JUDGMENT By the Court.—Appellant Kailashi (A-4), father and his three sons Rajbir (A-1), Maharaj Singh (A-2) and Ram Narain (A-3) were tried by VIIth Additional Session’s Judge, Agra in S.T. No. 195 of 1982, State v. Rajbir and others, for offences under Sections 302, 302/34 I.P.C., P.S. Rakabganj, District Agra and were convicted for the said offences and sentenced to imprisonment for life vide impugned judgment and order dated 2.11.1982. While Rajbir (A-1) was convicted and sentenced under Section 302 I.P.C., rest of the appellants (A-2),(A-3) & (A-4) were convicted and sentenced u/s 302/34I.P.C. It is this judgment of conviction and sentence, which has been called in question by the convicted accused in the instant appeal before us. 2. Recession of background facts, as was slated in the orally dictated FIR Ext. Ka-1 and later on recited during the trial by the fact witnesses informant Ramzan Khan P.W.1, Munshi P.W.2 and Poham Singh P.W.3, were that the informant Munshi and his sibling brother Radhey Shyam (deceased) and the appellants herein were all resident of Katghar Eidgah, P.S. Rakabganj, District Agra. Deceased earned his livelihood by running a milk dairy. Appellant (A-1) had purchased milk from the deceased but had not paid it’s price regarding which the deceased was always raising a demand so much so that a day previous to the present incident, there was a verbal duel between the deceased and (A-1) on that score. 3. On the incident date 4.1.1982 at 12.30 P.M., on their way to Namner market, informant and Radhey Shyam (deceased) spotted (A-1) standing in front of his shop. Radhey Shyam (deceased) again repeated the expecto (demand of his money) on which (A-1) exhorted that his entire money will be repaid by eliminating him because he repeats expecto every day and immediately thereafter, at the instigation of (A-4), rest of the three (A-2), (A-3) and (A-4) charged and caught hold of the deceased on the road itself. (A-2) thereafter called upon (A-1) as to what he was looking for/what he was waiting for, and the deceased be murdered. On such an instigation (A-1) whisked out a knife and pierced it in the right side chest of Radhey Shyam. Infliction of injury resulted in injured squatting on the road pavement. Besides informant, the incident was witnessed by Nathi, Ramzan PW1, Poham Singh PW3, Inder, Jwala Prasad and many other passersby. On such an instigation (A-1) whisked out a knife and pierced it in the right side chest of Radhey Shyam. Infliction of injury resulted in injured squatting on the road pavement. Besides informant, the incident was witnessed by Nathi, Ramzan PW1, Poham Singh PW3, Inder, Jwala Prasad and many other passersby. After the assault, accused hurriedly shied away from the incident scene. Because of terror, nobody could muster courage to chase them. Informant put his injured brother Radhey Shyam (deceased) in a rickshaw and brought him to the District Hospital in Chhipi Tola locality where the doctor declared him dead. Meanwhile, family relatives of the informant also arrived in the hospital. Leaving the deceased’s cadaver in the vigil of his family members, informant rushed to the police station Rakabganj at a distance of one kilometer, where he dictated incident FIR to the Head Moharrir at 1.30 P.M. same day and on it’s basis, crime No. 9 of 1982, under Section 302 I.P.C. was registered against the named assailants at the police station. 4. Head Moharrir Badri Prasad Mishra had registered the crime by slating, on oral dictation, chik, Ext. Ka-1 and registering the crime at relevant GD Ext. Ka-8. Same day, sweeper Kali Charan brought the death memo of the injured Radhey Shyam (deceased), which too was entered in the GD No. 33 at 1.40 P.M., which is Ext. Ka-9. 5. SI R.S. Anand, P.W.7 commenced investigation into the offence interrogated the Head Moharrir at the police station itself and then, came to the incident spot and prepared the site plan Ext. Ka-10. Blood stained and plain earth were collected from the spot and were sealed in different containers, which are material Exts. 5 and 6. Recovery memo in that respect is Ext. Ka-11. Accused assailant Maharaj Singh (A-2) was arrested from the railway station, the same day. Witnesses Ramzan and Inder were interrogated and their statements were recorded by the I.O. Following day of the incident, (A-4) was arrested from Tilhar and his statement was recorded. A week thereafter (A-3) was also arrested from Tundla and his statement too was penned down. Two weeks thereafter, witnesses were interrogated and their statements were noted down by the I.O. Subsequently, inside the jail, (A-1) was interrogated on 1.2.1982, as he had already surrendered meanwhile and was confined in penitentiary. A week thereafter (A-3) was also arrested from Tundla and his statement too was penned down. Two weeks thereafter, witnesses were interrogated and their statements were noted down by the I.O. Subsequently, inside the jail, (A-1) was interrogated on 1.2.1982, as he had already surrendered meanwhile and was confined in penitentiary. Concluding investigation, P.W.7 charge-sheeted all the named assailants vide Exhibit Ka-12 dated 6.2.1982, in the Court of C.J.M. Agra, where on it’s basis Case No. 1210 of 1982, State v. Rajbir Singh and others, was registered. 6. Revisiting investigatory steps, inquest on the cadaver of the deceased was performed by S.I. Kali Charan, P.W.6, in the hospital, who was handed over the relevant papers by Constable Clerk Amar Singh at Chhipi Tola Crossing,and PW6 had drawn inquest memo Exhibit Ka-3 and other relevant papers letter to R.I., challan lash, photo lash etc. which are Exhibits Ka-4, Ka-5 and Ka-6. Concluding inquest proceeding the corpse was sealed and seals were affixed and seal impressions were prepared. Sealing the dead body, it was handed over to Constable Naksey Ram P.W.4 to be carried to the mortuary and therefore the aforesaid witness along with Rajendra Singh brought the dead body to the mortuary without allowing anybody to fiddle with it. 7. Dr. J.K. Agrawal P.W.5, had performed the autopsy on the cadaver of the deceased on 5.1.1982 at 1.30 p.m. after it was produced before him by Constables Rajendra Singh and Naksey Ram. Seal of the dead body was intact. According to the doctor, deceased was 26 years of age and a day has lapsed since he demised. He had an average built body. Following ante mortem injuries were detected by the doctor, which had been inflicted on the deceased : “1. Incised wound 1-1/2” x 1/2" chest cavity deep on the right side front of chest 1/4" away from mid line and 2" below the right nipple at 5 O’ Clock position. 2. Incised wound 1-1/2" X 4" bone deep at the back of first phalanx of the right middle finger.” 8. On internal examination, the doctor found that 5th right rib was cut, pleura was punctured and the lower lob of the lung too was was punctured with injury ½ cm x ¼ cm x ¼ cm. Pericardium was punctured and cut in an area of 1-¼ cm x ¼ cm x 1 cm on the right atrium. On internal examination, the doctor found that 5th right rib was cut, pleura was punctured and the lower lob of the lung too was was punctured with injury ½ cm x ¼ cm x ¼ cm. Pericardium was punctured and cut in an area of 1-¼ cm x ¼ cm x 1 cm on the right atrium. Autopsy doctor P.W.5 opined that the cause of deceased’s death was shock and hemorrhage as a result of sustained injury, which could have been inflicted upon the deceased at the time and date of the incident. From the dead body of the deceased doctor took out cloths, pant (material exhibit-1), a jerkin (exhibit-2), sweater (exhibit-3) and a baniyan (exhibit-4) and handed over these attires to the Constables. 9. Committal Court of C.J.M. Agra found the charge-sheeted offence triable by Session’s Court and therefore on 11.5.1982 committed the case of the appellants to the Court of Sessions where it was registered as S.T. No. 195 of 1982, State v. Rajbir and others. 7th Additional Session’s Judge, Agra charged(A-1) with offence under Section 302 I.P.C. and (A-2), (A-3) and (A-4) under Section 302/34 I.P.C. on 25.6.1982. Both the charges were read out and explained to the accused, who all after understanding the same, denied them and claimed to be tried and consequently, the Session’s Trial procedure was adopted to establish their guilt. 10. During the trial, prosecution relied upon oral testimonies of seven witnesses and amongst them informant Ramzan P.W.1, Munshi P.W.2, Poham Singh P.W.3, deposed as fact witnesses. Constable Naksey Ram P.W.4, autopsy doctor J.K. Agrawal P.W.5, S.I. Kali Charan P.W.6 and I.O. S.I. R.S. Anand P.W.7 testified as formal witnesses. 11. All the fact witnesses P.W.1, P.W.2 and P.W.3 repeated the same allegations regarding the incident, which were already penned down by the informant in the F.I.R. and resultantly all of them corroborated the entire prosecution version in it’s entirety. 12. Ramzan P.W.1 testified that all the appellants were very well known to him and at the date of the incident from tri-section way of Katghar locality, he was proceeding towards Eidgah Railway Station when he spotted that the deceased demanded price of milk sold from (A-1) on which (A-2), (A-3) & (A-4) retaliated by uttering that he demands the payment every day and therefore be caught hold and eliminated to subside the demand. Thereafter they had caught hold of the deceased and (A-2) had again exhorted (A-1) as to what he was looking for and deceased be knifed on which (A-1) had pierced a knife blow on the right side chest of the deceased. This incident occurred at half past 12 in the afternoon. The incident was witnessed by the witnesses named in the F.I.R. and thereafter the accused persons had sprinted away from the murder spot. Injured thereafter was carried to the hospital. On being cross-examined, this witness deposed that he lived in Eidgah Katghar locality and he had no work with the accused but he was well aware that (A-1) had a tea/milk shop. He denied the defence suggestion that he was employed at the shop of Ramesh, who was the brother of the informant. He further deposed that he was proceeding to Eidgah Railway station, where his brother Nazira was a rickshaw puller. Deceased was assaulted 20-25 paces away from the shop of (A-1) and initially when the deceased tried to protect himself, he was caught hold of by rest of the accused. From a distance of 4 or 5 paces, deceased had demanded the price from (A-1). Scuffle between the deceased and the accused spanned over 20 or 25 paces. During this scuffle, the deceased had not assaulted the accused but had endeavoured to get himself freed from the clutches of the assailants. From a distance of 8 or 10 paces, P.W.1 had witnessed the incident. Because of being terrified, PW1 had not attempted to save the deceased but had remonstrated the assailants to desist from their illegal act. After infliction of injury injured had wailed out for one or two minutes and thereafter had fainted. Preceding incident, P.W.1 had no conversation with the informant P.W. 2. This witness categorically and emphatically denied the defence suggestion of not being present at the spot and witnessing the incident and further he also denied that he is a perjurer. 13. Informant Munshi P.W.2, re-narrated and corroborated his FIR version as well as P.W.1 respecting entire incident and deposed that the deceased had a milk dairy business and (A-1) had purchased milk from his dairy but had not paid it’s price which was being regularly demanded by the deceased. A day earlier to his murder both (A-1) and deceased had a brawl amongst them because of aforementioned reason. A day earlier to his murder both (A-1) and deceased had a brawl amongst them because of aforementioned reason. At the incident time and date, both informant and the deceased were proceeding towards Namner market, when they passed in front of (A-1) tea/milk shop,they spotted (A-1) standing in front of his shop. Deceased had demanded the price of the milk sold which (A-4) had replied to dissipate the everyday expecto by eliminating the deceased. Informant corroborated P.W.1 regarding actual assault and he too testified that at the instigation by (A-4), rest of the two (A-2) & (A-3) along with (A-4) caught hold the deceased and thereafter (A-2) again instigated (A-1) as to what for he was waiting and on this instigation that (A-1) had whisked away a knife and had pierced it into right side chest of the deceased. Deceased had fallen on the ground sustaining the knife injury. He too stated that because of terror, he could not chase the assailants and the incident was witnessed by the persons named in his FIR. Subsequent to the incident he had carried his injured brother to District Hospital at Chhipi Tola, where the doctor had declared him dead. He had orally dictated his F.I.R. Exhibit Ka-1 at the police station and he had proved it’s contents. He had also narrated the time of incident to be half past 12 after noon. On being cross-examined, informant P.W.2 had testified that he too is engaged in milk dairy business and his brother Ramesh had got a tea shop near his milk dairy shop. He had denied the defence suggestion that the deceased was employed in Indian Oil Company as cleaner and he was never engaged in milk diary business. On further being probed, informant had disclosed that the deceased had five buffaloes and two cows. To the Court’s query, informant had stated that at a price of Rs. 10/Kg, Rs. 30 of the deceased were balanced on (A-1) regarding which, the deceased was raising demands since last a fort night and in his presence, the demand was raised two or three times. The scuffle on the earlier day had occurred in his presence, when the deceased had gone to (A-1) demanding the price, but in that fight deceased had not sustained any injury as the persons present there, namely Munna, Sompal and Dhanpal had separated them and pacified the incident. The scuffle on the earlier day had occurred in his presence, when the deceased had gone to (A-1) demanding the price, but in that fight deceased had not sustained any injury as the persons present there, namely Munna, Sompal and Dhanpal had separated them and pacified the incident. PW2 unhesitatingly admitted that in the murder case of Lala Ram deceased was falsely implicated and two years prior to his murder deceased was acquitted from that charge because the witnesses had turned hostile, while expressing his ignorance regarding the fact that in the murder case of Maqbool, Omi, Kuki and Shanker, who were friends of the deceased were being tried. Informant flatly rejected defence suggestion that relatives of Lala Ram had hostile feelings against the deceased because of the aforesaid incident. Regarding other criminal background of the deceased, informant expressed his ignorance. On further probing informant agreed that on the incident date, he had gone to the Court to attend his 145 Cr.P.C. case, but he came back early because a further date was given in that case because the presiding officer was not present and had gone elsewhere. This witness categorically and emphatically denied the defence suggestion that he was informed about the murder in the Court at 12.30 (P.M.) in the afternoon and from the Court he had gone to the hospital directly and F.I.R. was cooked up by him. He admitted that he had not disclosed the name of the assailants to the doctor but had informed him that the deceased was assaulted with a knife. To the defence question informant further stated that while deceased was being carried to the hospital by him his attires were not stained with blood because injured was made to sit on the footrest, while informant sat on the seat holding the deceased and he denied defence suggestion that he had not carried the deceased to the hospital. He had further deposed that from a distance of 8 or 10 paces, deceased has raised the demand of price from (A-1) in front of his shop. 14. He had further deposed that from a distance of 8 or 10 paces, deceased has raised the demand of price from (A-1) in front of his shop. 14. Regarding the site plan, he was questioned about the places where he was standing and about the way he had taken to go to the station when they had approached appellant’s shop, but defence had failed to elicit anything material from him which can caste a doubt on the prosecution story.PW2 further augmented prosecution case by corroborating P.W.1, when he testified that in the scuffle on the murder day, deceased Radhey Shyam had tried to save himself and stepped upto 15 to 20 paces but by that time the cloths of the deceased were not torn off. PW2 further deposed that rickshaw was available soon but by that time injured was unconsciously lying on the ground and after sustaining stab wound he had only uttered Amma-Amma once or twice. P.W.2 had also denied defence suggestion that P.W.1 was the servant at his shop and witness Inder too was a servant at the shop of his brother Ramesh while admitting the fact that witness Nathi was his cousin brother, who lived in Moti Katra. He has also admitted that (A-3) was a taxi driver and (A-2) had a milk shop on which the incident had occurred. He had denied defence suggestion that the deceased was murdered by some unknown persons. 15. Coming to the depositions of P.W.3, we consider it appropriate to eschew the same as he is not named in the FIR and for cogent and reliable reasons, learned trial Judge has also ignored his testimonies by categorizing him as an unreliable witness. He was interrogated by the I.O. after an unexplained inordinate delay of twenty six days and, therefore also, it is unsafe to rely upon his testimonies and, therefore, in tune with judicial discipline, we ignore his evidence. 16. Now adverting to the testimonies of formal witnesses, it is evident that they have stated those very facts which have been already recorded herein above and, therefore, are not being recapitulated to avoid repetition. 17. In their statements under Section 313 Cr.P.C., all the accused denied the prosecution version regarding actual incident but had admitted that the deceased had a milk dairy business. 17. In their statements under Section 313 Cr.P.C., all the accused denied the prosecution version regarding actual incident but had admitted that the deceased had a milk dairy business. They pleaded that they were implicated because of enmity but did not lead any evidence in support of their claim. 18. As has already been mentioned in the opening paragraph of this judgment, VIIth Additional Session’s Judge, Agra, after analyzing both oral and documentary evidences tendered before him concluded that the prosecution had successfully anointed accused guilt for the framed charges and, resultantly convicted and sentenced them by impugned judgment and order. It is this conviction and sentence, which has now been assailed in the instant appeal by the appellants. 19. After thirty years when the appeal was called out for hearing, nobody had appeared for the appellants to press their appeals inspite of repeated opportunities, and therefore we had appointed Sri Pradeep Kumar Mishra as amicus curiae to argue the appeal and assist the Court. We, therefore, have heard learned amicus curiae for the appellants and Sri Rama Shanker Yadav, learned AGA for the State. 20. At the outset, learned amicus curiae informed us that so far as appellants Maharaj (A-2) and Kailashi (A-4) are concerned, their appeals have been abated vide order dated 23.3.2012, as they have already died. He, therefore, urged that he will be addressing us only in respect of appellants Rajbir (A-1) and Ram Narain (A-2). 21. Assailing the impugned judgment, following were the submissions harangued by learned amicus curiae, that the prosecution version is unreliable and fabricated and the deceased was done to death at an unknown time by some unknown persons when nobody was present and preceding discovery of the dead body that the informant was sent for who had gone to the Court in connection with a case under Section 145 Cr.P.C. and thereafter, in connivance with the police, the FIR was cooked up and all the accused who constitute a family, being father and sons have been framed in. Role assigned to the three of the appellants except (A-1) was ornamental and throughout the incident, the three appellants except (A-1) remained bare handed. It is therefore inconceivable that they carried the same intention as that of (A-1).Site plan was drawn in a perfunctory manner by the I.O. who had conducted investigation as an eye wash. Role assigned to the three of the appellants except (A-1) was ornamental and throughout the incident, the three appellants except (A-1) remained bare handed. It is therefore inconceivable that they carried the same intention as that of (A-1).Site plan was drawn in a perfunctory manner by the I.O. who had conducted investigation as an eye wash. No place of vital importance from where the witnesses had seen the incident, from where the accused persons except Rajbir were present etc. has been depicted therein. The sole independent witness P.W.3 was disbelieved by the learned trial Judge himself by opining that he seems to be a got up and planted witness, which erodes the credibility of the entire prosecution version because if one witness can be planted then the informant too can be inducted as an eye-witness. Informant was not present during the occurrence and so is the case with Ramzan P.W. 1, who was at Eidgah Railway Station. With a tongue in cheek, it was also argued that P.W. 1 was a servant at the shop of Ramesh, who happened to be the brother of the informant and, therefore, is an interested and partisan witness on whose testimony, no reliance can be placed. It was also submitted that the raising of the demand day in and day out was enough provocation by the deceased and, therefore, the incident, which occurred all of sudden at the spur of moment with a single blow will not bring the case within the purview of Section 302 I.P.C. and will be covered only within the ambit of Section 304 part II I.P.C. and, therefore, appellants, if not acquitted of the charges framed against them, be convicted only under Section 304 part II I.P.C. and, therefore, conviction under Section 302 I.P.C. be scored out. For the crime under Section 304 part II I.P.C., learned counsel proposed a lenient sentence looking to the mitigating circumstances of passage of time and age of the appellants with no criminal background. 22. Learned AGA refuting the arguments raised by learned Amicus Curiae argued that it is a brought day light incident in which the deceased was caused fatal injury which in the ordinary course of nature was sufficient to cause his death and therefore, prosecution had successfully anointed the guilt of the appellants without any shadow of doubt. 22. Learned AGA refuting the arguments raised by learned Amicus Curiae argued that it is a brought day light incident in which the deceased was caused fatal injury which in the ordinary course of nature was sufficient to cause his death and therefore, prosecution had successfully anointed the guilt of the appellants without any shadow of doubt. All the accused appellants were named in the FIR, which was lodged just after an hour of the incident at a distance of one kilometer and hence the prompt lodging of the FIR indicates genuineness and truthfulness of the prosecution version. There was no reason for the two independent witnesses P.W.1 and P.W.3 to depose against the accused. P.W.1 belonged to a different caste and religion and had no enmity or affinity either with the accused or with the informant and therefore his testimony cannot be discarded or brushed aside. In his respect appellants’ criticism that he was a change witness is not tenable. His testimony is corroborated by the circumstances found at the spot as well as by other witnesses including the informant. There is medical consistency and corroborative evidences of the doctor and of the I.O. further supports the prosecution case in its entirety without vacillating at any stage. Provocation as argued by appellants is a puerile argument because demand of the balance amount of the sale proceeds by no stretch of imagination from a prudent hypothesis can be considered to be a provocation t commit the crime. Drawing the curtain of the argument, it was submitted that the prosecution had successfully established the guilt of the appellants and the opinion by the learned trial Judge in the impugned judgment does not require any interference by this Court, who should affirm the impugned judgment of conviction and sentence. The appeal lacks merit and should be dismissed, harangued learned AGA at last. 23. We have given our thoughtful consideration over the rival submissions and have critically examined the evidences on the record. We have also peeped through the trial Court record. In our conclusion, we find that the FIR respecting the incident was lodged promptly without delay wherein the specific role of (A-1) is mentioned. After the incident, injured was carried to the hospital and when he was declared dead by the doctor that the informant rushed to the police station and dictated his FIR just after an hour of the incident. After the incident, injured was carried to the hospital and when he was declared dead by the doctor that the informant rushed to the police station and dictated his FIR just after an hour of the incident. This thus, diminishes the possibility of any fabrication or concoction at the hands of the informant in mentioning part played by the real assailant. It has been admitted by the informant P.W.2 that but for the demand of money regarding the milk price between deceased and (A-1) there was no other enmity between them. Both of them were the residents of the same locality and knew each other very well and that is why no attempt was made to challenge the identity of the assailants. Deceased was engaged in a milk dairy business is an admitted fact, as in their statements under Section 313 Cr.P.C., all the accused have admitted the said prosecution version. (A-1) was engaged in a tea shop business, which fact is also admitted to both the sides. In such fact scenario, (A-1) must have required the milk for earning his livelihood and therefore, the prosecution case that the deceased had sold milk to (A-1) seems to be a correct narration about the incident. Place of the incident as well as time of murder has not been seriously challenged by the accused persons and no cross-examination of any of the fact witness was done in that respect although, all of them were subjected to searching cross-examinations by the accused persons. Since the accused have not questioned the date and time of the incident, we have no option but to accept prosecution allegation in that respect to be genuine and a correct narration. 24. From the autopsy report as well as from the testimony of the doctor J.K. Agarwal P.W.5 what is discernible is that the deceased had sustained an incised wound which could have been caused by knife. Perusal of the post-mortem examination report and the deposition of the doctor further revealed that the injury sustained by the deceased was so imminently dangerous that in all probability it would have caused the death of the deceased instantaneously. Both P.W.1 as well as P.W.2 had deposed that after one or two minutes of the infliction of injury deceased has lost his consciousness. He seems to have died at the spot or soon thereafter while being transported to the hospital. Both P.W.1 as well as P.W.2 had deposed that after one or two minutes of the infliction of injury deceased has lost his consciousness. He seems to have died at the spot or soon thereafter while being transported to the hospital. Thus, the prosecution version in that respect also seems to be a truthful narration. The argument of learned amicus curiae that the deceased was having a criminal background and therefore, was murdered by some unknown persons without being witnessed by anybody is a tenuous submission for which there is dearth of material on record. In that respect, but for a bald suggestion, no background was laid in the cross-examination. Further merely because P.W.1 happened to be a passerby is no ground to reject his testimony as he seems to be an independent witness belonging to another caste. Incident had occurred on the road and therefore, the criticism that P.W.1 was a chance witness does not appeal to reason. For those incidents which occur on the open road, in our view, the passersby are the most natural witnesses and not chance witnesses as it is only they who could witness the incident. We, therefore, reject the submissions of learned amicus curiae in this respect. In spite of searching cross-examination defence has not been able to create a dent in the testimony of P.W.1 regarding the actual incident and he being the witness of it. So far as P.W.2 is concerned his testimony does not suffer from any embellishment or concoction. He too was present at the spot. Defence has not been able to dislodge his testimony although they did made a feeble endeavour that he was present in the Court at the time when the incident occurred. Very bizarrely informant was not further probed on such a defence case to establish on probability such a fact. No question was put to him regarding the time when he was present in the Court. From the order-sheet, which was filed by the accused themselves, it is apparently clear that no proceedings in the case u/s 145 Cr.P.C. took place on that date and therefore, informant seems to have remained in the Court for a very short while. His presence at the incident scene therefore cannot be doubted. The criticism by the learned amicus curiae further does not appeal to reason because the injured was brought to the doctor by the P.W.2. His presence at the incident scene therefore cannot be doubted. The criticism by the learned amicus curiae further does not appeal to reason because the injured was brought to the doctor by the P.W.2. The memo was sent from hospital to the police station in that respect, which also supports the prosecution case. There are some insignificant and trivial discrepancies in the testimonies of P.W. 1 and P.W.2 but those discrepancies do not affect the main substratum of the prosecution case. Thus, we are of the opinion that so far as prosecution version respecting main assailant is concerned, it seems to be a truthful version. 25. Coming to the case of appellant Ram Narain (A-3) it is recollected that he has been convicted and sentenced u/s 302/34 34I.P.C. but vetting of evidence and attending circumstances inform us that his such a conviction and sentence is unsustainable. The reasons for our such an opinion are firstly that (A-3) was a driver and his presence at the spot does not seems to be possible. Secondly that (A-3) had no reason to participate in the incident. He had no enmity with the deceased nor the deceased had any axe to grind against him. Thirdly that prior to murder incident (A-3) had not associated himself at any earlier point of time between deceased and (A-1). He does not figure anywhere at any point of time. Fourthly, it is the prosecution case itself that the incident had occurred at the spur of the moment when the informant and the deceased were passing through the front of the shop of (A-1). Deceased at that time demanded payment of money, on which the incident started all of a sudden, when only (A-4) had instigated his three sons. (A-3) at that moment had not uttered even a single word. Fifthly that prosecution allegation that all the three sons pounced upon the deceased and had caught hold of him seems to be an exaggeration, as admittedly, but for ipse dixit there is no other averments against (A-3). Sixthly all through the incident it is admitted that (A-3) did not carry or wielded any weapon. Even in scuffle his role had not been mentioned. Seventhly (A-3) had no knowledge that (A-1) was carrying a knife with him. There is no evidence to that effect and therefore we are in grave doubt that (A-3) knew that (A-1) will stab the deceased. Even in scuffle his role had not been mentioned. Seventhly (A-3) had no knowledge that (A-1) was carrying a knife with him. There is no evidence to that effect and therefore we are in grave doubt that (A-3) knew that (A-1) will stab the deceased. He never instigated (A-1) to assault the deceased. Furthermore even at that instigation by (A-4), (A-1) did not act to cause any injury to the deceased. It was subsequent to the catching hold that (A-2) made another exhortation to (A-1) and on this later exhortation that (A-1) had whisked out a knife and had given a single blow on the right side chest of the deceased. There is no evidence that (A-3) at any point of time was in the knowledge of the fact that (A-1) at such a second instigation will stab the deceased. But for ipse dixit, there is no other convincing evidence on record for us to be satisfied conclusively and convincingly that (A-3) had the same intention or was aware at any point of time that (A-1) was carrying a knife and that he will thrust it on the right side chest of the deceased. The act of (A-1) therefore was an impulsive act at the second instigation by (A-2) and it is difficult to conclude that (A-3) also shared the same intention. He was bare handed and he did not exhort. He was a taxi driver and, therefore, his presence at the shop although doubtful may be innocuous. For applying Section 34 intention to cause death or/and crime should be either present prior to the incident or should develop at the spur of the moment. In the facts of the present case and relevant portion of evidences indicates unerringly that there was no intention to commit murder of the deceased since prior to the incident which occurred all of sudden at the spur of the moment. Even during course of the incident (A-3) had not done anything not even uttered a single word and, therefore, to bring his case within the ambit of Section 34 I.P.C. will be hazardous. His mere presence at the spot will not make him liable without any overt act or participation. It must be established convincingly that he was a conscious participant in the crime possessing the same intention. His mere presence at the spot will not make him liable without any overt act or participation. It must be established convincingly that he was a conscious participant in the crime possessing the same intention. Our thoughts are vacillating as to whether he was present at the spot or was only a silent spectator or whether he had caught hold of the deceased or whether his name has been inducted due to his relationship with other accused. Thus recapitulating mitigating circumstance in his favour seems to be that he was not having any previous enmity with the deceased nor was engaged in any business, he being the taxi driver must have been out in connection of his livelihood most of the times. Incident occurred at the spur of the moment and at that time (A-3) was empty handed and did not carry any weapon. He had not played any active role not even that of exhortation. He had not attempted to cause any injury to the deceased nor there is any evidence to that effect. Mere ipse dixit, all the witnesses that he had caught hold of the deceased does not inspire any confidence to us for applying Section 34 I.P.C. in his respect. At the first instigation, none of the person had taken any weapon. It was only after the second exhortation by (A-2) that only (A-1), all of sudden took out a knife and stabbed it in the right side chest of the deceased. At no point of time (A-3) had any knowledge that (A-1) was carrying the knife with him and that he will act in such a gruesome manner at the spur of the moment. There is no evidence worth and name in that respect. Only single blow was given by (A-1) at the second exhortation, which may not be known to (A-3) at all. (P.W.3) has been disbelieved and so far as the statements of P.W.1 and P.W.2 regarding exhortation are concerned, there are some discrepancies in it. According to informant, it was only (A-4) who had made the first exhortation but according to P.W. 1, it was rest of the two who had made an exhortation. This discrepancy, certainly indicate that all what had transpired all of sudden at the spur of the moment could not be witnessed by all the witnesses in it’s entirety. According to informant, it was only (A-4) who had made the first exhortation but according to P.W. 1, it was rest of the two who had made an exhortation. This discrepancy, certainly indicate that all what had transpired all of sudden at the spur of the moment could not be witnessed by all the witnesses in it’s entirety. Therefore, it is hazardous to convict an accused on the mere statement without there being any convincing material to that effect. No specific role or overt act has been assigned to (A-3). Mere echoing the same evidence therefore does not establish the charge. In this view of the matter, we are of the opinion that so far as (A-3) is concerned, the prosecution has not been able to anoint his guilt successfully and, therefore, he be taken out of the purview of Section 302/34 IPC and is entitled to benefit of doubt. 26. Residue of our discussion is that appeal of (A-3) succeeds and is allowed. His conviction under Section 302/34 IPC is hereby set aside and he is acquitted of that charge. (A-3) need not surrender, his personal and surety bonds are discharged. 27. Appeal of appellant Rajbir (A-1) is dismissed in toto and his conviction and sentence under Section 302 I.P.C. with life imprisonment, as is recorded in the impugned judgment and order is hereby confirmed. Rajbir (A-1) is on bail. He is directed to be taken into custody forthwith and be sent to jail to serve out remaining part of his sentence. His personal and surety bonds are hereby discharged. Let the copy of the judgment be certified to the learned trial Court for compliance. ——————