JUDGMENT 1. - These two appeals, one filed by Kundan Lal and the other by Girraj, son of Prabhati, Girraj son of Jagannath and Ramavtar, arise out of the same judgment and relate to the same occurrence. They are, therefore, being disposed of by a common judgment. These appeals are directed against the judgment, dated December 10, 1930 of the learned Additional Sessions Judge No. 1, Alwar, whereby he convicted the accused appellants and sentenced them as under:- 1. Accused-appellant Kundan u/s 302 I.P.C, imprisonment for life and fine of Rs. 50/-, in default one Month's R.I. 2. Accused-appellants Girraj Meena, Girraj Yadav & Ramavtar Each accused was convicted u/s 326/34, I.P.C. and sentenced to seven years R.I. and a fine of Rs. 1000/-each, in default of payment of fine further six months R.I each. 2. Shorn of unnecessary details, the facts to be mentioned for the decision of these appeals in nut-shell are that Nahar Singh, aged 40 years, with his two sons P.W. 22 Bhanwar Singh, P.W. 23 Narendra Singh alias Neeru, his daughter Kumari Chandra Kanta P.W. 24 and his wife Smt. Kamla P.W. 25 resided in Indira Colony, Alwar. In the same colony P.W. 29 Kumari Indira Yadav was lodging. Accused Kundan's married sister, too, lived in the same colony. Kundan used to come over there off and on. Kumari Indira Yaday P.W. 29 was the god-sister of accused Kundan. The rest of the accused also belonged to Alwar City. The prosecution case is that Kumari Indira Yadav made a complaint to Kundan against Narendra Singh's : behaviour. On April 5, 1980, accused Kundan, in the company of his friend Heera and others, went to the house of Narendra Singh. But Narendra Singh was not found there. Father of Narendra Singh, Nahar Singh, met him. Kundan made a complaint to Nahar Singh about the behaviour of his son and asked him to mend his son, lest he might not be constrained to set him right. While accused Kundan and others were returning from the house of Nahar Singh, Narendra Singh met them on the way. Narendra Singh was belaboured, but he could made good his escape. 3. On the fateful day i.e. on April 6,1980, at about 8.00 p.m. Kundan in the company of three accused appellants went to the house of Nahar Singh. He called out Nahar Singh. Narendra Singh was belaboured, but he could made good his escape. 3. On the fateful day i.e. on April 6,1980, at about 8.00 p.m. Kundan in the company of three accused appellants went to the house of Nahar Singh. He called out Nahar Singh. In pursuance thereto Nahar Singh along with his two sons, Narendra Singh and Bhanwar Singh, came out. One of the accused pushed Bhanwar Singh as a result of which he fell down. Then they rushed towards Narendra Singh. Nahar Singh (since deceased) protested. At that stage the three associates of accused Kundan caught hold of Nahar Singh. Kundan then took out a knife and thrust it into the chest of Nahar Singh. Soon after all the four accused took to their heels. They were chased and when Nahar Singh reached near Kundan the latter turned round and inflicted one more injury to Nahar Singly Nahar Singh then came back to his house. He fell down near the 'Chabutara of his residence. Hearing his cries, Kumari Chandrakanta. Smt. Kamala, P W. 4 Balbir Singh, P.W. 18 Radhey Shyam, P.W. 26 Omprakash, P.W. 27 Narain and other neighbours arrived at the scene of occurrence. They saw the accused Kundan inflicting blows to Nahar Singh and discovered that all the four accused ran away together. The residents of the locality removed the injured to the hospital, but he succumbed to the injuries on the way. Dr. P.S. Agarwal, P.W. 28. gave telephonic information to the Police Station. Police Officer, P.W. 32 Inder Kumar recorded the information in the 'Roznamcha' at No. 460, Ex. 31 and then proceeded to the hospital. Inder Kumar recorded the statement of P.W. 22 Bhanwar Singh The 'Parcha Bayan' is marked Ex. P.8. which was sent through Constable Suresh Chandra at the police station. On the basis of that 'Parcha Bayan' a formal F.I R. Ex P.9 was recorded and the case registered at No. 159/1980. Under section 302. I.P C. In the F.I.R details of the happenings of both the days were given and it was also mentioned therein that the witnesses had recognised the three associates of Kundan and that they should be able to identify them if the latter were produced before them. The police officials went out in search of the accused. The rest of the investigation was carried on the next day i.e. on April 7, 1980. The police officials went out in search of the accused. The rest of the investigation was carried on the next day i.e. on April 7, 1980. Autopsy on the dead body of Nahar Singh was performed by Dr. P.S. Agarwal. Following external injuries were detected on the body of the: deceased; 1. Stab wound 2.1 cm x l cm x cavity deep on left side chest and lower mid rib margin transvarse. 5 cm left to mid line, pointing inward and medically blood clots. 2. Stab wound 13/4 cm x 3/4 cm x cavity deep; vertical, 3 cms right to line at nipple level almost with blood clots round and point inward and medically. On opening the body, following injuries were discovered by the doctor: 1. Subcutaneous and muscular blood clots under external injury No. 1 with a cut in castachonaral part of 7th rib on left side with a cut in partitonium. 2. Subcutaneous and muscular and blood clots under external injury No.2 with a cut of right 5th rib medial part with a cut in chest wall mediastainum. The mediastinum was found cutted with blood clots. The pericardial cavity was full of blood and there was a cut on the right vertical. 4. According to Dr. Agarwal, both the injuries, sustained by the injured, were grievous. Injury No. 2 was dangerous and was sufficient in the ordinary course of nature to cause death. 5. Accused Kundan was arrested at Jaipur near the Police Academy at 9.30 p m on April 8, 1980, vide arrest memo Ex. P.2. Two superfluous injuries, one on the nose and the other on the left little finger, were noticed on his body at the time of his arrest. Manohar Lal produced him at the police station, Alwar, on April 9, 1980. On April 9, 1960 at about 5.30 p.m. P.W. 7 Pooran Chand, Sub-Inspector arrested accused Girraj Yadav in Indira Market, jaipur, vide arrest memo Ex. P.5. He was kept 'Baparda' and was told to hide his face. An endorsement to the same effect was made in the arrest memo. On April 10, 1980, P.W. 14 Laxmi Sahai arrested another accused Girraj Meena vide arrest memo Ex. P.11. He was also kept 'Baparda' and was directed to conceal his face. A description to that effect was made in the arrest memo Ex. P.11. An endorsement to the same effect was made in the arrest memo. On April 10, 1980, P.W. 14 Laxmi Sahai arrested another accused Girraj Meena vide arrest memo Ex. P.11. He was also kept 'Baparda' and was directed to conceal his face. A description to that effect was made in the arrest memo Ex. P.11. He was then kept in detention at the police Station, Alwar. On April 15, 1980, at the Railway crossing accused Ramaavtar was arrested in a bus by P.W. 32 Inder Kumar. He was also kept Baparda' and was bid to hide his face. The prosecution case further is that all the three accused were sent to judicial lock up on the next day of their arrest and there also they were kept 'Baparda'. On April 14, 1980. accused Kundan expressed his desire to get the weapon of offence Art 1 discovered. In consequence of the information given by by him, he got the knife concealed under a box in his house recovered. The blood stained knife, half-pant and the blood recovered from the scene of the occurrence were sent for analysis to the Chemical Examiner and thereafter to the serologist. The origin of the blood could not be detected on the knife due to disintegration and as such it is not of much avail to the prosecution. On April 12, 1980, a test identification was held under supervision of Judicial Magistrate, Shri Naresh Chandra P.W. 30. In this test identification parade P.W. 23 Narendra Singh and P.W. 26 Omprakash correctly identified Girraj Meena. P.W. 22, Bhanwar Singh and P.W. 26 Omprakash accurately identified accused Girraj Yadav. Similarly on April 17, 1980. test identification parade was held under the supervision of Judicial Magistrate, P.W. 2 Laxmi Narain. In this parade accused Ramaavtar was identified by P.W. 22 Bhanwar Singh, P.W. 23 Narendra Singh. P.W. 26 Omprakash and P.W. 27 Laxmi Narain. After requisite investigation a challan against all the four accused was filed and eventually they were committed to the Court of Session, Alwar for trial. All the four accused were tried by learned Additional Sessions Judge No. 1, Alwar. The prosecution examined 32 witnesses and produced 40 documents in support of its case. 6. All the four accused denied their complicity in the crime. All the four accused were tried by learned Additional Sessions Judge No. 1, Alwar. The prosecution examined 32 witnesses and produced 40 documents in support of its case. 6. All the four accused denied their complicity in the crime. Accused Kundan in his statement recorded under Section 313, Cr.P.C., stated that on April 6, 1980, at 7.30 p.m. Nahar Singh met him and inflicted 6-7 injuries with a lathi. The three co-accused and others intervened and rescued him. As a result of the injuries inflicted by Nahar Singh he became unconscious. Accused Ramaavtar stated that prior to the holding of the test identification parade, he had been shown to the witnesses by the police. 7. Of the 32 witnesses, examined by the prosecution, P.W. 22 Bhanwar Singh. P.W. 23 Narendra Singh, P.W. 24 Kumari Chandrakanta, P.W. 25 Kamala, P.W. 26 Om Prakash, P.W. 18 Radhev Shyam, P W. 27 Laxmi Narain were eye-witnesses of the occurrence. Statement of P.W. 18 Radhry Shyam was not relied upon as he became hostile to the prosecution. PW. 28 Dr. P.S. Agarwal was examined to prove the autopsy on the dead body of Nahar Singh. P.W 1 Manohar Lal. P.W. 7 Pooran Chanel. P W. 14 Laxmi Sahai and P.W. 16 Shyam Sunder testified that the three accused Girraj Merna. Girraj Yadav and Ramaavtar had been cautioned by the police at the time of their at rest to keep the faces concealed and they in fact were kept Baparda' prior to the test identification parades P.W. 22 Inder Kumar is the investigating Officer of the case. Learned Additional Sessions, Judge. placing, reliance on the statements of Bhanwar Singh. Narendra Singh, Kumari Chanderkanta, Smt. Kamala and Out Prakash, held that accused-appellant Kundan and the other three co-accused went to the house of Narendra Singh. They had the common intention to cause grievous hurt to Nahar Singh and that Kundan inflicted two knife injuries to Nahar Singh. He intended to cause those injuries which were sufficient in the ordinary course of nature to cause death. The trial court also held that the injuries found on the person of accused Kundan could not be connected with the time and place of the occurrence and that he had not received any injury in the course of the incident in which Nahar Singh sustained fatal wounds. The trial court also held that the injuries found on the person of accused Kundan could not be connected with the time and place of the occurrence and that he had not received any injury in the course of the incident in which Nahar Singh sustained fatal wounds. On the basis of the above findings, he convicted and sentenced the accused-appellants as mentioned above. The convicted accused have challenged the conviction and sentence awarded to them by filing these two appeals. 8. Mr. Dhankar, Mr. K.K. Mehrish and Mr. R.N. Sharma, learned counsel for the accused, have urged that there are certain outstanding features of this case, which, according to theist, are sufficient to throw doubt in the entire prosecution story. It has been urged that the prosecution witnesses have concealed the true version of the occurrence. The entire prosecution case hinges around the partisan evidence, which ought not to have been accepted. The evidence regarding identification is not believable. The accused had been shown to the witnesses prior to the holding of the test identification parades. In any event accused Kundan could not have been convicted under Section 302, I P.C. At the most he could have been convicted under section 304, Part II. I.P.C. and the rest of the accused could have been convicted under Section 324/34, I.P.C. Learned public prosecutor, appearing on behalf of the State. has supported the judgment of the trial court. 9. The motive showing the cause for the crime, as disclosed in the F.I.R. Ex. P/8, was that accused Kundan complained to Nahar Singh about the misbehaviour of his son Narendra Singh with Kumari Indra Yadav. He asked Nahar Singh to reprimand his non and mend him otherwise he would be forced to intervene. However, the bottom of the cause of quarrel was knocked down by P.W. 29 Kumari Indra Yadav, who refused to support the alleged motive. At its best the prosecution evidence shows that relation between accused Kundan and Narendra Singh, son of the deceased was strained. But that does not show that there was any such enmity between the accused and Narendra Singh as either of them would take into his head to commit the murder of the other. Proof of motive satisfies the judicial mind about the likelihood of the authorship, but its absence only demands deep probe into the matter. But that does not show that there was any such enmity between the accused and Narendra Singh as either of them would take into his head to commit the murder of the other. Proof of motive satisfies the judicial mind about the likelihood of the authorship, but its absence only demands deep probe into the matter. Its absence cannot undo the effect of evidence otherwise sufficient. It has been observed by Hon'ble Hidayatullah CJ. in N.N. Naik v. State of Maharashtra ( AIR 1971 SC 1656 ) , that:- "We need not consider the question of motive in this case if we are satisfied that the evidence that Narayan Nathu Naik was the assailant of Rattan, is acceptable." 10. In cases where the case of the prosecution rests purely on circumstantial evidence, motive may play an important part in order to tilt the scale against the accused. But whereas here, there is convincing and credible direct evidence, want of proof of motive is of little consequence Reference with advantage may be made to State (Delhi Administration) v. Gulzarilal Tandon ( AIR 1979 SC 1382 ) . Keeping in view the above principle, we now proceed to evaluate the main evidence in the case. P.W. 22 Bhanwar Singh stated that on April 6, 1980, he, his younger brother Narendar Singh, his mother, his sister and his father were inside the house. They were preparing themselves to take their meals. On a call from someone the witness, his brother and his father came out. In the electric light which was fitted on a pole installed just near their house, they saw accused Kundan and three other appellants. One of them, i.e. Girraj Meena, pushed him as a result of which he fell down. His father protested against it. All the three accused-appellants, except Kundan, cought hold of his father. Kundan took out a knife and thrust it into the chest of his father. Thereafter all the four tried to run away. The witness further says that his father followed them. At that stage all the four turned back. The three accused surrounded his father. Soon after Kundan inflicted another blow of knife on the person of his father and thereafter all the four accused made good their escape in the same direction. The witness and his associates followed the accused, but they could not be apprehended. At that stage all the four turned back. The three accused surrounded his father. Soon after Kundan inflicted another blow of knife on the person of his father and thereafter all the four accused made good their escape in the same direction. The witness and his associates followed the accused, but they could not be apprehended. His father, Nahar Singh, walked a few steps towards his house and then he collapsed. The witness further states that soon, as Kundan inflicted the first blow, a cry was raised, whereupon, Om Prakash, Radhey Shyam, Laxmi Narain, Balhir Singh, his mother Kamala and his sister Chandrakanta and other persons of the locality rushed out and saw the occurrence. They took Nahar Singh to the hospital. In the hospital the statement of the witness Ex. P. 8 was recorded. He had recognised Kundan and noticed the features of the three associates of Kundan in the road light. The witness identified all the three accused-appellants in the Court. He further stated that he had identified all the three accused in the test identification parades. The identification memos were prepared and the same were signed by him. The witness also stated that in-between the date of the occurrence and his identifying the accused in the test identification parade he had no opportunity of seeing the accused. The witness denied the suggestion that at the time of the occurrence he and his father had caught hold of Kundan and had given beating to him. He also denied the suggestion that as a result of the injuries, suffered by Kundan, he fell down and his other associates inflicted knife blows on the prison of his father. The witness in cross-examination asserted that the first knife blow, inflicted by Kundan, was thrust into the chest of his father and the same was inflicted at a distance of about two feet from the electric pole. The other injury was inflicted at a distance of nearly 30 or 40 feet from the place where the first injury had been caused. To the same effect is the statement of P.W. 23 Narendra Singh. The inquest report shows that the deceased was only wearing a half pant. These two witnesses are the sons of the deceased. Their presence in the house at the time of taking meals was plausible and was natural. To the same effect is the statement of P.W. 23 Narendra Singh. The inquest report shows that the deceased was only wearing a half pant. These two witnesses are the sons of the deceased. Their presence in the house at the time of taking meals was plausible and was natural. They have been examined at length, Both these witnesses state in infallible and unequivocal terms in their examinations-in-chief that they saw the accused persons in the light of the electric pole near which the deceased was assaulted by Kundan after the three other accused had caught hold of the victim. Kundan was well known to them. Not a single question demolishing the identification of Kundan had been put to the witness in cross-examination. Their statements stand corroborated by F.I.R. Ex. P. 8. P.W. 22 Bhanwar Singh was examined on the date of the occurrence and P. W. 23 Narendar Singh was interrogated the next morning. No material discrepancy between their statements recorded in the Court and by the police could be brought to light. Both these witnesses stated in clear and definite terms that they had seen Kundan inflicting injuries with a knife on the person of their father. The Trial Court in unreserved and implicit terms placed reliance on their testimony in holding appellant Kundan responsible for causing injuries with it knife to the deceased and there is no reason wily we should differ therefrom. Their statements find corroboration in material particulars from the statement of P.W. 28 Dr. P.S. Agarwal as also from the statement of P.W, 24 Kuniari Chandrakanta,P.W 25 Still. Kamtla, P. W. 26 Om Prakash and P. W. 27 Laxmi Narain. All these witnesses had s en a blood stained knife in the hand of Kundan. They also saw Kundan inflicting second blow to Nahar Singh in his stomach. There are some minor contradictions in the statements of these witnesses regarding the deceased having been caught by the three accused at the time when Kundan inflicted second blow. Nevertheless their statements relating to infliction of the second blow to Nahar Singh by Kundan are throughout steady and consistent. Thus. there is cogent consistent, and creditable evidence on record to hold that Kundan inflicted two knife blows to Nahar Singh in his chest. 11. Nevertheless their statements relating to infliction of the second blow to Nahar Singh by Kundan are throughout steady and consistent. Thus. there is cogent consistent, and creditable evidence on record to hold that Kundan inflicted two knife blows to Nahar Singh in his chest. 11. Faced with preponderance of evidence on record against accused Kundan, learned counsel for the the appellant Kundan tacitly conceded that there was sufficient evidence on record to hold that Kundan did inflict injuries on the person of the deceased. His pre-eminent contention is that on the facts and circumstances of the case Kundan could not have been convicted under Section 302, I. P. C. as he had no intention to commit the murder of Nahar Singh. There was no pre-existing enmity between the accused and the deceased. According to the prosecution case the accused had gone to the house of Nahar Singh on April 5, 1980. He met Nahar Singh. It, but did not inflict injury on his person He simply asked him to reprimand or censure his son for misbehaviour. The next day i.e. on April 6, 1980, he had visited him for the same purpose. P.W. 28 Dr. P. S. Agarwal admitted in cross-examination that Kundan was produced before him by Gopal Singh, Sub Inspector. He noticed some injuries on his person and prepared Ex. D. 4. As Kundan complained about pain and as the doctor could not detect any internal injury, he advised that the accused be produced before Dr. R. K. Mishraj, Radiologist. The witness identified the signature of Dr. Mishra on Ex. D. 5 and stated seventh rib of accused Kundan was found fractured and such an injury could have been caused by lathi or stone or tone. The witness also admitted that the injury could be caused within seven days 4 his clinically examining the accused. On the basis of the above statement. learned counsel urged that Kundan sustained injuries during the course of the same incident and the prosecution was bound to explain as to how he had sustained the injuries. The witness also admitted that the injury could be caused within seven days 4 his clinically examining the accused. On the basis of the above statement. learned counsel urged that Kundan sustained injuries during the course of the same incident and the prosecution was bound to explain as to how he had sustained the injuries. Non-explanation of the injuries on the person of the accused by the prosecution suggests that either the entire prosecution case is doubtful or that the genesis of the occurrence is shrowded in mystery and therefore, the accused is entitled to the benefit of at least exception second of Section 300, I. P. C. Learned defence counsel further urged that according to the prosecution case Kundan inflicted one blow and thereafter ran away. There was some verbal altercation in-between the accused and the deceased prior to his causing the blow. The occurrence was the result of sudden fight without premeditation and in the heat of passion he inflicted one injury and second injury was inflicted by hint under compelling circumstance. He had also not taken any undue advantage or acted in a cruel or unusual manner and as such he is also entitled to the benefit of Exception 4 of Section 300, I. P. C. Learned counsel also urged that the accused neither intended to commit murder, not had he the intention of causing such bodily injury as he knew to be likely to cause death. The accused had hard feeling against Narendra Singh and not against his father, Nahar Singh. The accused could not have known that Nahar Singh would intervene and as such it cannot be held that he interred to inflict the injuries on that vital part of the victim's body on which they were sustained. He further urged that injury No. 2, suffered by the deceased and found to he dangerous, was not intentional and as such examined from whatever angle. the case did not fall squarely within the ambit of Section 300, I. P. C. In support of the above contention, learned counsel has placed reliance on Hardev Singh and another v. The State of Punjab ( AIR 1975 SC 179 ) . Thakarda Lalji Gamaji v. The State of Gujarat (1971 Cr L.R (SC) 12 . the case did not fall squarely within the ambit of Section 300, I. P. C. In support of the above contention, learned counsel has placed reliance on Hardev Singh and another v. The State of Punjab ( AIR 1975 SC 179 ) . Thakarda Lalji Gamaji v. The State of Gujarat (1971 Cr L.R (SC) 12 . Harjinder Singh v. Delhi Administration ( AIR 1968 SC 867 ) , Laxman Kalu Nikalji v. The State of Maharashtra ( AIR 1968 SC 1390 ) , and Namme and others v. State of Madhya Pradesh (1979 Cr. L.R. (S.C.) 581) . 12. The main question which needs to be considered is whether the accused sustained the fracture of his seventh rib in the course of the same occurrence. The trial court has held that the accused has miserably failed to prove his defence. The accused Kundan in his statement under Section 313 Cr P.C. did not raise a plea of self-defence. He also did not cross-examine any discuss to the effect that the deceased or his son first inflicted injuries on the person of the accused and thereafter he brought out the knife and thrust it into the chest of Nahar Singh. The arrest memo Ex. P 2 also does not reveal any corresponding external injury. Dr. P.S Agarwal in cross-examination stated that after receiving a fracture, it person is generally in a severe pain had the accused sustained injury at the time of the occurrence, there was every possibility of his being caught either by the deceased or his sons and lie would not have been able to make good his escape. The occurrence is of April 6,1980 and he teas arrested on April 8, 1980, at 9.30 p.m. There is greater possibility of his sustaining injuries after the occurrence and prior to his arrest. The accused has also not led any defence evidence on the point. The burden of proving the distance of the circumstances bringing the case within the general exception contained in Chapter IV of the Penal code is upon the accused and the Court may presume the absence of such circumstances. No doubt, the evidence though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence, but such a position has not been established in the case on hand. No doubt, the evidence though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence, but such a position has not been established in the case on hand. It cannot be gainsaid that the burden which rests on the accused to prove the exception, is not of the same rigour as the burden on the prosecution to prove its case beyond reasonable doubt. The law on the subject is well-settled. In a case where the accused fails to prove the plea of self defence, as in the case on hand, the evidence as a whole is required to be considered whether it come from the side of the prosecution or the defence. To determine whether the infliction of the injuries for which the accused is prosecuted have been proved by 'balance of probabilities' to have been inflicted in the course of exercise of right of private defence or even if the accused fails to do that it is sufficient to make the prosecution case doubtful on an ingredient of they evidence. It is only in one of these two possible situations that the accused can get an advantage. If the circumstances which were to support the plea of private defence are satisfactorily explained by the prosecution on the evidence in the case, the case may result in conviction. In the instant case it has come on record that the accused persons came to the house of the deceased. When the deceased and his two sons came out, one of them pushed Bhanwar Singh. This shows that the accused were aggressors from the very beginning. The totality of the evidence on record neither established even with reasonable possibility a right of private defence in favour of appellant Kundan nor does it throw any cloud on the prosecution case. There was no reasonable apprehension of sustaining any harm so as to entitle the appellant Kundan to inflict two knife injuries on the person of Nahar Singh. The evidence of the eye-witnesses, discussed above, more especially that of Bhanwar Singh and Narendra Singh is convincing and credible. It does not Smack of any doubt. There was no reasonable apprehension of sustaining any harm so as to entitle the appellant Kundan to inflict two knife injuries on the person of Nahar Singh. The evidence of the eye-witnesses, discussed above, more especially that of Bhanwar Singh and Narendra Singh is convincing and credible. It does not Smack of any doubt. We affirm the finding of the trial court that the seventh rib injury alleged to have been sustained by accused Kundan was not inflicted on the person of the accused in the course of the occurrence for which he has been convicted. 13. The accused after causing stab wounds to Nahar Singh ran away along with others. He was followed by Nahar Singh and when he was at the verge of being caught, he turned round and inflicted another blow in the chest of Nahar Singh (since deceased). For causing the first blow accused Kundan had committed a non-bailable and cognizable offence and as such Nahar Singh or any other Person who found him running away, could arrest him or cause him to be arrested under section 43. Cr.P.C., 1973. As whole incident, including the running away of culprit and causing of the injury, was a single transaction, deceased Nahar Singh was justified in chasing the culprit and preventing him to escape. The accused had no private right of defence. We are fortified in this view by two judgments of the allahabad High Court, viz. Nasir v. Rex ( AIR 1951 All. 3 ) , and Sheo Balak Tusha v. Emperor (AIR 1948 All. 103) . The circumstances of the case disclose that no right of private defence of person had ever accrued to appellant Kundan. The deceased was unarmed. Exception 2 to section 300. I.P.C. can have no application. Reliance may be made to Bhagwan Munjaji Pawde v. State of Maharashtra (1978) 3 S.C.C. 330 . (relevant portion in Para 6 at page 331). Law has been discussed threadbare in the above cited full bench case and we respectfully agree with the views taken therein. Thus the appellant Kundan had no right of private defence against the deceased Nahar Singh and, therefore, the act of causing two injuries by the accused to Nahar Singh falls within the purview of clause Third of Section 300, I.P.C. 14. Thus the appellant Kundan had no right of private defence against the deceased Nahar Singh and, therefore, the act of causing two injuries by the accused to Nahar Singh falls within the purview of clause Third of Section 300, I.P.C. 14. For bringing the case under Exception 4 to Section 300, I.P.C. it was necessary for the accused to prove that there was a sudden fight in the course of which accused Kundan inflicted fatal injuries on the deceased in the heat of passion without taking any undue advantage. The prosecution evidence shows that the deceased came out of the house at the call of the accused. When one of the accused pushed Bhanwar Singh, the deceased tried to reprimand and acted as peace-maker and certainly not a trouble-maker. In such a situation one fails to see any justification for the other accused catching hold of the deceased and accused Kundan in inflicting the knife blow in the chest of Nahar Singh. We are also unable to see how the offence can possibly be brought within the first limb of Section 304, I.P.C. The two injuries were intended. They were not accidental. The injuries were on vital portion of the body. One of the injuries was found dangerous to life. This injury had the effect of cutting the fifth rib medial part with a cut under chest wall mediastinum. In the opinion of the doctor the injury inflicted by the accused was sufficient in the ordinary course of nature to cause death. The deceased was wearing only a half pant and was empty handed. Reference in this connection may be made with advantage to Aditya Mahapatra Ltd. v. State of Orissa ( AIR 1980 SC 2110 ) . 15. In Virsa Singh v. State of Punjab ( AIR 1958 SC 465 ) their Lordships of the Supreme Court were pleased to observe as follows ;- "To put it shortly, the prosecution must have the following facts before it can bring a case under section 300 "thirdly", First, it must establish quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. "Thirdly, it trust be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or un-intentional, or that some other kind of injury was intended. These are purely objective investigations. "Thirdly, it trust be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or un-intentional, or that some other kind of injury was intended. Once these elements are proved to be present, the enquiry proceed further and, Fourthly, it must be proved that the injury of the type just described made up of three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 16. It has been further observed in that case that once the intention to cause bodily injury actually found to be present is proved the rest of the inquiry is purely objective and the only question is whether as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that he is not guilty of murder. If the deceased inflicted injuries of that kind, he must face the consequences and he can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional. 17. Looking to the nature of the injuries in the present case, there is no doubt that the accused intended to cause two bodily injuries to the deceased on vital and vulnerable part of the body viz. chest. The medical evidence is that the death was due to injury No. I.' From the nature of the injuries, it is clear that the injury was inflicted on a very vital part of the body with a deadly weapon. Not only one but two injuries were inflicted, as such' we are not prepared to accept that injury No.1 caused to Nahar Singh in his chest was accidental or unintentional or that the accused intended to inflict some other kind of the injury than one which was actually inflicted. It has come in the prosecution evidence that two accused persons caught hold of the hand of Nahar Singh. The third one caught him from the back and thereafter Kundan thrust the knife into the chest of the deceased. It has come in the prosecution evidence that two accused persons caught hold of the hand of Nahar Singh. The third one caught him from the back and thereafter Kundan thrust the knife into the chest of the deceased. In this matter the case must fall under section 300 "Thirdly". I.P.C. Even it it is held that the incident took place all of a sudden and the quarrel had broken out suddenly but there was no sudden fight between the deceased and appellant Kundan or his associates, which postulates a bilateral transaction in which blows are exchanged. The deceased was unarmed. Neither the deceased nor his sons caused any injury to the appellant or his companions. Further more not less than two grievous hurts were inflicted by the appellant Kundan with a knife which is a formidable weapon, on an unarmed victim. The appellant Kundan is, therefore, not entitled to the benefit of Exception to Section 300, I.P.C. Reliance may be placed to the case of Bhagwan Munjaji Pawade (supra). 18. In Mannam Balaswamy v. State of Andhra Pradesh (1980) 1 S. C.C. 680 , the accused of that case was convicted by the trial Court under section 304, Part I, of the Indian Penal Code. The High Court set aside the judgment of the trial Court and convicted him under section 302, I. P. C. In Special Leave before the Supreme Court their Lordships held:- "In fact the appellant tried to assault the innocent intervener in the quarrel between him and his father. Secondly, the act of the appellant was a cruel act and he took undue advantage of the situation because instead of keeping quiet he went to the room and brought a knife in order to cause the death of the deceased who was 'an innocent intervener. We are therefore, satisfied that the view taken by the trial court on the question of law was absolutely wrong and High Court was, therefore, right in setting aside the acquittal of the appellant under Section 302." 19. We do not intend to deal in detail the cases cited by both the parties on this point as fate of a criminal case mostly depends on the peculiar facts of each case. We do not intend to deal in detail the cases cited by both the parties on this point as fate of a criminal case mostly depends on the peculiar facts of each case. In those cases where the Hon'ble Supreme Court has held that the case against a particular accused was covered by Exception 4 to Section 300, it was so held on the ground that the particular injury was not intended to be caused on that particular part of the body where it fell and the 'injury suffered by the victim of that case was accidental. Such is not the case here. As we have already held that the injuries inflicted by Kundan were intentional and the first injury was caused at a time when his other co-accused had caught hold of the hand of the deceased. In similar circumstances, a division bench of this Court, to which one of us was a party, in Kishan v. The State of Rajasthan (1980 WLN 647) , where only one knife injury was caused by the accused to the victim of the assault, Balli. This Court after discussing the ratio decidendi of Virsa Singh's case (supra), Anand and others v. The State of Rajasthan ( AIR 1966 SC 148 ) , and ) State of Andhar Pradesh v. Rayavarapu Punnayya and another ( AIR 1977 SC 45 ) , held the accused guilty under section 302, I.P.C. Lord Goddard in R. v. State (1947).1 All E.R. 816 , observed, "No doubt, if the prosecution proves an act the natural consequence of which would be a certain result and no evidence of explanation is given, then a Jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged." 20. This case was read with approval by a division bench 'of this Court in State of Rajasthan v. Mangilal and others (1980 WLN 452) . 21. In Harjinder Singh v. Delhi Administration (Supra), their Lordships of the Supreme Court convicted the accused of that case under, section 304. Part I, I.P.C. on peculiar facts appearing in that case. Their Lordships while discussing the evidence, observed: "The evidence indicates that while' the appellant was trying to assault Dalip Kumar and the deceased 'intervened,' the appellant finding himself one against two took out the knife and stabbed the deceased. Part I, I.P.C. on peculiar facts appearing in that case. Their Lordships while discussing the evidence, observed: "The evidence indicates that while' the appellant was trying to assault Dalip Kumar and the deceased 'intervened,' the appellant finding himself one against two took out the knife and stabbed the deceased. It also indicates that the deceased at that stage was in a crouching position presumably to intervene and separate the two. It cannot, therefore, be said with any definiteness that, the appellant aimed the blow at this particular part of the thigh knowing that it would cut the artery." 22. The injury in this case was caused on a non-vital part of the body and in the opinion of their Lordships of the Supreme Court it was un-intentional. Such is not the position in the case on hand. 23. In Laxman Kalu Nikalji v. The State of Maharashtra (supra), their Lordships observed that 'the eye-witnesses did not speak about the weapon but she only said that the accused hit the victim with the weapon and ran away. Though the injury was a serious cite, in that it had cut auxiliary artery and veins, it was not,on the vital part of the chest and had not reached the lungs. The, incident itself took place presumably as a result of a quarrel over the subject as to when the accused could take his wife back home. On the said facts and circumstances of this case their Lordships held that the accused of that case was guilty of the offence punishable tinder section 304, part II. In the case on hand the position . is otherwise. As already noted above, three persons caught hold of the deceased and thereafter the accused inflicted the specific blow on a specific portion of the body. The accused had come from their place to the house of the deceased, thus quarrel, if any, it was self-sought. We do not intend to discuss in detail the rest of the cases cited by the learned counsel for the parties on this point because the decision of a criminal case mainly depends on the facts of each case and the facts of two cases are never identical. 24. The net result of the above discussion is that we find no merit in the appeal filed by accused Kundan. We 'maintain the conviction and sentence awarded to him by the trial court. 24. The net result of the above discussion is that we find no merit in the appeal filed by accused Kundan. We 'maintain the conviction and sentence awarded to him by the trial court. 25. Now remains the case or three accused-appellants, namely, Girraj Prasad Yadav, Girraj Meetia and Ramavtar. It is an admitted case of the prosecution that their names do tout find place in the F. I. R. They were not known to the witnesses and the entire case depends upon the evidence of their identification. There is evidence on record that near the 'Chabultara' of the deceased there is an electric pole and the accused were seen by the witnesses in the electric light. Now the questions which need consideration, are, (i) whether the witnesses had sufficient opportunity to identify the accused, (ii) whether identification of the accused by the witness in the court stands corroborated by their identification in test identification parade,. (iii) whether the evidence of identification is reliable. (iv) whether there was any opportunity for the witnesses to see, the accused ,and they saw the accused prior to the test identification parades. 26. Identification parades are usually held in those cases where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident. They, however, claim that although they did not know him earlier, they could recall his features in sufficient details, and would be able to identify him, if and when these happen, to see him. Holding of a test identification in such cases is as much in the interest of investigating agency or the prosecution as is in the interest of the accused, for, while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those' witnesses who claim to have been the perpetrator of the crime and their capacity to identify him and thereby fill up the gap in the investigation regarding the identity of the cul prit, it saves the suspect or the accused from the sudden risk of being identified in the dock by the self-same witnesses during the course of the trial. The line-up of the suspect in a test identification parade is, therefore, a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice. The line-up of the suspect in a test identification parade is, therefore, a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice. But it should not be forgotten that the result of an identification parade conducted at the stage of investigation is ot a piece of substantive evidence for a case and it cannot, be the basis , of conviction. It only furnishes corroborative piece of evidence. The substantive evidence against the accused is what' it is given in the court by the identifying witnesses in the witness-box. It is all admitted case of the prosecution that P.W. 24 Chandar Kanta and PW. 25 Snit. Kamala were not called to identify any, the accused in the test identification parade and as such it would not be safe to convict any of the accused on the solitary testimony of these witnesses,'if the same accused has not been identified by any other person in the test identification parade as well in the court. Learned counsel for the accused submitted that all the Accused prior to their identification parade by the witnesses had told the Magistrate that they were shown to the witnesses and as such no reliance should be placed on the evidence of identification. 27. We do not find substantial merit in the above submission. Such far-fetched assumptions cannot be taken in every case unless there is some evidence on record which might justify an inference of this kind. A full bench in the Rajasthan High count in State of Rajasthan v. Ranjita Ladhuram ( AIR 1962 Raj. 78 ) , observed as under:- "It is also erroneous, in my opinion, to attach too much weight to the assertion of the accused, unsupported by any cogent material, that he or they had been shown to the witnesses prior to the test identification parade. Experience shows that almost invariably this defence is taken in order to destroy the value of the test identification and if the Courts were to act merely on the ipse dixit of the accused and thereby throw an unnecessary burden on the prosecution to make the identifying witnesses repeat in each case that they had not seen the accused earlier, they would be, in my opinion adopting a meaningless formula which is neither warranted by logic or law." 28. This case was read with approval in Ramanathan v. The State of Tamil Nadu (1978) 3 S.C.C. 86 . 29. All that is necessary is to see whether there is anything on the record to indicate that the accused had been either deliberately shown to the witnesses prior to the test identification parade or that the witnesses had had an opportunity of seeing the accused before the test identification. As has been held by Full Bench of the Rajasthan High Court that if there is such indication on the record and the investigating authorities have taken no precaution against it, then no value should be attached to the test identification, otherwise there could be no justification in insisting that the identifying witnesses should unnecessarily repeat in their evidence that they had not seen the accused before test identification parade. 30. Accused Girraj Prasad Yadav was arrested on April 9, 1981, vide arrest memo Ex. P. 5. In the arrest memo it has been mentioned that the accused was kept 'Baparda' and was also directed to keep himself 'Baparda', P.W. 7 Pooranchand stated that he arrested the accused Girraj Prasad on April 9, 1980, in the Indira Market. He proved Ex. P. 5 and stated that the accused was kept 'Baparda' and was directed to keep himself 'Baparda' as test identification parade regarding this accused was to be held in the course of investigation. The accused was taken to Alwar in the police jeep. P.W. 16 Shyam Sunder stated that on April 10, 1980, he took accused Girraj Prasad, son of Jagannath yadav, to the Magistrate for remand. He was taken Baparda' to the court and after obtaining the remand. he was sent to judicial lock up 'Baparda' . The witness exhibited the 'Ravangi' report No. 705 i. e. Ex. P. 19. 31. Accused Girraj Meena was arrested on April 10. 1980, vide arest memo Ex. P. 11. Arrest memo reads that he was kept Baparda, and was directed to keep himself 'Baparda'. P.W. 14 Laxmi Sahai proved Ex. P. 11, when he stated that after his arrest, he was kept Baparda' and the report to the same effect was made in 'Rojnamcha Am'. His remand was also obtained by P.W. 16 Shyam Sunder. He stated that on April 11, 1980, he produced Girraj Meena before the learned Magistrate for remand and lie was produced before the Magistrate Baparda'. P. 11, when he stated that after his arrest, he was kept Baparda' and the report to the same effect was made in 'Rojnamcha Am'. His remand was also obtained by P.W. 16 Shyam Sunder. He stated that on April 11, 1980, he produced Girraj Meena before the learned Magistrate for remand and lie was produced before the Magistrate Baparda'. He denied the suggestion that the accused was shown to the witness. P. W. 21 Balwant Singh stated that he received accused Girraj Yadav at police station, Alwar, 'Baparda' placed him in the lock up and covered hire by a blanket A report to the same effect was made on April 9, 1980 in General Diary. This witness was not cross-examined on behalf of the accused. Accused Ramaavtar was arrested on April 17, 1980, vide arrest memo Ex P. 10. He was kept 'Baparda' and was instructed to remain 'Baparda' by the arresting officer as he was to be identified by the witnesses. An entry to the same effect was made in the arrest memo itself. P.W. 23 Indrakumar has also made statement to the same effect. Respective entries regarding each of the accused for being kept 'Baparda' made in the police record and general Diary have been produced on record during trial. Thus, there in nothing except bald statement of the accused on record that prior to identification parade, they had been shown to the witness. The identification parades were held within 2 or 3 days of their arrest. On April 12, 1980, test identification parade was held for identification of Girraj Meena and Girraj Yadav. It was held under supervision of P. W. 30 Neresh Uhandra Rawat, judicial Magistrate. Girraj Meena was rightly identified by P. W. 23 Narendra, P.W. 26 Om Prakash and P.W. 22 Bhanwar Singh and P.W. 26 Om Prakash correctly identified Girraj Yadav. The test identification memo of accused Girraj Yadav,prepared by the Magistrate at the time of identification of accused Girraj Meena, is Ex. P. 28 and that of accused Girraj Yadav is Ex. P. 29. P.W. 30 Naresh Chandra Rawat in his statement on oath before the court stated that he took all the necessary precautions. Witnesses were called one by one and were not allowed to meet each other. P. 28 and that of accused Girraj Yadav is Ex. P. 29. P.W. 30 Naresh Chandra Rawat in his statement on oath before the court stated that he took all the necessary precautions. Witnesses were called one by one and were not allowed to meet each other. The parades were held separately and 8 under trials were mixed and made to stand in line with the accused, at time of identification of accused. As accused Girraj Meena had scars of injuries on his nose and mouth, they were covered by paper chits and similar chits were pasted on the faces of other under-trials, who were mixed with him. As Girraj Yadav had an injury on the eye-brow, that was also converted. Similary chits were pasted on the eye- brow, of other under trials, who were mixed with him at the time of identification. The witness further stated that Bhanwar Singh, son of the deceased, could not identify Girraj Meena. Similarly Girraj Yadav was not identified by Narendra. The test identification parade for identification of accused Ramaavtar was held. Phis identification parade was conducted under the supervision of Judicial Magistrate, P. W. 20, Laxminarain Sharma. P. W. 22 Bhanwar Singh, P. W. 23 Narendra Single, P.W. 26 Omprakash and P.W. 27 Laxminarain identified this accused correctly in the test identification parade. P.W. 20 Laxminarain Sharma stated that Ramaavtar had a scar on the eye and as such a piece of paper was pasted on that part and similar papers were pasted on other accused on the same part of their faces. He stated that the persons mixed with the accused were of the same size, age and colors, details of which have been mentioned in the report. He also stated that the witnesses were called one by on and after identification they were asked to sit at one place and were not allowed to mix with each other. Thus, from the statements of the above noted witnesses, it has been proved that proper precautions were taken for not allowing the accused to be seen by the witnesses prior to the holding of their test identification parades. The parades were held within a short time of their arrest and were conducted under the supervision of Judicial Magistrate, with all necessary precautions and arrangements. 32. The parades were held within a short time of their arrest and were conducted under the supervision of Judicial Magistrate, with all necessary precautions and arrangements. 32. The contention of the learned counsel for the appellants is that the proportion of the persons mixed with the accused was not adequate and in support of this contention he placed reliance on police rules. We have gone through the cross-examination of the witness. The accused knew it fully well that from the date of the identification parade this piece of evidence would be considered against them at the stage of trial. If they wanted to demolish it, it was for them to have effective cross-examination and bring some thing on, record on the basis of which it would be said that they were shown to the witnesses or they could have examined the evidence in defence to rebut the evidence led by the prosecution. As the appellants have failed to do so, the very fact that some of the witnesses failed to identify some accused in itself is suggestive of the fact that had the accused been shown to rile witnesses before-hand, they would not be committing any mistake and would have identified them easily. In Ashok Narhari Naik v. State of Maharashtra (1978) 3 S.C.C. 91 . Their Lordships of the Supreme Court dealt with similar point, at page 96 and observed, "We agree with the high Court that if the witness-as was suggested by the defence had really been afforded opportunity by the police to see the accused persons carefully before the test identification parade, he should have identified all the seven persons, to wit accused 2 to 8, at the two different parades and not accused 2 and 8 only. This circumstance also lends assurance to the conclusion that the witness was it truthful witness and identified only those out of the assailants whom lie could observe at the time of occurrence and whose mental impression remained stamped upon his memory." 33. The trial court has placed reliant a on the evidence of test identification and we find no reason to reject this important piece of evidence. P.W. 22 Bhanwar Singh, P.W. 23 Narendra and P.W. 26 Omprakash indentitied all the accused-appellants in the court. The trial court has placed reliant a on the evidence of test identification and we find no reason to reject this important piece of evidence. P.W. 22 Bhanwar Singh, P.W. 23 Narendra and P.W. 26 Omprakash indentitied all the accused-appellants in the court. The statement of P.W. 26 Omprakash regarding identification of Girraj Meena and Girraj Yadav in the court stands corroborated In Ex.P. 28 and Ex P. 29 and statement of Narendra Singh regarding tire identification of Girraj Mena stands corroborated by test identification memo Ex P. 28. Similarly tire identification of accused Girraj Yadav in the court by P.W. 22 Bhanwar Singh is corroborated by Ex.P.29. As regards accused Ramaavtar the identification of this accused in the court stands corroborated by identification memo Ex P.24. The learned Additional Sessions Judge observed that though Kumari Chandra Kanta and Sint. Kamla were not called to identify the accused for test identification parade, yet in court Kumari Chandra Kanta had identified all the thee- accused when they were standing amongst 50 persons. As these accused were on bail and they were m A in the dock, their identification by this witness in the court. in the opinion of the learned Additional Sessions Judge, was reliable, and if he believed her statement as it left an impression of truth up or him, we find1 no reason not to read the statement of this witness regarding tire identification of accused as corroborative evidence of P.W. 22 Bhanwar Singh. P.W. 23 Narendra and P.W. 26 Om Prakash. The learned Judge had had an opportunity to observe the witness in the witness-box. A full bench of the Rajasthan high Court in the State of Rajasthan v. Ranjita (supra), held that the value of the sworn testimony of the witness in the court should not be lightly discarded on the mere assertion that there was no test identification parade held earlier or that the test identification was not in proper from, provided that the evidence on record on the point of identification is otherwise adequate and convincing. 34. Thus from cogent and consistent evidence, presence of all the three accused-appellants, namely, Girraj Meena, Girraj Yadav and Ramaavtar along with accused Kundan at the time and place of the occurrence is proved beyond any shadow of doubt and their identity as companions of' the assailants of Kundan, who inflicted fatal wound, stands established. 35. 34. Thus from cogent and consistent evidence, presence of all the three accused-appellants, namely, Girraj Meena, Girraj Yadav and Ramaavtar along with accused Kundan at the time and place of the occurrence is proved beyond any shadow of doubt and their identity as companions of' the assailants of Kundan, who inflicted fatal wound, stands established. 35. Now remains the question as to what part was, played by these accused and under whit offence, they should be held guilty. The learned Additions. Session, Judg- has held that all these three accused-appellants caught hold of Nahar Singh to facilitate the infliction of the injury by Kundan in the chest of Nahar Singh. He however, held that at the time of infliction of second injury by accused Kundan on the person of Nahar Singh three accused did not catch-hold of the d ceased and the evidence regarding this point was emblishment in the prosecution case. We agree with the above finding of fact arrived at by the learned Additional Sessions Judge. There is nothing on record to hold that P.W.22 Bhanwar Singh and P.W.23 Narendra did toot see the three accused catching hold of the deceased at the time when Kundan inflicted fatal blow in the chest. It might be that Kumari Chandra Kanta, Smt. Kamla and Omprakash and other witnesses appeared on the scene of the occurrence after the first injury had been inflicted on the person of Nahar Singh, but they had had the opportunity of seeing all the three accused running away together and had had enough opportunity to identify them. The learned Additional Sessions Judge has convicted all the three accused under section 326/34, I.P.C. The common intention must be to commit a particular crime although the actual crime may be committed by any one sharing common intention, then only others can be held to be guilty of that offence. When section 34, I. P. C. is read along with the preceding section 33, it makes it clear that "act" spoken of in section 34 indicates a series of act as at single act. When section 34, I. P. C. is read along with the preceding section 33, it makes it clear that "act" spoken of in section 34 indicates a series of act as at single act. It follows that the words -when a criminal act is done by several persons" in section 34 may he construed to mean that -criminal acts are done by several persons", the act committed by different confederates in criminal action may be different, but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or may otherwise facilitate the execution of the common design. There is no doubt that a common intention should be anterior in time to the commission of the crime showing pre-arranged plan and a prior concert. but it can also be formed on the scene of the occurrence, which may be inferred from the act or conduct or other relevant circumstance of the case. The trial court has held that the three accused-appellants did not share the common intentention of causing death or such injury which was sufficient in the ordinary course of nature to cause death with accused Kundan The learned Judge acquitted them of the charges punishable tinder section 302/34. I. P. C. Accused Kundan had a knife. He had not brandished it prior to the causing of the injury. All the three accused-appellants were empty handed and they had no arms with them. As such trial court was correct in holding that they did not share common intention with Kundan atleast to cause such an injury to Nahar Singh as would lead in the usual course of nature to cause his death, we are puisuaded to hold that the three appellants were involved in the occurrence and that they went to the house of Nahar Singh with the intention of causing grievous hurt with the sharp edged weapon either to Neeru or Nahar Singh, when they caught hold of Nahar Singh, they facilitated the infliction of injury Kundan. In such circumstance, it can be safely said that all the three shared the common intention with Kundan to cause grievous hurt, with a knife. In such circumstance, it can be safely said that all the three shared the common intention with Kundan to cause grievous hurt, with a knife. When he criminal acts are done by several persons, the acts committed by different confederates in the criminal action may be different but when all in one way or the other participate and engage in the criminal enterprise for instance, one may only stand guard to prevent any person coming to the relief of the victim or may catch hold of the victim or may otherwise facilitate the execution of the common design, all of them become vicariously liable under section 34, I. P. C. 36. The net result of the above discussion is that the appeal filed by Kundan fails. The conviction and sentence awarded to him by the trial court are maintained. The conviction of the accused-appellants Girraj Meena, Girraj Yadav and Ramaavtar tinder section 326/34, I. P. C. are maintained. However, the sentence awarded to them is reduced to two years' rigorous imprisonment each. 37. It is however, made clear that the accused-appellants shall be entitled to the benefit of Section 428 Cr. P. C The period of detention undergone by them during investigation, inquiry or trial shall be set off against the term of imprisonment already suffered by them They are on bail. The learned trial court shall issue warrant of arrest to get then,. arrested and send them to jail for undergoing the remaining term of imprisonment awarded by this court. *******