JUDGMENT 1. This appeal has been filed by Moosya, Kalua, and Ramdayal and is directed against the judgment of the learned Additional Sessibns Judge, Gangapur City dated November 24. 1973, whereby accused-appellant Moosya was convicted for an offence under section 302 and 323 Indian Penal Code simpliciter, and sentenced to imprisonment for life under the first count and rigorous imprisonment for three months under the second count. 2. Appellants Kalua and Ramdayal were convicted for offences under section 302 read with 34 and 323 I P.C. and each one of them was sentenced to imprisonment for life on the first count and rigorous imprisonment for a term of three months on the second. The substantive sentences were however ordered to run concurrently. 3. The incident is said to have taken place on July 18, 1973 under the following circumstances 4. The fields of Moola complainant and that of Kalua and Moosya are adjacent to each other. In the morning of July 18, 1973 Moosya was sowing the field and Kalua was ploughing it. It is said that when Ramdayal, son of Moosya started ploughing the `Dagada' (Government land) Moola raised a protest against the act of Ramdayal. It is alleged that on this protest Moosya got enraged and he started beating Moola. The other two accused viz., Kalua and Ramdayal also joined Moosya in giving beating to Moola. Hazari who was present on the scene of occurrence however tried to intervene and asked the assailants whether they had decided to kill Moola. Whereupon it is said that all the three accused persons directed their attention to Hazari and started giving beating to him with the result that Hazari fell down. Moola went to the police station, Madrall to lodge a report within two hours of the incident. At the time when the report was lodged Hazari was alive ana therefore a case under section 307 Indian Penal Code was registered. 5. The Station House Officer PW 10 Desh Raj started for the place of occurrence, but on his way he saw persons bringing Hazari to the hospital. As the condition of Hazari was serious he was advised to be taken to Karauli Hospital but before he reached Karauli he breathed his last. 6. 5. The Station House Officer PW 10 Desh Raj started for the place of occurrence, but on his way he saw persons bringing Hazari to the hospital. As the condition of Hazari was serious he was advised to be taken to Karauli Hospital but before he reached Karauli he breathed his last. 6. Moosya, Kalua and Ramdayal were arrested the next day, i. e. on July 19, 1973 and at their instance `lathis' were recovered but the recovery of`lathis'does not in any way influence the case of the prosecution as they were not found bloodstained. After investigation all the three accused persons were challaned under sections 302 and 323 I P.C. for causing death of Hazari and causing injuries to Moola. Kalua and Ramdayal pleaded alibi, while Moosya took a plea that Moola was aiming a lathi-blow on Kalua which unfortunately landed on Hazari. It caused an injury and resulted in ultimate death of Hazari. 7. The prosecution examined two eye-witnesses, viz., PW 1 Mst. Matri, wife of the deceased Hazari, and PW 2 Moola, who sustained injuries during the incident. It may be mentioned here that at the time of post-mortem of Hazari (deceased) PW 12 Dr. P. P. Sharma found only one external injury : swelling on the area of 3" x 2'over front of parietal area of skull situated more towards right side of mid line. On opening the body the following internal injuries were detected by the doctor 1. Fracture of right parietal bone fide issued type 1" long 1/2" lateral to mid line extending up to ⅓" behind coronal suture. 2. Fracture of right parietal bone 3/4" long issued in type 3/4" lateral to mid line and extending up to 1/2" behind coronal suture. Subdural haemotoma over right parietal lobe and frontal lobe mostly over right parietal lobe Size 2" x 1/2*. Moola was also examined by the doctor and he was found to have sustained the following four injuries 1. Lacerated wound on the scalp 5" above the left eye brow : 3" x 1/2'x 1/2. 2. Bruise on the skin of right scapula : 4"x 1. 3. Bruise on the skin of left scapula : 41/2" x 11/2". 4. Bruise on the left shoulder skin : 2"x 1". All these injuries were simple in nature. 8. Lacerated wound on the scalp 5" above the left eye brow : 3" x 1/2'x 1/2. 2. Bruise on the skin of right scapula : 4"x 1. 3. Bruise on the skin of left scapula : 41/2" x 11/2". 4. Bruise on the left shoulder skin : 2"x 1". All these injuries were simple in nature. 8. The post-mortem examination shows that the deceased Hazari sustained only one lathi-blow which resulted into fractures of his right parietal bone. This injury unfortunately caused his death. 9. Apart from the two eye-witnesses the prosecution produced PW 3 Jagram and PW 4 Ramphool. sons of the deceased Hazari, who stated that when they went to see their injured father, they made enquiries as to who inflicted the injuries to him and he named these very three assailants (who are the appellants before this Court) as those who gave beating to him with`lathis' and `kulhari'(axe). The prosecution witnesses have deposed that Moosya and Kalua gave lathi-blows to Hazari while Ramdayal who was armed with a `kulhari' used the `kulhari' from the wrong side of it. The learned trial Judge believing the prosecution case found the accused persons guilty of offences under section 302 and 302 read with S. 34 and also under section 323 Indian Penal Code and awarded sentences referred to above. 10. In this appeal Mr. Chatterjee, appearing on behalf of the appellants, did not press the appeal of the appellants against their conviction under section 323 Indian Penal Code for having caused injuries to Moola. The arguments are directed only against the conviction of Moosya under section 302 Indian Penal Code and Kalua and Ramdayal under Section 302 read with section 34 Indian Penal Code 11. The main argument of Mr. Chatterjee is that there was no animus against Hazari who was simply an intervenor when the quarrel started between Moosya and Moola and therefore a common intention cannot be attributed to Kalua and Ramdayal with Moosya to cause the death of Hazari. Apart from this fact Mr. Chatterjee pointed out that Hazari sustained only one injury and therefore the participation of the other two accused in this incident of causing injury to Hazari (deceased) is ex facie ruled out. Apart from this fact Mr. Chatterjee pointed out that Hazari sustained only one injury and therefore the participation of the other two accused in this incident of causing injury to Hazari (deceased) is ex facie ruled out. In these circumstances his contention is that the conviction of Moosya under section 302 Indian Penal Code cannot be sustained unless it could be ascertained that Moosya was the author of the fatal injury on the parietal region of Hazari and the other two accused Kalua and Ramdayal it is vehemently urged that they had no cause to inflict any injury on Hazari and therefore their involvement in the crime is on the very face of it a retaliatory step on the part of the prosecution. 12. We have already mentioned above the injury sustained by Hazari (deceased) on his parietal region. Both the eye-witnesses viz., PW 1 Mst. Matri and PW 2 Moola categorically state that all the three accused persons dealt `lathi' and 'kulhari' blows on Hazari. The injury is only one and therefore we cannot believe the testimony of the eye-witnesses that three persons actually belaboured Hazari. It is only one person who must have dealt a blow with the blunt weapon to Hazari. Since the eye-witnesses have mixed the falsehood in such a manner which makes it difficult for the Court to separate easily the truth from the falsehood, the Court is at a loss to arrive at a conclusion as to who was the real assailant of Hazari. In this view of the matter, we cannot uphold the conviction of Moosya under S. 302 Indian Penal Code simpliciter as Moosa cannot be held responsible for causing a fatal injury on the head of Hazari (deceased). 13. Now the question arises whether section 34 can be attracted to the facts and circumstances of this case ? Hazari (deceased) according to the eye-witnesses, PW 1 Mst Matri and PW 2 Moola intervened when Moosya and Moola were struggling. It cannot be denied that Moosya also sustained two injuries during this incident and Moola sustained four injuries. For the sake of argument even if it is believed that all the three accused persons jointly belaboured Moola, it cannot be said that one who dealt a blow on the head of Hazari, who tried to intervene acted in furtherance of a common intention to kill Hazari. For the sake of argument even if it is believed that all the three accused persons jointly belaboured Moola, it cannot be said that one who dealt a blow on the head of Hazari, who tried to intervene acted in furtherance of a common intention to kill Hazari. There could not be any possible reason under the circumstances of this case for the other two persons to have shared the common intention with the one who dealt fatal blow on Hazari's head. Application of section 34, in such circumstances, is totally ruled out. For these reasons we cannot uphold the judgment of the trial court so far as it relates to the conviction of Moosya under section 302 Indian Penal Code and Kalua and Ramdayal under section 302 read with section 34 Indian Penal Code. 14. The appeal of Moosya, Kalua and Ramdayal is therefore partly allowed. Moosya is acquitted of the charge under section 302 Indian Penal Code The life imprisonment awarded to him under that offence is therefore set aside, Kalua and Ramdayal are acquitted of the charge under section 302 read with section 34, Indian Penal Code and the life imprisonment awarded to each one of them is set aside. The conviction of Moosya, Kalua and Ramdayal under section 323 I.P.C. is however maintained. Since they have already served out the sentence of three months awarded under section 320, I.P.C, they cannot be kept in custody. 15. The result is that Moosya, Kalua and Ramdayal, who are in jail shall be released forthwith, if not required in any other case. *******