JUDGMENT - MARLAPALLE B.H., J.:—Sukhdeo Salve an employee of the Irrigation Department of the Government of Maharashtra at Aurangabad and a resident of Kranti Nagar locality had four sons viz. Bharat (P.W. 5) Vijay, Deepak (P.W. 3) and Avinash (since deceased). In an incident of physical assault by weapons by a group of persons on the Adalat road near the premises of the District Court on 27-1-1997 which was preceded by an earlier incident involving Deepak (P.W. 3), Avinash (died) and Deepak was seriously injured. In all 13 accused were put on trial in Sessions Case No. 112/1997 and the learned Additional Sessions Judge at Aurangabad by his judgment and order dated 16th February, 1999 was pleased to acquit original accused Nos. 2 to 4, 6 to 9 and 11 and 13 in respect of the offences punishable under sections 302, 307, 341, 143 and 147 and 148 r/w section 149 of I.P.C. as well as section 5 r/w section 25 of the Arms Act whereas accused No. 1 Dhiraj accused No. 5 Vinod, accused No. 10 Manoj and accused No. 12 Raju @ Dolya also came to be acquitted for offences punishable under sections 147, 148 and 149 of I.P.C. as well as section 5 r/w section 25 of the Arms Act. However, these four accused who are the appellants in these appeals came to be convicted for offences punishable under sections 302, 307 and 341 r/w 34 of I.P.C. Each one of them was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- in default to further undergo rigorus imprisonment for one year for the offence punishable under section 302 r/w 34 of I.P.C. Whereas for the offence under section 307 r/w section 34 of I.P.C. all of them were sentenced to undergo rigorous imprisonment of 7 years and to pay a fine of Rs. 2000/- each, in default to undergo R.I. for one year and for the offence punishable under section 341 r/w 34 of I.P.C. each one of them has been sentenced to undergo R.I. for one year. The period of imprisonment already undergone was directed to be set off under section 482 of Cri.P.C. 2.Being aggrieved by the said order of conviction and sentence, appellants accused have approached this Court and by order dated 26th April, 1999 appellants in Appeal No. 11/2004 were released on bail. The period of imprisonment already undergone was directed to be set off under section 482 of Cri.P.C. 2.Being aggrieved by the said order of conviction and sentence, appellants accused have approached this Court and by order dated 26th April, 1999 appellants in Appeal No. 11/2004 were released on bail. Whereas appellant Dhiraj Shantilal Khakorida (in Criminal Appeal No. 101/1999) was refused bail. He was released on temporary bail for a period of one week by order dated 27-4-2000 and was directed to surrender to the jail authority on 12-5-2000. However, he did not surrender and was declared absconding. The police were directed to take appropriate steps to take him in custody and the Assistant Commissioner of Police, Aurangabad (Incharge of the Kranti Chowk Police Station) remained present before us during the course of hearing of these appeals and assured that the said appellant-accused shall be taken in custody at the earliest possible. On 18-12-2003 this Court allowed the original appellant 2 to 4 to file a separate appeal as they were represented by different Advocates and thus Criminal Appeal No. 11/2004 came to be filed and it was directed to be heard alongwith Criminal Appeal No. 101/1999. 3.The prosecution case briefly unfolds in the following manner. Deepak Salve (P.W. 3) an auto rickshaw driver while taking U turn infront of the Aurangabad District Central Cooperative Bank on Adalat Road (hereinafter referred to as A.D.C.C. Bank for brievity) on 27-1-1997 dashed against a scooter and both the rider i.e. Vinod accused No. 5 and Manoj accused No. 10 (both real brothers) fell down. They assaulted Deepak and he received injuries. While this incident was taking place, Pandharinath Kharat (P.W. 2), Prakash Nikalje (P.W. 4) Vijay Khandagale (P.W. 6) and Arun Borde (P.W. 7) approached at the scene and Deepak went to the Kranti Chowk Police Station to file a complainant. They were followed by Bharat Salve (P.W. 5). The Inspector on duty i.e. Chandrakant Landge (P.W. 26) advised that Deepak Salve should be taken to the Ghati hospital and a medical slip to that effect was issued. Accordingly, Deepak alongwith Pandharinath and Bharat went to the Ghati hospital in the auto rickshaw of Deepak Kale (P.W. 15) whereas Prakash, Vijay and Arun followed them in another rickshaw. The Inspector on duty i.e. Chandrakant Landge (P.W. 26) advised that Deepak Salve should be taken to the Ghati hospital and a medical slip to that effect was issued. Accordingly, Deepak alongwith Pandharinath and Bharat went to the Ghati hospital in the auto rickshaw of Deepak Kale (P.W. 15) whereas Prakash, Vijay and Arun followed them in another rickshaw. Deepak Salve (P.W. 3) was treated in the Ghati hospital as he had suffered a bleeding injury on his lips/nose and he alongwith Pandharinath was returning to his house in the rickshaw of Deepak Kale (P.W. 15) whereas Bharat Salve (P.W. 5) went to the Police Station to hand over the duplicate of the medical slip. When their rickshaw reached at the signal near the District Court building. It was taking turn to go to the Kranti Nagar area and at that spot, the rickshaw was stopped by accused No. 5 Vinod and accused No. 10 Manoj and all the occupants of the rickshaw were dragged out. They shouted for other assailants who were armed with knives, Kirpan and Dagger etc. This included accused No. 1, accused No. 12 and others. Within few minutes Prakash, Vinod and Avinash arrived at the scene in another rickshaw from the Ghati hospital and they also noticed the attack and Prakash (P.W. 4) went to the extent of catching hold of the accused No. 1 when he was fleeing away after noticing the police van arriving at the scene. It is also the case of the prosecution that after the first incident involving Vinod and Manoj, the accused No. 1 alongwith Vinod and Manoj had gone to the Kranti Chowk Police Station met the Police Inspector (P.W. 26) and requested that Deepak (P.W. 3) be taken into custody as he had given a dash and injured Vinod and Manoj. The Inspector had advised the accused No. 1 to take Vinod and Manoj to Ghati hospital and medical slip was also handed over. However, they did not go to the Ghati hospital and instead decided to attack the rickshaw driver i.e. P.W. 3 and thus were awaiting at the traffic signal which leads to their residence i.e. Kranti Nagar area. Inspector Landge (P.W. 26) after the first incident had visited the site opposite the A.D.C.C. Bank and after seeing the situation being in order left for normal patrolling duty. Inspector Landge (P.W. 26) after the first incident had visited the site opposite the A.D.C.C. Bank and after seeing the situation being in order left for normal patrolling duty. When he reached the syndicate bank on the Railway Station Road, he received a message regarding the assault on Deepak and others near the District Court premises and therefore, he arrived at the scene. In the meanwhile, Deepak Kale (P.W. 15) who was hit by stone abandoned the rickshaw and proceeded to the Kranti Chowk Police Station. The police party from the Police Station also arrived at the scene. Deepak was stabbed with Knives Dagger and had fallen on the ground in bleeding condition. His brother Avinash (the deceased) who was standing at nearby place had tried to intervene and was mercilessly stabbed by the accused and more particularly accused Nos. 1 and 12. He was stabbed on his chest, abdomen, spinal cord and he fell down in bleeding condition. At this time when the police party arrived at the scene, the accused tried to flee from the scene and three of them i.e. Dhiraj accused No. 1. Vinod accused No. 5 and Manoj accused No. 10 were picked up by the police and taken to the Ghati hospital in a van alongwith the injured. Out of these three accused, accused No. 1 and accused No. 5 were injured. Deepak (P.W. 3) and Avinash alongwith Pandharinath (P.W. 2) who was also injured were taken in a separate van to the Ghati hospital. On examination of Avinash the doctors declared him dead and Deepak was noticed to be in serious condition. He was therefore shifted for emergency medical treatment including major operations. Whereas Pandharinath was treated and taken to the Police Station but accused No. 1 and accused No. 5 were admitted in ward No. 17. They were examined by Dr. Pagaria (P.W. 17) and administered medical treatment and provisional injury certificates were issued by the casualty Medical Officer. Their clothes were seized at Exh. 1 and 2 belonging to Dhiraj, Exh. 3 and 4 belonging to Vinod, Exh. 5 and 6 belonging to Manoj (though Manoj was not admitted in the hospital). Similarly the clothes of deceased Avinash and injured witness Deepak (P.W. 3) were also seized. Exh. D, E, F and I are clothes of Deepak (P.W. 3), Exh. H, I, J, K are clothes of Avinash. 3 and 4 belonging to Vinod, Exh. 5 and 6 belonging to Manoj (though Manoj was not admitted in the hospital). Similarly the clothes of deceased Avinash and injured witness Deepak (P.W. 3) were also seized. Exh. D, E, F and I are clothes of Deepak (P.W. 3), Exh. H, I, J, K are clothes of Avinash. Injured Pandharinath (P.W. 2) was also treated and provisional injury certificate (Exh. 65) came to be issued by the Medical Officer. Pandharinath filed complaint which was treated as F.I.R (Exh. 58) and the Inspector (P.W. 26) recorded statements of other persons. He handed over the investigation to P.I. Dabhade (P.W. 27) and then investigation was taken over by P.I. Mahajan (P.W. 28) from 29th January, 1997 onwards. Accused Nos. 1, 5 and 10 were arrested immediately whereas accused No. 12 Raju was absconding. He was picked up in Mumbai in the night of 2-2-1997 and was produced in the few hours of 3-2-1997 before the Police Inspector Kranti Chowk Police Station who in turn produced him before the Magistrate on the same day. On the basis of his statement discovery of weapon i.e. article No. 34 was effected in terms of panchanama Exh. 84 and 85 in presence of panch witness Ingole (P.W. 10) and Sadavarte (P.W. 11) whereas article Nos. 14 and 15 which were allegedly used by accused Nos. 1, 5 and 10 were recovered from Deepak Bhojayye accused No. 11. Immediately after the second incident, on suspicion Police Constable Rithe (P.W. 24) with the assistance of Police Constable Babar (P.W. 25) seized the clothes as well as weapons alongwith which were sent to the chemical analyser by the Investigating Officer and on completion of the investigation as well as receipt of chemical analyser report, charge-sheet came to be filed before the learned Magistrate who in turn committed the case to the Session Court. It is also pertinent to note that the blood samples of the injured witnesses i.e. P.W. 2, P.W. 3 as well as deceased and accused were collected and sent for chemical analysis. The chemical analysis reports are at Exh. 150 to 180. 4.The charge which was for offences punishable under sections 147, 148, 302 and 307 read with section 149 of Indian Penal Code was amended during the course of the real and in the alternate charge under section 34 of I.P.C. was also framed. The chemical analysis reports are at Exh. 150 to 180. 4.The charge which was for offences punishable under sections 147, 148, 302 and 307 read with section 149 of Indian Penal Code was amended during the course of the real and in the alternate charge under section 34 of I.P.C. was also framed. The Sessions Court has acquitted all the accused for offence punishable under sections 147, 148 and 149 of I.P.C. and the State Government has not filed any appeal against these acquittal orders against acquittal of others accused. We are therefore, required to consider these appeals only in respect of order of conviction and sentence passed against appellant. There is no dispute that the High Court being the first Court of appeal, we are required to re-appreciate the evidence as was placed before the Sessions Court and on such appreciation of the facts while confirming the findings of conviction, we can substitute/supplement the reasonings. We have stated this position in law right at the threshold because the learned Sessions Judge has discarded the evidence of 3 injured eye-witnesses i.e. Pandharinath P.W. 2, Deepak (P.W. 3) and Deepak Kale (P.W. 15) as well as the evidence of other eye-witnesses viz. Prakash (P.W. 4), Vijay (P.W. 6) and Arun (P.W. 7) in respect of appellants Nos. 2 to 4 whose conviction mainly based on circumstantial evidence. 5.Shri Kanade, learned Counsel appearing for appellant No. 1 Dhiraj submitted that his presence at the spot was not proved and so was the case regarding his participation in the second incident. F.I.R. was ante timed and could not be relied upon. The evidence of the so called eye-witnesses suffered from omissions, commissions and improvisations. The testimony of P.W. 4, P.W. 6 and P.W. 7 could not be relied upon as they were interested witnesses and were also planted. The recovery of weapon allegedly used by the said appellant was not caused at his instance and as the testimony of Constable Rithe (P.W. 24) and constable Babar (P.W. 25) was discarded by the Sessions Court. The discovery of article Nos. 14 and 15 could not be proved by referring to the injuries that were noticed by the Medical Officer on the person of the deceased as well as P.W. 3. Shri Kanade submitted that none of these injuries could be attributed to the said appellant. The discovery of article Nos. 14 and 15 could not be proved by referring to the injuries that were noticed by the Medical Officer on the person of the deceased as well as P.W. 3. Shri Kanade submitted that none of these injuries could be attributed to the said appellant. By referring to the C.A. report it was urged before us that the blood group of the appellant is also B and as he had admittedly received bleeding injuries the blood noticed on his clothes could not be relied upon as a corroborating evidence to hold him guilty of assaulting the deceased as well as P.W. 3. To conclude his submissions Shri Kanade in the alternative submitted that in any case even if the prosecution story is accepted as it is, offence under section 302 r/w 34 of I.P.C. could not be established against the appellant No. 1 as there was nothing on record to support sharing of common intention between the accused to cause the death of Avinash and therefore it being an assault at the spur of the moment, offence would fall within the ambit of section 304 of I.P.C. 6.Mrs. Sadhana Jadhav, learned Counsel appearing for the original appellant Nos. 2 to 4 (appellants in Appeal No. 11/04) while adopting the arguments submitted by Shri Kanade, attempted to distinguish the cases of these 3 accused. It is her contention that unless a specific act of assault by any alleged weapon is attributed individually to each of these appellants causing injuries either to the deceased Avinash or Deepak Salve (P.W. 3), the order of conviction against all of them or each them cannot be sustained and if the evidence adduced before the trial Court is sifted it would go to show that the conviction for offence punishable under section 302 r/w section 34 requires to be quashed and set aside. She also submitted that so far as appellant Vinod is concerned, not a single witness has confirmed Vinods participation in the assault and inflicting of injuries by weapon on the deceased and/or Deepak Salve (P.W. 3). Vinod also belongs to blood group B and his clothes were also found to be stained with the same blood group as per the C.A. report whereas the deceased Avinash had blood group B and the blood group of Deepak was found to be A by the analyser. Vinod also belongs to blood group B and his clothes were also found to be stained with the same blood group as per the C.A. report whereas the deceased Avinash had blood group B and the blood group of Deepak was found to be A by the analyser. So long as there was no evidence against him regarding use of weapon for inflicting injuries on deceased Avinash mere presence of blood of B on his clothes will not be a corroborating circumstance to hold him guilty of participating in any act which lead to the death of Avinash. She has also questioned the discovery of weapon (Article No. 34) at the instance of appellant No. 4 Raju and submitted that this was planted act on the part of the police to rope in the said appellant who is otherwise innocent. While coming to the case of Manoj it was submitted by Mrs. Jadhav that he was not injured accused though his clothes were stained with blood. In the second instance there was admittedly stone pelting and both the parties had received injuries on account of the same and therefore, it was possible that the clothes of Manoj were stained with blood on account of injuries caused to some others and it cannot be attributed that his clothes were stained with blood because he had inflicted attacks on the deceased or Deepak Salve (P.W. 3) by any weapon. In the alternate, it was submitted by the learned Counsel that in any case appellant Vinod and Manoj could not be held to be guilty in the murder of Avinash, as none of the eye-witnesses have attributed any role to these two appellants in the alleged attack on Avinash and Deepak on 27-1-1997. She therefore, submitted that the order of conviction and sentence cannot be sustained and in any case even in the alternate, requires to be modified as far as these accused are concerned. Lastly she argued that the sentence under section 307 r/w section 34 of I.P.C. was required to be reduced from seven years to five years. She therefore, submitted that the order of conviction and sentence cannot be sustained and in any case even in the alternate, requires to be modified as far as these accused are concerned. Lastly she argued that the sentence under section 307 r/w section 34 of I.P.C. was required to be reduced from seven years to five years. 7.Shri Jadhav, learned A.P.P. on the other hand while supporting the order of conviction and sentence in its entirety referred to the fact of 3 appellants being picked up at the spot by the police and the appellant No. 4 having absconded and ultimately picked up in Mumbai after a week as well as the injuries sustained by them, submitted that there are incriminating circumstances against the accused if regards to be had to the C.A. report as well as the evidence of the eye witnesses i.e. P.W. 2, P.W. 3, P.W. 4, P.W. 6 and P.W. 7. He also submitted that so far as accused No. 1 is concerned all the 5 eye witnesses have attributed a specific act of assault with the help of article No. 15 (kirpan/dagger) on the deceased Avinash as well as Deepak Salve (P.W. 3). Injuries sustained by each of them also corelate with the said weapon and therefore, order of conviction against accused No. 1 is supported by the evidence on record. He also submitted that the accused have not furnished any explanation regarding injuries sustained by them and the submissions that accused No. 1 was not present at the scene can be falsified by the evidence on record. It was contended by the learned A.P.P. that the second incident has taken place at about 2 to 2.30 p.m. in a busy locality i.e. adjacent to the Adalat road and on the lane between the two Court premises and it was preceded by an earlier incident involving accused Nos. 5 and 10 infront of the A.D.C.C. bank premises and therefore, the second incident is connected with the first. He pointed out that in the evidence of Landge (P.W. 26) it has come on record about accused Nos. 1, 5 and 10 visiting Police Station after the first incident and the accused No. 1 insisting for the arrest of Deepak Salve as he had dashed a scooter driven by Vinod and Manoj (accused Nos. 5 and 10) and they were injured. 1, 5 and 10 visiting Police Station after the first incident and the accused No. 1 insisting for the arrest of Deepak Salve as he had dashed a scooter driven by Vinod and Manoj (accused Nos. 5 and 10) and they were injured. This fact coupled with the other circumstances viz. the accused No. 1 not taking Vinod and Manoj to the Ghati hospital for treatment and instead coming to the spot of the second incident certainly adds to the intention of the accused to settle the score against Deepak Salve who was known to be a resident of the adjacent locality i.e. Kranti Nagar. Shri Jadhav also referred to the occular testimony regarding the accused being armed with weapons right from the beginning of the second incident and submitted that all the ingredients for an offence punishable under section 34 of I.P.C. were duly established. The testimony of P.W. 3 could not be discarded only on the ground that he is a real brother of the deceased, more so, when he himself was an injured witness in the very same incident and the first incident happened on account of rickshaw he was driving at about 1.30 p.m. or so. Thus the learned A.P.P. supported the order of conviction and sentence. 8.Let us first set out the medical evidence as has come on record through Dr. Bhalchandra (P.W. 16) and Dr. Umesh Takalkar (P.W. 22) in respect of the injuries sustained by deceased and Deepak Salve (P.W. 3) respectively. The post-mortem of the dead body of Avinash was conducted between 10 to 11 p.m. on 27-1-1997 by a team of 3 doctors viz Dr. Shrikrishna Bhalchandra, Dr. K.D. Chavan and Dr. S.P. Tapase. The following external injuries as mentioned in column No. 7 of the post-mortem report (Exh. 101) were mentioned: (1) Spindal shaped stab wound over right infra mammary area about 4 cm below the nipple in between 5th and 6th intercostal space-obliquely placed of size 3 cm x 1 cm x cavity deep, passing downwards backwards and laterally, Margine-clean out and reddish in colour, Blood seen oozing. (2) Spindle shaped stab wound over left infra mammary area in relation to 4th 5th intercostal space Vertically placed of size 3 cm x 1 cm x cavity deep, passing downwards, backwards and midailly. Margins cleancut and reddish. (2) Spindle shaped stab wound over left infra mammary area in relation to 4th 5th intercostal space Vertically placed of size 3 cm x 1 cm x cavity deep, passing downwards, backwards and midailly. Margins cleancut and reddish. (3) Spindle shaped stab wound over the abdomen, left side 2 cm lateral to umbilicus. Horizontally placed of size 3 cm x 1 cm x muscle deep. Margins cleancut and reddish. (4) Spindle shaped stab wound over the paraspinal region left side at the level of spine of scapula. Vertically placed of size 3 cm x 1 cm x muscle deep. Margins cleancut and reddish. (5) Incised wound over the left arm upper 1/3 posterior aspect Vertically placed of size 3 cm x 1 cm Muscle deep Margines cleancut and reddish. (6) Incised wound over the left elbow posteriorly it was Vertically placed of size 3 cm x 1 cm x muscle deep. Margins cleancut and reddish. (7) Incised wound over the left forearm dorsal aspect middle 1/3. Vertically placed of size 3 cm x 1 cm muscle deep. Margins cleancut and reddish. (8) Abrasion over the left upper abdomen of size 0.5 x 0.5 cm. reddish in colour. Whereas the following internal injuries were noticed in the course of the post-mortem : Costochondral junction showed injuries corresponding to wound No. 1 and 2 of Column No. 17. Pleara also showed corresponding injury No. 1 and 2 of Column No. 1 2. The pleural cavity right hand contend 800 ml. blood while left side 500 ml. There was cleancut stab wound seen on anterior aspect of lower lobe in relation to wound No. 1 as mentioned in Column No. 17. It was of size 0.5 cm. x 0.5 cm. Left Lung was collapsed. Right Lung was also collapsed. There was through and through stab wound on right pericarium and right ventricle of having length of 2.5 c.m. Injuries Nos. 1 and 2 and corresponding injuries were found to be necessarily fatal in causing death and even otherwise injury Nos. 1 and 2 would cause death independently and the death was likely to be instantaneous, as stated by the doctor (P.W. 16). Dr. Umesh Takalkar (P.W. 22) had examined Deepak Salve (P.W. 3) at about 2.30 p.m. and instructed for immediate operation. As per Exh. 64 Deepak had received the following injuries : ----------------------------------------------------------------------------------------------- Sr. 1 and 2 would cause death independently and the death was likely to be instantaneous, as stated by the doctor (P.W. 16). Dr. Umesh Takalkar (P.W. 22) had examined Deepak Salve (P.W. 3) at about 2.30 p.m. and instructed for immediate operation. As per Exh. 64 Deepak had received the following injuries : ----------------------------------------------------------------------------------------------- Sr. No.Type of InjurySize of Injury ----------------------------------------------------------------------------------------------- 1.Stab wound2 cm. x ½ cm. x ½ cm. (Depth) 2.Stab (incised) wound3 cm. x 1 cm. x muscle depth 3.Stab wound3 cm. x ½ cm. x muscle depth 4.Stab wound2 cm. x 1 cm. x upto peritoneum 5.Stab wound3 cm. x 1 cm. x penetrating interocostal muscle upto chest cavity. 6.Stab wound3 cm. x 1 cm. muscle depth. 7.Incised wound3 cm. x ½ cm. x ½ cm. ----------------------------------------------------------------------------------------------- P.W. 3 was under medical treatment from 27-1-1997 to 8-3-97 and he had regained his consciousness on or about 31st January, 1997. His statement was recorded on 1-2-1997 while he was in the hospital. 9.Accused No. 1 had received the following injuries as per the injury certificate at Exh. 63: ----------------------------------------------------------------------------------------------- Sr. No.Type of InjurySize of Injury ----------------------------------------------------------------------------------------------- 1.Contused Lacerated 1"x 1 cm. x scalp deep. wound (C.L.W.) 2.Contusion with-- swelling and tenderness. 3.Contusion2" x 1" ----------------------------------------------------------------------------------------------- Accused No. 5 Vinod had received the following four injuries as per the provisional injury certificate at Exh. 70: ---------------------------------------------------------------------------------------------- Sr. No.Type of InjurySize of Injury ----------------------------------------------------------------------------------------------- 1.Contused½" x ½ cm x ½" lacerated wound 2.Contusion1" x 1 cm 3.Contusion½ cm x ½ cm 4.Contusion2 cm x 1 cm with swelling and Tenderness. ---------------------------------------------------------------------------------------------- He was discharged on 1-2-1997 as per the discharge card at Exh. 66. The injured witness Pandharinath Salve (P.W. 2) had received the following injuries. As per the provisional injury certificate dated 27-1-97 at Exh. 65: ---------------------------------------------------------------------------------------------- Sr. No.Type of InjurySize of Injury ----------------------------------------------------------------------------------------------- 1.Abrasion¼ cm x ¼ cm 2.Swelling with-- Tenderness ---------------------------------------------------------------------------------------------- As per the medical examination by Dr. Pagaria (P.W. 17), Deepak Kale (P.W. 15) rickshaw driver had also received the following injuries as per the provisional injury certificate dated 27-1-97 at Exh. 72: ----------------------------------------------------------------------------------------------- Sr. No.Type of InjurySize of Injury ----------------------------------------------------------------------------------------------- 1.Contused½ cm x ½ cm. x Lacerated wound½ cm ----------------------------------------------------------------------------------------------- 10.Dr. Pagaria (P.W. 17), Deepak Kale (P.W. 15) rickshaw driver had also received the following injuries as per the provisional injury certificate dated 27-1-97 at Exh. 72: ----------------------------------------------------------------------------------------------- Sr. No.Type of InjurySize of Injury ----------------------------------------------------------------------------------------------- 1.Contused½ cm x ½ cm. x Lacerated wound½ cm ----------------------------------------------------------------------------------------------- 10.Dr. Shrikrishna Bhalchandra (P.W. 16) Associate Professor in forensic laboratory department of the Government Medical College (Ghati hospital) had stated before the trial Court that the cause of death of Avinash was due to shock and hemorrhage caused due to multiple wounds. Injury Nos. 1 and 2 and corresponding injuries were necessarily fatal in causing death and injuries 1 to 7 were caused on assault inflicted by sharp weapons-double aged as well as single aged. Thus it was duly proved that Avinash met with a homicidal death and the defence has not challenged the same. Dr. Umesh Takalkar (P.W. 22) who had operated Deepak Salve (P.W. 3) stated that he had seen injuries mentioned in Exh. 64 for performing operation. The injuries on the abdomen and on the right side of the chest on auxila were concentrated. The injury on the right side of the abdomen was due to sharp pointed weapon and both the injuries were grievous in nature and were such that there was little of external bleeding with maximum of internal bleeding. In the absence of medical aid the patient could not have survived. For causing these injuries, pointed, sharp and dangerous weapon was used. This evidence therefore proves that if Deepak Salve (P.W. 3) had not received medical treatment in time, injuries sustained by him could have been fatal and could have resulted in his death. 11.Before we proceed to consider the evidence further, we must at this stage note down certain well established position in our Criminal Jurisprudence. The doctrine of "Falsus in uno, falsus in omnibus" is either a sound Rule of law nor a rule of practice, as has been held in the case of (Uqur Ahir other v. State of Bihar)1, A.I.R. 1965 S.C. 277. A solitary witness to base conviction even though a close relation can be relied upon as an eye-witness if his testimony is supported by the medical evidence and other corroborating circumstances. A solitary witness to base conviction even though a close relation can be relied upon as an eye-witness if his testimony is supported by the medical evidence and other corroborating circumstances. The testimony of interested witness cannot be discarded per se and if the same is supported by other evidence on record, relationship is not a factor to affect credibility of a witness and the Court has to adopt a careful approach and analyse the evidence to find out whether it was coget and reliable (Surinder Sing another v. State of U.P.)2, 2003(7) Supreme 562 . As a general rule a Court can and may act on testimony of a single witness provided he is wholly reliable. Unless medical evidence goes so for that it completely Rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be turned down on the ground of alleged inconsistency between it and the medical evidence (Solanki Chimanbhai Ukabhai v. State of Gujarat)3, reported in A.I.R. 1983 S.C. 484. In (State of U.P. v. Krishna Gopal another)4, reported in A.I.R. 1988 S.C. 2154. If witnesses examined by prosecution are believed by the Court in proof of guilt of accused beyond reasonable doubt, the question of obligation of prosecution to explain injury sustained by accused will not arise (Lakshmi Singh others v. State of Bihar)5, reported in 1976(4) S.C.C. 394 , (Surendra Paswan v. State of Jharkhand)6, reported in 2003(8) S.C.476. Section 34 of I.P.C. lays down a principle of joint liability in the doing of criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from the conduct or from circumstances or from any incriminating facts. It requires pre-arranged plan and it pre-supposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It requires pre-arranged plan and it pre-supposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or pre-meditated concert. 12.Pandharinath (P.W. 2) in his deposition before the trial Court confirmed that F.I.R. Exh. 58 was lodged by him with the Kranti Chowk Police Station on 27-1-1997. Regarding first incident he stated that Deepak Salve (P.W. 3) rickshaw driver and resident of Kranti Nagar was know to him. At about 13 hours on 27-1-1997 he was in the company of Vijay, Prakash and Arun infront of Sheetal hotel and they were to take tea. At that time they had seen a crowd assembled near the A.D.C.C. bank and therefore they went to the spot to find out what had happened. He had seen that Deepak Salve was being beaten up by Vinod (accused 5) and Manoj (accused No. 10). He tried to intervene alongwith others and Deepak had sustained bleeding injuries on his mouth and nose. His rickshaw was lying near the scene of offence. After the incident Deepak went to Kranti Chowk Police Station and witness followed him. After some time, Bharat Salve, the brother of Deepak also reached the Police Station. They narrated the incident to the police sub-inspector who directed them first to go to the hospital. He and Bharat took Deepak Salve to the Ghati hospital in a rickshaw belonging to Deepak Kale (P.W. 15). Deepak was examined and treated by medical officer and he alongwith Deepak returned from the medical college in the same rickshaw which was kept waiting whereas Bharat Salve went to the Police Station to hand over the duplicate of a medical slip. When the rickshaw came near the signal infront of the District Court, about 8 to 10 persons gheraoed the rickshaw (both male and female). Dhiraj accused No. 1 alongwith these persons pulled them out of the rickshaw and started beating them. Dhiraj inflicted injuries with knife on Deepak Salve and 2 other persons viz. Suresh and Raju were also possessing knives. Dhiraj gave first blow causing injury on the lips of Pandharinath. Dhiraj accused No. 1 alongwith these persons pulled them out of the rickshaw and started beating them. Dhiraj inflicted injuries with knife on Deepak Salve and 2 other persons viz. Suresh and Raju were also possessing knives. Dhiraj gave first blow causing injury on the lips of Pandharinath. House of Deepak was about 100 to 150 feet away from the scene of offence. While Deepak was being assaulted Avinash Salve rushed to the spot to rescue him and he was also attacked by accused No. 1 Dhiraj with knife causing injury on his chest and abdomen as well as neck and Avinash fell down. Women accused were pelting stones and in the mean time police van rushed to the spot. Avinash and Deepak had fallen unconscious and he alongwith these 2 persons was immediately taken in the van and moved to the Ghati hospital. The complaint (Exhibit 58) was lodged by him at about 3.30 p.m. Muddemal article No. 14 was in possession of Suresh, Muddemal Article No. 15 was in possession of Dhiraj, while Article 34 was in possession of Raju. Other accused namely Ramesh, Avinash and Vijay were also in possession of knives while others were holding stones and all other persons possession knife/knives had used the same. The second incidence had lasted for about few minutes and a mob of about 200 persons had assembled there. He had sustained injury on account of pelting of stone and Dhiraj-accused No. 1 had given a fight on his cheek. When the police had arrived on the scene, the second incident was already over. He came to know the names of the other accused after he had lodged the complaint but the names of Manoj, Vinod and accused No. 1 were known to him at the time of filing the complaint and more particularly because accused No. 1 was a sitting Corporator of the Aurangabad Municipal Corporation. He had seen the accused Vinod and Manoj beating Deepak in front of the A.D.C.C. Bank during the first incidence. 13.Deepak Salve (P.W. 3), a rickshaw driver, admitted that he knew Pandharinath, Arun and Vijay as they were the residents of his locality while Prakash Nikalje was a resident of Eknathnagar and was a sitting Corporator. He had seen the accused Vinod and Manoj beating Deepak in front of the A.D.C.C. Bank during the first incidence. 13.Deepak Salve (P.W. 3), a rickshaw driver, admitted that he knew Pandharinath, Arun and Vijay as they were the residents of his locality while Prakash Nikalje was a resident of Eknathnagar and was a sitting Corporator. He had left a passenger in front of Manmandir Travel Agency and he wanted to take a "U" turn in front of the A.D.C.C. Bank so as to return towards the District Court side. The rickshaw, which was before him, took suddenly a right turn without signal and a scooter rider immediately applied brakes and both the riders fell down. They pulled him out of the rickshaw and questioned him "Kyon Mara" and started beating him, as a result of which, blood was oozing from his nose and mouth. Some persons gathered at the scene and Pandharinath, Arun Borde and Vijay Khandagale as well as Prakash Nikalje had come to the spot. He went running to the Police Station Kranti Chowk and was followed by his brother Bharat Salve (P.W. 5) and Pandharinath (P.W. 2). He could not speak properly when he went to the Police Station and was directed to go to the Ghati hospital. Along with Pandharinath and Bharat he went to Ghati hospital in the rickshaw of Deepak Kale (P.W. 15). He was in the hospital for about half an hour and the rickshaw driver was told to wait. After the medical treatment he was returning home along with Pandharinath in the same rickshaw while Bharat went to the Police Station to return the copy of the memo. When the rickshaw came near the signal, adjacent to the District Court gate, 2-3 persons caught hold of the rickshaw and they started calling for accused Nos. 1 to 5 and 10 to 13 so as to caught hold of him and beat him as he was the same person who had hit the scooter earlier. The persons who had caught hold the rickshaw were Manoj and Vinod. 1 to 5 and 10 to 13 so as to caught hold of him and beat him as he was the same person who had hit the scooter earlier. The persons who had caught hold the rickshaw were Manoj and Vinod. Two of the three accused persons were having knives while accused Dhiraj was having small sword and the woman standing nearby started calling as "Bhaiya, Isko Maro Maro Chhodana Nahin" Dhiraj, Suresh, Vinod, Manoj and others started assaulting him with knives and sword and gave blows to him in his stomach, chest, right side of the chest, two blows on the left and right hand arms. At that time his younger brother Avinash Salve came to separate and was assaulted by Dhiraj, Suresh, Ajay and Raju. Avinash had sustained injuries on his stomach, both sides of his chest and the spinal cord. The names of the first two persons, who had assaulted him earlier were known to him as they were called out. He identified the weapons used by each of the accused. Muddemal article 34 was in possession of accused Raju and he had assaulted him and Avinash and Muddemal article 14 was in possession of Suresh. All other accused were in possession of knives, Muddemal article Nos. 5 and 6 were the clothes of deceased Avinash while Muddemal article Nos. 22 to 24 were the cloths belonging to him and they were worn by him and Avinash. Accused Vinod was wearing at the time of incident yellow shirt and light brick coloured pant while Dhiraj was wearing Safari of light grey colour. He could not remember the dress of others. The clothes of the accused were bloodstained. He identified the accused in the Court. The second incident had lasted for about 5 to 6 minutes before he fell unconscious. He denied the suggestion that he was deposing falsely and the accused Vinod and Manoj did not assault him near the A.D.C.C. Bank. The spot Panchanama (Exhibit 60) was admitted by defence and so was the case with the medical certificates. The communication dated 12th February, 1997, addressed by Dr. Takalkar (P.W. 22) to the Police Inspector Kranti Chowk Police Station (Exhibit 68) has also been admitted by the defence and this was regarding the injuries caused to Deepak. The spot Panchanama (Exhibit 60) was admitted by defence and so was the case with the medical certificates. The communication dated 12th February, 1997, addressed by Dr. Takalkar (P.W. 22) to the Police Inspector Kranti Chowk Police Station (Exhibit 68) has also been admitted by the defence and this was regarding the injuries caused to Deepak. It was stated in the said certificate that the injuries so caused were possible by the weapons articles 14, 15 and 34. 14.Seizure of the clothes of accused No.1 Dhiraj and accused No. 5 Vinod under Panchanama at Exhibit 78 was proved by the evidence of Kishor Thorat (P.W. 8) The seizure of the clothes of accused No. 10 Manoj under Panchanama at Exhibit 80 was proved by the depositions of Murlidhar Dolas (P.W. 9). 15.The learned Additional Sessions Judge, by referring to the depositions of Pandharinath (P.W. 2) and Deepak Salve (P.W. 3) held that the incidence of assault near Sheetal hotel had taken place on 27th January, 1997 but the evidence of Pandharinath, as far as identity of accused was concerned, was doubtful and could not be accepted. Similarly, it was observed that the direct evidence of Deepak Salve (P.W. 3) could not be of much help to identify the persons who had assaulted him as the cross-examination revealed that he did not know any of the accused who had assaulted him. This reasoning given by the learned Additional Sessions Judge cannot be accepted. We have briefly discussed the depositions of these two witnesses and there can be no doubt about the first incidence in which Deepak was assaulted. The presence of Pandharinath at the spot of first incidence has been supported by Deepak (P.W. 3), Prakash (P.W. 4), Vijay (P.W. 6) and Arun (P.W. 7). In addition, Bharat (P.W. 5), who is a very natural witness, has also confirmed that Pandharinath followed Deepak Salve to the Police Station and all the three of them had gone to the Ghati hospital in the rickshaw of Deepak Kale (P.W. 15). This Deepak Kale (P.W. 15) has also confirmed the sequence of events and that too right up to the second incidence. Deepak Kale was injured in the second incidence. His injury certificate is on record. His evidence does not appear to be tainted by any exaggerations. This Deepak Kale (P.W. 15) has also confirmed the sequence of events and that too right up to the second incidence. Deepak Kale was injured in the second incidence. His injury certificate is on record. His evidence does not appear to be tainted by any exaggerations. Pandharinath (P.W. 2) has furnished the explanation regarding his knowledge of the names of Vinod and Manoj and similar explanation has been brought out by Deepak Salve (P.W. 3) as well. The name of accused No. 1 was known to them as he was a Corporator (a public figure). P.W. 26 Landge also confirmed in his deposition that immediately after first incidence Vinod, Manoj and Dhiraj had visited the Police Station and insisted for the arrest of the rickshaw driver i.e. Deepak Salve (P.W. 3). It is possible that these two witnesses were not knowing the names of all the accused when the second incident had taken place but as far as the names of accused No. 1, accused No. 5 and accused No. 10 are concerned it cannot be held that they were unaware of their names when the second incident had taken place. We, therefore, do not agree with the view taken by the learned Additional Sessions Judge in discarding the evidence of these two witnesses in identifying the appellant Nos. 1, 2 and 3 and they will have to be treated as the eye-witnesses, more so when they were injured witnesses. The omissions, which were sought to be brought on record by the defence, were, in our considered opinion, inconsequential and they were not in respect of material particulars. Contradictions of any consequence have not been noticed and improvisations in respect of the present appellants are not seen in the testimony of these two witnesses. 16.Coming to the case of appellant No. 1 Dhiraj, the learned Additional Sessions Court has accepted and relied upon the testimony of Prakash (P.W. 4), Vijay (P.W. 6) and Arun (P.W. 7) in identifying his role and we agree with the same view. The reasoning given by the trial Court in support of this finding does not suffer from any infirmities more so when three of the accused were picked up from the spot of second incidence by the police and that too two of them in injured conditions. The reasoning given by the trial Court in support of this finding does not suffer from any infirmities more so when three of the accused were picked up from the spot of second incidence by the police and that too two of them in injured conditions. It is true that the recovery or discovery of the weapons i.e. articles 14 and 15 has been doubtful but that itself would not be fatal to the prosecution case so long as the medical evidence corroborates the ocular evidence. Pandharinath (P.W. 2), Deepak Salve (P.W. 3), Prakash (P.W. 4), Vijay (P.W. 6) and Arun (P.W. 7) will have to be treated to be as eye-witnesses for both the incidents and if so examined it is clear that all these five witnesses have identified the accused No. 1 and specifically stated the part played by him in the attack on Avinash and Deepak and that too with the weapon like article 15. Prakash (P.W. 4) went to the extent of saying that he caught hold of Dhiraj as he was fleeing away after seeing the police van from the spot of second incidence and this statement has been supported by Vijay (P.W. 6). It is also in the depositions of all these witnesses that there was no animosity between Accused No. 1 on one hand and these witnesses or any one of them on other hand. The contention that the Accused No. 1 being a Corporator was trying to be implicated falsely by these witnesses has to be brushed aside. The evidence of these five witnesses regarding the participation of Dhiraj in the assault on Deepak and Avinash is consistent and reliable. His presence on the spot was proved by his own statement recorded under section 313 of Criminal Procedure Code and in reply to question No. 65. The said question and answer given by Dhiraj are reproduced herein below : "Q. No. 65 : Do you want to state anything more? Ans. I had come to Dist. Court to attend case. I saw crowed, I went there at that time I was beaten and I fell unconscious. False case is filed." So far as his presence in the Police Station, after the first incidence had taken place is concerned, the same has been supported by the evidence of Inspector Landge (P.W. 26). I had come to Dist. Court to attend case. I saw crowed, I went there at that time I was beaten and I fell unconscious. False case is filed." So far as his presence in the Police Station, after the first incidence had taken place is concerned, the same has been supported by the evidence of Inspector Landge (P.W. 26). His clothes i.e. safari suit (Exhibit 1 and 2) were seized and sent for chemical analysis and the C.A. report stated that the shirt was stained with blood of group "A" and "B". Whereas the trouser was stained with blood of group "A". Exhibit 151 shows that the blood group of deceased Avinash was "B" whereas the blood group of Deepak (P.W. 3) is "A" as per Exhibit 165. Similarly, the blood group of the appellant Dhiraj was detected to be "B" as per Exhibits 153 and 171. The eye-witnesses specifically stated that Dhiraj assaulted first Deepak on his abdomen and when Avinash tried to intervene he was also treated in the same manner and Dhiraj inflicted blows with the dagger on his abdomen, chest, spinal cord. The nature of the injuries, as described by Dr. Bhalchandra (P.W. 16) clearly indicate that they could be attributed to the weapon as was used by Dhiraj in the assault. In the case of (Lakhan Sao v. State of Bihar another)7, A.I.R. 2000 S.C. 2063, the recovery of the weapon i.e. pistol or the spent cartridges was not proved but there was direct evidence available. It was held that the non-recovery of the pistol or spent cartridges did not detract from the case of the prosecution where the direct evidence was acceptable and, therefore, in the instant case even if the recovery of Article 15 has not been duly proved, that would not affect the case of the prosecution in bringing home the guilt on the part of Dhiraj. While in the witness box Pandharinath and Deepak were specifically questioned in their cross-examination regarding the use of weapon by Dhiraj and by looking at Article 15 they firmly stated that he had used such a weapon while assaulting Deepak as well as Avinash. While in the witness box Pandharinath and Deepak were specifically questioned in their cross-examination regarding the use of weapon by Dhiraj and by looking at Article 15 they firmly stated that he had used such a weapon while assaulting Deepak as well as Avinash. Having regards to the consistent testimony of these five witnesses regarding the role of Dhiraj in the assault on Avinash and Deepak Salve (P.W. 3), We have no hesitation to confirm the findings of conviction recorded by the trial Court for an offence punishable under section 302 read with section 34 of the Indian Penal Code in causing the death of Avinash and section 307 read with section 34 of the Indian Penal Code in causing grievous injuries to Deepak Salve (P.W. 3) with an intention to cause his death. The trouser of Dhiraj, which was seized, was stained with blood of group "A" which is of Deepak and the blood group of Dhiraj is "B". The grounds elaborately set out by Shri Kanade, the learned Counsel for Dhiraj in attacking the impugned order of conviction and sentence do not impress us and the said order is based on cogent, consistent and reliable testimony of five eye-witnesses supported by the medical evidence as well as the chemical analysers report. 17.Once we have accepted that the prosecution case is supported by five eye-witnesses, the involvement of the other appellants in the crime will have to be examined on the basis of their testimony as well as the medical evidence and the C.A. report. It is well established, and the defence does not seriously dispute, that the first incidence that had taken place was on account of a dash to the scooter of Vinod and Manoj by an autorickshaw and it was claimed that it was the autorickshaw driven by Deepak Salve (P.W. 3). Pandharinath (P.W. 2), Prakash (P.W. 4), Vijay (P.W. 6) and Arun (P.W. 7) had also come at the scene of the first offence while Deepak Salve was assaulted. They had, thus, seen these two accused at the very first occasion at about 1.00 to 1.30 p.m. on 27th January, 1997. Pandharinath (P.W. 2), Prakash (P.W. 4), Vijay (P.W. 6) and Arun (P.W. 7) had also come at the scene of the first offence while Deepak Salve was assaulted. They had, thus, seen these two accused at the very first occasion at about 1.00 to 1.30 p.m. on 27th January, 1997. When Deepak Salve (P.W. 3) and Pandharinath (P.W. 2) were returning from the Ghati hospital in the rickshaw of Deepak Kale (P.W. 15), it has come in the testimony of Pandharinath (P.W. 2) as well as Deepak (P.W. 3) that the rickshaw was dropped by Vinod and Manoj, they were dragged out of the rickshaw by them and they called for accused No. 1 and other 8 to 10 persons saying that "Kyon Mara". Pandharinath (P.W. 2) has stated in his depositions that Vinod was in possession of knife alongwith Ajay, Suresh and Raju and all of them had used the knives. He had seen Vinod and Manoj beating Deepak in front of the A.D.C.C. Bank. The next witness Deepak Salve (P.W. 3) stated that the persons who had caught hold of the rickshaw were Manoj and Vinod. Vinod, Manoj and Dhiraj started assaulting him with knives. He had described the clothes worn by Vinod which were stained with blood in the second incidence. It would be unsafe to believe that these witnesses did not have sufficient time or opportunity to identify these two appellants i.e. Vinod and Manoj. The testimony of these two witnesses has been supported by the other three witnesses viz. Prakash (P.W. 4), Vijay (P.W. 6) and Arun (P.W .7)Prakash (P.W. 4) stated in his depositions that Manoj accused No. 10 had inflicted knife blows on Deepak. However, none of these witnesses have attributed any participation or any overt or covert act by Vinod and Manoj in the assault on deceased Avinash though it is proved beyond doubt that they assaulted Deepak Salve (P.W. 3) with weapon like knife in the second incidence. It is also not proved by the evidence of all these witnesses that any of them had used a weapon like articles 14, 15 and 34. Both of them were picked up from the spot and Vinod had sustained injuries in the second incidence. Clothes of Vinod were bloodstained with blood group "B". It is also not proved by the evidence of all these witnesses that any of them had used a weapon like articles 14, 15 and 34. Both of them were picked up from the spot and Vinod had sustained injuries in the second incidence. Clothes of Vinod were bloodstained with blood group "B". His shirt (article 18) was found to have blood of group "A" and "B" whereas his trouser (article 19) was found stained with blood of group "B". The other circumstantial evidence also does not relate to these two accused to the assault on deceased Avinash and the appearance of blood of group "A" on his shirt further confirms his participation in assaulting Deepak Salve (P.W. 3). The reasoning given by the trial Court in convicting these two accused-appellants for an offence resulting into the death of Avinash is, therefore, unsustainable as it is not supported by either the ocular evidence or circumstantial evidence. In the second incidence, no doubt there was an attack mainly on two brothers but it does not mean that each of the assailants attacked both of them unless such an event was supported by the evidence on record. They had known Deepak Salve as the rickshaw driver who had dashed the scooter and there was some altercation between the two parties after the first incidence. They were waiting for Deepak to come back from the Ghati hospital and when the assault on Deepak was unleashed by these accused along with others Avinash happened to intervene as he was standing nearby. We have already held that Dhiraj-accused No. 1 was one of the main assailants of Avinash and for the acts of other accused these two appellants cannot be convicted with the aid of section 34 of Indian Penal Code. We, therefore, hold that the appellants Vinod and Manoj are guilty of an offence punishable under section 307 read with section 34 as well as section 341 read with section 34 of the Indian Penal Code. But their conviction and sentence under section 302 read with section 34 of Indian Penal Code is not sustainable and the same deserves to be quashed and set aside. But their conviction and sentence under section 302 read with section 34 of Indian Penal Code is not sustainable and the same deserves to be quashed and set aside. 18.Now, coming to the case of appellant-Raju (accused No. 12) the evidence against him is direct and it has come in the evidence of Deepak Salve that Raju assaulted deceased Avinash with a knife/sword as appearing like Article 34 and Pandharinath (P.W. 2) has confirmed the presence of Raju at the second incidence with knife in his hand. Arun (P.W. 7) has also specifically stated about assault by Raju on Deepak (P.W. 3) by the knife. Raju had managed to flee from the place of occurrence. He was not tracable for few days and ultimately was nabbed in Mumbai in the night of 2nd February 1997. The discovery of the weapon (Article 34) at his instance has been duly proved. Article 34 as per the C.A. report, is stained with blood of group "B" while the appellants blood group was detected to be "O" as per Exhibit 170-A. Deceased Avinash belonged to group "B". Dr. Bhalchandra (P.W. 16) had stated that injury Nos. 1 and 2 found on the body of Avinash were possible by Muddemal article 34, while injury Nos. 3 and 4 were possible by Muddemal article 15 as well as 34. Article 34 was seen by us and it happens to be a sharp edged knife. Deceased Avinash suffered multiple blows at the hands of the assailants. Injury Nos. 1 to 7 were inflicted on the person of Avinash by these weapons as per the opinion of the doctor and injury Nos. 1 to 4 were inflicted in the standing position. Injury Nos. 1 and 2 and corresponding injuries were necessarily fatal in causing death. Deepak Salve (P.W. 3) and Arun (P.W. 7) clearly stated before the trial Court, on seeing the weapon Muddemal Article 34 that Raju had inflicted blows with the same on Avinash and Deepak. It is, thus, proved that Raju had inflicted blows with the knife on Avinash as well as Deepak along with the blows inflicted by Dhiraj accused No. 1 and, therefore, he has also contributed to the death of Avinash along with Dhiraj. The evidence of Dr. Bhalchandra supports this finding. It is, thus, proved that Raju had inflicted blows with the knife on Avinash as well as Deepak along with the blows inflicted by Dhiraj accused No. 1 and, therefore, he has also contributed to the death of Avinash along with Dhiraj. The evidence of Dr. Bhalchandra supports this finding. His conviction and sentence recorded by the learned Additional Sessions Judge is required to be upheld for all the offences i.e. offences punishable under section 302 read with section 34, section 307 read with section 34 and section 341 read with section 34 of the Indian Penal Code. 19.On the point of intentions of the accused/appellants, the learned Counsel had exhaustively argued before us, in their last plea of converting the conviction under section 302 read with 34 Indian Penal Code into section 304 Part II read with section 34 Indian Penal Code as far as accused Dhiraj and Raju are concerned. We have given our anxious considerations to these argument but they do not commend to us. If there is an attack on the spur of the moment and has resulted into a single blow even if proved fatal one could safely base the conviction under section 304 Part I or Part II of Indian Penal Code. In the instant case, Avinash had suffered multiple blows and they were collectively held to be the cause of death as has appeared in the testimony of Dr. Bhalchandra (P.W. 16), if the intention of these two accused was only to cause hurt or to teach a lesson to Deepak, such an intention does not reflect in their acts viz . the multiple blows inflicted with weapons on the person of Avinash. Injury Nos. 1 to 4 were suffered by Avinash while he was in the standing position and injury No. 4 was on the spinal cord which clearly means that the weapons were used mercilessly on his person and not once but repeatedly till he collapsed. Such common intention could be developed even at the spot so long as the second incidence had some history and it was not an incidence in isolation. The role played by Dhiraj appears to us as that of leading the attack and he was certainly on the forefront. Such common intention could be developed even at the spot so long as the second incidence had some history and it was not an incidence in isolation. The role played by Dhiraj appears to us as that of leading the attack and he was certainly on the forefront. Inspite of the advice of the Police Inspector to take Vinod and Manoj to the hospital for deciding the nature of injuries so as to record a complaint against the rickshaw driver, Dhiraj did not take them to the hospital and instead he was waiting on the spot of second incidence along with other accused and in possession of weapon. His intentions, as demonstrated, were writ large. These accused are related to each other while Vinod and Manoj are real brothers. Raju appears to be their cousin and accused No. 1 is related to them from the maternal side. In para 11 of its judgment in the case of (Surendra Chauhan v. State of M.P.)8, A.I.R. 2000 S.C. 1436, the Supreme Court analysed the ambit of section 34 in the following words : "11. Under section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating of promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of section 34 is simultaneous consensus of minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. ...... The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. ...... To apply section 34 I.P.C. apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. The common intention can develop even during the course of an occurrence. ...... To apply section 34 I.P.C. apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, section 34 cannot be invoked, in every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case." 20.The learned Counsel for the accused Nos. 5 and 10, in the alternative, urged to reduce the sentence from 7 years to 5 years, as awarded by the trial Court for the offence punishable under section 307 read with section 34 of the Indian Penal Code. We have noticed that the involvement of these accused in the second incident is connected with the first incidence in which they themselves were involved and the attack inflicted by them on Deepak Salve (P.W. 3) is, thus, pre-intended and it is not at the spur of the moment. We have also noticed that the trial Court has considered the relevant circumstances to impose a sentence of 7 years R.I. The approach of the trial Court does not suffer from any infirmities and, thus, the order of sentence requires to be confirmed in respect of Accused Nos. 5 and 10. 21.In the result, the Appeal No. 101 of 1999 is dismissed and the order of conviction and sentenced dated 16th February, 1999, as passed by the learned Additional Sessions Judge, Aurangabad in Sessions Case No. 112 of 1997 against accused Dhiraj s/o Shantilal Khakordia is hereby confirmed. Appeal No. 11 of 2004 is partly allowed and the order of conviction and sentence dated 16th February, 1999 passed by the learned Additional Sessions Judge. Appeal No. 11 of 2004 is partly allowed and the order of conviction and sentence dated 16th February, 1999 passed by the learned Additional Sessions Judge. Aurangabad in Sessions Case No. 112 of 1997 against accused Vinod s/o Shailesh Bhojayya and Manoj s/o Shailesh Bhojayya for offence punishable under section 302 read with section 34 of the Indian Penal Code is hereby quashed and set aside while the order of their conviction under section 307 read with section 34, as well as for offence under section 341 read with section 34 of the Indian Penal Code is hereby confirmed. The order of conviction and passed against accused Raju s/o Dolya Dammadevashi Bhojayya, as passed by order dated 16th February, 1999 by the learned Additional Sessions Judge in Sessions Case No. 112 of 1997 is hereby confirmed. The bail granted to the appellants in Appeal No. 11 of 2004 is hereby cancelled and the accused shall surrender immediately to undergo the sentence. It is clarified that the sentence passed against accused Dhiraj s/o Shantilal Khakordia and accused Raju s/o Dolya Dammadevashi Bhojayya for difference offences, shall run concurrently. We direct the warrant of arrest to be issued against accused Dhiraj s/o Shantilal Khakordia and the police shall arrest and commit him to the Central Prison. Harsul undergoing the sentence forthwith. Order accordingly.