( 1 ) HEARD the learned Counsel for the appellant and the learned Additional State Public prosecutor for the State and carefully perused the case records with their assistance.

( 2 ) THE appellant herein, who was the sole accused before the Trial Court, was tried by the Trial Court for the offences punishable under sections 302 and 307 of the Indian Penal Code, on the allegation that on 3-6-1994 at about 11. 30 p. m. in the night near Kerekodi Circle in Tumkur town, he committed the murder of one Paramesha by committing assault on him with a knife on his neck and that further in the course of the same transaction he also committed assault with the same knife on the complainant-Girisha P. W. 2, a companion of the deceased and caused injuries to his neck. The appellant/accused has been convicted by the Trial Court for the above said offences and sentenced to undergo life imprisonment for the offence under Section 302 of the IPC and rigorous imprisonment for seven years for the offence under Section 307 of the IPC. Hence, this appeal by the convicted accused.

( 3 ) THE facts of the case are as follows P. W. 2-Girisha is a friend of the deceased. The accused, the deceased and P. W. 2 are residents of Tumkur town. On 3-6-1994 at about 10-00 p. m. or so in the night when P. W. 2-Girisha was sitting in the shop of his uncle on the Garden Road in Tumkur Town, the deceased Paramesha came there. The deceased told P. W. 2 that one Basavaraj had snatched from him a sum of Rs. 1,200/- and requested him to come along with him to obtain back the said amount from Basavara. Thereupon both P. W. 2 and the deceased Paramesha came to the market circle at about 11. 00 p. m. in the night. At that time, they noticed the accused shouting at p. W. 1 and trying to assault him by holding his collar and was forcing p. W. 1 to take him in his autorickshaw. P. W. 1-Ghouse is the driver of the autorickshaw and there were some passengers in the autorickshaw at that time. On seeing the same, both P. W. 2 and deceased went near the autorickshaw and when the deceased had merely asked the accused as to why he should behave like that, the accused took out a button knife and assaulted the deceased on his neck. The accused also assaulted P. W. 2-Girisha with the same knife on his neck. They both sustained bleeding injuries to their neck on account of the assault committed on them by the accused with the knife. On being so assaulted by the accused, both p. W. 2-Girisha and the deceased Paramesha started running away from the place, and in that process, the deceased Paramesha fell down near an arrack shop at a short distance from the place of assault. They were being chased by the accused. P. W. 2-Girisha has however escaped and ran away from there. The deceased Paramesha died on the spot where he fell down. P. W. 2-Girisha went to his house and from there he was taken in the autorickshaw of P. W. 7-Nagaraju by his father P. W. 10-Kempanna to the hospital. In the hospital, the doctor P. W. 11 examined the injured P. W. 2 at about 11. 50 p. m. on the night of 3-6-1994 and noticed one incised wound measuring 6" x 2" over the left side of the neck, below left mandible, deep upto the muscle, exposing neck muscles and vessels. He has issued the wound certificate as per Ex. P-10. On 4-6-1994 the P. S.. P. W. 16 visited the hospital in the morning and recorded the statement of the injured P. W. 2 in the hospital which is as per Ex. P-3. On the basis of which the P. S.. P. W. 16 registered the case against the accused and took up the investigation. During the course of the investigation, he held inquest proceedings subjected the dead body of the deceased to post-mortem examination, recorded the statement of material witnesses and also arrested the accused, who was absconding since the date of the commission of this offence, at Bangalore and in consequence of a statement made by the accused; he recovered several weapons including the weapon which was used in assaulting the deceased and P. W. 2 and also the pant in which the said knife was found. After completion of the investigation, he submitted the charge-sheet against the accused,

( 4 ) THE doctor P. W. 12, who conducted the post-mortem examination on the dead body of the deceased on 4-6-1994 between 3. 00 and 5. 00 p. m. found the following injuries:

" (1) Incised wound over the left side of the neck 4" x 1/2" x 11/2" extending from the center neck, 2 inch below the chin to the left side of the neck 21/2" below the left ear. Edges smooth and averted. All structures viz. , facia, muscles and blood vessels including external carotid artery exposed and cut. (2) Incised wound over pinna of left ear 1" x 1/4 x 1/4". (3) Abrasion over lower l/3rd of both arms 1/2" x 1/2". . Bluish discolouration present".

( 5 ) THE death of the deceased in the opinion of the doctor P. W. 12 was due to shock and hemorrhage as a result of injury to blood vessels of neck including carotid artery. Injury 1 of the deceased was found to be fatal and it was capable of being caused by a weapon like button knife. He has issued the post-mortem report as per Ex. P-11. The prosecution had examined at the trial P. Ws. 1 to 16 and placed on record Exs. P-1 to P-20 and N. Os. 1 to 13. The defence of the accused was one of a total denial. The accused did not examine any witness on his behalf.

( 6 ) THE Trial Court on consideration of the entire materials placed on record and after hearing the submissions made on both the sides, convicted and sentenced the accused as stated supra.

( 7 ) THE learned Counsel for the appellant has vehemently contended before us that P. Ws. 1, 2, 3 and 15 are the only material witnesses and their evidence and the facts and circumstances of this case is not capable of being believed. He further contended that out of these four witnesses, P. Ws. 1 and 3 have partly supported the prosecution case and they were treated as hostile. Regarding the recovery, he contended that both the panchas P. Ws. 8 and 9 having turned hostile to the prosecution, it is not capable of being accepted. He further contended that in the instant case even according to the prosecution, the deceased and P. W. 2 were only interveners and there was absolutely no motive for the accused to commit assault on them. He also contended that admittedly there was no enmity between the accused and the deceased and in that event there was no reason for the accused to commit the murder of the deceased. While elaborating this submission he contended that when P. W. 2 and the deceased had intervened in the quarrel between P. W. 1 and the accused, then at the spur of the moment the accused appears to have inflicted only one injury on the deceased and P. W. 2. In this context he also referred to the evidence of the two doctors regarding the nature of the injuries sustained by the deceased and P. W. 2 according to the learned Counsel the material placed on record, reveal that there was only one blow administered by the accused and there were no repeated blows as sought to be made out by the prosecution. He also contended that the act attributed to the accused was not premeditated and it may be an accidental one. He contended that probably when the deceased told the accused as to why he is behaving like that with P. W. 1, the accused at the spur of the moment got enraged and assaulted the deceased without any premeditation. He also contended that the presence of the deceased and P. W. 2 at the spot was only accidental and due to their intervention, in a matter not concerned to them, there arouse a situation in which the appellant probably lost his temper at the intervention of the deceased and P. W. 2 and in that background he appears to have given only one blow with a knife which landed on the neck of the deceased, which proved fatal. In the circumstances, he contended that the appellant cannot be said to have committed murder and on the other hand the act attributed to the accused at the most would attract the offence under Section 304-1 of the IPC. In support of this submission, he placed reliance upon the other decisions in 2000 (2) Crimes 129, Chonadan Karunan alias Perinjili v State of Kerala, Tholan v State of Tamil Nadu, Ramesh Vithalrao Thakre and Another v State of Maharashtra, Jagtar Singh v State of Punjab, Virsa Singh v State of Punjab, 1981 SCC (Cr.) 731 and Kulwant Rai v State of Punjab. While placing reliance upon these decisions, he contended that both P. W. 2 and the deceased had bad antecedents and they both picked up a quarrel with the accused to show muscle power and in that connection, the incident in question appears to have taken place. He also contended that in the facts and circumstances of the case, it can even be said that it is the deceased and P. W. 2 who were aggressors. He also contended that if the accused had no intention to commit the murder, it will take away the offence from Sections 302 to 304 of the IPC. While elaborating this submission he contended that the injuries on the deceased and P. W. 2 could not be intentional but it could be accidental also. He further contended that it is for the prosecution to establish that the injuries inflicted were not accidental and they were intentional in order to bring the offence under Section 302 of the IPC. Coming to the merits of the case, the learned Counsel for the appellant has contended that the conduct of P. W. 1 is highly unnatural and hence he cannot be believed. While elaborating this submission he contended that P. W. 1 did not inform the incident to the police or to any other person. He also contended that when the spot panchanama Ex. P. 1 was drawn, P. W. 1 was very much present at the spot but at that time he did not claim to be an eye-witness and strangely on 12-8-1994 when his statement was recorded by the Investigating Officer, he becomes an eyewitness. He further contended that P. N. 1 did not fix the identity of the deceased and P. W. 2 according to the learned Counsel the evidence of p. W. 1 does not in any way incriminate the accused with the crime. He contended that in view of the above infirmities in the evidence of P. W. 1, it is not at all safe to place reliance upon the evidence of P. W. 1 even to any extent. Coining to the evidence of P. W. 2, he contended that with regard to the identity of the accused, it is not at all established in the evidence of P. W. 2 and that further it suffers from serious infirmities. In this context he also referred to the evidence of P. W. 7 who has stated that since P. W. 2 did not tell the name of the assailant, he and the father of P. W. 2 did not file any complaint before the police. According to the learned Counsel the said statement made by P. W. 7 would disclose that P. W. 2 was not at all aware of his assailant. He further contended that P. W. 2 did not disclose the name of the assailant even to his father p. W. 10 immediately. But it is only in the morning he tells the name of his assailant as the accused. Further even before the doctor, P. W. 2 did not disclose the name of his assailant. He further contended that the identity of the accused is not at all established in the evidence of P. W. 2. In this background he contended that the complaint Ex. P-3 could not be a genuine document as the name of the accused suddenly appears therein. He also contended that in this context delay in recording the first information of P. W. 2 will assume importance. According to the learned Counsel, Ex. P-3 could not be a version of P. W. 2 as he did not disclose the name of his assailant earlier. He further contended that the evidence of the Investigating Officer would clearly disclose that he had some prior information to go to the spot where the dead body of the deceased was lying and in that event Ex. P-3 cannot be treated as the fir and that further the information that was received by the police earlier has been suppressed. He contended that Ex. P-3 is a document which is hit by Section 162 of the Criminal Procedure Code. . He also contended that even the evidence of P. W. 2 though injured, the guilt cannot be fixed on the accused. He also contended that the investigation is not fair and honest and that further in the absence of the test identification parade, the evidence of P. W. 2 cannot be believed with regard to the involvement of the accused in the crime. In this connection he relied upon a decision in 1996 (3) All India Cr. Law Reporter 231. According to the learned Counsel for the appellant P. W. 2 has not come out with the entire truth before the Court and hence no reliance can be placed upon his evidence. In this connection he relied upon the decision in 1996 (2) supreme (Cr.) 331 and State of Rajasthan v Rajendra Singh. He therefore contended that on the ground of identity alone, the evidence of P. W. 2 is to be discarded and it is of no avail to the prosecution to connect the accused with the crime. He also contended that insofar as P. W. 3 is concerned, she has been treated as hostile by the prosecution and thereby she stands condemned even by the prosecution itself and hence her evidence cannot be relied upon for any purpose. Coming to the evidence of P. W. 15, he contended that his statement had been recorded by the police after a long time and hence it cannot be believed that he could be an eye-witness to the incident. He also contended that though p. W. 3 knew the identity of P. W. 15, he did not disclose his presence at the spot although she says that some person was accompanying the accused. Further, the relationship between the father of the accused and p. W. 15 was very much strained and hence he had an axe to grind against the accused. His conduct according to the learned Counsel is also highly unnatural inasmuch as he did not give any complaint nor disclose the incident to any person. He also contended that the presence of P. W. 15 at that moment appears to be highly unnatural and not probable. He also contended that his evidence regarding the sequence of events is not consistent with that of P. W. 2. He therefore contended that the evidence of P. Ws. 1, 2, 3 and 15 is highly infirm in nature and it cannot be believed. Regarding the recovery, he further contended that the accused was arrested on 13-7-1992 and both the panch witnesses to the recovery have turned hostile and in the circumstances therefore the recovery of knife at the instance of the accused is not capable of being believed and also it is not incriminatory in nature. He also contended that the investigation in this case is highly tainted and suffers from several illegalities. He therefore concluded his argument by saying that the prosecution has not proved the case against the accused beyond reasonable doubt and hence the appellant is entitled to an acquittal.

( 8 ) AS against this the learned Additional State Public Prosecutor on behalf of the respondent-State has contended that the infirmities pointed out by the appellant do not in any way affect the substratum of the prosecution case. He contended that the mere delay in recording the statement of P. Ws. 1 and 15 is not at all fatal to the prosecution case especially when the names of P. Ws. 1 and 15 were disclosed in the FIR. He contended that if the statements of P. Ws. 1 and 15 were not recorded immediately, it would only reflect on the negligence of the Investigating officer and it does not in any way affect the case of the prosecution which is consistently established from the other evidence on record. He contended that the presence of accused, deceased and P. W. 2 at the spot at the time of the alleged incident is consistently spoken to by all the material witnesses for the prosecution and hence the identity of the accused cannot be doubted. According to the learned Additional State public Prosecutor the evidence read as a whole would establish the guilt against the accused. He also contended that the accused by nature appears to be a violent person and obviously for this reason P. Ws. 1 and 3 are not prepared to speak the whole truth against the accused. He contended that to the extent P. Ws. 1 and 3 have supported the prosecution case, is clearly admissible in law and it would substantially corroborate the evidence of P. W. 2. He also contended that merely because P. W. 2 did not immediately disclose the name of the accused, will not in any way affect the case of the prosecution. He also contended that Ex. P-3 is not at all hit by Section 162 of the Criminal Procedure Code. While elaborating this submission he contended that the only information that the P. S. I, had was that there was a dead body lying on the spot and there was no other information to the P. S.I. and on receiving such information he immediately proceeded to the spot and on coming to know that a person injured in the same incident is undergoing treatment in the hospital, he proceeded to the hospital and recorded the statement of the injured P. W. 2 which was treated as FIR. He therefore contended that the information that was given by P. W. 2 as per Ex. P-3 is the first information regarding the incident. He also contended that the accused intended to commit the murder of the deceased which is very clear from the fact that he had inflicted the injury with the knife on the vital part of the deceased as well as on P. W. 2 but unfortunately P. W. 2 survived and while the deceased had died. He submitted that when the appellant wielded the weapon like a knife and gave a blow on the neck, a vital part of the body, must have intended to cause a particular injury and this injury is objectively found by the medical evidence to be fatal and therefore it would clearly attract the offence under Section 302 of the Indian penal Code. He therefore contended that the judgment and order of conviction as well as the sentence passed by the Trial Court warrants no interference at the hands of this Court in the appeal.

( 9 ) THE fact that the deceased Paramesha died of violence and P. W. 2 was a victim of violence, on the night of 3-6-1994 near Kerekodi Circle in Tumkur town is indubitable. Even otherwise, there is ample material on record to establish the same and we see no reason to disbelieve the same. But who did him to death and who caused the injuries on the person of P. W. 2 is a moot point. In order to establish this fact or to bring home the guilt, the prosecution mainly relied on the evidence of the injured eye-witness P. W. 2. In addition to this, it has also relied upon the ocular evidence of the other witnesses P. Ws. 1, 3 and 15.

( 10 ) THE evidence of the injured P. W. 2 would clearly indicate that when the accused was having an altercation with P. W. 1, an autorickshaw driver, both he and the deceased went there and when the deceased Paramesha asked the accused as to why he should behave like that, the accused all of a sudden committed assault on the deceased as well as on P. W. 2 resulting in serious injuries to their neck. Then when both P. W. 2 and the deceased were in the process of running away from the spot, on being chased by the accused, the deceased Paramesha fell down at some distance from the place of assault in front of an arrack shop. P. W. 2 however escaped and reached home and from there he was taken to the hospital in the autorickshaw of his friend P. W. 7 accompanied by his father p. W. 10. In the hospital, he was examined by the doctor P. W. 11 who found an incised injury on the neck of P. W. 2 and has issued the certificate as per Ex. P-10. The injured P. W. 2 was examined by the doctor P. W. 11 at about 11. 50 p. m. on the same night. It is no doubt true that initially P. W. 2 did not disclose the name of his assailant either to the doctor or to P. W. 7. But subsequently he disclosed the name of the accused as his assailant as well as assailant of the deceased.

( 11 ) P. W. 10, the father of P. W. 2, has stated that when his son P. W. 2 returned home at about 11. 00 p. m. in the night, he had an injury on the neck which was bleeding and he took P. W. 2 to the hospital in the autorickshaw of P. W. 7. Under the cross-examination he has stated that he had immediately shifted the injured P. W. 2 to the hospital in the autorickshaw and in the hospital before the doctor, P. W. 2 had only told that he was assaulted with a knife and he did not disclose the name of his assailant at that time. It is further elicited in the cross- examination by the defence that on the next day morning his son P. W. 2 told him that he had been assaulted by the accused with a knife. These answers obtained by the defence in the cross-examination of P. W. 10 would substantially support the evidence of the injured P. W. 2 in fixing the guilt against the accused.

( 12 ) P. W. 7-Nagaraja is a friend of P. W. 2 and he had taken the injured to the hospital on that night for treatment in his autorickshaw. He has stated that on that relevant night the parents and the wife of p. W. 2 had come to his house and requested him to take P. W. 2 to the hospital for treatment and accordingly, he took the injured P. W. 2 to the hospital in his autorickshaw. According to him they had come to his house around 11. 30 p. m. in the night. Under the cross-examination P. W. 7 has stated that since P. W. 2 did not disclose the name of his assailant, they did not lodge a complaint with the police. His statement was however obtained by the police subsequently.

( 13 ) P. W. 16, the P. S. I, had stated that on the morning of 4-6-1994, he learnt from his staff that a dead body is lying near Garden Road in Tumkur Town and he immediately went there and came to know that it is the dead body of one Paramesha. He also learnt that Girisha P. W. 2, who is injured in the same incident,, is admitted to the hospital for treatment. Accordingly the P. S.. P. W. 16 went to the hospital, where he recorded the statement of the injured P. W. 2 which is as per Ex. P-3 and on the basis of which, he registered a case and took up the investigation. Under the cross-examination he has stated that while recording the statement of the injured P. W. 2 in the hospital, the Medical Officer was also present there. P. W. 2 has also stated that his statement was recorded by the police on the next day morning which is as per Ex. P-3 and it bears his signature. P. W. 2 has denied the suggestion made by the defence that when he and the deceased went to meet Basavaraja demanding the money back it was that Basavaraja who had assaulted him and Paramesha. Though this suggestion has been denied by P. W. 2, it would clearly indicate that even the defence would admit that when the incident in question took place, P. W. 2 was the companion of the deceased. That is to say at the relevant time of the alleged incident, P. W. 2 had accompanied the deceased and he was very much found in the company of the deceased.

( 14 ) IT will now be useful to refer to the evidence of P. Ws. 1 and 3. Though both P. Ws. 1 and 3 had been declared as hostile to the prosecution, they have supported the case of the prosecution to a certain extent.

( 15 ) P. W. 1 is an autorickshaw driver and he knew the accused. He has stated that on the relevant night around 11. 00 p. m. when he came in his autorickshaw to the old market circle, P. W. 3-Shamu along with two others came there and sat in his autorickshaw and asked him to take them to Sira Gate. At that time, he says that this accused came there and asked him to take him in his autorickshaw to the bus stop, which he declined as there were already passengers in the autorickshaw. Thereupon the accused held his collar and asked him to get down from the autorickshaw. At that point of time, he says that two boys, presumably the deceased and P. W. 2, came there and asked the accused to leave him and not to create a scene. Thereupon the accused took out the knife and committed assault on both of them (the deceased and P. W. 2), on the neck. On the next day morning he learned that out of the two persons who were assaulted by the accused, one has died and the other has survived. P. W. 1 is very specific in his say that it is the accused who had assaulted those two boys, who had come near his autorickshaw on that relevant night when the accused was having an altercation with him. He however refused to identify those two boys as P. W. 2 and the deceased and thereupon, the prosecution treated him as hostile. Under the cross-examination done on behalf of the accused, he has stated that it was dark on that night and he was there around 11. 15 p. m. or 11. 25 p. m. in the night. He further admits in his evidence that it is he who had pointed out the place of incident. It has to be mentioned that it is in the evidence of P. S.. , P. W. 16 that the incident had taken place at one place and the dead body of the deceased was lying in another place and the distance between the two was about 200 to 300 feet. It is to be remembered that p. W. 2 has stated that as soon as they were assaulted by the accused, they both ran away from the place and in the process, the deceased fell down at some distance. In this background, the admission of P. W. 1 that he had pointed out the place of incident to the police would assume importance.

( 16 ) NOW comes the evidence of P. W. 3. She has stated that she knew the accused ever since his childhood and she also knew P. Ws. 1 and 2. She is a fruit vendor by profession. According to her on that relevant night at about 10 or 10. 30 p. m. in the night she came along with two others and sat in the autorickshaw of P. W. 1 to go to her house. At that time the accused came there along with one more person (obviously P. W. 15) and asked P. W. 1 to give him a drop in the autorickshaw to which p. W. 1 flatly refused. While she was still there in the autorickshaw, p. W. 2 came there with his companion. She also saw the accused holding p. W. 2 and his companion by their collars. She however pleaded her ignorance as to what happened subsequently. Thereupon the prosecution treated her as hostile to the prosecution. She has also stated that it was a dark night. Though both P. Ws. 1 and 3 have stated in their cross-examination done on behalf of the accused that it was a dark night, but in the cross-examination of P. W. 15 it is brought out by the defence that there was electricity light near the scene of incident and it was not dark as suggested. That apart on careful perusal of the entire evidence, of both P. Ws. 1 and 3 would show that they are deliberately suppressing the truth and the darkness so introduced only to dispute the identity of the persons who were assaulted on that relevant night. When they could witness so many other things, it is rather difficult to believe that they could not have seen either P. W. 2 or the deceased especially when P. W. 3 says that she knew P. W. 2 and in particular the accused ever since his childhood. It would therefore appear to us that p. Ws. 1 and 3 are trying to suppress the true facts for reasons best known to them and they are not prepared to tell the entire truth while giving their testimony in Court.

( 17 ) FROM the aforesaid evidence on record, in our view, it cannot be said that the Trial Court erred in relying upon some portion of the evidence of P. Ws. 1 and 3 who were cross-examined by the prosecution. It is settled law that the evidence of hostile witnesses also can be relied upon to the extent to which it supports the prosecution version. The evidence of P. Ws. 1 and 3 cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base the conviction of the accused upon such evidence if corroborated by the other reliable evidence on record. In the instant case, apart from the evidence of P. Ws. 1 and 3, the prosecution version that the accused while he was having an altercation with the autorickshaw driver P. W. 1, the deceased and P. W. 2 came there and when asked the accused as to why he was behaving like that, the accused assaulted them with the knife on the neck stands corroborated from the evidence of the injured P. W. 2 as well as the evidence of F. W. 15, another eye-witness to the incident and a close relative of the accused. P. W. 15 is the maternal uncle of the accused and he has given an eye-witness account of the incident which clearly involves the accused in the crime. We have scrutinised the evidence of p. W. 16 as well as the evidence of the injured P. W. 2 and we find that nothing substantial has been brought out in the cross-examination to disbelieve their evidence. As stated earlier P. W. 2 was accompanying the deceased at the relevant time of this incident and has narrated the occurrence vividly. So also P. W. 2 who alleged to have come to the spot and joined the accused, has stated as to how this incident had occurred. The delay in examining these two witnesses P. Ws. 2 and 15 by the Investigating Officer, by itself cannot be a ground to discard their testimony more so when in the cross-examination nothing tangible has been brought out to impeach their testimony. In fact as has been rightly contended by the learned Additional State Public Prosecutor p. Ws. 2 and 15 have been mentioned as eye-witnesses in the complaint ex. P-3 given by P. W. 2. That apart the evidence of P. Ws. 1 and 3 as well as the evidence of P. Ws. 7 and 10 and as also the evidence of the doctor p. W. 12 substantially corroborates the reliable evidence of P. Ws. 2 and 15. P. W. 2 is an injured eye-witness and there is no reason to discard his evidence. It would be proper to refer at this stage to the observations made in the case of Ambika Prasad v State (Delhi Administration), which reads thus. "Independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case, if independent persons are not willing to co-operate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of the injured witnesses".

( 18 ) IT is no doubt true that it has come in the evidence that the injured P. W. 2 did not disclose the identity of his assailant on that night itself, but when P. S.. P. W. 16 came to the hospital, he made himself bold to disclose the name of the assailant. That by itself is not sufficient to discard the testimony of the injured eye-witness P. W. 2 especially when the evidence of the other witnesses fixes the presence of the accused at the spot. Further, it is well-settled that post-event conduct of a witness varies from person to person and hence the conduct of P. W. 2 in not disclosing the name of his assailant on the same night or by P. W. 15 in not disclosing the incident to anyone immediately after the incident, cannot be regarded as unnatural.

( 19 ) THE evidence of P. Ws. 2 and 15 prove beyond reasonable doubt that it was the appellant who had committed assault on the deceased and P. W. 2, on that relevant night, which resulted in injuries to P. W. 2 and death of his companion, namely the deceased Paramesha. Their evidence would receive substantial corroboration from the other evidence placed on record by the prosecution. They had nothing against the accused and no reason to speak falsely to implicate the accused and despite searching cross-examination, nothing could be brought out to discredit their evidence. We see no infirmity whatsoever either in the manner of appreciation of their evidence of the reasons assigned in support of the same by the Trial Court and therefore, we have no hesitation to agree with the findings of the Trial Court that it is the appellant who had assaulted both P. W. 2 and the deceased on that incident night with the knife, resulting in injury to P. W. 2 and the death of his companion, namely the deceased Paramesha. The appellant as has been rightly contended by the learned Additional State Public Prosecutor appears to be violent and ferocious by nature.

( 20 ) THE doctor P. W. 12 has clearly stated that the death of the deceased was due to shock and hemorrhage as a result of injury to blood vessels of neck including carotid artery, which could be caused by a knife like button knife and injury 1 of the deceased was found to be fatal. On the facts and circumstances of this case, it cannot be said that the fatal injury was inflicted without premeditation. The premeditation can develop even at the spot as well. It all depends upon the facts of each case. In the instant case, the accused had assaulted both P. W. 2 and the deceased with the knife which was in his possession on the neck, on the mere asking of the deceased as to why he should behave like that with p. W. 1. There was absolutely no provocation on the part of the deceased for the accused to commit assault on him. It may be pointed out that there is no principle that in all cases of a single blow, Section 302 of the Indian Penal Code is not attracted. In view of the evidence on record and on the facts and circumstances of this case we find that the act committed by the accused would squarely attract the offence under Section 302 of the Indian Penal Code. On the facts and circumstances of this case, that accused can safely be attributed with the knowledge that knife blow (given by him to the victim was so imminently dangerous that it must in all probability cause the death or such bodily injury as is likely to cause death. Therefore, on the facts and in the peculiar circumstances of the case on hand, we are unable to accept the contention of the learned counsel for the appellant that the offence committed by the accused would fall under Section 304 and not 302 of the Indian Penal Code. In this connection a reference may also be made to a decision in Mahesh Balmiki alias Munna v State of Madhya Pradesh , wherein it is observed as under.

7. Now Exception 4 to Section 300 of the Indian Penal Code is in the following terms: "exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault". The requirements of this exception are: (a) without premeditation in a sudden fight; (b) in the heat of passion upon a sudden quarrel; (c) the offender has not taken undue advantage; and (d) the offender has not acted in a cruel or unusual manner. Where these requirements are satisfied, culpable homicide would not be murder.

8. On the facts of this case, it cannot be said that the fatal injury was inflicted without premeditation. Indeed, the appellant asked the deceased to come to a particular place to receive the watch. There, three associates of the appellant caught hold of the deceased and the appellant gave the fatal blow with the knife. The stab wound was given on the chest on the left side of the sternum between the costal joint of the 6th and 7th rib and both the ribs have been fractured. It appears that truck of the wound had gone through the sternum, pericardium anterior and posterior after passing the ribs and thereafter entered the liver and perforated a portion of the stomach. Total depth of the wound was 19 cm and the direction of truck was going downwards posteriorly. The impact of the single blow with the knife has been disastrous. Therefore, it cannot be said that the appellant has not taken undue advantage or not acted in a cruel or unusual manner. In our view, exception 4 has, therefore, no application on the facts of this case.

9. Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow section 302 of the IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 of the IPC, in some cases under Section 304 of the IPC and in some other cases under section 326 of the Indian Penal Code. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife-blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death".

( 21 ) FOR the above reasons, we are of the clear view that the appellant has rightly been convicted and sentenced under Sections 302 and 307 of the Indian Penal Code, by the Trial Court. We find no merit in this appeal filed by the. appellant.

( 22 ) IN the result, therefore, this criminal appeal filed by the appellant fails and is accordingly dismissed.