Charanjit Talwar, J.
(1) The appellants Rajbir Singh, Devi Shankar, and Bhalley Ram have challenged their conviction under Section 307 read with Section 34 of the Indian Penal Code (hereinafter referred as 'the Code') and the sentence of three and a half years and a fine of Rs. 5000.00 each, awarded to them by Shri D. G. Aggarwal, Additional Sessions Judge, Bhalley Ram has filed the appeal (Gri. 97/82) from jail. Rajbir Singh and Devi Shankar have jointly filed the second appeal (Crl. A. 225/81) through counsel. This judgment is common to both the appeals.
(2) The prosecution case in nutshell was that on April 14,1980 at about 7.00 or 8.15 p.m. in a sudden fight Kishore @ Mithu PW8 was caught by the appellants Rajbir Singh and Devi Shankar and Bhalley Ram after taking out a razor from his pant pocket assaulted him (mithu) on his face causing grievous injuries on his neck. As the learned trial court has noticed facts of the prosecution case in detail in the impugned judgment, no useful purpose would be served by repeating them.
(3) Mr. Vashisht, counsel appointed at State expense for Bhalley Ram has urged that his client's presence at the spot has not been established and because of the discrepancies in the statements of Mithu PW8 and his friend Ashok PW7 who was accompanying him the prosecution (1) That the three wheeler scooter which Kisore @ Mithu and his friend Ashok (Public Witness 7) were pushing on the road struck against one of the three appellants who were going ahead of them: (2) That there upon Bhalley Ram abused Mithu who in turn gave abuses to him; (3) That the three appellants on one side and Mithu and Ashok on the other started grappeling; the fight went on for about five minutes; (4) That Rajbir Singh and Devi Shankar managed to catch hold Mithu by arms and legs and the third appellant Bhalley Ram whipped out a barber's razor from his pocket and gave a blow on his neck; (5) That the grievous injury was inflicted in furtherance of common intention of the appellants; (6) That those appellant were chased by Ashok Kumar (Public Witness 7) and some passers by but could not be apprehended.
(4) The first question which arises for consideration is whether the finding that injury was caused to Mithu in furtherance of the common intention of all the appellants is sustainable Kishore @ Mithu (Public Witness 8) in examination-in-chief while describing the assault has stated that 'accused Devi Shankar and Rajbir caught hold of me from my hand and legs. Accused Bailey was carrying a razor which he took out from the pocket of his pt. I have been shown the razor Ex. P. 3, but I cannot say if it is the same, but it was of the same type. He assaulted me with the razor on my face and caused injury below the chin on the neck.' In his cross-examination it was brought out that before the razor blow was him there was a fight. The witness said, 'we had grappled with each other for 5 minutes before Bhalley stabbed me.' Ashok Kumar PW7 has corroborated this witness. In examination-in-chief he has stated, 'the scooter struck against one of the accused (pointing towards Devi Shankar Srivastava) On this, accused Bailey gave abuses to Mithu (pointing towards Bailey). Mithu also gave abuses to Bailey in reply. Devi Shankar and other person (pointing towards Rajbir accused) caught hold of Mithu, while Bailey took out a razor from the pocket of his pant and stabbed Mithu on his neck on the left side.' In the cross-examination of this witness on behalf of Bhalley Ram no question was put regarding the fight. In the cross-examination on behalf of the other two accused it was brought out 'all the accused persons - were going together when the scooter struck one of them. Stabbing with razor took place within 5 minutes. It is incorrect that I was not at the spot and deposing falsely. It is incorrect that accused Bhalley all of a sudden took out the razor volunteered-Mithu was caught hold by accused Devi Shankar and Rajbir'. The witness further said 'accused Bhalley Ram took out the razor from the right pocket of the pant. Myself and Ashok on one side and accused persons on the other side had grappled and the accused Bhalley Ram stabbed Mithu at that time.'
(5) The plea on behalf of these appellants is that admitting the prosecution case as brought out in the evidence it only shows that after exchange of abuse the appellants and the two witnesses were grappling with each. other meaning thereby that there was a fight in which Mithu PW8 was caught hold by these appellants. According to them the prosecution evidence is clear to show that during this fight Bhalley Ram suddenly whipped out the razor and inflicted injury in question. Admittedly these two appellants were unarmed. It was Bhalley Ram who had a razor in his pocket. It cannot be assumed, it is urged, that these appellants know that he was. carrying a razor and that in a sudden quarrel he was intending to use it. Reliance is placed on Mitter Sen & others v. The State of U.P., : 1976CriLJ857 .
(6) I may note here that in the earlier statement Ex. Public Witness 8/A Mithu Pw 8 had not stated that the appellants Devi Shankar and Rajbir Singh had caught him from hand and legs although it is mentioned that he had been caught by these two accused. The evidence of the two witnesses .(PW7 and PW8) shows that after abuses the appellants on one side and the two witnessed on the other side had grappled for about five minutes. It is not the prosecution case that before the fight or during it Bhalley Ram had brandished the razor. Mr. Sethi's contention that the appellants Devi Shankar and Rajbir Singh caught hold of the complainant from hands and legs only with the object of enabling Bhalley Ram to give injury is not borne out from the record. It is only an assumption and cannot be acted upqn. The prosecution has failed to establish that these appellants knew that Bhalley Ram was in possession of razor or that he was intending to use it whenever the occasion arose. The law laid down in the case cited is fully applicable to the facts of this case. It cannot be held that these two appellants namely, Devi Shankar and Rajbir Singh are guilty of offence under Section 307 read with Section 34 of the Code. I may note here that the learned trial Court in its discussion has not referred to the question as to how provision of Section 34 of the Code is applicable in the facts of the present case.
(7) However, the case of Bhalley Ram appellant is entirely different. The finding that Bhalley Ram had inflicted razor blow on the neck of Mithu Public Witness 8 is based on the clear and cogent testimony of the two witnesses Ashok Kumar Public Witness 7 and Kishore @ Mithu Public Witness 8. I have no reasons to differ with the finding. The injury inflicted was no doubt grievous. Dr. S. K. Katti, PW13 who examined Mithu PW8, when he was brought to the hospital by constable Kirpa Ram found the following injury :
'Clover upper neck on left side 6'X6 gaping. Bleeding profusely. '
'(DEPTHto be ascertained in O.T.) caused by sharp weapon.'
The medico legal certificate written and signed by him has been exhibited as Ex. Public Witness I/A. In his testimony Dr. Katti has stated that the patient was sent to the surgical department straightaway. Another doctor Public Witness 14 Dr. R. L. Sanghi opined that the said injury was dangerous. His noting to this effect is Ex. Public Witness 14/A made on the medico legal certificate Ex. Public Witness . I/A.
(8) Thus, there is no doubt that the injury caused on the neck of Mithu PW8 by Bhalley Ram appellant was grievous. In my view, if the medical aid had not been given in time this injury could have resulted in death of the injured.
(9) The criticism of Mr. Vashisht however is that Bhalley Ram appellant has been falsely implicated. The argument is that according to the prosecution's own showing he was not arrested Along with the other appellants on the date of occurrence but was apprehended on May I, 1980 i.e. about a fortnight after the incident from his house. It is urged that it is curious that the Investigating Officer who had known the location of the house of this appellant having visited it on the pointing of the other appellants would wait for a fortnight to arrest him. It is further submitted that Bhalley Ram knowing fully well that police was after him would not have in a normal course of human conduct kept the razor. He would have thrown it away.
(10) The pica of the counsel looses sight of the fact that Bhalley Ram who was not known to the complainant was identified by him (Mithu PW8) in an identification parade held in jail on May 8, 1980. This fact has been established in the testimony of Mithu Public Witness 8. He has stated that 'on 8th day of a month i.e. 20/22 days after the incident I accompanied the Magistrate and police officials and went inside the Jail to identify the assailants. From amongst 11/12 persons, I had identified accused Bailey (now correctly pointed toward the accused). Not a single question was put to this witness in the cross-examination on this aspect. The finding of the learned trial Court that Bhalley Ram was correctly identified by Mithu PW8 did not know the appellant from before is to be upheld. The argument as to why Bhalley Rain would come back to his house when police was after him or as to why he was keeping in his possession the razor by which he had inflicted the injury, thus becomes insignificant. The witnesses are categorical when they stated that injury was inflicted with a razor similar to the one which was found in possession of Bhalley Ram appellant at the time of his arrest. In any case from the record it appears that Bhalley Ram was not charged for an offence under the Arms Act. Whether it was the same razor or similar razor is not the question under consideration. Bhalley Ram no doubt inflicted the injury which was grievous. The fact that simply because Bhalley Ram was able to avoid arrest for a fortnight is no ground for holding that he wa falsely implicated. The version of the two defense witnesses to the effect that Bhalley Ram was attending a marriage function on April 14, 1980 from 3.00 p.m. to 12.00 mid night seems to be false in view of the established facts that Bhalley Ram inflicted the said injury at about 8.00 or 8.15. p.m.
(11) As a result the appeal of Rajbir Singh and Devi Shankar (Crl. A. No. 225/81) is allowed and their conviction and sentence under Section 307 read with Section 34 of the Code arc set aside. The appeal of Bhalley Ram (Cri. A. No. 97/82 however, is dismissed. His conviction and sentence under Section 307 of the Code awarded by the trial Court is upheld.