Judgment S.L.Kochar, J. ( 1. ) This appeal has been directed against the impugned judgment dated 19.09.1998, passed by learned Sessions Judge, Dewas. in Sessions Trial No. 99/97, whereby convicted the appellant No. 1 Kamal, under Section 302 of the I.PC, sentenced to R.I for life and appellant No. 2 Radheshyam punishable under Section 302 read with section 34 of the I.RC, sentenced to R.I for life. ( 2. ) The prosecution case in nutshell as put forth before the trial Court is that on 02/ 03/1997 in evening at 7.00pm, the complainant (RW.2) Rakesh, deceased Idris and (RW. 3) Lalu @ Vishal were standing on Gita Bhawan square. The appellant No. 1 Kamal reached over there and after putting his hand on the shoulder of the Idris, told Idris to forget previous verbal dispute between them and should not be depressed and the appellant Kamal asked all of them to accompany to his house. When all three of them reached at the house of Kamal and were standing on the road, at that moment appellant No. 2 Radheshyam, brother of the appellant came out of the house and caught hold of Idrish and appellant No. 1 Kamal whielded knife causing injury on abdomen of Idris. Idris raised cry upon which (P.W.-2) Rakesh and (P.W.-3) Lalu @ Vishal tried to caught the appellant, but they have successfully escaped from the place of incident. Idris was taken by Rakesh and Lalu in an auto-riksha to hospital. Rakesh (P.W.2) lodged the report Ex.P-2 in Kotwali, Dewas, recorded by SHO, Rajendra Singh Jhala (P.W.-10). Dr. B.C. Tiwari (P.W.-6) medically examined Idris and issued MLC report Ex. P-7. He found two injuries on abdominal region of Idris. Looking to the serious condition of Idris, he was immediately referred to M.Y. Hospital, Indore, where on the same day he succumbed to the injuries. Rajendra Singh Jhala (P.W.-10), investigating officer prepared the spot map and body of Idris was sent for postmortem examination. After completion of inquest report postmortem was conducted by (P.W. -9) Dr. P. C. Jain, postmortem is (Ex. P- 11). Appellant was arrested on 04/03/1997 and on his disclosure statement knife was seized. Knife was also send to Dr. B.C. Tiwari for opinion and Dr. Tiwari gave written opinion (Ex. P-8). On completion of investigation, charge-sheet was filed against both the appellants by the police. ( 3. P. C. Jain, postmortem is (Ex. P- 11). Appellant was arrested on 04/03/1997 and on his disclosure statement knife was seized. Knife was also send to Dr. B.C. Tiwari for opinion and Dr. Tiwari gave written opinion (Ex. P-8). On completion of investigation, charge-sheet was filed against both the appellants by the police. ( 3. ) The appellants denied the charges and pleaded innocence. Their case is that under the influence of liquor Idris fell on the angle of iron fencing due to which, he sustained injuries and died. They have not examined any witness in defence. Whereas the prosecution has examined in all 10 witnesses and got proved 13 documents to prove its case. ( 4. ) The learned trial Court found the appellant guilty and convicted them as indicated here-in-above. ( 5. ) We have heard learned counsel for the parties and also perused the entire record carefully. ( 6. ) Learned Counsel for the appellants has submitted that both the eye witnesses Rakesh and Lalu @ Vishal, have assailed from their statements given in examination- in-chief. In cross-examination, according to both the witnesses, deceased suffered injuries, because of fell on Iron Fencing and appellants did not cause any injuries to him and that conviction of the appellant No. 2 Radheshyam, is not sustainable under Section 302 of the I.RC with the aid of Section 34 of the I.RC, because evidence adduced by the prosecution is not sufficient to fulfill the ingrediance of Section 34 of the I.RC. ( 7. ) On the other hand, learned counsel for the State has supported the impugned judgment of conviction and sentence of the appellant. The learned counsel has also submitted that both the eye witnesses in re-examination by the prosecutor admitted in their statement about truthfulness of their statement given in Court. In examination- in-chief both the witnesses have stated that deceased was caught hold by appellant No. 2 Radheshyam, thereafter, appellant No. 1 Kamal gave knife injuries on his abdomen. After re-examination by the prosecution, there is no further cross-examination by the defence counsel and the totality of the statements of both the eye witnesses has clearly proved the fact that they were present on the scene of occurrence and witnessed the incident. ( 8. After re-examination by the prosecution, there is no further cross-examination by the defence counsel and the totality of the statements of both the eye witnesses has clearly proved the fact that they were present on the scene of occurrence and witnessed the incident. ( 8. ) First of all we would like to proceed to consider the ocular account of (RW.-2) Rakesh who also lodged the report Ex.P-2 in the police station immediately within 30 minutes of the incident. Date and time of incident was 02/03/1997 at 7.00 pm and FIR was lodged on the same day at 7.30 pm. Distance of police station was only 1 km. According to the (P.W.-2) Rakesh, on the date of incident in the evening at 7.00pm appellant No. 1 Kamal approached them on square of public road and asked them to forget the previous quarrel. This was specifically told by appellant No. 1 Kamal to deceased Idris. Thereafter, appellant No. 1 Kamal took them to his house. They were standing out side the house of appellant Kamal and Kamal went inside the house. Thereafter, his elder brother appellant No. 2 Radheshyam came out the house and caught hold Idris and appellant No. 1 Kamal inflicted two knife blows, causing injuries on the abdomen of Idris. After causing injuries, both the appellants ran away. At that moment Rakesh (P.W.-2) and Lalu @ Vishal (P.W.3), tried to caught the accused persons, but they have successfully escaped from the scene of occurrence. The further say of this witness is that Idris fell on the ground and become unconscious. They met Babbu (P.W.-4) and one Vinod (not examined), and disclosed to them about the incident and in unconscious condition Idris was taken to the police station where the eye witness lodged the report. He accept lodging of report Ex.P-2 and also his signature on this report. Witness Rakesh (P.W-2) was present at the time of preparation of spot map Ex-P-3 by the police. The witness was examined by the prosecution in Court on 22/10/1997. Learned trial Court asked the counsel for the appellants to cross-examine these witnesses, but counsel did not cross-examined, therefore, examination was closed. Witness Rakesh (P.W-2) was present at the time of preparation of spot map Ex-P-3 by the police. The witness was examined by the prosecution in Court on 22/10/1997. Learned trial Court asked the counsel for the appellants to cross-examine these witnesses, but counsel did not cross-examined, therefore, examination was closed. It would be apposite to mention here that Rakesh (P.W.-2), Lalu @ Vishal (P.W.-3) and Babbu @ Manjoor Ansari (P.W.-4) were examined by the prosecution en 22/10/1997, whereas B.C. Tiwari (P.W.-6) was examined on 24/ 10/1997, but all these witnesses were not cross-examined by the defence counsel on the same day and time was sought, thereafter, for recalling these witnesses for cross-examination the application was filed under Section 311 of the Cr.P.C. on 23.02.1998, and same was decided by order dated 30/07/1998 by the learned trial Court, allowing the prayer of the appellant for recalling all these witnesses for cross-examination. These witnesses were cross-examined on 31/08/1998. Babbu @ Manjoor Ansari was not cross-examined by the learned counsel for the appellants after he is recalled on 31/08/1998. ( 9. ) Rakesh (P.W.-2) an independent witness was cross-examined on 31/08/2008 by the defence counsel. He gave all together new story about the incident. According to this statement, on the date of incident they were standing on Gita Bhavan Square and taking tea at the near by tea stall, at that moment appellant No. 1 Kamal reached over there and after submitting apology regarding previous verbal quarrel to deceased Idris, came back to his house. Idrish and his father were the habitual drinkers. After 1/2 an hour a boy came running to them and disclosed them that deceased after consuming liquor fell on the Iron Fencing and sustained injuries on his abdomen. They all reached on the scene of occurrence and found the appellant lying on Iron Fencing having injuries at his abdomen. They took the deceased in Auto Riksha to hospital, thereafter, he lodged the report in the police station. He was confronted with his statement by the defence counsel and he denied having given A to A portion of police statement (Ex.D-1) regarding witnessing causing of injuries by knife to deceased Idris. Because of change of statement in cross-examination by this witness Rakesh, the learned public prosecutor further cross-examined him and in the cross-examination he was confronted with his statement given in examination-in-chief on 22/10/1997. Because of change of statement in cross-examination by this witness Rakesh, the learned public prosecutor further cross-examined him and in the cross-examination he was confronted with his statement given in examination-in-chief on 22/10/1997. Witness Rakesh, specifically admitted giving of this statement in examination-in-chief and also admitted that his statement in examination-in-chief was the correct and true statement about the incident. But say of this witness is that after recording of his statement on 22/10/1997, he had compromise with the accused persons and he did not want any conviction to them, therefore, he gave different statement after compromise. After this cross-examination by the prosecutor, there was no further re-cross-examination by the defence. ( 10. ) Looking to the positive admission of witness Rakesh in paragraph 11 that on 22/ 10/1997 in cross-examination-in-chief in A to A portion he gave correct statement regarding different persons and cross-examination in paragraph 5, 6, 7 and 9 are false and incorrect. Lalu @ Vishal has supported the prosecution case on material particulars in cross-examination-in-chief recorded on 22/10/1997, but he resiled from his statement when cross- examined on 31/08/1998. He also denied of his statement to police vide (Ex. D-2). In cross-examination-in-chief by the prosecutor he admitted that he was eighth pass and knew that true statement should be given in the Court. ( 11. ) According to this witness, on 22/10/1997 because of fear of police he gave his statement, but he failed to disclose the specific name of the police officer and he had also denied about compromise between P.W.2 Rakesh and deceased Idris, because of which he gave false statement in Court. ( 12. ) We have carefully perused the statements of both the witnesses and find no ring of truth in their statements recorded in cross-examination dated 22/10/1997. According to their statement, in examination-in-chief deceased was caught by appellant No. 2 Radheshyam and appellant No. 1 Kamal gave knife blows on his abdomen. RW.2 Rakesh and RW. 3 Lalu @ Vishal specifically admitted about truthfulness of this statement, and change of statement in cross-examination by the defence counsel on 21/08/1998, because of compromise. It is a matter of great concern that four material prosecution witnesses were not cross-examined by the defence counsel on the date of recording of their statements and they were recalled and cross-examined on 21/08/1998 and on 24/08/1998, after the lapse of about 10 months. It is a matter of great concern that four material prosecution witnesses were not cross-examined by the defence counsel on the date of recording of their statements and they were recalled and cross-examined on 21/08/1998 and on 24/08/1998, after the lapse of about 10 months. Even thereafter, no further cross-examination was done by the defence. (P.W.-2) Rakesh in paragraph 11 has admitted truthfulness of these statement given in examination in chief regarding causing of injuries to Idris by knife by appellant No. 1 Kamal and appellant No. 2 Radheshyam caught hold of the deceased. He has given reasons for changing statement that is the compromise and settlement between appellants and him, therefore, he did not want to get them convicted. The offence of murder is a cognizable and non compoundable offence, therefore, it is not in the discretion of this witness to enter into compromise and change his version. When after changing his version, he again admitted the statement given by him in examination-in-chief as true statement and the same is corroborated by his FIR (Ex.P-2), as well as the statement of another independent witness (P.W.-4) Babbu @ Manjoor Ansari, who has specifically stated that on the date of incident, in evening between 7.00 to 7.30pm, after hearing the cries, he reached in front of flour mill and saw Idris in unconscious condition. The blood was oozing from wounds at his abdomen and he was told by P.W.-2 Rakesh that Idris was caught by appellant No. 2 Radheshyam and appellant No. 1 Kamal caused him injuries by knife, thereafter, they took deceased in Auto Riksha to hospital. There is absolutely no cross-examination by the defence and the statement of this witness remained unchallenged. P.W.-2 Rakesh has also stated that P.W.-4 Babbu and one Vinod, met them and they disclosed about the incident to them. ( 13. ) In this view of the matter, the statement of Rakesh is duly corroborated by the evidence of P.W.-4. The evidence of Rakesh is further finding support from medical evidence of P.W-6 Dr. B.C. Tiwari and P.W.-9 Dr. P.C. Jain. Dr. Tiwari examined the deceased first in time and found two stab injuries on his abdomen. He sent the deceased for further treatment to M.Y. Hospital, Indore. He proved his MLC report Ex. P-7. He was not cross-examined by the defence counsel on 24/10/1997. B.C. Tiwari and P.W.-9 Dr. P.C. Jain. Dr. Tiwari examined the deceased first in time and found two stab injuries on his abdomen. He sent the deceased for further treatment to M.Y. Hospital, Indore. He proved his MLC report Ex. P-7. He was not cross-examined by the defence counsel on 24/10/1997. In cross- examination on 23/04/1998, this medical expert has admitted the defence suggestion in cross-examination that if deceased would have fallen on a pointed object of Iron line angle, he could sustain injuries on his abdomen, but this opinion is contradicted specifically by P.W.9 Dr. Jain in cross-examination in paragraph 9. It is well settled legal position that evidence of Doctor has to be proved and appreciates like and other fact. Looking to the nature of injuries in our considered view the same could not be sustained, by fall on Iron Fencing, what ever the material or the kind of fencing. Autopsy surgeon has specifically opined that the deceased died because of excessive bleeding resulted from abdomen injury and death was homicidal in nature. ( 14. ) As, far as statement of P.W. 3 Lalu @ Vishal, second eye witness is concerned he has changed his version and turned hostile, after 10 months of his examination-in- chief as mentioned here-in-above, we are of the opinion that after examination in chief in which he has supported the prosecution case, he succumbed to the pressure exhorted by the side of the appellant. In the case of Khujji @ Surrendra Tiwari Vs. State of M.P. [ AIR 1991 Supreme Court 1853]. The Supreme Court had occasion to deal with this kind of situation and held in paragraph 7 that after one month of examination-in-chief something transpired which made the star witness (P.W.-l) Komal Chand to shift his evidence on the question of identity to help the appellant. The Supreme Court has affirmed the view of the High Court regarding appreciation of evidence of witness Komal Chand who shifted his statement on the point of identification of the accused in cross-examination as a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief and placed reliance on his statement given in examination-in-chief. ( 15. The Supreme Court has affirmed the view of the High Court regarding appreciation of evidence of witness Komal Chand who shifted his statement on the point of identification of the accused in cross-examination as a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief and placed reliance on his statement given in examination-in-chief. ( 15. ) In the case at hand (P.W.-3) Lalu @ Vishal was cross-examined after 10 months and it is crystal clear from the statement of P.W.2 Rakesh, and (P.W.3) Lalu @ Vishal that they changed their version in cross-examination. It is trite law that merely because a witness has turned hostile, his evidence cannot be rejected in its entirety. The part of the statement can be relied upon, if he finds corroboration from other witness [ see 1997 Vol.6 Supreme Court Case 514 State of Gujrat Vs. Anirudh Singh and anothers and 1997 Vol.9 Supreme Court Cases 338 Balram Prasad Vs. State of Bihar and others] ( 16. ) In the instant case statement of Lalu @ Vishal has been fully corroborated by medical evidence, as well as statement of (P.W. 2) Rakesh. Here the factual and evidentiary position is better than the cases of Balram and Anirudh Singh (supra). Both the eye witnesses supported the prosecution case on all material particulars in examination in chief and after 10 months in cross examination given a different story which appears to be false and concocted one and P.W. 2 Rakesh in paragraph 11 has admitted this position and specifically stated that after recording of his statement in examination in chief, there was compromise between him and the appellants because of which he changed his version and gave the different statement. ( 17. ) Under all these circumstances, we are constrained to hold that (P.W.-2) Rakesh and (P.W.-3) Lalu @ Vishal were present with the deceased at the time of incident and also witnessed the incident of causing knife injuries by appellant No. 1 Kamal to Idris and appellant Radheshyam Caught hold of him. ( 18. ) Now the further question before us to decide is whether appellant Radheshyam could be held liable with the aid of Section 34 of I.RC for his conviction. On this aspect statement of (P.W. 3) Lalu @ Vishal is to be seen. ( 18. ) Now the further question before us to decide is whether appellant Radheshyam could be held liable with the aid of Section 34 of I.RC for his conviction. On this aspect statement of (P.W. 3) Lalu @ Vishal is to be seen. This witness in examination in chief has stated that when they all reached at the house of appellant Kamal, appellant No. 2 Radheshyam came out of the house and caught hold of Idris, thereafter, appellant Kamal caused two knife blows at the abdomen of Idris. He has no were stated that after reaching of appellant No. 1 Kamal along with deceased and the witnesses in front of the house of the appellants, appellant Kamal, went inside the house and after some time came out of his house. Because of absence of this fact and the statement of eye witness Lalu @ Vishal, we are of the opinion that Radheshyam is entitled for benefit of doubt regarding his act and the same cannot be considered that he acted in furtherance of the common intention of the appellant No. 1 for causing injuries by knife, as appellant No. 2 came out of the house and appellant No. 1 and the witnesses were standing out side the house. There is no evidence on record that appellant Radheshyam was knowing about the possession of knife by appellant No. 1 Kamal and the same could be used by Kamal for committing murder of deceased Idris. This is true that (P.W.-2) Radheshyam has stated in examination in chief that after reaching in front of the house of the appellant, appellant Kamal went inside the house, but this fact is not corroborated by (P.W. 3) Lalu @ Vishal, the second eye witness, therefore, appellant Rajendra would be liable for his independent act i.e. catching hold of the deceased, punishable under Section 323 of the I.P.C. ( 19. ) Consequently, this appeal is allowed in part, conviction and sentence of the appellant No. 1 Kamal as passed by the learned trial Court are hereby affirmed, his appeal is dismissed, whereas appeal of appellant No. 2 Radheshyam is allowed in part. His conviction and sentence punishable under Section 302/34 of the I.P.C are set aside and he is convicted under Section 323 of the I.P.C., sentenced to the period already under gone ( 7 months) and fine of Rs. His conviction and sentence punishable under Section 302/34 of the I.P.C are set aside and he is convicted under Section 323 of the I.P.C., sentenced to the period already under gone ( 7 months) and fine of Rs. 1,000/-, in default of payment of fine he shall suffer additional R.I for two months. Appellant Radheshyam is on bail. He is directed to appear before the trial Court and deposit the fine amount on 24/01/2008, failing which the learned trial Court is directed to take appropriate legal action against this appellant and his surety, under intimation to this Court. ( 20. ) Office is directed to send the copy of this judgment along with the record immediately to the trial Court. Appeal allowed in part.