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2024 DIGILAW 1416 (ALL)

Ashok v. State of U. P.

2024-05-24

RAJIV GUPTA, SHIV SHANKER PRASAD

body2024
JUDGMENT : Hon’ble Rajiv Gupta, J. 1. Heard Shri Arun Kumar Pundir, learned counsel for the appellant in Criminal Appeal, Shri Ashish Tiwari, learned AGA for the State, Shri Abhishek Gupta, learned counsel for the accused-respondent-Raju, Shri Harshit Gupta, holding brief of Shri Rohan Gupta, learned counsel for the accused respondent-Kalloo and perused the record. 2. The instant criminal appeal as well as government appeal has been filed against the judgment and order dated 28.02.1984 passed by 6th Additional Sessions Judge, Kanpur in Sessions Trial No. 63 of 1983 (State of U.P. Vs. Ashok and Others), arising out of Case Crime No. 411 of 1982, Police Station Harbans Mohal, District Kanpur, by which the accused-appellant Ashok has been convicted for the offence under Section 302 read with Section 34 IPC and awarded the sentence of life imprisonment, whereas accused-respondents Raju, Kalloo and Chander have been acquitted of all the charges framed against them. 3. Since the basic facts, issues and the judgment of the trial court are similar and common, both criminal appeal as well as government appeal have been clubbed and heard together and the same are being decided by the common judgment. 4. Shorn of unnecessary details, prosecution story as unfurled in the FIR lodged by one Kamal Kumar, son of Shyam Lal based on a written report, which has been proved and marked as (Ext. Ka-2) is that first informant Kamal Kumar is the resident of House No. 61/203, Sitaram Mohal and few days back, there has been some verbal duel between his maternal uncle Dinesh Chand and one Ashok, who was putting his shop/kiosk in front of tea stall of the deceased, which was resisted by his maternal uncle, consequent to which, on 02.12.1982, when he along with his maternal uncle and one Satya Narayan had reached near Shivraj Tobacco Company in Harbans Mohal at about 06:40 p.m., Ashok son of Ram Chander, Chander son of Ram Shanker, Raju son of Ajay Gupta and Kalloo son of Kuwarji met them. Ashok and Raju were armed with knife, Kalloo then caught hold of his uncle Dinesh Chand by his waist and Chander held him his hands and made him fall down and exhorted to assault him, consequent to which, Ashok and Raju by their knives gave 4-5 blows causing injuries to Dinesh Chand, who fell down. Ashok and Raju were armed with knife, Kalloo then caught hold of his uncle Dinesh Chand by his waist and Chander held him his hands and made him fall down and exhorted to assault him, consequent to which, Ashok and Raju by their knives gave 4-5 blows causing injuries to Dinesh Chand, who fell down. On raising alarm, Ram Narayan and his younger brother Vimal Kishor reached the place of incident and witnessed the crime, however, the accused-assailants made their escape good. On account of fear, they did not chase them, however, since his maternal uncle was badly injured, as such, his brother Vimal Kishor rushed to take him to the hospital, however, en-route to the hospital, he succumbed to his injuries. Leaving his dead body there, he had gone to the Police Station to lodge the report. On the basis of a written report, FIR was lodged vide Case Crime No. 411 of 1982, under Section 302 IPC, carbon copy whereof has been drawn vide G.D. Report no. 46 at 20:10 hours dated 02.12.1982, which has been proved and marked as Exhibit Ka-4. The FIR was registered in the presence of S.H.O., Police Station Harbans Mohal, who was entrusted with the investigation of the present case. 5. The Investigating Officer recorded the statement of the first informant Kamal Kumar (P.W.1) and thereafter, he alongwith PW-1 reached the place of incident and found the blood and a shoe of the deceased lying there, which were taken in his possession and its fard recovery memo was prepared. 6. The Investigating Officer has further collected the plain earth and bloodstained earth from the place of incident and kept it in a container and prepared its recovery memo, which has been proved and marked as Ext. Ka-6 and Ext. Ka-7. 7. Thereafter, the Investigating Officer has prepared the site plan, which has been proved and marked as Ext. Ka-8 and then, reached the hospital and saw the corpse of the deceased but in the absence of proper arrangement, could not conduct the inquest, however, in the hospital, he recorded the statement of Vimal Kishor (P.W.3) and Satya Narayan, another eye-witness of the incident. 8. On the next day i.e. 03.12.1982, the inquest was conducted by S.S.I. R.S. Kushwaha, which has been proved and marked as Ext. Ka-9. The relevant documents, namely, photo nash, challan-nash, letter to R.I., letter to C.M.O. etc. 8. On the next day i.e. 03.12.1982, the inquest was conducted by S.S.I. R.S. Kushwaha, which has been proved and marked as Ext. Ka-9. The relevant documents, namely, photo nash, challan-nash, letter to R.I., letter to C.M.O. etc. were prepared, which have been proved and marked as Ext. Ka-9 to Ext. Ka-12. Thereafter, dead body of the deceased was sealed and dispatched to the mortuary for post-mortem examination. 9. An autopsy was conducted on the person of the deceased on 03.12.1982 at 04:40 p.m. The doctor has noted six injuries on his person, which are as under :- (i) incised wound of 7cm x 3cm x muscle deep down at the right lateral side of Back, transverse in direction 7 cm below the posterior axillary angle. (ii) Incised punctured wound of 3cm x 2cm x Chest cavity deep at the intercostal spine between 3rd & 4th ribs on right side of back, which is at medial end 14cm below the root of the back & 4cm from the backbone. It is transverse in direction. (iii) Incised wound of 4 cm x 2 cm x muscle deep at the right side of Back, above downwards in direction and at medial end (upper) is 14cm below the injury no. 2 and 7cm from the backbone. (iv) Incised wound of 3 cm x 1x1/2 cm x muscle deep at the right side of skull which is from transverse in direction and 11 cm above the right ear Tragus. (v) Incised wound 1 cm x ½ cm x muscle deep at the left side of eyebrow. (vi) Contusion of 4 cm x 2.5 cm at the right side of forehead just above the eyebrow. 10. Thereafter, an attempt was made to arrest the accused person but to no avail nor any incriminating article was recovered, in respect of which, Ext. Ka-13 to Ext. Ka-15 have been drawn. 11. On 25.12.1982, the Investigating Officer after concluding the investigation, submitted the charge-sheet against the accused persons, which has been proved and marked as Ext. Ka-16. On the basis of the said charge-sheet, learned Magistrate had taken cognizance, however, since the case was exclusively triable by the court of Sessions, made over the case to the court of Sessions, where it was numbered as S.T. No. 63 of 1983 (State of U.P. Vs. Ajay @ Raju and others). 12. Ka-16. On the basis of the said charge-sheet, learned Magistrate had taken cognizance, however, since the case was exclusively triable by the court of Sessions, made over the case to the court of Sessions, where it was numbered as S.T. No. 63 of 1983 (State of U.P. Vs. Ajay @ Raju and others). 12. The trial court thereafter framed the charges against the accused-appellant under Section 302 read with Section 34 IPC, which was read out and explained to the accused person in Hindi, however, they abjured the charges, pleaded not guilty and claimed to be tried. 13. During the course of trial, the prosecution examined as many as two witnesses of fact and four other formal witnesses. Their testimony, in brief, is enumerated herein-under : 14. P.W.1 Dr. Madan Bihari is the person, who conducted an autopsy on the person of the deceased and proved the autopsy report and contents thereof, which has been proved and marked as Ext. Ka-1. He further stated that injury nos.1 to 5 could be caused by knife and the deceased could have died on 02.12.1982 at 06:45 p.m. 15. During cross-examination, he stated that injury no.6 could be caused by some blunt object and the said injuries were sufficient in the ordinary course of nature to cause death. He further stated such injuries could be caused by some small axe or Khurpi. 16. P.W.2 Kamal Kumar is the first informant of the case and the nephew of the deceased. In his testimony, he stated that he is a permanent resident of House No. 61/203, Sitaram Mohal, where he, his mother, his brother Vimal Kishor, his sister Kamini Devi, his maternal uncle Dinesh Chand used to live and Dinesh Chand used to run a tea stall in Sitaram Mohal. He identified the accused Ashok, present in the court and stated that he used to keep a fruits kiosk in front of the shop of his maternal uncle Dinesh Chand, however, his maternal uncle used to resist putting his kiosk in front of his shop because his sister was young and he used to stand in front of his sister. His shop is situated at Canal Patari and there has been some verbal duel between Ashok and his maternal uncle Dinesh Chand over placing of his kiosk in front of his shop. 17. His shop is situated at Canal Patari and there has been some verbal duel between Ashok and his maternal uncle Dinesh Chand over placing of his kiosk in front of his shop. 17. He further stated that about one year back, his maternal uncle Dinesh Chand, his brother Vimal Kishor and Satya Narayan were present at his house, however, Vimal Kishor had gone out for some work and they were conversing for watching a movie in Apsara Talkies. Their mother asked them to take their meals, however, they refused to take the meals and proceeded towards Apsara Talkies and when, they reached near the Shivraj Tobacco Company, they saw the accused persons Ashok, Chander, Raju and Kalloo, present in the court, standing in front of tea-shop of Arjun. 18. He further stated that accused Kalloo came from behind and caught hold of the victim Dinesh Chand by his waist, whereas Chander held him by his hands and then, Chander exhorted to assault and not to spare him, then Chander made his maternal uncle Dinesh Chand fall down. Ashok and Raju, armed with knives, assaulted him. After assaulting the victim, accused persons tried to make their escape good, however, on hearing the alarm, Ram Narayan and his younger brother Vimal Kishor reached there and witnessed the incident. His maternal uncle suffered injuries by knife, as such, he along with his brother Vimal Kishor had taken him to the K.P.M. Hospital on a rickshaw, however, on reaching there, the doctor declared him dead. 19. The said incident had occurred at about 07:00 p.m. in the evening. After his death, he returned back to his house, scribed the report and lodged the same at the Police Station, which has been proved and marked as Ext. Ka-2. 20. He further stated that at the Shivraj Tobacco Company, bulbs were lit and even at the tea stall, bulbs were lit and at a distance of 10-15 paces, electric tube-light was also lit and there was sufficient source of light. 21. He further stated that Satya Narayan and Ram Narayan have colluded with the accused persons and as such, they do not wish to adduce their evidence and all the other accused persons are the friends of Ashok. 22. 21. He further stated that Satya Narayan and Ram Narayan have colluded with the accused persons and as such, they do not wish to adduce their evidence and all the other accused persons are the friends of Ashok. 22. During cross-examination, he stated that there are four shows of screening of movies i.e. 12:00 Noon to 03:00 PM, 03:00 PM to 06:00 PM, 06:00 PM to 09:00 PM and 09:00 PM to 12:00 PM, however, the film does not starts at the exact time but around 06:30 PM. On the fateful day, Satya Narayan had reached his house at 06:15 p.m. and his maternal uncle’s tea stall is situate at a distance of 10-15 paces from his house. Near the shop of his maternal uncle, there are 12-15 other shops. At 6:00 p.m., Satya Narayan had reached his shop and asked him to go together for watching a movie. At the relevant time, his maternal uncle Dinesh was also present there as his shop was closed. He, however, does not remember as to which movie was being screened in Apsara Talkies, where they were proceeding for watching the movie. The incident had occurred about 02-03 furlongs on canal road turning, where on both the sides, shops were situated and were opened. The accused persons were standing at the shop of Arjun Prasad, who also was present there. The said incident was witnessed by him and several other persons. 23. He further stated that when he had gone about 10-15 paces ahead of shop of Arjun, then the incident had occurred, however, when they crossed the accused persons, they did not utter a word. He denied the suggestion that when he reached near the Shivraj Tobacco Company, accused persons met him and held them. 24. On his attention been drawn to the contents of the FIR, he admitted the fact that in the FIR, it is not stated that accused persons were standing in front of tea stall of Arjun but it is stated that accused persons met near the Shivraj Tobacco Company. 25. On his further attention been drawn to the contents of the FIR, he stated that Kalloo came from behind and caught hold of the deceased from the back by his waist. 25. On his further attention been drawn to the contents of the FIR, he stated that Kalloo came from behind and caught hold of the deceased from the back by his waist. At the place of incident, he stayed for 3-4 minutes and he and his brother had lifted his maternal uncle, who was bleeding profusely and took him in a rickshaw to the hospital, consequent to which, their clothes and hands were smeared with blood. They had shown their bloodstained clothes to the Investigating Officer, however, the Investigating Officer did not took them in his possession. The victim had fallen in a prone position and thereafter, he could not rise. The accused persons had stabbed the deceased on his back and head but the blood did not gushed out. When the deceased was assaulted by knife, he was bent on his knees but did not raise alarm, however, he had raised the alarm. The incident took place within 2-3 minutes. When the victim was held by the waist, he was standing beside him but could not rescue him. The victim was made to fall down and assault started. He was also pushed but he did not fall down and was standing at the chabutra of Shivraj Tobacco Company, from where, he witnessed the incident. The accused persons also tried to assault him but could not and thereafter, ran away. He is known to Chander for the last about 1½ years as he used to sell Kerosene and used to come at his crossing. He further stated that all the accused persons are friends but the said fact is not stated in the F.I.R. 26. He further denied the suggestion that shop of the deceased was not his own but that of Ramanand @ Buddhu Baba and he wanted to take forcible possession of the said shop, as such, deceased had assaulted Pappu, son of Buddhu Baba. The factum that Ashok wanted to put his kiosk in front of shop of his maternal uncle, was stated in the FIR. 27. He further categorically stated that when he had seen the accused persons standing at the shop, he had not seen that they were having knives, though, in the FIR, he has stated that Ashok and Raju were having knives but when the deceased was held by his waist, then he had seen the knife. 27. He further categorically stated that when he had seen the accused persons standing at the shop, he had not seen that they were having knives, though, in the FIR, he has stated that Ashok and Raju were having knives but when the deceased was held by his waist, then he had seen the knife. When the accused persons exhorted to assault, then he raised alarm, however, nobody rushed to rescue him. To quote :- At the place of incident, shops are situated on both the sides, houses are also built and Shivraj Tobacco Company is also there. After the incident, he had not asked anyone to lodge the report nor to inform anyone at his house, although within 12 minutes, one can reach the Police Station walking on foot from the place of incident. 28. He further denied the suggestion that report was lodged at the dictation of police. Earlier, in the instant case, 10th was fixed for adducing evidence. On 6th -7th, he had informed Satya Narayan to adduce his evidence, however on 9th, he was threatened by the accused persons not to depose, consequently, he ran away from the village and did not adduce his evidence. It is wrong to state that since the story is cooked-up as such, Satya Narayan does not want to adduce his evidence. 29. He further stated that hundreds of time, he had gone to the house of Raju, in which, a coaching school is run and he used to study there and had also gone in the portion, where he used to live. Further, it is wrong to state that Raju was not involved in the incident and his name has been falsely implicated. For Kallu, he stated that he had seen his house but had never visited there, though has passed through there, hundreds of time. It is wrong to state that Kallu does not live in Kachiyana. 30. He further denied the suggestion that at the instance of Mahesh, son of Munna, who is his friend, he has falsely implicated Kalloo in the instant case. It is also wrong to state that he neither held the victim by his waist nor was present there. 31. It is wrong to state that Kallu does not live in Kachiyana. 30. He further denied the suggestion that at the instance of Mahesh, son of Munna, who is his friend, he has falsely implicated Kalloo in the instant case. It is also wrong to state that he neither held the victim by his waist nor was present there. 31. It is further stated that his sister’s name is Kamini Devi and she used to sit at his shop, where he alongwith his brother used to sit and the factum of Ashok putting his kiosk in front of his shop was not liked by them as his younger sister also used to sit at the shop, as such he, his brother and his mother asked Ashok not to place his kiosk there. 32. He further denied the suggestion that there was friendship between his sister and Ashok, for which, he and his mother had rebuked and beaten her, however over that, there was no verbal duel between him, his mother and Ashok. 33. He further categorically stated that when the deceased was being assaulted, then nobody had held the victim. When he was being given knife blows, then he did have any chance to stand up or rescue himself. He did not even tried to roll over. 34. He further denied the suggestion that incident did not take place at the scheduled place nor he was not present there. He further denied the suggestion that his brother had taken the deceased to the hospital and he was not present there and reached there on being informed. 35. PW-3 Bimal Kumar is another eye-witness of the incident and is real brother of PW-2 Kamal Kumar and nephew of the deceased. He, in his statement, has stated that his maternal uncle’s tea stall is at canal road on the Naher Patari. Prior to the incident, his maternal uncle Dinesh, his brother Kamal and his friend Satya Narayan were conversing/ planning for watching a movie in Apsara Talkies at about 6:00 PM. 36. He, in his statement, has stated that his maternal uncle’s tea stall is at canal road on the Naher Patari. Prior to the incident, his maternal uncle Dinesh, his brother Kamal and his friend Satya Narayan were conversing/ planning for watching a movie in Apsara Talkies at about 6:00 PM. 36. He further stated that for some personal work, he had gone out at Trimurti Mandir and after completing his work, he was returning back to his home, en-route to the Apsara Talkies, he heard the alarm raised by his brother Kamal and then, reached at the Shivraj Tobacco Company, when he saw Kalloo holding his maternal uncle by his waist and Chander by his hands and made him fall down. When his maternal uncle fell on his knees, then Raju and Ashok assaulted him with knives and thereafter, escaped towards Hoolaganj, then he alongwith his brother Kamal took him to K.P.M. Hospital, where he was declared dead by the Doctors. Kamal then went to the Police Station, however, he remained in the hospital. He was interrogated by the Investigating Officer at 10:00 PM in the night. The incident had taken place at about 6:40 PM near the Shivraj Tobacco Company, where there was sufficient light and tube-lights were lit. One or two persons were present at the office of the Tobacco Company, however, they did not reach the place of incident. Apart from his brother Kamal, Satya Narayan also raised the alarm but no one rushed to the place of incident nor anyone raised alarm. When he heard the alarm, then he was present at a distance of 25-30 paces from the place of incident and from the said place, his maternal uncle was visible. He further stated that when Kamal raised alarm, then for the first time, he had seen there. At the relevant time, Satya Narayan was also present with him, who also raised alarm. 37. He further denied the suggestion that he had not seen Kamal holding his maternal uncle by his waist and Chander by his hands but has only seen him assaulted by knives, however, he had not disclosed this fact to the Investigating Officer. To quote :- 38. 37. He further denied the suggestion that he had not seen Kamal holding his maternal uncle by his waist and Chander by his hands but has only seen him assaulted by knives, however, he had not disclosed this fact to the Investigating Officer. To quote :- 38. He further stated that Kalloo caught him by his waist and Chander by his hands and his back was towards him and when his maternal uncle had fallen on his knees, then he was assaulted by knife. When knife blows were given, then his hands and waist were released. He could not state whether the knife was stabbed or was used otherwise. A knife was also hit on the forehead. He further stated that :- 39. He further stated that he is not aware of the fact that several cases were lodged against his maternal uncle Dinesh and that he was arrested for enticing away Rama Devi’s sister and gambling used to take place at his shop. He further denied the suggestion that there was friendship between Ashok and his sister Kamini Devi, for which, his mother had beaten his sister. 40. PW-4 Pratap Singh is the Head Moharrir, who, on the basis of a written report, had lodged the FIR at 8:10 PM, which has been proved and marked as Ex. Ka-2. On the basis of which, a chik report was prepared, which has been proved and marked as Ex. Ka-3 and corresponding G.D. Entry No. 46 has also been proved and marked as Ex. Ka-4. The chemical examination report has also been proved and marked as Ex. Ka-5. 41. During cross-examination, he stated that FIR was not registered after due deliberation by the police, however, no cognizable report after the aforesaid incident was written. It is wrong to state that on getting information of murder, G.D. entry was withheld and later, fake entry has been made. 42. PW-5 Inspector D.C. Seth is the Station House Officer of Police Station Harbans Mohal, District Kanpur. He, in his testimony, has stated that on 02.12.1982, on the basis of a written report of Kamal Kumar, a FIR was registered in his presence and he was entrusted with the investigation. 42. PW-5 Inspector D.C. Seth is the Station House Officer of Police Station Harbans Mohal, District Kanpur. He, in his testimony, has stated that on 02.12.1982, on the basis of a written report of Kamal Kumar, a FIR was registered in his presence and he was entrusted with the investigation. He had recorded the statement of first informant at the Police Station and then, he reached at the place of incident and found blood lying there and a shoe was also found there, in respect of which, a fard recovery memo was drawn. He had also collected the sample of plain earth and blood-stained earth and prepared the recovery memo, which has been proved and marked as Ex. Ka-6 and Ex. Ka-7. The site plan was also prepared, which has been proved and marked as Ex. Ka-8. He had also recorded the statement of the witnesses and went to the hospital and seen the dead body of the deceased. On the next day i.e. on 03.12.1982, the inquest was prepared by S.S.I. R.S. Kushwaha, which has been proved and marked as Ex. Ka-9 and the other relevant papers were prepared, which has been proved and marked as Ex. Ka-10 to Ex. Ka-12. After concluding the investigation, the charge-sheet was submitted against the accused persons on 25.12.1982, which has been proved and marked as Ex. Ka-16. 43. During cross-examination, he stated that when the first informant came to lodge the report, he was present, however, did not mark any blood on his clothes. He further stated that if any blood is found on the clothes of the first informant, then it is noted and the clothes are taken in possession. He further stated that Kamal Kumar has not pointed out any blood on his clothes or the clothes of his brother Bimal Kumar. He further stated that Bimal Kumar, in his statement, has stated that :- 44. In the FIR, time of death of the victim has not been mentioned, it is only stated that en-route to the hospital, he died, even in the challan-nash, time of death has been mentioned on the basis of imagination. 45. He further stated that Bimal Kumar, in his statement, has stated that :- 44. In the FIR, time of death of the victim has not been mentioned, it is only stated that en-route to the hospital, he died, even in the challan-nash, time of death has been mentioned on the basis of imagination. 45. After concluding the recording of the testimonies of the witnesses, statement of the accused under Section 313 Cr.P.C. has been recorded by putting all the incriminating circumstances to the appellant, who denied all the incriminating circumstances and claimed that they have been falsely implicated in the instant case. 46. In his defence, Accused-appellant has produced Ashok Kumar Gupta, Clerk, Central Bank of India, Nayaganj Branch, Kanpur as DW-1 and Shri Ram Lakhan Shukla, Clerk, Area Rationing Office, Cantonment, Kanpur as DW-2. DW-1 has submitted the Statement of Bank Account of one Rakesh Kumar Awasthi, Resident of 65/267, Moti Mohal, Kanpur. The accused persons has also filed certain documents that the deceased was a man of bad character. Ex. Kha-1 and Ex. Kha-2 are the copies of charge-sheet and the FIR of the case, which was lodged against the deceased in respect of incident dated 22.08.1981. Ex. Kha-3 is a copy of the charge-sheet submitted against the deceased for an offence under Section 324 IPC. The trial court on appreciating the evidence has held that the prosecution has successfully established its case against the appellant Ashok by relying upon the testimony of PW-2 Kamal Kumar, however, so far the testimony of PW-3 Bimal Kumar, is concerned, the trial court has held that he is a chance witness. The trial court has further pointed out that there has been noticeable variance in his statement before the court and his statement before the Investigating Officer, where he stated that after finishing his work, he reached at Baijnath Shukla Lane for going to the Apsara Talkies, even though before the court, he stated that accused persons came and caught the deceased by waist and held him by his hands and then, he was assaulted, however, these facts were not stated by him before the Investigating Officer. PW-3 reached the incident on hearing the alarm raised by his brother Kamal Kumar, when for the first time he had seen the incident, therefore, it can not be said that he witnessed the incident from the initial stage, on the basis of which, his testimony has been doubted and only on the basis of solitary testimony of PW-2 Kamal Kumar, appellant Ashok has been convicted, while other three accused persons, namely, Raju, Chander and Kalloo have been acquitted vide impugned judgment and order dated 28.02.1984. 47. Being aggrieved and dissatisfied by the said order, accused-appellant Ashok has filed instant criminal appeal before this Court against his conviction, whereas government appeal has been preferred against the order of acquittal of Chander, Raju and Kalloo. During the course of pendency of the said appeal, Chander has already passed away and as such, his appeal has been dismissed as abated vide order dated 13.03.2014. 48. So far as the arguments of learned counsel for the appellant in criminal appeal is concerned, he has submitted that even according to the prosecution own case, the incident has taken place in a market place, where number of shops were situated. Except the two brothers PW-2 and PW-3, who are the nephews of the deceased, no independent witness has come forward to corroborate the prosecution story, which creates a serious dent in the prosecution story. Admittedly, PW-2 and PW-3 are highly interested and partisan witnesses being the nephews of the deceased Dinesh, therefore, by placing implicit reliance on their testimony, the appellant could not be convicted. 49. Learned counsel for the appellant has next submitted that even as per the impugned judgment and order passed by the trial court, the testimony of PW-3 Bimal Kumar has been discarded and it has been held that he could not be an eye-witness of the incident and that his testimony do not inspire confidence and as such, at the time of recording the finding of conviction, he has been disbelieved and held to be a chance witness. 50. Learned counsel for the appellant has thus submitted that PW-2 is only a solitary witness in the instant case, who is highly partisan and interested. 50. Learned counsel for the appellant has thus submitted that PW-2 is only a solitary witness in the instant case, who is highly partisan and interested. There are several contradictions and embellishment in his testimony, which goes to the root of the case and as such, by no stretch of imagination, he can be said to be a wholly reliable witness and his testimony can not be said to be of “sterling quality.” However, the trial court by placing implicit reliance on his testimony has recorded the finding of conviction against the appellant Ashok but on the same set of facts, has acquitted the accused Raju, Kalloo and Chander, which creates serious dent in the prosecution story and renders the conviction illegal. 51. Learned counsel for the appellant has further submitted that in the FIR lodged by PW-2, there is no mention of the fact that at the relevant time, he alongwith his maternal uncle Dinesh and Satya Narayan were proceeding to watch a movie in the Apsara Talkies, however subsequently, the said factum has been mentioned, which is nothing but is an improvement in his testimony. 52. Learned counsel for the appellant has next submitted that Section 34 of IPC is not attracted in the instant case and that prior concert and pre-arranged plan to kill the deceased has not been established. He further submitted that existence of a pre-arranged plan has to be proved from the conduct of the accused or the circumstances or from any incriminating circumstance and does not infer to have same intention independently. 53. Learned counsel for the appellant Ashok has further submitted that by the impugned judgment and order dated 28.02.1984, the appellant Ashok has been convicted under Section 302 read with Section 34 of IPC, however, except the appellant Ashok, who has been convicted, none of the three other accused persons has been convicted for the offence under Section 34 IPC. It is well settled principle of law that there must be two or more than two persons to attract the provisions of Section 34 IPC, however, in the instant case, the appellant has solely been convicted for the offence under Section 302 read with Section 34 IPC, which is bad in law and as such, the entire conviction is liable to be set aside. 54. 54. In support of his arguments, learned counsel for the appellant has relied upon the judgments passed in Criminal Appeal No. 1661 of 2009 (Gadadhar Chandra Vs. State of West of Bengal) and Criminal Appeal No. 1209 of 2011 (Chandra Pratap Singh Vs. State of M.P.). He has further placed reliance upon the case law reported in (2019) 5 SCC 127 Mala Singh and Others Vs. State of Haryana and further on the cases reported in (2003) 2 SCC 266 Chittarmal vs. State of Rajasthan and (2020) 4 SCC 126 Chhota Ahirwar Vs. State of Madhya Pradesh. 55. Per contra, learned AGA has submitted that though the testimony of PW-3 is not of much relevance but so far as the testimony of PW-2 is concerned, there are no serious contradictions, embellishment or exaggeration in his testimony on material particulars, which goes to the root of the case, rather his testimony is of sterling quality and as such, he is a “wholly reliable witness” and relying upon his sole testimony, the finding of conviction can well be recorded. 56. Learned AGA has next submitted that though the factum of witnesses going with the deceased for watching a movie in the Apsara Talkies has not been mentioned in the FIR but has been categorically stated in subsequent statements, thus it can not be said to be a material improvement in the testimony of PW-2 and the contrary submissions of learned counsel for the appellant in this regard is liable to be discarded. 57. Learned AGA has further submitted that there is consistent evidence to the extent that the deceased, his nephew and Satya Narayan were proceeding for watching a movie in the Apsara Talkies and at the relevant time, all the four accused persons had assembled at the tea stall of Arjun, therefore, it can be said that prior concert, which necessarily postulates existence of pre-arranged plan implying the prior meeting of minds can very well be inferred and thus, the appellant can very well be convicted for the offence under Section 302 read with Section 34 IPC alongwith co-accused Raju, whose case stands on identical footing as that of Ashok, who has been convicted by the trial court. 58. 58. Learned AGA has further submitted that Section 34 IPC introduces vicarious liability and when the common intention is proved, the appellants can very well be convicted under Section 302 read with Section 34 IPC, for which, they have been charged. 59. Learned AGA has further submitted that for Section 34 IPC to apply, there should be a common intention between co-perpetrators, which means there should be community of purpose and common design or pre-arranged plan but it is not necessary that co-perpetrators may have engaged in any prior discussion, agreement or valuation as held by the Hon’ble Apex Court in several of its decisions. 60. Learned AGA while arguing the government appeal challenging the order of acquittal of other accused persons has submitted that since the entire act has been committed by the accused-appellant with prior concert, which necessarily postulates existence of pre-arranged plan implying the prior meeting of minds and in furtherance of a common intention, therefore, they all should have been convicted for the offence under Section 302 read with Section 34 of IPC, however, the trial court has illegally acquitted three of them, while convicting only appellant Ashok under Section 302 read with Section 34 IPC, which order is bad in law and is therefore liable to be set aside. 61. Learned AGA has further submitted that PW-2 Kamal Kumar is a “wholly reliable witness” and his testimony is of impeccable nature and except minor discrepancies here and there, which is quite natural, his testimony is of sterling quality, as such, on his sole testimony, all the surviving accused persons are liable to be convicted under Section 302 read with Section 34 of IPC. 62. Learned AGA while arguing the government appeal challenging the order of acquittal of other two accused-respondents, has submitted by relying upon a recent decision of Hon’ble Apex Court passed in Criminal Appeal No. 3577 of 2023 (Ram Naresh Vs. State of Uttar Pradesh) that for Section 34 IPC to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act has to be performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. From the conduct of the accused-respondent, it is evident that they had participated in the incident with a common intention to cause the death of the deceased Dinesh Chand, therefore, all the accused persons are liable to be convicted under Section 302 read with Section 34 IPC by reversing the acquittal of accused-respondents Raju and Kalloo and the impugned order acquitting the accused-respondents Raju and Kalloo is bad in law and is, therefore, liable to be set aside. 63. Per contra, learned counsel for the accused-respondent Kalloo has submitted that even taking the entire evidence and material on record, it can not be said that accused-respondent Kalloo had a common intention to kill the deceased and he has only been assigned the role of catching hold the victim by his waist and at the relevant time, even as per the prosecution case, he was unarmed. 64. Learned counsel for the accused-respondent Kalloo has further submitted that even according to the testimony of PW-2, accused-respondent Kalloo was not holding the victim at the time, when he was stabbed by knife and therefore, the provisions of Section 34 of IPC can not be invoked against him, as he can not be said to be sharing common intention with the other accused to kill the deceased. 65. Learned counsel for the accused-respondent Kalloo has further pointed out that in the entire evidence to show prior concert, which necessarily postulates existence of pre-arranged plan implying of prior meeting of minds is necessary, in absence of which, accused-respondent Kalloo can not be convicted by reversing his acquittal under Section 302 read with Section 34 IPC. 66. Learned counsel for the accused-respondent Kalloo has further submitted that even in the statement of PW-2, it is stated that when the assailants were seen standing on the tea stall of Arjun, then he had not seen knives in their hands and had seen the knives only when he was caught hold of. 66. Learned counsel for the accused-respondent Kalloo has further submitted that even in the statement of PW-2, it is stated that when the assailants were seen standing on the tea stall of Arjun, then he had not seen knives in their hands and had seen the knives only when he was caught hold of. Further, in his statement, PW-2 has categorically stated that when deceased was being assaulted, nobody held him. To quote :- ^^tc e`rd dks pkdw ekjs tk jgs Fks rc dksbZ idM+s gq, ugha FkkA** 67. Thus, it is evident that the accused-respondent Kalloo, prior to the incident of killing, was not aware of the fact that the assailants Raju and Ashok were carrying knives and had a common intention to kill the deceased. Further at the time of stabbing, nobody held him, thus in any case, necessary ingredients of Section 34 IPC are not applicable at all qua accused-respondent Kalloo, who, in view of backdrop of the said facts and circumstances of the case, has rightly been acquitted by the trial court, which order does not suffer from any perversity or illegality or can be said to be an impossible view, as such, the order of acquittal qua accused-respondent Kalloo is not liable to be reversed in view of settled principle of law in this regard. 68. Learned counsel for the accused-respondent Raju has also submitted that in absence of any evidence of prior concert, which necessarily postulates existence of pre-arranged plan implying of prior meeting of minds, accused-respondent Raju can not be convicted with the aid of Section 34 of IPC by reversing his acquittal. 69. Having considered the rival submissions made by the parties and having gone through the record, it is evident that PW-2 Kamal Kumar was accompanying his maternal uncle Dinesh Chand (Deceased) alongwith Satya Narayan for the purposes of watching a movie and as per the prosecution own case, en-route to the Picture Hall, the accused persons met the deceased and Kalloo caught him by his waist, whereas Chander caught him by his hands and thereafter, he was assaulted by accused-assailants Ashok and Raju with their knives causing injuries to the deceased; one on his chest and the other on his waist, consequent to which, he succumbed to his injuries. 70. 70. In the backdrop of the said circumstance, if we analyse the submissions of learned counsel for the appellant Ashok in criminal appeal that the incident is said to have taken place in a market place, where large number of persons were present and many shops were situated, however, except the two witnesses i.e. PW-2 and PW-3, who are the real brothers among themselves and nephews of the deceased, no other independent witness have come forward to corroborate the prosecution story, even Satya Narayan has not turned up to adduce his evidence against the accused persons, as such, the testimonies of partisan and interested witnesses cannot be relied upon to record finding of conviction, more so, when the testimony of PW-3 has been discarded by the trial court being a chance witness. 71. In this respect, it is germane to point out here that it has come in evidence that Satya Narayan, who had accompanied the victim at the time of incident, in fact was threatened by the accused-appellant not to depose, subsequently, on the day when his testimony was to be recorded, he ran away from the village as is evident from the statement of PW-2. Other witnesses, in order to avoid any bad blood with the accused persons being resident of the same place, also did not turn up to adduce their evidence, which nowadays is quite common as held by the Hon’ble Apex Court in several of its decisions. 72. More so, it is not necessary that in every case, where the witnesses are withheld from the court, an adverse inference must be drawn against the prosecution. The totality of the circumstances is to be considered for concluding whether any adverse inference could be drawn. The testimony of PW-2 Kamal Kumar, who was accompanying the deceased at the time of incident, is of an impeccable nature and the defence has not been able to elicit anything contrary to doubt his credibility. 73. The totality of the circumstances is to be considered for concluding whether any adverse inference could be drawn. The testimony of PW-2 Kamal Kumar, who was accompanying the deceased at the time of incident, is of an impeccable nature and the defence has not been able to elicit anything contrary to doubt his credibility. 73. Having gone through his complete evidence, we are of the considered opinion that PW-2 Kamal Kumar is a natural witness in the facts and circumstances of the case, who has deposed against the accused-respondent in a most natural way and the defence has not been able to point out any inconsistency, contradictions or embellishment in his testimony, which goes to the root of the case, we rather find a ring of truth in his testimony, as such, we have no hesitation to hold that his testimony is of a sterling quality and on the basis of which, the conviction against the accused-respondent can very well be recorded. 74. So far as the testimony of PW-3 Vimal Kumar is concerned, his presence at the time of incident is highly doubtful. Admittedly at the time, when PW-2 Kamal Kumar alongwith Satya Narayan and the deceased Dinesh Chand were planning to leave for watching a movie, he had left his house for some personal work near the Trimurti Temple and it is stated that after completing the said task, he reached the place of incident and has said to have witnessed the incident, however, when we carefully go through his testimony, we find that there are many loopholes in his testimony and he appears to be a “chance witness” as held by the trial court. 75. The defining attributes of a “chance witness” were explained by Mahajan, J., in Puran v. State of Punjab, (1952) 2 SCC 454. It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence. 76. In Mousam Singha Roy v. State of West Bengal (2003) 12 SCC 377 , this Court discarded the evidence of chance witnesses while observing that certain glaring contradictions/ omissions in the evidence of PW-2 and PW-3 and the absence of their names in the FIR has been very lightly discarded by the courts below. 76. In Mousam Singha Roy v. State of West Bengal (2003) 12 SCC 377 , this Court discarded the evidence of chance witnesses while observing that certain glaring contradictions/ omissions in the evidence of PW-2 and PW-3 and the absence of their names in the FIR has been very lightly discarded by the courts below. Similarly, Shankarlal v. State of Rajasthan (2004) 10 SCC 632 and Jarnail Singh v. State of Punjab (2009) 9 SCC 719 are authorities for the proposition that deposition of a chance witness, whose presence at the place of incident remains doubtful, ought to be discarded. 77. Therefore, in view of the settled principle of law laid above and when we go through the testimony of PW-3, we find that there are many loopholes in his testimony and taking a holistic view that PW-3 appears to be a chance witness as held by the trial court, his testimony is liable to be discarded, which we agree, however, looking the impeccable testimony of PW-2 Kamal Kumar, we are of the considered opinion that conviction of the appellant Ashok is just, proper and legal and do not call for any interference. 78. The submission of learned counsel for the appellant that on the basis of testimony of solitary witness Kamal Kumar (PW-2), the accused-appellant Ashok alongwith other accused persons cannot be convicted, more so, when he is the real nephew of the deceased and highly interested and partisan witness, as such, liable to be discarded. 79. This submission of learned counsel for the appellant do not appeal much to us looking to the impeccable testimony of PW-2 Kamal Kumar, we are of the considered view that on the basis of “sole testimony” of PW-2 Kamal Kumar, which in our opinion, is of sterling quality, a person can be convicted as held by Hon’ble Apex Court in several of its decisions. 80. The submission of learned counsel for the appellant that no recovery was made in the said case, further falsify the prosecution story and creates serious dent in the prosecution story also does not appeal to us. 81. The Hon’ble Apex Court in the case of Mritunjoy Biswas Vs. Pranab Alias Kuti Biswas & Another reported in (2013) 12 SCC 796 has held that when there is ample unimpeachable ocular evidence and same has been corroborated by medical evidence, non-recovery of weapon does not affect the prosecution case. 81. The Hon’ble Apex Court in the case of Mritunjoy Biswas Vs. Pranab Alias Kuti Biswas & Another reported in (2013) 12 SCC 796 has held that when there is ample unimpeachable ocular evidence and same has been corroborated by medical evidence, non-recovery of weapon does not affect the prosecution case. The relevant paragraphs i.e. paragraph nos. 33 and 34 are being quoted herein below: “33. The learned counsel for the respondent has urged before us that there has been no recovery of weapon from the accused and hence, the prosecution case deserves to be thrown overboard and, therefore, the judgment of acquittal does not warrant interference. 34. In Lakshmi v. State of U.P. reported in (2002) 7 SCC 198 , this Court has ruled that : “Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder.” In Lakhan Sao v. State of Bihar reported in (2000) 9 SCC 82 , it has been opined that the non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable. In State of Rajasthan v. Arjun Singh reported in (2011) 9 SCC 115 , the Hon’ble Apex Court has expressed that : “18. ……….. mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes, etc. cannot be taken or construed as no such occurrence had taken place.” 82. Further submission of learned counsel for the appellant that the factum of PW-2 Kamal Kumar accompanying the deceased at the time of incident for watching a movie, has not been mentioned in the FIR but subsequently developed, which renders the prosecution story doubtful. 83. cannot be taken or construed as no such occurrence had taken place.” 82. Further submission of learned counsel for the appellant that the factum of PW-2 Kamal Kumar accompanying the deceased at the time of incident for watching a movie, has not been mentioned in the FIR but subsequently developed, which renders the prosecution story doubtful. 83. In our considered opinion that said argument does not hold much water because FIR is not a substantive piece of evidence and any omission in the FIR could not ipso facto render the prosecution story doubtful, particularly, when in the subsequent statement as well as the evidence adduced before the court, the said factum has been clearly mentioned. 84. The submission of learned counsel for the appellant that Section 34 of IPC is not attracted in the instant case as there is no evidence to show that there was a prior concert and pre-arranged plan to kill the deceased. 85. The said submission of learned counsel for the appellant is also not of much significance in view of specific and clear law laid down by Hon’ble Apex Court in Criminal Appeal No. 2201 of 2011 (State of Rajasthan Vs. Gurbachan Singh and Others), wherein it has been clearly stated that Section 34 of IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention. 86. Moreover, learned AGA has relied upon Criminal Appeal No. 3577 of 2023 Ram Naresh Vs State of Uttar Pradesh, wherein it has been held that for Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. 86. Moreover, learned AGA has relied upon Criminal Appeal No. 3577 of 2023 Ram Naresh Vs State of Uttar Pradesh, wherein it has been held that for Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. 87. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/ perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. 88. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/ performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/ offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants. 89. A plain reading of the above paragraph reveals that for applying Section 34 IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence. 90. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence. 90. Thus, from the aforesaid principle laid down by the Hon’ble Apex Court, it can not be said that in the instant case, Section 34 of IPC would not be applicable as submitted by learned counsel for the appellant and the said argument is liable to be discarded and the cases relied upon by learned counsel for the appellant are distinguishable on facts as stated in the subsequent decisions of Hon’ble Apex Court, which has been quoted above. 91. Learned counsel for the appellant has further submitted that though the incident is said to have taken place in presence of number of witnesses and even in presence of PW-2 and PW-3, who are his real nephews, however, none of them have come forward to rescue the victim-deceased, which points out towards the unnatural conduct of the said witnesses clearly indicating that none of them were present at the time of incident and reached subsequently and on imagination, have deposed against the appellants, which creates a serious dent in the prosecution story. 92. The said submission of learned counsel for the appellant that though PW-2 and PW-3 are the real nephews of the deceased Dinesh Chand and claims to be present at the time of incident, when the deceased was in clutches of the accused-assailants, yet none of them has made any attempt to rescue the victim-deceased, which rules out their presence at the relevant time and place of incident, is also not much significance. 93. In this respect, it is relevant to point out here that when an incident takes place, a witness does not necessarily react in a particular manner. Every person, who witnesses a murder, reacts in his own way. Some are stunned, some become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way as held by the Hon’ble Apex Court in the case of Rana Pratap Singh and Others Vs. State of Haryana reported in (1983) 3 SCC 327 , It can not be said that since the witnesses has not reacted in a particular way and not made any attempt to rescue the victim-deceased, their presence at the time and place of the incident would become doubtful is too far-fetched and in our considered opinion cannot be accepted to doubt the presence of eye witnesses. 94. In view of aforesaid discussions, taking a holistic view of the evidence adduced and the material brought on record, we are of the opinion that prosecution has established its case beyond all reasonable doubt against the appellant Ashok. More so, when the medical evidence also lends credence to the prosecution story. The post-mortem examination report also points out conclusively to the culpability of the appellant Ashok, as such, he is liable to be convicted for the charges framed against him under Section 302 read with Section 34 IPC alongwith Raju. Thus, the criminal appeal filed by Ashok has no merits and is accordingly dismissed. 95. Now, so far as the government appeal is concerned against the surviving accused-respondents Raju and Kalloo is concerned, it is evident that the case of Raju stands on the same footing as that of accused-appellant Ashok and being based on same set of facts, in our considered opinion, he is also liable to be convicted for the offence under Section 302 read with Section 34 IPC alongwith accused-appellant Ashok by partly allowing the Government Appeal. 96. 96. In the facts and circumstances of the case, keeping in mind the evidence adduced and the material brought on record against the accused-respondent Raju, which even finds corroboration from the medical evidence, we are of the opinion that finding of acquittal recorded against the accused-respondent Raju is liable to be reversed by partly allowing the government appeal qua the accused-respondent Raju. 97. So far as reversal of acquittal qua accused-respondent Kalloo is concerned, we find that from the entire evidence adduced and the material available on record, it can not be said that Kalloo shared a common intention to kill the deceased. Even as per the evidence of PW-2, he is said to be an unarmed at the time of incident and is assigned the role of catching hold the victim-deceased Dinesh Chand by his waist, which, in our opinion, does not inspire confidence, inasmuch as, the victim-deceased is not said to have been caught hold of by the accused-respondents Kalloo and Chander, while he was being assaulted. 98. If we go through the post-mortem examination report of the deceased, we find that one of the injuries has been caused to the deceased on his waist by knife, therefore, the prosecution story assigning the role of catching hold the deceased by his waist at the relevant time further becomes highly doubtful as the possibility of accused himself receiving the injury by knife blow cannot be ruled out. 99. Moreover, we are of the opinion that the accused-respondent Kalloo did not share a common intention to cause the death of the deceased, which is also evident form the testimony of PW-2 Kamal Kumar, wherein he has categorically stated that at the time, the accused-assailants were standing at the tea stall of Arjun, he had not seen knives in the hands of two accused persons Ashok and Raju and for the first time, only when they were trying to stab the deceased, he had seen the knife in their hands and as such, it can very well be inferred that the accused-respondent Kalloo may not be aware of the fact that the accused-assailants at the relevant time were armed with knives with a common intention to kill the deceased. 100. 100. Furthermore, there is one more circumstance, which clinchingly establishes that the accused-respondent Kalloo had no common intention to kill the deceased, which is evident from the fact that PW-2 Kamal Kumar, in his testimony, has categorically stated that the time, when the accused-appellant Ashok and accused-respondent Raju were assaulting the deceased by knives, he was not holding the deceased by his waist and as such, in the backdrop of the said circumstance, we are of the opinion that he did not share the common intention to kill the deceased, as such the finding of acquittal qua accused-respondent Kalloo recorded by the trial court is just, proper and legal and do not call for any interference by this Court. 101. In the facts and circumstances of the case, the government appeal qua accused-respondent Kalloo is not sustainable and is liable to be partly dismissed, however, so far as the government appeal qua accused-respondent Raju is concerned, we are of the opinion that the government appeal qua the accused-respondent Raju is liable to be allowed and as such, his acquittal is set aside and he is also liable to be convicted alongwith accused-appellant Ashok for the offence under Section 302 read with Section 34 IPC. 102. Thus, in sum and substance, the criminal appeal filed by the accused-appellant Ashok in facts and circumstances of the case, enumerated herein above, deserves to be dismissed and is accordingly dismissed. He is on bail. His bail bonds are cancelled and his sureties are discharged. He shall surrender before the court below within two weeks from today and serve out the remaining sentence awarded to him by the trial court and shall also pay a fine of Rs.10,000/-, in default of payment of fine, shall further undergo six months rigorous imprisonment. 103. The finding of acquittal recorded by the trial court against the accused-respondent Raju is set aside in the Government Appeal preferred by the State. He is also held guilty alongwith Ashok and is convicted for the offence under Section 302 read with Section 34 IPC and sentenced to imprisonment for life and a fine of Rs.10,000/-. In default of payment of fine, to further undergo six months rigorous imprisonment. He shall also surrender before the court below within two weeks from today and serve out the remaining sentence. His bail bonds are cancelled and his sureties are discharged under Section 437-A of IPC. In default of payment of fine, to further undergo six months rigorous imprisonment. He shall also surrender before the court below within two weeks from today and serve out the remaining sentence. His bail bonds are cancelled and his sureties are discharged under Section 437-A of IPC. 104. Accordingly, the criminal appeal, filed by the accused-appellant Ashok, stands dismissed and the government appeal is partly allowed by reversing the acquittal of the accused-respondent Raju, however, the government appeal qua accused-respondent Kalloo is dismissed. The government appeal is accordingly partly allowed. 105. Let a copy of this judgment and order be forwarded to the court concerned alongwith the trial court record for the information and necessary compliance.