JUDGMENT V. N. Varma, J. 1. THIS is an appeal from the judgment and order of Sri B N.Mohilay, IV Additional Sessions Judge, Aligarh by which he convicted the appellants-Tula Ram, Kalyan Singh alias Kallu, Mahraj Singh, Gajraj Singh and Shiv Raj Singh-under Sections 302/149 and 307/149 I. P. C. and sentenced each one of them to imprisonment for life under the first count and seven years' R. I. under the second count. Tula Ram and Kalyan Singh alias Kallu were further convicted under Sec. 147 I. P. C and were sentenced to one year R. J. each while Mahraj Singh, Gajraj Singh and Shiv Singh were convicted under Sec. 148 I. P. C. and were sentenced to two years' R. I. each. 2. THE person who lost his life in this case was one Boondi Singh. He was resident of village Mehka, P. S. Atrauli, district Aligarh. THE appellants also are residents of village Mehka. They belong to one family-appellant Tula Ram being the father and the other appellants his sons. Boondi Singh deceased was the nephew of appellant Tula Ram. THE house of tine appellants is quite close to the house of Boondi Singh deceased. One Yogendra, a teen aged boy, is the grandson of appellant Tula Ram. Gambhir Singh and Pratap Singh are also teen aged boys and are nephews of Boondi Singh deceased. At the relevant time (1972-73) all these three boys read in one school in village Gahtoli. On 9-1-1973 they attended their school as usual. It is said that while they were returning from their school, Gambhir Singh and Pratap Singh beat Yogendra in the way. Yogendra complained to his grandfather (appellant Tula Ram) about the beating which Gambhir Singh and Pratap Singh had administered to him. Appellant Tula Ram felt irked at the beating which was given to his grandson, and at about 2 P. M. he went to the house of Boondi Singh and complained to him about the conduct of Gambhir Singh and Pratap Singh. Boondi Singh attached no importance to his complaint and told him that it was a quarrel between three small boys and they will forget it soon. This reply of Boondi Singh did not satisfy appellant Tula Ram and be started hurling abuses on Boondi Singh. Some persons of the locality tried to pacify Tula Ram but he was in no mood to listen to them. This reply of Boondi Singh did not satisfy appellant Tula Ram and be started hurling abuses on Boondi Singh. Some persons of the locality tried to pacify Tula Ram but he was in no mood to listen to them. His temper against Boondi Singh remained at the same pitch. He gave a call to his sons-the other appellants- to teach a lesson to Boondi Singh. It is said that on hearing his call the other appellants variously armed-Shiv Raj Singh armed with a gun, Gajraj Singh and Mahraj Singh armed with pistols and Kalyan Singh alias Kallu armed with a lathi-arrived there. Tula-Ram exhorted his sons to kill Boondi Singh whereupon it is said that Shiv Raj Singh fired at him with his gun. He was badly injured and he fell down on the ground. One Shiv Dan Singh happened to arrive at that time and he protested against the behaviour of Tula Ram and his sons. It is said that on this, Shiv Raj Singh again opened fire with his gun and Gajraj Singh and Mahraj Singh with their country made pistols injuring Pratap Singh, Gambhir Singh, Smt. Draupadi, Smt. Subhadra, Shiv Dan, Smt. Premwati, Soran Singh, Smt. Rajwati and Smt. Singhari. In the meanwhile a large number of villagers collected at the spot and then the appellants took to their heels. 3. RATAN Singh (P. W. 1) a close relation and neighbour of the parties arranged a bullok cart and left for the police station along with the injured persons. He reached there at 5. 30 p. m. and lodged an oral report there. Soon thereafter Malkhan Singh (P. W. 4) also arrived at the Thana accompanied by Smt. Premwati (P. W. 6). Smt. Premwati informed the police that after the departure of RATAN Singh and the other injured persons from the. village the appellants had set fire to the Chhappars and when she protested against their action she was fired upon with a country made pistol. All the injured persons including Smt. Premwati were then sent to hospital for medical examination. They were examined by Dr. M. K. Saxena between 7. 10 P. M. and 9.15 P. M. He found two serious gun-shot wounds on the body of Boondi Singh. As the condition of Boondi Singh was far from satisfactory he was admitted as an indoor patient in the hospital. Dr. They were examined by Dr. M. K. Saxena between 7. 10 P. M. and 9.15 P. M. He found two serious gun-shot wounds on the body of Boondi Singh. As the condition of Boondi Singh was far from satisfactory he was admitted as an indoor patient in the hospital. Dr. M. K. Saxena found gun-shot injuries on the bodies of the other injured persons also. Their injuries were, however, not found to be either serious or grievous. 4. BOONDI Singh died in the hospital on the same day at 11.15 P. M. The post-mortem examination on his dead body was conducted by Dr. S. K. Saxena on 10-1-1973. He found the following antemortem injuries on the dead body: 1. 29 gun-shot wounds of entry each measuring 1/10" x 1/10" on the chest and abdomen left side in an area of 14" x11". The skin around the wounds was normal and each wound was circular and lacerated with inverted margins. 2. 5 gun-shot wounds of entry each measuring 1/10" x 1/10" on the lower and front part of the chest right side and the upper and front of abdomen, in an area of 7" x 2"; the wounds were circular, lacerated with inverted margins. Examining internally Dr. S. K. Saxena found (i) one punctured wound 1/10" x 1/10" between 4th and 5th costal cartilage on left side (ii) two punctured wounds between 3rd and 4th ribs on left side in the nipple line (iii) pericardium of the heart punctured on left side upper and outer part and (iv) one punctured wound on the upper and outer part of left ventricle. 5. ACCORDING to the autopsy surgeon death of the deceased was due to shock and haemorrhage as a result of the gunshot wounds sustained by him. 6. THE investigation of the case was entrusted to S.I. N. D. Thakur (P. W. 13). Soon after the report in this case had been lodged he went to the spot, recorded the statements of the material witnesses, inspected the locality and drew the site plan Ex-Ka 31. After completing the investigation he submitted a charge sheet against the appellants. The appellants pleaded not guilty and claimed to be tried. Gajraj Singh and Mahraj Singh denied their participation in this case. After completing the investigation he submitted a charge sheet against the appellants. The appellants pleaded not guilty and claimed to be tried. Gajraj Singh and Mahraj Singh denied their participation in this case. The case set up by rest of the appellants is this that on the day of incident Boondi Singh deceased and several other persons had set fire to their house due to which they suffered much loss. It was in self defence that shiv Raj Singh fired a gun-shot. According to them one Soran Singh had fired towards them and the shot accidentally hit Boondi Singh due to which he died later on. 7. THE learned Additional Sessions Judge found the prosecution case to be fully proved and he, therefore, convicted and sentenced the appellants as indicated above. Aggrieved, they have come up in appeal to this Court. 8. THAT an incident took place near the house of the parties on 9-1- 1973 at about 2 P. M. is not in dispute before us. It is also not in dispute that in that incident firing was resorted to and due to that firing Boondi Singh lost his life and as many as nine persons, namely, Pratap Singh, Gambhir Singh, Smt. Oraupadi, Smt. Subhadra, Shiv Dan Singh, Smt. Premwati, Soran Singh, Smt. Rajwati and Smt. Singhari received gun-shot injuries. Both the sides have given their own version of the incident and we have already mentioned the same in the earlier portion of the judgment. We have to see as to which of the two rival versions is correct. From this we should not be taken to mean that if the defence version is incorrect then the prosecution version is necessarily correct. In criminal cases the burden of proof never shifts and it is always for the prosecution to prove its case against the accused beyond reasonable doubt. The prosecution examined five witnesses, namely, Ratan Singh (PW 1), Gambhir Singh (PW 2), Malkhan Singh (PW 4), Smt. Premwati (PW 6) and Smt. Subhadra (PW 7) in support of its case. Ratan Singh (PW 1) has given the same details of the incident which we have mentioned above and no useful purpose will be served by repeating the same all over again. Ratan Singh (PW 1) has given the same details of the incident which we have mentioned above and no useful purpose will be served by repeating the same all over again. In short, he has stated that on 9-1-1973 at about 2[p.m. he saw appellant Tula Ram complaining to Boondi Singh deceased about the beating which his nephews Gambhir Singh and Pratap Singh had given to his grandson Yogendra. Boondi Singh attached no importance to the complaint made by Tula Ram and told him that it was a quarrel between the boys and no importance should be attached to it. Tula Ram, however, lost his temper and started abusing Boondi Singh. He and some other persons intervened but Tula Ram was in no mood to relent. He then asked his sons appellants Shiv Raj Singhj Gajraj Singh, Mahraj Singh and Kalyan Singh alias Kallu to punish Boondi Singh. Shiv Raj Singh armed with a gun, Gajraj Singh and Mahraj Singh armed with pistols and Kalyan Singh alias Kallu armed with a lathi immediately came there and Shiv Raj Singh fired at Boondi Singh with his gun causing serious injuries to him due to which he fell down on the ground. Shiv Dan Singh and some others present there rebuked the appellants for behaving in this highhanded manner whereupon, according to him, Shiv Raj Singh, Gajraj Singh and Mahraj Singh, again opened fire causing injuries to Pratap Singh, Gambhir Singh, Smt. Draupadi, Smt. Subhadra, Shiv Dan, Smt. Premwati, Soran Singh, Smt. Rajwati and Smt. Singhari. Appellant Kalyan Singh alias Kallu did not lag behind and he gave a lathi blow also to Soran Singh. In the night, Boondi Singh succumbed to his injuries in the hospital. The question is why the evidence of this witness be not believed. He belongs to the same family to which the parties of the case belong and, therefore, it is most unlikely that he will state falsely against the appellants and that too in a murder case. One will find that he was cross- examined at great length but nothing in particular could be elicited from him by reason of which one could doubt the veracity of his testimony. We are, however, doubtful if the part assigned by him to appellant, Kalyan Singh alias Kallu in this Marpit is correct. One will find that he was cross- examined at great length but nothing in particular could be elicited from him by reason of which one could doubt the veracity of his testimony. We are, however, doubtful if the part assigned by him to appellant, Kalyan Singh alias Kallu in this Marpit is correct. He was said to have given a lathi blow to Soran Singh but the medical-examination-report of Soran Singh does not show that he had received any typical lathi injury. He had received a lacerated wound 1/3" x 1/10" x skin deep on the left side of his scalp. This injury to our mind is the result of the scraping of a pellet against the scalp of Soran Singh. When indiscriminate firing was going on it does not appeal to reason that appellant Kalyan Singh alias Kallu would jump in the fray and give a lathi blow to Soran Singh. As no lathi injury exists on the body of Soran Singh we think it would not be proper to hold that Kalyan Singh alias Kallu had also participated in the commission of this crime. However, by and large, the statement given by this witness Ratan Singh sounds us to be absolutely correct and we believe him when he says that appellant Shiv Raj Singh had fired upon Boondi Singh and thereby caused his death. We also believe him when he says that appellants Shiv Raj Singh, Gajraj Singh and Mahraj Singh had caused gun shot-injuries to Pratap Singh, Gambhir Singh, Smt. Draupadi, Smt. Subhadra, Shiv Dan, Soran Singh, Smt. Rajwati, Smt. Premwati and Smt. Singhari. 9. GAMBHIR Singh (PW 2) was the person with whom Yogendra, grandson of appellant Tula Ram, had quarrelled. In that quarrel Yogendra had been beaten. He has stated that Tula Ram came to his house and started quarrelling with Boondi Singh about this matter. Soon thereafter, according to him, at the exhortation given by Tula Ram, his sons Shiv Raj Singh armed with a gun, Gajraj Singh and Mahraj Singh armed with pistols and Kalyan Singh alias Kallu armed with a lathi arrived at the spot and then Shiv Raj Singh shot at Boondi Singh. Boondi Singh fell down badly injured. Thereafter, Sheoraj Singh, Gajraj Singh and Mahraj Singh again opened fire causing injuries to several persons including him. Boondi Singh fell down badly injured. Thereafter, Sheoraj Singh, Gajraj Singh and Mahraj Singh again opened fire causing injuries to several persons including him. The presence of this witness at the time of the incident cannot possibly be disputed because of his injuries. Indeed it was not even disputed by the learned counsel for the appellants. We have gone through his evidence very carefully and we may say here at once that his evidence has impressed us to be true and convincing. It is true that when he gave his statement in court he was hardly 13 years old but we do not think that the statement given by him is the result of any tutoring. For the reasons given above we may, however, not place implicit reliance on him in so far as the participation of appellant Kalyan Singh is concerned. 10. THE evidence given by Mal- khan Singh (PW 4), Smt. Premwati (PW 6) and Smt. Subhadra (PW 7) is more or less on the same line as the evidence given by Ratan Singh (PW 1) and Gambhir Singh (PW 2). THE statement of Malkhan Singh (PW 4) is, however, more detailed than that of Smt. Premwati and Smt. Subhadra. Malkhan Singh had seen the incident from the very beginning. He had seen Shiv Raj Singh firing at Boondi Singh first. Thereafter Shiv Raj Singh fired again along with Gajraj Singh and Mahraj Singh and they caused injuries to the various other injured persons referred to above. Smt, Premwati (PW 6) and Smt. Subhadra (PW 7) were inside their house when they heard the first report of the gunshot due to which Boondi Singh was injured. After hearing the report of that gunshot they came out and then they saw Shiv Raj Singh, Gajraj Singh and Mahraj Singh firing with their respective weapons injuring the other injured persons. In our opinion Malkhan Singh, Smt. Premwati and Smt. Subhadra are also good and dependable witnesses -and it would not be proper to ignore their evidence for nothing. Smt. Premwati and Smt. Subhadra had received injuries and that goes to show that they must have witnessed the incident. However, for the reasons given above one may not accept the statements of Malkhan Singh (PW 4), Smt. Premwati (PW 6) and Smt. Subhadra (PW 7) in regard to the participation of Kalyan Singh in this crime. Smt. Premwati and Smt. Subhadra had received injuries and that goes to show that they must have witnessed the incident. However, for the reasons given above one may not accept the statements of Malkhan Singh (PW 4), Smt. Premwati (PW 6) and Smt. Subhadra (PW 7) in regard to the participation of Kalyan Singh in this crime. At this very place we may take up the defence that has been set up by the appellants in this case. They have stated that on 9-1-1973 at about 2 P. M. a quarrel took place between their children and the children of Boondi Singh deceased. The members of the family of Boondi Singh deceased felt annoyed at the way their children were beaten and they, therefore, raided the house of the appellants armed with lethal weapons. They set fire to their Chhappars causing much loss to their property whereupon appellant Shiv Raj Singh opened fire. One of the raiders, namely, Soran Singh, was carrying a fire arm and he also fired and it was the shot fired by him that accidentally hit Boondi Singh deceased. In their statements, they, however, gave no explanation as to how the other injured persons of this case had received their injuries. The defence set up by the appellants in this case has not carried much conviction with us. They never made any report about this incident on 9-1-1973. According to them, they had sent a report to Superintendent of Police on 10-1-1973 and in that report they had given full details of the incident. The report dated 10-1-1973 sent by them to Superintendent of Police is not before us in this case. One, therefore, does not know the contents of that report. No convincing explanation has been offered as to why they did not lodge any report with the local police on 9-1-1973. If their Chhappars had been burnt and they had suffered loss of property they could not have failed to make a report on the very first day. Further, one will find that no one from the side of the appellants had received even a scratch on his body. If a large number of persons armed with lethel weapons would have launched an attack on the appellants at their house someone from their side should have been injured but as mentioned above no one even received a scratch on his body. If a large number of persons armed with lethel weapons would have launched an attack on the appellants at their house someone from their side should have been injured but as mentioned above no one even received a scratch on his body. In the fire their property should also have been damaged but there is nothing convincing on record to show that they suffered any damage in this case. It appears that the appellants themselves set fire to their Chhappars to make out a case in support of their defence, and that 'is why no property of theirs was damaged. And in this case one will find that several ladies belonging to the family of Boondi Singh had also received injuries. Certainly those ladies would not have been in the raiding party that raided the house of the appellants. They must have been injured at their own house. Therefore, as it is, we are satisfied that the defence set up by the appellants in this case is totally false. The case pint forward by the prosecution is by and large correct. Seeing the facts as they stand we are satisfied that appellants Shiv Raj Singh, Gajraj Singh, Mahraj Singh and Tula Ram were the aggressors in this case and it was they who had resorted to firing at the house of Boondi Singh deceased. Sheoraj Singh fired at Boondi Singh causing serious injuries to him due to which he died after some time. After causing injuries to Boondi Singh he again opened fire along with Gajraj Singh and Mahraj Singh and in the firing done by these three persons Pratap Singh, Gambhir Singh, Smt. Draupadi, Smt. Subhadra, Shiv Dan, Smt. Premwati, Soran Singh, Smt. Rajwati and Smt. Singhari received gun-shot injuries. 11. NOW, the question is what offence/offences have been committed by title appellants in this case. Shiv Raj Singh had fired upon Boondi Singh causing serious injuries to him due to which he died and, therefore, there can be no doubt about the fact that he is guilty under Sec. 302 IPC. According to the learned counsel for the State, Gajraj Singh, Mahraj Singh and Tula Ram are also guilty under Sec. 302 with the aid of Sec. 34 I. P. C. because they shared the common intention of Shiv Raj Singh when he resorted to firing and killed Boondi Singh. According to the learned counsel for the State, Gajraj Singh, Mahraj Singh and Tula Ram are also guilty under Sec. 302 with the aid of Sec. 34 I. P. C. because they shared the common intention of Shiv Raj Singh when he resorted to firing and killed Boondi Singh. So far as Tula Ram is concerned we think he is certainly guilty hi Sec. 302 I. P. C. with the aid of Sec. 54 thereof because it was at his exhortation that Shiv Raj Singh had shot at Boondi Singh. We, however, do not Ihink that Gajraj Singh and Mahraj Singh shared the common intention of Shiv Raj Singh when he fixed upon Boondi Singh. Common intention within the meaning of Sec. 34 implies a pre-arranged plan. To convict the accused of an offence applying Sec. 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention ; the partition which divides "their bounds" is often very thin ; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in Sec. 34 should never be reached unless it is a necessary inference deducible from the circumstances' of the case. In the instant case all that has been stated against appellants Gajraj Singh and Mahraj Singh is that after hearing the call given by their father Tula Ram they came to the house of Boondi Singh in the company of Shiv Raj Singh armed with country made pistols. There is no evidence to show that when they came to the house of Boondi Singh they had come there in pursuant to a pre-arranged plan. The mere fact that they had come along with Shiv Raj Singh armed with country made pistols is not sufficient to indicate that they had come having shared a common intention to commit the murder of Boondi Singh. The mere fact that they had come along with Shiv Raj Singh armed with country made pistols is not sufficient to indicate that they had come having shared a common intention to commit the murder of Boondi Singh. In our opinion, the shooting done by Shiv Raj Singh which resulted in the death of Boondi Singh was the individual act of Shiv Raj Singh, and Gajraj Singh and Mahraj Singh cannot be held responsible for that. They cannot, therefore, be held liable for the murder of Boondi Singh. In this case, Shiv Raj Singh, Gajraj Singh and Mahraj Singh should never have been convicted under Sec. 307/149 IPC for causing gun-shot injuries to Pratap Singh, Gambhir Singh, Smt. Draupadi, Smt. Subhadra, Shiv Dan, Smt. Premwati, Soran Singh* Smt. Rajwati and Smt. Singhari. Shiv Raj Singh, Gajraj Singh and Mahraj Singh had fired from their firearms and it was undoubtedly they who had caused gun shot injuries to the injured persons. We have seen the injury reports of these persons and find that they had all received simple injuries. Merely because one or two persons had received their injuries on the vital parts of their body it cannot necessarily be inferred that the intention of Shiv Raj Singh, Gajraj Singh and Mahraj Singh was to cause their death. There is no evidence to show that the injuries received by these persons were dangerous to their lives. Section 307 requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge. In the present case, on the evidence of the medical expert examined, it cannot be said that this requirement has been met. Therefore, the offence committed by appellants Shiv Raj Singh, Gajraj Singh and Mahraj Singh for causing injuries to Pratap Singh, Gambhir Singh, Smt. Draupadi, Smt. Subhadra, Shiv Dan, Smt. Premwati, Soran Singh, Smt. Rajwati and Smt. Singhari did not go beyond Sec. 324 IPC. NOW, so far Tula Ram is concerned he is guilty under Sec. 324/34 IPC. 12. THE learned counsel for the appellants contended that Gajraj Singh and Mahraj Singh have already remained in Jail for about 14 months and, therefore, it will be proper if under Sec. 324 IPC they are sentenced to imprisonment for the period already spent by them in Jail. 12. THE learned counsel for the appellants contended that Gajraj Singh and Mahraj Singh have already remained in Jail for about 14 months and, therefore, it will be proper if under Sec. 324 IPC they are sentenced to imprisonment for the period already spent by them in Jail. We think there is some force in this contention of the learned counsel. This incident had taken place in the year 1973 and after a lapse of about seven years we also feel that no useful purpose will be served by sending these persons to jail again and that too for a short term. In the result, we allow the appeal in part and set aside the conviction and sentences passed against the appellants under Sec. 302/149 IPC. Appellant Shiv Raj Singh alone is found guilty under Sec. 302 IPC and he is sentenced thereunder to imprisonment for life. Tula Ram is found guilty under Sec. 302/34 IPC and he also is sentenced to imprisonment for life. The conviction and sentences passed against the appellants under Sec. 307/149 IPC are also set aside. Shiv Raj Singh, Gajraj Singh and Mahraj Singh are found guilty under Sec. 324 IPC and they are sentenced thereunder to imprisonment for the period already spent by them in Jail. Tula Ram is found guilty under Sec. 324/34 IPC and he is also sentenced to imprisonment for the period already spent by him in Jail. The conviction and sentences passed against the appellants under Sec. 147 and 148 IPC are set aside. 13. APPELLANTS Tula Ram and Shiv Raj Singh are on bail, their bail bonds are cancelled and they shall be taken in custody to serve out their sentences. 14. APPELLANTS Kalyan Singh alias Kallu, Mahraj Singh and Gajraj Singh are also on bail, their bail bonds are discharged and they need not surrender to them.