JUDGMENT - VISHNU SAHAI, J.:---These appeals have been preferred by five persons namely Ravindra @ Ravi Ramchandra Gurav, Dhananjay Datta Dhuri, Manoj Jaysing Kadam, Prashant Suresh Khade and Shashank Khade against the judgment and order dated 31-10-1995, passed by the Additional Sessions Judge, for Greater Bombay in Sessions Case No. 1016 of 1992 convicting and sentencing them to suffer imprisonment for life for the offence under section 302 read with 34 of the I.P.C. While Criminal Appeal No. 631 of 1995 has been preferred by the appellants-Shashank Khade and Manoj Jaysingh Kadam, Criminal Appeal No. 700 of 1995 has been preferred by Ravindra @ Ravi Ramchandra Gurav, Dhananjay Datta Dhuri and Prashant Suresh Khade. Since both these appeals arise out of same set of facts and a common judgment, we are disposing them off by one judgment. 2. The prosecution case in short, is as under:—- At the time of the incident, whereas the deceased Sanjay Kawle, eye-witnesses Vijay Dhupkar P.W. 2 and Rohidas Kawle, P.W. 3 lived in Palanji Ratanji Chawl No. 8 the appellants lived in Palanji Ratanji Chawl No. 9. The said chawls were situated in the immediate proximity of one another at Dadaji Kondeo Marg, Byculla, Bombay 27. On 6-6-1992, at about 5/5.30 p.m. the appellant-Shashank Khade pushed Devendra Kawle, brother of Baban Kawle and Sanjay Kawle. Consequently, a fight ensued between Shashank Khade and Devendra Kawle, Vijay Dhupkar P.W. 2 Baban Kawle and Sanjay Kawle pacified them. The appellant-Prashant Khade, brother of the appellant Shashank Khade came there and threatened Vijay Dhupkar and others that he would see them. In respect of the incident, Shashank Khade lodged a complaint at Byculla Police Station. On 9-6-1992 at about 8 p.m. while Vijay Dhupkar was behind Patanwala Building, he met the deceased Sanjay Kawle. They went to Hotel Arogya Bhavan, Hingwala Lane, at Dadaji Kondeo Marg, Byculla, Bombay. While they were eating in the said hotel, they saw the appellants. The appellants Ravindra Gurav, Dhananjay Dhuri and Prashant Khade were armed with knives. When after paying the bill, Vijay Dhupkar and Sanjay Kawle stepped out of the hotel, the appellant Prashant Khade caught hold of Sanjay Kawle and dragged him out of the hotel. He was felled down on the road and all the five appellants started inflicting fist blows on him. Sanjay Kawle started shouting. When after paying the bill, Vijay Dhupkar and Sanjay Kawle stepped out of the hotel, the appellant Prashant Khade caught hold of Sanjay Kawle and dragged him out of the hotel. He was felled down on the road and all the five appellants started inflicting fist blows on him. Sanjay Kawle started shouting. Thereafter, the appellant Ravindra Gurav inflicted a knife blow on Sanjay Kawle which he warded of with his left hand; the appellant Prashant Khade inflicted a knife blow on the left side of his chest and waist; and the appellant Dhananjay Dhuri assaulted him with knife on the back portion of his waist. Vijay Dhupkar became afraid and wanted to run away from there but, before he could escape, he was caught hold by the waist by the appellant Shashank Khade. In order to save himself, Vijay Dhupkar pushed Shashank Khade resulting in the latter falling down on the crate of soda water bottles which was placed there. At that time, Vijay Dhupkar saw Rohidas Kawle P.W. 3, Suryakant Pawar and Sanjay Rane shouting for help. Thereafter, the appellants ran away. Apart from Vijay Dhupkar, this incident was seen by Rohidas Kawle. P.W. 3 Suryakant Pawar and Sanjay Rane. Vijay Dhupkar, Rohidas Kawle, Suryakant Pawar and Sanjay Rane took Sanjay Kawle, who was in a precariously injured condition, in a taxi to J. J. Hospital, Bombay. 3. The evidence of Police Constable Ramesh Dalvi P.W. 4 shows that on 9-6-1992 (on the date of the incident) he was posted as E.P.R. (Emergency Police Register) Constable at J.J. Hospital, Bombay. At about 8.30 p.m. an injured person was brought in a taxi by two persons. As he was injured, he took him to the Casualty Medical Officer, Dr. Prakash Ware P.W. 11 who asked him few questions and medically examined him. Dr. Ware found on his person the following injuries. 1. Stab injury on left side in 9th intercostal space. The size of injury was 2.5 cm. x ¼ cm. deep bleeding profusely. 2. Stab injury on left infrascapular space was 2.5 cm. x ¼ cm. deep bleeding profusely. 3. Stab injury on the right 7th intercostal space, bleeding profusely. 4. There was doubtful stab injury on the left buttock. 5. Stab wound was on left forearm anteriorly 2.5 cm. x ¼ cm. x ¼ cm. deep bleeding profusely. 2. Stab injury on left infrascapular space was 2.5 cm. x ¼ cm. deep bleeding profusely. 3. Stab injury on the right 7th intercostal space, bleeding profusely. 4. There was doubtful stab injury on the left buttock. 5. Stab wound was on left forearm anteriorly 2.5 cm. x ¼ cm. The evidence of Constable Ramesh Dalvi also shows that thereafter he removed the injured to the Emergency Ward. He followed him there; asked him his name; and he replied that he was Sanjay Kawle. On questioning him as to how he was injured, he (injured) answered that on 6-6-1992, at about 8.15 p.m. Manoj Kadam, Prashant Khade, Dhananjay Dhuri and Ravindra Gurav (appellants) had assaulted him with sharp cutting weapon in front of Arogya Bhavan Hotel situated at Hingwala lane, Dadaji Kondeo Marg, Byculla, Bombay. To his question as to who had brought him, he replied that his friend Vijay Dhupkar had brought him to the hospital. Constable Dalvi noted all this in the E.P.R. Book vide Entry No. 4825. The evidence of Constable Dalvi further shows that thereafter he informed Byculla Police Station. 3-A. The evidence of P.S.I. Ramrao Desai P.W. 12 shows that on 9-6-1992, at about 9 p.m. while he was on night station duty at Byculla Police Station, he received a telephonic call from P.C. No. 2037 (Constable Ramesh Dalvi) who informed him that at about 8.15 p.m. one Sanjay Kawle had been assaulted near Arogya Bhavan Hotel, Hingwala Lane, Dadaji Kondeo Marg, Byculla, Bombay by Ravindra Gurav, Dhananjay Dhuri, Manoj Kadam and Prashant Khade (the appellants) with sharp cutting weapons had been brought to J.J. Hospital by Vijay Dhupkar and admitted him in ward No. 4. He noted the said message in the station diary and left for J.J. Hospital. He sought oral permission from the concerned doctor for recording the F.I.R. of Sanjay Kawle. Thereafter, recorded it; thereafter asked the concerned doctor to endorse the F.I.R. recorded by him about his then condition; and the concerned doctor immediately made the said endorsement. After recording the F.I.R., he read it to Sanjay Kawle who on finding it to be correct, affixed his signatures. The said F.I.R. is Exhibit 37. Thereafter, recorded it; thereafter asked the concerned doctor to endorse the F.I.R. recorded by him about his then condition; and the concerned doctor immediately made the said endorsement. After recording the F.I.R., he read it to Sanjay Kawle who on finding it to be correct, affixed his signatures. The said F.I.R. is Exhibit 37. On the basis of Exhibit 37, the same day at 10.30 p.m. C.R. No. 300 of 1992 was registered against the appellants Ravindra Gurav, Dhananjay Dhuri, Manoj Kadam and Prashant Khade. 4. The investigation was conducted in the usual manner by P.S.I. Ramrao Desai P.W. 12. After recording the F.I.R., he made a search for the persons who had brought Sanjay Kawle to the hospital. He came to know that he was brought by Vijay Dhupkar and Rohidas Kawle who were not available. On 10-6-1992, P.S.I. Desai at about 8.15 a.m. again visited Palanji Ratanji Chawl and made enquiries about Vijay Dhupkar and Rohidas Kawle. He met Rohidas Kawle in front of Palanji Ratanji Chawl and asked him to show the place of offence which he agreed to. He called two panchas and prepared a panchanama of the scene of the offence. He recorded the statements of one Dinesh Shetty, Manager of Arogya Bhavan Hotel, Vithoba Wagle, Suryakant Pawar and Rohidas Kawle, by 11 a.m. the same day. He thereafter searched for the appellants. On 12-6-1992, at 5.20 p.m. he learnt about the death of Sanjay Kawle in J.J. Hospital and converted the case from section 326 of the I.P.C. to one under section 302 of the I.P.C. On 12-6-1992, at about 10.45 p.m. Vijay Dhupkar came along with Devendra Kawle and Baban Kawle (brothers of the deceased Sanjay Kawle) in connection with the case under section 324 of the I.P.C. which had been registered against them, on 6-6-1992, on the complaint of the appellant Shashank Khade. He arrested them and released them on bail. He, thereafter recorded the statement of Vijay Dhupkar and included the name of the appellant Shashank Khade in the array of the accused. On 14-6-1992, at about 8.15 a.m. P.S.I. Desai arrested the appellants Manoj Khade and Dhananjay Dhuri while they were coming out from Dadar Railway Station. In the presence of the panchas, he seized their clothes but, we are not going deeper into the recovery of their clothes because, the recovery panchanama. On 14-6-1992, at about 8.15 a.m. P.S.I. Desai arrested the appellants Manoj Khade and Dhananjay Dhuri while they were coming out from Dadar Railway Station. In the presence of the panchas, he seized their clothes but, we are not going deeper into the recovery of their clothes because, the recovery panchanama. Exhibit 29, shows that there was no blood or stains on them. It is pertinent to mention that during the course of his interrogation on 9-7-1992, the appellant-Dhananjay Dhuri expressed his willingness to get the knife recovered. The said willingness was recorded under a panchanama and in the presence of public panchas, and vide Exhibit 27, a knife was recovered on the pointing out of the said appellant from a water tank above the public toilet on the 4th floor, B wing, Sussex Industries, Dr. Ambedkar Marg, Bombay. 4-A. It is pertinent to mention that some investigation in the instant case was conducted by H.C. Parasharam Chavan P.W.D. and P.I. Vijaykumar Arote P.W. 13. On 17-6-1992, at 10 p.m. while H.C. Chavan was at the Police Station, an unknown person came and informed him that two persons namely Prashant khade and Shashank Khade, wanted in Palanji Ratanji murder case, were sitting in a restaurant opposite Reay Road Railway Station. He reported the said fact to P.S.I. Desai. Thereafter, he along with P.S.I. Desai reached the said restaurant and apprehended the appellants Prashant Khade and Shashank Khade. From the front pant pocket of Prashant Khade, a knife was seized under a panchanama. However, we are not going deeper into this recovery because, the recovery panchanama has not been produced and proved by the prosecution. The evidence of P.I. Arote shows that clothes of appellants-Prashant Khade and Shashank Khade were taken charge by him at the Police Station on 17-6-1992 vide recovery panchanama Exhibit 31. However, we are not entering deeper into it because, no blood stains or any specific marks were found on these clothes. After completing the investigation P.I. Arote filed the charge-sheet against the appellants. 5. Going backwards, the autopsy on the corpse of the deceased Sanjay Kawle was performed on 12-6-1992 by Dr. Yusuf Matchiswala P.W. 10 who found on it the following external injuries: 1. Sutured wound mid abdominal region vertical from extending from xtphisternum to the level of ilias crest 25 cm. 18 sutures. 2. 5. Going backwards, the autopsy on the corpse of the deceased Sanjay Kawle was performed on 12-6-1992 by Dr. Yusuf Matchiswala P.W. 10 who found on it the following external injuries: 1. Sutured wound mid abdominal region vertical from extending from xtphisternum to the level of ilias crest 25 cm. 18 sutures. 2. Sutured wound in the right chest 5" below the right nipple extending in the 8" internal costal space (left side) to the back 20 sutures 28 cms. 3. A single sutured wound 1" from the sternum in the 4th left intercostal space. 4. A sutured wound in the outer and upper aspect of right buttock. 5. A gaping wound in the left and axillary line in 8th intercostal space 1". 6. A gaping wound ¾" in the left mid axillary line in the left side of abdomen in the region of left kidney. 7. A sutured wound in the forearm dorsal aspect 5 sutures 6 cms. 8. A gaping wound in the right back in the mid scapular region 5" below the right scapula. 9. A sharp wound in the lower back in the region of T 12. 10. A punctured wound in the left side of chest in the region of the heart. On internal examination, Dr. Matchiswala found haemorrhage in both lungs; clot in heart cavities; spleen removed; and liver and kidneys congested. In the opinion of Dr. Matchiswala, the deceased died as a consequence of cumulative effect of all these injuries which were necessarily fatal, and could be caused by a sharp cutting instrument like a knife. 6. The case was committed to the Court of Sessions in the usual manner where the appellants were charged for offences punishable under section 302 read with 34 of the I.P.C. to which charge they pleaded not guilty and claimed to be tried. During trial in all the prosecution examined 13 witnesses. Two of them Vijay Dhupkar P.W. 2 and Rohidas Kawle P.W. 3 were examined as eye-witnesses. The prosecution also led evidence under section 32 of the Indian Evidence Act in the form of dying declaration made by the deceased to Constable Ramesh Dalvi P.W. 4 and P.S.I. Ramrao Desai P.W. 12 and evidence under section 27 of the Indian Evidence Act. The prosecution also led evidence under section 32 of the Indian Evidence Act in the form of dying declaration made by the deceased to Constable Ramesh Dalvi P.W. 4 and P.S.I. Ramrao Desai P.W. 12 and evidence under section 27 of the Indian Evidence Act. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated in para 1, above. Hence, this appeal. 7. We have heard learned Counsel for the parties and perused the entire material on record. After the utmost circumspection, we are of the judgment that Criminal Appeal No. 631 of 1995 preferred by the appellants Shashank Khade and Manoj Kadam deserves to be allowed and Criminal Appeal No. 700 of 1995 preferred by the appellants-Ravindra Gurav, Dhananjay Dhuri and Prashant Khade warrants to be dismissed. 8. The evidence led by the prosecution to fix the involvement of the appellants in the incident can be classified under three heads namely: (a) the ocular account furnished by Vijay Dhupkar P.W. 2 and Rohidas Kawle P.W. 3: (b) the oral dying declaration made by the deceased Sanjay Kawle to Constable Ramesh Dalvi P.W. 4 which was recorded by him in the E.P.R. Register and the dying declaration in the form of the F.I.R. recorded by P.S.I. Desai; and (c) recoveries of clothes of the appellants and knives on the pointing out of the appellants-Dhananjay Dhuri and Prashant Khade. 9. We may straight away mention that we do not feel it safe to place reliance on the evidence classified under heads (b) and (c). We first begin with the dying declarations classified under head (b). 10. As mentioned earlier, there are two dying declarations; one in the form of oral dying declaration made by the deceased Sanjay Kawle to Constable Ramesh Dalvi at J.J. Hospital and the second in the form of F.I.R. recorded as per Sanjay Kawle's narration by P.S.I. Desai P.W. 12. So far as the oral dying declaration recorded by Ramesh Dalvi P.W. 4 is concerned, we are not inclined to place reliance on it for four reasons namely: (i) Witnesses Vijay Dhupkar P.W. 2 who had accompanied Sanjay Kawle to J.J. Hospital has categorically stated in his cross-examination that till he left the hospital, he found that Sanjay Kawle was not in a condition to speak; (ii) Dr. Ware P.W. 11 who medically examined Sanjay Kawle at 8.55 p.m. on the date of the incident probablised this statement of Vijay Dhupkar when in para 2 of his cross-examination he stated that the parameters of pulse and blood pressure indicated that Sanjay Kawle was in a state of shock. (iii) We are not prepared to accept the claim of Constable Ramesh Dalvi that the deceased was in a position to speak. We say this because, he stated that as soon as the deceased was brought by two persons in a taxi, he took him to the Casualty Medical Officer (Dr. Ware P.W. 11) who asked him a few questions and made an entry in the book. Thereafter, when he was admitted in the emergency ward, he made a oral dying declaration which he recorded in the E.P.R. Register. It is pertinent to mention that in his deposition, Dr. Ware did not state that he put any questions to the deceased Sanjay Kawle when he was brought before him. (iv) Both Vijay Dhupkar P.W. 2 and Rohidas Kawle P.W. 3, out of whom the latter stayed throughout at J.J. Hospital, did not state that Sanjay Kawle had made an oral dying declaration to Constable Dalvi. It is pertinent to mention that the E.P.R. Register shows that Ramesh Dalvi had recorded the said oral dying declaration at 9 p.m. on the date of the incident. In our view, had Sanjay Kawle made such a declaration, Vijay Dhupkar and Rohidas Kawle would have deposed about it. Once we have a doubt that the deceased was in a position to speak and did not make the oral dying declaration, then the E.P.R. entry made by Constable Ramesh Dalvi wherein the said oral dying declaration is contained, also cannot be accepted. There is another reason as to why it cannot be accepted and that is when we examined the E.P.R. Register, we found that the entries therein are not made serially, either numberwise or date wise. 11. There is another reason as to why it cannot be accepted and that is when we examined the E.P.R. Register, we found that the entries therein are not made serially, either numberwise or date wise. 11. We also do not feel it safe to place reliance on the dying declaration which is in the form of F.I.R. The evidence of P.S.I. Desai show that at 9 p.m. on the date of the incident, he received a telephone call from Constable Ramesh Dalvi wherein the substance contained in the oral dying declaration made by the deceased Sanjay Kawle to him was conveyed to him (P.S.I. Desai) and immediately on the said information, he reached J.J. Hospital where after orally enquiring from the doctor on duty whether Sanjay Kawle could make a statement, recorded his statement and thereafter obtained an endorsement of the doctor about his then condition. For a large number of reasons, we are not inclined to place reliance on this dying declaration. Firstly, it is not clear as to who was the doctor who made the endorsement. In our view, it was necessary for the prosecution to examine him. Secondly, the statement of P.S.I. Desai shows that immediately on reaching the hospital, he had recorded the F.I.R. In view of the statement of Vijay Dhupkar P.W. 2 who categorically stated that Sanjay Kawle was not in a position to speak, we find it difficult to accept that he gave out such an elaborate F.I.R. which runs into 1-½ pages of full scape sheet. The evidence of Dr. Ware, P.W. 11, to which we have referred to earlier, also militates against the probability of Sanjay Kawle giving out such an elaborate F.I.R. 12. We also feel that the evidence of recoveries would not incriminate the appellants; of clothes because, no blood was found on them; of knife from appellant-Dhananjay Dhuri because, the recovery memo shows no blood on the same; and of knife from appellant-Prashant Khade, because the recovery panchanama has not been produced by the prosecution. 13. This leaves us with only the ocular account furnished by Vijay Dhupkar P.W. 2 and Rohidas Kawle P.W. 3. 13. This leaves us with only the ocular account furnished by Vijay Dhupkar P.W. 2 and Rohidas Kawle P.W. 3. In our view, the said ocular account is not a safe and sound basis for sustaining the conviction of the appellants-Shashank Khade and Manoj Kadam who deserve benefit of doubt but, is both a safe and sure basis for upholding the conviction of the appellants-Ravindra Gurav, Dhananajay Dhuri and Prashant Khade. We may mention that we have set out the prosecution story on the basis of the recitals contained in the examination-in-chief of the said eye-witnesses. Both of them explained their presence on the place of the incident, on the date and time alleged by the prosecution. Vijay Dhupkar P.W. 2 stated that on the date of the incident at about 8 p.m. while he was behind Patanwala Building, he met the deceased Sanjay Kawle and both of them went to Arogya Bhavan Hotel to eat and while they were coming out from the said hotel, the incident took place. Rohidas Kawle stated that on the date of the incident at about 8.30 p.m. while he was returning home, after taking a walk towards Ranibaug side, he heard shouts from Hingwala lane near Arogya Bhavan Hotel and went and saw the incident. It is pertinent to mention that the account furnished by both these witnesses squarely establishes the involvement of the appellants-Ravindra Gurav, Dhananjay Dhuri and Prashant Khade in the incident. They stated that the said appellants were inflicting injuries with weapons like knife on the person of Sanjay Kawle and both Dr. Ware P.W. 11 who medically examined Sanjay Kawle and Dr. Matchiswala P.W. 10 who performed the autopsy on the corpse of Sanjay Kawle found injuries attributable to knife on the person of Sanjay Kawle. 14. It is pertinent to mention that presence of both the witnesses on the place of the incident is clinched by the fact that immediately after the incident, in a taxi, they took Sanjay Kawle, who was in a precariously injured condition, to J.J. Hospital. The evidence of Constable Dalvi (E.P.R. Constable) is clearly to the effect that Sanjay Kawle had been brought by two persons and one of them was Vijay Dhupkar P.W. 2. In our view, had they not witnessed the incident, it was not possible for them to immediately take Sanjay Kawle to J.J. Hospital. The evidence of Constable Dalvi (E.P.R. Constable) is clearly to the effect that Sanjay Kawle had been brought by two persons and one of them was Vijay Dhupkar P.W. 2. In our view, had they not witnessed the incident, it was not possible for them to immediately take Sanjay Kawle to J.J. Hospital. It is pertinent to mention that no suggestion has been given in cross-examination to these witnesses that they were informed about the incident by someone and immediately came on the place of the incident thereafter, and took Sanjay Kawle to J.J. Hospital. Assurance to their account is lent by the circumstance that these appellants had a very plausible motive to participate in the incident. The evidence of Vijay Dhupkar P.W. 2 also shows that these appellants lived in Chawl No. 9 while he, Rohidas Kawle and the deceased lived in Chawl No. 8. His evidence also shows that there was a hitter rivalry between the persons residing in the said chawls on account of a dispute arising from the Ganpati festival about two years prior to the incident. His evidence further shows that three days before the incident i.e. on 6-6-1992 at about 5/5.30 p.m. the appellant Shashank Khade, the real brother of the appellant-Prashant Khade had pushed Devendra Kawle, the real brother of the deceased Sanjay Kawle and this resulted in Shashank Kade lodging a F.I.R. at the Byculla Police Station against him, Devendra Kawle, Sanjay Kawle and Baban Kawle. In our view, on account of the dispute arising from the Ganpati festival and to avenge this incident of 6-6-1992, the appellants-Ravindra Gurav, Dhananjay Dhuri and Prashant Khade fatally assaulted the deceased Sanjay Kawle. 15. For the said reasons, we feel that the learned trial Judge acted very correctly in convicting and sentencing the appellants-Ravindra Gurav, Dhananjay Dhuri and Prashant Khade for the offence under section 302 read with 34 of the I.P.C. The evidence of Vijay Dhupkar P.W. 2 and Rohidas P.W. 3 shows that these three appellants came together and intentionally launched an assault with knives on Sanjay Kawle. The evidence of the Autopsy Surgeon Dr. Matchiswalla P.W. 10 shows that the injuries suffered by the deceased were necessarily fatal. The evidence of the Autopsy Surgeon Dr. Matchiswalla P.W. 10 shows that the injuries suffered by the deceased were necessarily fatal. Since these appellants in furtherance of their common intention intentionally inflicted injuries on the person of the deceased which were necessarily fatal an offence under section 302 read with 34 of the I.P.C. is squarely brought home against them. 16. We however, feel that it would not be safe in accept the evidence of the said two eye-witnesses Vijay Dhupkar P.W. 2 and Rohidas Kawle P.W. 3 vis a vis the appellants Manoj Kadam and Shashank Khade. It is true that Vijay Dhupkar P.W. 2 in his examination-in-chief has stated that as soon as Sanjay Kawle came out from the hotel, he was caught and dragged out of the hotel by Prashant Khade, felled on the ground; and thereafter all the five persons (which would include these two appellants also) inflicted fist blows on Sanjay Kawle; and thereafter appellants Ravindra alias Ravi, Dhananjay Dhuri and Prashant Khade inflicted knife blows on Sanjay Kawle. It is also true that if we believe that these appellants inflicted fist blows on Sanjay Kawle, there will be no difficulty in sustaining their conviction for the offence under section 302 read with 34 of the I.P.C., for the said circumstance would show that they shared the common intention to commit the murder of Sanjay Kawle. But, in our judgment, in view of the admissions made by Vijay Dhupkar and of Rohidas Kawle in their cross-examination, it would not be possible for us to accept that they inflicted fist blows on the deceased Sanjay Kawle. In para 25, Vijay Dhupkar stated in terms that "it is correct to say that accused Nos. 3 and 5 (the said appellants) were not assaulting with fist blows," and in para 15. Rohidas Kawle, admitted that these appellants did not assault the deceased. 17. In para 25, Vijay Dhupkar stated in terms that "it is correct to say that accused Nos. 3 and 5 (the said appellants) were not assaulting with fist blows," and in para 15. Rohidas Kawle, admitted that these appellants did not assault the deceased. 17. We have seen in para 1 of our judgment that the learned trial Judge convicted these appellants (appellants-Manoj Kadam and Shashank Khade) for the offence punishable under section 302 read with 34 of the I.P.C. From the evidence on record, it appears that the only circumstance on the basis of which, the prosecution wants us to infer that these appellants shared the common intention in respect of the murder of the deceased is, that prior to the deceased being assaulted by knives, these appellants who were unarmed inflicted fist blows on him. Once the evidence of their inflicting fist blows on the deceased goes, we are merely left with the presence of these appellants on the spot and it is well-settled that mere presence would not invoke the application of section 34 of the I.P.C. A perusal of section 34 of the I.P.C. shows that the said section can only be invoked if the criminal act committed by several persons was committed by them in furtherance of their common intention. Excepting the circumstances that these appellants inflicted fist blows on the person of the deceased, there is nothing in the evidence which would show that the murder of the deceased was committed in furtherance of the common intention of these three appellants. We would do well to remember the warning given by the Committee of the Privy Council in the oft-quoted case of (Mehboob Shah v. King Emperor)1, A.I.R. 1945 P.C. 118 : 49 C.W.N. 678, wherein the Privy Council 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." 18. There is another angle of looking at the whole thing. Since both the eye-witnesses were having cordial relations with the deceased and admittedly lived in chawl No. 8 wherein the deceased also lived and between the persons residing in the said chawl and those residing in chawl No. 9. In which chawl these appellants resided, relations were strained, the possibility of these appellants being falsely implicated cannot be ruled out. Since both the eye-witnesses were having cordial relations with the deceased and admittedly lived in chawl No. 8 wherein the deceased also lived and between the persons residing in the said chawl and those residing in chawl No. 9. In which chawl these appellants resided, relations were strained, the possibility of these appellants being falsely implicated cannot be ruled out. Nothing brings out this possibility better than the admission of P.S.I. Desai P.W. 12 in terms that after recording Vijay Dhupkar's statement under section 161 of the Cri.P.C., he added appellant-Shashank Khade's name in the array of accused. 19. We would be failing in our fairness if before proceeding to the operative part of our judgment, we did not refer to the submissions canvassed by Mr. Mundargi, learned Counsel for the appellants. 20. Mr. Mundargi firstly urged that it would be unsafe to accept the evidence of the two eye-witnesses, Vijay Dhupkar P.W. 2 and Rohidas Kawle P.W. 3 because, they were interested witnesses, inasmuch as they were having cordial relations with the deceased Sanjay Kawle. We regret we do not find any merit in this submission. Way back in the year 1965 in the oft quoted case of Masalti v. State of U.P. the Supreme Court held that the circumstance that witnesses are interested would only make the Court evaluate their evidence with caution and not mechanically reject the same. We have exercised this caution. It is also on account of it that we are giving benefit of doubt to two of the appellants namely Manoj Kadam and Shashank Khade. It is well-settled that the evidence of a witness can be relied in part and rejected in part. We however, feel that even after exercising this caution, it would be implicitly safe to accept their evidence vis a vis appellants Ravindra Gurav, Dhananjay Dhuri and Prashant Khade because, the claim of these witnesses that the said appellants assaulted the deceased with the knives, is corroborated by the medical evidence. Hence, the first submission of Mr. Mundargi fails. 21. Mr. Mundargi secondly urged that both these witnesses are chance witnesses. We regret we do not find any merit in this submission either. Both these witnesses lived in chawl No. 8 and their evidence shows that the incident took place in the immediate proximity of the said chawl and therefore, in view, it would be wrong to call them chance witnesses. Mundargi secondly urged that both these witnesses are chance witnesses. We regret we do not find any merit in this submission either. Both these witnesses lived in chawl No. 8 and their evidence shows that the incident took place in the immediate proximity of the said chawl and therefore, in view, it would be wrong to call them chance witnesses. Apart from it, they have given reasons for their presence. Rohidas Kawle P.W. 3 has stated that while he was returning from Ranibaug side where he had gone to take a walk, he saw the incident. Vijay Dhupkar P.W. 2 has stated that while he was behind Patanwala Building, he met Sanjay Kawle. Mr. Mundargi, urged that since Vijay Dhupkar in para 2 of his statement stated that as the police was looking for him in relation to the incident dated 6-6-1992 he did not remain at all at his house. It was improbable for him to be behind Patanwala Building which was near his home. We regret we do not find any merit in his submission. Home would mean the place where the witness was living. After all, a witness who is away from his home, has to be somewhere and we find it nothing improbable if Vijay Dhupkar P.W. 2 was at Patanwala Building at the time of the incident. 22. Mr. Mundargi thirdly urged that since there was enmity between Vijay Dhupkar P.W. 2 and the appellants, he would not have escaped without injuries, had he been present on the place of the incident. To substantiate his submission, he invited our attention to that portion of Vijay Dhupkar's statement wherein he stated that he along with the deceased Sanjay Kawle and others had intervened in the quarrel which took place between Shashank Khade and Devendra (brother of the deceased Sanjay Kawle) between 5/5.30 p.m. on 6-6-1992 and to the evidence of P.S.I. Desai that in respect of the said incident, a case against him was registered under section 324 of the I.P.C. wherein he released him on bail on 12-6-1992. We have given our anxious consideration to the said submission and regret that we cannot accept it. Evidence of Vijay Dhupkar shows that the deceased Sanjay Kawle who was the brother of the Devendra had also intervened from the side of Devendra. We have given our anxious consideration to the said submission and regret that we cannot accept it. Evidence of Vijay Dhupkar shows that the deceased Sanjay Kawle who was the brother of the Devendra had also intervened from the side of Devendra. It may be that on this score, the brunt of the rancour of the accused persons was directed towards him and Vijay Dhupkar was not attacked. In our view, merely because, no injuries were inflicted on Vijay Dhupkar's person, would not be sufficient to infer that he was not present on the place of the incident. As mentioned earlier, he had taken the deceased to J.J. Hospital and the evidence of Constable Ramesh Dalvi P.W. 4 which we have referred to earlier, clearly shows that he had brought him. 23. Mr. Mundargi fourthly urged that both these witnesses admitted that their clothes had become stained with blood and the circumstance that the Investigating Officer P.S.I. Desai did not take their clothes in possession, militates against the claim of these witnesses of having seen the incident and of having taken Sanjay Kawle to J.J. Hospital. We regret that we do not find any merit in this submission also. In our view, if the Investigation Officer was negligent in taking their blood stained clothes into possession, it would not adversely reflect on their claim of having seen the incident and taken Sanjay Kawle to J.J. Hospital. 24. Mr. Mundargi fifthly urged that the circumstance that these witnesses were interrogated belatedly under section 161 of the Cri.P.C. shows that they did not witness the incident. We regret we do not find any merit in this submission either. In this connection, it is pertinent to mention that so far as Rohidas Kawle P.W. 3 is concerned, he was interrogated within 14 hours of the incident taking place. The evidence of P.S.I. Desai shows that he had interrogated him before 11 a.m. on 10-6-1992. Mr. Mundargi urged that his interrogation is belated inasmuch as he admitted that he was at J.J. Hospital throughout the night on 9-6-1992 and also admitted that the police was there. We have reflected over this circumstance. In our view, merely because, Rohidas Kawle was not interrogated at night, would not make his interrogation, which was before 11 a.m. on 10-6-1992 (the next morning) belated. It is true as Mr. We have reflected over this circumstance. In our view, merely because, Rohidas Kawle was not interrogated at night, would not make his interrogation, which was before 11 a.m. on 10-6-1992 (the next morning) belated. It is true as Mr. Mundargi urged that Vijay Dhupkar P.W. 2 was interrogated on 12-6-1992 but the reason for this delay is furnished in para 2 of his examination-in-chief wherein he was admitted that on account of the incident of 6-6-1992, he was staying away from his home as the police was looking for him and in his cross-examination, he has stated that he was avoiding the police. In such a situation, the prosecution cannot be faulted for interogating him on 12-6-1992, when he himself came to the Police Station to furnish bail in the case under section 324 wherein he was an accused and which took place on 6-6-1992. It is pertinent to mention that accused and which took place on 6-6-1992. It is pertinent to mention that P.S.I. Desai P.W. 12 stated in his examination-in-chief, in para 4 that immediately after releasing him on bail in the said case, he interrogated him under section 161 of the Cri.P.C. For the said reasons, this submission of Mr. Mundargi also fails. 25. Mr. Mundargi finally contended that since both Vijay Dhupkar P.W. 2 and Rohidas Kawle P.W. 3 were enmical to the appellants-Manoj Kadam and Prashant Khade, their evidence should not be accepted. He urged that the evidence of Vijay Dhupkar P.W. 2 shows that in respect of the scuffle which took place between Shashank Khade and Devendra Kawle (brother of the deceased Sanjay Kawle) on 6-6-1992 between 5/5.30 p.m. Shashank Khade lodged an F.I.R. under section 324 of the I.P.C. naming therein this witness, Sanjay Kawle, his brother Devendra Kawle and Baban Kawle. He urged that the evidence of P.S.I. Desai P.W. 12 shows that on 12-6-1992, Vijay Dhupkar appeared at the Police Station and got himself enlarged on bail in the said case. In relation to Rohidas Kawle P.W. 3 Mundargi urged that during the course of his cross-examination, Rohidas Kawle P.W. 3 admitted that he had been arrested and was being prosecuted on the basis of a complaint filed by the appellants Manoj Kadam and Prashant Khade. In relation to Rohidas Kawle P.W. 3 Mundargi urged that during the course of his cross-examination, Rohidas Kawle P.W. 3 admitted that he had been arrested and was being prosecuted on the basis of a complaint filed by the appellants Manoj Kadam and Prashant Khade. He also pointed out that this witness admitted in his cross-examination that he was arrested by the Crime Branch C.I.D. because, he was found in possession of arms. We have reflected over the said submission of Mr. Mundagri and in our view, on account of enmity, the evidence of these eye-witness cannot be mechanically rejected but, would only be evaluated with caution. It is on account of this caution partly that we are giving benefit of doubt to the appellants Manoj Kadam and Shashank Khade. For the said reasons, the said submission fails. In view of the aforesaid discussion, these appeals are decided as under:--- (A) Criminal Appeal No. 631 of 1995 preferred by the appellants-Shashank Suresh Khade and Manoj Jaysing Kadam is allowed. The convictions and sentences of these appellants for the offence under section 302 read with 34 of the I.P.C. and their sentence of life imprisonment thereunder is set aside. They are acquitted of the said offence. They are in jail and shall be released forthwith unless wanted in some other case. (B) Criminal Appeal No. 700 of 1995 preferred by the appellants-Ravindra @ Ravi Ramchandra Gurav, Dhananjay Datta Dhuri and Prashant Suresh Khade is dismissed. Their convictions and sentence of life imprisonment for the offence under section 302 read with 34 of the I.P.C. are confirmed. They are in jail and shall serve out their sentences. -----