JUDGMENT 1. - These two appeals are directed against the judgment and order of conviction recorded by the learned Sessions Judge, Doongarpur in sessions case No. 22/91 whereby the learned Sessions Judge has accepting the evidence as led by the prosecution found the appellants guilty of murder and punished them for life imprisonment accordingly. It is this order which is assailed in this appeal on the grounds mentioned in the memo of appeal as also on the grounds canvassed before us by the learned counsel for the accused appellants. 2. The prosecution story stated briefly is that a telephone message was received in the Police Station Ganeshpur, District Doongarpur that one Mohan Lal Kothari resident of village Bankoda has been killed by strangulation by unknown assailants and one Ravindra Kumar is seriously injured. This call was made by Shri Udailal Jain, Chairman, Panchayat Samiti, Aaspur. On the basis of this information, the S.H O. proceeded to investigate the matter. According to the complaint, he reached Bankoda. He found deceased Mohan Lal Jain lying on the floor dead. He also found Revindra Kumar injured seriously in the back, the injury was bleeding and he was therefore, taken to the primary health center immediately. It was then disclosed by the prosecution that the deceased had informed said Ravindra Kumar about the accused persons visiting him for the purposes of buying the tape recorder. These persons were sitting with the deceased when Ravindra Kumar return in the evening and saw them talking to the deceased Mohan Lal, he went to his room for study. After some time, he was called by accused Kesar Puri saying that he is called by deceased and when witness Ravindra Kumar went ahead to meet Mohan Lal, Kesar Puri from behind stabbed in the back which resulted in bleeding injury and Ravindra Kumar ran away to save himself. While running away, he saw deceased Mohan Lal lying on the floor. He thereafter, reached his friends and immediately disclosed them the occurrence. On the basis of this information received, investigation was conducted. The accused persons were identified and arrested. The. prosecution has examined as many as 24 witnesses to establish its case. 3. On appreciation of this evidence, the learned Sessions Judge came to the conclusion that the accused persons were guilty of murdering Mohan Lal and causing serious hurt to Ravindra Kumar. The accused persons were identified and arrested. The. prosecution has examined as many as 24 witnesses to establish its case. 3. On appreciation of this evidence, the learned Sessions Judge came to the conclusion that the accused persons were guilty of murdering Mohan Lal and causing serious hurt to Ravindra Kumar. He therefore, proceeded to convict the accused persons accordingly and sentenced them to suffer life imprisonment for causing murder of Mohan Lal. It is this judgment of conviction which is assailed in this appeal as aforesaid. 4. With the assistance of the learned counsel for the accused and the learned Public Prosecutor, we have gone through the record of the case carefully and have re-appreciated the evidence on record in light of the submissions made by the learned counsel for the accused as also by the learned Public Prosecutor. 5. PW 1 Gopal Singh is the Assistant Sub-Inspector, Incharge of Police Station, Ganeshpur who on 10.1.91, received the telephone call regarding murder of Mohan Lal Kothari by unknown assailants and registered the first information. He then visited the spot and discovered the deceased dead and injured Ravindra Kumar with a bleeding injury. Ravindra Kumar was therefore, dispatched to receive medical aid and the witness proceeded to further investigate the matter. The testimony of this witness, therefore, proves immediate information being lodged with the Police regarding killing of Mohan lal. The telephone call was made by a person who was not a witness to the incident and therefore, no persons were named as assailants in the information. The evidence of this witness, therefore, discloses immediate recording of the crime by the Police. 6. PW 2 Goverdhanlal is inconsequential witness. He however, identified both the persons and speaks of accused Tajeng talking to one Bheemchand regarding Tajeng's wife. This evidence has no nexus with the crime and beyond identifying these two persons as individual having conversation with the deceased a day prior to the incident is inconsequential. Similar is the case of PW 3 Nathu who saw both the accused persons in the village a day earlier. He thus, proves that the accused were visiting the village and knew the deceased. His evidence does not prove anything beyond that. 7. PW 4 Sohanlal is a punch witness who was witness to the execution of documents Ex.P/2 to Ex.P/5. He proves these documents as having been executed in his presence. He thus, proves that the accused were visiting the village and knew the deceased. His evidence does not prove anything beyond that. 7. PW 4 Sohanlal is a punch witness who was witness to the execution of documents Ex.P/2 to Ex.P/5. He proves these documents as having been executed in his presence. PW 5 Goverdhan Singh is the Head Constable who was Incharge of the Malkhana and received certain sealed packets on 11.1.91. He disposes to have handed over the said sealed packets in the same condition to Ramchandra for transmission to Forensic Science Laboratory, Jaipur. He also proves documents Ex.P/6 and Ex.P/6A executed by him in this connection. 8. PW 6 Rajnikant is another punch witness who witnessed the execution of documents Ex.P/8 to P/13. He proves these documents to have been duly executed in his presence. 9. PW 7 Ravindra Kumar is the only eye-witness and therefore, an important witness in this case. He states that very return in the evening, he saw that Mohan Lal was sitting in his room on a bed flanked by both the accused persons and the three were talking to each other. The accused Keshar Puri asked the witness as to whether earlier he was residing in the house of Premchand Tailor, the witness answered in the affirmative and stated that he has changed the house for better facility. The witness was then asked by Mohan Lal to go to his room and study. The witness then states that accused Keshar Puri called him after half an hour and said that he is called by the deceased Mohan Lal. The witness when he reached the room of Mohan Lal, accused Keshar Puri who was following him, stabbed in back near the waist. The witness pointed out and identified Keshar Puri as a person assaulting him. The witness then ran away after seeing deceased Mohan Lal lying on the floor immovable. He then met Shankerlal and Maganlal, his friends and narrated the whole incident to them. The witness has been extensively cross-examined in relation to his presence as also in relation to knowledge about the incident. The entire cross-examination does not disclose that he has in any manner been shaken or that his testimony made in examination in chief is inconsistent or contradictory with the statement made in the cross-examination. There is no reason why this witness should be disbelieved. The entire cross-examination does not disclose that he has in any manner been shaken or that his testimony made in examination in chief is inconsistent or contradictory with the statement made in the cross-examination. There is no reason why this witness should be disbelieved. It is pertinent to note that the deposition of the witness appears to be intrinsically truthful. The witness does not attribute any overt act to accused Tajeng. The only action allegedly done by the accused Tajeng according to this witness is that he gaged the mouth of the witness when Kesar Puri stabbed him in the back in relation to statement of participation of Tajeng. There is no corrobation nor is there any affirmation of the statement in the cross-examination in any case beyond this action, nothing is alleged to have been done by accused Tajeng. The witness has not attempted to falsely implicate anybody and has really described what transpired with him in the evening of 10.1.91. 10. PW 8 Chhotalal is a panch witness who proves Ex.P/10. PW 9 Parthi is a witness to arrest of the accused persons and proves the memo of arrest Ex.P/18 to P/20. PW 10 Gajendra Singh is a former Sarpanch in whose presence, the knife was recovered from Nala water at the instance of accused Kesar Puri and who witnessed execution of documents Ex.P/10 to P/12 and Ex.P/22 to P/24 regarding recovery of the knife from the water. This witness thus proves the fact that a knife used for stabbing Ravindra Kumar was recovered at the instance of accused from the water. PW 11 Gatulal is brother of deceased Mohan Lal and proves documents Ex.P/24 to P/27-A which are the accounts books extract of Mohan Lal. 11. PW 12 Pranjivan deposes to have heard the conversations between accused persons and the deceased regarding return of money by the accused to the deceased. The cross-examination of this witness is inconsequential. He proves that the accused persons owed money to the deceased and were irritated by the demand of deceased for return of that money. He therefore, proves the motive for the accused persons to assault the deceased. PW 13 Manilal identifies the clothes of Ravindra Kumar and proves Ex.P/15. PW 14 Shambhu Singh is another punch witness who witnessed the recovery of knife and identifies the knife in court. He proves Ex.P/22 and P/23. 12. He therefore, proves the motive for the accused persons to assault the deceased. PW 13 Manilal identifies the clothes of Ravindra Kumar and proves Ex.P/15. PW 14 Shambhu Singh is another punch witness who witnessed the recovery of knife and identifies the knife in court. He proves Ex.P/22 and P/23. 12. PW 15 Magan Lal and PW 16 Shankerlal are the witnesses who met Ravindra Kumar immediately after he ran away from the scene of offence being stabbed in the back. They corroborated the story of Ravindra Kumar on all material particulars and confirmed the immediate discloser of incident to them. These witnesses were also told by Ravindra Kumar that Mohan Lal was killed by accused persons. These two witnesses, therefore, substantially and materially corroborates the testimony of Ravindra Kumar who states that he was stabbed by accused Kesar Puri and saw the deceased lying dead on the floor when he ran away after being stabbed. There is thus no impeachable evidence by PW 7 Ravindra Kumar, PW 15 Magan Lal and PW 16 Shanker Lal that the accused persons were last seen together with the deceased and they were so last seen with the deceased by Ravindra Kumar, Ravindra Kumar was sought to be murdered by the accused Kesar Puri by calling him from out of his room and stabbing him in his back. 13. PW 17 Dr. Laxman Singh who conducted the post-mortem. He proves homicidal death of Mohan Lal and he proves the injury caused to Ravindra Kumar PW 7. PW 18 Yashwant Lal is yet another witness who saw the deceased lying dead on the floor and heard about stabbing Ravindra Kumar. He thus is a witness who saw the incident and has described what he saw which substantially corroborates what was seen by Ravindra Kumar when he ran away from the scene of offence. 14. PW 19 is the learned Magistrate who recorded and held the identification parade, where the accused persons were identified by PW 7 Ravindra Kumar. PW 20 is the person who recorded the formal first information Ex.P/31, he proves it. PW 21 is Police Constable who took the articles to F.S.L., Jaipur. He proves the documents with which he took these articles to Jaipur. PW 22 Aziz Mohammed who directed Ramchandra to take the articles mentioned in Ex.P/32 to P/34 to Jaipur. PW 20 is the person who recorded the formal first information Ex.P/31, he proves it. PW 21 is Police Constable who took the articles to F.S.L., Jaipur. He proves the documents with which he took these articles to Jaipur. PW 22 Aziz Mohammed who directed Ramchandra to take the articles mentioned in Ex.P/32 to P/34 to Jaipur. PW 23 Punjilal is yet another witness to the arrest and PW 24 is the Station House Officer and Investigating Officer who investigated the crime. It was on appreciation of this evidence that the learned Judge recorded conviction of the accused persons. 15. Arguing the appeal for the accused, learned counsel Shri Mridul Jain stated that there is no independent eye-witness and the entire case is based on circumstantial evidence. The testimony of the witnesses PW 7, PW 15 and PW 16 is not sufficient to warrant and order of conviction. He then contended that there is no motive proved by the prosecution and PW 7 talks of sale of tape recorder being negotiated with the accused persons, the same was not taken away and it was found lying near the accused persons whereas PW 12 Pranjivan talks of money transaction. According to the learned counsel, therefore, there is no motive for committing the crime and in such circumstances, the conviction is unsustainable. It was then urged by the learned counsel that if the story of the witness PW 7 is accepted, then accused Kesar Puri had a knife which could have used for killing Mohan Lal instead of strangulating him. It was then submitted by the learned counsel that if PW 7, according to his own statement, was sitting in his room and the door was closed, obviously he was not a witness to anything that occurred in the room of Mohan Lal. There was no need whatever for the accused persons to call the witness and then stab him. According to the learned counsel, therefore, the entire story of the prosecution is fabricated and the accused persons have been implicated falsely, therefore, they are liable to be acquitted. 16. Replying the contentions raised by the learned counsel, the learned Public Prosecutor submitted that though there are no other eye-witness, the evidence of PW 7 who was injured is enough evidence for maintaining the order of conviction. 16. Replying the contentions raised by the learned counsel, the learned Public Prosecutor submitted that though there are no other eye-witness, the evidence of PW 7 who was injured is enough evidence for maintaining the order of conviction. According to the learned Public Prosecutor admittedly, there was no motive for assaulting Ravindra Kumar and the only possible reason for assaulting Ravindra Kumar is to eliminate any possibility of witness for killing of Mohan Lal by accused Kesar Puri that being the situation. According to the learned Public Prosecutor, there is no error in the order of conviction and the appeals deserve to be dismissed. It was submitted by the learned Public Prosecutor that there is a very good description what has occurred by Ravindra Kumar who immediately disclosed the incident to PW 15 and PW 16. These witnesses in term, corroborate the testimony of Ravindra Kumar that the accused persons were seen last with the deceased when he was alive. A knife was recovered at the instance of accused Kesar Puri from the Nala and these circumstances according to the learned Public Prosecutor are enough to warrant conviction of the accused persons as aforesaid. 17. We have re-appreciated the evidence in light of these contentions and we find that though attractive, the submissions of the learned counsel are not acceptable in relation to accused Kesar Puri. The testimony of PW 7 as corroborated by PW 15 and PW 16 does prove the assault on PW 7 and the only reason why he was assaulted is the fact that the accused warranted eliminate to possible witness to the killing of Mohan Lal. However, the submission of the learned counsel is correct in relation to participation of accused Tajeng, no overt act is attributed to accused Tajeng and nothing is mentioned about his participation. There is no concrete evidence regarding participation of accused Tajeng in any of the occasions done by Kesar Puri. He was merely present on the scene of offence accompanies the accused Kesar Puri. It is pertinent to note that in the absence of any evidence regarding definite motive for murdering Mohan Lal by Kesar Puri, it cannot be said that for that motive, the accused Tajeng had common intention of causing death of Mohan Lal. He was merely present on the scene of offence accompanies the accused Kesar Puri. It is pertinent to note that in the absence of any evidence regarding definite motive for murdering Mohan Lal by Kesar Puri, it cannot be said that for that motive, the accused Tajeng had common intention of causing death of Mohan Lal. In order to prove common intention for application of Section 37 of the Indian Penal Code, proof of intention is necessary and for that purpose meeting of mind is necessary. There is no evidence to show as to what was the motive for Kesar Puri to murder Mohan Lal and how it was shared by accused Tajeng. There is no evidence to show that accused Tajeng shared the intention of Kesar Puri to murder Mohan Lal and there therefore, no reason how he can be convicted murder with the aid of Section 34. In our opinion, the learned Sessions Judge has erred in this respect. Tajeng had no motive. There is no evidence of Tajeng sharing the motive of Kesar Puri. There is no overt act attributed to accused Tajeng nor is there any evidence of the fact that the accused owed any sum of money to the deceased Mohan Lal and to avoid repayment of such money. Tajeng also may be motivated to kill Mohan Lal. 18. On re-appreciation of the evidence on record, we are of the opinion that the evidence on record as accepted by us is also not sufficient for warranting conviction of accused under Section 302/34 of the Indian Penal Code. The learned Sessions Judge also has not given any reason for convicting the accused Tajeng under Section 302/34 of the Indian Penal Code. It will thus be seen that it was accused Kesar Puri who called Ravindra Kumar. It was accused Kesar Puri who stabbed Ravindra Kumar and it was therefore, accused Kesar Puri who was the person responsible for strangulation of Mohan Lal. It was the intention of Kesar Puri alone to strangulate or murder Mohan Lal and wipe out any possible evidence of such killing. He therefore, went to the room of witness Ravindra Kumar called him out and stabbed him with intend to kill him. However, the learned Sessions Judge has convicted the accused persons under Section 324/34 as the nature of injury was not deposed to be serious by the Doctor. He therefore, went to the room of witness Ravindra Kumar called him out and stabbed him with intend to kill him. However, the learned Sessions Judge has convicted the accused persons under Section 324/34 as the nature of injury was not deposed to be serious by the Doctor. Since we have accepted the testimony of Ravindra Kumar in its entirety to be corrected by the testimony of PWs. 15 and 16, we find no reason to interfere with the finding of the learned Sessions Judge regarding guilt of the accused under Section 324/34 for causing hurt to Ravindra Kumar. However, we find it impossible to sustain the conviction of accused Tajeng under Section 302 even with the aid of Section 34 of the Indian Penal Code. 19. In the result, the appeals succeed and are allowed partially. The judgment of conviction in relation to Kesar Puri is confirmed. It is set aside in relation to conviction for accused Tajeng under Section 302/34 of the Indian Penal Code. It is confirmed in relation to conviction of both the accused in relation to causing injury to Ravindra Kumar PW 7 sentencing them under Section 324/34 of the Indian Penal Code. In our opinion, the accused Tajeng has suffered enough imprisonment after conviction, therefore, it is directed that he is already undergone the sentence and he be released forthwith, if not required for any other offence. The sentence and conviction of accused Kesar Puri is hereby confirmed on both the counts.Appeal of T Allowed in Part and that of K Dismissed. *******