V. P. MATHUR, J. These four appeals and the criminal revision all arise out of the judgement and order passed by Mr. J. P. Agarwal, the then District and Sessions Judge of Faizabad on 22-7-1982 in Criminal Sessions Trial No. 60 of 1982 - State v. Pappu alias Ashfaq and another. The learned Judge convicted Pappu alias Ashfaq on a charge under Section 302 of the Indian Penal Code but sentenced him to imprisonment for life under Section 302/34, I. P. C. He also convicted Ashok Kanaujiya on a charge under Section 326/34 of the Indian Penal Code and sentenced him to five years rigorous imprisonment. Through Criminal Appeal Nos. 581 of 1982 and 634 of 1982, Ashok Kanaujiya and Pappoo challenged the learned Judges order dated 22-7- 1982 of their conviction and sen tence. Through Criminal Appeal No. 974 of 1982, the State of U. P. has challenged the Judges order whereby has not found Ashok Kumar Kanaujiya guilty on a charge under Section 302/34 of the Indian Penal Code and has in terms acquitted him on that charge. Through Criminal Appeal No. 807 of 1982 the State prays for enhancement of the sentence awarded to Ashok Kumar Kanaujiya under Section 326/34, I. P. C. 2. Ratan Lal Kapoor who was the first informant in this case and at whose instance the criminal proceedings started, comes praying through Criminal Revision No. 411 of 1982 that the conviction of Ashok Kanaujiya be converted to one under Section 302/34, I. P. C. and he be awarded suitable punishment under the same provisions of the law. He also contends that the sentence of imprisonment for life awarded to Pappu alias Ashfaq should be under Section 302 of the Indian Penal Code and not under Section 302 read with Section 34, I. P. C. and even in this respect, there should be an enhancement in the sentence. 3. The matter pertains to the town of Faizabad. There is an Hotel named Shalimar Hotel, which lies within the area of the police station Kotwali, Faizabad. Shah A. K. Azizul Haq was its owner. He had a servant by the name of Sajiwan. His son was Habibul Haq. 3. The matter pertains to the town of Faizabad. There is an Hotel named Shalimar Hotel, which lies within the area of the police station Kotwali, Faizabad. Shah A. K. Azizul Haq was its owner. He had a servant by the name of Sajiwan. His son was Habibul Haq. It appears that the accused Pappu alias Ashfaq, who was a notorious bad character, was arrested by the police in the Shalimar Hotel and for that reasons Pappu alias Ashfaq started bearing ill-will against the Hotel owner and his family. On or about 9-4-1981, there was a quarrel between Pappu alias Ashfaq and Habibul Haq son of the deceased Shah A. K. Azizul Haq, Pappu gave a beating to Habibul Haq, as a result of which on 9-4-1981 a first information report was lodged against him, vide Ext. Ka-li. Subsequently on 18-9-1981 Sajiwan who was a servant of Shah. A. K. . Azizul Haq, was against beaten by Pappu and he lodged a report, vide Ext. Ka.- 13. It appears that there was bad blood between the accused Pappu alias Ashfaq and Shah A. K. Azizul Haq, because Pappu was all along under the impression that his arrest had been arranged by the Hotel owner and his son and servant. 4. This occurrence took place on 24-10-1981 at about 7. 15 p. m. inside the Hotel near the counter. Shah A. K. Azizul Haq was standing by the counter. His friend Ratan Lal Kapoor (P. W. 1) had come to visit him as usual. But Azizul Haq was busy in booking a room for a tourist and sending his luggage to the room, thus booked. After getting free from this work, he had just started talking with Ratan Lal Kapoor, when Pappu alias Ashfaq with an open knife, Ashok Kanaujiya unarmed along with a third person, whose identity has not yet been fixed, entered the verandah of the Hotel and suddenly came up to the counter. At that time one Mohd. Akhthar (P. W. 2) who is the brother-in-law of Habibul Haq, was also sitting on the Bench near the counter and had come to make some enquiries about his sister. Suddenly the third unknown accused caught Azizul Haq from behind, Ashok Kumar Kanaujiya exhorted and accused Pappu plunged his knife in the stomach of Azizul Haq. Akhthar (P. W. 2) who is the brother-in-law of Habibul Haq, was also sitting on the Bench near the counter and had come to make some enquiries about his sister. Suddenly the third unknown accused caught Azizul Haq from behind, Ashok Kumar Kanaujiya exhorted and accused Pappu plunged his knife in the stomach of Azizul Haq. Before the witnesses could collect their wits and try to apprehend the culprits, the entire a fair was over and they ran away from the spot. A handkerchief was placed on the wound of the injured to stop flowing of blood. Ratan Lal Kapoor sent M. A. Khan to get a rickshaw which took about 10 to 15 minutes to arrive and within this period Ratan Lal Kapoor wrote out the first informa tion Report (Ext. Ka-i ). With it he covered the distance of about half a kilometer along with the injured ami lodged the report in the Kotwali where it was taken down by Bans Bahadur Singh (P. W. 6 ). Chick-report (Ext, Ka-9) was prepaid. The Investigating Officer Sri Ram Gati Upadhaya (P. W. 9j was present and he took up the investigation at once. He interrogated the injured as well as Ratan Lal Kapoor and then arranged to send the injured to the District Hospital at Faizabad. At 10. 30 p. m. on 24- 10-1981 the injuries were examined by Dr. I. D. Mall (P. W. 3) and he found one liner abrasion 2. 5 cm long on the lower part of the left fore-arm and one incised wound 2. 5 cm X 0. 7 cm X abdominal cavity deep on the left hypochondirim. No probing could be done and the injury was directed to be kept under observation. In the opinion of the doctor, both the injuries were caused by some sharp pointed weapon and were fresh in duration. The patient was given first aid and was then directed to be taken to Lucknow for proper and elective treatment. Dr. Mall has, however, of the opinion that the injuries could have been caused on 24-10-1981 at about 7 p. m. The injury report is Ext. Ka-3. 5. Meanwhile Mr. Ram Gati Upadhyaya (P. W. 9), who had already taken up the investigation and had recorded the statement of the injured (Ext. Dr. Mall has, however, of the opinion that the injuries could have been caused on 24-10-1981 at about 7 p. m. The injury report is Ext. Ka-3. 5. Meanwhile Mr. Ram Gati Upadhyaya (P. W. 9), who had already taken up the investigation and had recorded the statement of the injured (Ext. Ka-17) which is now being relied upon as dying-declaration proceeded for the scene of occurrence, where he reached at about 9-15 p. m. , took down the statements of some other witnesses and prepared site-plan (Ext. Ka-18 ). He searched for the accused persons on 25-10-1981 and arrested Ashok Kanaujiya on 26-10-1981. He was informed on 29-10-1981 that Pappu had already surrendered in Court. It was on 30-10-1981 that he interrogated Habibul Haq (P. W. 7 ). Then he completed the investigation and submitted charge-sheet. 6. Shah A. K. Azizul Haq was brought to Lucknow, where he was admitted in the Balrampur Hospital on 25-10-1981. There he was treated but at 6 p. m. he succumbed to his injuries and the information about his death was communicated to the police station Kotwali at Faizabad on 28-10 1981 at 8 p. m. and the case which was originally registered as one under Section 307, I P. C. was altered to one under Section 302, I. P. C. 7. Dr. R. R. Bharti (P. W. 5) conducted the post-mortem examination on the dead body of Shah A. K. Azizul Haq on 26-10-1981 a 12 Noon in the mortuary of King George Medical College at Lucknow. A mention of the post-mortem examination report has been made by the learned Sessions Judge in his judgment. It will suffice to say that according to the Dr. R. R. Bharti, the deceased died as a result of shock and haemorrhage resulting from the ante-mortem injuries. The post-mortem examination report is Ext. Ka. 8. 8. It may also be mentioned that at District Hospital at Faizabad the doctor found the condition of the injured dangerous and therefore he had sent information to the authorities concerned for the recording of dying-declaration of the injured at about mid-night. Mr. D. D. Verma, Stipendiary Magistrate (P. W. 8) recorded the dying-declaration of Azizul Haq on 24/25-10 - 1981 fifty-five minutes after mid-night in the District Hospital at Faizabad. It is Ext. Ka-16. 9. The prosecution examined in this case in all nine witnesses. Mr. D. D. Verma, Stipendiary Magistrate (P. W. 8) recorded the dying-declaration of Azizul Haq on 24/25-10 - 1981 fifty-five minutes after mid-night in the District Hospital at Faizabad. It is Ext. Ka-16. 9. The prosecution examined in this case in all nine witnesses. Ratan Lal Kapoor (P. W. 1) and Mohd. Akhtar (P. W. 2) are the two eye-witnesses. The other P. Ws. are all formal including Mr. D. D. Verma, Stipendiary Magis trate (P. W. 8) and Ram Gati Upadhyaya, Investigating Officer and Doctors I. D. Mall and R. R. Bharti. 10. The defence was a complete denial of the prosecution story. Pappus contention was that P. Ws. 1 and 2 were close friends and P. W. 7 Shah Habibul Haq a was closely related to the deceased and they have come forward to falsely implicate him, because he had enmity with Habibul Haq. His contention is that oy the Scooter of Habibul Haq he received a scratch, which resulted in verbal altercation between them and hence he has now been dragged into this case. 11. Ashok Kanaujiya contended that he had complained to the police against the running of illegal trade including women in the Shalimar Hotel and had thus incurred the displeasure of the deceased and Habibul Haq and on that account Ratau Lai Kapoor named him also in this case. One defence witness in this case was examined. He is Paras Nath Pathak, a clerk in the Public Works Department at Faizabad, who came with a register maintained by the P. W. D. regarding tourists who stayed in Circuit House at Faizabad. No relevance of this document or the evidence of this defence witness has been pointed out to us. 12. There is no doubt that Shah A. K. Azizul Haq had ultimately died as a result of stab injury sustained by him inside his Hotel Shalimar at about 7-15 p. m. on 24-10-1981. This fact is not challenged. There is no allegation to the effect that the injuries were sustained elsewhere and that nothing took place in the Hotel. The only challenge is to the presence of Ratan Lal Kapoor and Mohd. Akhtar Khan and it is contended that they were not present when this occurrence took place. Dr. I. D. Mall has very clearly fixed the time of the occurrence at about 7 p. m. on 24-10-1981. The only challenge is to the presence of Ratan Lal Kapoor and Mohd. Akhtar Khan and it is contended that they were not present when this occurrence took place. Dr. I. D. Mall has very clearly fixed the time of the occurrence at about 7 p. m. on 24-10-1981. The main injury could obviously have been caused by a knife. The linear abrasion could be a result of superficial striking against some iron part of the rickshaw in which the deceased was transported to the Hotel. So far as Ratan Lal Kapoor (P. W. 1) is concerned he is a completely reliable witness. Undoubtedly he is a friend of the deceased but he has himself no enmity with the accused-appellants of this case. Lengthy cross-examination made with, he has been able to elicit that he was visiting the deceased as a friend from time to time and it was not a tirst occasion on which he had gone to the Hotel to meet his friend on that date. He cannot also be treated to be a chance witness, because of the fact that he was visiting Azizul Haq at the Hotel from time to time and the mere fact that by chance on that particular date, he witnessed this occurrence, will not reduce his testimony to that of a chance witness. In the case of Rana Pratap and others v. State of Haryana reported in AIR 1983 Supreme Court page 680, it has been held that in a murder trial, independent witnesses cannot be viewed with suspicion on the mere ground that they are chance witnesses. Similarly, their evidence cannot be discarded on the ground that they did not re-act in a particular manner. In the present case also the testimony of both Ratan lal Kapoor and Mohd. Akhtar Khan is sought to be challenged as unreliable on the additional ground that in spite of the fact that they saw the accused persons coming into the Hotel and one of them armed with an open knife, they did not try to intercept and even after the occurrence, they did not try to apprehened any of the accused. It should not have been forgotten however, that the entire occurrence took place so suddenly that the witnesses had no time to collect their wits and act and were taken simply by surprise. It should not have been forgotten however, that the entire occurrence took place so suddenly that the witnesses had no time to collect their wits and act and were taken simply by surprise. Then again their testimony cannot be discarded on this ground simply because they did not react in a particular manner which is suggested by defence now. The learned Sessions Judge has placed complete reliance upon the testimony of Ratan Lal Kapoor, as regards his statement, we have been taken through the record by the learned counsel for the defence and we find ourselves in complete agreement with thf learned Sessions Judge and we hold that the presence of Ratan Lal Kapoor on the spot at the time when the occurrence took place, is established beyond doubt, and he lodged the very prompt first information report without any establish ment or consultation at all. Only three persons were present on the spot at the time when the occurrence took place namely the deceased Shah A. K. Azizul Haq, Ratan lal Kapoor and Mohd. Akhtar Khan. The Hotel servants, who were two persons both named Ashok, had just departed leading the tourist to his room and therefore, there was no occasion for consultation in the lodging of the first information report. So far as Mohd. Akhtar Khan is concerned, we are of the opinion that even his presence is not in doubt. The learned Sessions Judge has however not looked into this aspect of the matter, but has simply said that even if the presence of Mohd. Akhtar Khan is ignored for the time being for any reason whatsoever, then also there is sufficient evidence on the record to convict the appellants. We have very anxiously looked into the entire evidence and we come to the conclusion that even the presence of Mohd. Akhtar Khan is established beyond doubt. The mere fact that Ratan Lal Kapoor is a friend of the deceased and Mohd. Akhtar Khan is closely related to him, will only have the effect that the Court will have to look into their testimony with greater care and caution, but to say that on that ground, their statements should be discarded out-right will be something absolutely wrong and uncalled for. 13. Two of the most important pieces of evidence on the record are the two dying-declarations of the deceased. The first is Ext. Ka-16. 13. Two of the most important pieces of evidence on the record are the two dying-declarations of the deceased. The first is Ext. Ka-16. It was recorded originally as a statement under Section 161, Cr. P. C. during investigation. But it has now to be treated as a dying declaration after the demise of the maker of that statement, because in that statement Shah A. K. Azizul Haq has given details of the story, culminating in the receipt of the injuries by him which have ultimately ended in his death. The second is Ext. Ka-17 recorded on 25-10-1981 by a Stipendiary Magistrate as a regular dying declaration. So far as the first one is concerned, it supports the prosecution story, as is given in the first information report completely and also speaks about the role assigned to both the accused-appellants separately. It also gives some more details about the previous enmity etc. It cannot be said that the whole of this state ment is unreliable, or has been recorded in the Case Diary by the Investigating Officer of his own accord without reference to the maker of this statement. The second dying declaration is obviously more reliable. It has been recorded by a Stipendiary Magistrate under the provisions of the law and it is a short statement in which the details have all been given. Of course the names of the witnesses have net been mentioned and no role has been assigned to Ashok Konawa except that he came along with two others including Pappu. The entire role of assault is given to Pappu alias Ashfaq. The learned Sessions Judge has not considered the earlier dying declaration recorded by the Investigating Officer. He has simply ignored it. But he has placed complete reliance upon the dying declaration recorded by the Stipendiary Magistrate (Ext. Ka-16 and on its basis the learned Judge has come to the conclusion that there is sufficient material to warrant conviction of both the appellants. 14. We have very carefully considered both these statements. The main difference between these two dying declarations is that in Ext. Ka-17 the deceased has clearly assigned specific role to Ashok Kanaujiya also while in Ext. Ka-16 he simply says that Ashok Kanaujiya came along with Pappu and a third person. Pappu assaulted him with his knife and ail, of them ran away. The main difference between these two dying declarations is that in Ext. Ka-17 the deceased has clearly assigned specific role to Ashok Kanaujiya also while in Ext. Ka-16 he simply says that Ashok Kanaujiya came along with Pappu and a third person. Pappu assaulted him with his knife and ail, of them ran away. Therefore, so far as the role of Pappu alias Ashfaq is concerned, there can be no dispute about it which is clearly defined in the testimony of the two eye-witnesses, the earlier dying declaration (Ext. Ka-17) and the subsequent dying declaration (Ext. Ka-16 ). Of course there is some difference as regards the role assigned to Ashok Kanaujiya. 15. The learned counsel for the defence has very vehemently argued that the dying declaration recorded by the Stipendiary Magistrate should be completely discarded because it discloses that the mental condition of the deponent was not sound and he was not in a fit state to make a statement. It is pointed out that in this statement (Ext. Ka-16), he has said that Ratan Lal Kapoor brought him to the Hospital. He does not come the third person. He did not sign the statement but only put his thumb mark, and his mental condition was not tested by the learned Magistrate. 16. Taking the last point first, a very coherent statement has been made by Azizul Haqin Ext. Ka-16. This shows that his mental condition was sound and the Magistrate was rightly satisfied from the opinion of the doctor who testified that the patient was in a fit mental state to make a statement. Then the mere fact that the deceased did not sign the document and simply thumb marked it can lead us no where. He had an injury in his arm also and as a result of the injury sustained by him in his abdomen he must have been feeling extremely weak and the doctor was of the opinion that he should be taken to the Balrarnpur Hospital for proper care and treatment and all these things point to the fact that if it was not comfortable for him to put his signatures and the Magistrate only took his thumb mark, ft will not. in any way detract from the worth of his statement made before the Magistrate. Obviously the name of the third culprit lias not been disclosed, although in the first dying declaration Ext. in any way detract from the worth of his statement made before the Magistrate. Obviously the name of the third culprit lias not been disclosed, although in the first dying declaration Ext. Ka-17 as well as in Ext. Ka-16 Azizul Haq has said that third person was also known as he had come into contact with his son sometime back but he was not immediately remembering his name. This is a very natural statement. If false implication could be a motive any enemy of the family could have been dragged into this case. This has not been done. Therefore, the failure to name the third culprits on the basis that his name had slipped out of the memory of the deceased is no circumstance to say that the dying declaration was made when the deponent was not in a fit mental condition. Lastly the statement that Ratanlal Kapoor had brought the injured to the Hospital is not wholly false. The testimony of Ratanlal Kapoor will show that he accom panied the injured up to the thana and from the thana he took the Investigating Officer to the scene of occurrence and there is no returned back to the Hospital and by the time that the injured was examined by Dr. Mall, he had also reached the Hospital back. Under these circumstances, if the deceased thought that he was brought to the hospital also by his friend Ratan lal Kapoor, there was basis for such a thinking. It is not a statement that has been made by a man out of his mind. It is a statement made by a person who was in full senses. We have no reason to discard the dying deliration (Ext. Ka-16) and we are also of the opinion that Ext. Ka-17 should also be relied upon to the extent that it does not go against Ext. Ka-16. In our opinion, therefore, the guilt of accused Pappu alias Ashfaq under Section 302, I. P. C. Simplicitor is clearly made out and the learned Sessions Judge was justified in convicting him on that charge. It appears to be a clerical mistake on his part that while sentencing him to impri sonment for life, lie has mentioned Section 302/34 of the Indian Penal Code. 17. In our opinion, it is not a case to be covered by Section 34 of the Indian Penal Code. It appears to be a clerical mistake on his part that while sentencing him to impri sonment for life, lie has mentioned Section 302/34 of the Indian Penal Code. 17. In our opinion, it is not a case to be covered by Section 34 of the Indian Penal Code. Section 302, I. P. C. clearly applies to the case and the case will be covered by Section 300. Thirdly, because the act was done by Pappu alias Ashfaq with the intention of causing bodily injury to Shah A. K. Azizul Haq and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause his death. A knife is a dangerous weapon. Abdomen is a vital part of the body. If a knife is plunged into the abdomen and then extracted, in the light of the injuries sustained, the intention could be only to cause bodily injury, which would be sufficient to cause the death. The mere fact that a single blow was given and no repetition was made, will have no effect upon the gravity of the offence. It was not a case in which the attack had been made on the spur of the moment, as a result of something done by the victim to cause anger to the accused. It was an act very deliberate and determined because there was no immediate notice for the accused to have committed this offence and he came prepared for committing this offence with an open knife, which be plunged into the abdomen of the victim without remorse. We are of the opinion that it is not a case to be covered under Section 304 of the Indian Penal Code, but it is a case which clearly falls within the mischief of Section 300. 18. The role assigned to Ashok Kanaujiya is two-fold. Firstly, it is contended that he came along with Pappu and a third person and left the place with them after the occurrence was over. Secondly, it is contended that he exhorted Pappu alias Ashfaq, as a result of which Pappu gave fatal knife blow to Azizul Haq. So far as mere coming and going is concerned, it may be a circumstance but not a conclusive circumstance to attract the application of Section 34 of the Indian Penal Code. Secondly, it is contended that he exhorted Pappu alias Ashfaq, as a result of which Pappu gave fatal knife blow to Azizul Haq. So far as mere coming and going is concerned, it may be a circumstance but not a conclusive circumstance to attract the application of Section 34 of the Indian Penal Code. So far as the story of exhortation is concerned, it has now been well settled that it is a very weak type of evidence. We are unable to appreciate that when Pappu had already come armed with a knife to assault Azizul Haq in the Hotel there was any need for Ashok Kanaujia to have exhorted him or instigated him. It was absolutely uncalled for and unnecessary. Then although the two eye-witnesses speak of this exhortation and it is also mentioned in Ext. Ka-17, nevertheless in Ext. Ka-16 the deceased has not made any mention of any exhortation by Ashok Kanaujiya. The learned Sessions Judge has also considered that fact, but he is of the opinion that Section 34 will be attracted and there will be an inference of common intention of the three culprits. We are not in agreement with him, merely because two persons were seen entering the Hotel with Pappu, it cannot be said that they had any common intention with him. Ashok Kanaujiya might have been an inquisitive spectator. The story of exhortation is not free from doubt, in view of the dying declaration Ext. Ka-16 and that being so, it will not be a case to be covered under Section 34 of the Indian Penal Code. In our opinion, the guilt of Ashok Kanaujiya is, therefore, not established at all, and he will be entitled to the benefit of doubt and hence to acquittal. 19. There is no question of enhancement of the sentence of Ashok Kanaujiya as such. The sentence of imprisonment for life awarded to Pappu alias Ashfaq is sufficient because what he has done is not to be covered by the term rarest of the rare case. 20. In the result, Criminal Appeal No. 581 of 1982 is allowed and the con viction of Ashok Kanaujiya alias Ashok Kumar Kanaujiya under Section 326/34, I. P. C. and the sentence awarded to him are set aside. He is allowed benefit of doubt and hence not found guilty of any offence in connection with this occurrence. He is acquitted. 20. In the result, Criminal Appeal No. 581 of 1982 is allowed and the con viction of Ashok Kanaujiya alias Ashok Kumar Kanaujiya under Section 326/34, I. P. C. and the sentence awarded to him are set aside. He is allowed benefit of doubt and hence not found guilty of any offence in connection with this occurrence. He is acquitted. He is on bail. He need not surrender. His bail bonds and sureties shall stand discharged. 21. Criminal Appeal No. 634 of 1982, Pappu alias Ashfaq v. State is dismissed. But the conviction of the appellant Pappu alias Ashfaq shall be under Section 302, I. P. C. simplicitor and the sentence of imprisonment for life is upheld and confirmed. 22. Criminal Revision No. 411 of 1982 is also accordingly dismissed with above modification in the matter of conviction of the appellant Pappu alias Ashfaq state Appeal No. 974 of 1982 and Criminal Appeal No. 807 of 1982 are both dismissed. 23. Appellant Pappu alias Ashfaq is on bail. He shall surrender and be taken into custody forthwith and his bail bonds and sureties shall be cancelled. Ordered accordingly. .