Judgment M.L.Visa, J. 1. Both these appeals, directed against the same judgment and order dated 9.12.1987 passed, by Ilnd Additional Sessions Judge in Sessions Trial No. 123 of 1986, have been heard together and are being disposed of by this common judgment. Appellant Pappu Lal @ Manoj Kumar Shrivastava of criminal appeal No. 649 of 1987 has been convicted and sentenced to undergo life imprisonment under Section 302 of Indian Penal Code (in short IPC) and appellant Lakhan Lal of Criminal appeal No. 14 of 1988 has been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 34 of IPC. 2. The case of prosecution, in short, is that on 9.5.1985 at about 8.15 p.m., the informant Lakhan Choudhary (PW 3) alongwith his wife Sumandar Devi (PW 2) and his deceased son Surender Choudhary was in his house and the door of his house was open. Appellant Pappu Lal, armed with a chhura (dagger) and appellant Lakhan Lal armed with a countrymade pistol, entered the house of informant and demanded keys of a box from deceased Surendra Choudhary who refused to hand over keys to them, Appellant Lakhan Lal, showing revolver, caught hold of deceased Surendra Choudhary and appellant Pappu Lal gave a chhura blow on the right side of chest of deceased Surendra Choudhary as a result of which he fell down and both the appellants fled away. On hulla, a number of persons from the mohalla came and they also saw the appellants running away. The deceased son of informant was brought to Buxar Sub-divisional Hospital for treatment where he died before recording the fardbeyan (Exhibit-4) of informant at 10.25 p.m. on the same day. The police after investigation, submitted charge-sheet against both the appellants who were put on trial and charges under Sections 302 and 394, IPC were framed against both of them. After trial, the Court below found that the charge under Section 394, IPC was not established but it found appellant Pappu Lal guilty under Section 302, IPC and appellant Lakhan Lal under Section 302/34 of IPC and convicted and sentenced them as indicated above. Before the Court below, the appellants denied the charges and pleaded not guilty. After trial, the Court below found that the charge under Section 394, IPC was not established but it found appellant Pappu Lal guilty under Section 302, IPC and appellant Lakhan Lal under Section 302/34 of IPC and convicted and sentenced them as indicated above. Before the Court below, the appellants denied the charges and pleaded not guilty. Their case, as it appears from the trend of cross-examination of informant, was, that they had been falsely implicated in this case at the instance of Police because there was litigation between Police and one Binod Kumar, brother of appellant Pappu Lal. No witness was examined on behalf of the appellants. 3. It will not be out of place to mention here that this appeal was earlier decided by this Court by appointing an amicus curiae for the appellants because on the date of hearing of appeals, no body appeared for the appellants. Against the judgment of this Court, the appellant Lakhan Lal preferred criminal appeal No. 975 of 2003 before the Apex Court and the Apex Court, by its order dated 11.8.2003, remitted the appeal back to this Court for disposal on merit observing that proper time should have been given to the appellant to engage his own advocate and even if amicus was to be appointed, proper time should have been given to prepare the matter. This time, advocates on behalf of both the appellants have appeared and giving them time to their satisfaction for preparation and hearing them, this judgment is being passed. 4. In order to prove its case, the prosecution has examined six witnesses. Lakhan Choudhary (PW 3) is the father of deceased. Malti Kumari (PW 1) and Sumantar Devi (PW 2) are wife and mother respectively of deceased. Jageshwar Choudhary (PW 4) is a witness on the inquest report. Dr. R.P. Jaiswal is the doctor who had held post-mortem examination on the dead body of deceased and Tarkeshwar Prasad (PW 6) is a formal witness who has proved the formal first information report (Exhibit-3), fardbeyan of informant (Exhibit-4), inquest report (Exhibit-5) and case diary (Exhibit-6). 5. Dr. R.P. Jaiswal (PW 5), in his evidence, has said that on 10.5.1985 at about 8.30 a.m. while posted as Civil Assistant Surgeon at Buxar Sub-divisional Hospital, he held post-mortem examination over the dead body of Surendra Choudhary, son. 5. Dr. R.P. Jaiswal (PW 5), in his evidence, has said that on 10.5.1985 at about 8.30 a.m. while posted as Civil Assistant Surgeon at Buxar Sub-divisional Hospital, he held post-mortem examination over the dead body of Surendra Choudhary, son. of informant and found the following ante-mortem injuries on his person : (1) One stitched wound over the right clavicle region in the mid clavicular line. (2) After removal of the stitch, one incised wound 1" x 1/2" x thorastic cavity deep (perforated, margin clear) was found over the right supra clavicle region in mid clavicular line. The clothes of deceased were besmeared with blood. He has further stated that on dissection, he found the following : (1) Extensive, subentaneous echomos is present, (2) The carotid artery and gular vein, both perforated and upper portion of the right lung perforated. Right thorasic cavity was containing about four to six ounces of dark blood and blood clots. Rigor mortis was present on all over the limbs. Liver spleen, kidney pale and bladder was empty. According to him, the cause of death was shock and haemorrhage as a result of above injuries caused by sharp cutting penetrating substance such as chhura (dagger) and time elapsed since death was within twelve to eighteen hours. He has proved post-mortem examination report which is in his pen and signature (Exhibit-2). From his evidence, it is proved that the death of deceased was homicidal. Now it has to be seen whether the prosecution has proved the charge of murder of deceased against the appellants. 6 Lakhan Choudhary (PW 3), the informant has said- that on the day of occurrence, he and his deceased son were in their house and a tape recorder was playing and there was electric light when both the appellants came. Appellant Lakhan was armed with pistol and appellant Pappu was armed with a dagger and appellant Lakhan Lal demanded keys of box from his deceased son and when his deceased son replied that he was not keeping the keys, appellant Lakhan, showing a pistol, caught hold of deceased from behind and appellant Pappu Lal gave a chhura blow on the right side of chest of deceased. After receiving the injuries, deceased moved towards south and sat down near staircase and both the appellants fled away. He has further said that he took his deceased son to hospital but his son died. After receiving the injuries, deceased moved towards south and sat down near staircase and both the appellants fled away. He has further said that he took his deceased son to hospital but his son died. He has further alleged that appellants took away tape-recorder from his house. About the motive of occurrence, he has said that two to three days prior to occurrence, both the appellants came to his toddy shop, took toddy but on demand of price of toddy, they did not pay and when his deceased son insisted for payment, they assaulted his son and had given him threatening that he would not be allowed to live. He identified both the appellants in Court and has further said that his fardbeyan (Exhibit-4) was recorded by the Police at hospital. Malti Kumari (PW 1), wife of deceased, supporting the evidence of informant, has stated that on the day of occurrence at about 8.15 p.m., she was in her room alongwith her deceased husband and in-laws and her deceased husband, at that time, was playing a tape-recorder and the door of the room, in which they were sitting, was open and both the appellants, who were known to her from before, came there and there was electric light in the room and appellant Lakhan Lal was armed with a pistol and Pappu Lal with a dagger. She has said that by putting pistol on her deceased husband, appellant Lakhan demanded keys of box and when her husband replied that keys were not with him, appellant Lakhan caught hold of arm of her husband and appellant Pappu Lal gave a chhura blow on right side of the chest and after receiving injury, her deceased husband went towards staircase and sat down. She has further said that both the appellants; after taking taperecorder, fled away. About motive, she has given the same as given by informant that two to three days prior to occurrence, both the appellants, after taking toddy from the shop of her husband, had not given him the money and some altercation took, place on that day. According to her, her husband died because of injury sustained by him. She has also identified both the appellants in Court. According to her, her husband died because of injury sustained by him. She has also identified both the appellants in Court. Sumantar Devi (PW 2), mother of deceased, has also said that at the time of occurrence, she, alongwith her deceased son, husband and daughter-in-law was in her house and her son was playing a taperecorder and both the appellants came and appellant Lakhan was armed with pistol and appellant Pappu Lal with a dagger and appellants demanded keys of box from her son and when her son replied that the keys were not with him, appellant Lakhan caught hold of deceased from behind and appellant Pappu Lal gave chhura blow on the chest of her son. About the motive, she has also said that prior to occurrence, some altercation has taken place between her son and husband on one side and appellants on other side on account of price of toddy and appellants gave them threatening and this fact was told to her by her husband. She has also said that her son was taken to hospital by his wife and her husband but her son died. 7. It has been argued on behalf of both the appellants that Dr. R.P. Jaiswal (PW 5) who held post-mortem examination on the dead body of deceased, in his evidence, has said that on examination of the dead body, he found one stitched wound over the right supra clavicle region in the mid clavicular line and according to him, he held post-mortem examination on 10.5.1985 at 8.30 a.m. and in cross-examination, he has deposed that he saw the dead body for the first time on 9.5.1985 at 10.45 p.m. and there was surgical interference before he saw the dead body. The learned counsel of both the appellants have further argued that this witness in cross- examination has further stated that in case any injury to any internal organ, the outer injury should not be stitched until the internal organ is inspected and treated and on dissection, he found that internal organ had not been stitched or treated. The argument on behalf of appellants is that the prosecution has not explained that where and by whom the wound of deceased was stitched and it suggests that occurrence had taken place somewhere else and deceased was taken to some other place where his wound was stitched and, thereafter, he was brought to hospital. The argument on behalf of appellants is that the prosecution has not explained that where and by whom the wound of deceased was stitched and it suggests that occurrence had taken place somewhere else and deceased was taken to some other place where his wound was stitched and, thereafter, he was brought to hospital. The learned counsel of both the appellants have drawn our attention towards the evidence of informant (PW 3} in the last line of para-1 where he has said that his son died on way to hospital. According to them, this evidence is not believable because the informant has not said that after the death of his deceased son, wound on the dead body was stitched. It is true that informant, in para-1 of his evidence, has said that his son died on way to hospital but then again in para-13 of his evidence he has stated that at hospital, doctors came and after examining his son declared him dead. The occurrence is said to have taken place at about 8.15 p.m. on 9.5.1985. The evidence of Dr. R.P. Jaiswal (PW 5) that he saw the dead body for the first time on 9.5.1985 at 10.45 p.m. when he found the stitched wound on the dead body of deceased suggests that there was practically no delay in taking the deceased to hospital. Admittedly, informant is an illiterate person which is apparent from the fact that he has put his left thumb impression on his fardbeyan (Exhibit-4) and deposition. Simply because he has not been able to explain who had stitched the wound of his son, it cannot be said that whatever he has deposed, that is false. When a patient, on being brought to hospital, is taken to operation theatre on dressing room or emergency ward for giving him immediate treatment, it is not necessary that his attendant or attendants will also be allowed to go there and generally attendant or attendants wait at the waiting place. The question for consideration in this case is not that who had stitched the wound of the deceased. Only question for consideration is what was the cause of death of deceased. About this, the evidence of Dr. The question for consideration in this case is not that who had stitched the wound of the deceased. Only question for consideration is what was the cause of death of deceased. About this, the evidence of Dr. R.P.Jaiswal (PW 5) is very clear where he has said that after removal of stitch, he found one incised wound over the right side of the chest of deceased which, in his opinion, was the cause of death. The informant and the mother and wife of deceased, all in their -evidence, have deposed the manner of occurrence how the deceased received the injury which ultimately resulted in his death. We, therefore, find no substance in the argument advanced on behalf of appellants that because prosecution has not been able to prove who had stitched the wound of deceased, therefore, entire case of prosecution on the manner of occurrence becomes doubtful. 8. The further argument raised on behalf of appellants is that Section 302 of IPC has got no application in this case because if the entire case of prosecution, as produced, is believed even then the intention of appellants was not to commit murder which is apparent from the evidence of prosecution witnesses who all have said that appellants, after entering the house, demanded keys of a box from the deceased. The learned counsel for the appellants have submitted that the aforesaid evidence of prosecution witnesses suggests that intention of appellants was either to commit theft or extortion. The learned counsel for the appellant Lakhan Lal, relying upon a number of cases reported in AIR 1971 Supreme Court 1444; Parshuram Singh V/s. State of Bihar, 2002 (3) East Cr C 19 (SC) : 2002 (1) BBCJ IV-125 and Mithu Singh V/s. State of Punjab, 2001 (2) East Cr C 115 (SC) : 2001 (2) Criminal Law Journal 1820, has further argued that this appellant has been convicted and sentenced under Section 302 read with Section 34 of IPC but then it is the own case of prosecution that this appellant was armed with a pistol but, admittedly, he did not use his pistol in inflicting any injury to the deceased. According to him, in view of this aspect of the case of the prosecution, it cannot be said that this appellant had any common intention with appellant Pappu Lal in committing the murder of deceased. According to him, in view of this aspect of the case of the prosecution, it cannot be said that this appellant had any common intention with appellant Pappu Lal in committing the murder of deceased. We are unable to accept all these arguments advanced on behalf of both the appellants. It is true that in order to prove" that both the appellants shared common intention, the prosecution is required to prove that there was prior meeting of minds of both the appellants but then for proving it, the prosecution is not required to adduce separate evidence because existence of a pre-arranged plan can be very well proved from the conduct of the appellants or from the circumstances of the case. Besides this, common intention may be formed at the spot itself. In this case, we find that there is clear evidence of prosecution witnesses that when deceased replied that he had no keys of box with him, appellant Lakhan Lal caught him from behind and appellant Pappu Lal gave a dagger blow on the chest of deceased which proved fatal. The act of Lakhan Lal in catching hold of deceased from behind was to facilitate appellant Pappu Lal in giving the dagger blow on the chest of deceased. Only appellant Lakhan Lal knows that why he did not use his pistol but it cannot be said that because he was armed with pistol, which he did not use, therefore, he had no intention to kill the deceased. His conduct, in catching hold the deceased by eliminating possibility of any act of deceased to protect the dagger blow given on his chest by appellant Pappu Lal, establishes that he also shared with appellant Pappu Lal the intention to commit the murder of deceased. 9. The last argument on behalf of appellants is that other witnesses named in charge-sheet have not been examined by prosecution and the prosecution has examined only those witnesses who all are relations of deceased and highly interested witnesses and who have tried to develop the case of prosecution by adding the allegation of committing theft. of tape recorder by appellants which is not mentioned in the Jardbeyan (Exhibit-4) of informant. It is true that PWs 1 and 2 have stated that after occurrence, a number of persons came to their house but prosecution has not examined and such person. of tape recorder by appellants which is not mentioned in the Jardbeyan (Exhibit-4) of informant. It is true that PWs 1 and 2 have stated that after occurrence, a number of persons came to their house but prosecution has not examined and such person. The occurrence is said to have taken place in the house of deceased. The three prosecution witnesses, examined by prosecution claiming to be eye-witnesses to the occurrence, are father, mother and wife of deceased. The place and time of occurrence does not give rise to the presence of any outsider in the house. The prosecution witnesses of the occurrence, who have been examined by the prosecution, are own relations of deceased and their presence in the house is quite natural. If the prosecution has not examined any witness who reached after the occurrence when appellants had already fled away, it cannot be a ground for disbelieving the evidence of the prosecution witnesses who have been examined on the ground that they are interested witnesses. On close scrutiny of evidence of prosecution witnesses, we do not find any material contradiction to disbelieve them. So far the question of taking away taperecorder from the house of deceased by appellants is concerned, we find that although evidence has been led on this point but this fact is not mentioned in the Jardbeyan (Exhibit-4) of informant and the Court below on this reason has not found the charge under Section 394 of IPC proved against the appellants. So far charge under Section 302 of IPC is concerned, we find that the same has been proved by the prosecution beyond all reasonable doubts and in our opinion the finding of the Court below convicting and sentencing the appellant Pappu Lal under Section 302 of IPC and appellant Lakhan Lal under Section 302 read with Section 34 of IPC is correct and does not require any interference of this Court. 10. In the result, both the appeals are dismissed and conviction and sentence of both the appellants are hereby confirmed. 11. As both the appellants are on bail, their bail bonds are cancelled and they are directed to surrender before the Court below for serving the remainder of their sentence. B.K.Jha, J. 12 I agree.