JUDGMENT - VISHNU SAHAI, J. :---The appellant aggrieved by the judgment and order dated 23rd November, 1981 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 361 of 1980 convicting and sentencing him to undergo rigorous imprisonment for life under section 302 read with section 34 I.P.C. has come up in appeal before us. Along with the appellant one Nandkishore Gulabsingh Rathod was also convicted under section 302 I.P.C. read with 34 I.P.C. and had been sentenced to life imprisonment. He had preferred Criminal Appeal No. 93 of 1982 in this Court. As the learned Additional Public Prosecutor made a statement on the basis of some documentary evidence that the said appellant had died on 9-9-84, we ordered his appeal to stand abated on 28-6-96. 2. The prosecution case in brief runs as under:--- Deceased Premchand was the real brother of Kishore Ghusia P.W. 5 and Jaichand Ghusia P.W. 8. They had a sister Lajwanti who was married about 15 years ago to one Ramkrishna in Gorakhpur, Uttar Pradesh. Lajwanti had four children from Ramkrishna. About two years prior to the incident she left Ramkrishna and her children and came down to Bombay. There she married one Ramdeo Srivastav, the real brother of the appellant. After marriage with Ramdeo, Lajwanti started residing in a hut situated about 100 meters away from the hut of the deceased and others. On account of Lajwanti's marriage with Ramdeo, relations between Premchand and others on one hand and Lajwanti on the other became so much strained that they stopped visiting one another. On 18th May, 1980 at about mid-day Lajwanti came to the house of Premchand and others. Since they were not on visiting terms, the mother of Premchand and others asked Lajwanti to go back. Lajwanti however insisted that she wanted to meet Premchand. Thereupon the mother of Premchand and others pushed her away. This apparently seems to have infuriated the appellant who was Lajwanti's brother-in-law. At about 1 or 1.15 p.m. the same day the appellant started abusing Premchand and others from front of their house. He asked P.W. 8 Jaichand to come out of the house. At that time Jaichand was not in the house. Consequently, Premchand and Kishore came out of the house. Premchand went to the appellant and asked him as to why he was abusing and thereupon the appellant started hurling some more abuses. He asked P.W. 8 Jaichand to come out of the house. At that time Jaichand was not in the house. Consequently, Premchand and Kishore came out of the house. Premchand went to the appellant and asked him as to why he was abusing and thereupon the appellant started hurling some more abuses. Some persons collected there and on their intervention Premchand was brought back to the house. Kishore stood at the entrance of his house and from there could hear the appellant abusing them. While appellant was abusing them Nandkishore Gulabsingh Rathod (he preferred an appeal in this Court and during the pendency of the same died) who lived in the vicinity of Premchand and others also joined in hurling abuses upon them. At that time Nandkishore Gulabsingh Rathod said that he would cut them into pieces. After some time both he and the appellant are said to have gone away. At about 2.30 or 3 p.m. the same day, Jaichand P.W. 8 returned home. He was taking his lunch. Kishore and Premchand were sitting by his side. At about 3 p.m. Nandkishore Gulabsingh Rathod again started hurling abuses at them. On that Kishore and Premchand came out of the house. Premchand asked Nandkishore as to why he was hurling abuses at them and on that the latter replied that he would finish all of them. Premchand also asked Nandkishore as to why he was intervening in the quarrel for their quarrel was only with Ramdeo, the husband of Lajwanti. In the meantime Nandkishore Gulabsingh Rathod dashed his head against the forehead of Premchand resulting in the latter losing balance and nearly falling down. At that time the appellant came near Premchand, caught hold of him and dragged him on the road upto a distance of 10-12 feet near the house of one Gujrathi tailor. Nandkishore Gulabsingh Rathod then took out a knife from the front pocket of his trouser and was moving the same in such a manner so that nobody came near him. At that time he was saying that he would finish anyone who came near him. Kishore wanted to release Premchand but did not dare to do so as Nandkishore Gulabsingh Rathod was having a knife in his hand. In the meantime Jaichand P.W. 8 and Subhashchand also came there. Nandkishore Gulabsingh Rathod started proceeding in the direction of the appellant who was holding Premchand. Kishore wanted to release Premchand but did not dare to do so as Nandkishore Gulabsingh Rathod was having a knife in his hand. In the meantime Jaichand P.W. 8 and Subhashchand also came there. Nandkishore Gulabsingh Rathod started proceeding in the direction of the appellant who was holding Premchand. He was brandishing his knife. Jaichand and Subhashchand who were having sticks in their hands were asking Nandkishore to throw away the knife but the latter did not accede to their request. In the meantime Nandkishore Gulabsingh Rathod came near the appellant who was holding Premchand and inflicted one knife blow in the abdominal region of Premchand. As a consequence of the blow blood started oozing out from Premchand's injury. The appellant ran away. Thereafter Nandkishore Gulabsingh Rathod started moving near Jaichand with a knife in his hand. Jaichand and Subhashchand had sticks in their hands and assaulted Nandkishore with the same. Since Nandkishore was not throwing the knife, Jaichand proceeded towards him and caught hold of the blade of the knife with his hand resulting in a bleeding injury on his right palm. Kishore put his right hand around the neck of Nandkishore. As Nandkishore was struggling to free himself, all of them caught hold of him. In the struggle Kishore also received some injuries. In the meantime two constables came on the place of the incident. They caught hold of Nandkishore Gulabsingh Rathod. Jaichand snatched the knife from his hand. Thereafter Kishore and others along with Premchand and Nandkishore proceeded for Chembur Police Station. 3. The F.I.R. of the incident was lodged at 3.15 p.m. on the basis of information given by Kishore P.W. 5 at Chembur Police Station. 4. Under instructions of one Police Officer by name of Madhukar Thawal to whom Kishore had narrated the incident, he removed Premchand to Sion Hospital in a taxi. Jaichand P.W. 8 and a constable also accompanied them. It appears that prior to reaching Sion Hospital, Premchand succumbed to his injuries. The injuries of Jaichand P.W. 8 and Kishore P.W. 5 were medically examined the same day i.e. 18th May, 1980 at 3.45 p.m. respectively in the casualty department of Sion Hospital by Dr. Ramesh Somnath P.W. 13. On the person of Jaichand, the doctor found following injuries:--- "(1) C.L.W. half inch by 1/6th inch by skin deep. Right thumb base, palmar aspect. Ramesh Somnath P.W. 13. On the person of Jaichand, the doctor found following injuries:--- "(1) C.L.W. half inch by 1/6th inch by skin deep. Right thumb base, palmar aspect. (2) Multipal minor abrasion right palm." In his opinion injury No. 1 could be caused as a result of palm coming into contact with the blunt edge of a knife Article 11 and injury No. 2 could be caused during scuffle between the victim and another person in connection with snatching of the knife. On the person of Kishore doctor found the following injuries:--- "(1) Linear abrasion left side face and neck 4 inches long. (2) Minor abrasion lower lip." In his opinion both the injures could be caused as a result of assault on the victim with a knife Article 11. After administering medical aid to Jaichand and Kishore Dr. Ramesh Somnath permitted them to go. 5. The bulk of the investigation in the instant case was conducted by Inspector Shashikant Kamat P.W. 6 of police station Chembur. The panchanama of the scene of the incident was drawn by S.I. Thaval in his presence. At the police station under his supervision S.I. Thaval recorded the statement of Jaichand P.W. 8 and some others on the same day. Besides some other witnesses were also interrogated. He also took into possession the blood stained knife which had been brought along with appellant Nandkishore Gulabsingh Rathod by Kishore and Jaichand. On 19th May, 1980 the appellant was produced before him, having been arrested by the detection squad, the recovered articles were sent by him to the Chemical Analyst. Finally after completing the investigation the charge-sheet was submitted in the instant case. 6. Going backwards the autopsy on the dead body of the deceased was conducted by Dr. Subhash Gupta P.W. 6. Dr. Gupta found the following injuries on the person of the deceased :--- "One incised stab wound on the chest in the left anteriorly auxiliary line 8 cms. below and out of left nipple 2.0 x 0.5 cms. cavity deep. On dissection he found the perforation of 6th intercostal space in the mid auxiliary line 2.5 x 1 cm. Nicking the leftlobe inner aspect. It was penetrating the pericardium and left ventricle 1.5 cms. Both the internal injuries are corresponding to the external injuries on the chest." In the opinion of Dr. cavity deep. On dissection he found the perforation of 6th intercostal space in the mid auxiliary line 2.5 x 1 cm. Nicking the leftlobe inner aspect. It was penetrating the pericardium and left ventricle 1.5 cms. Both the internal injuries are corresponding to the external injuries on the chest." In the opinion of Dr. Gupta the deceased died on account of shock and haemorrhage due to injuries on the chest. Dr. Gupta also opined that having regard to the extensive damage which had been caused to the heart of the deceased, the injuries sustained by him were necessarily fatal. 7. Case was committed to the Court of Sessions in the usual manner. In the trial Court the appellant was charged along with Nandkishore Gulabsingh Rathod under section 302 read with 34 I.P.C. to the aforesaid charge, he pleaded not guilty and claimed to be tried. In the trial Court apart from tendering some documentary evidence, prosecution examined as many as 16 witnesses; two out of them viz. Kishore Ghusia P.W. 5 and Jaichand Ghusia P.W. 8 gave occular account. In defence no witness was examined from the side of the appellant. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated hereinabove. 8. We have heard Mr. M.D. Gangakhedkar for the appellant and Mr. D.T. Palekar, Additional Public Prosecutor for the State of Maharashtra. We have also perused the depositions of the witnesses examined during the trial, the material exhibits, statement of the appellant recorded under section 313 Cr.P.C. and the impugned judgment. After giving our anxious consideration to the matter we are of the opinion that this appeal deserves to be partly allowed. In our opinion the appellant deserves to be acquitted under section 302 read with 34 I.P.C. and instead should be convicted under section 304 Part (II) I.P.C. 9. In this appeal the first question to be examined is whether the evidence of two eye-witnesses examined by the prosecution viz. Kishore P.W. 5 and Jaichand P.W. 8, two real brothers of the deceased Premchand, inspires confidence or not? Our considered answer to the aforesaid question is in the affirmative. In paragraph 2 of this judgment we have given out the version of assault on the basis of averments contained in the statement of Kishore P.W. 5. Kishore P.W. 5 and Jaichand P.W. 8, two real brothers of the deceased Premchand, inspires confidence or not? Our considered answer to the aforesaid question is in the affirmative. In paragraph 2 of this judgment we have given out the version of assault on the basis of averments contained in the statement of Kishore P.W. 5. Hence, we do not wish to reproduce the same in entirety. Broadly speaking the evidence of Kishore P.W. 5 is to the effect that on the date of incident itself at about mid-day Lajwanti (his, Jaichand's and Premchand's real sister) had come to their house but his mother pushed her out because after her second marriage with Ramdeo, they had completely cut off social relations with her. This was taken affront to by the appellant who first alone abused him, Premchand and others and thereafter joined with Nandkishore Gulabsingh Rathod in abusing them. At about 3.00 p.m. while they were abusing Premchand, Nandkishore GULABSINGH Rathod caught hold of Premchand and dashed his head against that of Premchand. In the meantime the appellant caught hold of Premchand, Nandkishore Gulabsingh Rathod took out his knife and brandished the same and said that in case any person came near he would be killed. Thereafter while the appellant was catching hold of Premchand, Nandkishore Gulabsingh Rathod assaulted him with a knife. After the assault the appellant managed to run away. Jaichand and Subhashchand who had sticks in their hands assaulted Nandkishore Gulabsingh Rathod with the same. As Nandkishore was not throwing down the knife, Jaichand proceeded towards him and caught hold of the blade of his knife resulting in a bleeding injury to his palm. In the meantime Kishore put his hand around the neck of Nandkishore Gulabsingh Rathod who tried to extricate himself and in the resultant struggle Kishore received injuries. Meanwhile two constables came and with them Kishore and Jaichand took Nandkishore to Chembur Police Station. The version of the incident as given out by P.W. 5 Kishore as regards the main incident is corroborated by Jaichand P.W. 8. It may be stated that Jaichand could not see what had happened prior to 2.30 p.m. 3.00 p.m. because he was away from the house and had returned only at about 2.30 p.m. 10. We have gone through the evidence of Kishore P.W. 5 and Jaichand P.W. 8 and in our judgment it inspires implicit confidence. It may be stated that Jaichand could not see what had happened prior to 2.30 p.m. 3.00 p.m. because he was away from the house and had returned only at about 2.30 p.m. 10. We have gone through the evidence of Kishore P.W. 5 and Jaichand P.W. 8 and in our judgment it inspires implicit confidence. Assurance is lent to their claim of having seen the incident by the circumstance that both of them received injuries. In paragraph 4 of this judgment we have detailed the injuries sustained by Jaichand and Kishore. Their perusal shows that the manner in which they allege they were caused is probable. These injuries vindicate and establish their presence on the place of the incident, which was near their own house and where in normal course there was every reason for them to be present. Another circumstance which show that they were present and saw the incident is that their evidence to the effect that Nandkishore Gulabsingh Rathod assaulted the deceased with a knife is corroborated by the autopsy report of the deceased which shows that he sustained an incised stab wound on his person. Another corroboration which is forthcoming to their evidence is by the circumstance that the F.I.R. of the incident was made within 15 minutes of the incident i.e. at 3.15 p.m. the same day, at police station Chembur. 11. In our view the learned trial Judge was wholly correct in concluding the involvement of the appellant and co-accused Nandkishore Gulabsingh Rathod in the instant crime. 12. Mr. Gangakhedkar, learned Counsel for the appellant undaunted by the fact that the odds were against him, first made a valiant attempt to assail the conviction of the appellant on merits but finding that his submissions were not making headway chose the wiser option of switching on to his legal submission viz. only an offence under section 304 Part (II) I.P.C. is made out against the appellant. We find substance in Mr. Gangakhedkar's contention that it would not be safe to conclude that the appellant shared the common intention with respect to the murder of the deceased. We have warned ourselves to the stringent caution to be exercised by the courts before invoking the application of section 34 I.P.C. as laid down by the Judicial Committee of the Privy Council in the oft-quoted case of (Mahbub Shah v. Emperor)1, A.I.R. 1945 Privy Council 118. We have warned ourselves to the stringent caution to be exercised by the courts before invoking the application of section 34 I.P.C. as laid down by the Judicial Committee of the Privy Council in the oft-quoted case of (Mahbub Shah v. Emperor)1, A.I.R. 1945 Privy Council 118. In the aforesaid decision Their Lordships of the Judicial Committee of the Privy Council have observed thus:--- "...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..." The question of common intention is basically a question of fact. In this case we do not feel that it can safely be said that the appellant shared the common intention with respect to the murder of the deceased for the reasons hereinafter stated. Firstly, we find that there is no background of protracted malice or ill-will between the appellant and Nandkishore Gulabsingh Rathod on one side and the deceased on the other from which it can be inferred that they had a motive to kill deceased. In this connection it would be well to remember that the prosecution case is that about three hours prior to the incident i.e. sometimes at about noon on 18th May, 1980 Lajwanti, own sister of the deceased, P.W. 5 Kishore and P.W. 8 Jaichand had come inside their house but since they had cut off all social relations with her as she had married for the second time one Ramdeo, she was turned out from the house. This seems to have infuriated the appellant who was younger brother of Ramdeo. This in our opinion is not sufficient to conclude that the appellant shared the common intention to commit the murder of the deceased. Secondly we find that Kishore P.W. 5 and Jaichand P.W. 8 have not stated in their depositions during trial that prior to the launching of the assault on the deceased by Nandkishore, it was either said by Nandkishore or by the appellant who was catching hold of the deceased, that the deceased should be done to death. The evidence of both the witnesses, is that Nandkishore was only scaring away the witnesses and saying that in case they came near they would be killed. The evidence of both the witnesses, is that Nandkishore was only scaring away the witnesses and saying that in case they came near they would be killed. Thirdly, it is not the case of the prosecution that while the appellant continued catching hold of the deceased, he was finished by Nandkishore Gulabsingh Rathod. The evidence is that Nandkishore Gulabsingh Rathod only inflicted a solitary knife bolw on the deceased who did not succumb to his injuries instantaneously. In the instant case the evidence is that after the incident was over the deceased Premchand was still alive and along with him Kishore P.W. 5 and Jaichand P.W. 8 proceeded for Chembur Police Station and it appears that it was on the way to Sion Hospital that Premchand breathed his last. If the totality of the circumstances are borne in mind, in our opinion, it would not be safe to infer that when the appellant caught hold of the deceased and Nandkishore Gulabsingh Rathod assaulted him with a knife there was a common intention on their part to kill the deceased. 13. In our view in a case of the present type section 38 of the Indian Penal Code would have application. The aforesaid section reads thus:--- "38. Persons concerned in criminal act may be guilty of different offences. Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act." In our view taking into consideration the entire facts it would be legitimate to infer that when the appellant caught hold of Premchand and continued catching hold of him while Nandkishore Gulabsingh Rathod inflicted a solitary knife blow on his person he had the knowledge of Premchand's death contemplated by section 304 Part (II) I.P.C. In our view the appellant would be squarely guilty of an offence under section 304 Part (II) I.P.C. We are fortified in our view by the decision of the Apex Court reported in A.I.R. 1977 S.C. 2252 (Bhaba Nanda v. State of Assam)2. In that case the three appellants, all of whom were armed, chased the deceased; thereafter two of them assaulted him with wooden hammer and iron rod respectively; and Bhaba Nanda did not assault him but only chased and caught hold of him. In that case the three appellants, all of whom were armed, chased the deceased; thereafter two of them assaulted him with wooden hammer and iron rod respectively; and Bhaba Nanda did not assault him but only chased and caught hold of him. The Apex Court in paragraph 6 of the judgment held that on the facts involved no common intention with respect to the murder of the deceased could be established against appellant Bhaba Nanda. It applied the principle laid down in section 38 of the Indian Penal Code and held appellant Bhaba Nanda guilty for an offence under section 304 Part (II) of I.P.C. and consequently convicted him under the said section. 14. The question is as to what should be the quantum of sentence to be awarded to the appellant under section 304 Part (II) I.P.C. Mr. Gangakhedkar vehemently pleaded that the circumstances enumerated below warrant that a lenient view be taken in the matter of sentence:--- (a) that the incident took place more than 15 years ago; (b) that it was as a result of a feeling of humiliation by the appellant at the turning out of his sister-in-law Lajwanti from the house of the deceased Premchand and others; (c) that only one knife blow of the deceased was given; (d) that the deceased was not killed on the spot; and (e) that there is nothing to indicate that the appellant is a previous convict or has any criminal antecedents. He urged that the appellant has been in jail for about nine months and it would be conducive to the interest of justice if his sentence is reduced to the period already undergone and a substantial fine be imposed on him which should be directed to be paid as compensation to the wife/legal heirs of the deceased. We regret that we are not able to accede to this contention of Mr. Gangakhedkar. The loss of a human life cannot be taken so lightly. A jail sentence of nine months is a mockery for the loss of a human life. Deprivation of a human life warrants definitely a more stringent jail sentence than 9 months. It is true that there are some mitigating circumstances in favour of the appellant. However, in our view they are not strong enough to decide the question of sentence in the manner suggested by Mr. Gangakhedkar. Deprivation of a human life warrants definitely a more stringent jail sentence than 9 months. It is true that there are some mitigating circumstances in favour of the appellant. However, in our view they are not strong enough to decide the question of sentence in the manner suggested by Mr. Gangakhedkar. In our view the ends of justice would be squarely met if the appellant is awarded a sentence of three years R.I. coupled with a fine of Rs. 20,000/- and two years R.I. in its default, under section 304 Part (II) I.P.C. 15. In the result this appeal is partly allowed and partly dismissed. We set aside the conviction and sentence of the appellant under section 302 read with 34 I.P.C. We acquit him on that count. Instead we convict the appellant under section 304 Part (II) I.P.C. and sentence him to undergo three years R.I. and to pay a fine of Rs. 20,000/- rupees twenty thousand and in default to undergo two years R.I. The fine shall be deposited by the appellant within a period of one year in the trial Court failing which he would undergo sentence imposed in default of payment of fine. In case this fine of Rs. 20,000/- is deposited the whole of it shall be paid as compensation to the wife of the deceased and in case the deceased was not married or his wife is no more then to the legal heirs of the deceased. Immediately after the fine has been deposited, the trial Court shall inform the wife of the deceased and in case he was not married or his wife is no more then the legal heirs of the deceased, about this compensation. The appellant is on bail, he shall be taken into custody forthwith to serve out the sentence. Before parting with this judgment we would be failing in our fairness if we do not put on record the enormous assistance which has been rendered to us by the Counsel for the parties in the disposal of this appeal. Issuance of certified copy is expedited. Appeal partly allowed.