JUDGMENT - BATTA R.K., J.:---Appellants in these appeals were tried for murder of Anil Dhore under section 302 read with section 34 Indian Penal Code. The prosecution had in all examined 12 witnesses including the evidence of eye-witness P.W. 1 Khemraj. The prosecution had also led evidence relating to recovery of weapon used in the crime and also evidence relating to recovery of clothes besides medical evidence and report of Chemical Analyser. The trial Court accepted the evidence of eye-witness Khemraj P.W. 1 as also recovery of the weapons under section 27 of the Indian Evidence Act even though the said recovery was not supported by the panchas. The trial Court on the basis of evidence on record found all the appellants guilty for the murder of Anil Dhore under section 302 read with section 34 Indian Penal Code and sentenced them to undergo life imprisonment as also fine of Rs. 2000/- each in default further R.I. for one year each. The benefit of set of under section 428 Criminal Procedure Code was given to the appellants. The appellants challenged their conviction and sentence in these appeals which were heard together and are proposed to be disposed of by common judgment. 2. The prosecution case, in brief, is that there was enmity between family of appellant Narendra and appellant Dharmendra and that of the deceased Anil Dhore. On the fateful night at about 9.15 p.m. the appellants came at the place where Anil Dhore was sitting alongwith Khemraj P.W. 1. Deceased Anil Dhore asked the appellants as to what they were watching, upon which the appellant Narendra pushed Anil Dhore on the cot on which he was sitting and then dealt knife blows near abdomen. Appellant Chandrabhan Mendhe caught hold deceased Anil from behind that is from head side and after giving push Anil was lying on cot in a supine position. Appellant Chandrabhan gave knife blows on the chest of Anil by standing towards his head. Appellant Dharmendra was standing by the side of cot on which Anil was lying and he also gave knife blows near the abdominal region of Anil Dhore. Khemraj P.W. 1 shouted Dhava Bappa and upon hearing the shouts Arvind Kothre came on the spot. On seeing him the appellants fled away from the spot. The deceased was taken to the hospital by his brother Chandrabhan P.W. 2 where he was declared dead. Khemraj P.W. 1 shouted Dhava Bappa and upon hearing the shouts Arvind Kothre came on the spot. On seeing him the appellants fled away from the spot. The deceased was taken to the hospital by his brother Chandrabhan P.W. 2 where he was declared dead. There after F.I.R was lodged after midnight on 26-4-97. The police recovered knives at the instance of the appellants under section 27 of the Indian Evidence Act. The police also recovered blood stained clothes of the deceased as also of the appellants which were sent to Chemical Analyser who found blood stains of 'B' group on the knives and blood stains of 'B' group on the clothes of appellant Narendra and appellant Chandrabhan. After completing the investigation the charge- sheet was filed and appellants were tried for the murder of Anil Dhore. 3. Learned Counsel for appellant Narendra argued before us that the only solitary eye-witness examined by the prosecution cannot be believed since he is closely related to the deceased and that even otherwise his evidence does not inspire confidence nor there is any corroboration to the evidence of the said eye-witness P.W. 1 Khemraj or any other material on record. He pointed out that the panchas to the recovery of knives at the instance of the appellants, had turned hostile and the trial Court in the circumstances erred in accepting the recovery solely on the basis of the statement made by the Police Officer. According to him the prosecution had failed to prove the case against the appellants and the appellants deserve to be acquitted of the said charges. Learned Counsel for the appellant Chandrabhan adopted the arguments advanced by the learned Counsel for Narendra and he pointed out that the material evidence relating to the assault of appellant Chandrabhan was not put to him in his statement under section 313 of Criminal Procedure Code as a result of which the evidence of Khemraj P.W. 1 regarding the assault by appellant Chandrabhan on the deceased cannot be acted upon. This contention of learned Advocate for appellant Chandrabhan is not correct since this circumstance was put in question No. 4 to him. 4. This contention of learned Advocate for appellant Chandrabhan is not correct since this circumstance was put in question No. 4 to him. 4. Learned Counsel for appellant Dharmendra urged before us that the sole eye-witness examined by the prosecution Khemraj P.W. 1 is maternal uncle of the deceased and in the absence of any corroboration of his testimony implicit reliance cannot be placed on the evidence of this witness. It is pointed out that this witness had categorically stated that there was no enmity insofar as appellant Dharmendra is concerned and it is in this background that the entire evidence relating to common intention as against the appellant Dharmendra has to be examined. According to him, the prosecution evidence is that Dharmendra was not along with other two appellants but he was behind them; that the evidence of Khemraj P.W. 1 is to the effect that the appellant Dharmendra had given knife blow on the abdomen of the deceased but only one injury in the abdomen was found which is attributed to appellant Narendra by Khemraj P.W. 1 in his examination-in-chief and that the prosecution has totally failed to prove that any injury was inflicted by appellant Dharmendra on the person of the deceased. Alternatively it is argued that this is a case which will fall in the Exception 4 since it was the deceased who had provocated the appellants by stating as to why they were staring at him and if this provocation was not given the incident in question would not have happened. According to learned Counsel for the appellant the circumstances on record do not establish common intention insofar as appellant Dharmendra is concerned and even if the prosecution case is established the case of the appellant would fall only under section 304 Pt. II Indian Penal Code. He further urged that trial Court had erred in accepting the evidence of Investigating Officer regarding recovery when the said recovery was not supported by the panchas. According to him, the appellant is entitled for acquittal or alternatively the case would be covered under section 304 Pt. II Indian Penal Code on account of Exception 4 to section 300 Indian Penal Code as the incident in question took place on sudden provocation as also at the spur of the moment. According to him, the appellant is entitled for acquittal or alternatively the case would be covered under section 304 Pt. II Indian Penal Code on account of Exception 4 to section 300 Indian Penal Code as the incident in question took place on sudden provocation as also at the spur of the moment. Learned Counsel for the appellant relied upon (Kunhunni alias Chami v. State of Kerala)1, 1996 Criminal Law Journal 1821 and (Ghansham s/o Narayan Ninaye v. State of Maharashtra)2, 1996 Criminal Law Journal 27. 5. Learned A.P.P., on the other hand, argued that the testimony of Khemraj P.W. 1 on material particulars that is to say of assault by all the appellants could not be shaken during cross-examination and there is absolutely no reason to disbelieve the eye-witness account given by Khemraj P.W. 1. He further submitted that the common intention is based on the facts of the case and P.W. 2 has categorically stated that there was also enmity between family of appellant Dharmendra and the deceased. He also pointed out that P.W. 11 has also stated that there was enmity between Mendhe family and Dhore family for the last 15 to 16 years and it is on account of this enmity that all the three appellants had with common intention came with knives and assaulted the deceased with the knife mercilessly causing 20 injuries as a result of which deceased died on the spot. Relying upon the judgment of the Apex Court in (State of U.P. v. Jhinkoo Nal with Jhinkoo Nal v. State of U.P.)3, 2001 Criminal Law Journal 3965, (Suresh and another v. State of U.P. with State of U.P. v. Pavitri Devi)4, 2001(3) S.C.C. 673 ; it is alleged by learned A.P.P. that common intention on the part of all the appellants has been duly established by the prosecution. According to him, the case does not at all attract Exception 4 of section 300 Indian Penal Code and that the trial Court had very rightly accepted the evidence of recovery on the strength of the evidence by Investigating Officer in the light of the judgment of the Apex Court in (Modan Singh v. State of Rajasthan)5, A.I.R. 1978 Supreme Court 1511. He, therefore, contends that no case is made out for interference in the appeals. 6. The prosecution case mainly rests upon the evidence of eye-witness P.W. 1 Khemraj. He, therefore, contends that no case is made out for interference in the appeals. 6. The prosecution case mainly rests upon the evidence of eye-witness P.W. 1 Khemraj. It does not appear to be in evidence on record, as argued, that Khemraj P.W. 1 is maternal uncle of the deceased, but even otherwise the mere fact that the person is closely related is not sufficient to discard the evidence of eye-witness and the caution to be used is only that the testimony of such witness should be cautiously scrutinised. In fact Khemraj P.W. 1 has denied to be related to the deceased. P.W. No. 1 Khemraj has stated that the incident took place around 9.15 p.m. At that time he was sitting on a cot along with Anil infront of his house at a distance of about 1 to 2 ft. from outer door of his house. There is a road infront of his house. All the appellants came near the cot and deceased Anil asked them as to what they were watching. There upon accused Narendra pushed Anil Dhore on the cot and dealt knife blows near abdomen. Then appellant Chandrabhan also caught hold of deceased Anil Dhore from behind i.e. from head side and after pushing Anil Dhore on the cot in supine position he gave blows of knife on the chest of Anil Dhore by standing towards his head. Appellant Dharmendra was also standing by the side of the cot on which Anil was lying and he was holding a knife in his hand and he dealt knife blows near the abdominal region of Anil Dhore. When this witness shouted Dhava Bappa his son Arvind came to the spot and on seeing him appellants fled away. It was suggested to him by the Counsel for appellants. Narendra and Chandrabhan that the incident had taken place for about half an hour but this witness stated that the incident might have taken place for about 20 minutes. He further stated during the cross-examination that he stood up from the cot and remained standing by the side of the cot. He also stated that as soon as the accused took out knives and were about to assault Anil Dhore he shouted but because of his asthmatic problem he could not shout in loud voice. He further stated during the cross-examination that he stood up from the cot and remained standing by the side of the cot. He also stated that as soon as the accused took out knives and were about to assault Anil Dhore he shouted but because of his asthmatic problem he could not shout in loud voice. He categorically stated that when the incident of assault was going on no person from the locality were present on the scene of occurrence and the people came to the spot after the police came there. He denied that there was no light out side the house and stated that there is an electric pole with street light at about a distance of 50 ft. away from his house. If one goes through the cross-examination of P.W. 1 by Counsel for appellants Narendra and Chandrabhan, it is crystal clear that evidence of this witness on material particulars was not at all shaken during the course of cross-examination and as such there is no reason whatsoever as to why the evidence of this witness should be disbelieved. 7. In the cross-examination by learned Counsel for appellant Dharmendra, P.W. 1 Khemraj stated that there was enmity between Dhore and Mendhe family because of the old incident which had taken place before 15-16 years prior to the incident. He denied that Anil was related to him but admitted that he had cordial relations with him and that Anil used to come to his house. He further stated that he had closed the shop at about 9.30 p.m. and at the time of incident he had already closed his shop. It was suggested to him during cross-examination that he could not see from the place where he was sitting upto dock to identify who is sitting there but this witness identified the accused persons who were sitting at a distance of 30 ft. from the witness box and denied that on the date of incident the street lights were off. He did not ask anything from the deceased Anil when the appellants were watching them. According to him accused Dharmendra had no enmity with Anil. Accused/appellants Narendra and Chandrabhan came together and appellant Dharmendra came behind them. He denied that Anil was in heavily drunken condition and was abusing in that condition. He did not ask anything from the deceased Anil when the appellants were watching them. According to him accused Dharmendra had no enmity with Anil. Accused/appellants Narendra and Chandrabhan came together and appellant Dharmendra came behind them. He denied that Anil was in heavily drunken condition and was abusing in that condition. He further stated that he was not on emmical terms with the appellant Dharmendra but on the contrary he was on good terms with him. He also stated that accused Dharmendra was standing towards the legs of Anil Dhore. He saw the knife in the hand of Dharmendra when accused/appellant Dharmendra was standing at a distance of 1 or 1½ ft. from the deceased. He admitted that before the police he had not specifically stated that accused Dharmendra had dealt blow to Anil near his abdomen. He had only stated that appellant Dharmendra assaulted Anil Dhore with knife. When a person is assaulted by a number of persons it is sometimes not possible to note where the blows exactly fell but one can definitely say about the assault by the weapon. 8. On the basis of this cross-examination learned Counsel for the appellant Dharmendra has argued before us that there was no common intention on the part of Dharmendra to kill the deceased and that at any rate the appellant Dharmendra had acted on the spur of moment on account of momentary impulse and anger as a result of which his case would fall under section 304 Part II of Indian Penal Code. On the question of common intention learned A.P.P. has relied on two Apex Court judgments and at this stage we may refer to the said judgments. The Apex Court in State of U.P. v. Jhinkoo Nail, 2001 Criminal Law Journal 3965; has observed that when several persons simultaneously attack with common intent, no distinction between causing the fatal and non-fatal wounds could be drawn while allocating the guilt. The Apex Court has quoted with approval the observations made in (H.P. Thakore v. State of Gujarat)6, 1976(4) S.C.C. 640 which reads as under : ".............. when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the other and seek to salvage those whose stabs have not proved fatal. when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the other and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstances that one man's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. Section 34 I.P.C. fixing constructive liability conclusively silences such a refind plea of extrication. See (Amir Hussain v. State of U.P.)7, 1975(4) S.C.C. 274 ; (Maina Singh v. State of Rajasthan)8, 1976(2) S.C.C. 827 . Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse. They also serve who only stand and wait a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory, presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code." (Emphasis supplied). 9. The Apex Court in 2001(3) Supreme Court Cases 673 as a majority view has laid down as under : "The dominant feature for attracting section 34 I.P.C. is the element of participation in absence resulting in the ultimate "criminal act". For appreciating the ambit and scope of section 34, the preceding sections 32 and 33 have always to be kept in mind. Under section 32 acts include illegal omissions. Section 33 defines the "act" to mean as well a series of acts as a single act and the word "omission" denotes as well a series of omissions as a single omission. The "act" referred to in the later part of section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of section 34 shall be rendered infructuous. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the Court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. "Section 34 I.P.C. recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. A common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may developed on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. Such preconcert or preplanning may developed on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case." Applying the above principle enunciated by the Apex Court on the basis of evidence on record we are of the considered opinion that all the appellants entertained common intention to kill the deceased Anil Dhore which is borne out by the facts that there was enmity between the family of appellant Narendra as spoken by P.W. 1 Khemraj and P.W. 11 Ashok, as also, there was enmity between the family of the deceased Anil Dhore with the family of appellant Dharmendra as deposed by P.W. 2 Chandrashekhar. As all the appellants came together it does not matter whether appellant Dharmendra was behind the other two appellants when they came. All of them were armed with knife and there is evidence on record that all of them had assaulted the deceased. Learned Advocate for the appellant Dharmendra vehemently urged before us that according to Khemraj P.W. 1 the injury on the abdomen was caused by Narendra and as such his deposition to the effect that Dharmendra had also assaulted the deceased on the abdomen cannot be accepted since only one injury was found on abdomen. Khemraj P.W. 1 has stated that the appellant Dharmendra had assaulted the deceased near abdomen. In fact he had not stated before police that dealt blow by knife given by Dharmendra were near abdomen. This is obviously an improvement which this witness has made but his testimony that appellant Dharmendra had assaulted the deceased with a knife cannot in the circumstances be disbelieved. The Medical Officer found as many as 20 injuries on the person and made following observations which are as under : 1. Contuse abrasion present over lateral canthus of right eye 3 cm. x 1 cm. brown in colour. 2. Contused abrasion present over right zygoma, 2cm. x 2 cm. brown. 3. Incised wound present over right zygomatic arch 2 cm. behind Injury No. 2, 2 cm x ½ cm. Contuse abrasion present over lateral canthus of right eye 3 cm. x 1 cm. brown in colour. 2. Contused abrasion present over right zygoma, 2cm. x 2 cm. brown. 3. Incised wound present over right zygomatic arch 2 cm. behind Injury No. 2, 2 cm x ½ cm. by skin deep, tailing downwards medically. 4. Contused abrasion present over left angle of mandible 2 ½ cm. x 2 ½ cm. brown. 5. Stab wound present over lateral aspect of left arm 8 cm. below shoulder tip 2 ½ cm. x 1 cm. x muscle deep, both angels sharp. 6. Stab wound present over lateral aspect of left elbow 2 cm x 1 cm. muscle deep. Both angles sharp. 7. Incised wound present over thinner aspect of left palm. 6 cm. x ¼ cm. by muscle deep tailing medially upward. 8. Incised wound present over hypothinner region of right palm, 4 cm. x ¼ cm. by muscle deep, tailing medially. 9. Through and through stab wound present over right arm (a) entry wound lateral aspect 17 cm. above elbow 2 2½ cm. x 1 cm. (b) exit would-medial aspect 7 cm. above elbow, 2 cm. x 1 cm. Angles sharp. 10. Incised wound present over postermedial aspect of right forearm 6 cm. above wrist 4 cm. x ½ cm. by subqutaneous tissue deep. Tailing laterally downwards. 11. Stab wound present over front of chest in right third inter-costal space 7 cm. from midlines, 3 cm. x 1 cm. x cavity deep. Both angles sharp. 12. Stab wound present over right anterior axillary line 7 cm. below axilla, 2 cm. x 1 cm. x cavity deep. Both angles sharp. 13. Stab wound present over front of chest in left fourth intercostal space 6 cm. from midline ½ cm. x ½ cm. by muscle deep. Both angles sharp. 14. Incised wound present over left front of chest in seventh intercostal space 5 cm. x 1 cm. skin deep tailing medially upto midline. 15. Stab wound present over front of abdomen left side ½ cm. from midline and 8 cm. from xiphisternum. Omentum protruding out. 3 cm. 1 cm. x cavity. Both angles sharp. Evidence of rocking present 1 cm. lateral to medial angles. Tailing present for 2 cm. medially upwards. 16. Skin deep incised wound present over right posterior axillary line and eighth intercostal space 2 cm. x ¼ cm. 17. from midline and 8 cm. from xiphisternum. Omentum protruding out. 3 cm. 1 cm. x cavity. Both angles sharp. Evidence of rocking present 1 cm. lateral to medial angles. Tailing present for 2 cm. medially upwards. 16. Skin deep incised wound present over right posterior axillary line and eighth intercostal space 2 cm. x ¼ cm. 17. Skin deep incised would present over left anterior superior iliac spine 6 cm. x ¼ cm. Tailing medially. 18. Contused abrasion present 4 cm. below left anterior superior ilia spile 1 cm. x ½ cm. brown. 19. Incised wound present over right scapular spine 5 cm. x ½ cm. x skin deep. 20. Incised wound present over posterior aspect of left thigh 3 cm. below gluteal fold 1 cm. x ½ cm. x skin deep. All these injuries as I have noted above, its age was recent. The injuries were within 6 hours of the time of death. The time of death was around 22.00 hours of 25-4-97, and I had conducted the postmortem on 26-4-97 at 12.15 p.m. 3. On my internal examination I have found the following injuries on the dead body of Anil Dhore. a) PLEURA - Conjusted cut corresponding to Injury No. 11 and 12 in Column No. 17. Pleural cavity contains 300 ml. blood and clots, lungs partially collapsed. 2 stabs present corresponding to Injury No. 11 and 12 in Column No. 17. b) PERITONIUM-Conjusted cut corresponding to Injury No. 15 in Column No. 17, cavity contains 500 ml. blood and clots. c) Small intestine- Empty through and through stab would present. d) Large intestine-Gaces and feaces present. Stab wound present over meacentry vessel cut abdominal aorta stab wound present at L-1 vertabex. e) Pancreas, Lever Speen, Kidneys and organs of generation were found pale (suggest that there was a haemorrhage). 4. The Injuries No. 11, 12 and 15 as shown in Column No. 17 in my post-mortem report are individually sufficient in ordinary course of nature to cause the death of any person. According to me the cause of death of Anil Dhore was due to shock and haemorrhage due to stab injuries to chest and abdomen. 10. Learned Counsel for the appellant argued before us that the case of appellant Dharmendra falls in Exception 4 of section 300 Indian Penal Code. W are unable to agree with the said submission. According to me the cause of death of Anil Dhore was due to shock and haemorrhage due to stab injuries to chest and abdomen. 10. Learned Counsel for the appellant argued before us that the case of appellant Dharmendra falls in Exception 4 of section 300 Indian Penal Code. W are unable to agree with the said submission. His submission is that by questioning, Anil Dhore had given provocation to the appellants and if that provocation was not there, the incident in question would not have happened. What Anil Dhore is said to have asked the appellants as to what they were watching which can by no stretch of imagination provide provocation or give any cause for mercilessly assaulting the deceased by the three appellants with the knives resulting in 20 injuries on his person and his instantaneous death on the spot. Statement of Khemraj was promptly recorded by the police on 26-4-1997, that is after the F.I.R. was received on that day at 1 a.m. There is absolutely no reason to disbelieve or discard the eye- witness account of the incident given by Khemraj. Therefore, even if the discovery is totally excluded from consideration, the case against the appellants stands proved on the strength of the evidence of Khemraj P.W. 1. 11. The prosecution with the help of P.W. 9 Shashikant has proved that the clothes of the appellants were seized in his presence and a panchanama to that effect was prepared. The Chemical Analyser's report shows the blood group 'B' on the shirts of appellants Narendra and Chandrabhan. The complicity of all the appellants as also common intention has been duly established by the prosecution. The rulings upon which reliance has been placed by the learned Counsel for appellants are not attracted in the circumstances of the case under consideration. In Kunhunni alias Chami v. State of Kerala (supra) on a sudden quarrel deadly blow was struck by accused on head of deceased resulting into his death and in that case also the accused was also injured. There was no previous enmity. It is in these circumstances that the deceased was held guilty of culpable homicidal death not amounting to murder. There was no previous enmity. It is in these circumstances that the deceased was held guilty of culpable homicidal death not amounting to murder. In Ghunsham s/o Narayan Ninave v. State of Maharashtra (supra) it was a case of single blow which was inflicted out of sheer frustration, momentary impulse and anger and it was found that accused had no intention to cause death and the act is culpable homicide not amounting to murder. 12. In the case before us the evidence of common intention is crystal clear as also the common intention to kill, as the appellants assaulted the deceased with knives causing 20 injuries on all parts of the body including vital parts namely chest and abdomen as a result of which deceased died instantaneously on the spot. 13. For the aforesaid reasons we do not find any merit in the appeals and the appeals are hereby rejected. Appeals rejected. -----