Judgment : Palok Basu, J. 1. THIS appeal has been filed by the two brothers Gaudas and Shyam Lal against the judgment and order dated 27-4-1979 passed by III Additional Sessions Judge, Jaunpur in Session Trial No. 84 of 1978. By the aforesaid judgment Gaudas has been convicted under section 302 IPC whereas Shyam Lal has been convicted under section 302 IPC read with section 34 IPC and both of them have been awarded the sentences of imprisonment for life. 2. CHARGE against the appellants was that on 10-9-1979 at about 8.30 p.m. near the southern gate of Tilakdhari College of Jaunpur City, Line Bazar, Police Station Kotwali, district Jaunpur, Rampher was done to death by causing injury intentionally with the scissors which was struck by appellant Gaudas and the appellant Shyam Lal had caught hold of the deceased Rampher with a common intention to cause the death of the deceased. According to the prosecution case at about two or three days prior to the occurrence in question a quarrel took place between the appellants and Rampher. An application was moved by Rampher addressed to Superintendent of Police, Jaunpur. The fact of making of this application by the deceased has been duly proved by PW 10 Bishwanath Sahai who has proved the handwriting. It is said that on 10-9-1979 at about 8.30 p.m. the deceased Rampher was confronted with by the, two accused Gaudas and Shyamlal who were coming from the direction of the city through the road which runs from north to south and exists in front of T.D. College. The two accused started abusing him. In consequence thereof a quarrel occurred between deceased Rampher and the two accused. At that time on the electric pole on the road side, a bulb was glowing and on the the two Gumits near the gate the barrs' were burning. One of the 'Gumti' belonged to informant Lallan (PW I) in which he was having a betal shop, while the another Gumti situated on the southern eastesn corner of the gate belonged to Balchand (PW 2). One of the 'Gumti' belonged to informant Lallan (PW I) in which he was having a betal shop, while the another Gumti situated on the southern eastesn corner of the gate belonged to Balchand (PW 2). The quarrel amongst the deceased Rampher and the two accused attracted the informarnt Lallan (PW 1), Balchand (PW 2) and others and the witnesses saw that the appellant Shyam Lal caught hold of daceased Rampher and the appellant Gandas struck scissor suddenly on the chest of Rampher, as a result of which Rampher (deceased) fell down and died. Consequently, the witnesses reached the place atonce and gave a chase but could not catch the appellants. Shortly after the occurrence the informant Lallan proceeded to police outpost of the bazar which was at a distance of about one furlong from the place of occurrence and lodged verbal report at 8.50 p.m. which was registered by PW 3 Ambika Prasad, posted at the said out-post as Head Constable, at serial no. 21 of the general diary through Ext. Ka-1, PW 3 Ambika Prasad Shukla immediately went to the place of occurrence along with other constables. Constable Dileep Kumar Pal (PW 11) was deputed by Ambika Prasad Shukla (PW 3) to go to the police station Kotwali to lodge the verbal first information report. According to the statement of the canstable Dileep Kumar Pal (PW 11) a first information report was lodged at police station Kotwali, district Jaunpur at 9.20 p.m. and the chik first information report Ext. Ka-3 was prepared and a case was registered at serial No. 47 of general diary proved as Ext. Ka-4. Kamil Siddiqui (PW 8) S.I. was present at the police station who recorded the statement of Dileep Kumar Pal (PW 11) at the police station and proceeded to the place of the occurrence. He found Ambika Prasad Shukla and some other constable persons present there but the eye witnesses had left by then. Having become already late, inquest proceeding was not held the same night and it was held the next day after 6.00 a.m. the dead body was thereafter entrusted to Constables Lacha Ram and Surya Deo Lal for the post mortem examination. 3. AT about 4.00 p.m. on 11-9-1977 the autopsy was conducted on the dead-body of Rampher by Dr. Having become already late, inquest proceeding was not held the same night and it was held the next day after 6.00 a.m. the dead body was thereafter entrusted to Constables Lacha Ram and Surya Deo Lal for the post mortem examination. 3. AT about 4.00 p.m. on 11-9-1977 the autopsy was conducted on the dead-body of Rampher by Dr. R. P. Rastogi (PW 5) and it was found that the deceased was a middle aged man of about 50 years and of average built. The rigor-mortis was present in upper and lower of the body. The abdomen was distended and there was greenish discolouration on the abdomen. The mouth and right eye were closed and the left eye was half opened. The doctor found the following ante-mortem injuries. 1. Incised punctured wound 7.1 cm x 3 cm x chest cavity deep slightly oblique on the left side of chest 7 c.m. in and above left nipple of cm below the inner end of left clavicle 10 cm outer towards line of body. Upper end of the wound was lacerated while the lower end of wound was clean cut. The margins of wound were also clean cut. The wound was directing downwards and inwards. On internal examination the Dotor found that the chest walls under injury had been cut and third rib at the root was also found clean cut the pleure was also found cut with one ounce of blood in the left clavicle. The left auricle under the injury was also found cut in the length of 1.5 cm. In the opinion of the Doctor the death had occurred due to shock and haemorrhage as a result of aforesaid ante-mortem injuries. The clothes of deceased were sealed into a bundle and handed over to the constable on duty. The Doctor was further of the opinion that the death had occurred about 3/4 day before. 4. THEREAFTER the investigating officer recorded the statement of eye witnesses including Lallan (PW 1) and Balchand (PW 2) on 11-9-1977, prepared a site plan and recovered the blood stained stones and plain stones from the place of the occurrence. In the meantime Dharamveer Singh (PW 9) had reached the police station and come to know of the incident and, therefore, rushed to the place of the occurrence and took over the investigation himself from Kamil Siddiqui S. I. (PW 8). In the meantime Dharamveer Singh (PW 9) had reached the police station and come to know of the incident and, therefore, rushed to the place of the occurrence and took over the investigation himself from Kamil Siddiqui S. I. (PW 8). He had also interrogated the appellants who in the meantime surrendered in the court of Magistrate. THEREAFTER by S. P. Shri Jamal Ashraf had taken over the investigation from S. O. Dharamveer Singh and on completion thereof submitted the charge-sheet as Ext Ka- 15 against the appellants on 30-10-1977. In order to prove its case only two eye witnesses, have been examined by the prosecution, which are Lallan (PW 1) and Balchand (PW 2). It may be mentioned here that Balchand (PW 2) has been declared hostile but a complete reading of his statement: proves beyond doubt that he has supported the major part of the prosecution story and lends corroboration to the eye witnesses account given by PW 1 Lallan. The other formal witnesses have also supported the prosecution story. 5. THE appellants have denied the prosecution case as it is. So far as Shyam Lal appellant is concerned he has said that he was not present at the time of incident at all and was a patient of T.B. from before the alleged occurrence and at the time of alleged occurrence he was ailing at his house. So far as the appellant Gaudas is concerned, he offered counter-version of the occurrence of the day and in that connection stated that in the night of the alleged occurrence while be happened to be returning from his house, the deceased Rampher accompanied by unknown person met him near the southern gate of T.D. College. On seeing him, the deceased Rampher immediately whipped out some weapon and attacked him. In order to save him he (accused) caught hold of his wrist and a brawl ensued which resulted into a scuffle between them. Rampher and his companions knocked him down but inspite of that he did not leave his wrist in which the decased was holding the weapon. In the course of grappling and scuffle the weapon of the deceased Rampher hit him. In the course thereof he also received injuries through that weapon He had not beaten him. Rampher and his companions knocked him down but inspite of that he did not leave his wrist in which the decased was holding the weapon. In the course of grappling and scuffle the weapon of the deceased Rampher hit him. In the course thereof he also received injuries through that weapon He had not beaten him. However, he sustained injury in the incident regarding which he got medically examined in the same night and that his injuries were further examined in Jail. In defence Dr. M. L. Srivastava (DW 1) and Dr. S. P. Pandey (DW 2) have examined. Dr. S. P. Pandey (DW 2) who is a private medical practitioner of Jaunpur deposed that on 10-9-1977 at about 10.00 p.m. he had contacted the medical examination of accused Gaudas in his dispensary and prepared a medical report Ext. Kha-2 and has found the following injuries on his person :- 1. A transversely situated lacerated wound 1/2" x 1/4" x 1/4" on the frontal and outher aspect of pinna of the left ear. Fresh and bleeding. 2. Abrasion, transversely placed just above the left cheek bone 1 1/2" x 1 1 2" fresh and still bleeding on touch. 3. Abrasion 1/3" x 1/4" on left cheek, bone, fesh looking. 4. Abrasion 1 1/2" x 1" just behind the outer and of left collor bone Presh looking. 5. Incised wound, as determined by the standard procedure, 1/2" x 1/3" x 1/4" along the web between right thumb and right hand index finger in the angle formed by these fingers. 6. Multiple abrasion over 2" x 1 1/2" area just above left knee. 6. DR. M. L. Srivastava (DW 1) had exmined Gaudas again on 14-9-1977 at about 5.30 p.m. in district jail, Jaunpur, He prepared a medical examination report which has been proved as Ext. Kha-1 and found the following injuries on his person :- 1. Partially healed lacerated wound 1 1/2 cm x 1 cm x skin deep on the front of left ear upper part with a paint of mercurochrome. 2. Scabbed abrasion 4 cm x 1 cm on left side of face 1 cm below the outer end of left eye brow The scabs were separating. 3. Scabbed abrasion 4 1/2 cm x 1 cm over left cheek 1 cm above argle of left mandible. 4. 2. Scabbed abrasion 4 cm x 1 cm on left side of face 1 cm below the outer end of left eye brow The scabs were separating. 3. Scabbed abrasion 4 1/2 cm x 1 cm over left cheek 1 cm above argle of left mandible. 4. Scabbed abrasion 3 cm x 1 1/2 cm over top of left shoulder joint. 5. Partially healed septic wound 1 1/2 cm x .5 cm x skin deep 'infected) on inner side of right thumb at its base. 6. Multiple scabbed abrasion over an area of 5 cm x 1 cm over front of left knee upper part. 7. Scabbed abrasion 1 1/2 cm x 1 over outside of left wrist. Scabs were separating. Shri Kamlesh Kumar, learned counsel for the appellants has been heard at length and Shri A. K. Tripathi, learned Standing Counsel was heard for the State and entire record has been examined thoroughly. The main attack of the learned counsel for the appellants was two fold. The first point raised was that the prosecution case is not proved by reliable evidence and the second points raised was that even if for some reasons it is held that the prosecution case has been proved then so far as the appellant Gaudas is concerned he cannot be held guilty under section 302 IPC and so far as appellant Shyam Lal is concerned no intention beyond section 342 IPC can be inferred against. 7. IT was urged by Shri Kamlesh Kumar learned counsel for the appellants that the presence of the light at the scene of occurrence appears to be doubtful. The eye witnesses account given by the two eye witnesses should be discarded considering the fact that Lal Chand (PW 2) was declared hostile who did not support the prosecution case. Since the eye-witnesses account as given by Lallan (PW 1) has supported the prosecution version regarding occurrence, before going to the merits, it is necessary that the prosecution case be determined first, before considering the argument of the learned counsel for the appellant. Therefore, in order to see that whether the incident happened as alleged by the prosecution, one has to go to the statement of PW 1 Lallan. 8. THERE is absolutely no reason, why PW 1 Lallan would be deposing falsely against either of the appellants. He had no reason whatsoever to depose falsely. Therefore, in order to see that whether the incident happened as alleged by the prosecution, one has to go to the statement of PW 1 Lallan. 8. THERE is absolutely no reason, why PW 1 Lallan would be deposing falsely against either of the appellants. He had no reason whatsoever to depose falsely. THERE is no enmity of this witnesses with the appellants and he has admitted existence of road light. it is true that this witness had been prosecuted under Section 379 IPC the appellants have failed to show any reason as to why they have been falsely implicated by this witness. The fact that he saw Rampher and the two appellants at the place of the occurrence, cannot be doubted. Therefore, the presence of this witness is proved. In this context, if the statement of the appellants is; closely examined, it is abundantly clear that the time and place of the incident is admitted to appellant Gaudas. However, the existence or otherwise of the alleged injuries on appellant Gaudas, it has not at all been proved to have been received in the same incident. THERE is no witness who may have deposed about this injury being sustained in the incident as alleged by the appellants. The two doctors examined by defence indicate the injuries to he superficial and self inflicted. One of the Doctor (Dr. S. P. Pandey) has asked Gaudas to go and lodge first information report. This advice was not acted upon. Thus the defence suggestion is not corroborated even by any first information report which may have been lodged at their instance. On the contrary, as stated above, this is established that the deceased was suddenly caught hold of by Shyam Lal appellant and then suddenly the other appellant Gaudas had given him a scissor blow. The scissor was seen in his hand. The prosecution evidence is silent as to whether the scissor was taken just at the moment or it was taken out before the altercation had started. There being no evidence to show that the scissor was intended to be used as a weapon of assault, appellant Shyam Lal certainly cannot be held to have known that his brother would stab the deceased Rampher with the scissor which he might have suddenly taken out. Consequently, the role attributed to Shyam Lal would make out an offence under section 342 IPC. Consequently, the role attributed to Shyam Lal would make out an offence under section 342 IPC. It was rightly argued by Shri Kamlesh Kumar learned counsel for the appellants that Shyam Lal had been in jail for more than 10 days during the investigation and this should be sufficient sentence awardable to him under section 342 IPC. It was argued that the sudden scissor injury was the result of altercation which happened all of a sudden and therefore, the offence would not go beyond section 304 Part II IPC. The learned State Counsel, however, insisted that the since this injury was on vital part of the body, the intention to cause death should be inferred and the trial court has rightly judged the prosecution version in this regard. 9. THIS takes us to the question as to whether on the facts and circumstances of the present case, the solitary scissor injury given by appellant Gaudas can be said to make cut offence punishable under section 302 IPC. As stated above as scissor is not a weapon of assault. The appellant was shown to be a tailor master by profession. Consequently he was supposed to carry a scissor. No licence was necessary for carrying a scissor by him. Admittedly the prosecution case is that on seeing Rampher an altercation had started. Under the circumstances the sudden attack by scissor and that too only one blow is indicative of knowledge on the part of appellant Gaudas that the said injury was likely to cause death. There is certainly no material to show that he had intended to cause death by inflicting the said injury. Therefore, it has to be held that Gaudas is guilty for the offence punishable under section 304 Part II IPC. 10. NOW coming to the question of Sentence, Five (5) years R.I. appears to be just, to be awarded to appellant Gaudas under section 304 II IPC. So far as Shyam Lal appellant is concerned, his conviction is altered to one under section 342 IPC and his sentence is reduced to the period already undergone. In view of the aforesaid discussion, this appeal is partly allowed The conviction of both the appellants under sections 302 and under section 302 read with section 34 IPC respectively and sentence of life imprisonment to each of them are set aside. In view of the aforesaid discussion, this appeal is partly allowed The conviction of both the appellants under sections 302 and under section 302 read with section 34 IPC respectively and sentence of life imprisonment to each of them are set aside. Appellant Gaudas is convicted under section 304 (II) IPC and is sentenced to Five (5) years rigorous imprisonment thereunder. He is on bail. He will surrender to his bail bonds forthwith to serve out the sentence as awarded by this Court. 11. THE appellant Shyam Lal is convicted under section 342 IPC and his sentence is reduced to the period already undergone. He is on bail. He need not surrender. His bail bands are cancelled and sureties discharged.