K. R. VYAS, J. ( 1 ) BOTH these appeals arise from the judgment delivered by the Ld. Sessions Judge, Amreli dated 30/9/1992 in Sessions Case No. 38/1991. By said judgment original accused no. 1 - Gala Kana has been convicted for an offence u/s. 302 of the Indian Penal Code (for short ipc) and he has been sentenced to suffer imprisonment for life. He has also been convicted for offence u/s. 333 of the IPC for which no separate sentence has been imposed. Moreover, he has been convicted for the offence u/s. 135 of the Bombay Police Act and has been sentenced to suffer RI for three months. The substantive sentences are ordered to run concurrently. He has, therefore, approached this Court by filing Criminal Appeal No. 1200 of 1992. 1. 1. ORIGINAL accused no. 2 - Mitha Kanabhai has been convicted for offences u/ss. 324 and 332 of the IPC read with section 109 of the IPC and sentenced to suffer RI for one year. However, he has been granted benefit under the Probation of Offenders Act on the condition of giving personal bond as well as surety for good behaviour for a period of one year and the substantive sentence passed against him has been ordered to remain suspended till then. He has been acquitted of an offence u/s. 302 read with section 109 of the IPC. The State of Gujarat has approached this Court by filing Criminal Appeal No. 123 of 1993 challenging the order of acquittal passed in favour of accused no. 2 for committing an offence u/s. 302 read with section 109 of the IPC. 1. 2. IT may also be noted here that against the order granting benefit to accused no. 2 u/s. 4 of the Probation of Offenders Act, the State had preferred Criminal Appeal No. 124 of 1993, but the same came to be dismissed by the Division Bench of this Court on 30th September, 1993 at the time of preliminary hearing itself. Since aforesaid appeals arise from the same judgment, they are disposed of by this common judgment. ( 2 ) IT is the case of the prosecution that on 22nd March, 1991 upon receiving information from the informant the Police Sub Inspector Mr. Since aforesaid appeals arise from the same judgment, they are disposed of by this common judgment. ( 2 ) IT is the case of the prosecution that on 22nd March, 1991 upon receiving information from the informant the Police Sub Inspector Mr. R. N. Dayatar attached to Liliya Police Station in District of Amreli decided to carry out raid under the provisions of the Bombay Prohibition Act at the place of accused. He, therefore, asked the police constables attached to his police station to dress themselves in uniform and to report to him at night. Pursuant to his order, at about 8. 30 p. m. Police Constable Ramjibhai Dayalbhai, Rameshbhai Valajibhai, Mohanbhai Mangalaji, P. C. Vinabhai Khimabhai reported to P. S. I. One Kanubhai Haribhai Patel and Tulashibhai Valabhai Patel both resident of village Liliya were also summoned to act as Panch at the time of raid. At the office of the P. S. I. all these persons were given to understand that as information was received to the effect that accused no. 2 - Mithabhai Kanabhai of Kharagam village was dealing in illicit liquor, raid was to be carried out at his place. After complying with the initial formalities the raiding party started for going to Kharagam. Within half an hour they reached the place and after alighting from the jeep except the driver, other policemen together with panchas went to the house of accused no. 2. When they reached there, they found the house was closed from inside. Hence the P. S. I. Dayatar gave a shout to open the door. In response thereto, a lady after some time came and opened the door and on seeing the police she shouted that run run, it is police. On hearing her shouts, both the accused started running towards the back side of the house. Accused no. 2 was ahead of accused no. 1. Immediately Police Constables Virabhai Khimabhai and Mohanbhai Mangalaji entered the house to apprehend the accused; whereas Police Constable Ramesh Valaji did not enter the house but from the outer side of the house he went towards back side of the house and waited near the door. As soon as accused no. 2 tried to go out from the back door, he was caught hold of by P. C. Rameshbhai. In the meanwhile accused no. As soon as accused no. 2 tried to go out from the back door, he was caught hold of by P. C. Rameshbhai. In the meanwhile accused no. 1 had already reached the back door and at that time accused no. 2 said "i am caught, Gala beat" [ Mane Pakadyo Chhe, Gala Mar ]. Accused no. 1, therefore, gave one blow with the weapon he was having at that time, to Police Constable Rameshbhai, who immediately fell down on the ground. The weapon was later on identified as Gupti which had entered the body of Police Constable Rameshbhai 2" below the left side nipple of the chest and it had pierced through the body downward across and the pointed end of the weapon had come out from the back of the right waist of the body. Both these accused who were being chased by the police officials made good their escape taking advantage of the darkness and also the cluster of babul trees. The P. S. I. warned them to stop and surrender. However, the accused did not listen to it and hence the P. S. I. fired one round from his revolver, but it did not have any effect and the accused could manage to disappear in the darkness. The policemen thereafter returned to the injured person Police Constable Rameshbhai and considering the nature of injury he was immediately asked by some of them as to what happened and the Police Constable Rameshbhai informed them that it was accused no. 1 - Gala who had caused him the injury. Police Constable Rameshbhai soon thereafter was shifted to Civil Hospital at Amreli. The Medical Officer on duty Dr. Kiranbhai Kalabhai Sagodiya examined him and on finding the condition of the patient critical, he immediately summoned Civil Surgeon who made arrangement for immediate operation. The injured was thereafter shifted to operation theatre where during treatment he expired. When the patient was brought to the hospital, he seemed very restless and upon inquiry made by the Medical Officer as to how this injury was caused to him, he in broken sentence stated kharagam, Gala Koli. Since the Medical Officer was first concerned with the treatment, he did not note down the history of the patient in case papers. However, later on i. e. after the death of injured person, he noted down the history in case papers. Since the Medical Officer was first concerned with the treatment, he did not note down the history of the patient in case papers. However, later on i. e. after the death of injured person, he noted down the history in case papers. Since the weapon with which the injury was inflicted had remained in the body of Police Constable Rameshbhai, it was exactly not known then what type of weapon it was and at some point of time it was even felt that the weapon used by accused no. 1 was a small spear. However, when the weapon was taken out from the body of Rameshbhai, it became sure that it was Gupti and the said weapon was then packed and sealed by the Medical Officer and handed over to the police. 2. 1. WHILE Police Constable Rameshbhai was in the hospital, P. S. I. Dayatar went to Liliya Police Station and registered a complaint which is at Exh. 36. Initially the complaint was registered for an offence punishable u/s. 307 of the IPC, but later on it was converted into an offence u/s. 302 of the IPC upon the demise of injured Rameshbhai. P. S. I. also immediately after lodging the complaint informed his superior officers by radio message about the attack on Police Constable. After 12. 00 midnight he started recording statements of various persons including the panchas, who had accompanied the raiding party. During the course of his investigation, he recorded the statements of Kanubhai Haribhai and Tulashibhai Madhabhai i. e. panchas, Police Constables Gangaram Manibhai, Ramjibhai Dayalbhai, Mohanbhai Mangalaji and Virabhai Khimabhai. In the early morning of 23rd March, 1991 he called Dhirubhai Ramajibhai and Nathabhai Karsanbhai to act as panchas while drawing the panchnama of scene of offence. By that time, upon receiving the instruction from his superior officers, he handed over further investigation of the case to Circle Police Inspector Mr. Bhadoriya. Mr. Bhadoriya thereafter collected the empty cartige of the round fired by P. S. I. Mr. Dayatar at the time of raid from his service revolver and necessary panchnama to that effect was drawn. He also recorded statements of various persons including the persons residing in the vicinity of the scene of offence. He got the post mortem done of the dead body of Rameshbhai by the Medical Officer and on receiving the information from Dy. Superintendent of Police Mr. He also recorded statements of various persons including the persons residing in the vicinity of the scene of offence. He got the post mortem done of the dead body of Rameshbhai by the Medical Officer and on receiving the information from Dy. Superintendent of Police Mr. Khant of Mahuva that Gala Kana was arrested by him, Mr. Bhadoriya went to Savarkundla that effected a formal arrest of accused no. 1 at 12. 00 noon. On 25/3/1991 around 4. 30 p. m. accused no. 2 Mitha Kana was also arrested. Despite inquiry and interrogation of both the accused, hilt of the Gupti could not be traced. On completion of the investigation on 17/5/1991, he submitted chargesheet in the Court of the Ld. Magistrate at Amreli, who in turn committed the case to the Court of Sessions as offence u/s. 302 of the IPC is exclusively triable by the Court of Sessions. ( 3 ) AT the trial, the Ld. Sessions Judge, Amreli framed charge against the accused on 13/07/1992 for offences made punishable u/s. 333 read with section 114 of the IPC, section 302 read with section 114 of the IPC and also against accused no. 1 for committing an offence u/s. 135 of the Bombay Police Act. The charge was explained to the accused. They, however, denied the same and claimed to be tried. In support of its case, the prosecution examined following 9 witnesses :- (1) dr. Kiranbhai K. Sagothiya P. W. 1 Exh. 17 (2) Dr. Bharatkumar M. Gadhvi, P. W. 2 Exh. 24, (3) ramajibhai Dayalbhai P. W. 3 Exh. 26, (4) mohanbhai Mangalaji P. W. 4 Exh. 28 (5) tulashibhai Madhabhai P. W. 5 Exh. 29, (6) kanubhai Haribhai P. W. 6 Exh. 31, (7) dhirubhai Ramajibhai P. W. 7 Exh. 32, (8) ranmalbhai Nathabhai P. W. 8 Exh. 34 and (9) jagvirsinh Sugarsinh Bhadoriya P. W. 9 Exh. 39. Over and above this, the prosecution also relied on certain documentary evidence such as the FIR Exh. 36, case papers of deceased Rameshbhai Exh. 20, medical certificate Exh. 21, the post mortem report Exh. 25, inquest panchnama Exh. 42, the panchnama of scene of offence Exh. 33, etc. 3. 1. AT the end of recording of oral evidence, the Ld. trial Judge recorded the further statements of the accused. 36, case papers of deceased Rameshbhai Exh. 20, medical certificate Exh. 21, the post mortem report Exh. 25, inquest panchnama Exh. 42, the panchnama of scene of offence Exh. 33, etc. 3. 1. AT the end of recording of oral evidence, the Ld. trial Judge recorded the further statements of the accused. They did not come out with any specific case, but their defence appear to be that of denial. 3. 2. AT the end of the trial, both the accused were convicted and sentenced as stated above. ( 4 ) BEFORE the commencement of hearing of these appeals Mr. A. D. Shah, Ld. counsel appearing for appellant in Criminal Appeal No. 1200 of 1992, was requested by us to render his serices to plead the case of accused no. 2 who is respondent of Criminal Appeal No. 123/1993, since he was not represented by any advocate and Mr. Shah has readily agreed to do so. He has taken us through the record of the case including the oral evidence of the prosecution witnesses. He has submitted that the order of conviction and sentence passed by the Ld. trial Judge against accused no. 1 are bad in law in as much as the prosecution has not been able to prove its case against him beyond any reasonable doubt. He has submitted that the prosecution witnesses are not telling the truth because looking to the fact that there was darkness at the place where the incident took place, they could not have identified the assailant. He has further submitted that though during the evidence before the Court these witnesses have tried to suggest that identity of the assailants could be established because there was a l[amp burning at the spot where the incident took place, the said version is nothing but an improvement because no such fact has been stated by these witnesses in their statements recorded by the Investigating Officer. He has submitted that so far the oral dying declaration made by the deceased before the Medical Officer at Amreli is concerned, it cannot be accepted because the information given by the deceased while in injured condition to the Medical officer in response to the query made by him, is very confusing and it does not suggest conclusively that the deceased wanted to convey that it was Gala Kana who had caused him this injury. He has further submitted that the Police Sub Inspector, who carried out the raid and subsequently who lodged the complaint for the crime committed by accused nos. 1 and 2, it was not proper for him to investigate into the matter. Such investigation, according to Mr. Shah, could only be one sided and it cannot be termed as a fair and impartial investigation. He has further submitted that the oral testimony is not in consonance with the medical evidence. He has further contended that since no blood stains are found at any place, the assault on Police Constable Rameshbhai by accused no. 1 becomes very doubtful. In the alternative, he has submitted that in case it is found that the accused no. 1 was the author of the injury caused to deceased Rameshbhai, looking to the circumstances prevailing then and the fact that at the time of assault on Rameshbhai by accused no. 1, accused no. 2 and Rameshbhai were having a small scuffle with each other. In that view of the matter, the accused no. 1 could not have intended to cause the injury which actually came to be suffered by Rameshbhai. In other words, according to Mr. Shah, the offence, if it is ultimately proved to be committed by the accused, would not be covered u/s. 302 of the IPC, but it would fall u/s. 304 Part-I of the IPC. 4. 1. SO far the States appeal is concerned, he has submitted that looking to the role played by accused no. 1, by no stretch of imagination it can be said that he was hand in glove with accused no. 1 to commit deadly assault on Police Constable Rameshbhai and he instigated accused no. 1 to kill him. He has further submitted that words uttered by accused no. 2 are only "i am caught, Gala beat" and those words do not in any way give indication that what he meant was Gala kill, but he has simply used word beat which would mean that he never intended to cause serious harm the deceased except to the extent that the deceased would loosen his grip and he could manage to escape. His contention is, therefore, that the States appeal does not have any merit and it deserves to be dismissed. 4. 2. AS against that, Mr. K. C. Shah, Ld. His contention is, therefore, that the States appeal does not have any merit and it deserves to be dismissed. 4. 2. AS against that, Mr. K. C. Shah, Ld. APP for the State has submitted that the judgment and order of conviction and sentence passed by the trial Court to the extent they relate to accused no. 1 are proper and require no interference by this Court. He has further submitted that the oral evidence of prosecution witnesses together with the medical evidence conclusively proved that it was accused no. 1 who had caused fatal injury to the deceased and the same was done at the instigation of accused no. 2. He has lastly contended that the appeal filed by the accused be dismissed and States appeal be allowed. ( 5 ) TO appreciate the rival contentions we have minutely gone through the evidence on record with a view to reappreciate it afresh. ( 6 ) TO prove its case against the accused the prosecution has firstly relied on the medical evidence to establish that deceased Police Constable Rameshbhai had died a homicidal death. Dr. Kiranbhai Kalabhai P. W. 1 Exh. 17 has stated that on 2 6/06/1990 he was working as Medical Officer at Amreli Civil Hospital. On 22/03/1991 at about 10. 35 p. m. a patient named Rameshchandra Valajibhai was brought to the hospital by Police Sub Inspector Mr. Dayatar. On examination it was found that the patient had suffered very serious injury. According to him, deceased had suffered a slanting punctured wound just below the left nipple of the chest going downwards and piercing the body through and through and the pointed blade portion of the weapon had come out on the right back side of the waist. On the other side of the body about a portion of 12 cm. had come out of the body and it could be clearly seen. He has described the injury thus - "stab wound transverse 1. 5 cm. broad below 2" of Lt. side nipple through and through with sharp pointed instrument in Situ seen at Right Pbt. axillary lie at D-10 level. about 12 cm. length end of instrument was out of body. " He has further stated that since the injury was very serious and the condition of the patient was very critical, he immediately summoned Civil Surgeon to carry out the operation. axillary lie at D-10 level. about 12 cm. length end of instrument was out of body. " He has further stated that since the injury was very serious and the condition of the patient was very critical, he immediately summoned Civil Surgeon to carry out the operation. However, during treatment the patient expired. He has also stated that since the patients treatment was most important and though he made inquiry about the cause of the injury from the patient, he had noted down this history in his case papers after the patient expired. The weapon had remained inside the body of the injured Rameshbhai when he was brought to the hospital and it could be taken out only after his death. This witness packed the said weapon in a cover and sealed it and handed it over to the police. ( 7 ) UPON the death of Police Constable Rameshbhai, his body was sent for post mortem examination to the concerned Department in Civil Hospital at Amreli. Dr. Bharatkumar Mamaiyadan Gadhvi P. W. 2 Exh. 24 carried out the post mortem examination on 23/3/1991 between 10. 30 a. m. and 12. 30 noon. He also prepared notes of the post mortem examination of the dead body, which he has produced on record at Exh. 25. The witness has mentioned external as well as internal injuries sustained by the deceased in a separate sheet as part of column no. 17 of the post mortem report. In the said column the injuries have been described as follows :- (1) A dressed wound underlying penetrating incised wound measuring 3/4" x 1/4" spindle shaped - 2 " to 2. 1/2" below Lt. nipple just menial to Lt. midelowender line. Transverse having sharp brownish red margins and zontal angle E corresponding cuts on Lt. pocket of shirt and Lt. side of ganji (2) A dressed wound O underlying penetrating incised wound measuring 3/4" x 1/4" spindle shaped - 3" to 3. 1/2" above the Rt. costal margin just posterior to posterior ciliary line - Transverse - having sharp brownish red margins and sentry angles. Corresponding cuts on Rt. side of shirt and ganji. (3) A perforating wound 1" in diameter piercing lower part of medievalism - adjoining parts of both parcels pleura and Rt. 1/2" above the Rt. costal margin just posterior to posterior ciliary line - Transverse - having sharp brownish red margins and sentry angles. Corresponding cuts on Rt. side of shirt and ganji. (3) A perforating wound 1" in diameter piercing lower part of medievalism - adjoining parts of both parcels pleura and Rt. dome of diaphragm both dark coloured blood found around the wound wound margin brownish red - sharp dark coloured blood in both pleural carchis. (4) A perforating wound 1. 1/2" x 3/4" in superolateral aspect part of Rt. lalee of from its posterolateral aspect trio lateral in having irregular margin - Inter substance dark coloured clot projecting from wound. (5) An incised wound 1. 1/4" x 1/4" x 1/4" on anter aspect of upper lobe of Rt. kidney obliquely upwards from medial to lateral - multiple dark coloured clot all around - brownish red sharp margin running parallel to each other. (6) Dark red blood and dark coloured clots in puritanical cavity. In the opinion of tis witness, the cause of death was shock due to injury to liver and right kidney. This witness has been extensively cross-examined by the defence, but it has not succeeded to cull out any material which may go against the findings recorded by him in the post mortem notes. In the opinion of this witness the injury suffered by the deceased was sufficient in the ordinary course of nature to cause death. 7. 1. OVER and above this, the prosecution has relied on the inquest panchnama, which is totally in consonance with the findings regarding external injuries recorded by the Medical Officer in the post mortem notes. In this view of the matter, we have no hesitation to hold that the deceased had died homicidal death and we agree with the finding given by the Ld. trial Judge on this count. 7. 2. THE prosecution has examined five eye witnesses and Ramajibhai Dayalbhai P. W. 3 Exh. 26 is one of them. According to him between 1/05/1989 and 16/07/1992 he was attached to Liliya Police Station as unarmed police constable. On 22/3/1991 while he was on duty P. S. I. Mr. R. N. Dayatar directed him to report on duty at night after putting on the uniform. He, therefore, went home and around 8. 00 Oclock in the evening reported to the P. S. I. in uniform. On 22/3/1991 while he was on duty P. S. I. Mr. R. N. Dayatar directed him to report on duty at night after putting on the uniform. He, therefore, went home and around 8. 00 Oclock in the evening reported to the P. S. I. in uniform. He has further stated that at that time other Police Constables, namely Virabhai Khimabhai, Mohanbhai Mangalaji, Rameshbhai Valajibhai, etc. were there. Over and above this, two persons from Liliya village were also called at the police station. They were given to understand that information was received to the effect that bootlegging activity was carried on by accused nos. 1 and 2 at village Khara Gam and their premises therefore, were required to be raided. Two residents of Liliya were summoned by the P. S. I. to act as panchas during the raid. The whole raiding party then boarded the jeep and went to village Kharagam, where the jeep was parked on road just opposite to the house of accused no. 2. All except the driver of the jeep alighted from the jeep and they went to the house of accused no. 2 which was locked from inside. The P. S. I. gave a shout to open the door and in response thereto, after awhile, one lady came there and opened the door. She, however, on seeing the police immediately screamed and warned the inmates of the house that it was police, run away. While the accused started running to the back door, two police constables, namely Virabhai Khimabhai and Mohanbhai Mangalaji went inside the house to apprehend the accused, whereas Rameshbhai Valajibhai went to the back side of the house from outer side of the house. He has further stated that Police Constable Rameshbhai waited just near the back door and as soon as accused no. 2 came out, he caught hold of him. Accused no. 2 immediately told his brother Gala that he was caught and Gala should beat to get him free. On hearing this accused no. 1 gave a blow with weapon he was having with him to Police Constable Rameshbhai and as a result of this assault Rameshbhai fell down on the ground. He has further stated that the accused thereafter started running and the P. S. I. and others asked them to stop, but they did not listen. On hearing this accused no. 1 gave a blow with weapon he was having with him to Police Constable Rameshbhai and as a result of this assault Rameshbhai fell down on the ground. He has further stated that the accused thereafter started running and the P. S. I. and others asked them to stop, but they did not listen. Hence, P. S. I. fired one shot from his revolver, but the accused made good their escape. 7. 3. THIS witness has further stated that all of them thereafter went to Rameshbhai and some of them asked him what had happened. At that time he informed them that Gala Kana had caused him injury with Gupti which had pierced through the body and had remained inside the body. He has also stated that at that time deceased Rameshbhai said that it was Gala accused no. 1 who had caused him injury. According to this witness, he had seen the incident in the light of a lamp which was hanging on a bamboo stick. He has also stated that he knew both the accused since they were brought to the police station on earlier occasions in connection with prohibition cases. In the cross-examination by the defence he has admitted that in the statement before the police, he had not stated that he could notice the incident in the light of lamp which was hung on a bamboo stick at the place of incident. He has further admitted that he had not stated before the police that he knew the accused before the incident, as they used to come to the police station in connection with prohibition cases. He has further stated that when the door was opened and accused started running Virabhai Khimabhai and Police Constable Mohanbhai Mangalaji followed them inside the house and he had seen both the accused coming out of the door situated at the back followed by Virabhai and Mohanbhai. He has further stated that he had not seen any weapon in the hand of Gala Kana - accused no. 1 before it came to be inflicted on Police Constable Rameshbhai. He has also stated that he did not know from where the weapon was brought by accused no. 1. He has further stated that he had not seen any weapon in the hand of Gala Kana - accused no. 1 before it came to be inflicted on Police Constable Rameshbhai. He has also stated that he did not know from where the weapon was brought by accused no. 1. He has further stated in the cross-examination that deceased Rameshbhai when caught Mitha his face was towards south, whereas the blow which was given by Gala Kana was from left hand side of the deceased. On receiving the blow Rameshbhai fell down by giving a shout that "o sir I am killed. " He has further stated that as soon as the accused made good their escape, the P. S. I. and others asked Rameshbhai, who had beaten him. He has also stated that he and P. S. I. Mr. Dayatar ran after the accused, but they could not apprehend them. The P. S. I. also fired a shot from his revolver. In the cross-examination for accused no. 2 he has stated that he had no knowledge as to how many members in the family of Mithabhai. 7. 4. THE second witness is Mohanbhai Mangalaji P. W. 4 Exh. 28. In the examination-in-chief he merely repeats the same story as stated by earlier witness. However, he has stated that he could see the tubelight inside the house of Mitha Kana. He has further stated that he knew the accused Mitha Kana because he used to come to the police station in connection with prohibition cases. He has further stated that he also knew Gala Kana because he was serving as a security man and in that connection he used to keep a weapon and for that he had to visit police station in connection with the licence of the weapon. On the aspect of how Rameshbhai came to be injured, he has more or less given the same version as given by the earlier witness. From the cross-examination nothing much of any importance from the defence point of view has been elicited from this witness. 7. 5. THE next witness examined by the prosecution is Tulashibhai Madhabhai P. W. 5 Exh. 29. He at the relevant time was resident of Liliya. He was summoned to go alongwith the raiding party to witness the things happening there and upon making full preparation the raiding party started for village Kharagam. 7. 5. THE next witness examined by the prosecution is Tulashibhai Madhabhai P. W. 5 Exh. 29. He at the relevant time was resident of Liliya. He was summoned to go alongwith the raiding party to witness the things happening there and upon making full preparation the raiding party started for village Kharagam. The witness further states that when the lady opened the door of the house, she immediately on seeing the police raised the shout warning the inmates of the house to run that the police has come. The inmates, namely accused nos. 1 and 2 started running towards the back of the house and they were followed by two constables inside the house. However, whether they were Mohanbhai or Virabhai he was not very sure about it. He further states that Rameshbhai, the P. S. I. and Ramajibhai went behind the house from western direction to stop the accused from running away from the back door. He also states that the Rameshbhai after going behind the house caught hold of one accused, who immediately asked his brother Gala to beat, as a result of which Gala gave a blow with a weapon which entered the body of Rameshbhai. In the cross-examination except for certain contradictions to the effect that about the lamp he had not stated anything before the police nor he had stated anything about knowing of the accused prior to the incident in his statement recorded by the police, no effective material to dislodge this witness from his main story has been brought out. 7. 6. SIMILARLY prosecution has examined Tulashibhai Madhabhai and Kanubhai Haribhai P. W. 5 and 6 Exhs. 29 and 31 respectively as eye witnesses. But they have turned hostile and not supported the prosecution story in its vital aspect. 7. 7. RANMALBHAI Nathabhai P. W. 8 Exh. 34 who at the relevant time was P. S. I. has stated in his evidence that on receiving the information about the bootlegging activity of the accused at Kharagam, he had asked certain Police Constables to be ready in uniform to carry out the raid. He had also summoned two panchas to accompany the raiding party. When the raiding party reached village Kharagam, they parked the jeep on the road and went on foot to the house of accused no. 2. He had also summoned two panchas to accompany the raiding party. When the raiding party reached village Kharagam, they parked the jeep on the road and went on foot to the house of accused no. 2. He gave a shout to open the door which was opened by one lady who immediately gave a shout "run the police has arrived. " Immediately therefore Mohanbhai Mangalaji and Virabhai Khimabhai chased the accused from inside the house, whereas Police Constable Rameshbhai Valajibhai went to the back side of the house from the outer side of the house. In the Osari at the relevant time a tubelight was on and in that light two persons could be seen opening the door falling on the western side. He has further stated that accused no. 2 and accused no. 1 tried to escape through this door. At that time Police Constable Rameshbhai caught hold of accused no. 2 and at that very time accused no. 2 asked accused no. 1 to beat as he was caught. He has further stated that accused no. 1 immediately gave a blow on the stomach of Rameshbhai with the weapon he was carrying and as a result thereof Rameshbhai gave out a shout "o Sir I am dead" and then he fell down on the ground. He has further stated that he and Police Constable Ramajibhai chased the accused and called upon them to halt, but they did not listen and hence one shot was fired from the revolver. The accused, however, cannot be traced and they disappeared in the darkness in the cluster of babul trees. When they returned to Rameshbhai, they noticed that the weapon gupti had pierced through and through from the stomach side and it had come out on the back side of Rameshbhai. When one asked Rameshbhai, he incoherently said that he has been beaten by spear and gupti. According to this witness, Rameshbhai was immediately removed to Amreli Civil Hospital for treatment and he thereafter went to the police station and lodged a complaint. When he received the information with regard to the demise of Rameshbhai, he accordingly sent a report to the Ld. Magistrate regarding conversion of the offence from u/s. 307 to that of section 302 of the IPC. When he received the information with regard to the demise of Rameshbhai, he accordingly sent a report to the Ld. Magistrate regarding conversion of the offence from u/s. 307 to that of section 302 of the IPC. In the cross-examination by the defence attempt has been made to elicit from him that looking to the situation of the house and and because of the want of proper lighting, they could not have seen the assailants and their identity regarding the accused no. 1 being the assailant can be rendered very doubtful. The defence has also cross-examined this witness to show that at the time when accused no. 2 was apprehended by Police Constable Rameshbhai, a scuffle was going on between them as accused no. 2 was trying to get himself free from the grip of Rameshbhai. It is also endeavored to be brought out from this evidence by the defence that at the time when the blow came to be given by accused no. 1, there was great amount of movement between the two, namely the deceased and accused no. 2 and after the injury was inflicted both the accused ran away in the darkness so as to make their identity almost impossible. The defence has tried to suggest to this witness that because of the darkness the identity of the assailant could not be ascertained and the witness and the others had no idea about the assailants till the time they reached the hospital. The said suggestion has been denied by the witness. This witness has also stated that statements of some of the eye witnesses were recorded by him before the panchnama of scene of offence came to be drawn and during interrogation of those witnesses, he had not asked them any question to the effect that whether there was light at the place of incident. This witness has been put a pointed question that whether he believed that if the person whose hand was caught by the deceased Rameshbhai had not spoken that "mane Pakadyo Chhe, Gala Mar" Gala would not have beaten the deceased. In answer thereto the witness has said that if that person i. e. accused no. 2 had not spoken the above words, accused no. 1 Gala would not have inflicted the injury. In answer thereto the witness has said that if that person i. e. accused no. 2 had not spoken the above words, accused no. 1 Gala would not have inflicted the injury. He has further stated that so far Gala Kana is concerned, he was known to him because he had licence to hold the weapon and in connection with that licence he had met the witness on 3 to 4 occasions earlier. Further he has stated that he also knew Mitha Kana - accused no. 2 because twice he was apprehended by him. He has been thereafter cross-examined by the defence to prove the omissions and contradictions of the eye witnesses, who were already examined before the Court. 7. 8. JAGVIRSINH Sugarsinh Bhadoriya, P. W. 9 Exh. 39 is examined by the prosecution as he had taken the charge of investigation from P. S. I. Dayatar on 23/03/1991 i. e. on the next day of the incident. In the examination-in-chief he has given a detailed account of his investigation and in the cross-examination nothing much has been asked to him. 7. 9. OVER and above this, the prosecution has placed great reliance on the panchnama of the scene of offence and for proving the same Dhirubhai Ramajibhai P. W. 7 Exh. 32 has been examined. As stated above, he has turned hostile. However, he has admitted that he had signed the panchnama, though he had not read the same. The panchnama of the scene of offence has been exhibited and taken on record at Exh. 33. The prosecution has also placed reliance on the complaint lodged by P. S. I. Mr. Dayatar at Liliya Police Station in the night between 22nd and 23rd of March 1991. ( 8 ) WE may now appreciate the evidence of the aforesaid witnesses in light of the contentions raised by Mr. A. D. Shah before us. 8. 1. THE first contention of Mr. Shah is that considering the fact that the incident had taken place after 8. 30 p. m. and hence there was darkness at the place where the raid was carried out and the incident had happened. According to him, due to insufficiency of light at the place, identity of assailants i. e. accused no. 1 and his brother accused no. 2 could not be made. 30 p. m. and hence there was darkness at the place where the raid was carried out and the incident had happened. According to him, due to insufficiency of light at the place, identity of assailants i. e. accused no. 1 and his brother accused no. 2 could not be made. He has further stated that since the accused were in the process of running, it had become very difficult to identify them. This contention, however, cannot be accepted because there is ample evidence on record to show that there was sufficient light available at the place to enable the witnesses to identify both the accused. As seen above, most of the eye witnesses have stated that there was a lamp burning on north-western corner of the house and its light covered the area in radius of about 30 to 40 ft. It is also in evidence that upon P. S. I. Mr. Dayatar giving a shout to open the door, a lady came and opened the door of the Fali and on seeing the police, she immediately in a loud voice warned the inmates to escape. The police standing at the door could see two persons in the Osari trying to run at the back side of the house near the place meant for tethering cattle i. e. Farja and from there towards the door of Navela. This Navela is 7 and 3" in width and about 32 and 6" in length. Two Police Constables, namely Virabhai Khimabhai and Mohanbhai Mangalaji chased those two persons from inside the house, whereas deceased Rameshbhai went towards the door of Navela from the outer side of the house. According to all these witnesses, the lamp which was hanging on a bamboo stick gave sufficient light at the place where door of Navela is situated and where the incident of inflicting injury on Rameshbhai had taken place. It is the say of P. S. I. Mr. Dayatar that there was a tubelight on the bamboo stick which gave sufficient light to ascertain the identity of the assailants. The defence has, however, brought out from the witnesses that this fact was never stated by them in the police statements and this omission has been duly proved during the cross-examinations of P. S. I. Mr. Dayatar and Mr. Bhadoriya. However, if the map of the scene of offence which has been produced at Exh. The defence has, however, brought out from the witnesses that this fact was never stated by them in the police statements and this omission has been duly proved during the cross-examinations of P. S. I. Mr. Dayatar and Mr. Bhadoriya. However, if the map of the scene of offence which has been produced at Exh. 47 and the panchnama of the scene of offence are perused, they clearly show presence of the electric light at the place stated by the witnesses. The said light was found to be in working condition when the panchnama was drawn early in the morning of 23rd. Assuming that the said fact had not been stated by the witnesses in their police statements, such omission cannot be of such a nature that it can be termed as contradiction. It is more so when the say of the witnesses gets ample corroboration from the map and panchnama of the scene of offence and the omission becomes totally insignificant and on that aspect the say of the prosecution witnesses becomes absolutely reliable. 8. 2. IF this aspect is examined from other angle, then also one can safely come to the conclusion that there was enough light for the witnesses to see the incident and identify the assailants. It has come in the evidence that when the jeep car was parked on the road except driver all other members of the raiding party got down and went near the house of accused no. 2. Thereafter, the P. S. I. Mr. Dayatar shouted to open the door which was opened after awhile by a lady, who immediately gave a shout to warn the inmates of the house to escape as the police had arrived. Meaning thereby that even on opening the door of Faliya there was sufficient light at the place whereby the lady could see and identify the police personnel. There is also in evidence that while standing at the door the police could see two accused running from inside the room towards Farja. Had there been a total darkness at the place, neither the lady could have identified the policemen nor the policemen could have seen the accused running away towards Farja. There is also in evidence that while standing at the door the police could see two accused running from inside the room towards Farja. Had there been a total darkness at the place, neither the lady could have identified the policemen nor the policemen could have seen the accused running away towards Farja. Judicial note of the fact can also be taken that this being a residential house, at night hours the lights are bound to be on since it was not very late in the night but the time was between 8. 30 p. m. and 9. 00 p. m. Considering all these aspects, we are of the opinion that at the scene of offence there was sufficient light. It is true that the prosecution witnesses have said in their evidence that the accused managed to disappear taking advantage of the darkness at the place as well as the cluster of babul trees. It may be recalled here that according to the witnesses, the light which emanated from the lamp or tubelight was in the radius of only 30 to 40 ft. and beyond that it was of darkness. It is also in evidence that after getting free from the grip of deceased Rameshbhai, accused no. 2 as well as accused no. 1 ran towards the Babul trees which are at the distance of around 50 ft. and beyond that. The witnesses, therefore, tell the truth that after covering the lighted area by running the accused got disappeared in the darkness beyond the babul trees. The defence is, therefore, not correct when it says that the prosecution witnesses have tried to blow hot and cold at one and at the same time nor it can be said that considering the evidence of these witnesses, it is proved that there was all darkness at the place of incident and the identity of the assailants could not be ascertained. 8. 3. THE second limb of question of identification of the accused by the prosecution witnesses is that both these accused were known to them. Though the defence has challenged this aspect also and has confronted the witnesses with their previous statements recorded by the police and has questioned them to the effect that they had not stated before the police that they had already known the accused prior to the incident because of some reason or the other. Though the defence has challenged this aspect also and has confronted the witnesses with their previous statements recorded by the police and has questioned them to the effect that they had not stated before the police that they had already known the accused prior to the incident because of some reason or the other. In our opinion, even if this fact is not stated before the police, it does not adversely affect their evidence, firstly because in the police statement a person is not required to tell each and every detail regarding the incident. If the crux or genesis of the incident is stated by the witness in his statement recorded by the police, the other incidental matters do not assume much importance and omission to mention such incidental facts in the statement becomes insignificant. Omission for being taken into consideration should be of such nature that because of it the authenticity of narration of facts in the statement becomes doubtful. If the Court is satisfied that looking to the circumstances on record, the prosecution witnesses had all the chances to know the accused prior to the incident, it can safely accept their evidence on that count. In this case, it is almost an admitted fact that both these persons were indulging into bootlegging activity since long and it is very natural that while carrying on such illegal activity, they may have occasions to visit the police stations or the Court of law. It is the say of the prosecution witnesses and especially police witnesses that prior to the present incident accused no. 2 Mitha Kana had been brought to Liliya Police Station in connection with his bootlegging activity and as such these policemen had a chance to see him and to properly know him. So far accused no. 1 Gala Kana is concerned, over and above this, he had also occasions to visit the police station in connection with his licence to hold weapon. In view of these circumstances, even when the prosecution witnesses have not stated the fact regarding their knowing the accused prior to the incident in the police statements, there is no harm in accepting their version in as much as the reasons for the police witnesses to know these accused are very natural considering the nature of duty they are performing and the illegal activity which the accused are indulging into. 8. 4. 8. 4. THERE is one more reason to accept the version of prosecution witnesses that it was Gala Kana who had inflicted injury on deceased Rameshbhai because all the witnesses are almost unanimous in saying that when Mitha Kana was apprehended by deceased Rameshbhai, he gave a shout "mane Pakadyo Chhe, Gala Mar". The record of the case shows that at the time when the incident took place, except two male members and one lady member, no other seems to be present in the house. It is also very clear that when Mitha Kana is apprehended, the only person who is in a position to inflict injury on the deceased is Gala Kana. To lend support to this fact, there is one more aspect available on record, that is in the form of oral dying declaration made by deceased Rameshbhai first to Police Constable Ramajibhai and thereafter to the Medical Officer at Amreli Civil Hospital. P. W. Ramajibhai is very specific on this aspect. According to him, when the accused made their escape good, all the persons of the raiding party came to deceased Rameshbhai and Rameshbhai told them that it was Gala Kana who had inflicted injury on him. Similarly, when he was taken to the hospital he had revealed to the Medical Officer Dr. Kiranbhai Kalabhai in response to his query that who had beaten him, he had stated kharagam Gala Koli. All these aspects also lend support to the case of the prosecution that it was accused no. 1 Gala Kana who had inflicted blow on hearing a shout from accused no. 2 Mitha Kana and as a result of that assault, Rameshbhai had received fatal injury. 8. 5. IF the overall view of the aforesaid all circumstances is taken into consideration, the submission made by Mr. A. D. Shah, Ld. counsel for the appellant accused regarding failure on the part of the prosecution to establish the identity of the accused cannot be accepted. ( 9 ) MR. Shah has further contended that the medical evidence is not in consonance with the oral evidence. A. D. Shah, Ld. counsel for the appellant accused regarding failure on the part of the prosecution to establish the identity of the accused cannot be accepted. ( 9 ) MR. Shah has further contended that the medical evidence is not in consonance with the oral evidence. We find no merit in this argument because the medical evidence which we have already discussed above, clearly shows that the weapon had entered into the body of deceased Rameshbhai from the left side of his body and it had penetrated through and through and had come out from the body on the back side after causing grave injuries to the internal and very vital organs such as kidney and liver. The witnesses have stated before the Court this very fact. Not only that but the medical evidence has also lent corroboration to that version that when the injured was removed to the hospital from the scene of offence, the weapon had remained in the body of the victim. This aspect even further gets corroboration from the fact that when the patient had died thereafter only the Medical Officers could take out the weapon from his body which was packed and duly sealed by Dr. Kiranbhai and handed over to police. In light of these facts it can hardly be said that the medical evidence is not in consonance with the oral evidence of the prosecution witnesses. ( 10 ) MR. Shah, Ld. counsel for the accused has further submitted that the prosecution is not sure that which weapon the deceased was assaulted by accused no. 1. According to Mr. Shah in the case papers prepared by Dr. Kiranbhai, it is stated that it is either spear or gupti which is used for committing this crime. This lapse on the part of witnesses including the deceased can well be explained this-wise that in the struggle to escape from the place which was under raid by the police, the weapon came to be inflicted in the body of the deceased by accused no. 1 and had remained there also. The witness therefore, had any chance to see properly by what means the injuries came to be caused. The thing became little bit more difficult because hilt of the gupti had got broken and separated and only blade had remained inside the body. 1 and had remained there also. The witness therefore, had any chance to see properly by what means the injuries came to be caused. The thing became little bit more difficult because hilt of the gupti had got broken and separated and only blade had remained inside the body. The other pointed end on the back side therefore gave some appearance of small spear which created slight confusion amongst the witnesses as well the doctor to mix up gupti with a small spear. Looking to the evidence of Dr. Kiranbhai, it becomes very clear that he had taken out the weapon from the body of the deceased and had packed it and in a sealed condition handed it over to the Investigating Officer which was ultimately brought before the Court at the time of trial. Mr. Shahs submission, therefore, cannot be accepted. ( 11 ) MR. Shah has lastly submitted that if the Court comes to the conclusion that the prosecution has adequately established the fact regarding the assault by accused no. 1 and upon accused no. 2 calling him to beat, looking to the factors emerging from the prosecution evidence, the offence that may be constituted would not be u/s. 302 of the IPC, but a lesser one, namely an offence u/s. 304 Part-I of the IPC. In support of his contention, he has further submitted that the prime intention of the accused at the time of incident was to escape from the clutches of the police and at that time when accused no. 2 came to be apprehended, he shouted for help by asking accused no. 1 to beat, and in the process of complying with the request of accused no. 2, accused no. 1 while running to deliver a blow to deceased Rameshbhai, who had caught hold of accused no. 2. He has further submitted that in all probabilities the intention of accused no. 1 could be only to injure the hand of deceased with which he had caught hold of accused no. 2 and it was only due to accident the blow fell just below the left side nipple between two ribs and gupti being the narrow long pointed two edged weapon, pierced through and through the body and came out on the right back side at a lower portion of the body. According to Mr. Shah, since accused no. 2 and it was only due to accident the blow fell just below the left side nipple between two ribs and gupti being the narrow long pointed two edged weapon, pierced through and through the body and came out on the right back side at a lower portion of the body. According to Mr. Shah, since accused no. 1 was in the process of running while delivering the blow, two forces, namely the force of hand used for inflicting the blow as well as the force which had generated on account of process of running had also caused the weapon pierce through and through the body from left side to the right back side portion of the body. He has, therefore, submitted that merely because the injury was of very serious nature and it was sufficient in the ordinary course of nature to cause death, it cannot be said that it would be covered under Clause (3) of Section 300 of the IPC. To sum up this contention it can be stated that according to Mr. Shah, the prime intention of the accused no. 1 was to get accused no. 2 released from the grip of the deceased and help him in escaping from scene of offence. 11. 1. THIS submission though appears to be attractive, cannot be accepted to take the case of accused no. 1 out of the provisions of Clause (3) of Section 300 of the IPC. Mr. Shah has submitted that while running the blow was inflicted, which had accidentally fell on the body just below the left nipple on chest. If Mr. Shahs submission is to be accepted, then we may have to hold contrary to the findings arrived at by the Medical Officer, who had performed the post mortem of the deceased. According to the Medical officer, the blow was inflicted 2" below the left nipple on the left side of the body and the weapon had travelled from upward direction to downward and it had in the process damaged the kidney and liver, the vital internal organs of the body and the pointed end of the weapon had come out just below the right side waist of the body. In our opinion, if a person while in the process of running inflicts a blow, it would more or less be horizontal in direction. In our opinion, if a person while in the process of running inflicts a blow, it would more or less be horizontal in direction. It is almost impossible for a person, while running to inflict a blow due to which the weapon may travel vertically, from upward to downward direction. In other words, a vertical injury may seem totally improbable to be inflicted while the assailant is in the process of running considering the nature of weapon used for causing injury. It may be noted here that it is in evidence that accused no. 2 was running ahead of accused no. 1 and after covering the distance of Farja, accused no. 2 was first to approach the door opening on the back side of the premises where deceased Rameshbhai was standing and he apprehended accused no. 2. This would create a situation that the door gets blocked and accused no. 1 was following accused no. 2 would not get any passage to clear him out of the house. In such situation, accused no. 1 would not have any other option but to stop running and remove the hurdle in his way. It appears that it was precisely when such situation had arisen accused no. 2 gave a shout "mane Pakadyo Chhe, Gala Mar". Accused no. 1, therefore, was not only required to get accused no. 2 released from the grip of deceased Police Constable Rameshbhai, but he had also got to clear the obstruction which was there in the form of the deceased and accused no. 2. In such static condition it was very easy for accused no. 1 to inflict the injury which he himself intended. If accused no. 1 had merely intended to use some force with a view to secure the release of accused no. 2 from the grip of the deceased, he would have used the weapon which had cover and would have inflicted a blow on the hand of the deceased which in all probabilities would have given the expected result. However, it has not happened so. On the contrary, the deadly weapon had been brought out by accused no. 1 from the scabbard and he had thereafter inflicted the blow on body of the deceased with such a force that the entire blade portion of the weapon pierced through the body from left nipple side downward to the right back side of the waist. On the contrary, the deadly weapon had been brought out by accused no. 1 from the scabbard and he had thereafter inflicted the blow on body of the deceased with such a force that the entire blade portion of the weapon pierced through the body from left nipple side downward to the right back side of the waist. Not only that but the entire blade portion remained in the body, whereas its handle got separated. If accused no. 1 had used a deadly weapon like gupti to inflict a blow just below the left nipple and the weapon travelled through and through to the otherside of the body, no other intention can be attributed to accused no. 1 except that he intended to kill the deceased by inflicting such injury which was sufficient in ordinary course of nature to cause his death. According to Mr. Shah, there was no personal enmity between accused no. 1 and the deceased. Moreover, no incriminating substance was found by the police during this raid and thereafter. However, one must not forget at this juncture that the deceased was belonging to police force and the accused were established bootleggers. For a person indulging into bootlegging activity, there would not be any other greater enemy than a member of police force. Accused no. 1, therefore was out to eliminate that enemy, who had dared to apprehend him in his own house. As stated above, even if there was no personal enmity between the two, accused no. 1 had seen enemy in the deceased as he belonged to police force. It has also come on record through panchnama at Exh. 33 that while carrying out the search and drawing the panchnama of scene of offence, Ganja to the extent of 250 to 300 grams was recovered from this very house. Since wives of both these accused were present when said panchnama was drawn and Ganja was recovered, they have been prosecuted for the offences which have been made punishable under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985. In these circumstances, the contention of Mr. Shah with regard to the intention of accused no. 1 at the time of inflicting blow on the deceased cannot be accepted. 11. 2. IN support of this contention Mr. In these circumstances, the contention of Mr. Shah with regard to the intention of accused no. 1 at the time of inflicting blow on the deceased cannot be accepted. 11. 2. IN support of this contention Mr. Shah has also cited before us several decisions, one of them being a decision rendered in the case of Vaghari Kala Bhikha v/s. State reported in 25 (1) G. L. R. at page 188. In that case the accused had caused injury with knife to a Police Constable while trying to avoid his arrest. He was therefore, charged for offence u/s. 307 of the IPC. This Court, however, held that since the intention of the accused of that case was not to cause that particular injury and there was all possibility that the said injury was unintentional or accidental and, therefore, in the opinion of this Court, the accused could not be convicted for offence u/s. 307 of the IPC, but could only be convicted for causing injury to the victim. We have gone through this decision and we find that the decision rendered in this case may not be of any help to Mr. Shah because looking to the facts and circumstances of that case, it could safely be concluded that the prime intention of the accused was to escape. However, the facts of the present case are totally different from the case referred to above. In the case on hand, it clearly appears that though accused intended to escape from the scene of offence, at the time when assault came to be made on the deceased Rameshbhai by accused no. 1, the intention to kill was first and foremost in his mind. The purpose for which, the assault was made and injury was caused, then becomes insignificant. In the present case, at the time of assault accused no. 1 had no other intention but to inflict a fatal injury on the deceased Police Constable. We, therefore, do not see how the authority cited before us can be helpful to Mr. Shah. The other decision relied on by Mr. Shah is rendered by the Apex Court in the case of Jagrup Singh v. State of Haryana reported in A. I. R. 1981 S. C. p. 1552. We, therefore, do not see how the authority cited before us can be helpful to Mr. Shah. The other decision relied on by Mr. Shah is rendered by the Apex Court in the case of Jagrup Singh v. State of Haryana reported in A. I. R. 1981 S. C. p. 1552. This is a case wherein the Apex Court considering the facts, came to the conclusion that since the accused of that case had given a blow with blunt side of a gandasa and that too in the heat of the moment and without premeditation, his case would be covered under exception 4 of Section 300 and Clause 3 of Section 300 would not apply. There can be no dispute with regard to the view taken by the Apex Court in that case. However, from no angle the present case fits into the frame of the case before the Apex Court and that decision therefore, will not render any assistance to Mr. Shah. Similarly Mr. Shah has relied on the decisions rendered by the Apex Court in the case of Gopal and ors v. State of U. P. reported in JT 2001 (4) SC p. 439 and in the case of Krishna Tiwari and anr. v. State of Bihar reported in JT 2001 (3) SC at p. 331, wherein it has been laid down that while deciding the question of intention the surrounding facts and circumstances of the case are required to be kept in view. There cannot be any contrary opinion to this. However, in the case on hand, even after keeping in view all these surrounding facts and circumstances, we are very sure that in this case the accused no. 1 had no other intention but to commit the murder of deceased Police Constable Rameshbhai. The aforesaid decisions therefore, cannot be relied on. Over and above this Mr. Shah has relied on the decisions in the cases of Jawahar Lal v. State of Punjab reported in AIR 1983 SC p. 284 and Jagtar Singh v. State of Punjab reported in AIR 1983 SC p. 463. However, considering the facts and circumstances of those cases, it becomes clear that they are not be of any help to Mr. Shah. 11. 3. However, considering the facts and circumstances of those cases, it becomes clear that they are not be of any help to Mr. Shah. 11. 3. LOOKING to the nature of the weapon, the seat and nature of injury and the force with which it is given, we have no hesitation in holding that accused no. 1 had entertained one and only one intention to do away with Police Constable Rameshbhai. His conviction by the trial Court for an offence u/s. 302 and also u/s. 333 of the IPC is proper and it does not call for any interference from us. Similarly, the case of prosecution levelling accusation against the accused no. 1 for committing an offence u/s. 135 of the Bombay Police Act is duly proved and we do not see any justifying reason to disturb that finding of the trial Court. ( 12 ) IN light of aforesaid discussion, we hold that the judgment and order of conviction and sentence passed by the trial Court against accused no. 1 are proper and the appeal, therefore, does not have any merit and it is required to be dismissed. The same is hereby ordered to be dismissed. ( 13 ) SO far the appeal of the State challenging the order of acquittal in favour of accused no. 2 of the charge u/s. 302 of the IPC is concerned, he has submitted that the trial Court was in error in acquitting accused no. 2 of offence u/s. 302 of the IPC read with section 109 of the IPC. He has placed reliance on section 111 of the IPC and submitted that when act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the extent as if he had directly abetted it. 13. 1. THE oral evidence on record clearly shows that accused no. 2 was running ahead followed by accused no. 1. It also appears that immediately on receiving the warning from lady who had opened the door, both the accused had started running all of a sudden. In these circumstances, it is quite possible that accused no. 2 may not know that accused no. 1 was carrying on deadly weapon with him. 2 was running ahead followed by accused no. 1. It also appears that immediately on receiving the warning from lady who had opened the door, both the accused had started running all of a sudden. In these circumstances, it is quite possible that accused no. 2 may not know that accused no. 1 was carrying on deadly weapon with him. It is also in evidence that the police constables who had followed the two accused from inside the house had not seen any weapon in the hands of accused no. 1 while he was running away. When accused no. 2 raised a shout seeking help of accused no. 1 saying that mane Pakadyo Chhe, Gala Mar, he may have thought that accused no. 1 may use only some physical force, which may make police Constable Rameshbhai to release him and allow him to go. He may hardly have any idea that accused no. 1 would upon his request, use deadly weapon and inflict such injury which may result into the death of the person who had caught hold of him. It is very difficult to say that accused no. 1 had abetted accused no. 2 with the precise intention of committing murder of deceased Police Constable Rameshbhai. We, therefore, see no reason to hold the accused no. 2 guilty of committing an offence u/s. 302 read with section 109 of the IPC or section 34 of the IPC. Even the provisions of section 111 of the IPC will not alter the situation in as much as they operate totally in different circumstances which are not existing in this case. We, therefore, see no reason to interfere with the findings recorded by the trial Court in respect of accused no. 2. Therefore, States appeal also deserves to be dismissed. ( 14 ) IN the result, both the Criminal Appeals being Criminal Appeal No. 1200 of 1992 and Criminal Appeal No. 123 of 1993 are hereby dismissed. We are thankful to Mr. Shah for acceding to our request and rendering assistance by pleading case of accused no. 2. Muddamal articles to be disposed of in terms of the direction given by the Ld. trial Judge in the impugned judgment. .