Judgment:
Arun Kumar, J.
(1) The sentences of both the appellants in this appeal were suspended vide order dated 10th August 1993, passed by this Court during the pendency of the appeal. In view of the dismissal of the appeal, the bonds furnished by the appellants are ordered to be cancelled and the appellants arc directed to surrender before the Chief Metropolitan Magistrate, Delhi, forthwith to serve their sentences. The Chief Metropolitan Magistrate will take all necessary steps in this behalf.
Let a copy of this order be sent to the Chief Metropolitan Magistrate, Delhi forthwith.
By a common judgment dated 24th November, 1992, appellant Prem Bahadur was convicted by the Addl. Sessions Judge, Delhi for an offence punishable under Section 302, Indian Penal Code while Om Prakash and Inder Pal, appellants were convicted under Sections 302/34, Indian Penal Code and all of them were sentenced to life imprisonment vide order dated 27.10.92. Crl.A. No. 233 of 1992 has been filed by Prem Bahadur while Crl.A.No. 234 of 1992 has been filed by the remaining two accused. This judgment disposes of both the appeals.
(2) Briefly the facts are that one Ganga Sahai was allegedly stabbed by appellant Prem Bahadur at about 9.00 p.m. on 23rd February, 1983 near a common water tap in the street at Gali No. 8, Nehru Nagar, Anand Parbat, Delhi. As per the prosecution case appellants 0m Prakash and Inderpal caught hold of Ganga Sahai and exhorted Prem Bahadur to kill him. Prem Bahadur who had a knife with him, gave two knife blows to Ganga Sahai - one in the abdomen and the other close to the first blow backwards. As a result of the knife blows Ganga Sahai fell down in the street. The three accused fled from the place. Sheela Devi, wife of Ganga Sahai watched this incident from a close angle. With the help of others Sheela Devi put Ganga Sahai first on a cot and thereafter removed him to Hindu Rao hospital in a taxi. PW-17, Bindeshwer Saha also watched the incident and accompanied Sheela Devi to the hospital in taxi. Ganga Sahai died in the hospital on 19th March, 1983 at 4.50 p.m., i.e. on the 24th day of his being admitted to hospital. Prem Bahadur was arrested on 24th February, 1983. He made a disclosure statement and got recovered the weapon of offence, Om prakash was arrested on 1st March, 1983 while Inderpal was arrested on 11th March, 1983.
(3) The police got into action on the basis of a telephonic message given by somebody from the locality that a quarrel was taking place in the street and knife blows were being exchanged. This message was recorded vide D.D. Entry No. 138 on 23rd February, 1983 at the Police Control Room at 9.26 p.m. It is Ex. Public Witness 14/A. The P.C.R. informed the Police Station at Patel Nagar where DD. No. 56 B was made at 9.50 p.m. on the same day about this incident vide Ex. PW-15/A. The place of occurrence fall within the jurisdiction of Police Post Anand Parbat, thereforee, message was passed on to the said police post and was recorded there vide Dd No. 34 at 9.55 p.m.. Ex. Public Witness 20/A. S.I. Ishwer Singh was deputed to the spot. He took along with him four constables. On reaching the spot at about 10.15 p.m. he did not find any eye witnesses. He left for the hospital along with one constable leaving the other three constables at the scene of occurrence. At the hospital he recorded the statement of Sheela Devi who was present there. The said statement is Ex. Public Witness 1 / A. The said statement formed the basis of Fir No. 108 (Ex. Public Witness 5/A), recorded at Police Station Patel Nagar at 12.15 a.m. on 24th February 1983 under Section 307/34, IPC.
(4) According to the prosecution there were three eye witnesses of the crime:
PW-1, Sheela Devi, wife of Ganga Sahai; PW-2, Sat Pal, son of Ganga Sahai; and PW-17, Bindeshwer Saha. Only Sheela Devi remained the sole eye witness because out of the remaining two, Sat Pal son of the deceased died before he could be cross-examined. The other eye witness (Bindeshwer Saha) turned hostile. The Trial Court relied on the statement of Sheela Devi, the sole eye witness and convicted the three accused in the manner referred as above.
(5) Sheela Devi, who appeared as PW-1, gave an eye witness account of the entire incident. As per her statement the three appellants were residents of the same neighborhood and parties were known to each other. She deposed -
'ON 23.2.83 at about 11 a.m. I had gone to fetch water from the water tap which is installed at a little distance away from my house. Accused Prem Bahadur was also there. At that time, he was having 7 buckets with him for collecting water from that tap. In fact there was a que for collection of water at that time. Accused was behind me in the qua at that time. When my turn came for collecting water, the accused asked me to get away as he himself wanted to collect water first. I requested the accused to permit me to collect a little water as my son had eased himself and I wanted to clean him. When I put my bucket of water below that tap, the accused put his hand on that tap and thus prevented water falling in my bucket. Further the accused kicked away my bucket which thus fell in the drain. Weepingly, I left that place and went to police post Anand Parbat and lodged a report there. No one present at the spot asked the accused as to why he had behaved in that manner. In the evening, when my husband returned from duty, I narrated the entire incident to him. Thereafter my husband himself went to police post Anand Parbat to lodge the report. In the evening while I was cooking meal and my husband was taking his meals inside the house. My son Sat Pal had gone to collect water from that very water tap. At that time, accused Prem Bahadur, Om Prakash and Inder Pal all present in Court today, collected in the street. Only Prem Bahadur, accused assaulted my son Sat Pal. My son Sat Pal started weeping. On hearing the weeping of Sat Pal myself and my husband both came out in the Gali. I saw all the three accused persons present there. My husband then asked the accused as to why they were beating Sat Pal. At that time, accused 0m Prakash shouted 'Pakarlo Salay ko, Dekhi jaigi'. Immediately accused 0m Prakash secured my husband (Kolli Bharii). Accused Inderpal also secure my husband while accused Prem Bahadur started stabbing my husband with a knife. Two knife blow was given by accused Prem Bahadur in the stomach of my husband. One of those blows was on the front side while the other was a little away on the left side waist of my husband. At the time, accused 0m Prakash and Inderpal were also shouting, 'Marro Salay Ko'. After receiving those knife blows, my husband fell over the drain while the three accused persons fled away from there with the weapon of offence. When my husband fell over the drain, I started shouting, 'Mardia Mardia'. On hearing those shouts, many persons from the neighborhood collected there. With the help of some of those persons, I put my husband in a taxi and removed him to Hindu Rao Hospital. The police reached the hospital. My statement was recorded in Hindu Rao Hospital at about mid night. That statement of mine is Ex. Public Witness 1 / A, the same was read over to me and I thumb marked it in token of its correctness. Bindeshwar Saha is my tenant. The said Bindeshwer Saha was washing his hands over that drain when the accused persons gave beating to my son Sat Pal. The incident of stabbing of my husband took place at about 8.30 p.m. on 23.2.83.'
(6) The above statement of Sheela Devi gives a vivid account of the entire incident. An important fact having bearing on the incident of stabbing which in fact finds mention in the above quoted statement of Sheela Devi needs to be highlighted. On the date of the incident in the morning also a quarrel had taken place between Prem Bahadur and Sheela Devi on taking water from the common water tap. Sheela Devi had lodged a report at Police Post Anand Parbat about this incident at 11.35 a.m. which is Ex. Public Witness 1/D-A. In the said report Sheela Devi had complained that there was a common water tap in the street which was being used by about 10 persons. On that day at about 10.00 a.m. Prem Bahadur was taking bath at the tap when she also went there to fetch water. Prem Bahadur did not let her take water and threw away her bucket and twisted her arm. Again on the same day at 6.45 p.m. in the evening Ganga Sahai lodged a report at Police Post Anand Parbat (Ex. Public Witness 20 / B) to the effect that Prem Bahadur @ Munna, a resident of his neighborhood had quarrelled with his wife and he perceived the threat to the life and property of himself and his children from Munna. He sought police help and protection. Thus the incident of stabbing which took place at about 9.00 p.m. on the same day was culmination of the threat perception which Ganga Sahai had against Prem Bahadur, the appellant.
(7) The M.L.C. (Ex. Public Witness 12/A) of Ganga Sahai records that the patient was brought to the hospital by Sheela Devi with alleged history of being stabbed by Prem Bahadur @ Munna and others at her Nehru Nagar residence. It records two injuries sustained by the patient as :
1. clean incised wound half inch X half inch
2. left lower axillary region. About 2' above sub costal margin. Pally tissues protruding out. Two incised wound half inch X half inch about three inches posterior to above wound.
In the column about 'kind of weapon used' it is mentioned 'sharp'. The M.L.C. further shows that the patient was declared as unfit for making statement. Dr. K. Gopal, who prepared the M.L.C. and who attended on the patient on his arrival at the hospital, was examined as PW-12. According to the doctor, the patient was fully conscious when he was brought to the hospital. The patient was referred to an Emergency Ward for further examination and management. X-ray of his abdomen and chest were taken. He proved the M.L.C. Ex. Public Witness 12/A as having been recorded by him in his own handwriting and signed by him. He added that the vest and the shirt of the patient were removed and were sealed in a packet and that packet was handed over to the duty constable.
(8) S.I. Ishwer Singh is the I.O. in this case. He was examined as Public Witness 22. He first went to the place of occurrence where he could not meet any witness. However, he learnt that the injured had been removed to the hospital. He proceeded to the hospital and found Ganga Sahai admitted there. He obtained the M.L.C. of Ganga Sahai. He could not record the statement of Ganga Sahai as he was declared unfit to make a statement. He met Sheela Devi there and recorded her statement and sent the same Along with his endorsement for registration of the case. He collected a sealed packet from the duty constable at the hospital. The packet contained clothes of the injured. He returned to the spot and continued the investigation. He prepared a plan Ex. Public Witness 22 / C. On the next day he arrested the appellant Prem Bahadur. Prem Bahadur made the disclosure statement referred to above and got the weapon of offence recovered vide memo Ex. PW-18/C. A sketch of the weapon was prepared. He identified the weapon in Court as Ex. P-l. He arrested Om Parkash the second appellant on 1st March, 1983. He recorded statement of Ganga Sahai on 3rd March, 1983. He prepared the inquest report Ex. PW-20/B and sent the dead body for post mortem examination. The dead body was identified by Bindeshwar Saha and Sheela Devi.The clothes worn by the Ganga Sahai at the time of the incident and weapon of offence were sent to the CFSL. 'The report of the Cfsl is Ex. PW-19/C and PW-19/D. As per the report blood was detected on the clothes of Ganga Sahai as well as on the knife which was used as weapon of offence. The traces of blood on the knife were too small for serological analysis.
(9) The I.0. was cross-examined at length. He denied the suggestion that the clothes of Sheela Devi were blood stained when he first saw Sheela Devi at the hospital. He also stated that he did not record the statement of any three wheeler driver or taxi-wala regarding Ganga Sahai being brought to the hospital (and the blood stained bed sheet and Lungi). About the scene of occurrence he described that the water tap in the street is about 4/5 paces away from the place of occurrence. The house of Ganga Sahai is about 20/30 paces from the water tap. 'Die place of recovery of weapon of offence is about 80 paces from the place of occurrence. He denied the suggestion that no disclosure was made by Prem Bahadur and that the knife was falsely planted by him.
(10) PW-11 is Dr. R.K.Gupta who was the surgeon in the hospital at the relevant time. He attended to Ganga Sahai in the surgical ward on 23rd February, 1983. He operated on him on 23rd February, 1983 itself. According to the doctor, he found two injuries on Ganga Sahai. One was on the left axillary region and 8' above the other injury on the posterior side. In the morning after the operation it was noticed that the dressing was soaked in blood. The dressing was changed but there was acute bleeding. On 4th March, 1983, he observed that there was no odema synopsis or Jaundice. On 12th March, 1983, he found that the patient had developed uremia, i.e., the kidney was not properly functioning and there was faecal intestinal fistula, i.e., the intestinal contents were coming out via opening of the abdominal wall. On 18th March, 1983 there was involuntary micturition. He had brought the death summary and the case sheet with him to the Court which was placed on record. The operational notes given by him on the said case sheet are Ex. PW-11/P.
(11) This brings us to PW-10 Dr. Bharat Singh who conducted post mortem on the body of Ganga Sahai on 20th March, 1983 at 3 p.m. He found the following injuries on the body of the deceased :
'1. One healing wound on the left posterior axillary line II' below the armpit, placed vertically, size 3/4' x 2/10' X muscle deep with infected surface. Margins were regular. Angles were pointed.
2. One infected would 2' medial to injury No. I placed vertically through which a rubber drainage tube was protruding out. Margins were ragged and infected. These two wounds were coinciding with the size of injuries mentioned in M.L.C. attached with the inquest papers.
3. Two opera.tional partially healed wound on the front of abdomen with suture markings at the margins. 'There was no puss on the surface of the wound. There was no inflammation around the wound. According to PW-10 all injuries were ante-mortem. Injury Nos. 1 and 2 were possible by sharp object and were sufficient to cause death in ordinary course of nature. Death was due to shock and peritonIT is resulting from injuries to abdomen. Time since death was about 22 hours. Sample of blood was sealed and handed over to the police. This report is Ex. Public Witness 10/A.'
(12) Shri K.B. Andley, learned Counsel for the appellant Prem Bahadur raised the following points to challenge the judgment of the learned Addl. Sessions Judge:
1. Sheela Devi, PW-1 is the sole eye witness. In the facts of the present case, the conviction should not be based on her testimony. Against Sheela Devi it was stated that her statement was not reliable. She had tried to improve her statement from stage to stage. She is a woman of loose character. Ganga Sahai and Sheela Devi were carrying on immoral activity in their house. It was also urged that Sheela Devi was in fact not present on the scene at the time of occurrence and she is a planted witness. Merely because she took the injured to the hospital, it does not mean that she was present at the time of occurrence and she witnessed the same. It was also pointed out that Sheela Devi who allegedly took Ganga Sahai to the hospital in a taxi admitted that she received blood stains on her clothes. Her clothes were not taken possession of by the police. In support of the plea that Sheela Devi was not present at the scene of occurrence and did not witness stabbing of Ganga Sahai it was submitted that she was unable to identify the weapon of offence. The argument is that if she was an eye witness to the crime she should have been able to identify the weapon of offence.
2. The prosecution failed to get the weapon of offence identified. The alleged eye witness could not identify the same. The knife was not shown to the doctors who were examined as PWs in the case who could have given their opinion about the use of the said knife in causing injuries to the deceased.
3. Certain flaws were pointed out in the investigation, particularly: (a) The blood stained sheet which was allegedly spread in the taxi in which Ganga Sahai was taken to the hospital and his blood stained 'Lungi' were not seized by the 1.0. (b) The sample of control earth was not taken so as to fix the scene of occurrence. This renders the identity of the alleged scene of occurrence doubtful.
4. Death of Ganga Sahai was not the direct result of stabbing. The stab injuries had in fact been managed in the hospital. The death took place because of the symptoms developed by Ganga Sahai during the post operation care. In other words, death is attributed to negligence of hospital staff.
(13) Ms. Neelam Grover, the learned Counsel appearing for the appellants Om Prakash and Inderpal, in addition urged that her clients had been roped in on the basis of Section 34, Indian Penal Code (because neither of them gave the knife blows to Ganga Sahai). No case for invoking of that Section is made out according to her specially in view of the fact that the two appellants were not involved in the incident of the morning and they were residing in a different street though in the same locality. It is submitted that there could be no basis for forming a common intention to kill Ganga Sahai by them along with Prem Bahadur. Further, according to her at best exhortation to kill Ganga Sahai is imputed to her clients. Exhortation, according to her, is a weak piece of evidence and should not be made the sole basis of implicating the appellants. She relied on Jainul Haque v .State of Bihar 1974 Scc (Crl) 1 in this behalf.
(14) Finally Counsel for the appellants in both the appeals urged that the offence allegedly committed by the appellants falls under Sections 302/304, Part Ii, instead of Section 302 IPC.
(15) We have carefully considered the various arguments raised on behalf of the appellants in both the appeals. Hereinafter we proceed to deal with the same.
POINTNo. I: The relevant portion of the statement of Sheela Devi has been reproduced by us hereinbefore. The said statement clearly implicates all the three appellants. The three appellants are residents of the same street in which Sheela Devi was residing along with the deceased. All the three are known to Sheela Devi from past. There could be no doubt about the identity of the three. The incident took place in the street and must have been witnessed by the residents. This is apparent from the D.D. entry recorded at the Police Control Room Ex. PW-14/A, according to which Ganga Ram a neighbour informed the Pcr that quarrel was taking place in the street and knife blows were being exchanged. If Ganga Ram reported about the incident, surely others in the street must have witnessed the incident. It is one thing that none of the residents came forward as eye witness. This apathy on the part of public witnesses is well known and results from various reasons including harassment by the police, harassment by the supporters of the accused and the accused if out on bail and inconvenience in attending to Court proceedings at the cost of one's daily work. When an incident takes place in a public place, it is most likely witnessed by public. False implication is normally unlikely in such a case. The person implicating another will be conscious of the fact that if he or she falsely implicates another, he may be in trouble. At the initial stage of interrogation one does not know whether any public witness will be forthcoming to give evidence in the case or not. Statement of Sheela Devi PW-1 appears to be natural. The allegation that she has tried to improve her statement is without any substance. No witness can tell an incident in same language every time. One cannot also lose sight of the fact that as it is the relations between the appellant Prem Bahadur and the family of Sheela Devi were soured. Sheela Devi had already lodged a complaint against Prem Bahadur appellant earlier in the morning of the same day which was followed by a complaint got registered by Ganga Sahai against the same appellant in the evening of the same day. In the complaint of Ganga Sahai he has indicated threat to his life and his family. These complaints of the earlier part of the day support the prosecution case and the statement of Sheela Devi as PW-1. It is settled law that conviction can be based on the testimony of the sole eye witness. We find that the testimony of Sheela Devi is reliable, trustworthy and free from any extraneous influence. Even the fact that Sheela Devi is a close relation, being wife of the deceased, does not persuade us to change this view. Her statement is most natural and inspires confidence. Sheela Devi has been dubbed as a woman of loose character. In fact the entire family has been condemned as a family indulging in illegal and immoral activities. There is nothing to support these allegations except that photographs of Sheela Devi with Bindeshwer Saha, PW-17 have been placed on record to suggest that she had illicit relationship with him. Pindeshwer Saha admittedly was a tenant in the house of Ganga Sahai and appears to have been visiting Sheela Devi after the death of Ganga Sahai. Sheela Devi had two sons who had reached the age of discretion, one of whom died in the meanwhile. Going to a movie with a neighbour once will not lead to the conclusion that the lady is of immoral character or is having illicit relations with her companion. thereforee we do not attach any importance to this allegation. If it was true that Sheela Devi had any such relationship with Bindeshwer Saha he would not have turned hostile in order to destroy the prosecution case. Variations, if any, in the statements of Sheela Devi can be explained on the basis of passage of time between the statements and natural human inability to reproduce an incident in the same manner every time. Main events have been correctly described every time. The view that we have taken about the statement of Sheela Devi leaves no scope for the argument that Sheela Devi was not present at the scene of occurrence when the crime was committed or that she merely took Ganga Sahai to the hospital. The presence of Sheela Devi on the scene of crime at the time of occurrence gains support from the fact that record shows that she took Ganga Sahai to the hospital soon after the incident. Further Sheela Devi has stated that she was cooking meal at her house in the evening and Ganga Sahai was taking his meals when their son Sat Pal was heard weeping. She came out in the street Along with her husband Ganga Sahai, which is most natural. Thereafter the incident took place. thereforee, we do not agree that Sheela Devi was not present at the scene as an eye witness. So far as the question of her clothes not being taken into possession by the 1.0. is concerned, this appears to be a lapse on the part of the 1.0. The 1.0. has tried to cover this lapse by denying the presence of blood stains on the clothes of Sheela Devi. In normal circumstances when the patient would be bleeding after receiving such wounds as in the present case, some blood stains are bound to come on the clothes of person who take such a patient to the hospital. Sheela Devi has in fact admitted presence of blood stains on her saree. The question arises that should we on the basis of this lapse of the 1.0. and in the presence of other overwhelming evidence on record, throw the prosecution case to the winds? The answer to this question in our view has to be in the negative. For this lapse on the part of the prosecution we cannot throw the prosecution case out. There is otherwise overwhelming evidence on record to indict the appellants in the present case. The disclosure statement of appellant Prem Bahadur and recovery of weapon of offence Ex. P-l at his instance and the absconscion of the three accused are facts which clearly point to their guilt. These facts corroborate the testimony of the sole eye witness Sheela Devi. We find no reason to discard the statement of Sheela Devi.
(17) Point No. 2 The next point is about the weapon of offence, i.e. knife. Ex. P-l not being got connected with the injury. In this connection it has to be noted that the M.L.C., Ex. PW-12A records that the injuries were due to a sharp edged weapon. The post mortem report shows that the two injuries are incised wounds. Such injuries are possible only from a sharp edged weapon. The post mortem report in fact records that the two injuries are possible by sharp objects and are sufficient to cause death in ordinary course of nature. thereforee, use of sharp edged weapon cannot be doubted. Is Ex. P-l the weapon of offence? It is to be noted that though the knife was not shown to Dr. R.K. Gupta, PW-11 or Dr. Bharat Singh, PW-10, when they appeared as witnesses in Court, yet the opinion of Dr. R.K. Gupta, PW-II was sought about the knife in question in relation to the injuries on the person of Ganga Sahai. Ex. PW-19/B is the opinion of Dr. R.K. Gupta in which after seeing the knife in question which was produced before him by Si Gurcharan Lal, PW-19, he gave an opinion that the injuries noted in the M.L.C. and the case sheet could be caused by that weapon. After examination by Dr. Gupta the knife was placed back in the sealed envelop in which it had been brought by the police officer. This opinion identifies the knife in question. Secondly, this was the knife which was recovered at the instance of the appellant Prem Bahadur. thereforee, we do not see any reason to disbelieve the use of the knife Ex. P-l in commission of the crime in the present case. There are two other important reasons in support of this view. Firstly, the incident took place at night. The knife was suddenly taken out by Prem Bahadur, the appellant and the knife blows were caused in a flash by him where after he fled from the scene along with the knife. Sheela Devi might not have noticed the knife so as to identify it when it was shown to her in Court after a long lapse of time. Secondly, there may be a case where the weapon of offence may not be recovered at all. Can it be said that in such a case the accused can not be convicted? Surely it cannot be so. Where there is direct evidence implicating an accused in a crime, failure to seize the weapon of offence will not destroy the prosecution case. : 1992CriLJ1111 . thereforee, we find no merit in this argument.
(18) Point No. 3 The flaws pointed out in investigation by the learned Counsel for the appellants become secondary in the facts and circumstances of the case. Here is a case of clinching, unequivocal and reliable evidence of an eye witness supported by the fact of recovery of weapon of offence at the instance of the appellant. In such facts failure to recover or seize blood stained sheet and Lungi used at the time of taking the victim to the hospital cannot be said to be fatal to the prosecution case. One may even have an Explanationn for this in the sense that the clothes might have been left in the taxi in which the victim was taken to the hospital and nobody might have noted the number of the taxi. Sheela Devi would be in no position at that time to think of retaining the sheet and the Lungi in order to hand them over to the police. The I .O. might not have bean able to trace the taxi in which these clothes were possibly left. The other flaw pointed out is the failure of the I.O. to take sample of control earth so as to fix the scene of crime. This again, to our mind, is not important in the facts of the case. The scene of crime was the street where the common tap was. Absence of dot by dot location would not make a difference in the facts on record of the case.
(19) Point No. Iv It was argued by the learned Counsel for the appellants that death is not the direct result of stabbing in the present case, thereforee, the case could not be treated as one under Section 302 IPC. At best it would be a case of simple hurt or grievous hurt. It is submitted that death actually resulted from negligence of hospital staff because the wounds developed septic. In this connection first we may refer to the evidence of Dr. Bharat Singh, PW-10 who conducted the post mortem. According to Dr. Bharat Singh, death was due to shock and peritonIT is resulting from injuries to abdomen. It is further opined that injuries No. I and 2 were possible by sharp object and were sufficient to cause death in ordinary course of nature. Thus the fact that the patient struggled for about 24 days before he succumbed to the injuries does not mean that the injuries were not sufficient to cause death. The entire basis of the argument is knocked off. Further there is no clear cut evidence on record to show that it was only on account of hospital negligence that the patient's condition got worse. This argument, thereforee, has to be rejected.
(20) This takes us to the argument advanced on behalf of the appellants Om Prakash and Inderpal that in any case they could not be convicted under Section 302 Ipc with the aid of Section 34 IPC. According to their learned Counsel there was no Occasion for having a common intention to kill Ganga Sahai between the two appellants and Prem Bahadur, the appellant in the other appeal. She adds that the previous complaints by the deceased or his wife were only against Prem Bahadur and not against the appellants represented by her. thereforee, it could not be said that there was any previous history of strained relations between two appellants and Ganga Sahai deceased or Sheela Devi.
(21) To answer these arguments we have to go back to the statement of Sheela Devi, PW-1. She has stated in clear and unambiguous manner that all the three appellants had collected in the street at the time of the incident. Even when beating was given to the son of Sheela Devi in the first instance all the three appellants were present. When Sheela Devi along with her husband came out of their house after learning that their son had been given beating by Prem Bahadur, she saw the three appellants in the street. She goes on to add that 0m Prakash shouted 'Pakar Io sale ko, dekhi jayegi' and 0m prakash caught hold of Ganga Sahai. Inder Pal also caught hold of Ganga Sahai and Prem Bahadur started stabbing him with a knife. Two knife blows were given by Prem Bahadur in the stomach of Ganga Sahai. When the knife blows were given both 0m Prakash and Inder Pal were shouting 'Maro sale ko', according to Sheela Devi. After the blows Ganga Sahai fell down and the three appellants fled the scene. We have already held that the statement of Sheela Devi is reliable and we have accepted the same. It follows from this that we believe Sheela Devi when she says that these two appellants held Ganga Sahai and exhorted Prem Bahadur to kill him. This is sufficient evidence of common intention. Common intention can develop at the spur of the moment and a planning in advance is not a must. If Om Prakash and Inder Pal were not interested in seeing Ganga Sahai killed and if the exhortations are disbelieved, they should have immediately released their hold of Ganga Sahai when they saw Prem Bahadur taking out a knife or at least after Prem Bahadur had given the first knife blow to Ganga Sahai. This is a case of two knife blows and the question is why did these two appellants continued to hold on to Ganga Sahai. Their holding on to Ganga Sahai shows the common intention to kill. thereforee, we reject the arguments that Section 34 cannot be invoked so as to convict appellants 0m Prakash and Inder Pal in the present case. This also answers the argument that exhortation is a weak plea. The two appellants are not being convicted on the basis of exhortation alone. They held on to the victim while the third accused gave the fatal blows.
(22) Statements under Section 313 Cr.P.C. of 0m Prakash and Inder Pal show that their relations with Ganga Sahai and his family were already strained. Both of them have stated:
'I was not present at the spot. Ganga Sahai and Sheela Devi often used to pick up girls in the locality and we used to intervene. They bore a grudge against us on this account and so falsely implicated me in this case.'
'I was not present at the spot. Ganga Sahai and Sheela Devi often used to quarrel with the people in the locality and I used to intervene and so they bore a grudge against me. For this reason they have falsely implicated me in this case.'
This shows that Prem Bahadur/ Om Prakash and Inder Pal were all against Ganga Sahai and his family. There is nothing unnatural or improbable in their joining hands in getting rid of Ganga Sahai.
(23) From the above discussion it also follows that it is not possible to say that the case falls under section 304, Part Ii IPC. It is a clear case of murder falling under Section 302, IPC.
(24) The result is that we find no merit in both the appeals. The same are dismissed. The convictions of all the three appellants as recorded by the Trial Court are upheld.