JUDGMENT : (ILESH J. VORA, J.) 1. This conviction appeal is filed by the appellant –original accused, against the judgment of conviction and order of sentence dated 07.03.2014, passed by the learned Additional Sessions Judge, Anand in Sessions Case no. 118 of 2011, wherein, the appellant - Rashmikant @ Jalio Satishbhai Parmar came to be tried for offences punishable under Sections 302, 307 and 504 of the Indian Penal Code, 1860 (‘IPC’, for short). 2. At the end of the trial, the appellant came to be convicted and sentenced as tabulated hereunder: Conviction under Section Sentence of imprisonment Fine S.302 of IPC Life imprisonment Rs.25,000/-, in default to undergo three months simple imprisonment S.307 of IPC Seven years rigorous imprisonment Rs.10,000/-, in default to undergo two months simple imprisonment S.504 of IPC Three months simple imprisonment Rs.5000/-, in default to undergo one month simple imprisonment 3. Brief facts which are necessary to dispose of the present appeal are in nutshell as under: 3.1 The appellant – sole accused Rashmikant Satishbhai Parmar was charged for the murder of one Jabir Shaikh, resident of Village Borsad, Dist.: Anand. The incident took place on 20.07.2011 at about 07:30 p.m., near Mahakali Temple, Borsad. According to the case of the prosecution, the deceased Jabir Mohammad Shaikh was sitting near the area of common place and on seeing the deceased, the accused asked him to give his mobile which he had given to the accused and thereafter, the deceased requested the accused to give his mobile phone back. The accused got angry and took out the knife from his pocket and stabbed the deceased in left side of his chest causing serious injuries. It is further case of the prosecution that the cousin brother of the deceased Irfan Shaikh (PW:2), who came to rescue to the deceased, he was also stabbed by the accused on the right side of the chest with the same knife which allegedly used in causing the injuries to the deceased. After hue and cry, the complainant Ahemad Shaikh (PW:1) and others rushed to the scene of the offence where they saw the accused as well as deceased Jabir Shaikh and Irfan Shaikh. The deceased was taken to the local clinic Aashirwad Hospital, whereas the injured Irfan Shaikh taken to the Shriji Clinic, Borsad for treatment. After hue and cry, the complainant Ahemad Shaikh (PW:1) and others rushed to the scene of the offence where they saw the accused as well as deceased Jabir Shaikh and Irfan Shaikh. The deceased was taken to the local clinic Aashirwad Hospital, whereas the injured Irfan Shaikh taken to the Shriji Clinic, Borsad for treatment. The condition of the deceased was critical and therefore, he was referred to the higher centre at Karamsad Hospital where he succumbed to the injuries. The hospital authority informed the police and accordingly, PSI S.K. Mekwan was directed to reach at the hospital where after preliminary inquiry, the complaint was being disclosed by PW:1 Ahemad Shaikh, who happened to be the brother of the deceased. The offence was registered against the accused for the act of murder and causing injuries to the witness Irfan Shaikh. The investigation thereafter, entrusted to the PSI J.T. Rana (PW:19). The I.O., during the course of investigation, recorded the statement of eyewitnesses, drew the panchnama of place of occurrence and collected the blood samples for chemical analysis, arrested the accused, recovered the knife allegedly used in the offence, obtained the PM report and other medical case papers of the deceased as well as injured Irfan Shaikh, sent the seized articles to the FSL and obtained the report thereof. At the end of investigation, the chargesheet came to be filed against the accused before the Judicial Magistrate who committed the case to the Sessions Court, Anand. 4. After due framing of the charge and upon the accused pleaded not guilty, the trial commenced before the Additional Sessions Judge, Anand. In order to prove the charge, the prosecution has examined 19 witnesses and relied on the following exhibited documents: Oral evidence PW 1 – Exh.9 Ahemad Mahmad Shafi Shaikh, complainant PW2– Exh.11 Irfan Shabbirhaji Shaikh, injured witness PW 3–Exh.22 Dr. Jayeshbhai Purshotambhai Vadher, medical officer PW 4–Exh.26 Dr. Hasmukhbhai Ambalal Pandya, medical officer PW 5–Exh.28 Dr. Priyaben Sundarlal Bhavnani, medical officer PW 6–Exh.32 Dr. Mahendrasinh Shanabhai Chauhan, medical officer PW 7–Exh.36 Dr. Sanjaybhai Kedarlal Gupta, Associate Professor PW 8–Exh.41 Dr. Jayeshbhai Purshotambhai Vadher, medical officer PW 4–Exh.26 Dr. Hasmukhbhai Ambalal Pandya, medical officer PW 5–Exh.28 Dr. Priyaben Sundarlal Bhavnani, medical officer PW 6–Exh.32 Dr. Mahendrasinh Shanabhai Chauhan, medical officer PW 7–Exh.36 Dr. Sanjaybhai Kedarlal Gupta, Associate Professor PW 8–Exh.41 Dr. Subhash Chandra Jethanand Ramani, medical officer PW 9–Exh.49 Barkartkhan Dosukhan Pathan, panch witness PW10–Exh.53 Shokatkhan Aftabkhan Pathan, panch witness PW11–Exh.57 Mehbubkhan Sikandarkhan Pathan, panch witness PW12– Exh.62 Irfankhan Nasibkhan Pathan, panch witness PW 13–Exh.67 Ibadullakhan Manevarkhan Pathan, panch witness PW 14–Exh.71 Maksudali Manvarali Saiyad PW 15–Exh.72 Babulal Shambhubhai Bhayani, scientific officer, FSL mobile van PW 16–Exh.76 Balvantkumar Ramanlal Brahmbhatt, revenue circle officer PW 17–Exh.82 Semualbhai Khandas Mecwan, police sub-inspector PW 18–Exh.86 Ratnabhai Bhurabhai Paramar, police station officer PW 19–Exh.92 Jagatsinh Takhubha Rana, investigation officer Documentary evidence Exh.10 Complaint Exh.23 Copy of Yadi to medical officer, Ashirwad Hospital from Police Inspector, Borsad Exh.24 Injury certificate of deceased Jabir issued by Ashirwad Hospital Exh.25 Case papers of deceased Jabir issued by Ashirwad Hospital Exh.27 Injury certificate of Irfan issued by Shreeji Clinic, Borsad Exh.29 Injury certificate of Irfan issued by Shri Krishna Hospital, Karamsad Exh.30 Copy of Yadi to medical officer, Shri Krishna Hospital, Karamsad from Police Inspector to Borsad Town Police Station Exh.31 Case papers of Irfan Shaikh issued by Shri Krishna Hospital, Karamsad Exh.33 Yadi to medical officer, Primary Health Center, Davol from Police Inspector to Borsad Town Police Station for taking blood sample of Irfan Exh.34 Office copy of forwarding note by medical officer, Primary Health Center, Davol to hand over blood sample of Irfan Exh.37 Yadi to medical officer, Ashirwad Hospital from Police Sub-Inspector, Borsad for post-mortem of deceased Jabir Exh.38 Post-mortem note Exh.39 Cause of death certificate Exh.40 Report to medical officer, Ashirwad Hospital from Police Sub-Inspector, Borsad Town Police Station for correction of name in Post-mortem report Exh.42 Yadi to medical officer, Primary Health Center, Alarsa from Police Inspector to Borsad Town Police Station for treatment of accused Rashmikant Satishbhai Exh.43 Case papers of accused Rashmikant Satishbhai issued by Primary Health Center, Alarsa Exh.46 Certificate of treatment accused Rashmikant Satishbhai issued by Primary Health Center, Alarsa Exh.47 Yadi to medical officer, Primary Health Center, Alarsa from Police Inspector to Borsad Town Police Station for taking blood sample of accused Rashmikant Satishbhai Exh.48 Office copy of Yadi from medical officer, Primary Health Center, Alarsa to hand over blood sample of Irfan to police Exh.50 Inquest Panchanama Exh.54 Panchanama of scene of offence Exh.55-56 Panch slips Exh.58 Panchanama of physical examination and clothes of accused Exh.59-60 Panch slips Exh.63 Panchanama of clothes of Maksudali Exh.64-66 Panch slips Exh.68 Panchanama of recovery of muddamal weapon at the instance of accused Exh.69 Panch slip Exh.73 Report by FSL mobile van Exh.74 Copy of Fax message to scientific officer, FSL mobile van from police Exh.75 Yadi to scientific officer, FSL mobile van from Police Inspector to Borsad Town Police Station map of scene of offence Exh.79 Written Statement of Panch taken by revenue circle officer at the time of drawing of map of scene of offence Exh.80 Yadi to Police Inspector to Borsad from circle officer, Borsad Exh.81 Map of scene of offence Exh.83 Yadi to Police Station officer, Borsad Town Police Station from Police Sub-Inspector, Borsad Town Police Station Exh.84 Posthumous form Exh.87 Copy of complaint by accused Rashmikant Exh.88 Copy of Entry no.2 and 3 at page no.78 of Station diary Exh.89 Copy of Entry no.3511 at page no.24 of NC register Exh.90 Extract of page no.37 of Telephone vardhi register Exh.91 Telephone vardhi Exh.93 Forwarding note of sending muddamal Exh.94 Receipt of FSL for receiving muddamal Exh.95 Forwarding letter by FSL Exh.96 FSL report Exh.97 Serological report 5. After closure of the prosecution evidence, the appellant- accused was questioned under Section 313 of Cr.P.C. to which, he stated that he was innocent of all the charges levelled. He has further pleaded that on 20.07.2013, he went to the Vadodara, Nandesari Estate for his work and at late night at 12:00 o’clock, he came to his house. He has further stated that at early morning at 05:00 o’clock, Borsad police arrested him from his house. He has further stated that on 19.07.2013, there was an incident of group class between two communities and due to the enmity, he has been falsely implicated in the offence. He has further stated that the police has beaten him and that is why, he sustained injuries over his nose. 6. Though opportunity was extended, no evidence was tendered from the side of the appellant. 7. The learned Sessions Judge, after hearing the parties, held guilty the appellant for the murder of Jabir Shaikh and causing fatal injuries to the witness Irfan Shaikh. The Court below mainly relied on the evidence of injured witness Irfan Shaikh (PW:2) and deposition of the various doctors including PM doctor, who had inter alia stated that the cause of death was haemorrhagic shock due to stab injuries over the left side of the chest and doctor further opined that the injury no.1 was fatal and in ordinary course of nature, the injuries were sufficient to cause death. 8. Challenging the judgment of conviction and order of sentence, the appellant has preferred this appeal. 9. Mr.P. P. Majmudar, learned counsel for the appellant, assails the conviction and sentence mainly on the following grounds: (A) The judgment of conviction and sentence is wrong, erroneous, and was passed without application of judicial mind and in violation of settled principle of law. (B) The judgment of conviction is based on assumption, conjecture and surmises. (C) The complainant PW:1, who claimed to be eyewitness of the incident, has been declared hostile. (D) The prosecution case solely based on the evidence of eyewitness PW:2 Irfan Shaikh. In the testimony of PW:2, there are major inconsistency and contradiction in his statement. The first version of the witness was to the effect that when he was sitting outside his house with his cousin, the people, who gathered near his house started quarreling with them and stabbed him. In the testimony of PW:2, there are major inconsistency and contradiction in his statement. The first version of the witness was to the effect that when he was sitting outside his house with his cousin, the people, who gathered near his house started quarreling with them and stabbed him. The aforesaid first version was given by him before the treating doctor PW:5 Priya Bhavnani and PW:5 in her testimony deposed the facts of history of the incident stated by the injured PW:2 Irfan Shaikh. Thus, the witness PW:2 did not disclose the name of the assailants before the doctor which clearly established that he was not eyewitness of the incident, otherwise, he would have stated before the doctor about the role played by the present appellant. Therefore, the version of the eyewitness PW:2 being a relative of the deceased, without corroboration cannot be believed and in his testimony does not inspire confidence. (E) The another eyewitness PW:14 Maksud Ali Saiyed has deposed against the appellant accused. However, his presence at the place is not established. The so-called eyewitness PW:2 Irfan Shaikh in his testimony has stated that after the incident, one Sakir Ullakhan and Imran Pathan after hearing the shouting came to his rescue. He did not mention the name of the eyewitness PW:14 Maksud Ali. The prosecution failed to examine the aforesaid two persons referred by the PW:2 Irfan Shaikh. The prosecution while non-examination of the independent person has not given satisfactory explanation about non-examination of the persons, who were present the place. Thus, the testimony of witness PW:14 about the incident and the complicity of the accused being interested witness cannot be relied upon. (F) The recovery of the knife affected at the instance of the accused in pursuant of disclosure statement cannot be relied as neither the witnesses of panchnama nor the I.O. have stated the exact words spoken by the accused and narrated in the panchnama. The facts of disclosure statement and recovery of knife is not admissible in evidence because the witnesses failed to prove the contents of the panchnama Exh.68. The facts of disclosure statement and recovery of knife is not admissible in evidence because the witnesses failed to prove the contents of the panchnama Exh.68. (G) The accused in his statement recorded under Section 313 of Cr.P.C. specifically stated that he has been falsely implicated in the offence by the police as due to communal clash between two group of the village, he was framed by the people who having a vested interest and therefore, after his arrest the accused was beaten up by the police. The court below considering the background facts of communal riot, should have accepted the defence in the form of statement recorded under Section 313 of Cr.P.C. However, the Court below failed to appreciate the said aspect and convicted the accused. 10. Mr. P.P.Majmudar, learned counsel appearing for the appellant, in the aforesaid circumstances, prayed that the prosecution failed to prove its case beyond reasonable doubt by adducing cogent and trustworthy evidence and further prayed that the judgment of conviction and order of sentence be set aside and the accused may be acquitted of all the charges. 11. Alternatively, Mr.Majmudar has submitted that there was a single blow and in a petty issue of mobile phone, the fight was arisen and therefore, when the quarrel was sudden fight, without premeditation, and act of inflicting injuries was in hit of passion, the offence committed was not that of murder, but it was culpable homicide not amounting to murder, as the case of the applicant would fall under Exception – 4 to Section 300 of IPC. The accused has undergone 12 years of imprisonment and therefore, having regard to the nature of injuries and evidence on record, the Court below was not justified in convicting the accused under Section 302. 12. On the other hand, opposing the contentions, Mr. Jay Mehta, learned APP for the respondent – State and Mr. Ashish Dagli, learned counsel appearing for and on behalf of the original complainant, supported the impugned judgment and contended that the prosecution has led sufficient evidence to prove guilt of the appellant. That at the time of incident, the deceased Jabir and Irfan Shaikh were only persons present at the scene of occurrence and due to hue and cry, PW:14 came to rescue at the spot. That at the time of incident, the deceased Jabir and Irfan Shaikh were only persons present at the scene of occurrence and due to hue and cry, PW:14 came to rescue at the spot. The persons who were referred by PW:2, did not necessarily examine in support of the prosecution case, as the evidence available should be weighed, not counted. That no particular number of witnesses shall in any case be required for proof any fact. That the testimonies of the PW:2 and PW:14 are sufficient to prove the guilt of the accused and there is no any doubt or suspicious about their presence at the scene of offence and therefore, the theory of communal riot and causing injuries by some unknown persons as projected by the defence has no any merits. The witnesses as well as the investigation officer have denied the defence of causing injuries by someone. Thus, merely taking a reference of medical history, would not be ground to discard the testimony of witnesses, who otherwise found to be reliable and trustworthy. In such circumstances, the learned APP prays that the Court below has rightly appreciated the evidence in its true perspective in holding the appellant guilty of the offence and therefore, they prayed that there being no merits in the appeal and the same may be dismissed. 13. Before adverting to the issue, it is profitable to refer the evidence adduced by the prosecution. The complainant PW:1, who claimed to be eyewitness has been declared hostile and therefore, there is no need to refer his testimony. The prosecution has mainly relied on the two eyewitnesses viz. Irfan Shaikh (PW:2) and Maksud Ali Saiyed (PW:14). 14. Irfan Shaikh (PW:1) in his testimony has stated that on the day of incident, i.e. 20.07.2011 at about 07:30 p.m., he along with his cousin brother deceased Jabirkhan were standing on the road opposite Mahakali Temple. The accused Rashmikant @ Jalio came before them and asked his brother Jabir to give his mobile phone and he had given a phone to him. After some time, Jabir asked back his mobile phone, due to which, the accused got angry and started abusive and when Jabir asked not to hurled abusive, the accused took out knife from his pocket and stabbed on the chest of deceased Jabir and when tried to intervene, the accused also stabbed him on his right chest. After some time, Jabir asked back his mobile phone, due to which, the accused got angry and started abusive and when Jabir asked not to hurled abusive, the accused took out knife from his pocket and stabbed on the chest of deceased Jabir and when tried to intervene, the accused also stabbed him on his right chest. After the incident, due to hue and cry the persons of the vicinity area gathered there and taken them to nearby hospital. The witness PW:1 has stated that after taking treatment at the local clinic of the village, he and his cousin Jabir who were admitted in the Krishna Hospital, Karamsad. It is further stated that the brother Jabir died on the same day, whereas after 2-3 days he was discharged. The witness has identified the accused as well as the weapon knife in the Court. In the cross examination, the defence has tried to disprove the facts of the incident, but the witness has denied the defence put-forth by the accused. They failed to prove their defence. The accused tried to prove his defence that, the accused had teased the women, who were came at the Mahakali Temple and due to the said incident, huge crowed assembled and the clash between two communities broke out and in that clash, the person from one community tried to save himself wielded the knife which, accidentally, caused the injuries to the deceased and witness Irfan. However, the said suggestion has been denied by the witness. 15. Another eyewitness PW:14 Maksud Ali Saiyed in his testimony has stated that on the day of the incident, he was standing near the office of the Bhagini Society at Borsad and he saw the incident. He has further stated that after heated exchange of words, the accused Rashmikant stabbed the deceased on his chest and when Irfan Shaikh intervened, he was also stabbed by the accused. The witness has further stated that he took the deceased to the Ashirwad Hospital and thereafter, at the Krishna Hospital at Karamsad. In the cross examination, he stated that he had saw the incident at the distance of 100 ft. He has also denied to the suggestion that before he could reach at the place, the incident has already been over. 16. In the cross examination, he stated that he had saw the incident at the distance of 100 ft. He has also denied to the suggestion that before he could reach at the place, the incident has already been over. 16. In order to prove the injuries sustained by the deceased as well as PW:12 Irfan Shaikh, the prosecution has examined PW:3, PW:4, PW:5 and PW:7. The brief narration of the evidence reads thus: 16.1 PW:3 Jayesh Vadher – The witness being a doctor is running the hospital at Borsad in the name of Ashirwad Hospital. The deceased Jabir was brought before him at 07:45 p.m. and after giving primary treatment to him, the witness was referred at the higher centre because he was in critical condition. The certificate Exh.24 shows that the condition of the deceased was critical as he had sustained chest injuries. 16.2 PW:4 Dr.Hasmukh Panchal – The witness is running the hospital in the name of Shriji Clinic at Borsad and on the date of incident at about 07:40 p.m., the injured witness Irfan Shaikh took primary treatment before him and then, he was referred to higher centre at Krishna Hospital, Karamsad. 16.3 PW:5 Dr.Priya Bhavnani – The witness in his testimony stated that on 20.07.2011 at about 08:50 p.m., she was present in the Krishna Hospital, Karamsad and had examined the injured Irfan Shaikh and noticed the following injuries: Stab injury in chest L/E Stab wound over right upper chest 3 cm x 1 cm Cavity deep Sharp Grievous – 24 hrs; Minimum blunting of right cardiophenic angle and subcutaneous emphysema in right lateral chest wall; The witness in his testimony stated that the history of the incident stated by the patient Irfan Shaikh had been noted by her in case papers. The history given by the patient to the effect that when he was outside of his house, some people stabbed him. 16.4PW:6 Dr.Sanjay Gupta – The witness being a Profession in the stream of forensic medicine was on duty with Shriji Medical Hospital, at Karamsad and had conducted post-morterm on the body of the deceased. In the post-morterm at Exh.37, he noticed the following antemortem injuries: 1. Stab wound present over lower part front of Left side of chest which was 118 cm above the left heel and 4 cm left side of midline. In the post-morterm at Exh.37, he noticed the following antemortem injuries: 1. Stab wound present over lower part front of Left side of chest which was 118 cm above the left heel and 4 cm left side of midline. 14cm below & middle to left nipple having size 1.5cm x 5cm and 7 cm deep till chest cavity. The wound was horizontal. Inner and outer angle of the wound were acute and sharp. Beveling effect was showing on lower margin. Margins on wound was sharp and there was dent on it. Direction of wound was on the backward upper side laterally. 2. Surgical type Puncture wound on middle and outer part of left chest which was made for inter costal draining which was 4cm downward from nipple on outer side, 17 cm left from midline. Margins of wound were edged and sharp. Upon external examination there was no fracture. The above injuries were antemortem and injury no. 1 was sufficient to cause death in ordinary circumstances. Injury no. 2 was therapeutic type. The internal injuries mentioned in the P.M. report reads thus: Thorax – Corresponding to external injury no.1, stab wound passing through 6 th inner costal space from lower most part of border cutting through 7 th rib damaging subcutaneous tissue and muscles perforating the outer layer of heart and entering and exiting left ventricle of heart. This puncture wound was passing from left lung to mid border. There was 100 cc blood in heart cavity and 500 cc blood in left cavity of chest. Left lung had collapsed and was pale. Right lung was pale. No other pathology was found apart from above injuries. All coronaries were patent and there was no injury or fracture in the neck. There were no ligature marks on neck and no signs of strangling of neck. 16.5The PM doctor - PW-7 has clearly opined that the injury no. 1 mentioned in column no. 17 was sufficient in order in course to cause the death. According to his opinion, the cause of death was homoerotic shock due to stab injuries to the left side of the chest, which had caused damaged to heart and left lung. He has further opined that, the injury could be possible by the knife seized by the police. In the cross-examination, nothing fruitful comes on record that, the evidence of witnesses is totally inconsistent with the medical evidence. He has further opined that, the injury could be possible by the knife seized by the police. In the cross-examination, nothing fruitful comes on record that, the evidence of witnesses is totally inconsistent with the medical evidence. 17. It is relevant to note the simply injuries sustained by the accused herein. When he was arrested, the police sent him for medical examination. PW-8 Dr. Subhash Ramani, had examined the accused and found following external injuries:- (i) small abrasion 1.2 cm. X 1/2 cm on the nose; (ii) small abrasion 1 cm X 1/2 cm on the forehead; (iii) tenderness over the left elbow. 18. Mr. J.T. Rana (PW-19), who was the investigating officer of the case. He testified that, during the course of investigation, he had arrested the accused and seized his bloodstained cloths and in the presence of independent witnesses and officer of the FSL, he drew the panchnama of place of occurrence and collected necessary blood samples. So far as weapon is concerned, the IO has stated that, during the interrogation of the accused, he discovered the weapon knife from his house and same had been seized by drawing the panchnama in terms of Section 27 of the Evidence Act. He has further stated that, he recorded the statement of the witnesses, collected the bloodstained cloths of the witness Maksud, sent the muddamal articles to the FSL for forensic analysis, obtained the treatment case papers of injured Irfan and PM note of the deceased and at the end of investigation, the chargesheet came to be filed. In the cross-examination, he admitted that, during the course of interrogation of complainant and injured Irfan, the names of two eye-witnesses namely Sakir Sikandarkhan and Imrankhan Dastgiri had been surfaced. The IO admitted the facts that the distance between the place of occurrence and house of Irfan is 70 to 80 ft. and his house cannot be seen from the place of incident. The IO has denied the suggestion that Irfan was assaulted by the crowd when he was sitting outside his house. The IO has denied that he did not have recorded the statement of independent person and recorded the statement of only interested person. The IO has also denied the suggestion that the accused was beaten at the police station and false N.C. case under pressure came to be registered. The IO has denied that he did not have recorded the statement of independent person and recorded the statement of only interested person. The IO has also denied the suggestion that the accused was beaten at the police station and false N.C. case under pressure came to be registered. The I.O. has also denied that, the incident took place near the house of Irfan and it was occurred due to communal riots. 19. We have also taken the notice of the fact that the accused herein lodged a complaint against the deceased Jabir Shaikh and Irfan Shaikh, inter-alia, alleging that on 20.07.2011 at about 7-30 near the place of occurrence, he was assaulted by kicks and feast blows because, the quarrel arose on handing over the mobile phone. The said complaint was registered as N.C. complaint and chapter case being No. 173/2011 under Section 110 of the Cr.P.C. was being filed. So far as the aforesaid N.C. case is concerned, the accused pleaded that, the false N.C. case being filed by the police because the police assaulted him and in order to save their skin the case has been registered. 20. In aforementioned facts and circumstances, the question for our consideration would be whether the learned trial Court was justified in convicting the accused for the offence of murder? 21. We have carefully examined the evidence of two eye-witnesses namely PW-2 Irfan Shaikh and PW-14 Maksudali Saiyed. The witness PW-2 at the time of incident was in company of the deceased. The accused when he was on the road near the Mahakali Temple, Borsad Town, had asked the deceased to give his mobile phone and after taking the mobile he did not return it and when deceased asked to return his mobile, the accused got angry and stabbed the deceased. When Irfan Shaikh came to rescue, he also stabbed by the accused. The medical evidence corroborates the theory of stabbing as both the deceased as well as witness sustained stab injury over their chest. The deceased become unconscious and died within 4 to 5 hours at the Krishna Hospital, Karamsad, whereas, the Irfan Shaikh was admitted as indoor patient and surgery was performed. The evidence of eye-witness PW-14 corroborates the version of two eye-witnesses as referred above. The deceased become unconscious and died within 4 to 5 hours at the Krishna Hospital, Karamsad, whereas, the Irfan Shaikh was admitted as indoor patient and surgery was performed. The evidence of eye-witness PW-14 corroborates the version of two eye-witnesses as referred above. The defence has tried to establish that it is a case of communal riot, however, the witnesses as well as the investigating officer denied the theory of communal riots. When the incident occurred, the deceased, his cousin brother Irfan and accused were present and later on PW-14, who residing nearby area had saw the incident. Therefore, the persons who were in the temple, did not have an opportunity to show the incident and nowhere the facts comes on record that the persons nearby the vicinity were present at the spot. In such circumstances, the presence of the two eye-witnesses found to be natural and their testimonies does not in any manner seem to be interested or partisan or had any hostility towards the accused. The issue of non-examination of the independent witness being raised and in that context, it is submitted that, the two persons namely Sakir Pathan and Imran Pathan despite of being their presence at the spot, they had been dropped by the police. In that view of the matter, it is relevant to note that, the PW-2 Irfan in his testimony has not stated that the above two witnesses had saw the incident, nor any question to this aspect was being asked to him by the defense. The law on the aspect of non- examination of the independent witness is settled. In Appabhai and another Vs. State of Gujarat, AIR 1988 SC 696, on the issue of non-examination of the independent witnesses, the Supreme Court held that, the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are general and sensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. The keep themselves away from the court unless it is evitable. The principle of law laid down hereinabove, is fully applicable to the facts of present case. It is not the defense that the two witnesses cited in the chargesheet and with oblique reason, they have been dropped by the prosecution. They withdraw both from the victim and the vigilante. The keep themselves away from the court unless it is evitable. The principle of law laid down hereinabove, is fully applicable to the facts of present case. It is not the defense that the two witnesses cited in the chargesheet and with oblique reason, they have been dropped by the prosecution. In such circumstances, when the evidence of two witnesses PW-2 and PW-14 found to be cogent, convincing and reliable, the mere non-examination of two witnesses as referred above, by the investigating officer, cannot cast doubt on the version stated by the prosecution witnesses, more particularly when there is no reason on record for the witnesses to falsely implicate the appellant accused. The defense has tried to establish that the crowd of minority community caught the person from the Hindu community and in order to save himself from the crowd, he wielded the knife, as a result, accidentally the deceased and Irfan Shaikh suffered chest injury. The witness has denied in clear term the said defense. Thus, upon careful examination of two eye-witnesses, we are convinced their presence at the spot and they have no motive to falsely implicate the accused because of the communal grudge. 22. In view of the discussions hereinabove, we believed the presence of the two eye-witnesses at the place of offence and upon close scrutiny of their testimonies, we do not find anything inherently improbable or unreliable in their evidence. 23. The next contention relates to the history given by PW-2 eye-witness Irfan Shaikh before Doctor PW-5 – Dr. Priya Bhavnani. It was submitted that, the first version of witness Irfan Shaikh before the doctor was to the effect that, he was stabbed by someone from the crowd when he was sitting at the outside of his house. Mr. Majmudar, learned counsel has given more emphasis on the history and contended that, the doctor PW-5 is independent witness and the witness PW-2 himself had disclosed the history before the treating doctor. Thus, it was argued that, the witness PW-2 was not eye-witness of the incident. We have carefully gone through the medical evidence and testimony of PW-2. In identical fact situation, the Supreme Court in Pattipati Venkaiah Vs. Thus, it was argued that, the witness PW-2 was not eye-witness of the incident. We have carefully gone through the medical evidence and testimony of PW-2. In identical fact situation, the Supreme Court in Pattipati Venkaiah Vs. State of A.P., ( 1985 (4) SCC 80 ), held and observed that, the doctor is a prosecution witness for the limited purpose of the injury report and not a prosecution witness with regard to the occurrence. The observations made in para-17 are relevant to reproduce : “17. Another argument advanced before us was that although PWs 1 and 2 were supposed to be eyewitnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the doctor. It is well settled that doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.” 24. In light of the principles laid down on the aspect of duty of doctor and having regard to the facts of the present case, the history as referred by doctor PW-5, would not be a decisive factor nor override the substantive evidence. Thus, we do not find any merits in the submission that, the testimony of PW-2 Irfan Shaikh is not worthy of credence. 25. It is the next submission that, the discovery of knife is not proved and the evidence of IO as well as the witnesses does not prove the contents of the panchnama of discovery. The prosecution case is based on direct evidence and the involvement of the accused has been proved by the evidence adduced by the prosecution. 25. It is the next submission that, the discovery of knife is not proved and the evidence of IO as well as the witnesses does not prove the contents of the panchnama of discovery. The prosecution case is based on direct evidence and the involvement of the accused has been proved by the evidence adduced by the prosecution. It is no doubt true that the IO has not stated on oath that, while the accused in his custody, had voluntarily disclosed that the knife which he had used concealed in his house and he desires to discover it voluntarily. However, facts remained that, the witnesses as referred above, consistently stated that the author of the crime is the appellant accused. In such circumstances, merely a discovery panchnama has not been proved in accordance with law, would not render the oral testimony, become doubtful and discarded in its entirety only on this count. 26. On the alternative submission, the question that arise is to whether accused is guilty for the offence of murder, as defined under Section 300 of the IPC or death caused was culpable homicide not amounting to murder under Section 304 of the IPC? 27. We have carefully examined the oral as well as medical evidence. In the preceding paras of this judgment, we have held that, the accused is the author of crime and same has been proved by the prosecution adducing sufficient and reliable evidence. The doctor PW-7 Mr. Gupta while conducting postmortum on the body of the deceased, opined that the cause of death was haemorrhagic shock due to stab injuries over the left side of the chest, which had caused damage to heart and lung. The doctor PW-7 in his testimony clearly stated that the injuries were sufficient in ordinary course to cause the death. 28. It is the prosecution to prove the case against the accused that he has committed murder as defined under Section 300 of the IPC. The doctor PW-7 in his testimony clearly stated that the injuries were sufficient in ordinary course to cause the death. 28. It is the prosecution to prove the case against the accused that he has committed murder as defined under Section 300 of the IPC. Section 300 provides that, culpable homicide is ‘murder’, if the act by which the death is caused is done with the intention of causing death or if it is done with the intention of causing such bodily injury, as the offender knows to be likely to cause death or if it is done with the intention of causing bodily injury and the said injury intended to be inflicted is sufficient in ordinary course of nature to cause death or the accused knows that, it is so imminently dangerous that it must, in all probability, caused death or such bodily injury as is likely to cause death. 29. Bearing in mind the legal provision and having regard to the facts and evidence on record, the injuries caused on the body of the deceased was on the vital part and same was caused with dangerous weapon knife. At relevant time, the accused carried with the knife and took out it from his pocket. As per the opinion of the doctor, the chest injuries were sufficient in ordinary in nature to cause the death. It is relevant to note that, when PW-2 Irfan Shaikh intervened, he was also stabbed by the accused on his chest. The injuries found at the cavity of the chest and longs were damages substantially. In such circumstances, causing injury on the vital part with the dangerous weapon leads to inference that the accused intended to kill. We may profitably refer the law laid down by the Supreme Court in the case of Virsa Singh, AIR 1958 SC 465 . In the said judgment, it was held that, a culpable homicide is a murder under Section 300 clause Thirdly, if the prosecution should establish four elements (i) the presence of bodily injury, (ii) nature of such bodily injury (iii) intention on the part of accused to inflict such bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended, (iv) the injury was sufficient to cause death in the ordinary course of nature. The Supreme Court on the question as to how the intention to be inferred, has succinctly stated : "In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted x x x x The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended some consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question." 30. In the facts on hand, the injury was caused with a knife blow to the chest and it was inflicted with such a force that, the knife penetrated the chest and lungs. In such circumstances, the only possible inference is that the accused intended to inflict the blow on the vital part of the body of the deceased. There is no suggestion put forth by the defense that the injury was accidental, unintentional or that some other kind of injury was intended. In such circumstances, the only possible inference is that the accused intended to inflict the blow on the vital part of the body of the deceased. There is no suggestion put forth by the defense that the injury was accidental, unintentional or that some other kind of injury was intended. In such circumstances, the prosecution able to prove that the act of the accused would fall under Section 300, clause Thirdly. 31. Mr. Majmudar, learned counsel has submitted that, single blow injury was found on the chest and in a small matter of mobile phone, the scufÒe had taken place in a spur of moment and in a heat of passion upon sudden quarrel without premeditated, the act was done and therefore, case would fall under exception to (iv) to Section 300 of the IPC. In order to attract the exception, it is required to be established that, the act was committed without premeditation in a sudden fight, in a heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The pre-condition for attracting the exception would be that the all circumstances simultaneously would be required to be co-exist. In the case on hand, after stabbing the deceased, the accused stabbed the witness PW-2 Irfan Shaikh on his chest and the injuries sustained by the witness was also serious one. Thus, the manner in which, the blow was given and carrying the knife with him at relevant time, it can be inferred that, there was an intention to kill the deceased and therefore, inflicting blows on two persons can be said that, the accused had taken undue advantage and acted in a cruel or unusual manner. Therefore, the circumstances to bring the case under exception (iv) to Section 300 is not exist. 32. In view of the aforesaid discussions, after re-analysis and re-appreciation of the evidence and on perusal of the impugned judgment of conviction, we are satisfied that, prosecution has proved its case with sufficient oral and documentary evidence beyond all reasonable doubt, that the appellant was the author of the crime and the trial Court has rightly found the appellant accused guilty for act of murder punishable under Sections 302 & 307 of the IPC. We do not find any scope for interference with the findings of conviction and sentence recorded by the trial Court. We do not find any scope for interference with the findings of conviction and sentence recorded by the trial Court. 33. In the result, this conviction appeal deserves to be dismissed and is hereby dismissed. The conviction and sentence are upheld. R&P, if any, be sent back to the trial Court forthwith. Bail bond is hereby cancelled. He is directed to surrender before the jail authority to complete the sentence awarded to him. A copy of this judgment shall be sent immediately to the trial for compliance. Original record be sent forthwith to the concerned court. 34. Mr. Majmudar after pronouncing the judgment, requested for six weeks time to surrender the accused, as the accused is on bail. The time as sought, is granted.