PALOK BASU, J. ( 1 ) LIAQAT alias Bhagwandeen, his son Badri Ram Prasad alias Prasadi and his brother Babulal have filed this appeal against the judgment and order dated 30. 10. 1979 passed by Vth Addi. Sessions Judge, Kanpur where by all the appellants have been convicted under sections 302/34 I. P. C. and sentenced to life imprisonment and 323/34 I. P. C. sentenced to one year R. I. Both the sentences were directed to be run concurrently. ( 2 ) THE charge against the appellants was that on 21. 11. 1978 at about 5. 30 P. M. all the four appellants in furtherance of their common intention committed the murder of Shyam Manohar and thereby committed an offence punishable U/s 302 I. P. C. and also caused injuries to Triloki Nath Verma and thereby committed an offence punishable U/s 323/34 I. P. C. It may be mentioned here that the appellant Liaqat and Badri were said to have been armed with knives at the time of actual incident whereas the other two appellants Ram Prasad and Babulal were unarmed. ( 3 ) P. W. 1. Triloki Nath lodged a first infonnation report on 21. 11. 1978 at 5. 45 P. M. at police station Babu Purwa, Kanpur alleging therein that his brother Shyam Manohar has been done to death and he was been assaulted. All the four appellants were named in the said first information report. ( 4 ) ACCORDING to the prosecution, informant Triloki Nath and deceased Shyam Manohar had gone to appellant Liaquats Coal shop some altercation took place regarding the price charged at which Liaqat and his son Badri got infuriated and abused them. Badri appellant took out a knife, with the result that the informant and deceased ran to their house. At about 4. 45 P. M. Triloki Nath was going to purchase vegetables when he met Liaqat near the Public Latrine in village Dhakna Purwa. Liaqat told him not to feel offended and offered him to take ginger. Both went to nearby ginger shop and had taken four ounces of wine each. price of which was paid by Liaqat appellant. Then they went to Pakauri shop situated nearby. Trilok Nath remained at the pakauri shop while Liaqat appellant left the shop. Liaqat told him not to feel offended and offered him to take ginger. Both went to nearby ginger shop and had taken four ounces of wine each. price of which was paid by Liaqat appellant. Then they went to Pakauri shop situated nearby. Trilok Nath remained at the pakauri shop while Liaqat appellant left the shop. When Triloki Nath started for his house and reached near the Railway Line he saw that the appellants Liaqat and Badri were assaulting his brother Shyam Manohar with Knives. As soon as he rushed to save him, the other appellants Prasadi and Babulal intervened, Prasadi floored him on the ground and Babulal gave him blows by kicks and fists At the hue and cry, several other persons such as Madar etc. arrived at which the appellants fled away. Triloki Nath found that his brother Shyam Manohar has died and leaving the body with the witnesses, he started for the police station. He mat P. W. 7 Bashiahtha Narain Jha a constable on patrol duty who was posted at outpost Babu-Purwa. However, after informing him about the murderous assault and telling him in short the incident informant did not stop there and went to police station directly P. W. 2. Satya Swaroop Yadav constable Muharrir was present who took down the dictation of Triloki Nath information, registered a case and prepared chik report. The F. I. R. has been proved as Ext. Ka 2. ( 5 ) SINCE informant Triloki Nath was having, injuries, a Majroobi Chiththhi was prepared and consequently Triloki Nath was sent to the Ursuta Hospital through Constable Suraj Singh who has filed on affidavit. Inspite of his filing of aftidavit the Trial Judge has mentioned him as P. W. 4. However, he has not been cross-examined. ( 6 ) TRILOKI Nath was medically examined on 21. 11. 1978 at 8. 10 P. M. Dr. A. K. Rastogi found the following injuries on his person:1. Abraded contusion 3. 5 cm. x 3 cm. on left temporoparietal region, 5 cm. above and front of left ear. 2. Abrasion 1 cm. x 7 cm. below of right elbow. 3. Complains of pain on left ankle outerside. The medical report further says that smell of alcohol was present in the breath but gait and speech of the victim was normal. All the injuries were found simple and fresh and were caused by blunt object. 2. Abrasion 1 cm. x 7 cm. below of right elbow. 3. Complains of pain on left ankle outerside. The medical report further says that smell of alcohol was present in the breath but gait and speech of the victim was normal. All the injuries were found simple and fresh and were caused by blunt object. The victim was found not under any toxic effect. ( 7 ) P. W. 3. Ram Dayal Singh Sub-Inspector Police Station Babupurwa was present when the first information report was lodged and consequently he proceeded to the spot alongwith papers for preparing inquest. He reaches the spot, prepared inquest report xx (Ext. Ka-4), drew diagram and challan Lash and wrote a letter to the chief Medical Officer for post-mortem examination on the dead body of Shyam Manohar (Ext. Ka-5, Ka-6 and Ka-7 ). P. W. 5 Pratap Narain constable who was handed over the dead body who took it to the mortuary for post-mortem examination which was ultimately conducted by P. W. 6 Jai Singh Rathaur who performed the post-mortem examination on 22. 11. 1978 at 10. 30 A. M. P. W. 3. Ram Dayal Singh had taken into custody the shirt of the deceased (Ext. 1) and his Baniyain (Ext. 2) plain and blood stained earth (Ext. 3 and 4) was also collected by him. Document concerning these articles were drawn by this witness and proved as Ext. Ka-9 and Ext. Ka-10. P. W. 3. Ram Dayal Singh went back to the police station Babupurwa and reached there at 10. 30 P. M. about which he him-self made a note in the general diary a copy of which has been filed and proved as Ext. Ka-11. ( 8 ) THE post mortem examination on the body of the deceased Shyam Manohar had been conducted by Dr. J. Singh Rathor P. W. 6 at 10. 30 A. M. on 22. 11. 1970. He found the following ante-mortem injuries thereon:1. Abrasion 5 cm. x 1 cm. on the left fore head 5 cm. above left eye-brow. 2. Abrasion 2 cm. x 1 cm. on the left check. 3. Abrasion 11/2 cm. x 1/2 cm. on the right chest 3 cm. below mid of right clavicle. 4. Incised wound 3 cm. x 11/2 cm. on the lateral aspect of rightchest wall in mid axillary line in the 5th intercostal space, chest cavity deep. 5. above left eye-brow. 2. Abrasion 2 cm. x 1 cm. on the left check. 3. Abrasion 11/2 cm. x 1/2 cm. on the right chest 3 cm. below mid of right clavicle. 4. Incised wound 3 cm. x 11/2 cm. on the lateral aspect of rightchest wall in mid axillary line in the 5th intercostal space, chest cavity deep. 5. Incised wound 21/2 cm. x 1 cm. muscle deep above ant. Superior iliac crest. 6. Incised wound 1-3/4 em. X 1/2 cm. x 1/2 cm. x muscle deep 3 cm. above the injury No. 5. 7. Abrasion 1 cm. x 1/2 cm. on the post lateral aspect right buttock 38 cm. above right knee. 8. Incised wound 2 cm. x cm. x muscle deep on the right buttock 11 cm. away from injury No. 7. 9. Incised wound 1 cm. x 1/2 cm. x muscle deep 28 cms. above right knee joint on the right buttock. Dr. J. Singh Rathoropined that death was due to shock and haemorrhage by injury No. 4. He had found the stomach empty. The large intestine of the deceased were half full. In the bladder he found urine weighting 6 ounces. The duration of death at the time of post-mortem has been noted to be about half day in the post-mortem report Ext. Ka-15. ( 9 ) P. W. 7 Bashistha Narain Jha has stated that he had seen P. W. 6. Triloki Nath in injured condition while he was going to police station and he told him that he had been beaten and his brother has been killed near the Public Latrin of Dhakna Purwa. Consequently this constable who was on patrol duty rushed to the place of occurrence and remained there between 6 and 10 P. M. P. W. 9 Hanuman Singh is the Investigating Officer and he has said that he arrested the appellant Ramprasad on the same day at 11. 30 P. M. from the residence of Sri Bhupendra Singh Advocate. Appellants Liaqat and Badri were absconder against whom the proceedings Under Section 82 and 83 Cr. P. C. had been done. The search memo has been proved by Ext. Ka-17 and Ka-19. Appellant Babulal was arrested by him on 28. 11. 1978. ( 10 ) AFTER completing the investigation, P. W. 9. Hanuman Singh Challaned the accused. Appellants Liaqat and Badri were absconder against whom the proceedings Under Section 82 and 83 Cr. P. C. had been done. The search memo has been proved by Ext. Ka-17 and Ka-19. Appellant Babulal was arrested by him on 28. 11. 1978. ( 10 ) AFTER completing the investigation, P. W. 9. Hanuman Singh Challaned the accused. However, the actual filing of the charge-sheet was done by Station Officer Police Station Babu Purwa, namely, Jai Pal Singh which has been proved by P. W. 9 Hanuman Singh himself as Ext. Ka-20. ( 11 ) ALL the appellants denied their participation and attributed their false implication due to enmity. Liaqat pleaded alibi and has examined D. W. 1. Sita Ram Srivastava who was then working as Time-Keeper in Swadeshi Cotton Mills, Kanpur. The Trial Judge has discarded the testimony of this defence witness on the ground that he has not furnished the completes record and his statement does not prove the alibi pleaded by D. W. 1: Sri A. N. Sin ha learned counsel for the appellant and Sri S. P. Tiwari learned A. G. A. have been heard for and against this appeal and the entire record has been thoroughly scrutinised. ( 12 ) THE only she witness examined in this case is the informant Triloki Nath injured who is P. W. 8. The Trial Judge has placed implicit reliance on the testimony of this witness had has also fund the prosecution case proved to the hilt and therefore, passed the conviction and sentence as noted above. ( 13 ) THE learned counsel for the appellant vehemently argued that the prosecution story was concocted later and that Triloki Nath and not sustained any injury and his presence was procured later on by the Investigating Agency. Learned counsel for the appellant contended that since this witness was an interested witness in as much as happened to be the brother of the deceased, there being no other independent witness coming to support the prosecution story, the case cannot be held to be proved beyond reasonable doubt and therefore, the appellants should be acquitted, All these arguments have been refuted by the learned Add I. Government Advocate. ( 14 ) IT goes unchallenged in this case that Triloki Nath P. W. 8 was in fact medically examined at 8. 10 P. M. On 21. 11. 1978 by P. W. 1 Dr. ( 14 ) IT goes unchallenged in this case that Triloki Nath P. W. 8 was in fact medically examined at 8. 10 P. M. On 21. 11. 1978 by P. W. 1 Dr. A. K. Rastogi. From the statement of P. W. 1 Dr. Rastogi it is apparent that the victim Triloki Nath was carried to the hospital through Constable alongwith a Majroobi Chitthi. It was impossible to accept that Triloki Nath to be medically examined alongwith Majroobi Chitthi, if he was not already present at the police Station much before his medical examination. Consequently this circumstances fully supports the statement of Triloki Nath that he had sustained the injuries in the incident. ( 15 ) THE presence of injuries of this witness is a sufficient guarantees of his physical presence at the time of the incident, Moreover, sufficient to say that after the preparation of Majroobi Chiththhi after lodging the F. I. R. the prosecution case further becomes strong and all the more reliable. In the instant case, as noted above, there is no reason for P. W. 1. Dr. Rastogi to falsely depose about the medical examination of P. W. 8. Triloki Nath. Consequently the only argument which remains to be seen is as to whether the incident as narrated by this witness is born out by the injuries sustained by him and the deceased or not. ( 16 ) THE consistent version of this witness is that he and his brother had gone to purchase coal from the shop of appellant Liaqat where his son Badri came armed with knife, after altercation had heated up. It has been fully explained by him that Liaqat wanted to subside the matter so much so he offered drink to this witness. While this had been done and the appellant was having some snacks at the Pakauri Shop, From there he started for his house and noticed his father being beaten by Liaqat and Badri. As soon as he attempted to interfere, the other appellants caught hold of him and put him down and caused him injuries. The fact that the deceased had sustained four abrasions and five incised wounds fully corroborates the eye witness account furnished by this witness. Therefore there is nothing to doubt that this witness has not been present and putting concocted version. His testimony is free from any embellishment and inspires confidence. The fact that the deceased had sustained four abrasions and five incised wounds fully corroborates the eye witness account furnished by this witness. Therefore there is nothing to doubt that this witness has not been present and putting concocted version. His testimony is free from any embellishment and inspires confidence. ( 17 ) LEARNED counsel for the appellant, however, rightly contended that in the stress of cross- examination, this witness has admitted that at the time of actual striking to Shyam Manohar by knife it was Badri alone who did so. On the strength of this statement existing in the cross- examination the learned counsel for the appellant rightly wanted to argue that the appellant Liaqat can at the best be held to be a guilty of Section 342 I. P. C. because the allegation is that he was at that time catching hold of the deceased when Badri appellant gave knife blows it is further emphasized by the learned counsel for the appellant that according to the statement of Dr. Jai Singh Rathor P. W. 6. it was only one injury which became the cause of death. Under the circumstances, it was rightly argued that there being no premeditation and there being no immediate motive, the solitary injury which proved fatal should not take the case beyond Section 304 (2) I. P. C. It is rightly argued that there was not even exchange of words before the knife and was used by Badri. The three other knife injuries were simple and were not the cause of death. Nothing could be shown by the learned A. G. A. to diminish the efficacy of argument advanced by the learned counsel for the appellant ( 18 ) IT may further be noted that in so for as the injury sustained by the informant Triloki Nath is concerned he had only three simple injures and as noted above, the action of the other appellants in catching hold of Shyam Manohar or giving one or two blows by kicks and fists can hardly go to make them liable for an offence punishable u/s 304 (2) I. P. C. They are also to be convicted only u/s 342 I. P. C. ( 19 ) IN view of the aforesaid discussions, the appeal is partly allowed. The conviction of all the appellants Under Section 323/34 I. P. C. is maintained but the sentence of one year R. I. thereunder is reduced to the period already undergone. ( 20 ) ALL the appellants are acquitted of the charge u/s 302/34 I. P. C. Appellant Badri is convicted u/s 304 (2) I. P. C. and sentenced to 5 years R. I. He is on bail. He will surrender to serve out the sentence awarded by this Court. ( 21 ) THE appellants Liaqat, Ram Prasad, Babulal are further convicted u/s 342 I. P. C. and are sentenced to the period already undergone. They are on bail. They need not surrender. Their bail bonds are discharged. Ordered accordingly. .