Judgment Madhavendra Saran, J. 1. Cr. Appeal No. 118 of 2004 has been preferred against the judgment and order dated 5.2.2004 passed by Shri Anand Deo Sharma, Additional Sessions Judge, F.T.C.V., Nawada in S. Tr. No. 94 of 2003/48 of 1992 whereby and whereunder he convicted the appellants under sec. 304 Part II read with 34 of the Indian Penal Code (in short as the Penal Code) and sentenced each of them to undergo rigorous imprisonment for ten years. It appears that though the appellants were also convicted under section 307/34 of the Penal Code but no separate sentence was awarded to them. 2. Cr. Revision No. 264/04 has been preferred by the petitioner Mumtaz Ahmad @ Mumtaz for enhancement of sentence awarded to opposite party nos. 2 to 4 i.e. the appellants. 3. This revision has been heard alongwith Cr. Appeal No. 118/04 and this judgment and order shall govern both of them. 4. Prosecution case, in short, is that on 31.10.1991 at about 9.00 AM informants son Md. Ishtehaque @ Nanhu was ploughing his land situated in Pandit Khandha and informant Md. Mumtaz was working in the field. In the meantime, his Gotias Moin Uddin armed with lathi alongwith two sons named Md. Mogis Uddin @ Pappu and Moiez Uddin @ Feku armed with lathi and dagger arrived there and asked them not to plough the land upon which the informants son replied that the land belonged to him. It is said that Moin Uddin and Mogis Uddin @ Pappu knocked him down on the ground and went on pressing his hands and feet. Moin Uddin asked his son Moiz Uddin @ Feku to kill him with dagger upon which Moiz Uddin @ Feku stabbed his son on his back as a result of which he fell down and became senseless. The informant went to save his son but Moin Uddin and Mogis Uddin who were holding lathi in their hands, assulted him as a result of which he sustained injury on his left hand and feet. Moiz Uddin @ Feku who was holding a dagger in his hand with a view to commit his murder, inflicted dagger injury on the left side of his head as a result of which he became injured and blood started oozing. Informants son Md. Imtiaj and other witnesses named Md. Akil, Md. Salimuddin and others witnessed the occurrence. Moiz Uddin @ Feku who was holding a dagger in his hand with a view to commit his murder, inflicted dagger injury on the left side of his head as a result of which he became injured and blood started oozing. Informants son Md. Imtiaj and other witnesses named Md. Akil, Md. Salimuddin and others witnessed the occurrence. The informant brought his son Md. Istehaque @ Nanhu to Pakaribarma Hospital for treatment but the medical officer referred him to Nawada Sadar Hospital for better treatment. It is said that Md. Istehaque died on way to Nawada Hospital. The fardbeyan of the informant was recorded at 16.15 hours in. Sadar Hospital, Nawada by the police on the basis of which Pakaribarma P.S. Case No. 75/91 dated 1.11.1991 was registered. The police after investigation submitted charge-sheet. The learned Chief Judicial Magistrate, by order dated 24.2.1992 took cognizance and later on committed the case to the court of session. After trial all the three appellants were convicted and sentenced to imprisonment as mentioned above. Against the said conviction and sentence, the appellants have preferred the present appeal before this Court. 5. The defence of the appellants was total denial of the alleged occurrence and false implication in this case due to land dispute. 6. To substantiate the charges the prosecution examined six witnesses who are P.W. 1 Md. Asgar Hussain, P.W. 2 Md. Kalim, P.W. 3 Md. Imtiaj, P.W. 4 Md. Akil, P.W. 5 Mumtaz Ahmad (informant) and P.W. 6 Muktinath Singh. It appears that P.W. 1 simply identified his signature as Exhibit-1 on the inquest report. P.W. 2 turned hostile and did not support the prosecution case. 7. P.W. 6 Dr. Muktinath Singh on 31.10.1991 was posted as Civil Assistant Surgeon at Sadar Hospital, Nawada. On the same day at about 4.45 PM he held post mortem examination on the dead body of Md. Imteyaz and found the following: External Examination: 8. Rigor mortis was present in lower limb only. One stab injury ante mortem in nature was located on the right side of back with incised margins of size 1/2" x 1/2" x 6" below the lower border of scapula. On dissection he found that injury had punctured the plura and there was cut in the right lobe of lung of size 1" x 1/2". Cause of death was haemorrhage and shock from intrathoracic bleeding from abovementioned incised wound of back. On dissection he found that injury had punctured the plura and there was cut in the right lobe of lung of size 1" x 1/2". Cause of death was haemorrhage and shock from intrathoracic bleeding from abovementioned incised wound of back. Time elapsed since death 12 to 18 hours. According to doctor the injury was possible by Chhura and the above injury was sufficient in ordinary course of nature to cause death. Post mortem report is Exhibit-2. On the same day at 1.00 PM he examined Md. Mumtaz and found the following injuries on his person: (i) Lacerated wound on the left side of head 1" x 1/2" x skin deep. (ii) Incised wound on the left lateral canthus size 1/4" x 1/3" x skin deep. (iii) Pain, swelling, limitation of movement and local tenderness of left shoulder joint, clavicle and scapular area. (iv) Multiple swellings with redness on the back 3" x 1/2", 2" x 1", 1 and 1/ 2" x 1/2". (v) Multiple swellings with redness on the left leg of size 2" x 1", 2 and 1/ 2" x 1/2". 9. All the injuries were caused by hard blunt substance except injury no. (II) which was by sharp cutting weapon such as Chhura, others by lathi. Age of injuries within 6 to 12 hours. All injuries were simple except injury no. (II) whose opinion was reserved for X-Ray but X-Ray plate was not produced. Injury report is Exhibit-Ill. At paragraph-7 this witness stated that rigor mortis starts between 2 to 6 hours and completely vanishes after 36 hours. Now the question is as to who caused above injuries on the person of two injured and in what manner they were caused. 10. P.W. 3 Md. Imteyaz is son of the informant. His name is also mentioned in the First Information Report. He stated before the Court that on the alleged date of occurrence at about 9.00 AM he had gone to serve breakfast to his father and brother Md. Ishtehaque. His brother Md. Ishtehaque and his father were ploughing the land in Pandit Khandha. At that very time Md. Moin, Md. Mobiz @ Pappu and Moiz Uddin @ Feku arrived there. Moiz Uddin @ Feku was armed with dagger and other two accused were carrying lathi. They claimed the land and asked the informants son to stop ploughing the same. His brother Md. Ishtehaque and his father were ploughing the land in Pandit Khandha. At that very time Md. Moin, Md. Mobiz @ Pappu and Moiz Uddin @ Feku arrived there. Moiz Uddin @ Feku was armed with dagger and other two accused were carrying lathi. They claimed the land and asked the informants son to stop ploughing the same. Informants son replied that the land belonged to him. An altercation between them took place and then Md. Moin and Pappu knocked down Md. Ishteyaque. Moin asked Feku to kill him whereupon Feku gave dagger blow on the back of informants son which he extracted after moving the same. According to this witness when his father rushed to save Md. Ishteyaque, accused Feku assaulted with dagger and other two accused assaulted him with lathi on hands and feet. On Halla Md. Akil and others saw the occurrence. Informants son was taken to Pakaribarma Hospital and from there he was referred to Nawada Hospital but on way to Nawada he died. According to this witness, the police recorded fardbeyan of his father at Nawada Hospital upon which his signature is Exhibit-1/1. 11. P.W. 4 Md. Akil is also a named witness of the F.I.R. He narrated the prosecution story. According to this witness also Pappu pulled down the informants son on the ground and Moin went on pressing him. Moin asked Feku to kill him by dagger and thereafter Feku gave dagger blow on the back of Ishteyaque and extracted the dagger by moving the same. Ishteyaque became senseless and when informant Mumtaz rushed to save him, Feku gave dagger blow on the head of the informant and other two accused assaulted him by means of lathi. 12. P.W. 5 Mumtaz Ahmad is the informant of this case. He narrated the entire prosecution story. According to this witness also Moin and Pappu pulled down the informants son on the ground and went on pressing his hands and leg. They asked Feku to kill him upon which Feku gave dagger blow on the back of Ishteyaque and extracted the dagger after revolving it. When he went to save his son, accused Feku assaulted him on head left side by dagger and other two accused assaulted him by lathi. He further stated that with the help of witnesses he brought Md. Ishteyaque to Pakaribarma Hospital. When he went to save his son, accused Feku assaulted him on head left side by dagger and other two accused assaulted him by lathi. He further stated that with the help of witnesses he brought Md. Ishteyaque to Pakaribarma Hospital. The doctor referred both of them to Nawada Sadar Hosiptal. Ishteyaque died on way to Nawada Hospital. Police recorded his statement in Nawada Hospital upon which his signature is Exhibit-1/2. 13. From the evidence of P.Ws. 3, 4 and 5 it is clear that over ploughing of land an altercation took place between the informants son Md. Ishteyaque and the accused persons. Both claimed the land. In course of altercation accused Moin and Pappu pulled down Ishteyaque on the ground and went on pressing his hands and feet. Moin asked his another son Feku to kill him and thereafter Feku gave one dagger blow on the back of Md. Ishteyaque and extracted the dagger by revolving the same. Soon after the assault, Ishteyaque was taken to Pakaribarma Hospital. The doctor referred him to Nawada Sadar Hospital but on way to Nawada Sadar Hospital he succumbed to the injury. The doctor during post mortem examination found stab wound on the back of Md. Ishteyaque which proved fatal. 14. It was contended on behalf of the appellants that according to medical evidence the death of Md. Ishteyaque occurred within 12 to 18 hours prior to post mortem examination which was done on 31.10.1991 at 4.45 PM. He further contended that according to doctor, informant Md. Mumtaz sustained the injuries 6 to 12 hours prior to medical examination which was done on the same day at 1.00 PM. He, therefore, contended that medical evidence completely demolishes the prosecution case. No doubt the medical evidence has great corroborative value. In the present case according to F.I.R. the alleged occurrence took place at 9.00 AM on 31.10.1991. Similar is the oral evidence of P.Ws. 3, 4 and 5. This Court has seen the evidence of the doctor. The opinion of the doctor did not completely rule out the injuries taking place in the manner as alleged by the eye witnesses. The testimony of eye witnesses, therefore, cannot be thrown on the ground of alleged inconsistency between it and medical evidence. The evidence of doctor is only a probability. Direct evidence of the witnesses to the occurrence is satisfactory and trustworthy. The testimony of eye witnesses, therefore, cannot be thrown on the ground of alleged inconsistency between it and medical evidence. The evidence of doctor is only a probability. Direct evidence of the witnesses to the occurrence is satisfactory and trustworthy. Therefore, such inconsistency has little value in this case. 15. P.Ws. 3, 4 and 5 have supported the manner of occurrence. The doctor has found stab wound on the back of Md. Ishteyaque which according to him was sufficient in ordinary course of nature to cause the death. Similarly the doctor has found injuries on the person of informant Md. Mumtaz (P.W. 5). The trial court has also convicted the appellants under sec. 307 read with 34 of the Penal Code for causing injuries to Md. Mumtaz. As mentioned above according to P.W. 5 Md. Mumtaz Ahmad when he rushed to save his son accused Feku assaulted on his head left side by means of dagger and the other two accused assaulted him by lathi. There is nothing to show that the appellants were conspired by intention to commit murder of Md. Mumtaz. There was no repetition of blow by Feku. The doctor did not find all the injuries on vital part of body of Mumtaz. There was no intervening circumstances. The intention or knowledge to constitute murder is wanted in this case. As per medical report the doctor has found only simple injuries on the person of Mumtaz. In these facts and circumstances, the appellant Feku is found guilty under sec. 324 of the Penal Code and the rest two appellants are found guilty under section 323 of the Penal Code. 16. It was contended on behalf of the informant that on the basis of evidence on record, offence under sec. 302 of the Penal Code is made out. In the present case admittedly only one dagger blow was given on the back of the deceased Md. Ishteyaque. There was no repetition of blow by accused Feku. It appears from the evidence on record that the blow was given in the heat of passion. The deceased died few hours after the assault. The evidence on the record did not show any intention on the part of Feku to kill the deceased Ishteyaque but he knew that the act was likely to cause the death. It appears from the evidence on record that the blow was given in the heat of passion. The deceased died few hours after the assault. The evidence on the record did not show any intention on the part of Feku to kill the deceased Ishteyaque but he knew that the act was likely to cause the death. The manner in which all the three appellants arrived at the scene and committed the occurrence is sufficient to show that they shared the common intention. The trial court, therefore, has rightly convicted all the three appellants under sec. 302 Part II read with 34 of the Penal Code. The conviction of all the three appellants under sec. 307 read with 34 of the Penal Code is set aside and appellant Feku is convicted under sec. 324 of Penal Code for causing hurt to Md. Mumtaz by means of dagger and other two appellants named Moin and Pappu are convicted under section 323 of the Penal Code. 17. Now coming to the question of sentence ! find that the three appellants are facing this criminal prosecution since last 16 years. It is settled view that punishment should be proportionate to the gravity of the offence but the passing of the time is a good ground for imposing lesser sentence. 18. in the facts and circumstances of the case, appellants named Moin Uddin, Md. Mogis Uddin @ Pappu and Moies Uddin @ Feku are sentenced to undergo rigorous imprisonment for five years under sec. 304 Part II read with 34 of the Penal Code. No separate sentence is awarded to them for offence under sections 324 and 323 of the Penal Code. 19. With the above modification in conviction and reduction in sentence the appeal and revision are dismissed.