JUDGMENT - S.M. DAUD, J.:---This appeal takes exception to the conviction and sentence recorded against the appellants for their allegedly committing an offence punishable under section 302 read with 34 of the Indian Penal Code. 2. The prosecution case is that complainant P.W. 1 Rukmini was married to deceased Savtusingh Labana. Appellants are the full brothers of Rukmini's mother. Rukimini and untraced witness Santoksingh are cousins, being children of sisters. P.W. 1 Darasingh and Savtusingh were the children of cousins. All of the lived in Gurutej Bahadur Colony at Ulhasnagar, District Thane. Savtusingh was once in the employ of the appellants and left their employment because of the non-payment of a part of his dues. This naturally left a trace of bitterness between the two sides. A week or so prior to 16-2-1986, to be precise on 8-2-1986, Santoksingh and Savtursingh had been beaten up by the appellants. No report of this crime was given at the Police Station. The injured had however taken treatment from a private doctor. The injury caused to Santoksingh was examined at the Ulhasnagar Central Hospital on 17-2-1986 by P.W. 2 Dr. Bhujbal came the evening of 16-2-1986. It being a Sunday evening, Rukmini and Savtusingh together with their children went to the house of the first named person's parents for the usual film show. This was because Rukmini's parents had a T.V. set. The T.V. that evening was showing an old Hindi film and apart from the couple also present were Darasingh and Darshansing, latter a full brother of Rukmini. At about 7.30 p.m. there came an intermission in the screening of the file. The Marathi news began and Savtusingh expressed a desire to leave saying that the film being screened was no good, that he had to arrange for material to execute a contract and further that he had to meet some people. Upon a request made by him, Darasingh also left the place with him. 3. Savtusingh and Darasingh headed for Nehru Chowk in Ulhasnagar when they came across Santoksingh. He joined the duo and all of them went towards Siry Chowk via Sona Market. On the way, the trio came across the appellants. Sighting the appellants, Savtusingh requested them to pay his dues. The appellants declined and the trio proceeded ahead. While they were thus walking, appellant Premsingh stabbed Savtusingh in the back with a kinfe. He joined the duo and all of them went towards Siry Chowk via Sona Market. On the way, the trio came across the appellants. Sighting the appellants, Savtusingh requested them to pay his dues. The appellants declined and the trio proceeded ahead. While they were thus walking, appellant Premsingh stabbed Savtusingh in the back with a kinfe. Savusingh cried, out in pain and it was then that Darasingh saw appellant Premsingh pulling out the knife from the back of the injured person. Appellant Sajansingh raised his hand gripping a chain to strike at Savtusingh and the fear-stricken Darasingh took to his heels. He went and concealed himself in a urinal in one of the bylanes. Here, he was for half-an-hour and after coming out went to the house of Rukmini's parents. Before he could inform them of the murder of Savtusingh, Makhanbai the dead person's mother-in-law told him of her son-in-law having been done to death by the appellants. Darasingh further learnt that Savtusingh had been taken to a hospital and all of them went to the hospital. 4. The atmosphere at the Central Hospital was tense as a large crowd had gathered. The police had a difficult time controlling the crowd. Therefore when Rukmini and Makhanbai went on the first occasion to the hospital they were not allowed entry inside. Rukmini went to the Police Station where she lodged the report at Exhibit 7. In the meantime, Triloksingh a passer by had noticed a crowd milling round the fallen Savtusingh. Being acquaintted with Savtusingh, Triloksingh and his friend Jagatsingh, placed Savtusingh a in a rickshaw and took him to the Central Hospital. When examined by a doctor, Savtusingh was reported dead. The corpse was subjected to a post-mortem examination by Dr. Kamble. His notes are at Exhibit 17. Column 14 thereof details the nine external injuries found on the body of Savtusingh. The fatal one was a stab wound at the upper portion of the left spino-scapular region and back 3 cms. x 1 cm. viscera deep. The corresponding damage was set out in column 20 of the notes. Death was due to shock resulting from copious haemorrhage in the left pleural cavity. Police Inspector Sapkal-since dead had taken up the investigation and he arrested the appellants. The arrest was carried out under a panchanama which is at Exhibit 21. x 1 cm. viscera deep. The corresponding damage was set out in column 20 of the notes. Death was due to shock resulting from copious haemorrhage in the left pleural cavity. Police Inspector Sapkal-since dead had taken up the investigation and he arrested the appellants. The arrest was carried out under a panchanama which is at Exhibit 21. Appellants No. 1 had injuries on the right arm pit, little finger of the right hand and right leg toe. On being questioned, appellant No. 1 gave out that he had sustained these injuries as the result of knife blows inflicted upon him and appellant No. 2 by Savtusingh. His clothes were blood stained. Appellant No. 2 was found in possession of a cycle chain and knife concealed at his waist. There were injuries on his right arm and left arm pit and on being questioned he also gave out that these had been inflicted by Savtusingh by means of a knife. The weapons afore mentioned and the blood stained clothes were attached. The next day appellant No. 1 disclosed that he had flung a knife in the dense shrubbery near the public latrine and that he was prepared to point out the place as also bring out the knife. His statement to that effect was recorded at Exhibit 22. Appellant No. 1 led the police and panchas to the spot indicated and from there brought out a Rampuri knife measuring 12 "in the length with a blade of about 6 1/2". On 17-2-1986. P.I. Sapkal made over charge to P.I. Andhale as he had been selected for some training completing the investigation, P.I. Andhale sent up a charge- sheet against the appellants. 5. The commital proceedings over, appellants came to be arraigned before an Additional Sessions Judge at Thane. They pleaded not guilty to the charge of having murdered Savtusingh in furtherance of a common intention. Called upon to explain the circumstances appearing in evidence against them, the appellants came out with denials or "I do not knows". To establish the charge levelled against the appellants the prosecution examined witnesses including Rukimini, Darasingh, Triloksingh, Doctors Bhujbal and Kamble, Police Constable Pandhare and P.I. Andhale. The learned Additional Sessions Judge found appellants guilty under section 302 read with 34 of the Indian Penal Code. To establish the charge levelled against the appellants the prosecution examined witnesses including Rukimini, Darasingh, Triloksingh, Doctors Bhujbal and Kamble, Police Constable Pandhare and P.I. Andhale. The learned Additional Sessions Judge found appellants guilty under section 302 read with 34 of the Indian Penal Code. They were sentenced to imprisonment for life and the conviction and sentence are assailed in the appeal before us. Mr. Malpathak representing the appellants contends that the prosecution has kept back Santoksingh and Narayan Tulsiani both of whom had allegedly seen the crime being committed. The conduct of Darasingh was such as to lead to the clear inference that he had not witnessed the occurrence. Rukmini's claim that appellants had boasted about the killing of her husband was incredible. Police Constable Pandhare should not have been believed in regard to the recovery of weapons from or at the instance of the appellant seeing that the panchas had not supported the documents at Exhibits 21, 22 and 23. At any rate, the prosecution had not explained the injuries on the person of the appellants. These injuries were consistent with the appellants having been the victims of an assault upon them by Savtusingh and Santoksingh. In any event, appellant could not be convicted under section 302 read with 34 of the Indian Penal Code. The learned Public Prosecutor supports the judgment of the Additional Sessions Judge. 6. We first take up for consideration the evidence of P.W. Darasingh. Mr. Malpathak contends that Darasingh was not present with Savtusingh when the occurrence took place. Had it been otherwise, he would have intervened in the violence that took place and in any case would have been the first to rush to the Police Station. Learned Counsel refers to Rukmini' s F.I.R. Exhibit 7 in support of his contention. Exhibit 7 was lodged by Rukmini's in somewhat ususual circumstances. Appellants had come boasting of the killing Savtusingh to the house of her parents. She and her mother started for locating the wounded Savtusingh. On the way, a boy informed them of Savtusingh having been taken to the hospital. The ladies were not allowed to go inside the hospital when they first went there. Therefore they came to the Police Station and here they learnt of Savtusingh's death. The last sentence led to the defence Counsel raising an objection in the Sessions Court about the admissibility of Exhibit 7. The ladies were not allowed to go inside the hospital when they first went there. Therefore they came to the Police Station and here they learnt of Savtusingh's death. The last sentence led to the defence Counsel raising an objection in the Sessions Court about the admissibility of Exhibit 7. The objection seems to have been that Exhibit 7 was inadmissible in view of the police already knowing that Savtusingh had been done to death. The objection was misplaced and was rightly negatived. The fact of Savtusingh dying a homicidal death is one thing and information as to who and why killed him, a different thing altogether. Reverting to the subject under consideration the fact that Exhibit 7 makes no reference to Darasingh does not mean that person was not present at the viewing of the film at Rukmini's parent's home or that he had left with her husband at the intermission. Having regard to the condition in which Rukmini was when she came to lodge the report, it is perfectly natural that she concentrated on the essentials and did not allow herself to be diverted by non-essentials like who was with her husband when he lift her parent's house. Darasingh is a young boy of 16 years and we see nothing unusual in his being asked to come out by his cousin. That the murderous attack upon Savtusingh would frighten him also goes without saying. Some advantage in sought to be taken of the difference between him and Rukmini as to when exactly they saw each other on the night of 16-2-1986. The divergence is perfectly natural and does not carry the defence any further. Mr. Malpathak argues that Darasingh's account does not in any way implicate the appellant No. 2. The witness speaks of his running away just at the point when appellant No. 2 was poised to strike Savtusingh. He did not see the blow fall. But that is an irresistible inference having regard to the nature of injuries found on the person of Savtusingh. At least three of the injuries could have been inflicted by a cycle chain and the said chain recovered from the custody of appellant No. 2 had blood stains. 7. Counsel then takes exceptions to the credibility of Rukmini when she says that appellants came proclaiming that they were the killers of her husband. At least three of the injuries could have been inflicted by a cycle chain and the said chain recovered from the custody of appellant No. 2 had blood stains. 7. Counsel then takes exceptions to the credibility of Rukmini when she says that appellants came proclaiming that they were the killers of her husband. It is argued that if they had killed Savtusingh, they certainly would not boast of it to his wife and mother-in-law. What is forgotten for the purpose for which the boasting became necessary. The object of the boasting was to deter Rukmini and her mother from making a report of the crime to the police and in any case it is a myth to suppose all criminals act deceitfully or cleverly. All said and done, appellants are semi-literate carpenters and not the type who would have the intelligence to keep quite about their doing. Rukmini, it may be remembered, is a niece of the appellants and she would not lay a false accusation against her maternal uncles for the undoubted killing of her husband, unless the killing was their doing. 8. The third plank of Mr. Malpathak is the performance of the panchas in relation to Exhibit 21, 22 and 23. Hostile panchas or for that matter witnesses of any description, are a usual phenomenon. The panchas are not to be believed merely because they claim that police made them to affix their signatures to these documents which they had not or were not allowed to read. The best refutation to their saying are the contents of documents on which their signatures appear. Writer Constable Pandhare who has been examined as P.W. 8 had recorded the three documents and this was done by him on the dictation of P.I. Sapkal. His version is acceptable as being in conformity with documents ascribed by him contemporaneously with the events recorded in them. The arrest panchanama at Exhibit 21 establishes a violent confrontation on the night of 16-2-1986 between appellants on the one hand and Savtusingh on the other. Signifficantly, there is no reference to Santoksingh in the accusation levelled by the appellants when asked to explain the injuries on their person. They ascribed the injuries to a knife assault on their person by only one person and that being deceased Savtusingh. The recovery of a knife is also in incriminating circumstance vis-a-vis appellant No. 1. Signifficantly, there is no reference to Santoksingh in the accusation levelled by the appellants when asked to explain the injuries on their person. They ascribed the injuries to a knife assault on their person by only one person and that being deceased Savtusingh. The recovery of a knife is also in incriminating circumstance vis-a-vis appellant No. 1. Appellant No. 1 in the statement have out that he had concealed the knife and the concealment of the knife at an unusal place is an incriminating circumstance by itself. The knife recovered at the behest of appellant No. 1 had blood stains and could have caused the fatal injury on the person of Savtusingh. 9. Learned Counsel argues that the non-examination of Narayan Tulsiani and Santoksingh should give rise to an adverse inference against the prosecution. From the account given by the appellants as recorded in Exhibit 21 it does not appear that Santoksingh was even present when the violence began. Darasingh makes no reference to Santoksingh participating either in the exchange of abuses or blows between Savtusingh participating either in the exchange of abuses or blows between Savtusingh on the one hand and appellants on the other. The police has given an explanation for the non-examination of Santoksing. This explanation is that after the occurrence Santoksing left for Delhi and is since then untraceable. We see no reason to disbelieve this explanation. If they were traceable, appellants would certainly know his address for they are his maternal uncles. It is not their claim that Santoksingh is traceable at a given address. In so far Narayan Tulsiani is concerned, there is nothing in the account given by Darasingh or Rukkini to indicates that person had seen the occurrence. 10. The garment and weapons were all sent for a chemical examination and found to be stained with blood vide Exhibit 26. The inference arising from the same coupled with the accounts of Darasingh, Rukmini and P.C. Pandhare leave no room for doubt that appellants had assaulted Savtusingh with a knife and chain. Learned Counsel contends that some of the injuries received by Savtusingh were more consistent with the use of a stick. The only eye-witness to the assault is Darasingh and he fled after the first blow had been given. Learned Counsel contends that some of the injuries received by Savtusingh were more consistent with the use of a stick. The only eye-witness to the assault is Darasingh and he fled after the first blow had been given. For all we know a stick may have been used by the appellants or the contusions on the person of Savtusingh may be the result of a scuffle between him on the one hand and the appellants on the other. We therefore conclude that the prosecution version, broadly speaking is true. 11. Coming now to the crucial question as to whether appellants have been rightly convicted under section 302 read with 34. Dr. Kamble opines that Savtusingh's death was caused by a stab wound which is at serial No. 7 in column 17 of Exhibit 17. This injury was inflicted by appellant No. 1. Appellant No. 2 has undoubtedly used a cycle chain to inflict blows on Savtusingh when he started from the home of his wife's parents along with Darasingh. Savtusingh was the first to engage the appellants in conversation. They had not paid his dues and the fact that a long time had elapsed since the incurring of the debt did not stop him from repeating the demand that they discharge their liability. Darasingh says but, we refuse to believe that the negative answer given by the appellants sufficed for Savtusingh to take the matter in his stride, and go ahead as if nothing had happened. In the very nature of things, the refusal of the appellants to honour the long standing debt must have infuriated him and from fury to abuses to violence, is but a short step. Appellants when arrested had injuries on their person. Mr. malpathak argues that the failure of the prosecution to explain the injuries on the person of the appellants, is fatal. In support of this submission, learned Counsel relies upon (Lakshmi Singh and others v. State of Bihar)1, A.I.R. 1976 S.C. 2263. If the assumption be that Lakshmi Singh's case is an authority for always are acquitting persons charged with a crime when injuries on their preson are not explained by the prosecution, we cannot agree. In fact, that very authority says :--- "There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. If the assumption be that Lakshmi Singh's case is an authority for always are acquitting persons charged with a crime when injuries on their preson are not explained by the prosecution, we cannot agree. In fact, that very authority says :--- "There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested so probable, consistent and creditworthy, that it far outweight the effect of the omission on the part of the prosecution to explain the injuries". The injuries on the person of both the appellants were trifling. A scuffle possibly provoked by Savtusingh, had taken place and in the course thereof violence had taken place. The possibility of Savtusingh being armed with a knife has to be excluded as had it been otherwise, a knife would have been discovered at the spot or on the corpse. On the other hand, Exhibit 21 to 23 lead us to hold that both the appellants had come armed with knives, that appellant No. 2 had the knife with him even when arrested and that appellant No. 1 had flung his knife almost immediately after the deceased fell to the ground. That appellants acted in concert to kill Savtusingh is not an inference permissible from the evidence brought on record. 12. It was not by premeditation or design that appellants came across Savtusingh. The encounter was a happenstance. That the appellants were armed with weapons may be on account of their having enemies. The quarrel between Savtusingh and the appellants was sudden and equally sudden was the use of the weapons by the appellants. One fatal blow was struck on the back of Savtusingh by appellant No. 1. Appellant No. 2 used a cycle-chain though he was armed with a knife. Therefore the inference of a common intention to slay Savtusingh cannot be drawn. In so far as appellant No. 2 is concerned, the use of cycle-chain by him to inflict injuries on the person of Savtusingh would render that person liable only under section 324 of the Indian Penal Code. Therefore the inference of a common intention to slay Savtusingh cannot be drawn. In so far as appellant No. 2 is concerned, the use of cycle-chain by him to inflict injuries on the person of Savtusingh would render that person liable only under section 324 of the Indian Penal Code. Turning to appellant No. 1, he undoubtedly used a knife to inflict a blow on a fairly vital part of Savtusingh's body and the blow was a forceful one-Mr. Malpathak relies upon (Jagtar Singh v. State of Punjab)2, A.I.R. 1983 S.C. 463 to contend that this would attract section 304 Part I of the I.P.C. In Jagtar Singh's case an exchange of abuses between the accused and the victim preceded the striking of one blow with a knife on the chest of the victim. Some time after the striking of the blow the victim succumbed to his injury. The quarrel was sudden and the cause of quarrel was trifling. It was in this background that the Court observed --- "We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no premediation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Neither para 1 nor para 3 of section 300 would be attracted ...... In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under section 304, Part II of the I.P.C." In the present case, the situation is somewhat different. Savtusingh was unarmed and it does not appear that Darasingh and Savtusingh were of any assistance to him in resisting the onslaught of the appellants. In fact, Darasingh ran away and that course must have been followed by Santoksingh also. The argument that Savtusingh had joined in the assault upon appellants is negatived by two very important circumstances. Savtusingh was unarmed and it does not appear that Darasingh and Savtusingh were of any assistance to him in resisting the onslaught of the appellants. In fact, Darasingh ran away and that course must have been followed by Santoksingh also. The argument that Savtusingh had joined in the assault upon appellants is negatived by two very important circumstances. First, there is no reference to Santoksingh in Exhibit 21 which negatives the explanation given by the appellants for the injuries found on their person. Next, Counsel cross examining the witnesses has been careful not to elicit the person named as the offender by the police in the report leading to the registration of C.R. No. 64 of 1986. Had the C.R. been in relation to a joint assault by Savtusingh and Santoksingh, appellants would not have lost the opportunity to bring the C.R. papers on record. Additionally, the appellants themselves say nothing about the untraceable Santoksingh joining Savtusingh in the assault upon them. In the circumstances the position boils to this. The confrontation was the result of provocative words used by Savtusingh. He may have been justified in calling upon the appellants to pay off his dues, but there was no justification for using strong words and abuses which he must have used in frustration at the refusal given in reply to his demand by the appellants. The infuriating reply appears to have provoked at sudden fight and the appellant No. 1 in the heat of passion used the knife to strike forcibly on the back of Savtusingh. This would attract Part I of section 304, the relevant portion therefrom reading thus : "the Act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cuase death". The fatal injury wound inflicted on Savtusingh must have been struck with great force. This is consistent with appellant No. 1 intending to cause the death of the deceased. But as the blow was struck without pre-meditation in a sudden fight and in the heat of passion, the doing would fall under section 304 Part I and not section 302 as found by the learned Additional Sessions Judge or section 304 Part II as contended by Mr. Malpathak. 13. But as the blow was struck without pre-meditation in a sudden fight and in the heat of passion, the doing would fall under section 304 Part I and not section 302 as found by the learned Additional Sessions Judge or section 304 Part II as contended by Mr. Malpathak. 13. Having found the appellant No. 1 guilty under section 304 Part II I.P.C. and appellant No. 2 under section 324 I.P.C., the last question before us is as to sentence they merit. Appellants seem to be desperate characters. Both of them were armed with deadly weapons and both appear to be rather free in the use of such weapons. Having given our anxious consideration to the matter of sentence, we do not think that a casual attitude would be justified. Eight days prior to the killing of Savtusingh they had acted rather brutally towards Savtusingh and Santoksingh. Therefore even though the killing may have been the result of abusive exchange begun by Savtusingh appellants cannot be considered totally blameless. Appellant No. 1 deserves 7 years R.I. and appellant No. 2, 3 years R.I. Hence the order. O R D E R Appeal partly allowed. The conviction of appellants under section 302 read with 34 I.P.C. is reduced thus : Appellant No. 1 to the offence punishable under section 304 Part 1 I.P.C. Appellant No. 2 to the offence punishable section 324 I.P.C. The sentence imposed on the appellants is reduced thus : Appellant No. 1 to seven years R.I. Appellant No. 2 to three years R.I. Both the appellants will be entitled to the set-off for the detention already undergone. Appeal partly allowed. -----