Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 313 (ALL)

HARI DAYAL v. STATE OF U. P.

2018-02-06

A.P.SAHI, RAJEEV MISRA

body2018
JUDGMENT Hon’ble Rajeev Misra, J.—This Criminal Appeal is born out of the judgement and order dated 10.5.2011 passed by the Special Judge, S.C.S.T. Act, Jhansi in Special Trial No. 70 of 2011 (State of U.P. v. Heera Lal and Hari Dayal), arising out of Case Crime No. 200 of 2001, under Sections 302 I.P.C. and Sections 3 (2) (5) S.C.S.T. Act, P.S. Mauranipur, District Jhansi, convicting and sentencing the appellants for imprisonment for life and imposing a fine of Rs. 10,000/- upon each of the accused-appellants under Section 302 read with Section 34 I.P.C. In case of default, they were further directed to undergo two years rigorous imprisonment. 2. An incident is alleged to have occurred on 15.6.2001 at 5.30 p.m. at Chhatarpur Road- Bye pass Malkethi Parao (Ground) within Police Station Mauranipur, District Jhansi, when the accused-appellants Hari Dayal and Hira Lal duped Vijay Kumar for a drink. They took him to a place called Malkethi Parao (Ground) Chhatarpur Road- Bypass, where all the three are alleged to have taken liquor together. All of a sudden, while they were drinking, accused Hari Dayal and Hira Lal suddenly assaulted Vijay Kumar with lathi/danda (stick) and chaku (knife). Pankaj, son of Ram Milan and Kailash, son of Jati upon witnessing the occurrence challenged the accused. Thereupon, the accused persons leaving the injured Vijay Kumar ran away. The injured Vijay Kumar was taken to the Community Health Centre, Mauranipur, by Santosh, where he is alleged to have been administered first aid and two of the wounds on his body are also alleged to have been stitched by the doctor, who attended him at the aforesaid Community Health Centre. But looking at the serious condition of the injured Vijay Kumar, he was referred to the Medical College, Jhansi for effective treatment from where he was further referred to K.G.M.C., Lucknow on 16.6.2001. Accordingly, the injured Vijay Kumar was taken to Lucknow in a motor car. As the car reached at a place called Karta Modh, the injured Vijay Kumar breathed his last. Consequently, the party taking the injured to Lucknow returned and deposited the dead body of Vijay Kumar in the mortuary of the Medical College, Jhansi on 15.6.2001. 3. The Medical College, Jhansi, where the body of the deceased Vijay Kumar was deposited came within the area of Police Post (Chauki) University (Vishwavidyalaya) Police Station Nawabad. Consequently, the party taking the injured to Lucknow returned and deposited the dead body of Vijay Kumar in the mortuary of the Medical College, Jhansi on 15.6.2001. 3. The Medical College, Jhansi, where the body of the deceased Vijay Kumar was deposited came within the area of Police Post (Chauki) University (Vishwavidyalaya) Police Station Nawabad. As such the police of the aforesaid Police Station got the panchayatnama/inquest of the deceased done on 16.6.2001. According to the panchayatnama/inquest report, the panchayatnama/inquest commenced at 16.45 p.m. and concluded at 18.00 p.m. As per the panch witnesses, the death of the deceased Vijay Kumar was homicidal and was on account of the ante-mortem knife injury. 4. Subsequent to the completion of the inquest/panchayatnama of the body of the deceased Vijay Kumar, an F.I.R. dated 16.6.2001 was lodged at 18.40 p.m. by the first informant Suresh Chandra Prakash with the police of Police Station Mauranipur, District Jhansi, resulting in Case Crime No. 200 of 2001, under Section 302 I.P.C. and Sections 3 (2) (5) S.C.S.T. Act, P.S. Mauranipur, District Jhansi. 5. The prosecution story as unfolded in the F.I.R. is substantially the same as noted above. 6. After the lodging of the above mentioned F.I.R. dated 16.6.2001, the police of Police Station Mauranipur, District Jhansi came into action. The post-mortem upon the body of the deceased Vijay Kumar was conducted on 17.6.2001. As per the post-mortem report (Ext. Ka-2), the same was conducted by Dr. U.K. Jain. In the opinion of the doctor, the cause of death of Vijay Kumar was haemorrhage and shock due to ante-mortem injuries. The following injuries were found upon the body of the deceased : (1) A stitched wound having 5 stitches 4 cm. long on left side of forehead 3 cm. above the eyebrow. (2) A 5 cm. long stitched wound having 6 stitches. (3) Incised wound 4 cm. X 2 cm. on Anterior abdominal wall 20 cm. above umbilicus at 11-12 ‘O’ Clock position. 7. The Investigating Officer, who was investigating Case Crime No. 200 of 2001, under Section 302 I.P.C. and Sections 3 (2) (5) S.C.S.T. Act, P.S. Mauranipur, District Jhansi upon completion of the investigation opined to submit a charge-sheet against the accused-appellants. Accordingly, a charge-sheet dated 3.8.2001 (Ext. Ka-6) was submitted against the accused-appellants under Section 302 I.P.C. and Sections 3 (2) (5) of the S.C./S.T. Act. 8. Accordingly, a charge-sheet dated 3.8.2001 (Ext. Ka-6) was submitted against the accused-appellants under Section 302 I.P.C. and Sections 3 (2) (5) of the S.C./S.T. Act. 8. The Trial Court, vide order dated 4.3.2002 framed two charges against the accused-appellants. While charge No. 1 related to an offence under Section 302 read with Section 34 IPC, the charge No. 2 pertained to an offence under Section 3 (2) (5) S.C./S.T. Act. 9. The accused-appellants denied the charges so framed against them and demanded trial. Consequently, the trial of the accused-appellants commenced in the Court of Special Judge S.C./S.T. Act, Jhansi. 10. The prosecution in support of its case adduced nine witnesses namely P.W. 1 Sureshchandra, P.W. 2 Pankaj, P.W. 3 Dr. U.K. Jain, P.W. 4 Kailash, P.W. 5 Head Constable Ishwardas, P.W. 6 Vinod Kumar, Circle Officer Police, P.W. 7 Asif Iqbal, P.W. 8, S.I. Bani Singh and P.W. 9 Hemant Seth. 11. Apart from placing reliance upon the testimony to be given by the aforesaid witnesses, the prosecution also relied upon documentary evidence, which were duly proved and consequently marked as Exhibits. The same are catalogued herein below: Ext. Ka-1 Tahrir Report (written) Proved by Sureshchandra, PW-1 Ext. Ka-2 Post-mortem Report Proved by Dr. U.K. Jain, PW-3 Ext. Ka-3 Check F.I.R. Proved by Head Constable Ishwardas, PW-5 Ext. Ka-4 Registration of Case G.D. Proved by Head Constable Ishwardas, PW-5 Ext. Ka-5 Certificate of destroying of original G.D. Proved by Head Constable Ishwardas, PW-5 Ext. Ka-6 Charge-sheet Proved by Circle Officer Vinod Kumar, PW-6 Ext. Ka-7 Site Plan Proved by Circle Officer Vinod Kumar, PW-6 Ext. Ka-9 Letter of C.M.O. relating to post-mortem Proved by S.I. Bani Singh, PW-8 Ext. Ka-10 Letter of Wireless Inspector Proved by S.I. Bani Singh, PW-8 Ext. Ka-11 Police Paper No. 13 Proved by S.I. Bani Singh, PW-8 Ext. Ka-12 Photo lash Proved by S.I. Bani Singh, PW-8 Ext. Ka-13 Sample of seal Proved by S.I. Bani Singh, PW-8 Ext. Ka-14 Plain Earth and blood stained earth Proved by S.I. Bani Singh, PW-8 12. The accused-appellants denied their involvement in the crime in question and took the defence that they have been implicated only on the basis of suspicion. Furthermore, while the statement of the accused-appellants was recorded under Section 313 Cr. P. C., they clearly stated that they shall adduce rebuttal evidence in proof of their innocence. 13. The accused-appellants denied their involvement in the crime in question and took the defence that they have been implicated only on the basis of suspicion. Furthermore, while the statement of the accused-appellants was recorded under Section 313 Cr. P. C., they clearly stated that they shall adduce rebuttal evidence in proof of their innocence. 13. On behalf of the accused-appellants, the following submissions were made before the Court below in proof of their innocence. (a) The incident has occurred on 15.6.2001, whereas the F.I.R. has been lodged on the second day i.e. 16.6.2001 at 18.40 hours for which no satisfactory explanation has been offered by the prosecution explaining the delay which creates reasonable doubt about the occurrence. (b) The incident in which the criminality is alleged to have been committed by the accused-appellants is wholly doubtful as Kailash informed P.W. 1 Suresh Chandra Prakash about the occurrence at 6.00 p.m., whereas Suresh Chandra Prakash in his testimony has stated that at 6.00 p.m., he was talking to his injured brother Vijay Kumar and therefore, Suresh Chandra Prakash could not have reached the hospital at 6.00 p.m. (c) According to the statement of P.W. 2 Pankaj, he arrived at the place of occurrence on a bicycle and took the injured Vijay Kumar on the same. On way, he met Santosh and thereafter took the injured Vijay Kumar on a four wheel thela to the doctor. Thereafter, the injured was taken on a two seater to Mauranipur Hospital. However, Santosh and Hari Ram have not been produced in evidence. (d) Placing reliance upon the judgement reported in 2009 (3) JIC, 199, (SC), it was contended that adverse inference should be drawn against the prosecution for not producing Santosh and Hari Ram. (e) It has not come in the statement of any of the witnesses that the crime was committed on account of the enmity and therefore no motive can be attached to the accused-appellants in committing the crime. (f) That in taking the injured Vijay Kumar to the doctor and thereafter, to the Hospital at Mauranipur, the clothes of Pankaj must have received blood stains. However, neither Pankaj has been adduced in evidence, nor the Investigating Officer has prepared a memo of the blood stained clothes of Pankaj. (g) There is a contradiction in the statement of P.W. 1 Suresh Chandra Prakash and P.W. 2 Pankaj. However, neither Pankaj has been adduced in evidence, nor the Investigating Officer has prepared a memo of the blood stained clothes of Pankaj. (g) There is a contradiction in the statement of P.W. 1 Suresh Chandra Prakash and P.W. 2 Pankaj. According to P.W. 1 Suresh Chandra Prakash, the injured Vijay Kumar was brought from Mauranipur Hospita to Medical College, Jhansi in a Maruti Car, whereas P.W. 2 Pankaj has stated that the injured Vijay Kumar was brought from Mauranipur to Medical College, Jhansi in an Ambassador Car. (h) P.W. 4 Kailash is an eye-witness of the occurrence. However, he had been declared hostile. But in view of the law laid down in the case reported in AIR 2008 (SC) 320 and 2009 Cr LJ 1, it was contended that the entire statement of a witness declared hostile cannot be discarded. (i) The alleged oral dying declaration made by the injured Vijay Kumar has not got been proved by producing the doctor or any other independent witness. (j) The F.I.R. has been lodged with delay after thinking over the entire happening. (k) The panchayatnama/inquest should be conducted subsequent to the lodging of the F.I.R. as per the mandate of law provided in the judgement reported in 2009 (3) JIC 520, whereas the panchayatnama has been conducted on 16.6.2001 and commenced at 16.45 p.m., whereas the F.I.R. has been lodged on 16.6.2001 at 18.40 p.m. (l) The prosecution witnesses have admitted that the injured was taken to the Hospital. However, the blood stained clothes of the injured Vijay Kumar has not been taken by the Investigating Officer, nor they have been produced in the Court. As such, they create a serious doubt about the incident. (m) The accused persons are not liable to be convicted for the alleged offence, as per the mandate of law as reported in 2003 Cr. L.J. 2312, as the injured was treated at Community Health Centre, Mauranipur, prior to the lodging of the F.I.R., whereas no information regarding the same was given by the doctor to the police Station. (n) Pankaj is the solitary eye-witness adduced by the prosecution. However, his testimony cannot be relied upon unless it is proved to be true, natural and beyond doubt particularly in view of the fact that no disclosure of the occurrence was made by him to the family members of the injured as well as the police. (n) Pankaj is the solitary eye-witness adduced by the prosecution. However, his testimony cannot be relied upon unless it is proved to be true, natural and beyond doubt particularly in view of the fact that no disclosure of the occurrence was made by him to the family members of the injured as well as the police. (o) As per First Information Report and the investigation of the case, it has come that the crime is alleged to have been committed by the use of lathi or danda which being contradictory do not establish as to whether the injured was assaulted by a lathi or a danda. 14. The aforesaid submissions made on behalf of the accused-appellants before the Court below did not find favour and accordingly, the Court below convicted the accused-appellants of the charge under Section 302/34 IPC, but acquitted them of the charge under Section 3 (2) (5) of the S.C./S.T. Act, vide judgement and order dated 10.5.2011. 15. Thus, feeling aggrieved by the judgement and order dated 16.5.2011 passed by the Special Judge, S.C./S.T. Act, Jhansi, the accused-appellants have filed the present Criminal Appeal. 16. We have heard Mr. Rai Sahab Yadav, Advocate for the accused-appellant No. 1 and Mr. Noor Mohammad, learned counsel appearing for the accused-appellant No. 2 as well as Mr. Saghir Ahmad, the learned A.G.A. alongwith Mr. Rishi Chaddha, and Mr. V.P. Yadav, learned A.G.A. and Sri Awadhesh Shukla, Brief Holder for the State. 17. Before we proceed to consider the rival submissions raised before us, it will be useful to note the following distinguishing facts of this case. (a) There is no documentary evidence on the record regarding the treatment offered to the injured Vijay Kumar at the Community Health Centre, Mauranipur or the Medical College, Jhansi. (b) The doctor who treated the injured Vijay Kumar at the Community Health Centre or at the Medical College, Jhansi have not been produced as witnesses by the prosecution. (c) The accused-appellants have been implicated on the ground that the injured Vijay Kumar has implicated the accused-appellants in the commission of the crime. (d) The disclosure made by the injured Vijay Kumar implicating the accused-appellants in the commission of the crime amounts to an oral dying declaration. (e) In the absence of the doctor as a prosecution witness, there is no direct evidence to rely upon such oral dying declaration. (d) The disclosure made by the injured Vijay Kumar implicating the accused-appellants in the commission of the crime amounts to an oral dying declaration. (e) In the absence of the doctor as a prosecution witness, there is no direct evidence to rely upon such oral dying declaration. (f) In the F.I.R. Pankaj and Kailash are alleged to be the eye-witnesses of the occurrence, whereas P.W. 1 the first informant has stated in his testimony that the occurrence was witnessed by Pankaj and Santosh. (g) The version given in the F.I.R. and in the statement of P.W. 1 are contradictory to each other, even when the source of knowledge of the first informant regarding the occurrence is the oral dying declaration of the injured Vijay Kumar. (h) P.W. 4 Kailash has been declared hostile, yet his testimony is liable to be relied upon to a certain extent. (i) Santosh, who is alleged to be an eye-witness of the occurrence has not been adduced in evidence. (j) The prosecution case depends solely upon the credibility and reliability of P.W. 1 Pankaj. (k) The defence has not adduced any documentary evidence nor produced any witness in support of its defence even when the accused-appellants in their statements under Section 313 Cr. P. C. clearly stated that defence evidence shall be adduced by them. 18. Learned counsel for the accused-appellants has raised the following submissions in support of the appeal: (A) The F.I.R. is ante-timed. (B) The oral dying declaration alleged to have been made by the injured Vijay Kumar has no evidentiary value and thus cannot be relied upon. (C) The two prosecution witnesses i.e. P.W. 1 and P.W. 2 are neither credible nor reliable, as such their testimony is not liable to be relied upon. (D) The prosecution has failed to establish the existence of a common intention in the minds of the accused-appellants to commit the crime and therefore Section 34 IPC is not applicable. (E) There is no premeditated mind on the part of the accused-appellants to commit the crime, as such they are entitled to the benefit of Section 304 Part II IPC. 19. Having perused the evidence on record and having considered the submissions raised what we find is that the F.I.R. cannot be treated to be ante-timed merely on account of the panchayatnama having been prepared earlier and the F.I.R. having been lodged later on. 19. Having perused the evidence on record and having considered the submissions raised what we find is that the F.I.R. cannot be treated to be ante-timed merely on account of the panchayatnama having been prepared earlier and the F.I.R. having been lodged later on. We have noted above that after the deceased was assaulted, he was first taken to the Community Health Centre at Mauranipur and from where he was referred to the Jhansi Medical College. The Jhansi Medical College had further referred him to K.G.M.C., Lucknow, but before he could reach the Institute, he died mid way. The body of the deceased was brought back to Jhansi Medical College and was kept in the mortuary of the aforesaid Medical College. The concerned ward boy of the Medical College informed the local police and the Sub Inspector of Police of Police Post Jhansi University arrived. He thereafter got the panchayatnama of the body of the deceased prepared in the Medical College itself. It is this reason which has clearly been established by the prosecution which led to the lodging of the F.I.R. at police station Mauranipur, where the incident had occurred after the deceased had died. The preparation of the panchayatnama, therefore, does not in any way reflect on the ante-timing of the F.I.R. Learned counsel for the appellants then urged that the timing of the F.I.R. has been incorrectly mentioned in the panchayatnama. This error of timing in the panchayatnama may have occurred on account of the aforesaid reason, but the same is not a material description which can in any way alter the prosecution story that has been proved to the hilt. 20. The oral dying declaration even if treated to be not of any evidentiary value will not affect the prosecution case. The fact remains that the deceased had died on account of the injuries caused by the assailants which fact taken in sequence clearly establish that the incident had occurred as a scuffle, which resulted in the assault by the appellants and that was witnessed by P.W. 1 and P.W. 2. Thus ocular testimonies in spite of cross-examination could not be dislodged and consequently the said evidence being trust worthy and worthy believing, the oral dying declaration, even if, not proved will have no bearing on the outcome of the result. Thus ocular testimonies in spite of cross-examination could not be dislodged and consequently the said evidence being trust worthy and worthy believing, the oral dying declaration, even if, not proved will have no bearing on the outcome of the result. The credibility of the prosecution witnesses their presence at the scene of occurrence and having witnessed the crime, therefore, on the basis of the evidence led clearly establishes the guilt of the appellants. The arguments, therefore, advanced on the merits of the appeal to the aforesaid extent, therefore, does not hold water. 21. The contention on the issue of the absence of medical reports of the Health Centre at Mauranipur and at the District Hospital, Jhansi is no doubt a lapse of investigation but the absence of such documentary evidence of medical assistance does not contradict the prosecution version that has been made available through the ocular testimony leading to the deceased being taken first to the Medical College at Jhansi and then being referred to the Post-Graduate Institute at Lucknow. The death of the deceased mid way and his body being deposited in the mortuary at Jhansi has also been established. In the said background, where the reference was made but the deceased could not receive the medical treatment and he died, is sufficient evidence to corroborate the incident when the post-mortem also supports the timing of the incident. The trial Court has also commented upon this lapse with which we agree, but such a lapse is not a material lapse so as to disbelieve the entire prosecution story. 22. There is yet another argument raised by the learned counsel about the witness Kailash turning hostile as noted above and it does not surprise us that a witness has turned hostile who could have corroborated the entire episode but the same does not make any difference, inasmuch as, one of the other witnesses Santosh named in the FIR was also not produced. Learned counsel for the appellant stressed that this also further adds to a serious doubt about the presence of the eye-witness and there is no explanation as to why Santosh was not produced. In our opinion non-production of a nominated witness does not amount to a proof that the incident is false. Learned counsel for the appellant stressed that this also further adds to a serious doubt about the presence of the eye-witness and there is no explanation as to why Santosh was not produced. In our opinion non-production of a nominated witness does not amount to a proof that the incident is false. The defence on behalf of the appellant did not bring on record any such witness that may add to the theory of reasonable doubt that is sought to be advanced by the learned counsel for the appellant. 23. After having exhausted the arguments on the merits of the appeal both the learned counsel appearing for the accused-appellants virtually narrowed down their submissions on the question of sentence. Accordingly, the nub of the appeal in hand is the quantum of sentence which is liable to be awarded to the accused-appellants. 24. In order to answer the question regarding the quantum of sentence which is liable to be enforced against the accused-appellants looking into the nature of the criminality committed by them, it will be prudent to discuss in brief the meaning and impact of the words knowledge and intention in relation to Section 304 Part I as well as Part II IPC. 25. We have come across judgments relating to the interpretation of the words knowledge and intention, and the distinction between the two, while proceeding to consider the sentencing of the convicts by the trial Court and the assessment of the evidence in order to appreciate the argument on behalf of the appellants that the appellants deserve a lesser sentence in terms of Section 304 of the Indian Penal Code. There are a large number of cases that are available on the issue but in order to mention a few that meet the point, we begin with the judgment in the case of Kesar Singh and another v. State of Haryana, 2008 (15) SCC 753 . As to understand the distinction referred to above the relevant paragraphs of the said judgment are paragraph Nos. 26 to 30. The essence of the said paragraphs contained within its fold, reflect that intention is a conscious state of the mind coupled with an aroused activity for the purpose of achieving a pre-conceived end resulting in the conduct of the person so as to bring about a certain result. 26 to 30. The essence of the said paragraphs contained within its fold, reflect that intention is a conscious state of the mind coupled with an aroused activity for the purpose of achieving a pre-conceived end resulting in the conduct of the person so as to bring about a certain result. However, such an intention may not necessarily be premeditated whereas mere knowledge in contrast to intention signifies a mental state of realization pertaining to the awareness of certain facts but at the same time without reflection of an active faculty so as to achieve a determined end. This fine distinction about a subjective state of mind has to be gathered from the circumstances and the facts of a particular case, keeping in view, the vehemence with which the assault was made, the nature of the weapon used and the impact caused by the injury whether it be a singular or multiple in nature. 26. We then find that the Apex Court in the case of Aradadi Ramudu v. State Through Inspector or Police, Yanam, 2012 (5) SCC 134 , where the accused had assaulted his wife with a kitchen knife causing an injury on the neck, and was awarded a life imprisonment, the regular habit of wife beating of the accused was taken into account coupled with the nature of the injury on which the Court came to the conclusion that the act was a clear murder as defined under Section 300 IPC for which the punishment lay under Section 302 IPC and refused to modify the punishment under Section 304 IPC. 27. The third judgment is in the case of Rampal Singh v. State of U.P., (8) SCC 289, where once again, the Court on the appraisal of the facts came to the conclusion that the act of the accused was in the heat of passion without premeditation even though it was a case of a fire-arm injury caused in the abdomen and accordingly, it was held that there is no intention to kill even though there was knowledge on the part of the accused who was a former ex-army person about the consequences of using a rifle in attacking his own brother. Upon an analysis of all the judgments on the issue that was placed before the Court. The sentence was modified to part-I of Section 304 of the Indian Penal Code. 28. Upon an analysis of all the judgments on the issue that was placed before the Court. The sentence was modified to part-I of Section 304 of the Indian Penal Code. 28. The latest judgment that we have come across is that in the case of Surain Singh v. State of Punjab, 2017 (5) SCC 796 , where extending the benefit of Exception No. 4 of Section 300 IPC, the sentence was converted and the accused was convicted under Part-II of Section 304 IPC instead of Section 302 IPC, where the injury had been caused by the blow of Kripan. 29. On an analysis of the aforesaid judgments and the facts of the present case, we find that one of the accused Haridayal is alleged to have utilized a stick to cause two injuries on the head, the medico legal report whereof recites that no abnormality was detected. Thus, on a post-mortem of the body of the deceased, the said head injuries caused by the stick cannot be presumed or believed to be such so as to cause any fatal injury or for that matter even a grievous injury. The testimony of the doctor who conducted the post-mortem also substantiates the same. Secondly, the accused carrying the stick is not stated to be having any knowledge about a knife being carried in a cloth bag by the co-other accused Hiralal. Thus, a pre-meeting of minds between the two appellants for planning to murder the deceased is not corroborated by any independent, clinching or direct evidence. 30. None of the witnesses of the prosecution have been able to establish any previous enmity between the deceased and the accused or any previous incident that may have possibly led to the incident. The only inference that can be drawn is that the witnesses have narrated a sudden fight that may have been provoked either unilaterally or bilaterally resulting in heated exchanges and culminating into a fight. This is also admitted to the witness that this fight had occurred upon a round of drinks having been taken together during which hot discussions took place between the accused and the deceased. 31. A common intention can in a given circumstance also be gathered to have developed on the spot but such an intent in the present case on a sudden fight can also be on a bilateral provocation. 31. A common intention can in a given circumstance also be gathered to have developed on the spot but such an intent in the present case on a sudden fight can also be on a bilateral provocation. (See Harjit Singh v. State of Punjab, 2002 (6) SCC 739 ). The statement of the eye-witness does not lead to any such circumstance so as to infer a common intention. Even though common intention is not equivalent of same intention, yet on the facts of present case it is difficult to cull out any element of a common intention to commit murder. Reference be had to the following judgement on the aforesaid proposition. Gajraj Singh v. Emperor, AIR 1946 Oudh 250; Jarnail Singh v. State of Punjab, 1982 (3) SCC 221 . 32. It was suggested by the learned counsel for the appellant that the eye-witness has clearly in the cross-examination indicated the non presence of the knife in the hands of the accused, but the fact remains as discussed earlier that the nature of the injury caused by a stab wound is an incised wound of 15 cm in the abdomen. The utilization of such a sharp weapon, therefore, cannot be disbelieved merely because during the course of cross-examination the eye-witness has faltered in maintaining a clear stand of having seen the knife. No other cause has been suggested even as an hypothesis to co-relate the injury of the deceased to a fall or to having been caused by any other instrument or weapon. 33. The use of a knife does raise a doubt as to why the accused would be carrying a knife in a cloth bag and this gives rise to a suspicion as to why the accused was armed with a weapon which he had brought with him so as to co-relate it to an express intention on the part of the accused to commit the murder of the deceased. Examining this suspicion and doubt coupled with the evidence on record, we have not been able to gather anything from the evidence so as to construe that the knife had been carried purposely for the intention to commit murder. But the fact remains that no explanation has come forward from the side of defence except for setting up a case of bald denial. 34. But the fact remains that no explanation has come forward from the side of defence except for setting up a case of bald denial. 34. In order to arrive at a fair assessment, we have applied the tests as enunciated by the Apex Court as also the rules of evidence and we find that the existence of the knife does raise a doubt as to why it was carried to the scene of occurrence. But the prosecution has not led any evidence to establish that the said weapon had been brought by the accused only with the intention to kill. The fact, however, remains that the defence has also failed to dislodge this doubt by way of any evidence and, therefore, it would be safe to presume that the knife in the hands of the accused Hiralal was with the intention to cause a bodily injury that may likely result in death. Since, the utilization of the knife appears to be at the time of a heated exchange, we give benefit to this extent to the said appellant that the action of the accused though not unintentional by giving a single blow with a knife in on the facts and circumstances of the present case, be not taken as a desire to kill. In our opinion, even though part of the liver had been damaged as per the post-mortem report, there are no repeated blows and it appears that after having inflicted the single blow of knife, the accused may have fled away without intending anything further. 35. Thus for the reasons on the above analysis, the accused Hiralal having been assigned the role of utilizing the knife is entitled to get the sentence altered into 304 Part-I of the Indian Penal Code and we accordingly, reduce the life imprisonment awarded by the trial Court to the accused Hiralal by substituting it with 10 years of rigorous imprisonment. 36. Coming to the other accused Haridayal who had utilized a stick as discussed above, in the absence of the evidence of a common intention or a premeditated plan to murder the injury inflicted by the stick that which did not cause any abnormality, cannot be said to have been inflicted with any intention to cause a bodily injury that is likely to cause death. At best this would be a knowledge and not an intention. At best this would be a knowledge and not an intention. Consequently, the said accused also gets the benefit to that extent but his sentence in view of the role assigned and the evidence of his having knowledge of the consequences entitle him to a substantial reduction in the punishment of life imprisonment awarded to a punishment under Part-II of Section 304 of the Indian Penal Code. We accordingly, award him five years rigorous imprisonment and substitute the same for the lifer awarded to him. 37. The appeal is, therefore, partly allowed to the aforesaid extent. Accordingly the accused shall serve out the modified sentences as above,, and if already served, will be entitled to be released provided their period of incarceration is certified by the Jail Authorities.