JUDGMENT - PATEL J.N., J.:-In Sessions Case No. 733 of 1996, the Additional Sessions Judge, Greater Bombay, by his judgment and order dated 27th March, 2000 convicted the appellants-accused Nos. 1 2 for having committed murder of one Paramshivam Subrayan Harijan on 13th March, 1996 in front of one Tadi Shop No. 3 at Sambhaji Nagar Zobadpatti, Vile Parle (E), Mumbai by inflicting injuries on the person of said Paramshivam Harijan with knife (sura) article No. 1 and convicted them for having committed an offence under section 302 read with section 34 of I.P.C. and each of them was sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000/- in default to suffer R.I. for a period of six months. It is this judgment and order of conviction and sentence which is a matter of challenge in this appeal. 2. In nutshell, it is the case of the prosecution that on 13th March, 1996 at about 15.45 hours, the appellant-accused No. 1 Kuttan Veermuttu Harijan and appellant-accused No. 2 Komoranad Papyya Harijan in furtherance of their common intention committed murder of the Paramshivam Harijan. On 13th March, 1996 the victim i.e. Paramshivam Harijan and the witnesses who were the resident of Santosh Nagar Hutment area, had gone to the temple of Goddess "Mariamma" at Hanuman Road, Vile Parle, Mumbai as there was a special Pooja of goddess "Mariamma", The deceased Paramshivam Harijan was accompanied by P.W. 3 Mr. Nalatambi Tuleswami Harijan and P.W. 4 Mr. Kumar Arumugam Arjun. According to the prosecution, the appellant-accused Nos. 1 and 2 and others also had come for the Pooja. It so happened at about 2.00 p.m. when the complainant alongwith deceased Paramshivam and P.W. 3 Mr. Nalatambi and P.W. 4 Mr. Kumar went to Tadi shop as the deceased Paramshivam Harijan had suggested that they will have one battle each of Tadi instead of tea. At that very time, two other accused persons viz. Pattapujari and Balmurugan had also come to the shop and they were having Tadi. A quarrel took place between the deceased Paramshivam and appellant-accused No. 1 Kuttan in which the appellant-accused No. 1 Kuttan had caught hold of the collar of the shirt of the deceased and pulled him out of the Tadi shop and appellant-accused No. 2 and complainant followed them. A quarrel took place between the deceased Paramshivam and appellant-accused No. 1 Kuttan in which the appellant-accused No. 1 Kuttan had caught hold of the collar of the shirt of the deceased and pulled him out of the Tadi shop and appellant-accused No. 2 and complainant followed them. On coming out of the Tadi shop, the appellant-accused No. 1 is alleged to have caught hold of the neck of the deceased Paramshivam from backside and the appellant-accused No. 2 Komaranand and took out a knife from his waist and gave blow on the left thigh of the deceased Paramshivam and another blow on the left side of his chest and thereafter, they ran away towards highway. The victim Paramshivam on being inflicted with the injuries, pressed his chest would by his hands and ran towards highway and fell on the ground near the temple and the highway. The witnesses P.W. 3 Mr. Nalatambi Harijan. P.W. 4 Mr. Kumar Arjun and P.W. 5 Mr. Murugesh Harijan followed them. P.W. 2 Survanand Harijan tried to intervene in the quarrel. But by that time, the appellant-accused had already fled away from the scene of offence after inflicting knife blows. Therefore, P.W. 2 Survanand Harijan, P.W. 3 Nalatambi Harijan, and P.W. 4 Mr. Kumar Arjun lifted injured Paramshivam Harijan and took him to Cooper Hospital in a Taxi. On reaching Cooper Hospital, Medical Officer Dr. Sangle, who examined the injured, declared that the injured was dead. 3. It appears that the police got the information of the incident and they reached on the spot. On the spot, they made enquiries and found that injured person has been removed to Cooper Hospital. So the police visited Cooper Hospital and made enquiries from the persons accompanying victim. They prepared the inquest panchnama (Exhibit 12-A) and scene of offence panchnama (Exhibit 12-C) and recorded statements of witnesses. The police was able to arrest the appellant-accused No. 1 Kuttan on 13th March, 1996 itself in the night. The dead body of deceased Paramshivam was dispatched for post-mortem examination. On the next day i.e. on 14th March, 1996, the appellant-accused No. 2 Komaranand surrendered at Police Station. During the course of investigation, the police recovered clothes of the deceased Paramshivam. After the arrest of the appellant-accused No. 2 Komaranad, they were able to recover the knife article No. 1 (sura) at his instance and so also his clothes. On the next day i.e. on 14th March, 1996, the appellant-accused No. 2 Komaranand surrendered at Police Station. During the course of investigation, the police recovered clothes of the deceased Paramshivam. After the arrest of the appellant-accused No. 2 Komaranad, they were able to recover the knife article No. 1 (sura) at his instance and so also his clothes. Thereafter, the police sent articles seized to the forensic Laboratory during the investigation. After completing the investigation, police filed charge-sheet in the Court Metropolitan Magistrate who committed the case for trial before the Court of Sessions at Greater Bombay. 4. The trial of the appellants was taken up by the learned Additional Sessions Judge and the charge was framed vide Exhibit 1 on 4th May, 1999. The appellant-accused did not plead guilty and claimed to be tried. It was their case that they have been falsely implicated by the witnesses who are relatives of the deceased Paramshivam, due to previous enmity and they are innocent. 5. On the conclusion of the trial, the learned Additional Sessions Judge, found that the prosecution has proved that on 13th March, 1995 near Tadi shop No. 3 Vile Parle (E) Mumbai, the appellant-accused Nos. 1 and 2 had committed murder of Paramshivam Harijan by causing multiple injuries on his person with the help of knife in furtherance of their common intention and thereby committed an offence under section 302 read with section 34 of I.P.C. and each of them came to be convicted and sentenced for the said offence. 6. Mr. Mooman, the learned Counsel appearing for the appellant-accused Nos. 1 and 2 submitted that prosecution case is based on the evidence of three eye-witnesses which is in the nature of direct evidence and other corroborative evidence like spot panchanama, inquest panchanama, recovery at the instance of the appellant-accused No. 2 Komarnand, Forensic and Medical evidence. 7. According to Mr. Mooman, the learned Counsel appearing for the appellant-accused, in so far as the eye-witnesses are concerned, they are related to the deceased Paramshivam and therefore, they are interested witnesses, therefore, this Court would have to appreciate their evidence with the required caution. 7. According to Mr. Mooman, the learned Counsel appearing for the appellant-accused, in so far as the eye-witnesses are concerned, they are related to the deceased Paramshivam and therefore, they are interested witnesses, therefore, this Court would have to appreciate their evidence with the required caution. It is submitted that this Court may also take note of the fact that according to the prosecution, the incident had taken place in "Tadi" shop or at least infront of the same, where independent witnesses were available and though the police has recorded the statements of independent witnesses, none of them have been examined by the prosecution and this strengthens his submission that the appellant-accused Nos. 1 and 2 have been falsely implicated in the case with the help of relatives of the deceased Paramshivam out of previous enmity between them. 8. Mr. Mooman submitted that the eye-witnesses were not present at the scene of offence, can be gathered from the very fact that their evidence is parrot like and they do not establish the prosecution case as manner in which the incident is alleged to have occurred. 9. Mr. Mooman has also drawn our attention to the fact that prosecution has failed to produce the material evidence in this case i.e. Emergency Police Register (E.P.R.) kept in Cooper Hospital and the Constable on duty at the police post and incharge of E.P.R. and by examining the Medical Officer who attended the victim when he was taken to the Hospital. It is submitted that this evidence has been kept from the Court so as to suppress the truth as it would reveal that who were the real assailants and if it is to be believed that these three eye-witnesses P.W. 2 Survanand Harijan, P.W. 3 Nalatambi Harijan and P.W. 4 Mr. Kumar Arjun had accompanied the injured to the Hospital, then there was no reason why they would not have disclosed the names of assailants to the Police Constable on duty the Medical Officer. It is further submitted that even when the Police Officers from Vile Parle Police Station visited Cooper Hospital, none of the so called eye-witnesses has disclosed the names of the eye assailants. It is submitted that in all probabilities these relatives might have reached the Hospital after coming to know that the victim has died. 10. Mr. It is further submitted that even when the Police Officers from Vile Parle Police Station visited Cooper Hospital, none of the so called eye-witnesses has disclosed the names of the eye assailants. It is submitted that in all probabilities these relatives might have reached the Hospital after coming to know that the victim has died. 10. Mr. Mooman has also assailed the prosecution case on the point of delay in recording the F.I.R. (Exhibit 9) by the police. It is specifically pointed out to this Court that the police have made false statement in the F.I.R. (Exh. 9) that the copy of the F.I.R. was forwarded to the concerned Magistrate on the very same day i.e. on 13th March, 1996 whereas the Investigating Officer Mr. Suryavanshi has in his cross-examination, admitted that it is not correct that the copy of the F.I.R. was forwarded to the Magistrate on 14th March, 1996 but not on 13th March, 1996. This gave sufficient time to the police to manipulate the first information. 11. Mr. Mooman has also assailed the recovery of knife (Article No. 1) by drawing our attention to the evidence of the panch i.e. Dinesh Salvi (P.W. 8) and the evidence of P.W. 4 Mr. Kumar Arjun. It is submitted that if the date and time of Memorandum (Exhibit 12-C) and discovery panchnama (Exhibit 12-C-1) is seen, it would clearly show that the recovery was made after 4.00 p.m. i.e. after 16.30 hours to 16.50 hours when the Memorandum came to be recorded and the seizure was made between 16.50 and 17.45 hours whereas P.W. 4 Mr. Kumar Arjun has admitted in his cross-examination that the knife (article No. 1) was shown to him at the Police Station at 16.00 hours. It is also pointed out that as the knife (article No. 1) was not packed and sealed and it was dispatched to the Chemical Analyser (C.A) after a delay of about one month, there is all probability of planting of this knife and raising a doubt of its recovery at the instance of appellant-accused No. 2 Komaranand. It is also pointed out that as the knife (article No. 1) was not packed and sealed and it was dispatched to the Chemical Analyser (C.A) after a delay of about one month, there is all probability of planting of this knife and raising a doubt of its recovery at the instance of appellant-accused No. 2 Komaranand. It is further submitted that though panchas of recovery including recovery panchnama, witnesses and the Investigating Officer do not speak of the blood stains on the knife, surprisingly, the C.A. report (Exhibit 40) shows that the knife was stained with blood of group 'B' which is alleged to be the blood group of victim Paramshivam. This itself falsifies the prosecution case on the point of recovery of weapon. It is submitted that if the recovery was actually made at the instance of appellant-accused No. 2 Komaranand, then there was no reason why the police should not have sent it to the Medical Officer for sending his opinion and Dr. Sangle (P.W. 9) has stated that for the first time, the weapon of assault i.e. knife (article No. 1) was shown to Dr. Sangle in Court and therefore, this also strengthens his contention that the knife was planted by the police so as to implicate the appellant-accused No. 2 Komaranand. 12. Mr. Mooman has also drawn our attention to the fact that on arrest of the appellant-accused Nos. 1 and 2, no blood stains were found on their clothes as it is not mentioned in the panchnama regarding recovery of clothes i.e. Exhibit 21 relating to accused No. 1 Kuttan and Exhibit-22 which is in the nature of discovery made at the behest of appellant-accused No. 2 Komaranand and the panchas to these two recoveries also do not mention of having seen blood on the clothes of the accused, but surprisingly the same finds place in the C.A. Report and which is attributed by the learned Counsel for the appellant-accused Nos. 1 and 2 to the police who have delayed the sending of Muddemal to the C.A. in order to tamper with the material collected during the course of investigation. 13. Mr. Mooman further submitted that in so far as the defence taken by the appellant-accused Nos. 1 and 2 to the police who have delayed the sending of Muddemal to the C.A. in order to tamper with the material collected during the course of investigation. 13. Mr. Mooman further submitted that in so far as the defence taken by the appellant-accused Nos. 1 and 2 is concerned that they have been falsely implicated in the case, is evident from the fact that no independent witnesses had been examined by the prosecution and even if it is accepted for the sake of arguments that the appellant-accused Nos. 1 and 2 are concerned with the offence, at the most, their case would fall under Exception Nos. 1 and 4 of section 300 of I.P.C. and the offence if any, committed by them, would fall under section 304 Part II of I.P.C. 14. Mr. Mooman submitted that in so far as the appellant-accused No. 1 Kuttan is concerned, it cannot be said that he shared the common intention with the appellant-accused No. 2 Komaranand as the role attributed to him is that the appellant-accused No. 1 Kuttan had altercations with the deceased Paramashivam and what he has done is only he caught collar of the shirt and dragged him out of the "Tadi" shop, it cannot be said that he had any knowledge that the appellant-accused No. 2 Komaranand was armed with any weapon or would assault the victim and therefore, for the act if any, committed by appellant-accused No. 2 Komaranand, the appellant-accused No. 1 Kuttan cannot be held responsible by taking recourse to section 34 of I.P.C. as the prosecution failed to prove that they shared the common intention. 15. Mr. Mooman submitted that if the genesis of the offence placed before the Court by the prosecution is appreciated, well it shows that incident occurred out of an altercation between the deceased Paramshivam and appellant-accused Nos. 1 and 2 and it is out of this quarrel, it is alleged that appellant-accused No. 2 Komaranand is said to have assaulted the victim with knife. Mr. Mooman submits that if the evidence of Dr. Sangle (P.W. 9) is seen, it would show that the injury on the thigh which was the first blow alleged to have been given by the appellant-accused No. 2 Komaranand to the victim, was only 2 cms. Mr. Mooman submits that if the evidence of Dr. Sangle (P.W. 9) is seen, it would show that the injury on the thigh which was the first blow alleged to have been given by the appellant-accused No. 2 Komaranand to the victim, was only 2 cms. deep which could never be said to have caused death of the victim and therefore, it was very clear that appellant-accused No. 2 Komaranand had no intention to kill the victim. Further the second blow which is given on his chest is also not a direct blow which could have been said to have disclosed the intention of the accused No. 2 Komarnand to strike him on a vital part of the body but it is given from the side below the armpit, and at the most, indicates that the appellant-accused No. 2 Komaranand had knowledge that such blow may cause death but intention on the part of appellant-accused No. 2 Komarnand is totally ruled out. In support of his contention, Mr. Mooman has placed reliance on the decision of the Supreme Court in the case of (Kulwant Rai v. State of Punjab)1, A.I.R. 1982 S.C. 126, in which it was held that "Part 3 of section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under section 304 Part II of I.P.C. Mr. Mooman has further placed reliance on the decision in the case of (Shanmugam @ Kulandaivelu v. State of Tamil Nadu)2, 2003 All.M.R.(Cri.) 1765(S.C.) wherein it was held that "it was doubtful whether he intended to kill deceased and whether injuries caused were sufficient in the ordinary course to cause death". Mr. Mooman has further placed reliance on the decision in the case of (Shanmugam @ Kulandaivelu v. State of Tamil Nadu)2, 2003 All.M.R.(Cri.) 1765(S.C.) wherein it was held that "it was doubtful whether he intended to kill deceased and whether injuries caused were sufficient in the ordinary course to cause death". Mr. Mooman, the learned Counsel appearing for the appellant-accused, has submitted that to invoke Exception 4 to section 300, four requirements must be satisfied and in support of his contention, has placed reliance on the decision in the case of (Surinder Kumar v. Union Territory, Chandigarh)3, 1989 Cri.L.J. 883, wherein it was held that to invoke Exception 4 to section 300 four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel Manner". Mr. Mooman has further submitted that the accused No. 2 Komaranand had no knowledge that the said injury which he had caused was sufficient in the ordinary course of nature to cause death. In support of his submission, he has placed reliance on the decision in the case of (Ishwar alias Toni s/o Damduji Kamde v. State of Maharashtra)4, 2003 Bom.C.R.(Cri.) (N.B.)82 wherein it was held that "However, from the evidence brought on record by the prosecution, it does not appear to be a case where the accused had knowledge that the injury which he is causing is sufficient in the ordinary course of nature to cause the death, firstly because the said injury was inflicted not directly on the chest but on the left side of the chest. Secondly, the said stab wound appears to have been given in a scuffle and thirdly, on account of the absence of evidence regarding the genesis of the entire incident, it cannot be said that the accused had such a knowledge". Mr. Mooman, the learned Counsel appearing for the appellant-accused has further submitted that conviction of the appellant-accused under section 302 of I.P.C. is not sustainable and at the most, the conviction of the appellant-accused can be under section 304 Part II of the I.P.C. Mr. Mr. Mooman, the learned Counsel appearing for the appellant-accused has further submitted that conviction of the appellant-accused under section 302 of I.P.C. is not sustainable and at the most, the conviction of the appellant-accused can be under section 304 Part II of the I.P.C. Mr. Mooman further submitted that the injury which is caused to the victim is not sufficient to cause death and therefore, the sentence under section 302 of I.P.C. is not sustainable and if the Court comes to the conclusion that the appellant-accused have committed offence, then in that case, conviction under section 302 of I.P.C. be converted into 304 Part II of I.P.C. In support of his contention, he has placed reliance on the decision in the case of (Vishnu Govarya Jadhav v. State of Maharashtra)5, 1998(5) Bom.C.R. 49 wherein the Court has observed that "it cannot be said that he intended to inflict the injury which was sufficient in the ordinary course of nature to cause death. Hence, clause third of section 300 of I.P.C. would not be attracted". 16. Mr. Mooman, the learned Counsel appearing for the appellant-accused has further submitted that the incident has taken place out of sudden quarrel without premeditation, and the case in covered by Exception No. 4 of section 300 as held in (Ghapoo Yadav others v. State of Madhya Pradesh)6, 2003 All.M.R.(Cri.) 995(S.C.), wherein it was held that "in the heat of passion upon a sudden quarrel followed by a fight, the accused persons had caused injuries on the deceased but had not acted in cruel or unusual manner and that being so, Exception 4 to section 300 I.P.C. is clearly applicable and appellants-accused are to be convicted under section 304 Part I I.P.C. and custodial sentence of ten years and fine as was imposed by the trial Court would meet the ends of justice". 17. In respect of recovery, Mr. 17. In respect of recovery, Mr. Mooman has submitted that there is no evidence led by the prosecution to show that the knife was blood stained and it was packed and sealed under panchnama and thereafter, it was sent to C.A. In support of his submission, he has placed reliance on a decision in the matter of (State of Maharashtra v. Prabhu Barku Gade)7, 1995(2) Bom.C.R. 188 ; wherein it was held that "So far as the evidence of recovery of tikav, blood stained clothes from the person of the appellant and blood-stained frock from Pramila are concerned, the aforesaid recoveries would not be of much avail to the prosecution for there is no evidence on record to show that from the time the aforesaid articles were recovered and till the time, they were sent to the Chemical Analyst, the gap being of more than eight days, they were kept throughout in a sealed condition. It was obligatory on the part of the prosecution to lead link evidence to show that effect. This was imperative because the possibility that the prosecution may have put human blood on the aforesaid articles during that interregnum, had to be eliminated before any reliance on the aforesaid recovery evidence could be placed. The question is not whether human blood was actually put on the recovered articles but as to whether it could have been put." The Court further held in the aforesaid decision that "the evidence of recoveries has to be excluded by us in determining whether the appellant is guilty. We propose placing no reliance upon it." On the point of recovery of knife, Mr. Mooman has also placed reliance on the decision in the case of (Tulshiram Bhanudas Kamble and others v. State of Maharashtra)8, 1999(5) Bom.C.R. 619 . Regarding the eye-witnesses, it is submitted by Mr. Mooman that the eye-witnesses are related to the victim and that their evidence is almost identical which itself goes to show that they are got up witnesses. He has also sought support of the ratio laid down in the decision of (Rambilas and others v. State of M.P.)9, 1997 S.C.C.(Cri.) 1222, on the point of the evidence of the prosecution witnesses and recovery. He has also sought support of the ratio laid down in the decision of (Rambilas and others v. State of M.P.)9, 1997 S.C.C.(Cri.) 1222, on the point of the evidence of the prosecution witnesses and recovery. It was held in the aforesaid decision i.e. Rambilas and others v. State of M.P. (supra) that "Mere recovery of certain incriminating articles at the instance of the accused cannot form the basis of conviction." Mr. Mooman, the learned Counsel appearing for the appellant-accused has further placed reliance in case of the (Sohan and another v. State of Haryana and another)10, 2001 Cri.L.J. 1707, on the point that non examination of another eye-witnesses whose names were mentioned in the F.I.R. who had witnessed the occurrence, was fatal. 18. Mr. Mooman submitted that in the light of the above decisions, the evidence of the interested witnesses is required to be appreciated by the Court cautiously. 19. Therefore, in the facts and circumstances of the case, Mr. Mooman submits that the prosecution having failed to establish the case against the appellant-accused beyond reasonable doubt, they deserve to be acquitted being falsely implicated by the prosecution at the behest of the relatives who are the eye-witnesses in the case and in the alternative. It is submitted that the Court may consider the case of the appellants-accused Nos. 1 and 2 and alter their sentence from under section 302 read with section 34 of I.P.C. to under section 304 Part II of I.P.C. 20. Mrs. Bhosale, the learned A.P.P. submitted that it is the case which is proved by the prosecution by leading cogent, consistent and reliable evidence. It is submitted that three eye-witnesses who have see the incident are truthful witnesses though they may be related to the victim but manner in which the incident took place, the scene of offence, the presence and participation of the appellant-accused Nos. 1 and 2 and the fact that at the earliest opportunity, P.W. 2 Survanand has named the assailants in the F.I.R. itself goes to show that the incident as narrated by these three eye-witnesses, stands established and the role assigned to the appellant-accused Nos. 1 and 2 clearly show that they committed murder of Paramshivam Harijan in furtherance of their common intention. It is submitted by Mrs. 1 and 2 clearly show that they committed murder of Paramshivam Harijan in furtherance of their common intention. It is submitted by Mrs. Bhosale that the witnesses have clearly state that the appellant-accused No. 1 Kuttan dragged the victim out of Tadi shop-and held him by the neck in order to facilitate the appellant-accused No. 2 Komaranand to give stab blows on the vital part of the body i.e. chest, which clearly goes to show that not only he had knowledge but also the intention to commit his murder. 21. The learned A.P.P submitted that the Court should appreciate the evidence of these witnesses in backdrop that the assailants went together when they visited Tadi shop and it is brought on record that they were on inimical terms and therefore, there was sufficient motive on their part to commit the offence. It is submitted that if the medical evidence is examined, it clearly goes to show that the nature of injuries was such in the opinion of Medical Officer Dr. Sangle (P.W. 9) that the cause of death is due to shock due to penetrating injury to heart and therefore, it can be appreciated that with what force the appellant-accused No. 2 Komaranand must have given the blow on the lateral side of the left side chest of the victim Paramshivam and therefore, it cannot be said that the appellant-accused No. 2 Komaranand had no intention to commit murder. 22. The learned A.P.P. submitted that the learned Counsel for the appellants has tried to capitalise on certain lacunas made in the investigation of the case. According to the learned A.P.P., even if this is accepted that there are certain irregularities in the investigation but that does not make out a case for the defence to seek acquittal on the strength of certain deficiencies on the part of Investigating Officer such as delay in sending Muddemal Articles to the C.A. But the fact remains that the articles were sent to C.A. and the report of Forensic Laboratory was received which clearly shows that the knife (article No. 1) was stained with blood of Group 'B' which was the blood group of the deceased Paramshivam. 23. 23. The learned A.P.P. submitted that considering the eye-witnesses account and the weapon used, the medical evidence, and the opinion of Doctor, there could not be any doubt in one's mind that this was a case where both the accused in furtherance of their common intention have committed the murder of deceased Parmashivam. 24. In respect of delay in sending the Muddemal to C.A., the explanation tendered by the learned A.P.P. is that the police was making the investigation in the case and that in such cases, delay of about one month is not fatal unless it is established that the delay was caused with an object of tampering with the evidence collected during the course of investigation. 25. In respect of contention made by the learned Counsel for the appellant-accused Nos. 1 and 2 that the prosecution has failed to examine the independent witnesses, it is submitted by the learned A.P.P. that it is the sweet choice of the prosecution to examine the witnesses so as to prove their case and unless the accused persons are able to show that any prejudice is caused to them, it is not obligatory on the part of the prosecution to examine all the witnesses whose statements came to be recorded or who were interrogated during the investigation. It is submitted that the Court can take judicial notice of the fact that people normally avoid to participate in criminal proceedings and that is why it is not always possible to get totally independent witnesses. She further contended that this is not a case where only the prosecution witnesses were present on the scene of offence but the prosecution has placed before this Court the facts and circumstances of the case which show that all persons i.e. the victim, witnesses who accompanied him, the appellant-accused and the people of their society, had gathered at the temple at the auspicious occasion and therefore, their presence at the scene of offence, cannot be doubted. 26. The learned A.P.P. has concluded her submission by submitting that this not a case where the benefit can be given either of Exception 1 or Exception 4 of section 300 of I.P.C. as this is not a case wherein it can be said that the victim was done away out of grave and sudden provocation. On the other hand, the circumstances brought on record clearly show that the appellant-accused Nos. On the other hand, the circumstances brought on record clearly show that the appellant-accused Nos. 1 and 2 came prepared with a design in mind to commit the offence as the appellant-accused No. 2 Komaranand was armed with a knife article No. 1 (sura) with which he inflicted blows on the victim with the active assistance of the appellant-accused No. 1 Kuttan and therefore, the appeal deserves to be dismissed. 27. The points which arise for our determination are: 1. Whether the deceased Paramshivam Harijan died homicidal death? 2. Whether the death has been caused by the accused in furtherance of their common intention and that it was done with an intention of causing death? 28. The fact that deceased Paramshivam died homicidal death is not much disputed. Still, for the purpose of appreciating the overall case of the prosecution, we refer to the evidence of Dr. Sangle (P.W. 9). Dr. Sangle in his evidence before the Court has stated that on 14th March, 1996, he conducted the post-mortem on the dead body of one Paramshivam Harijan between 10.30 a.m. and 11.30 a.m. The injuries noted down on external examination in Column No. 17 of the post-mortem notes are as follows: "1. An obliquely placed elliptical shaped incised penetrating injury of 2 cm. x 1 cm. on lateral side of left chest in 6th intercostal space, 14 cms. lateral to midline (away from). On dissection of injury, penetrating incised injury in 6th intercostal muscles on left side and entering pleumal cavity then, penetrating pericardium and left vertical and right vertical. 2. An obliguely placed, elliptical shaped incised penetrating injury of 2 cms. x 1 cm. on lateral aspect of upper third of left thigh, 12 cms. below left anterior superioriliac spine. These injuries were ante-mortem." 29. On internal examination, the doctor found meninges were pale, brain matter was pale. All the viscera were pale. The left plueral cavity contained pint of blood. Pericardial cavity contained half point of blood. Both ventricles shown penetrating injury. The stomach was normal sized containing 250 grams semi digested food material, mucosa congested impartings sourish smell. In the opinion of Dr. Sangle, the final cause of death was due to shock due to penetrating injury to heart. According to Dr. Sangle he has preserved viscera for chemical analysis and blood for grouping and the C.A. report does not reveal any poison. In the opinion of Dr. Sangle, the final cause of death was due to shock due to penetrating injury to heart. According to Dr. Sangle he has preserved viscera for chemical analysis and blood for grouping and the C.A. report does not reveal any poison. He has proved the post-mortem notes which is admitted in his evidence as Exhibit-20. In this opinion, injuries are sufficient in the ordinary course of nature to cause death. Injury No. 1 is itself specifically sufficient to cause death. During his examination, doctor was shown knife (article No. 1) and on seeing the knife (article No. 1) he stated that the injury mentioned in Exhibit-20 can be caused by weapon like article No. 1. The Medical Officer has been cross-examined on behalf of the accused and it has been brought on record that knife (article No. 1) was not sent to him for his opinion. It was for the first time, the same was shown to him in the Court. Medical Officer has categorically denied that it is not true to say that injuries No. 1 and 2 mentioned in Column No. 17 of Exhibit-20 are not possible by article No. 1. It will be appropriate to refer to the inquest panchnama at this stage. Prosecution has examined the panch Narsinha Kundanna Urari (P.W. 6), in whose presence the inquest panchnama Exhibit 12-A was prepared. The accused persons have not disputed the genuineness of the inquest panchnama dated 13-3-1996 i.e. Exhibit 12-A. P.W. 6 Narsinha Urari has stated that on 13-3-1996, he was called by the Police at Cooper Hospital and in the presence of panchas, shirt, pant and underwear from the person of the deceased Paramshivam came to be seized. He noticed that the clothes were blood stained and the police had put a mark with the pencil and at torn and cut portion on the left side of the shirt and after panchnama was prepared, the signatures of the panchas were obtained on the labels and shirt, pant and underwear were separately wrapped in a piece of paper. Labels were pasted on the packet which were also sealed. Labels were pasted on the packet which were also sealed. The panch witness has identified the clothes i.e. the white shirt (article No. 2), full pant of blue colour (article No. 3) and underwear of brown colour (article No. 4) which were taken in charge by the police and which came to be seized in his presence. Though, in his evidence before the Court, the panch has not stated anything about the injuries probably because, the genuineness of the panchnama is not disputed by the accused. In the inquest panchnama dated 13-3-1996 Exhibit 12-A, there is a mention of the injuries which were noticed by the panchas as spoken of by the Medical Officer Dr. Sangle (P.W. 9) in his evidence. 30. We have referred to the inquest panchnama for two reasons. Firstly that the blood stained clothes of the deceased were seized in presence of the panchas and the injuries were noted by them as observed by the Medical Officer while conducting the post-mortem examination. In view of the medical evidence on record, it can safely be concluded that the deceased died homicidal death. 31. Secondly, now let us examine whether the prosecution has proved that the appellant-accused are responsible for committing murder of the deceased Paramshivam. There are three eye-witnesses examined by the prosecution to prove this fact. They are Mr. Sarvanand Harijan (P.W. 2) who is also the person who has lodged the F.I.R., Mr. Nalatambi Harijan (P.W. 3) and Mr. Kumar Arjun (P.W. 4). All these witnesses gave evidence before the Court that they hail from Selam, Tamil Nadu and that the deceased Paramshivam was also from their place. They know the appellant-accused No. 1 Kuttan and appellant-accused No. 2 Mr. Komaranand as they also hail from the same place and that they were at the relevant time, residents of Santosh Nagar where they also reside. On the point of incident, they have stated that on 13-3-1996, there was festival and Pooja of Goddess Mariamma in the temple in Vile Parle, Mumbai, and therefore, all the residents of Santosh Nagar, attended the said Pooja i.e. including these three witnesses as well as the deceased and the appellant-accused Nos. 1 and 2 and other residents of the locality also participated in the Pooja. After the participation in the said Pooja the witnesses alongwith deceased went to Tadi shop in Ambawadi, Vile Parle, Mumbai. 1 and 2 and other residents of the locality also participated in the Pooja. After the participation in the said Pooja the witnesses alongwith deceased went to Tadi shop in Ambawadi, Vile Parle, Mumbai. This was about 2.00 p.m. to 2.45 p.m. On entering the Tadi shop, they noticed that Kuttan (accused No. 1) alongwith Komaranand (accused No. 2). Mr. Pattanpujari and Mr. Balmurugan sitting on the left side of the Tadi shop, whereas, P.W. 2 Survanand and deceased Paramshivam were sitting on the right side i.e. infront of the door of the Tadi shop. They ordered for Tadi bottle which was distributed to them and they started enjoying it. At this juncture, Kuttan (accused No. 1) abused the deceased Paramshivam. In response, the deceased Paramshivam also abused accused No. 1 Kuttan. On which, Kuttan (accused No. 1) stood up and went towards the deceased Paramshivam and caught hold the collar of his shirt and pulled him towards the door of the Tadi shop followed by Komaranand (accused No. 2). They were followed by these three eye-witnesses. They came out of the Tadi shop. Kuttan (accused No. 1) caught neck and head of the deceased Paramshivam from backside and Komaranand (accused No. 2) took out knife and gave knife blow on the left thigh of deceased Paramshivam and another blow of knife on the left side of chest of deceased Paramshivam. All these witnesses and other persons rushed towards them to separate them but by this time, the victim Paramshivam was already assaulted and the appellant-accused Nos. 1 and 2 fled away towards the air-port (direction). The victim Paramshivam pressed his wound by hands and went towards highway but collapsed near the temple at a distance of 100 feet from Tadi shop. Therefore, P.W. 3 Nalatambi alongwith other persons followed them, reached the place and they noticed that blood was oozing out from the wounds of Paramshivam. Mr. Paramshivam wanted water and they gave water from the adjoining room and thereafter P.W. 4 Kumar Arjun lifted victim Paramshivam on his shoulder and took him towards highway and they hired taxi and took the victim Paramshivam to Cooper Hospital in the said taxi. At the Hospital, the Doctor examined him and declared him dead. 32. Mr. Paramshivam wanted water and they gave water from the adjoining room and thereafter P.W. 4 Kumar Arjun lifted victim Paramshivam on his shoulder and took him towards highway and they hired taxi and took the victim Paramshivam to Cooper Hospital in the said taxi. At the Hospital, the Doctor examined him and declared him dead. 32. It appears that the police on getting information, reached on the scene of offence and thereafter proceeded towards Cooper Hospital were they conducted inquest panchnama in which the clothes worn by the deceased Paramshivam, were seized and the dead body was sent for post-mortem examination. Thereafter, the spot panchnama also came to be prepared by the police. After recording statement of P.W. 2 Survanand, it was treated as an F.I.R. and the offence under section 302 read with section 34 of I.P.C. came to be registered against the appellant-accused vide C.R. No. 151 of 1996. 33. The next question which comes up for our consideration is whether these three witnesses have falsely implicated the appellants-accused Nos. 1 and 2 or are the truthful witnesses on whom reliance can be placed. Mr. Mooman, the learned Counsel appearing for the appellant-accused Nos. 1 and 2 has branded them as partisan witnesses being related to the deceased Paramshivam. It is settled law that this by itself would not mean that the evidence of these witnesses should be discarded as rightly submitted by the learned A.P.P. Let us see whether these witnesses are speaking truth or not. We find that in this matter, the F.I.R. came to be registered on 13-3-1996 at 17.05 hours at Vile Parle Police Station vide C.R. No. 151 of 1996, whereas the incident is reported to have occurred on the same day at 15.00 hours. One can understand from the sequence of events which occurred after the incident took place i.e. the police reaching the scene of offence on getting a telephonic call which led them to the Cooper Hospital. After carrying out the formalities, they recorded the statements of Sarvanand Harijan (P.W. 2) who was present in the Hospital alongwith other witnesses. The F.I.R. Exhibit 9 sufficiently corroborates the evidence given by these three witnesses as to what circumstances led to the occurrence of incident in which the appellant-accused Nos. 1 and 2 committed murder of victim Paramshivam. After carrying out the formalities, they recorded the statements of Sarvanand Harijan (P.W. 2) who was present in the Hospital alongwith other witnesses. The F.I.R. Exhibit 9 sufficiently corroborates the evidence given by these three witnesses as to what circumstances led to the occurrence of incident in which the appellant-accused Nos. 1 and 2 committed murder of victim Paramshivam. The evidence of these witnesses also stand corroborated by the scene of offence panchnama (Exhibit 12-B) as regards the place where the victim Paramshivam fell down near the Tadi shop. The F.I.R. Exhibit 9 mentions the names of the appellant-accused Nos. 1 and 2 as assailants. The reason for the incident is the quarrel which the appellant-accused No. 1 picked up with the deceased Paramshivam and therefore, it cannot be said that the investigating agency have falsely implicated the appellants-accused Nos. 1 and 2 within such a short span. As regards the contention of the learned Counsel appearing for the appellant-accused Nos. 1 and 2 in respect of endorsement on F.I.R. that copy of F.I.R. Exhibit 9 was forwarded to the Magistrate on 13-3-1996, he submits that one can very well appreciate that after the F.I.R. was registered immediately the endorsement came to be made of forwarding the copy to the concerned Magistrate. But one can take cognizance of the fact that if the offence is registered at 17.05 hours, the Court of the Magistrate would have been closed by end of the day and immediately below that endorsement, there is an endorsement of Senior Police Officer that as "on 14-3-1996." In all probabilities, the copy of the F.I.R. was forwarded to the Magistrate promptly. There is nothing on record to show that copy was not forwarded to the Magistrate at all. So, this would not in any manner, show that there was an attempt on the part of the police to deliberate with the relatives of the victim so as to falsely implicate the appellant-accused Nos. 1 and 2. In the course of arguments, Mr. Mooman, the learned Counsel appearing for the appellant-accused Nos. 1 and 2 submitted that it is surprising that if the three witnesses were responsible for picking up the victim Paramshivam from the scene of offence to carry him to the Cooper Hospital in a Taxi, there was no contact with the blood of the deceased Paramshivam. Mooman, the learned Counsel appearing for the appellant-accused Nos. 1 and 2 submitted that it is surprising that if the three witnesses were responsible for picking up the victim Paramshivam from the scene of offence to carry him to the Cooper Hospital in a Taxi, there was no contact with the blood of the deceased Paramshivam. The learned Counsel for the defence has missed the fact that as stated by the witnesses, it was P.W. 4 Mr. Kumar Arjun who lifted the victim Paramshivam on his shoulder and took him towards the road from where they got taxi and the police has seized the clothes worn by P.W. 4 Kumar Arjun vide panchanama Exhibit 31 on 13-3-1996 itself. The police has seized his clothes of which the description is given in the panchnama which clearly shows that his shirt was stained with blood right from shoulder to his chest which sufficiently corroborates the fact that these three witnesses were present at the scene of offence and were also instrumental in removing the victim Paramshivam to Cooper Hospital after the victim was assaulted by the appellants-accused Nos. 1 and 2 and fell down on the spot. 34. The spot panchnama Exhibit 12-C also shows that the blood was found which was collected by the police from the spot and sent to the C.A. which fortifies the prosecution case of the fact that victim fell down due to the injuries caused to him on the spot from where, he was lifted and taken to the Hospital for treatment. As the Court time is over, dictation of the judgment is deferred till tomorrow i.e. 5th November, 2003. 35. The other important corroborative piece of evidence which supports the eye-witnesses account and the complicity of the appellant-accused Nos. 1 and 2 is the discovery of knife (article No. 1) which according to the prosecution is the weapon by which the appellant-accused No. 2 Komaranand Pappaya Harijan assaulted deceased Paramshivam Harijan. The description of the weapon i.e. knife (article No. 1) is mentioned in F.I.R. Exhibit 9 which was lodged by P.W. 2 Mr. Sarvanand Tundi Harijan. All the prosecution eye-witnesses i.e. P.W. 2 Mr. Sarvanand Tundi Harijan, P.W. 3 Mr. Nalatambi Tuleshrami Harijan and P.W. 4 Mr. Kumar Arumugam Arjun confirmed to the fact that victim Paramshivam was assaulted with the knife (article No. 1) (sura), P.W. 11 Police Inspector Mr. Sarvanand Tundi Harijan. All the prosecution eye-witnesses i.e. P.W. 2 Mr. Sarvanand Tundi Harijan, P.W. 3 Mr. Nalatambi Tuleshrami Harijan and P.W. 4 Mr. Kumar Arumugam Arjun confirmed to the fact that victim Paramshivam was assaulted with the knife (article No. 1) (sura), P.W. 11 Police Inspector Mr. Pralhad Rajaram Suryavanshi in the course of investigation, was in a position to discover the knife (article No. 1) at the instance of the appellant-accused No. 2 Komaranand Pappaya Harijan. The genuineness of the Memorandum and seizure panchnama which led to the recovery of the knife (article No. 1) has not been disputed by the appellant-accused Nos. 1 and 2. 36. It was contended by Mr. Mooman, the learned Counsel appearing for the appellant-accused Nos. 1 and 2 that there is no mention that the knife (article No. 1) was having blood stains in the seizure panchnama Exhibit 12-C, but surprisingly, in the C.A. Report Exhibit 40 the knife which is shown in Exhibit 12-C, was found stained with blood group 'B'. This, according to Mr. Mooman, itself shows that the investigating agency has tampered with the discovery. Further, according to Mr. Mooman, P.W. 4 Mr. Kumar Arumugam Arjun, in his cross-examination, has given an admission that he has seen the knife at the Police Station between 4.00 p.m. to 5.00 p.m. If this evidence is read in context with the Memorandum panchnama and seizure panchnama Exhibit 12-B and C, it could show that the knife is seized by the Police between 16.50 hours and 17.00 hours on 18-3-1996 and therefore, though the appellant-accused Nos. 1 and 2 have not disputed the genuineness of the panchnamas, this itself makes the memorandum and seizure panchnama suspect and it goes to show that police planted the knife by preparing the panchnamas in the Police Station and stained with blood while sending it to the C.A. well. Mr. Mooman has tried his best to dislodge the prosecution case on this aspect by trying to demonstrate that the knife is planted and foisted on the appellant-accused No. 2 but that does not appear to be so. Police Sub-Inspector Mr. Mr. Mooman has tried his best to dislodge the prosecution case on this aspect by trying to demonstrate that the knife is planted and foisted on the appellant-accused No. 2 but that does not appear to be so. Police Sub-Inspector Mr. Suryavanshi in his evidence has categorically stated in what manner, pursuant to the information given by the appellant-accused No. 2 Komaranand Harijan, the knife was found concealed beneath the gunny bag behind one hut which was pointed out by the appellant-accused No. 2, which is the article No. 1 and detail panchnama was drawn on the spot. As the genuineness of the panchnama is not disputed, seizure panchnama Exhibit 12-C-1 clearly goes to show that at the very time, it was discovered and seized. It was wrapped in a paper and it was labelled and sealed before which it was shown to the complainant P.W. 2 Mr. Sarvanand Harijan who has identified the same. It is true that the prosecution did not bring it to the attention of the eye-witness P.W. 2 Sarvanand Harijan who is the complainant, the knife (article No. 1) though he has in clear terms stated that he has been able to identify the knife but the knife has been identified by P.W. 4 Mr. Kumar Arjun who is also an eye-witness to the incident. The knife (article No. 1) is before us and we have examined it and found that it tallies with the description given in F.I.R. (Exhibit 9) so also with the seizure panchnama. Further we find from the C.A. Report (Exhibit 40) that the office of the C.A. has received the Muddemal in sealed and intact condition and therefore, in the facts and circumstances, it cannot be said that mainly because there was delay of about a month in sending the Muddemal to the C.A. that by itself would show that the police has tampered with the articles seized including the knife (article No. 1) at the time of sending it to the C.A. There is no reason to disbelieve the C.A. Report in the matter that the knife was having blood stains of Group B which was also the blood group of the deceased Paramashivam Harijan. Mr. Mr. Mooman has also tried to impress upon us that the knife is blunt from one side and the nature of injuries found by the Medical Officer, cannot be caused by such knife (article No. 1). In order to appreciate this contention, with the able assistance of the learned Counsel and the learned A.P.P. we have examined knife (article No. 1) before us. It is true that it is blunt and it has a blunt edge from one side but its point is sharp and to the extent of one inch, it has a sharp edge on both the sides. The knife is something unusual and can be rightly described as 'sura' i.e. Dagger and even Dr. Sangle (P.W. 9) has categorically stated that such a weapon can cause injuries found on the victim. Therefore, in all probabilities, the victim was assaulted by a sharp edged weapons like knife (article No. 1). It was put to the eye-witnesses in cross-examination that the victim was actually assaulted by broken glass bottle. However, this suggestion has been denied by the witnesses. It was not put to the doctor who was an expert examined by the prosecution that the injuries caused on the body of the victim, could have been caused by broken glass bottle. So this theory that the injuries were caused by a broken glass bottle, stands ruled out. 37. Normally, in a case where there is direct evidence i.e. eye-witnesses to establish the prosecution case, motive is not of much importance. But in this case, the prosecution has brought on record the motive part by examining the brother of the deceased i.e. P.W. 5 Mr. Murgest Harijan. In his evidence before the Court, he has stated that Mrs. Kala is their sister who is residing at Kandivali alongwith her husband. She used to visit his residence. Mr. Kuttan i.e. accused No. 1 used to tease their sister and it had led to exchange of hot words and abuses between Mrs. Kala and Mr. Kuttan i.e. accused No. 1. On one occasion, scuffle also took place and the appellant-accused No. 1 Kuttan had assaulted their sister Mrs. Kala on her head which resulted in blood injury of which, even a complaint was lodged with Dindoshi Police Station and this incident had occurred one and half years back from the time his brother deceased Paramshivam Harijan was murdered. On one occasion, scuffle also took place and the appellant-accused No. 1 Kuttan had assaulted their sister Mrs. Kala on her head which resulted in blood injury of which, even a complaint was lodged with Dindoshi Police Station and this incident had occurred one and half years back from the time his brother deceased Paramshivam Harijan was murdered. He has further stated that a week back from 13-3-1996, there was quarrel between his deceased brother Paramshivam and Mr. Kuttan (accused No. 1). In cross-examination, defence could not do anything on record to show that this witness is not telling truth and it is for this reason that on that fateful day, deceased Paramshivam Harijan was murdered by appellant-accused Nos. 1 and 2 and probably for this reason. 38. Therefore, on the basis of the aforesaid evidence on record, we have no hesitation to hold that the trial Court did not commit any error in arriving at a finding that the appellant-accused Nos. 1 and 2 are guilty of committing murder of Paramshivam Harijan. 39. Mr. Mooman, submitted that in view of the fact that this Court is upholding the conviction then the case of the appellant-accused would fall within Exception Nos. 1 and 4 of section 300 of I.P.C. The learned A.P.P. has strongly resisted this contention and submitted that no such case was put up to the eye-witnesses, nor such plea was taken by the appellant-accused in defence. On the other hand, it is their case that they were not present at the scene of offence and that they were falsely implicated due to previous enmity and therefore, the Court in the face of substantial evidence, which goes to show that the appellant-accused Nos. 1 and 2 in furtherance of their common intention have committed murder of the Paramshivam Harijan, this Court need not extend the benefit of scaling down the offence of murder giving benefit of Exception 1 and 4 of section 300 by converting the conviction from under section 302 to section 304 Part II of I.P.C. We have given anxious considerations to the authorities cited by Mr. Mooman. We may place it on record that the decisions relied upon by Mr. Mooman. We may place it on record that the decisions relied upon by Mr. Mooman, were of cases in which the Court found that benefit of Exceptions 1 and 4 can be given to the convicts in the said case depending upon the peculiar facts and circumstances in which the offences were committed. Keeping in mind, the various principles enumerated in the said judgments, we propose to examine the case with a view to ascertain whether in the present case such benefit can be extended to the appellant-accused Nos. 1 and 2. 40. It is well settled principle that so far as the appreciation of evidence is concerned, the accused can raise contrary plea in their defence and for that purpose, they can point out from the evidence on record that such defence is available to them. Mr. Mooman submitted that all the eye-witnesses have stated that the assault preceded with a quarrel between Paramshivam Harijan and the accused persons and therefore, this was a case where the victim was assaulted by the appellant-accused No. 2 Komaranand due to grave and sudden provocation that the deceased Paramshivam Harijan had given the abuses to appellant-accused No. 1 Kuttan which provoked him and he is supposed to have dragged the victim out of the Tadi shop. Further it is submitted that the case would also fall in Exception 4 of section 300 as the offence was committed without premeditation in a sudden fight; without the offender's having taken undue advantage or acted in a cruel or unusual manner. In addition to this, Mr. Mooman has also tried to separate the case of the appellant-accused Nos. 1 and 2 to show that they did not share common intention to commit murder. It is submitted that at the most, the role attributed to the appellant-accused No. 1 Kuttan would show that due to quarrel and exchange of abuses, he only dragged out the victim and held him and had no knowledge of the fact that the appellant-accused No. 1 Komaranand was carrying any weapon and that he would assault the victim. Further it is stated that the appellant-accused No. 2 Komaranand also did not intend to cause death as the first blow was given on the thigh and the second blow was inflicted below the armpit. Further it is stated that the appellant-accused No. 2 Komaranand also did not intend to cause death as the first blow was given on the thigh and the second blow was inflicted below the armpit. If he had any intention to commit murder then the blow could have been given directly on the chest from the front side. So this would also weigh in the mind of the Court while considering whether the appellant-accused can be held guilty under section 302 read with section 34 of I.P.C. 41. We have already discussed the evidence of P.W. 5 Mr. Murgesh Harijan. The prosecution by examining him as witness, has brought on record the motive which the appellant/accused No. 1 Kuttan had in assaulting Paramshivam Harijan i.e. the appellant/accused No. 1 Kuttan having teased their sister in past and had a quarrel with the deceased Paramshivam Harijan only a week back prior to the incident. All the three eye-witnesses in their evidence have stated that when they entered Tadi shop, the appellant-accused were also sitting and that they picked up quarrel with the deceased Paramshivam Harijan and there was exchange of abuses and that is how the appellant/accused Kuttan caught the deceased Paramshivam Harijan and brought him out of the Tadi shop and held him by neck and appellant-accused No. 2-Komarnand gave him blows with the knife (article No. 1). P.W. 3 Mr. Nalatambi Harijan in his evidence before the Court, while describing the incident, has stated that after they had entered the Tadi shop, Tadi was distributed to them and they were about to start enjoying Tadi, appellant-accused No. 1-Kuttan abused deceased Paramshivam Harijan and it is in response that deceased Paramshivam Harijan also abused appellant-accused No. 1 Kuttan and thereafter, appellant-accused No. 1 Kuttan caught hold Paramshivam Harijan by his collar of shirt and pulled him out of the Tadi shop. This clearly indicates that the person responsible for initiating the quarrel was appellant/accused No. 1 Kuttan and this is to be appreciated in the background of the fact stated by P.W. 5. Mr. Murgesh Harijan. It was obvious that the appellant-accused were on the inimical terms with Paramshivam Harijan and that is also the case of the appellant-accused as they have stated that they have been falsely implicated because of previous enmity, in their statements recorded under section 313 of Code of Criminal Procedure. Mr. Murgesh Harijan. It was obvious that the appellant-accused were on the inimical terms with Paramshivam Harijan and that is also the case of the appellant-accused as they have stated that they have been falsely implicated because of previous enmity, in their statements recorded under section 313 of Code of Criminal Procedure. In order to show that the offence would fall within Exception 1 of section 300 of I.P.C. it should be brought on record that the provocation was from the side of the victim because of which, the accused lost their control both actual and reasonable and in retaliation proportionate to the provocation acted in the commission of the offence. Here, we do not find it to be so from the evidence on record; on the other hand, it was the victim Paremshivam Harijan who was insticated by appellant/accused No. 1 and according to the learned Counsel appearing for the appellant-accused, this resulted in a grave and sudden provocation, because of which, he lost his control and assaulted the deceased Paramshivam Harijan, particularly in respect of appellant-accused No. 2 Komaranand, there was no question of any grave and sudden provocation and there was no reason why he should have taken out a knife (article No. 1) (sura) and assaulted the victim. Therefore, this defence is not available to the appellant-accused. Similarly this was not a case of sudden fight and that the murder was committed without premeditation in a sudden fight and the act was committed in the heat of passion and assailants did not take any undue advantage and acted as such. As what we find from the evidence on record, is that the appellant-accused on seeing the victim Paramshivam Harijan entering the Tadi shop, did contemplate to raise a quarrel so as to do away with him that is why the appellant/accused No. 1 Kuttan initiated the quarrel by abusing him so that they would get an opportunity to carry out their intention. The victim was dragged out by him from the Tadi shop and the appellant-accused No. 2 Komarnand took out the weapon i.e. knife (article No. 1) from his waist which is one foot in length and assaulted the victim by giving him two blows first on the thigh and second through armpit towards left side of his chest fully aware of the fact that it is a vital part of the body. Even question of not sharing common intention does not arise. The initiator is appellant-accused No. 1 Kuttan which is brought on record by the act attributed to him that he held the victim so as to facilitate the appellant/accused Komaranand to assault him with the knife, otherwise, there was no reason of holding the victim if he did not anticipate that this would give opportunity to the appellant-accused No. 2 to assault him with the knife. It is further strengthened by the fact that if they had no intention, probably appellant/accused No. 2 Komarnand would not have taken out such a dangerous weapon concealed on his person. The fact cannot be ignored that the members of the community had gathered there for offering Pooja to Godess Mariamma and their presence and participation armed with a dangerous weapon with the required intention is sufficiently made out. Therefore, we do not find that the learned Additional Sessions Judge committed any error in convicting the appellant-accused for having committed offence under section 302 read with section 34 of I.P.C. We find no merits in the appeal. The appeal is therefore, dismissed. 42. The appellant/accused No. 1 Kuttan Veermuttu Harijan was granted bail during the pendency of the hearing of this appeal. He is directed to forthwith surrender to his bail bonds before the Court of Sessions at Greater Bombay within a period of one week. On his failure to do so, the Court of Sessions would take appropriate steps to take him into custody and commit to the prison to undergo remaining part of the sentence. Appeal dismissed. -----