R. S. SODHI, J. ( 1 ) CRIMINAL Appeal Nos. 610 of 2006 and 956 of 2006 seek to challenge the judgment and order of the Additional Sessions Judge, Rohini, Delhi in Sessions Case No. 51 of 2006 arising out of F. I. R. No. 426 of 1999, registered at Police Station Nangloi, whereby the learned judge vide his judgment and order dated 03. 03. 2006 has held the appellants, namely, Abdul Salam and Mahavir, guilty for the offence under Section 393/34 IPC and under Section 302/34 IPC. He has also held the appellant Abdul Salam guilty under Section 398 IPC and further held the appellant, Mahavir, guilty under Section 323 IPC. Further by his order dated 7. 3. 2006, has sentenced the appellants, namely Abdul Salam and mahavir to Rigorous Imprisonment for life and to pay a fine of Rs. 10,000/- each for the offence under Section 302/34 IPC. In default of payment of fine, to undergo Simple Imprisonment for a period of one year. As regards offence under section 393/34 IPC, he has sentenced both the appellants to Rigorous imprisonment for a period of five years together with the fine of Rs. 5,000/-each and in default of payment of fine, to undergo Simple Imprisonment for a period of six months. As regards appellant Abdul Salam, has sentenced him under section 398 IPC to Rigorous Imprisonment for a period of seven years together with fine of Rs. 5,000/- and in default, to undergo Simple Imprisonment for a period of six months. As regards appellant Mahavir, has sentenced him under section 323 IPC to Rigorous Imprisonment for a period of one year together with fine of Rs. 1,000/- and in default, to undergo Simple Imprisonment for a period of one month. All the sentences were directed to run concurrently. However, the appellants were awarded benefit of Section 428 of Code of Criminal procedure. ( 2 ) BRIEF facts of the case as have been noted by the learned additional Sessions Judge in the judgment under challenge are as under :-"on 21. 4. 99 at about 10. 30 p. m. at near Railway boundary, Ganda nalah, Rao vihar, Nangloi, one Ram Kishan was coming to his jhuggi from the nearby jhuggies of his in-laws, when he was accosted by two persons. 4. 99 at about 10. 30 p. m. at near Railway boundary, Ganda nalah, Rao vihar, Nangloi, one Ram Kishan was coming to his jhuggi from the nearby jhuggies of his in-laws, when he was accosted by two persons. One of them whose name later on came to be known as accused Mahavir caught hold of him by his neck and the other person whose name later on came to be disclosed as accused Abdul Salam took out a knife and asked him to take out whatever he was carrying. Ram Kishan upon this shouted for help and upon hearing his cries, his son Diwan Singh and nephew Rajesh, who were present in his jhuggi nearby came running. Upon seeing them both the accused persons, namely, Mahavir and Abdul Salam left Ram Kishan and started running away in the opposite direction. In the meantime, upon hearing the cries of Ram Kishan, his brother-in-laws, namely, Ram Phal and persons started running towards the fields nearby. However, Diwan Singh, the son of Ram Kishan tried to catch the accused persons but accused Mahavir caught hold of him and accused Abdul Salam gave a knife blow to him on his neck. In the meantime, Ram Kishan also tried to catch hold of accused Mahavir but, mahavir gave a tooth bite on his left hand thumb. Diwan Singh as a result of the knife blow fell down on the ground but by that time Rajesh and Radhey Shyam managed to catch hold of accused Abdul Salam and Rajesh also snatched the knife from his hand. The other accused, namely, Mahavir was caught hold of by the other public persons, who by then had gathered over there. Thereafter, injured Diwan Singh was removed to Vimal Hospital by Rajesh but the doctors declared him as brought dead. Incident was also in the meantime reported to the police on telephone by Ram Kishan from a nearby nursery. A PCR arrived at the scene and they removed injured Ram Kishan to DDU Hospital. After getting medical treatment from DDU Hospital, Ram Kishan was taken to the police station by the PCR Van and where he came to know that his son Diwan Singh has since died owing to the injuries sustained by him. Police accordingly recorded statement Ex. PW 1/a of Ram Kishan. After getting medical treatment from DDU Hospital, Ram Kishan was taken to the police station by the PCR Van and where he came to know that his son Diwan Singh has since died owing to the injuries sustained by him. Police accordingly recorded statement Ex. PW 1/a of Ram Kishan. The dead body of Diwan Singh, which was brought to the police station from Vimal hospital was then sent to mortuary subzi Mandi. Inquest proceedings were carried out by the IO. In the meantime, rajesh who had taken Diwan Singh to Vimal Hospital had also reached the police station and he handed over the knie Ex. P1, which was snatched away by him from accused Abdul Salam to the IO. The knife which was having blood stains was sealed in a pullanda and was taken into possession by the IO on the said offences. The blood soaked clothes of deceased Diwan Singh were also taken into possession by the IO. Later on, the clothes of Diwan Singh and knife Ex. P1 were sent to FSL, Malviya Nagar for examination. IO recorded statement of various witnesses and upon completion of necessary further investigation, prepared the challan and submitted the same to the court of concerned area Magistrate. After due compliance of Section 207 Cr. P. C. , the case was committed to the court of sessions by the Ld. Metropolitan Magistrate. " ( 3 ) THE prosecution in order to bring home the guilt of the accused persons examined as many as 20 witnesses. Of these, PW-1 is Ram Kishan who stated that on 21. 4. 99, he was coming after visiting the house of his in-laws when he was caught hold of by accused Mahavir while accused Abdul Salam took out a knife and ordered him to take out whatever he was having. On this, the witness raised an alarm hearing which Rajesh and Diwan Singh came to his rescue. Both the accused persons on seeing Diwan Singh and Rajesh left the witness and tried to make good their escape. At this stage, Ram Phal and Radhey Sham had also came out and joined the chase to catch hold of the accused. The accused began running towards the field when Diwan Singh tried to catch hold of the accused. Both of them attacked Diwan Singh. At this stage, Ram Phal and Radhey Sham had also came out and joined the chase to catch hold of the accused. The accused began running towards the field when Diwan Singh tried to catch hold of the accused. Both of them attacked Diwan Singh. Accused Abdul Salam assaulted diwan Singh with a knife near the neck whereas accused Mahavir caught hold of diwan Singh. The witness tried to intervene on which accused Mahavir caused a bite injury on his left thumb. Due to the blow inflicted on Diwan Singh, he fell on the ground. Rajesh and Radhey Sham caught hold of Abdul Salam and mahavir and thereafter, Ram Phal and this witness apprehended Mahavir. Rajesh snatched knife from the hand of Abdul Salam. Thereafter, Diwan Singh was removed to Vimal hospital. In the meantime, police arrived and the witness was removed to DDU Hospital. After medical aid, he was discharged and he came back to the police station where he learnt that Diwan Singh had died due to knife injury. His statement was recorded vide memo Exhibit PW 1/a which was signed by him. The dead body of his son, Diwan Singh, was brought to the mortuary where he identified the same as that of Diwan Singh. His inquest statement was recorded vide memo Exhibit PW 1/b. After postmortem, the body was received by him vide memo Exhibit PW 1/c. In cross-examination, the witness admits that on seeing persons from the public and his relations coming, the accused persons started running before the other persons could run. The accused were apprehended by his son, nephew and brother-in-laws. The witness also chased the accused persons and the knife was snatched from the accused. He also states that he did not have enmity against the accused persons and that Abdul Salam may have received injuries on being apprehended as there was blood near his mouth. ( 4 ) PW-2 is Rajesh who states that on 21. 4. 99 at about 10 p. m. , he had gone to the house of his uncle Ram Kishan who was residing in a jhuggi near ganda Nullah, Camp No. 4, Nangloi. Diwan Singh, son of his uncle, was also along with him in his jhuggi. ( 4 ) PW-2 is Rajesh who states that on 21. 4. 99 at about 10 p. m. , he had gone to the house of his uncle Ram Kishan who was residing in a jhuggi near ganda Nullah, Camp No. 4, Nangloi. Diwan Singh, son of his uncle, was also along with him in his jhuggi. They heard the cries of "bachao bachao" when he along with Diwan Singh came out and saw the accused persons holding Ram Kishan but when the accused saw two of them, they left Ram Kishan and ran in the opposite direction. Upon further cries by Ram Kishan, other persons and his relatives came out. Diwan Singh began chasing the accused persons and caught hold of accused Abdul Salam. At that time, Abdul Salam, who was holding a knife in his hand, inflicted injury on the neck of Diwan Singh with knife as a result of which Diwan Singh fell down. The other accused was caught hold of by the public. This witness, thereafter, snatched the knife from Abdul Salam. The witness goes on to say that accused Mahavir in order to get himself released, gave a bite on the thumb of his uncle. Accused Abdul Salam and Mahavir were both apprehended. On a telephone call, the police arrived by which time Diwan singh was removed to Vimal Nursing Home in a rickshaw. He was declared dead. The police later on removed Ram Kishan to Government Hospital for medical examination. After Diwan Singh was declared dead, he was brought to the police station. The knife was handed over to the police and a sketch was prepared vide memo Exhibit PW 2/a. It was taken into possession vide memo Exhibit PW 2/b. In cross-examination, this witness stated that at the time of the incident, he was in jhuggi and heard the cries of his uncle in low tone because of distance. He denied the suggestion that he could not have heard the cries of his uncle as it was from such a long distance as there was no other jhuggi in between the place of incident and the jhuggi of his uncle. ( 5 ) PW-3, Radhey Sham and PW-4, Ram Phal, were also cited as the witnesses of occurrence by the prosecution but when they appeared in the witness box, they resiled from their statements made earlier before the police under section 161 Cr. ( 5 ) PW-3, Radhey Sham and PW-4, Ram Phal, were also cited as the witnesses of occurrence by the prosecution but when they appeared in the witness box, they resiled from their statements made earlier before the police under section 161 Cr. P. C. , thus, necessitating the Public Prosecutor to cross-examine these two witnesses. These witnesses denied having witnessed the occurrence. PW-5, Dr. Komal Singh, proved the postmortem report by describing the injury on the person of the deceased. He found only one incised clean cut mark being injury No. 1 :- "one incised clean out mark over left side of the neck at its lateral surface 1. 2 cm X 2 mm in size. It is 7. 1 cm lower lateral to left angle of the mouth. " This witness, however, did not state in examination in chief if the injury so inflicted on the person of the deceased was sufficient to cause his death, however, stated that injuries sustained on the body of the victim diwan Singh were possible with the weapon of offence recovered by the police during investigation. This witness was not cross-examined by the accused persons. Remaining witnesses being formal witnesses, their testimonies are not being discussed herewith as the prosecution story primarily hinges on the testimonies of PW-1 to PW-4 who, according to the prosecution, had seen the accused persons committing the crime. ( 6 ) WE have heard respective counsel appearing for both the appellants and also the learned Public Prosecutor. With their assistance, we have gone through the judicial record including the testimonies of all the prosecution witnesses and also the statements of the accused persons. ( 7 ) THE principal accused in this case is Abdul Salam who, according to the prosecution, inflicted the fatal blow on the neck of Diwan Singh. As regards accused Mahavir, the prosecution's case is that he caught hold of the deceased. Learned counsel appearing for Abdul Salam contends that Abdul Salam has been falsely implicated and that no such incident took place. However, confronted with the evidence of PW-1 and PW-2 who are dependable eye witnesses, learned counsel confined his case to the question of nature of offence and sentence. Learned counsel contends that the case does not fall within the purview of Section 302 IPC and at best, Abdul Salam can be held guilty for an offence under Section 304 IPC. However, confronted with the evidence of PW-1 and PW-2 who are dependable eye witnesses, learned counsel confined his case to the question of nature of offence and sentence. Learned counsel contends that the case does not fall within the purview of Section 302 IPC and at best, Abdul Salam can be held guilty for an offence under Section 304 IPC. According to the counsel, prosecution has failed to establish that this accused had inflicted the injury on the person of Diwan singh with the intention to commit murder. He drew our attention to the prosecution's case unfolded by PW-1 and PW-2 wherein the accused persons, on an alarm being raised, took to their heels. They were chased by Ram Phal, Radhey sham, Rajesh and Diwan Singh. Diwan Singh, in the process, caught up with Abdul salam and tried to apprehend him on which Abdul Salam, in an attempt to get free, wheeled the knife he was holding, causing an injury on the neck of Diwan singh. Mahavir, on the other hand, in desperation, allegedly bit the left thumb of PW-1, Ram Kishan. Based on the aforesaid evidence, counsel urged that there was no intention on the part of Abdul Salam to cause the death of the deceased in a manner so as to be guilty of murder. ( 8 ) WE have carefully examined the case as also the arguments advanced before us. It appears from the testimony of PW-1, Ram Kishan, as also from PW-2, Rajesh, that the intent of the accused was primarily to commit robbery, however, on PW-1 raising an alarm, a number of persons collected upon which the accused persons in order to escape the wrath fled from the place. There was no motive or intention to cause any injury to the deceased at this time. However, when the deceased caught up with Abdul Salam, in desperation abdul Salam appears to have caused a nip on the neck of Diwan Singh which unfortunately cut an artery in the neck. In these circumstances, it cannot be said that Abdul Salam inflicted the injury on the neck of Diwan Singh with an intention that such an injury should definitely result in the death of Diwan singh. The fact that only one injury that too 1. In these circumstances, it cannot be said that Abdul Salam inflicted the injury on the neck of Diwan Singh with an intention that such an injury should definitely result in the death of Diwan singh. The fact that only one injury that too 1. 2 cm x 2 mm is indicative of the intention of Abdul Salam who merely wanted to be set free from the grip of the deceased in order to save himself from the wrath of the chasing crowd. It appears to us that Abdul Salam cannot be held guilty of murder but his case could come within the four corners of Section 304 IPC. We need hardly dialect further on this matter since the facts of this case have adequately been dealt with by us. ( 9 ) COMING to the case of Mahavir, we find that he had no connection with the causing of the injury by Abdul Salam. However, he is attributed to have given a bite on the thumb of PW-1, Ram Kishan. This is deposed to by both pw-1, Ram Kishan and PW-2, Rajesh, but strangely enough is not supported by the medical evidence which clearly indicates that there were no teeth mark injuries on the thumb of PW-1. To this extent, the endeavour of the witness to further involve Mahavir is not free from doubt. ( 10 ) AS regards commission of offence punishable under Section 393/34 and 398 IPC against Abdul Salam and under Section 393/34 IPC against mahavir, recorded by the trial court, stands fully established. In the result, we hold Abdul Salam guilty for an offence under Section 393/34 and 398 IPC as also under Section 304 IPC while Mahavir is guilty of the offence under Section 393/34 IPC. However, further taking into consideration the fact that Abdul salam has undergone more than eight years of incarceration, his sentence is reduced to the period already undergone by him. Similarly, Mahavir, who stands guilty for an offence punishable under Section 393/34 IPC and has undergone substantial period of incarceration, is sentenced to the period already undergone by him. Criminal Appeal Nos. 610 of 2006 and 956 of 2006 stand disposed of accordingly. The appellant, Abdul Salam, who is in custody, shall be released forthwith unless wanted in any other case while appellant, Mahavir, who is on bail, his bail bond and sureties stand discharged.