and Radhey under section 323/34 I. P. C. as made by the learned Sessions Judge is upheld and the sentence of six months rigorous imprisonment awarded to each of them is also upheld and confirmed. They are on bail. They shall surrender and be taken into custody to serve out their sentences. Their bail bonds shall be counseled and sureties discharged. 28. The convictions of Chhanne, Baije and Ram Raj under Section 302/34 I P C. and the sentences of imprisonments for life imposed against then by the learned Sessions Judge are set aside and on this court, these three appellants are acquitted. 29. The conviction of Radhev under Section 304 I. P. C. is altered to one wider Section 304 Part-Il of the Indian Penal Code and his sentence of imprisonment for life is converted in see of five years rigorous imprisonment. He shall serve out the sentences after he is taken into custody by the learned Court below. It is further directed that his two sentences shall be concurrent. .