Judgment : 1. Appeal No. 230 of 2005 is preferred by accused Kailash, who was convicted in Sessions Trial No.22 of 2003 for offence punishable under Sections 302 and 324 of Indian Penal Code and sentenced to [1] undergo Rigorous Imprisonment for life and a fine of Rs.1,000/-, in default, to suffer Rigorous Imprisonment for two months for the former offence, and [2] one year and a fine of Rs.500/-, in default, to suffer Rigorous Imprisonment for one month for the latter offence. State has preferred Criminal Appeal No. 292 of 2005 against acquittal of Accused Nos. 2 to 5 of the offence punishable under Sections 147, 148, 324 and 302 read with Section 149 of Indian Penal Code. 2. In all five accused persons were charged for commission of offence punishable under Sections 147, 148, 324 read with Section 149 and 302 read with Section 149 of Indian Penal Code, for forming an unlawful assembly on 4th November, 2002 at 9.15 p.m., at village Wathoda Khurd with a common object thereof to assault and commit murder of complainant Dinesh Patil and his brother Uddhav Patil respectively. 3. Prosecution had examined PW 1 – Dinesh Yashwantrao Patil, PW 3 – Ramesh Mahadeorao Dhamankar, and PW 4 – Balabhau Ramchandra Dhamankar as eye¬witnesses, PW 2 – Dr. Tulsidas Babulalji Bhilawekar as Medical Witness, and PW 5 – Rajendra Narayanrao Hade as a Panch witness to the Seizure Panchanamas of the clothes of Accused No. 1- Kailash and Accused No.5 – Shankar, and PW 6 – Pandurang Gulabrao Tayade, Investigating Officer. 4. PW 1 – Dinesh, who is the complainant as well as the victim of assault, has deposed narrating:- [a] The incident had occurred on 4th November, 2003 around between 9-00 and 9.15 p.m. [b] The accused Kailash was initially not having the weapon, i.e., the knife. [c] Accused No. 5 – Shankar brought it on the demand of Kailash. [d] All other accused caught hold of Uddhav, and Kailash gave a blow of knife on the right side of stomach of Uddhav and caused injury. [e] PW 3 – Ramesh M. Dhamankar removed the knife from the stomach of the victim Uddhav. The complaint [Exh.56] is proved by him. 5. Testimony of PW 1 – is sought to be corroborated by oral evidence of PW 3 – Ramesh Dahamankar, so also the testimony of PW 4 – Balabhau Dhamankar. 6. [e] PW 3 – Ramesh M. Dhamankar removed the knife from the stomach of the victim Uddhav. The complaint [Exh.56] is proved by him. 5. Testimony of PW 1 – is sought to be corroborated by oral evidence of PW 3 – Ramesh Dahamankar, so also the testimony of PW 4 – Balabhau Dhamankar. 6. PW 2 – Dr. Tulsidas has proved the autopsy report. 7. The injury, which has led to shock due to haemorrhage suffered by Uddhav, is described in his testimony as well as Post-mortem Examination Report, which reads as follows:- “1. Stab-injury to right chest wall, 2 inches right epigestirum. Size of injury was 3 inches x ½ inch into bony deep injuring lever and stomach. The probable age of injury was within 24 hours. Internal injuries were on:- Right side of chest wall 2 inches epigestirm. Pritonial cavity filled with blood. Stab injury 2 inches at cardiac and of the stomach, the 3rd injury vertical stab injury 1 inch x ½ inch x ½ inch on liver. Horizontal stab injury 3½ inch x 1 inch into bony deep on lever.” [Quoted from page no. 92 of the appeal paper book]. 8. This witness [PW 2 – Dr. Haridas] was cross-examined. In the cross-examination, the crucial admission sought by the defence reads as follows:- “............................................. .......In stab injuries, the length of the injury is lesser than its breadth. In present injury, the length is greater than its breadth. Not true to say that a person having sensitive, if received minor injury can be dead due to haemorrhagic shock. In this case, the patient had sustained haemorregic shock. I have not mentioned the measurement about the injuries to valve. If the valve was punctured, then by way of probing, the injuries can be detected with its measurement. It is not correct to say that the injuries was superficial one and not reached to the valve region. Not correct to say that in normal course, the injury in question cannot cause the death of person. If the patient would not have received haemorragic shock then he would have survived.” [Quoted from page no. 94 of the appeal paper book. Underlining is done to highlight the relevant and important portion]. 9. The other aspects of recovery of weapon are duly proved by the prosecution, and are not a matter of challenge. 10. If the patient would not have received haemorragic shock then he would have survived.” [Quoted from page no. 94 of the appeal paper book. Underlining is done to highlight the relevant and important portion]. 9. The other aspects of recovery of weapon are duly proved by the prosecution, and are not a matter of challenge. 10. The defence is not in a position to dispute the presence of accused on the scene of offence. Moreover, from the ocular evidence, the prosecution has duly proved the presence of accused persons on the scene of offence. 11. After appreciation of evidence, learned Sessions Judge arrived at the conclusion that:- [a] The fatal assault by Accused No.1 – Kailash was duly proved by the prosecution witnesses. [b] In so far as the involvement of other accused is concerned, PW 1 – Dinesh involves them with due narration, however, later part, i.e., involvement of other accused persons is not duly corroborated by the testimonies of other prosecution witnesses, namely PW 3 – Ramesh and PW 4 – Balabhau. 12. The learned Sessions Judge, in the result, held that:- [a] The Accused No.1 – Kailash is guilty for commission of offence under Section 302 as well as Section 324 of Indian Penal Code. [b] The involvement of other accused was not proved. [c] Any evidence as to preparation and prior meeting of minds was not brought on record. [d] The role of other accused was not felonious. 13. In the result, the learned Sessions Judge rendered the Judgment of conviction of accused no.1 – Kailash and of acquittal of other accused persons, as described in the beginning. 14. The said Judgment is challenged by convicted Accused – Kailash claiming total acquittal, or, in the alternative, punishment for offence of lesser gravity, and by the State, for conversion of order of acquittal of Accused Nos. 2 to 5 into that of conviction for the liability of acts of Accused No.1 in terms of the chargesheet. 15. Heard respective learned Advocates for the parties. 16. In order to oppose the State appeal as well as to support his claim for acquittal, learned Advocate Mr. J.B. Kasat placed reliance on the Judgment of Hon'ble Apex Court in case of Sukhbir Singh Vs. State of Haryana [ (2002) 3 SCC 327 ]. 15. Heard respective learned Advocates for the parties. 16. In order to oppose the State appeal as well as to support his claim for acquittal, learned Advocate Mr. J.B. Kasat placed reliance on the Judgment of Hon'ble Apex Court in case of Sukhbir Singh Vs. State of Haryana [ (2002) 3 SCC 327 ]. He has tried to demonstrate by reading evidence of PW 1 – Dinesh, PW 3 – Ramesh and PW 4 – Balabhau that:- [a] The controversy or fighting went on for one to one-and-half- hour. [b] While one witness says that there was a quarrel, in any event, in absence of antecedent quarrel, it could be a case of sudden fight. [c] In absence of evidence of meeting of minds, other accused cannot, in any case, be convicted for offence under Sections 147, 148 and 149 of Indian Penal Code, and, in the result, for every offence, vicariously. Learned Adv., Mr.J.B. Kasat, therefore, urged for allowing the appeal filed by accused – Kailash, and for dismissal of State appeal. 17. In this background, entire effort which the defence has to make was and is to come out of criminal liability either by creating suspicion about the knowledge or intention as proved by the prosecution evidence involving the accused, or exerting to bring the offence to a lesser gravity. 18. This Court has perused the circumstantial as well as oral evidence. 19. In so far as the aspect of ocular evidence is concerned, PW 1 – Dinesh has in clear words narrated the involvement of Accused No.1 – Kailash in the act of assaulting by knife on the abdomen of deceased Uddhav, and assault on himself by a stick etc. In so far as corroboration of testimony of PW 1 – Dinesh is concerned, PW 3 – Ramesh and PW 4 – Balabhau do corroborate the act of assault on Uddhav and PW 1 – Dinesh by Accused No.1 – Kailash. 20. In so far as involvement of other acquitted accused persons is concerned, the testimonies of these two witnesses fall weak. These two witnesses do not in unambiguous terms involve other accused persons by giving details of their acts as to how they too can be, or are roped into act of assaulting the deceased. 21. 20. In so far as involvement of other acquitted accused persons is concerned, the testimonies of these two witnesses fall weak. These two witnesses do not in unambiguous terms involve other accused persons by giving details of their acts as to how they too can be, or are roped into act of assaulting the deceased. 21. In so far as the aspect of injury on the person of Uddhav is concerned, this Court has already quoted the nature of injury and version of PW 2 – Dr. Tulsidas in his cross-examination. The cause of death is “Haemorrhage”, and it is obvious that had the haemorrhage not occurred, and had the haemorrhage been prevented, the death could have been avoided, which is the candid and clear admission of the expert medical witness – PW 2 – Dr. Tulsidas. 22. In so far as the manner in which the Accused No.1 – Kailash has caused injury, namely he had put the knife into the stomach of the victim Uddhav, which was removed by PW 3 – Ramesh Dhamankar is concerned, this fact goes to suggest that whether or not Accused No.1 had intention to take away the life of Uddhav, he is bound to have knowledge of the fact as to what happens when a knife of length of fifteen inches is put into the stomach of a human being. It can be a matter of common knowledge that such assault, when results in a deep stab injury, shall result into death, whether intended or not. 23. In the background as noted by the learned Sessions Judge, the parties were present on the scene of offence initially without deadly weapon. In the beginning only quarrel had continued, lateron the weapon was requisitioned and was used by accused Kailash. 24. Moreover, as the medical witness says that had the haemorrhage occurred, the life could have been lost, meaning thereby that saving or loss of life was a contingency, however, probability of loss of life was a certain knowledge to the Accused No.1. 25. 24. Moreover, as the medical witness says that had the haemorrhage occurred, the life could have been lost, meaning thereby that saving or loss of life was a contingency, however, probability of loss of life was a certain knowledge to the Accused No.1. 25. On the basis of evidence as obtained on record, this Court, therefore, arrives at a conclusion that it would not be possible to convict the Accused No.1 for offence punishable under Section 302, and he would be liable to be convicted for offence punishable under Ist part of Section 304 of Indian Penal Code, on account of the weapon used and the knowledge which is liable to be attributed to him. 26. In so far as other accused are concerned, their individual acts constituting offence or overtacts are not proved. Though their presence is proved, as the meeting of minds and common object is not proved, Sections 147, 148 and 149 of Indian Penal Code are not attracted, and they cannot be held liable for the acts of Accused No.1. 27. This Court, therefore, arrives at a conclusion to:- [a] Dismiss the State Appeal; [b] Partly allow the appeal filed by Accused No.1 – Kailash to the extent of converting the conviction for offence punishable under Section 302 to that of Section 304-I of Indian Penal Code, and maintain the conviction in relation to offence punishable under Section 324 of Indian Penal Code. 28. In so far as aspect of sentence is concerned, heard learned APP for the State and learned Adv. Mr. J.B. Kasat. 29. The offence under Section 304-I of Indian Penal Code is punishable with life, or ten years' Rigorous Imprisonment, with fine. 30. We are of the considered view that having regard to nature of weapon used and considering that there could not be any room of doubt about the knowledge of the effects of the act of the accused, he would be liable for sentence of Rigorous Imprisonment for eight years. The amount of fine and sentence in default shall be the same as ordered by the Sessions Court. Conviction and sentence for offence punishable under Section 324 of Indian Penal Code is maintained.