JUDGMENT - V.M. Kanade, J.:---The appellants, in the aforesaid appeals, have challenged the judgment and order passed by the Additional Session Judge, Nagpur, in Sessions Trial No. 11/94 dated 24-12-1996 whereby both the accused are convicted under section 302 read with section 34 of the Indian Penal Code and were sentenced to suffer imprisonment for life and to pay a fine of Rs. 100/ each. Both the original accused have filed 2 separate appeals. The Criminal Appeal No. 62/97 has been filed by original accused No. 1 Deepak @ Dangya Yadav and Criminal Appeal No. 19/97 has been filed by the original accused No. 2 Amar @ Chiknya Khedkar. Since both these appeals are arising out of the common Judgment passed by the Additional Sessions Judge, Nagpur, we propose to dispose of both these appeals by a common Judgment. 2. The appellants were charged for having committed the offence punishable under section 302 read with section 34 of the Indian Penal Code. 3. The brief facts of the prosecution case are that the incident in question took place on 4-9-1993 in the evening at about 6 to 6.30 p.m.. It is the case of the prosecution that complainant Chandrashekhar and deceased Pramod alongwith two other persons were sitting in front of a tailoring shop and thereafter at about 6.30 p.m. deceased Pramod and Chandrashekhar left the place and after finishing some work, they went towards Itwari Railway Station. It is the case of the prosecution that while they were proceeding to Itwari Railway Station, they saw Deepak (appellant in Criminal Appeal No. 62/97) and his friend original accused No. 2 Amar @ Chiknya (appellant in Criminal Appeal No. 19/97) in the lane near the house of one Pandhari Bhanuse. It is the case of the prosecution that the accused came towards Pramod and Chandrashekhar and accused No. 2 Amar gave threat to Chandrashekhar (P.W. 1). Thereafter, Pramod and Chandrashekhar waited there for some time and about the same time original accused No. 1 Deepak came there armed with a open knife and with the said knife, original accused No. 1 Deepak inflicted knife blow on the left side of the abdomen of Pramod. It is the case of the prosecution that the deceased Pramod started running from the said place and both the accused chased them. However, after some time, they gave up the chase. It is the case of the prosecution that the deceased Pramod started running from the said place and both the accused chased them. However, after some time, they gave up the chase. Deceased Pramod thereafter fell down and he was taken to the hospital. Doctor at Mayo Hospital examined Pramod and declared him dead. Chandrashekhar lodged a complaint to the Police Constable who was attached to the Police Station out post of the hospital. It is the further case of the prosecution that the police on the basis of the said report registered the Crime No. 654/93 under section 302 read with section 34 of the Indian Penal Code and police visited the spot and tried to trace the accused. There they came to know that accused had robbed a country liquor shop and had ran away with the cash from the counter of the liquor shop. The Investigating Officer also came to know that one Shekhar Gajbhiye and other servant had chased Deepak the original accused No. 1 and snatched the knife from his hand and the said knife was also recovered. The case of the prosecution is that thereafter the accused was admitted in Mayo Hospital and the investigation was completed by the Investigating Officer. The Investigating Officer, in the meantime, recorded the statement of the other witnesses. Accused No. 1 was discharged from the hospital on 9-9-1993 and thereafter he was brought to the Police Station and he was arrested in presence of the panchas and the clothes of the accused were seized by the police and panchanama was drawn accordingly. The investigation was completed after the blood samples, clothe, knife were sent to the Chemical Analyser, Nagpur and after completing the formalities of the investigation, the charge-sheet was filed. Both the accused were charged under section 302 read with section 34 of the Indian Penal Code for having committed murder of the deceased Pramod. Accused pleaded not guilty of the said offence. The prosecution examined in all 20 witnesses and on the basis of the said evidence, the trial Court convicted both the accused under section 302 read with section 34 of the Indian Penal Code. Both the appellants are challenging this judgment and order in these appeals. 4. Accused pleaded not guilty of the said offence. The prosecution examined in all 20 witnesses and on the basis of the said evidence, the trial Court convicted both the accused under section 302 read with section 34 of the Indian Penal Code. Both the appellants are challenging this judgment and order in these appeals. 4. We have heard Shri M.R. Daga, the learned Counsel appearing on behalf of the appellant/original accused No. 1 Deepak and also Shri Ikhankar, the learned Counsel appearing on behalf of the appellant/original accused No. 2 Amar. Both the learned Advocates have taken us through the depositions and evidence on record as also the judgment and order of the trial Court. 5. Shri Daga, learned Counsel appearing on behalf of the accused No. 1 Deepak submitted that there was a discrepancy in the evidence of the witnesses examined by the prosecution in respect of the time at which the said offence is committed. He submitted that P.W. 1 Chandrashekhar has stated in his cross-examination that both the accused were sitting in the liquor shop at about 7 to 7.30 p.m. He submitted that in the first information report as well in the evidence of P.W. 3 Vijay, it is stated that the incident took place at about 6 to 6.30 p.m. He submitted that, therefore, there is a material discrepancy in respect of the exact time at which the said offence had taken place and, therefore, the evidence of the eye-witnesses P.W. 1 Chandrashekhar and P.W. 3 Vijay cannot be relied upon. He submitted that even P.W. 2 Raja in his examination-in-chief has stated that P.W. 1 Chandrashekhar had told him that the murder of deceased Pramod was committed at about 8.00 p.m. The learned A.P.P. appearing on behalf of the State submitted that there was no discrepancy in respect of the time of the said offence but he submitted that the said variance in time at which the said offence was committed as described by these witnesses is not a material contradiction. He submitted that merely because there is some difference in the time mentioned by these witnesses, the evidence of these eye-witnesses cannot be discarded. We are of the view that the submission made by Shri Daga, the learned Counsel appearing on behalf of the appellant cannot be accepted. He submitted that merely because there is some difference in the time mentioned by these witnesses, the evidence of these eye-witnesses cannot be discarded. We are of the view that the submission made by Shri Daga, the learned Counsel appearing on behalf of the appellant cannot be accepted. It cannot be forgotten that when the witnesses mention the time at which the said offence is committed, they always given approximate time and unless for some specific reason they have an occasion to see the exact time at which the said offence is committed. P.W. 1 Chandrashekhar and P.W. 3 Vijay have stated that the incident happened approximately between 6 to 6.30 p.m. Merely because one of the witness states that these two accused were seen at the liquor shop till 6 to 6.30 p.m., does not mean that the evidence of the said witnesses has to be disbelieved. 6. The second submission made by the learned Counsel appearing on behalf of the appellant is that apart from two eye-witnesses who have deposed about the accused No. 1 Deepak assaulting the deceased with the knife. All the witnesses have turned hostile and they have not supported the prosecution case. He has submitted that the panch witnesses also have not proved the panchanama. The recovery of the knife at the instance of the accused has also not been proved. P.W. 1 Chandrashekhar also has not identified the knife which was allegedly used by accused No. 1 Deepak @ Dangya. He submitted that in these circumstances the prosecution has not conclusively established the presence of the accused No. 1 at the scene of the offence and in view of the discrepancy in the statement of P.W. 1 Chandrashekhar and P.W. 3 Vijay the benefits of doubt should go to the accused. We are unable to accept the submission made by the learned Counsel appearing on behalf of the appellant. So far as P.W. 2 Raja is concerned, though he had turned hostile and had not supported the prosecution case in his examination-in-chief after he was declared hostile and cross-examined by the learned A.P.P., he was categorically mentioned that the P.W. 1 Chandrashekhar told him that Deepak had assaulted Pramod by knife and that he was accompanied by accused No. 2 Amar. It is true that P.W. 1 Chandrashekhar has not identified the knife article No. 8 and that the recovery of the knife at the instance of the accused has not been proved by the prosecution. Yet, merely on that count the cogent evidence given by the P.W. 1 Chandrashekhar and P.W. 3 Vijay cannot be discarded. P.W. 1 has categorically stated that the original accused No. 1 gave a knife blow on the left side of the abdomen of deceased Pramod. Similarly, P.W. 3 Vijay has categorically stated that accused No. 1 Deepak stabbed Pramod at the left side of his abdomen and that as soon as Pramod received the knife blow he put his hand on the abdomen and started running towards Zade Chowk. He has also stated that P.W. 1 Chandrashekhar and Pramod ran away one after another and that Amar @ Chiknya and Deepak @ Dangya chased them for some distance and thereafter both the accused went towards the sweeper colony and thereafter Pramod fell on the ground near the telephone pole. Both the eye-witnesses have corroborated each other in respect of the said incident in detail and therefore, these two eye-witnesses have clearly established the presence of the original accused No. 1 at the scene of the offence and also the act of giving a knife blow on the vital part of the body i.e. abdomen. The prosecution has examined doctor Pramod who has given details of the external and internal injuries on the person of deceased Pramod and he has stated as follows: 1. "Incised stab over left hypochondriacs region in 10th intercostal space in anterior axillary line 12 cm. left of mid line, 2.5 x 5 cm. cavity deep obliquely placed, margin clean, lower and blunt and upper clean cut, structure found cut., pleura, disphram perritorneum, spleen, (anterior border 0.5 cm.) 2.5 litres of blood and blood clots in perritoneum cavity, injury was ante mortem, it was fresh and it can be caused by sharp and pointed object. In my opinion, the cause of death was shock and haemorrhage caused by injuries to internal structures caused by stab injury." 7. Doctor has also given the cause of death due to injury to internal structures caused by the stab wound. The contention of Shri Daga, learned Counsel appearing for the appellant, therefore, cannot be accepted. In my opinion, the cause of death was shock and haemorrhage caused by injuries to internal structures caused by stab injury." 7. Doctor has also given the cause of death due to injury to internal structures caused by the stab wound. The contention of Shri Daga, learned Counsel appearing for the appellant, therefore, cannot be accepted. Shri Daga, learned Counsel appearing on behalf of the appellant has further submitted that the original accused No. 1 was, in fact, in the hospital at the time when the said incident had taken place. He submitted that the arrest panchanama clearly establishes this fact that the accused was in hospital and that the accused had received various injuries on his person and he was discharged on 9-3-1993. He submitted that it is an admitted position that the original accused No. 1 had suffered injuries. It is evidence from the arrest panchanama in which it is mentioned that there was a mark of injury on the right big toe of the accused and he also had fresh injury on left knee to which the bandage was tied and also there was a fresh injury on his right hypochondrium portion towards the backside. Similarly, a mark of cut injury was visible on the right middle finger of the said accused. He submitted that since accused was in the hospital from 4-9-1993 to 9-9-1993, he could not have committed the said crime. He submitted that the case was pending against one Shekhar (P.W. 19) under section 326 of the Indian Penal Code for having assaulted accused No. 1 Deepak @ Dangya. He submitted that the said incident of assault on original accused No. 1 Deepak had also taken place on the same day at the same time and after which the accused was admitted in the hospital. He has submitted that the accused has also in his statement under section 313 of Cri.P.C. has given an explanation and has stated that he was in the hospital from 4th till 9th September, 1993. He regained conscious in the hospital. The learned A.P.P. appearing on behalf of the State strenuously urged that the said submissions of the Counsel appearing on behalf of the appellant cannot be accepted. He submitted that so far as the presence of the accused is concerned and his involvement in the said crime is concerned, that has been established by two eye-witnesses. The learned A.P.P. appearing on behalf of the State strenuously urged that the said submissions of the Counsel appearing on behalf of the appellant cannot be accepted. He submitted that so far as the presence of the accused is concerned and his involvement in the said crime is concerned, that has been established by two eye-witnesses. He has submitted that if the original accused No. 1 Deepak had taken a plea of alibi, then the burden was cast on him to prove that during the said period he was not present at the scene of the offence. He submitted that it was open for the accused No. 1 to have examined the doctor who had treated him in Mayo Hospital to prove that he was in the hospital on 4-9-1993 before the said incident had taken place. He further submitted that even the charge-sheet which is filed in the case against Shekhar (P.W. 19) has not been brought on record. He submitted that, therefore the submission of the learned Counsel appearing on behalf of the appellant, cannot be accepted. We are unable to accept the submissions made by Shri Daga, learned Counsel appearing on behalf of the appellant/original accused No. 1. Though it is an admitted position that the original accused No. 1 was in the hospital up to 9-9-1993, there is no evidence on record from which it can be established that he was admitted prior to the said incident which had taken place on 4-9-1993 at 6.30 p.m. Though the prosecution has not disputed the fact that the appellant was injured and was admitted in the hospital yet they have succeeded in establishing through two eye-witnesses P.W. 1 Chandrashekhar and P.W. 3 Vijay that at 6 to 6.30 p.m. the accused No. 1 had assaulted deceased Pramod by a knife and thereafter both of them ran away from the scene of the offence. Under the circumstances, it will have to be held that the incident of accused No. 1 assaulting deceased Pramod took place prior in point of time and, therefore, fact that the accused No. 1 was in the hospital up to 9-9-1993 cannot be a factor which could be of any assistance to the original accused No. 1 in establishing that he was not present at the scene of offence or had not committed murder of deceased Pramod. Since the appellant/original accused No. 1 Deepak has taken a specific plea of alibi it was his duty to establish the fact that he was admitted in the hospital from the morning on 4-9-1993 which could have conclusively proved that he was not present in the evening at 6 to 6.30 p.m. This itself suggests that the incident of the accused No. 1 assaulting deceased Pramod took place prior in point of time and thereafter the accused went to the liquor shop and that there was an altercation between P.W. 19 Shekhar and accused was in the said incident possibly accused Deepak might have been assaulted by P.W. 19 Shekhar. In view of this, the said submissions of the learned Counsel appearing on behalf of the appellant Deepak will have to be rejected. 8. Shri Daga, learned Counsel appearing on behalf of the appellant, however, submitted that even if it is accepted that the appellant Deepak had assaulted the deceased, it is the case of the prosecution that the deceased had received a single blow on the stomach. He submitted that therefore, even if this theory of the prosecution is accepted the case of the appellant Deepak would fall under section 304 II of the Indian Penal Code and not under section 302 of the Indian Penal Code. In support of his submission he has relied upon the judgment of the Apex Court in the case of (Mavila Thamban Nambiar v. State of Kerala)1, reported in 1997 Cri.L.J. 831, in which case the accused had given one blow with the pair of scissors on the vital part of the body of the deceased. However, the Apex Court held that though the accused had knowledge that the injury by the pair of scissors on the vital part would cause death, it could not be said he had intended to commit the murder. He submitted that this ratio laid down by the Apex Court thus squarely is applicable to the facts of the present case. He submitted that in the instance case also the appellant/original accused No. 1 had given one single blow on the abdomen and it could not be said that the appellant had a knowledge that the said injury was likely to cause death and, therefore, his case would fall either under section 304-I or II of the Indian Penal Code. He submitted that in the instance case also the appellant/original accused No. 1 had given one single blow on the abdomen and it could not be said that the appellant had a knowledge that the said injury was likely to cause death and, therefore, his case would fall either under section 304-I or II of the Indian Penal Code. We are unable to accept the submission of the learned Counsel appearing on behalf of the appellant/original accused No. 1. From the perusal of the said judgment of the Apex Court, we find that the facts in the present case are entirely different and, therefore, the ratio laid down in the said judgment would not be applicable to the facts of the present case. The Apex Court in para 10 has observed as follows: "Mr. Lalit then, seriously challenged the conviction of the appellant under section 302 of the Indian Penal Code. He urged that the appellant had neither intention nor knowledge that such an injury would result into the death of Madhavan. He, therefore, urged that the appellant at the most could be convicted for any other minor offence. Mr. George, appearing for the State of Kerala urged that the appellant was rightly convicted under section 302 of the Indian Penal Code and no interference was called for. After giving our careful thought to the nature of offence, we are of the considered view that the offence of the appellant would more appropriately fall under section 304 Part II of the Indian Penal Code. The appellant had given one blow with a pair of scissors on the vital part of the body of Madhavan and, therefor, it would be reasonable to infer that he (appellant) had knowledge that any injury with the pair of scissors on the vital part would cause death though he may not have intended to commit the murder. We accordingly, alter the conviction of the appellant from section 302 I.P.C. to one under section 304 Part II of the I.P.C." In the present case, the injury that is caused on the abdomen is such that it has cut internal structure such as pleura, disphram perritorneum, spleen and windo wall cavity, dimension 2.5 to 5 cm. in width and that the deceased died on the spot as a result of the said injury. As such the said submission of Mr. in width and that the deceased died on the spot as a result of the said injury. As such the said submission of Mr. Daga, the learned Counsel appearing on behalf of the appellant Deepak cannot be accepted. 9. The Apex Court wayback in the (Narayanan Nair Raghavan Nair v. The State of Travancore)2, reported in A.I.R. 1956 S.C. 99, has held that whether a particular injury is of fatal or non fatal, is a question of fact in each case and a single blow on abdomen would be sufficient in the ordinary course of nature to cause death. The Apex Court has held that the injury on the abdomen which had resulted internal injury to the vital organs like spleen, perritoneum would be sufficient in the ordinary course of nature to cause death and, therefore, the case would fall squarely under Clause 3 of section 300 of the Indian Penal Code. This view has been reiterated by the Apex Court in the case of (Mahesh v. State of U.P.)3, reported in 2000(1) S.C.C. 319 in which the Apex Court in para 9 has observed as follows: "Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow section 302 I.P.C. is not attracted. A single blow may, in some cases, in entail conviction under section 302 I.P.C. in some cases under section 304 I.P.C. and in some other cases under section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death." 10. In our view, in the facts and circumstances of the present case, it will have to be held that though the appellant Deepak had inflicted a single blow on the person of the deceased Promod, the said injury was sufficient in the ordinary course of nature to cause death and he had knowledge that it was sufficient in ordinary course of nature to cause death. Therefore, we are of the view that the appellant Deepak has committed murder of deceased Promod. The finding of the trial Court is, therefore, confirmed and appeal filed by appellant Deepak is dismissed. 11. So far as appellant in Criminal Appeal No. 19/97 is concerned, which is filed by the original accused No. 2 Amar @ Chiknya, Shri Ikhankar the learned Counsel appearing on behalf of the said appellant has submitted that none of the two eye-witnesses have stated that the said original accused No. 2 Amar had taken part in the commission of the said offence. He submitted that at the highest it could be inferred that he was present at the time when the said offence was committed. He submitted that so far as P.W. 1 Chandrashekhar is concerned, he has made number of improvements in his evidence and that the said omissions have been proved. He has submitted that in the original statement before the Police, P.W. 1 Chandrashekhar has not stated that the accused Amar @ Chiknya was present when the said offence had taken place. He further submitted that there are as many as 3 omissions and contradictions in the evidence of P.W. 1 Chandrashekhar so far as the role of accused No. 2 Amar is concerned. P.W. 1 Chandrashekhar has admitted that he had not stated before the Police in his supplementary statement that he know accused No. 2 by name also. He further submitted that there are as many as 3 omissions and contradictions in the evidence of P.W. 1 Chandrashekhar so far as the role of accused No. 2 Amar is concerned. P.W. 1 Chandrashekhar has admitted that he had not stated before the Police in his supplementary statement that he know accused No. 2 by name also. He has further admitted that he had not stated the name of accused No. 2 Amar either in his statement or in the report. From the perusal of the evidence of eye-witness P.W. 1 Chandrashekhar and P.W. 3 Vijay, it is apparent that accused No. 2 Amar neither threatened deceased Pramod nor took part in the commission of the said offence. The prosecution has not established that the appellant Amar and any common intention in the commission of the said offence. There is no recovery made at the instance of the said accused No. 2. Similarly, there is no evidence to show that there were any blood stains on the clothes of the accused No. 2. In our view, there is absolutely no iota of evidence against accused No. 2 Amar to show that he was involved in the commission of the said offence or that he had shared common intention alongwith the accused No. 1. In fact, from the evidence of P.W. 1 Chandrashekhar and P.W. 3 Vijay, it is doubtful whether this accused was present that P.W. 1 Chandrashekhar has involved his name while giving evidence before the Court. In this view of the matter, the finding of the trial Court in respect of the accused No. 2 Amar appellant in Criminal Appeal No. 19/97 is quashed and set aside. 12. In the result, the appeal filed by appellant Deepak is dismissed. The Appeal No. 19/97 is allowed. The appellant/original accused No. 2 Amar s/o Shridhar Khedkar is acquitted from the charge under section 302 read with section 34 of the Indian Penal Code. The appellant is already on bail. His bail bonds shall stands cancelled. -----