JUDGMENT - VISHNU SAHAI, J. :---Since both these appeals arise out of the same set of facts, we propose disposing them of by a common Judgment. Vide Judgment and Order dated 12-8-1993, Shri V.C. Singh, Additional Sessions Judge, Greater Bombay, in Sessions Case No. 66 of 1990 and Sessions Case No. 49 of 1991, convicted the appellants of both the appeals on two counts, namely section 387 read with section 34 I.P.C. and 302 read with section 34 I.P.C.; whereas under the first count, he awarded each of the appellants a sentence of five years R.I. and a fine of Rs. 1,000/- in default to further undergo R.I. for 30 days, on the second count, he sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000 in default of payment of fine, to further undergo R.I. for 30 days. The substantive sentences of the appellants were directed to run concurrently. These convictions and sentences have been challenged in the present appeals. 2. The prosecution in brief, as emerging from the recitals contained in the F.I.R., dying declaration of the victim and the evidence of the two eye witnesses namely Abdul Hamid P.W. 1 and Abdul Majid P.W. 2 runs as follows :--- The victim (deceased) Abdul Razak had come to Ajay Transport in S.V.P. Road, Charnal, Dongri, Bombay sometimes between 9 a.m. and 9.30 a.m. on 31-10-1989. Along with him was his nephew Abdul Hamid P.W. 1 and his brother Abdul Majid P.W. 2. It is alleged that they used to manage Ajay Roadways which was a partnership firm dealing in transport business. At about 11.45 a.m. when the victim and P.W. 1 Abdul Hamid were standing on the footpath, in front of Ajay Transport and were talking, the two appellants came from the direction of Charnal. One of them namely Syed Munna told the victim to give Rs. 4,000/- and threatened him that in case he failed to do so, he should be ready to face the consequences. The other appellant Nasir Hussain Shaikh is alleged to have said 'give just now'. On that, the victim replied that since they were from the same Mohalla, why should he pay them the aforesaid amount. He also remonstrated as to why they were threatening him. The other appellant Nasir Hussain Shaikh is alleged to have said 'give just now'. On that, the victim replied that since they were from the same Mohalla, why should he pay them the aforesaid amount. He also remonstrated as to why they were threatening him. On that appellant Sayed Munna inflicted a blow, with a knife used for cutting bread, resulting in three fingers of the righthand of the victim being severely injured. The victim's nephew P.W. 1 Abdul Hamid tried to catch Sayed Munna but, the appellant Nasir Hussain Shaikh thwarted his effort by kicking him on the back. Thereafter, both the appellants are said to have run away towards Charnal. It is alleged that some people who were passing by caught hold of Nasir Hussain near Charnal Island. They brought appellant Nasir Hussain near the Transport office. In the meantime, a police wireless van from Dongri police station came there. The appellant Nasir Hussain was handed over to the police. Blood was oozing out from Nasir Hussain's nose as a result of the injuries caused to him by persons in trying to arrest him. Thereafter, Abdul Hamid P.W. 1 took the victim to J.J. Hospital on a motor cycle and at the aforesaid Hospital, the victim was given first aid treatment and thereafter, was sent to Bombay Hospital. 3. The F.I.R. was lodged by P.W. 1 Abdul Hamid at 1.30 p.m. on 31-10-1989, at police station Dongri and in the aforesaid F.I.R., both the appellants are named. 4. Dr. Pravin Bagul, P.W. 7 of J.J. Hospital medically examined the victim and found three of his fingers cut. At the aforesaid hospital, injuries of appellant Nasir Hussain Shaikh were also medically examined. 5. The investigation of the case was conducted by SHO Shivaji Wagh P.W. 6 who at the time of the incident, was attached to police station Dongri. On the basis of the F.I.R., lodged by Abdul Hamid P.W. 1, Shivaji Wagh, P.W. 6 registered C.R. No. 392/89 under section 386, 325, 34 I.P.C. against the appellants. The same day, he went to the place of the incident and between 2.30 p.m. and 3.30 p.m. prepared the spot panchanama. That very day he also went to the Bombay Hospital and at 5.10 p.m. there recorded the statement of the victim, under section 161 Cr. P.C. After returning to the police station, he recorded statements of some other witnesses. That very day he also went to the Bombay Hospital and at 5.10 p.m. there recorded the statement of the victim, under section 161 Cr. P.C. After returning to the police station, he recorded statements of some other witnesses. Thereafter, investigation of the case was transferred to P.I. Gaikwad who has not been examined by the prosecution. On 1-11-1989, SHO Shivaji Wagh learnt that the victim Abdul Razak had succumbed to his injuries in Bombay Hospital. After completion of the investigation, the charge-sheet was filed against the appellants. 6. Going backwards, the autopsy of the dead body of the deceased Abdul Razak conducted on 1-11-1989 between 9 p.m. to 9.30 p.m. by Dr. Vijay Kelwekar P.W. 5. On the dead body, the doctor found the following three injuries :--- (1) Stitched wound on right index finger phalanx palmer surface 3 cm transverse. (2) Stitched wound on right middle finger 3.5 cm proximal phalanx palmer surface transverse. (3) Stitched wound on right hand ring finger proximal to middle phalanx 3.5 cm palmer surface. In the opinion of Dr. Kelwekar, the aforesaid injuries of the deceased were grievous in nature as vessels were cut. He also opined that death of the deceased was on account of pulmonary oedma which was collection of fluid in lungs. 7. In due course, the case was committed to the Court of Sessions. In the trial Court, charges under sections 387 read with section 34 I.P.C. and 302 read with section 34 I.P.C. were framed against the appellants to which, they pleaded not guilty and claimed to be tried. During trial, the prosecution adduced evidence of as many as eight witnesses. Out of them two namely Abdul Hamid P.W. 1 and Abdul Majid P.W. 2, the nephew and brother of the deceased respectively, gave ocular account of the incident. The remaining witnesses included Dr. Kelwekar P.W. 5 who performed the autopsy on the dead body of the deceased; Dr. Pravin Bagul P.W. 7 who examined him in his life time and SHO Shivaji Wagh who conducted the investigation in the instant case. Apart from tendering oral evidence, the prosecution also tendered a large volume of documentary evidence. In defence, no oral evidence was adduced on behalf of the appellants. The learned trial Judge believed the prosecution evidence and passed the impugned judgment. 8. We have heard Mr. M.K. Joshi and Mrs. Apart from tendering oral evidence, the prosecution also tendered a large volume of documentary evidence. In defence, no oral evidence was adduced on behalf of the appellants. The learned trial Judge believed the prosecution evidence and passed the impugned judgment. 8. We have heard Mr. M.K. Joshi and Mrs. V.S. Deshpande for the appellant and Mr. K.H. Chopda, Additional Public Prosecutor for the respondent. Both sides have argued the matter with great thoroughness. After giving our anxious consideration to the matter, we are of the opinion that this appeal deserves to be partly allowed. In our judgment, the learned trial Judge acting correctly in convicting the appellants under section 387 read with section 34 I.P.C but, palpably erred in convicting them under section 302 read with section 34 I.P.C. In our judgment, they deserve to be acquitted on that count and instead appellant Sayed Munna deserves to be convicted under section 326 I.P.C. and appellant Nasir Shaikh under section 326 read with 34 I.P.C. 9. Mr. M.K. Joshi and Mrs. V.S. Deshpande, first emphatically tried to convince us that the evidence on record does not inspire confidence and the appellants deserve a clear acquittal, at any rate, benefit of doubt, on both the counts. It was only when their aforesaid submission failed to make any impression on us, that they switched on to the alternative argument namely that the learned trail Judge gravely erred in convicting the appellants under section 302/34 I.P.C. and should have instead convicted the appellant Sayed Munna under section 326 I.P.C. and appellant Nasir Hussain Shaikh under section 326/34 I.P.C. 10. Both Mr. Joshi and Mrs. Deshpande vehemently urged that it was a broad day light incident which took place in a crowded locality and the circumstance that both eye witnesses are close relations of the victim and that no independent evidence is forthcoming should be construed by us to the effect that the assault on the deceased has gone unnoticed and subsequently, these false and interested witnesses were introduced by the prosecution, in the instant case. It is true that both the eye witnesses namely Abdul Hamid, P.W. 1 and Abdul Majid P.W. 2 being nephew and brother of the deceased respectively are interested witnesses. However, in our judgment, the norms of appreciation of evidence do not require that the testimony of interested witnesses should be mechanically rejected. It is true that both the eye witnesses namely Abdul Hamid, P.W. 1 and Abdul Majid P.W. 2 being nephew and brother of the deceased respectively are interested witnesses. However, in our judgment, the norms of appreciation of evidence do not require that the testimony of interested witnesses should be mechanically rejected. They only require that the same may be scrutinised with caution and only thereafter, be relied upon. Way back as 1965, the Apex Court in two decisions laid down the aforesaid norm (Masalti v. State of U.P.)1, A.I.R. 1965 Supreme Court 202 and (Daryasingh v. State of Punjab)2, A.I.R. 1965 Supreme Court 328. After scrutinising the evidence of both these witnesses with caution, we do not find any such infirmity in their evidence which would militate against the core of the prosecution case. On material particulars, of the prosecution case, both these witnesses have stood as firm as 'Rock of Gibralter'. Being a broad day-light incident, there was no difficulty for these witnesses to recognise the appellants, who were known to them from before the incident. No ostensible reason could be pointed out as to why these witnesses are falsely implicating the appellants in the instant case. In such a situation, we concur with the view of the learned trial Judge that the aforesaid two witnesses were trustworthy witnesses. 11. Assurance is lent to the testimony of both these witnesses by the circumstance that the F.I.R. was lodged without delay. As mentioned in the earlier part of this judgment, the incident took place on 31-10-1989 at 11.30 a.m. and the F.I.R. was lodged at police station Dongri by P.W. 1 Abdul Hamid the same day at 1.30 p.m. i.e. within two hours of the incident taking place. Criminal Courts attach great significance to the lodging of a prompt F.I.R.. The same largely eliminates chances of embellishment in prosecution case and also that of false implication of accused persons, therein. In our opinion, this prompt F.I.R. goes a long way in establishing that the prosecution story was an authentic and truthful one. 12. The manner of the incident as given out in the ocular account namely that the deceased was assaulted by the appellant Sayed Munna with a knife is corroborated by the nature of the injuries received by him. Dr. 12. The manner of the incident as given out in the ocular account namely that the deceased was assaulted by the appellant Sayed Munna with a knife is corroborated by the nature of the injuries received by him. Dr. Pravin Bagul, P.W. 7 who examined the victim in his life time found his three fingers alongwith tendons to be cut. The prosecution case is also strengthened by the circumstance that appellant Nasir Hussain Shaikh was arrested on the spot. We also find that there was no reason or any malice on the part of the two eye witnesses to falsely implicate the appellants. 13. Apart from occular account, there is the statement of the victim (Exh 19) which was recorded under section 161 Cr. P.C. the same day at 5.10 p.m. at Bombay Hospital by SHO Shivaji Wagh P.W. 6, the Investigating Officer. Since the aforesaid statement contains the circumstances and the manner in which the victim Abdul Razak was assaulted and as Abdul Razak died after giving it, it would be admissible under section 32 of the Evidence Act. The aforesaid statement implicates both the appellants and corroborates the evidence of both the eye witnesses. There was no reason for the victim to falsely implicate the appellants. In our view, it inspires confidence and the learned trial Judge erred in ignoring it. 14. For the aforesaid reasons, in our view, the learned trial Judge rightly accepted the involvement of the appellants in the instant crime. In our view, the learned trial Judge also rightly held that the prosecution had brought home the guilt of the appellants under section 387 read with section 34 I.P.C. beyond reasonable doubt. 15. However, in our opinion, the learned trial Judge grossly erred in convicting the appellants under section 302 read with section 34 I.P.C. and instead he should have convicted the appellant Sayed Munna under section 326 I.P.C. and appellant Nasir Hussain Shaikh under section 326/34 I.P.C. For appreciating as to why we are of the aforesaid view, let us briefly recapitulate the prosecution story. According to the prosecution, on 3-10-1989, at 11.45 a.m. when the deceased Abdul Razak was standing near Ajay Transport along with Abdul Hamid, P.W. 1 the appellants came. Appellant Sayed Munna asked the deceased to give Rs. 4,000/- and threatened him that failure to do so would result in dire consequences. According to the prosecution, on 3-10-1989, at 11.45 a.m. when the deceased Abdul Razak was standing near Ajay Transport along with Abdul Hamid, P.W. 1 the appellants came. Appellant Sayed Munna asked the deceased to give Rs. 4,000/- and threatened him that failure to do so would result in dire consequences. Appellant Nasir Hussain Shaikh is alleged to have told the deceased that he should give that money just now. The deceased understandably protested in giving the aforesaid amount resulting in the appellant Sayed Munna inflicting a blow on him, with a knife used for cutting bread as a consequences of which, three fingers of the right hand of the deceased got severely injured. The deceased was treated the same day at J.J. Hospital by Dr. Pravin Bagul P.W. 7 and next day (1-11-1989) he succumbed to his injuries at Bombay Hospital. 16. The Autopsy Surgeon Dr. Vijay Kelwekar P.W. 5 found on the corpse of the deceased three injuries which we have extracted in paragraphs 6. All the injuries were located on three fingers of the right hand and as vessels were cut, Dr. Kelwekar opined that they were grievous in nature. According to Dr. Kelwekar the deceased died on account of pulmonary oedema which was dried collection of fluid in lungs. 17. In our opinion, bearing in mind the manner in which the incident took place; the absence of previous enmity between the appellants and the deceased; the weapon of assault which was a knife used for cutting bread; the citus of injuries which was three fingers of the right hand of the deceased; and absence of direct nexus between the injuries of the deceased and pulmonary oedema which led to his death, the appellants would not be guilty of the offence under section 302 read with section 34 I.P.C. and instead appellant Sayed Munna would be guilty under section 326 I.P.C. for he inflicted the grievous injuries sustained by the deceased and appellant Nasir Hussain Shaikh would be liable under section 326 read with section 34 I.P.C. for from the facts which we have mentioned above, it can be safely inferred that he shared the common intention with appellant Sayed Munna to inflict grievous injuries on the deceased. The following circumstances warrant such an inference regarding appellant Nasir Hussain Shaikh :--- (a) Both he and appellant Sayed Munna came together on the place of the incident; (b) He joined appellant Sayed Munna in demanding Rs. 4000/- from the deceased and said 'give just now' (c) He knew that appellant Sayed Munna was carrying a knife for cutting bread and that the same could be used for assaulting the deceased in case he did not pay the amount; (d) After appellant Sayed Munna had assaulted the deceased with knife on his fingers, P.W. 1 Abdul Hamid tried to catch hold of Sayed Munna to prevent further assault on the deceased and then he (appellant Nasir Hussain Shaikh) kicked Abdul Hamid on the back; and (e) After the incident, both he and appellant Sayed Munna ran away towards Charnul. 18. Section 34 of the I.P.C. provides that 'when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.' The crucial thing to be remembered before invoking the application of section 34 of the I.P.C. in a given case, is as to whether the criminal act in question committed by persons more than one, was in furtherance of common intention of all. (Emphasis supplied) The answer to this question may not always be easy. 19. Laymen invariably and men of law often treat the expression in further of common intention of all as synonymous with the expression similar intention. However, common intention and similar intention are too different concepts in law. Explaining the difference between these two concepts, the Apex Court in para 32 of the decision reported in A.I.R. 1955 Supreme Court page 216 (Pandurang and others.....appellant v. State of Hyderabad...respondents)3, observed as follows :--- 'Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however, clearly an intention to kill could be proved in his case.' The Judicial Committee of the Privy Council in the case reported in A.I.R. 1945 Privy Council, page 118, (Mehmoob Shah appellant v. Emperor)4, put it in the immemorial words, when it observed :--- 'Care must be taken not to confuse same or similar intention with common intention; the partition which divides 'their bounds' is often very thin; nevertheless the distinction is real and substantial and if overlooked will result in miscarriage of justice.' 20. Explaining the expression 'common intention' the Apex Court held in para 32 of the decision reported in A.I.R. 1955, Supreme Court page 216 (supra) as follows :--- 'a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Accordingly, there must have been a prior meeting of minds.' In para 33, of the same decision, the Apex Court went on to say :--- 'The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however, hastily formed and rudely conceived. But, pre-arrangement there must be and premeditated concert. It is not enough, to have the same intention independently of each other, e.g. the intention to rescue another and, if necessary to kill those who appose.' 21. Criminal Courts should be slow and cautious in inferring the existence of common intention. In the case reported in Mehboob Shah..... But, pre-arrangement there must be and premeditated concert. It is not enough, to have the same intention independently of each other, e.g. the intention to rescue another and, if necessary to kill those who appose.' 21. Criminal Courts should be slow and cautious in inferring the existence of common intention. In the case reported in Mehboob Shah..... appellants v. Emperor, (supra) the Judicial Committee of the Privy Council gave a similar warning to Criminal Courts by observing :--- 'The inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.' 22. In our opinion, before an inference of common intention can be reached in a given case, the incriminating facts from which such an inference is to be drawn should be firmly established; they should only and wholly warrant the inference that more than one accused person acted in furtherance of common intention, of all; they must be wholly incompatible with the contrary inference; and incapable of being explained on any other reasonable hypothesis. 23. In the instant case, however, we have no difficulty in reaching an inference that assault on the deceased was committed by the two appellants in furtherance of their common intention. In our judgment, circumstances (a) to (e) (mentioned above) irrestibly lead to the inference that appellant Nasir Hussain Shaikh shared the common intention with appellant Sayed Munna to inflict grievous injuries on the deceased. 24. Mr. K.H. Chopda, Additional Public Prosecutor vehemently contended that the case would fall squarely within the ambit of Clause 1 of section 300 I.P.C. which stipulates that culpable homicide would be murder if the act was committed with the intention of causing death. He contended that the blow was aimed by appellant Sayed Munna on the chest region of the deceased and it landed on the three fingers of the right hand of the deceased only because the deceased tried to protect his chest from the aforesaid blow. We regret that we cannot persuade ourselves to accept this contention. He contended that the blow was aimed by appellant Sayed Munna on the chest region of the deceased and it landed on the three fingers of the right hand of the deceased only because the deceased tried to protect his chest from the aforesaid blow. We regret that we cannot persuade ourselves to accept this contention. In the F.I.R of the incident, which was lodged within two hours of the incident, taking place, no where has been said by the informant Abdul Hamid, who was an eye witness of the incident that the blow was aimed on the chest of the deceased and when he tried to save himself by raising his hand towards his chest, the blow landed on the fingers of the right hand of the deceased. Again in the dying declaration of the deceased, there is no mention of this fact. We also find that P.W. 2 Abdul Majid who is an eye witness of the incident has not stated this in his statement in the trial Court. It is true that Abdul Hamid P.W. 1 stated in his deposition in the trial Court that Sayed Munna aimed the blow on the chest of the deceased and it struck on the fingers of the right hand of the deceased when he tried to protect his chest with his right hand. But this statement of his, we are not inclined to believe because in the F.I.R. which was lodged by him, there is no mention of this fact. It would be an insult to our intelligence if we believe this improvement. For the reasons mentioned, we are not inclined to accept the aforesaid contention of Mr. Chopda, the learned Additional Public Prosecutor and we accordingly reject the same. 25. The inescapable position from the facts of this case is that the injuries intended by appellant Sayed Munna were injuries with a knife used for cutting bread, on three of the fingers of the right hand of the deceased. Chopda, the learned Additional Public Prosecutor and we accordingly reject the same. 25. The inescapable position from the facts of this case is that the injuries intended by appellant Sayed Munna were injuries with a knife used for cutting bread, on three of the fingers of the right hand of the deceased. The act of appellant Sayed Munna and that of appellant Nasir Hussain Shaikh both of whom acted in furtherance of common intention, in our opinion would neither come within the ambit of any of the four clauses of section 300 I.P.C.; their breach being punishable under section 302 I.P.C.; nor under any of the clauses of section 299 I.P.C.; the breach of which is punishable under section 304 I.P.C. In our judgment, the appellants would have to be acquitted for the offence under section 302 read with 34 I.P.C. and for the reasons mentioned in paragraph 17, appellant Sayed Munna would have instead to be convicted under section 326 I.P.C. and appellant Nasir Hussain Shaikh under section 326 read with 34 I.P.C. 26. The question which arises is as to what should be the quantum of sentence which should be awarded to appellant Sayed Munna under section 326 I.P.C. and to appellant Nasir Hussain Shaikh under section 326 read with section 34 I.P.C. We have given our anxious consideration to this question. In our opinion, looking to the totality of circumstances, a sentence of five years R.I. under section 326 I.P.C. and 326 read with section 34 I.P.C. to appellants Sayed Munna and Nasir Hussain Shaikh respectively, would meet the ends of justice. 27. In the result, this appeal is partly allowed and partly dismissed. We acquit both the appellants under section 302 read with section 34 I.P.C. and set aside their sentence of life imprisonment and fine of Rs. 1000/- and 30 days R.I. in default of payment of fine, awarded thereunder. In case, the appellants have paid the fine, the same shall stand refunded to them. Instead we convict the appellant Sayed Munna under section 326 I.P.C and sentence him to undergo five years R.I. and appellant Nasir Hussain Shaikh under section 326 read with section 34 I.P.C. and also sentence him to undergo five years R.I. We confirm the conviction and sentence of both the appellants under section 387 read with section 34 I.P.C. In case the appellants have not paid fine of Rs. 1000/- imposed under section 387 read with section 34 I.P.C. they may do so within a period of 3 months from today failing which, they would undergo sentence imposed in default of payment of fine by the learned trial Judge, The substantive sentence of appellant Sayed Munna under section 326 I.P.C. and that of appellant Nasir Hussain Shaikh under section 326 I.P.C. read with section 34 I.P.C. shall run concurrently with their sentence of five years R.I. awarded under section 387 read with section 34 I.P.C. by the learned trial Judge. In computing the period of jail sentence of the appellants, the period already served by them prior to their conviction shall be credited to their account. The appellants are in jail and shall remain there till they serve out their sentence. 28. In case an application for certified copy of this judgment is made by the learned Counsel for the parties, the same shall be issued at an early date. Office shall communicate the operative part of our judgment to the Superintendent of the Jail in which the appellants are detained. Appeal partly allowed.