Judgment D. D. SINHA, J.:- Heard Shri. Daga, learned Counsel for the appellants and Shri. Mirza, learned Additional Public Prosecutor for the respondent. 2. Both the criminal appeals are preferred by the appellants against the judgment of conviction dated 23.7.2002 passed by the Additional Sessions Judge, Gondia in Sessions Trial No.75/2000. Both the appeals are heard together and disposed of by this common judgment. 3. Originally eight accused, i.e. accused no.1 Ajay, no.2 Prashant, no.3 Lalbahadur, no.4 Yeshwant, no.5 Pradip, no.6 Roshan, no.7 Rajkumar and no.8 Pushparaj were charge-sheeted for the offences punishable under Sections 302, 324, 506 read with Sections 147, 148 and 149 of Indian Penal Code. All the accused were also prosecuted for the offence punishable under Section 201 of Indian Penal Code. However, trial Court vide Impugned judgment convicted accused no.1 Ajay and accused no.2 Prashant for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. Accused no.2 Prashant was also convicted for the offence punishable under Section 201 of Indian Penal Code. The accused nos.3 to 8 were acquitted for the offences punishable under Sections 302, 324, 506 and 201 read with Sections 147, 148 and 149 of Indian Penal Code. Since the State has not preferred appeal against order of acquittal, we are only required to consider whether the evidence adduced by the prosecution is adequate to bring home guilt of the appellants and prove the charges beyond all reasonable doubts. 4. The facts and circumstances, which have given rise to the prosecution of the appellants for the offences charged, in nutshell, are as under: On the day of incident, i/e, 6.6.2000 at about 9 A.M., post marriage ceremony was going on at the house of father-in-law of deceased Ratnakumar. The guests from village Gankhaira had assembled at the house of complainant Chhaya (widow of the deceased). Ashok and Kishor Ishwardas Kotangale are the real brothers of Chhaya. It is the case of the prosecution that before occurrence, guests from Gankhaira expressed their displeasure about the arrangement made in respect of serving tea, etc. The appellants were amongst the guests. Appellant Ajay was quarreling with the uncle of PW-1 Chhaya on account of mismanagement done in serving tea, etc. to the guests. It is the case of the prosecution that before occurrence, guests from Gankhaira expressed their displeasure about the arrangement made in respect of serving tea, etc. The appellants were amongst the guests. Appellant Ajay was quarreling with the uncle of PW-1 Chhaya on account of mismanagement done in serving tea, etc. to the guests. Deceased Ratnakumar with the intention to pacify appellant Ajay intervened and took appellants towards a place called Bouddha Vihar, which was about 20 feet away from the house of Chhaya. It is the case of the prosecution that appellant Prashant took out a knife and appellant Ajay took the same from his hand and inflicted injuries by means of the said knife on the chest and abdomen of deceased Ratnakumar. Deceased Ratnakumar was immediately shifted to the Hospital at Salekasa. However, Doctor, who was on duty at Primary Health Centre, Salekasa after examining Ratnakumar declared him dead. Complainant Chhaya immediately lodged first information report in Police Station, Salekasa at about 10.40 A.M. Dead body of Ratnakumar was referred to the Doctor for post-mortem examination. The Investigating Officer on completion of investigation including of identification parade filed charge-sheet in the Court of a Judicial Magistrate, First Class, who committed the case to the Sessions Court. Charges were framed and explained to the appellants to which they pleaded not guilty and claimed to be tried. The defence of the appellants is of total denial and false implication in the crime. 5. Shri. Daga, learned Counsel for the appellants, submitted that though prosecution has examined number of witnesses to bring home guilt of the appellants, however, the important evidence is of PW-1 Chhaya (widow of deceased-eye-witness), PW-2 Charandas (eye-witness), PW-3 Kewal (eye-witness), PW-9 Atmaram (Tahsildar), who conducted identification parade and PW-11 Dr. Anil Parihar, who conducted post-mortem examination. It was contended that PW-4 Deonath, panch on the inquest panchanama and seizure panchanama, PW-5 Indraraj, panch on the spot panchanama, PW-7 Kailash, panch on the seizure of clothes of appellant Ajay and PW-8 Santosh, panch on the seizure panchanama turned hostile and, therefore, their evidence is of no consequence either to the prosecution or to the defence. 6. It was contended that PW-4 Deonath, panch on the inquest panchanama and seizure panchanama, PW-5 Indraraj, panch on the spot panchanama, PW-7 Kailash, panch on the seizure of clothes of appellant Ajay and PW-8 Santosh, panch on the seizure panchanama turned hostile and, therefore, their evidence is of no consequence either to the prosecution or to the defence. 6. Learned Counsel Shri. Daga contended that so far as evidence of PW-l Chhaya is concerned, she is widow of deceased Ratnakumar and, therefore, her testimony is that of interested witness and Court should be slow in relying on the evidence of such interested witness. It was submitted that in the cross-examination of this witness, it has come that she was unable to remember whether she had informed the Police while recording her first information report (Exh.60) that four blows by knife were given on the chest of her husband deceased Ratnakumar. Similarly, there is a material omission in her Police statement about deceased Ratnakumar taking appellant Ajay towards Bouddha Vihar. It was submitted that even as per testimony of this witness, it vas appellant Prashant, who took out the instrument like knife and appellant Ajay inflicted injuries on the person of her husband by means of tee said instrument. It was, therefore, contended that so far as appellant Prashant is concerned, there is no overt act attributed to him in the commission of crime and the omission about giving of four blows in the first information report creates doubt about truthfulness of version of this witness even in respect of assault alleged to have been committed by appellant Ajay by means of knife on the person of deceased Ratnakumar. 7. Learned Counsel Shri. Daga further contended that trial Court has disbelieved the evidence of PW-l Chhaya in respect of role played by original accused no.7 Rajkumar, who is alleged to have gagged the month of deceased Ratnakumar at the time of incident as well as in respect of other accused, who are alleged to have given fist blows to deceased Ratnakumar and, therefore, it is unsafe to place reliance on the testimony of such witness whose testimony has been partly disbelieved by the trial Court. 8. 8. It was also contended by learned Counsel Shri. Daga that testimony of PW-2 Charandas suffers from the same vice and since pmt of his testimony pertaining to other accused is disbelieved by the trial Court, it created doubt about remaining part of the testimony of this witness, which is relied on by the trial Court. It was submitted that evidence of this witness is inconsistent with the material particulars of the prosecution case disclosed by PW-1 Chhaya. This witness in his examination-in-chief has stated that appellant Prashant took out one instrument like knife and handed it over to appellant Ajay whereas as per evidence of PWI Chhaya, appellant Ajay took the knife horn the hand of appellant Prashant. It was further argued that in the cross-examination, this witness has admitted that he was sitting near the house of one Baba Choure at the relevant time and, therefore, his version that he was sitting near the house of Ishwardas from where he witnessed the incident is doubtful. Similarly, material omissions in his Police statement are brought out by the defence in the cross-examination. This witness was unable to assign any reason as to why it is not mentioned in his Police statement that appellant Ajay stabbed Ratnakumar with knife on his stomach. It was submitted that omission being of material nature affects ocular testimony of this witness in respect of assault alleged to have been committed by appellant Ajay on deceased Ratnakumar with knife and, therefore, the trial Court ought to have discarded the testimony of this witness being unreliable. 9. Learned Counsel Shri. Daga contended that so far as testimony of P-3 Kewal is concerned, the prosecution sought permission to declare the said witness hostile, which was granted by the trial Court. It was submitted that prosecution having chosen to disown this witness, was not entitled to take any advantage of the evidence of the hostile witness and same is altogether required to be discarded. It was further contended that even otherwise, in the cross-examination of this witness conducted by the Additional Public Prosecutor, nothing worthwhile has come in order to show that evidence of this witness is trustworthy and lends corroboration to the evidence of other eye-witnesses or was consistent with the prosecution case. It was further contended that even otherwise, in the cross-examination of this witness conducted by the Additional Public Prosecutor, nothing worthwhile has come in order to show that evidence of this witness is trustworthy and lends corroboration to the evidence of other eye-witnesses or was consistent with the prosecution case. Similarly, part of the evidence of this witness pertaining to offence punishable under Section 324 of Indian Penal Code has already been disbelieved by the trial Court. It was, therefore, contended that evidence of this witness is of no consequence either to the prosecution or to the defence and needs to be discarded. 10. Learned Counsel Shri. Daga further submitted that so far as evidence of panch witnesses - PW-4 Deonath, PW-5 Indraraj, PW-7 Kailash and PW-8 Santosh in respect of inquest, seizure of clothes, spot panchanama, etc. is concerned, since these witnesses are declared hostile, their evidence is also of no help either to the prosecution or to the defence and, therefore, ought to have been discarded. It was submitted that so far as medical evidence of PW-6 Dr. Ajay Ghodmare and PW-11 Dr. Anil Parihar is concerned, PW6 Dr. Ajay Ghodmare had given first aid to the deceased Ratnakumar in the Rural Hospital, Deori and issued injury certificate (Exh.84) in respect of injuries sustained by deceased Ratnakumar whereas PW-11 Dr. Anil Parihar conducted post-mortem examination and proved the contents of post-mortem report (Exh.125). It was contended that in the cross-examination, PW-11 Dr. Anil Parihar has admitted that Police had not shown him the alleged weapon of offence on 1.8.2000 and injury nos.1 to 5 mentioned in column 17 were simple injuries. It was, therefore, contended that medical evidence does not corroborate the testimonies of eye-witnesses in that sense of the term. It was submitted that evidence adduced by the prosecution is inadequate to bring home the guilt of the accused. 11. Shri. Daga, learned Counsel for the appellants, contended that the facts involved and evidence adduced in the present case is similar to one involved in the case of Jiwan s/o. Sheshrao Sarate Vs. State of Maharashtra (2006(3) ALL MR 3026). It was submitted that evidence in the said case shown the accused no.2 Jiwan did not play any part in the assault except brought two swords and handed over one to accused no. 1 Sahibrao and retained the other with him. Sahibrao assaulted the deceased. State of Maharashtra (2006(3) ALL MR 3026). It was submitted that evidence in the said case shown the accused no.2 Jiwan did not play any part in the assault except brought two swords and handed over one to accused no. 1 Sahibrao and retained the other with him. Sahibrao assaulted the deceased. Accused no.2 Jiwan only played the above referred role in the crime. In such circumstances, this Court allowed the appeal of accused no.2 Jiwan and set aside his conviction for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. However, this Court dismissed the appeal of another accused Sahibrao. 12. Learned Counsel Shri. Daga further contended that even if it is presumed that appellant Ajay inflicted injuries by means of knife or gupti on the person of deceased, however, it was in a sudden quarrel and in the fit of passion without taking any undue advantage of the situation and, therefore, act of appellant Ajay would fall within Exception IV of Section 300 of Indian Penal Code and is punishable under Section 304, Part I of Indian Penal Code and conviction under Section 302 of Indian Penal Code is unsustainable in law. 13. Learned Counsel Shri. Daga further contended that in view of decision of the Apex Court in Parsuram Pandey and others Vs. The State of Bihar (2004(4) Crimes 248 : 2005 ALL MR (Cri) 796 (S.C.)), appellant Prashant at the most can be convicted for the offence punishable under Section 324 read with Section 34 of Indian Penal Code. It was submitted that in the instant case, even if the prosecution evidence is accepted, there is no overt act attributed to appellant Prashant in the commission of crime. The prosecution evidence discloses that appellant Prashant took out the knife, which was either handed over by him to appellant Ajay or appellant Ajay took it from him and assaulted deceased Ratnakumar. It was contended that even if it is presumed that appellant Prashant instigated and facilitated appellant Ajay to commit assault on deceased Ratnakumar, it is not possible to bring home the guilt of appellant Prashant for the offence punishable under Section 302 of Indian Penal Code and at the most, offence, if any committed by appellant Prashant, would be under Section 324 of Indian Penal Code. 14. 14. Shri. Mirza, learned Additional Public Prosecutor for the respondent, on the other hand, supported the findll1g of conviction recorded by the trial Court and contended that in the instant case, evidence of PW-1 Chhaya (complainant). PW-2 Charandas and PW-3 Kewal is consistent with the material particulars of the prosecution case and corroborated by the evidence of PW-11 Dr. Anil Parihar. 15. Learned Additional Public Prosecutor Shri. Mirza further contended that evidence of eye-witnesses clearly demonstrates that the appellants shared common intention to commit murder of Ratnakumar. It was submitted that defence has not disputed presence of the appellants on the scene of occurrence and prosecution has succeeded in proving its case against the appellants for the offences charged. The medical evidence completely corroborates the testimony of eyewitnesses. PW-11 Dr. Anil Parihar conducted post-mortem examination and found following injuries on the person of deceased Ratnakumar: 1. Pericardium ruptured at middle and lateral part, 2. Heart ruptured punctured would 1x1/2x2 c.m. right ventricle, 3. Punctured wound 1 x 1/2 x 3 c.m. left ventricle, 4. Penetrating wound lower lobe middle portion 1 x 1/2x 2/1 x 2 c.m. and opined that probable cause of death was haemorrhagic shock due to cardial rupture. It was, therefore, contended that prosecution succeeded in bringing home the guilt of the appellants. 16. Shri. Mirza, learned Additional Public Prosecutor also argued that so far as testimonies of panch witnesses - PW-5 Indraraj, PW- 7 Kailash and PW-8 Santosh are concerned, though they were declared hostile, however, PW-10 Waman, Investigating Officer has proved the spot panchanama and seizure panchanamas, which further corroborate the prosecution case. 17. Learned Additional Public Prosecutor Shri. Mirza further stated that merely because part of the testimonies of eyewitnesses was disbelieved by the trial Court for the offence against other co-accused nos.3 to 8, that does not render whole evidence of these witnesses unreliable, It was contended that testimonies of eye-witnesses, which are consistent with the material particulars of the prosecution case and corroborated by the medical evidence, have rightly been relied on by the trial Court and the Court is Justified in convicting both the appellants for the offence punishable under Section 302 with the aid of Section 34 of Indian Penal Code. In order to substantiate his contentions, reliance is placed on the Judgment of the Apex Court in Lallan Rai and others Vs. In order to substantiate his contentions, reliance is placed on the Judgment of the Apex Court in Lallan Rai and others Vs. State of Bihar (2003(1) Cri.L.J. 465 : 2003 ALL MR (Cri) 788 (S.C.)). 18. We have given anxious thought to the various contentions canvassed by the respective Counsel and carefully scrutinized the prosecution evidence. Before we consider the law on the subject and legal submissions advanced by the respective Counsel, it would be appropriate to appreciate the evidence of eyewitnesses as well as medical evidence adduced by the prosecution. 19. PW-1 Chhaya (complainant) is widow of deceased Ratnakumar and it has come in her examination-in-chief that marriages of Ashok and Kishor (her cousin brothers) were solemnized on 4.6.2000. On the morning of 6.6.2000, some religious ceremonies, which are normally performed after marriage, were going on at village Kotra. The guests, who had come from Gankhaira, were quarreling with her uncle on account of mismanagement in serving tea, etc. to the guests. Appellant Ajay was also complaining about the same. However, husband of this witness (deceased Ratnakumar) took appellant Ajay towards Bouddha Vihar tried to pacify him. It has come in her examination-in-chief that appellants encircled the deceased. Appellant Prashant took out the instrument like knife and appellant Ajay stabbed deceased Ratnakumar by means of the said weapon. Four blows were inflicted on the chest of her husband. Thereafter, appellant Prashant took the knife tram appellant Ajay and wiped that knife with his clothes and ran away from the spot. She has further stated in her examination-in-chief that her husband fell down on the ground and thereafter was removed to Primary Health Centre, Salekasa where the Medical Officer declared him dead. She thereafter went to Police Station, Salekasa and lodged first Information report, which is Exh.60. This witness has identification appellant Ajay in the identified parade held by PW-9 Atmaram (Tahsildar). It is no doubt true that some omissions in her Police statement were brought in the cross-examination of this witness. However, in our view, those omissions are not of material nature. On the other hand, admission in the cross-examination reaffirms the material particulars of the prosecution case disclosed by this witness in her first information report and testimony. It is no doubt true that some omissions in her Police statement were brought in the cross-examination of this witness. However, in our view, those omissions are not of material nature. On the other hand, admission in the cross-examination reaffirms the material particulars of the prosecution case disclosed by this witness in her first information report and testimony. The suggestion given to this witness in her cross-examination, which is admitted by this witness, that her husband at the relevant time, tried to pacify appellants Ajay and Prashant on account of mismanagement in serving tea, etc. to the guests clearly demonstrates that defence has not disputed the presence of the appellants at the relevant time on the spot of occurrence. This witness clearly admitted in the cross-examination that appellant Prashant gave knife to appellant Ajay, which further goes to show that the defence has also not disputed either presence of appellants at the scene of occurrence or the fact that appellant Prashant was armed with knife. The security of evidence of PW-1 Chhaya shows that her presence at the scene of occurrence was most natural and after seeing the incident, without lapse of time, she lodged the first information report in the Police Station wherein she has specifically stated that her sister's husband appellant Prashant took out a knife, however, his companion snatched the same from his hand and inflicted blows with the same on the chest and legs of her husband. It is pertinent to note that lodging of first information report without lapse of time rules out possibility of concoction and fabrication and absence of any material omission or contradiction in the evidence of PW-1 Chhaya, renders her testimony reliable and trustworthy. Similarly, evidence of PW-9 Atmaram Sapate, Tahsildar, who has conducted identification parade, shows that PW-1 Chhaya identified appellant Ajay in the identification parade. Nothing worthwhile has come in the cross-examination of this witness in order to shatter his ocular testimony. 20. So far as evidence of another eye-witness PW-2 Charandas is concerned, it has come in his examination-in-chief that on the morning of the day of incident, he was sitting near the house of one Ishwardas and some quarrel took place on account of mismanagement in serving tea, etc. to the guests, who had come from Gankhaira. Deceased Ratnakumar was trying to pacify the guests. He took appellant Ajay towards Bouddha Vihar. to the guests, who had come from Gankhaira. Deceased Ratnakumar was trying to pacify the guests. He took appellant Ajay towards Bouddha Vihar. Appellant Prashant took out one instrument like knife and handed it over to appellant Ajay, who inflicted injuries by means of knife on the stomach of deceased Ratnakumar. Deceased Ratnakumar fell down on the ground and thereafter appellants ran away from the spot. It has come in the evidence of this witness that he accompanied deceased Ratnakumar to the Hospital. It has come in the cross-examination of this witness that appellant Prashant (accused no.2) came with the guests of Gankhaira and he learnt the name of appellant Ajay since he was amongst the guests who had come from Gankhaira and identified appellant Ajay in the Court. The omissions in the Police statement of this witness brought out in the cross-examination by the defence, in our view, being not of material nature do not affect ocular testimony of this witness. On the other hand, the evidence of this witness is reliable and consistent with the material particulars of the prosecution case disclosed in the first information report and in the testimony of eyewitness PW-1 Chhaya. 21. The prosecution has examined PW-3 Kewal as an eye-witness to the incident. However, since this witness deviated from the version given by him in the Police statement, the prosecution sought permission to cross-examine this witness, which was granted by the trial Court. Before we consider the evidentiary value of the testimony of this witness, who turned hostile, it would be appropriate to consider the law on the subject. 22. It is well settled by the various decisions of the Apex Court that where a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot as a matter of law be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands totally discredited or can still be believed in regard to any part of his testimony. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands totally discredited or can still be believed in regard to any part of his testimony. If the Court finds that credit of the witness has not been completely shaken, Court may after considering the evidence of such witness as a whole, with due caution and care, accept and rely on that part of his testimony, which is creditworthy in the light of other evidence on record. Similarly, if the Court finds that whole of the testimony of such witness stands totally discredited, then as a matter of prudence, Court should discard whole of the testimony of such witness. 23. The evidence of PW-3 Kewal (hostile witness) needs to be scrutinized in the light of above referred law. This witness has been cross-examined by the prosecution and in the cross he has admitted all the material particulars of the prosecution case mentioned by him in his Police statement. He has admitted that there was quarrel between appellants Prashant and Ajay on one side and deceased Ratnakumar on the other and he intervened to settle the quarrel. This witness has further admitted that appellant Prashant was holding gupti and gave the same to appellant Ajay, who inflicted injuries on the chest, stomach and leg of deceased Ratnakumar. He has specifically admitted that appellant Ajay caused injuries on the person of deceased Ratnakumar by means of a sharp weapon. This witness was also cross-examined by the defence. The careful scrutiny of the testimony of this witness shows that the trial Court was justified in not discarding the whole of the testimony of this witness since this witness was declared hostile. The admissions given by this witness in the cross-examination conducted by the prosecution are consistent with the material particulars of the prosecution case and, therefore, this is not the case where evidence of this witness stands totally discredited merely because he is declared hostile. On the other hand, it stands corroborated by the evidence of other eyewitnesses coupled with the medical evidence and, therefore, part of the testimony of this witness, which is consistent with the prosecution case, can safely be accepted and relied on. 24. On the other hand, it stands corroborated by the evidence of other eyewitnesses coupled with the medical evidence and, therefore, part of the testimony of this witness, which is consistent with the prosecution case, can safely be accepted and relied on. 24. So far as evidentiary value of identification of appellant Ajay by PW-3 Kewal in the Court is concerned, the Supreme Court has laid down law in this regard in the case of Ashfaq Vs. State (Government of NCT of Delhi) (2004)3 SCC 116 : 2004 ALL MR (Cri) 874 (S.C.)). The relevant observations of the Supreme Court are in para (6) of the judgment, which read thus: "6. We have carefully considered the submissions made by the learned Counsel on either side in the light of the materials on record and the relevant portions of the Judgments of the Courts below to which our attention has been drawn to impress upon their respective stands. Though as a matter of general principle, the point urged with reference to the omission to conduct earlier the test identification parade may be correct, the question as to whether there is any violation of the same in a given case would very much depend on the facts and circumstances of each case and there cannot be any abstract general formula for universal and ready application in all cases. Even the decision reported in Ramanbhai Naranbhai Patel Vs. State of Gujarat relied upon for the appellants, after dealing with the principles in general, adverts to the facts of the case and in so doing the learned Judges have categorically observed that since to eye-witnesses in the said case were assaulted and seriously injured in board day light, they could have easily seen the faces of the assailants and their appearance and identity would well remain imprinted in their minds and the third witness who was said to have seen the fatal assault on her husband could also be easily considered to have got imprinted in her mind the faces of the accused and that, therefore, the omission to hold the test identification parade did not affect the credibility or truthfulness of their evidence. The case on hand is akin to the said case dealt with by learned Judges therein, in that among the accused one was already known on account of having whitewashed their house, the they had entered their house and were present there for quite some time holding them at ransom by directing and using threat to relieve them of the valuables on which they could lay their hands and it is too much to claim, in spite of all this, that the evidence of PWs.2, 3 and 10 could not be either sufficient to properly identify the accused or relied upon against the accused in the absence of proper test identification parade. In this case, it has also further come on record that one whose identity was known was initially traced, that the said trail led the investigating authorities to the others and that the complainant was also said to have been associated even at that stage of investigation to identify the accused and ensure properly the arrest of the real accused. Consequently, we see no merit whatsoever in the grievance made and challenge to the judgments of the Courts below on this ground." The observations made by the Apex Court make it evident that though as a rule of prudence, the prosecution is expected to hold identification parade earlier to the identification in the Court, it is also equally true that substantive evidence is the evidence of identification in the Court. However, omission to hold identification parade earlier by itself does not as a matter of rule render identification done by the witness for the first time in the Court valueless and it depends upon the facts and circumstances of each case as well as other evidence available on record and there cannot be a straight-jacket formula of universal application in this regard in all cases. In the instant case, PW-3 Kewal had a sufficient opportunity to see the face of appellant Ajay since quarrel was going on between appellants Prashant and Ajay on one side and deceased Ratnakumar on the other for quite sometime and in broad day light and, therefore, face of appellant Ajay was imprinted on the mind of this witness and in the facts and circumstances of the present case as well as in view of law laid down by the Apex Court, in our view, omission to hold identification parade earlier was not fatal to the prosecution, 25. Similarly, the Apex Court in para (11) of the judgment in Visveswaran Vs. State rep. by S.D.M. (2003)6 SCC 73 : 2003 ALL MR (Cri) 1401 (S.C.)) has observed thus: "11. It is unfortunate that despite the aforesaid facts, the test identification parade was not held. An important aspect of the case is that the appellant had beard and moustaches when PW-1 and PW-2 were examined as witnesses for the prosecution. It was not so at the time of the occurrence. PW-1 and PW-2, therefore, it is evident, could not identify him in Court and stated in their deposition that the said person is not in Court. It does not mean that the acquittal is to follow as a natural corroboratory (sic) for the statements of PW-1 and PW-2. The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. In the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonable doubt." The above referred observations made by the Apex Court once again demonstrate that omission to hold identification parade does not by itself necessarily render the identification in the Court unacceptable or valueless and it would depend upon the facts and circumstances of each case. In the case in hand, identification of appellant Ajay in the Court, therefore, cannot be said to be valueless. 26. In the instant case, PW-11 Dr. In the case in hand, identification of appellant Ajay in the Court, therefore, cannot be said to be valueless. 26. In the instant case, PW-11 Dr. Anil Parihar conducted post-mortem examination on the dead body of Ratnakumar and noticed pericardium ruptured at middle and lateral part, heart ruptured punctured wound 1x 1/2 x 2 c.m. right ventricle and punctured wound 1 x 1/2 x 3 cm. left ventricle. Doctor also noticed penetrating wound lower lobe middle portion 1 x 1/2 X 1/2 x 2 c.m. The Doctor opined that injuries might have been caused by a pointed hard and sharp object and cause of death was due to haemorrhagic shock due to cardial rupture. Considering nature of injuries caused to deceased Ratnakumar, it can safely be concluded that the injuries were of serious nature and were caused to the vital part of the body and, therefore, solitary statement occurring in the cross-examination of the Doctor that injuries mentioned in column no.17 are simple injuries does not change the seriousness of the injuries, which can be seen from the description of injuries as well as their placement on the person of deceased Ratnakumar. The medical evidence, in our view, completely corroborates the evidence of eye-witnesses in all material particulars of the prosecution case. 27. In the instant case, it is no doubt true that panch witnesses examined by the prosecution to prove spot panchanamas and seizure panchanamas in respect of clothes of deceased and accused have not supported the prosecution. However, in a given case, if the evidence of Investigating Officer is cogent, straight-forward and trustworthy, same can be relied on for proving such panchanamas. In the instant case, the evidence of eye-witnesses coupled with medical evidence is sufficient to prove the complicity of appellants beyond all reasonable doubts and, therefore, panch witnesses on seizure panchanamas, spot panchanama, etc. though not supported the prosecution, however, it has not affected the material particulars of the prosecution case disclosed by the eye-witnesses. The next question, which needs our consideration, is what offence appellants have committed and whether conviction awarded by the trial Court to both of them under Section 302 read with Section 34 of Indian Penal Code as well as Section 201 of Indian Penal Code is sustainable in law. 28. The next question, which needs our consideration, is what offence appellants have committed and whether conviction awarded by the trial Court to both of them under Section 302 read with Section 34 of Indian Penal Code as well as Section 201 of Indian Penal Code is sustainable in law. 28. Shri. Daga, learned Counsel for the appellants vehemently argued that even if it is presumed that the prosecution has proved complicity of the appellants in the crime in question, however, so far as appellant Prashant is concerned, prosecution has not attributed any overt act to appellant Prashant in the crime in question. It was contended that quarrel had taken place at the spur of the moment and even as per the prosecution case, it was appellant Ajay, who took knife from appellant Prashant and inflicted injuries on the person of deceased Ratnakumar by means of the said knife. It was therefore, submitted that there is no evidence to show that appellant Prashant shared common intention to cause murder of Ratnakumar with appellant Ajay and, therefore, conviction of appellant Prashant under Section 302 with the aid of Section 34 of Indian Penal Code is liable to be set aside. In order to substantiate his contentions, reliance is placed on the decision of this Court in the case of Jiwan s/o. Sheshrao Sarate (cited supra). 29. Before we consider the above contentions canvassed by the learned Counsel for the appellants, it will be appropriate to consider the law on this aspect laid down by the Apex Court in the case of Lallan Rai and others [2003 ALL MR (Cri) 788 (S.C.)] (cited supra). In para (2) of the judgment, the Supreme Court has observed thus: "2) Four decades later, however, a three Judge Bench of this Court in Suresh (Suresh and another Vs. State of U.P., 2001(3) SCC 673 , had the following to state pertaining to Section 34 of the Indian Penal Code: "Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The Section gives statutory recognition to the common sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such pre-concert of pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede that act constitution an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act", The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. Participation in the crime in furtherance if the common intention cannot conceive of some independent criminal act all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however has to be arrived at only when the Court can, with judicial servitude, hold that the accused must have pre-conceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Palar Vs. Emperor (AIR 1919 Pat 111) held that it is only when a Court with some certainty holds that a particular accused must have pre-conceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied." 30. In the instant case, evidence of eye-witnesses clearly demonstrates that appellants were unhappy on account of mismanagement committed in serving tea, etc. to the guests from village Gankhaira and, therefore, quarrel had taken place. It is proved by the prosecution that deceased Ratnakumar was unarmed and was trying to tell the appellants not to quarrel. It is also proved by the prosecution that appellant Prashant was already having a knife with him. Both the appellants encircled deceased Ratnakumar. Appellant Prashant took out the knife and gave it to appellant Ajay. Therefore appellant Ajay inflicted injuries by means of the said knife on the person of deceased Ratnakumar. It is, therefore, evident that facts in the present case are different than the one involved in the case of Jiwan s/o. Sheshrao Sarate (cited supra) and, therefore, decision rendered by this Court in the said case does not help the appellants. 31. Therefore appellant Ajay inflicted injuries by means of the said knife on the person of deceased Ratnakumar. It is, therefore, evident that facts in the present case are different than the one involved in the case of Jiwan s/o. Sheshrao Sarate (cited supra) and, therefore, decision rendered by this Court in the said case does not help the appellants. 31. The contention of Shri. Daga, learned Counsel for the appellants, that even if it is presumed that appellant Ajay inflicted injuries by means of a knife or gupti on the person of deceased Ratnakumar, same was in a sudden quarrel and at the spur of the moment without pre-meditation and the prosecution evidence does not demonstrate that appellant Ajay has taken undue advantage of the situation and, therefore, act of appellant Ajay would fall within the purview of Exception IV to Section 300 of Indian Penal Code, which would be punishable under Section 304, Part I of Indian Penal Code, for the reasons given below, cannot be accepted. 32. We would like to express that in order to attract Exception IV to Section 300 of Indian Penal Code, the evidence adduced by the prosecution must show that incident occurred without pre-meditation in a sudden fight in the heat of passion and the assailant has not taken any undue advantage or acted in a cruel manner. It is pertinent to note that act of quarrel is not relevant nor it is relevant who offered provocation or started assaulting. At the same time, number of injuries caused during the occurrence also cannot be a decisive factor. What is important is that occurrence must be sudden without pre-meditation and the assailant must have acted in a heat of passion. Similarly, the assailant must have not taken any undue advantage or acted in a cruel manner and it is only on such situation in our considered view, Exception IV to Section 300 of Indian Penal Code will be attracted and the offence would be culpable homicide not amounting to murder. 33. In the instant case, the prosecution evidence of eye-witnesses clearly demonstrated that deceased Ratnakumar at the relevant time was completely unarmed and was trying to convince the appellants not to quarrel on frivolous issue. There is absolutely no evidence to show that a sudden fight ensued between appellant Ajay and deceased Ratnakumar and, therefore, appellant Ajay acted in a fit of anger. There is absolutely no evidence to show that a sudden fight ensued between appellant Ajay and deceased Ratnakumar and, therefore, appellant Ajay acted in a fit of anger. In the instant case, there is absolutely no evidence to show that there was any reason for appellant Ajay to get angry on deceased Ratnakumar nor there was any reason for the appellant Ajay to start a fight with him. The prosecution evidence does not show that incident occurred in a sudden fight, in the heat of passion and at the spur of the moment appellant Ajay inflicted injuries on the person of deceased Ratnakumar. Similarly, in view of evidence on record, it is difficult to conclude that appellant Ajay did not take undue advantage or did not act in a cruel manner. The evidence on record clearly shows that deceased Ratnakumar was not only unarmed, but was trying to pacify the appellants and was totally helpless victim of assault, hence, we are unable to agree with the contention advanced by learned Counsel Shri. Daga that the act committed by appellant Ajay falls within the purview of Exception IV to Section 300 of Indian Penal Code and is punishable under Section 304, Part I of Indian Penal Code. On the other hand, considering the weapon used by appellant Ajay, infliction of blows one after the other by the deadly weapon like knife on the vital part of the body of deceased Ratnakumar as well as nature of injuries caused to deceased Ratnakumar, we have no hesitation to hold that appellant Ajay was guilty of murder of Ratnakumar and, therefore, the trial Court was justified in awarding punishment for life for the offence punishable under Section 302 of Indian Penal Code. 34. Another contention canvassed by learned Counsel Shri. Daga that even if the prosecution evidence is accepted, so far as appellant Prashant is concerned, prosecution evidence does not show that he has committed any overt act in the incident of assault in question. The only role attributed to appellant Prashant by the prosecution is that he took out the knife, which was either handed over by him to appellant Ajay or appellant Ajay took it from him and assaulted deceased Ratnakumar with the said knife. The only role attributed to appellant Prashant by the prosecution is that he took out the knife, which was either handed over by him to appellant Ajay or appellant Ajay took it from him and assaulted deceased Ratnakumar with the said knife. It was, therefore, contended that prosecution evidence docs not show that appellant Prashant had shared common intention to kill deceased Ratnakumar with appellant Ajay and, therefore, conviction of appellant Prashant with the aid of Section 34 of Indian Penal Code for the offence punishable under Section 302 of Indian Penal is unsustainable in law and liable to be set aside. 35. Section 34 of Indian Penal Code creates a vicarious criminal liability and makes a person liable for the offence not committed by him, but by another person with whom he shared the common intention and, therefore, question of vicarious criminal liability would arise only if the evidence on record establishes that the accused person must have preconceived the result that ensued in furtherance of common intention, Section 34 of Indian Penal Code would be attracted only when the prosecution evidence proves that accused must have pre-conceived the result and acted in concert with others in order to bring about that result. In the instant case, it is difficult to hold that appellant Prashant pre-conceived that appellant Ajay would assault deceased Ratnakumar with the intention to cause his murder. It is, therefore, difficult to hold that appellant Prashant had shared common intention with appellant Ajay to murder Ratnakumar. At the same time, the conduct of appellant Prushant cannot be ignored. The prosecution has proved that appellant Prushant, at the relevant time, was having knife on his person and had taken it out, however, instead of assaulting deceased Ratnakumar with the same, gave it to appellant Ajay or allowed him to take it from his hands, who assaulted deceased Ratnakumar with the same. It is pertinent to note that knife is a deadly weapon and if injuries are inflicted by such deadly weapon on the person, it is likely to cause death. It is, therefore, necessary to consider above referred conduct of appellant Prushant in the light of provisions of Section 324 of Indian Penal Code. It is pertinent to note that knife is a deadly weapon and if injuries are inflicted by such deadly weapon on the person, it is likely to cause death. It is, therefore, necessary to consider above referred conduct of appellant Prushant in the light of provisions of Section 324 of Indian Penal Code. In order to bring home the guilt for the offence under Section 324 of Indian Penal Code, the weapon of offence must be one not which is liable, but which is likely to cause death. In other words, if the weapon is a deadly weapon like knife likely to be used in the commission of crime, one can predict that probable result of its use is likely to cause death. In the instant case, taking out the knife by appellant Prashant and handing it over to appellant Ajay or allowing him to take it from his hands, for the purpose of inflicting injuries on the person of deceased Ratnakumar would show that appellant Prashant had knowledge that appellant Ajay would assault deceased Ratnakumar with the deadly weapon, which would result in causing such injuries on the person of deceased Ratnakumar, which were likely to cause death of Ratnakumar and, therefore, to that extent, shared the common object with appellant Ajay and, therefore, in our considered view, the offence committed by appellant Prusnant falls within the ambit of Section 324 of Indian Penal Code and prosecution has succeeded in proving the same by adducing cogent evidence. At the same time, this does not in any way either dilute or reduce the criminal liability for the crime of murder committed by appellant Ajay. As observed hereinabove, evidence on record clearly establishes that offence committed by appellant Ajay is murder, punishable under Section 302 of Indian Penal Code. 36. So far as conviction under Section 201 of Indian Penal Code is concerned, there is evidence to show that after the assault on deceased Ratnakumar by appellant Ajay, appellant Prushant took the knife from appellant Ajay and wiped the same and tried to destroy the evidence of the crime and. therefore, conviction awarded under Section 201 of the Indian Penal Code by the trial Court to appellant Prashant is sustainable in law. 37. therefore, conviction awarded under Section 201 of the Indian Penal Code by the trial Court to appellant Prashant is sustainable in law. 37. In view of evidence on record, contention canvassed by learned Counsel Shri Daga that conviction of appellant Prashant under Section 302 with the aid of Section 34 of Indian Penal Code is not sustainable in law has a merit. However, other contention canvassed by learned Counsel Shri. Daga that both the appellants are liable to be acquitted or appellant Ajay at the most is liable to be convicted under Section 304, Part I of Indian Penal Code in view of evidence on record, suffers from lack of merit and cannot be accepted. Similarly argument of learned Additional Public Prosecutor Shri. Mirza that the evidence on record proves the case against appellant Ajay for the offence punishable under Section 302 of Indian Penal Code is sustainable in law. However, for the reasons stated hereinabove, same cannot be accepted in respect of conviction of appellant Prashant under Section 302 with the aid of Section 34 of Indian Penal Code. 38. For the reasons stated hereinabove, conviction and sentence of appellant Ajay for the offence punishable under Section 302 of Indian penal Code awarded by the trial Court is hereby confirmed. The conviction of appellant Prushant for the offence punishable under Section 302 with the aid of Section 34 of Indian Penal Code is hereby set aside. Instead, appellant Prashant is convicted for the offence punishable under Section 324 of Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of three years. The conviction and sentence awarded to appellant Prashant by the Court for the offence punishable under Section 201 of Indian Penal Code is hereby confirmed. Both the sentences to run concurrently and if appellant Prashant has already undergone the sentence of three years, with the set off, he be released, if not required in any other criminal case. 39. In the result, Criminal Appeal No.478/2002 filed by appellant Prashant is partly allowed and Criminal Appeal No.506/2002 filed by appellant Ajay is dismissed. Ordered accordingly.