JUDGMENT 1. - The learned Additional Sessions Judge, Nagaur by his judgment dated October 19, 198I convicted the appellants Gangavishan, Vaidhyanath and Babunath under section 302/34, IPC. and sentenced each of them to imprisonment for life with a fine of Rs. 100/-. He further convicted them under sections 323, 324/34, 325/34 and 326/34, IPC and sentenced each of them to different terms of rigorous imprisonment from three mouths to three years The appellants have come-up in appeal and challenge their convictions and sentences. 2. Briefly summarised, the prosecution case is that PW 9 Suratnath is the son and PW 10 Gopnath is the brother of the deceased-victim Shivnath. They and the appellants are residents of village Panchasidha P S, Khinvsar district Nagaur. The field of the deceased Shivnath is situate in the South of the field of Kishan Nath, as shown in site plan Ex. P 2. In the south of the field of Shivnath is situate the field of one Hukamnath (PW 8). In the South of the field of Hukamnath is situate the fields of the appellants. Appellants Gangavishan and Vaidhyanath are real brothers while appellant Babunath is their cousin. Sadulnath was the grandfather of the appellants. On his death, the mutation of his fields was entered in the names of the deceased victim Shivnath and his brothers. The appellants went in appeal and the appeal was pending before the Sub-Divisional Officer, Nagaur. This appeal was filed on November 1 (one), 1980. 3. At about 4.00/5.00 p.m. on November 28,1980, the deceased Shivnath was coming from his Dhani to his field. The accused were taking their camel-cart loaded with cattle-fodder through the Katani (public) way shown by mark J in Ex. P 2. When they reached the place shown by mark 9 in Ex. P 2, they saw Shivnath coming from his Dhani and going to his field. When he was in the field of Kishannath, the accused left their camel-cart and rushed towards Shivnnath, made an assault on him and started inflicting blows to him with their weapons Accused Gangavishan had a Jharbar, accused Vaidhyanath had a Jayee while accused Babunath had a lathi. Due to the infliction of blows, Shivnath fell down in the field of Kishannath and raised cries. Hearing his out-cries, his brother Gopnath (PW 10) and his son Suratnath (PW 9), who were working in their fields, rushed to rescue him. Due to the infliction of blows, Shivnath fell down in the field of Kishannath and raised cries. Hearing his out-cries, his brother Gopnath (PW 10) and his son Suratnath (PW 9), who were working in their fields, rushed to rescue him. They entreated the appellants not to kill Shivnath. Their request fell on deaf ears and they too were not spared. As a result, Gopnath and suratnath also sustained multiple injuries. Gopnath also fell down in the field. Suratnath, however, managed to escape and went to PW 1 Bheraram Jat, whose field is situate nearby. He narrated the incident to him and brought him on the place of the incident, Shivnath was lying unconscious with wounds bleeding. Gopnath had also multiple bleeding wounds. Shivnath did not survive and passed away instantaneously on spot. Suratnath went to the Sarpanch of the Panchayat and narrated the incident to him At the request of Suratnath. report Ex. P 1 was written by the son of the Sarpanch and was attested by him Bheraram (PW 1) went to Police Station, Khinvsar and presented Ex. P 1 at about 11.30 p m. on the same day. The police registered a case and took-up the investigation. The Station House Officer Phagluram (PW 10) arrived on the spot in the same night. In the next morning, he inspected the site, prepared the site plan and the inquest report of the victims dead body. He seized and sealed the blood-stained soil lying scattered around the victims dead body. He found some broken pieces of a jayee and a lathi. They were also seized and sealed. The post-mortem examination of the victims dead body was conducted at about 4 15 p.m. on November 29, 1980 by PW 7 Dr. Jai Kishan the then Medical Officer Incharge, Primary Health Centre, Khinvsar. The doctor noticed the following ante-mortem injuries on the victims dead body:- 1. Deep incised wound 23/4-"x 3/4"x brain deep caused by heavy sharp weapon on the centre of middle area of frontal region of scalp just above the fore - head vertically cutting the scalp blood vessels and fracture of frontal bone transversely in the middle area 21/2" along the wound, membrane of brain underneath fractured bone out with brain material also. There was also fracture of frontal bone from upper part of left eye bye brow to partietal bone vertically. 2. There was also fracture of frontal bone from upper part of left eye bye brow to partietal bone vertically. 2. Deep incised wound 2"x 3/4" brain deep caused by heavy sharp weapon 21/2" above the left eye brow vertically cutting the sealp vessels and fracture of frontal bone from upper part of left eye brow to parietal bone vertically along the fracturved one membrance of brain underneath it cut and also brain material with blood clots. 3. Deep incised would 3" x& #189;" x brain deep caused by heavy sharp weapon would started from centre part of parietal region to occipital region transversly cutting the scalp vessels and fracture of line of parietal bone extended upto occipital bone membrance of brain cut with brain material. 4. Deep incised would 2" x 1/2" x bone deep in centre part of occipital region transversly caused by heavy sharp weapon 3 1/2" above to post surface of neck. 5. Two punctured would 1" x 1/2" x bone deep caused by large pointed weapon 1" and 2" above and post of left elbow joint with fracture of lower end of left humerus bone cutting the large vessels and muscles in side the left lower arm with blood clots. 6. Two punctured woulds 1" x 1/2" x bone deep chased by large heavy pointed weapon 2" and 3" above the post surface of right elbow joint with fracture of lower end oi right humerus bone cutting the large vessels, muscles inside the right lower arm. 7. Abraison 1" x 3/4" post surface and 1" below the left wrist joint caused by blunt weapon. 8. Punctured would 1/2" x 3/4" over middle and anterio surface of left leg caused by pointed heavy large weapon cutting the muscles and vessels. 9. Two abrasions 1/2" x 1/2" x 1/4" middle part of medial surface of left thigh caused by blunt weapon. 10. Abrasions 11/4" x 1" lateral side and middle area of right knee joint (over patella bone) caused by blunt weapon. 11. Abrasion 1" x 1/2" post and upper part of left thigh caused by blunt weapon and simple in nature. 12. Bruise 1" x 3/4" upper part of tip of right shoulder area caused by blunt weapon. In the opinion or Dr. 11. Abrasion 1" x 1/2" post and upper part of left thigh caused by blunt weapon and simple in nature. 12. Bruise 1" x 3/4" upper part of tip of right shoulder area caused by blunt weapon. In the opinion or Dr. Jai Kishan, death was due coma caused by multiple head injuries with multiple fracture of skull bones cutting the cerebral vessels causing severe haemorrhage and also other multiple injuries causing the severe haemorrhage, fractures and death due to coma. The post-mortem examination report issued by him is Ex. P. 8. The injuries of Suratnath (PW 9) and Gopnath (PW 10) were also examined by Dr. Jai Kishan on the same day and he found the following:- On the person of Gopnath (PW10) 1. Lacerated would l1/2"x 1/4"x 1/4" over left side of front of forehead 21/2" above the left eye brow. 2. Lacerated wound 3/4"x 1/4-"x 1/4" over upper part of right parietal region 21/2-" above the right ear. 3. Incised wound l1/2"x 1/2"x 1/2" over upper part of occipital region right side 31/2" above the right ear. 4. Bruises around the left eye covering upper eye lid and lower lid colour (redish blue). 5. Bruise with fracture of left shaft humerus 2" x 11/2" anterior surface of left arm. 6. Punctured wound 1/2x 1/4" x 1/2" lower and lateral side of left arm 11/2" above the left elbow joint. 7. Punctured wound 1/2" x 1/4" x 1/2" with fracture or dislocation of left elbow joint posterior and lateral side of left elbow joint. 8. Abrasion 2" x 21/2" posterior and upper part of left forearm 11/2" below the left elbow joint. 9. Punctured wound and fracture of tibia and fibula shaft 1/2"x 1/4" x 1/2" at upper⅓rd and lower 3/2/4" below the right knee joint anterior surface. 10. Four punctured wounds 1/2" x 1/4"x 1/4" anterior surface of left leg 2", 8", 41/2" and 7" below the left knee joint. The injuries were stated to have been caused by blunt, sharp and pointed weapons. On X-ray examination, some of the injuries were found grevious. On the person of Suratnath:- 1. Abrasion 1" x ⅛ over 1" below the left clavical bone. 2. Abrasion 11/4" x I" over right supra scapular region. 3. Defused swelling all over the left thumb. The injuries were simple caused by blunt object. The injury-reports issued by Dr. Jai Kishan are Ex. On the person of Suratnath:- 1. Abrasion 1" x ⅛ over 1" below the left clavical bone. 2. Abrasion 11/4" x I" over right supra scapular region. 3. Defused swelling all over the left thumb. The injuries were simple caused by blunt object. The injury-reports issued by Dr. Jai Kishan are Ex. P 7 and Ex. P 10. The three accused were arrested on November 29, 1980 and in consequence of the disclosure statements made by them, weapons alleged to have been wielded by them were recovered. The blood-stained clothes of the deceased and the injured victims were also seized and sealed The seized articles were sent for chemical examination and on some of them human blood was detected. After when the investigation was over, the police presented a challan against the three appellants in the Court of the Judicial Magistrate, Nagaur, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 302, 302/34, 323, 307, 324/34 325/34, and 326/34, IPC against them, to which they pleaded not guilty and claimed to be tried. The defence taken by the accused was that the prosecution has placed only a truncated and lope-sided version of the incident suppressing the real facts. According to them, a way from their village goes to their fields running through the fields of Kishannath, Bhannath, the deceased Shivnath and Hukamnath. The appellants have been using this way since times immemorial for taking their carts also. In the morning of November 28, 1980 when they were taking their camel-cart through the aforesaid way and reached the field of the deceased Shivnath, the deceased Shivnath and his brothers picked-up quarrel and tried to use violence against them. Somehow or other, they managed to reach their fields. Shivnath and his brothers became annoyed and irritated. In the afternoon, when they were taking their camel-cart through the Kashani way (which they did in order to avoid any trouble) and reached the place shown by mark 9 in Ex. P 2, Shivnath, his son, brother and other confederates came there armed with deadly weapons like Jharbar, Jayee and lathis. Seeing them, the appellants got frightened, left and camel-cart and took to heels. When they were running in the field of Kishan Nath, they were over-powered by Shivnath and his companions who inflicted injuries to them with their weapons. P 2, Shivnath, his son, brother and other confederates came there armed with deadly weapons like Jharbar, Jayee and lathis. Seeing them, the appellants got frightened, left and camel-cart and took to heels. When they were running in the field of Kishan Nath, they were over-powered by Shivnath and his companions who inflicted injuries to them with their weapons. As a result, all the three appellants received injuries by blunt and sharp weapon. It was, thus, the complainant party which was aggressor and used violence first. If the appellants used arms, it was in the exercise of their right of private defence. The police, thus suppressed the real facts and presented only a coloured version. In support of its case, the prosecution examined sixteen witnesses and filed some documents. In defence, the accused examined three witnesses and also filed some documents. On the conclusion of the trial, the learned Additional Sessions Judge found no substance in the defence version and held that no right of private defence was available to the accused. He found the prosecution version of the incident as true. The charges were, therefore, held established against the three appellants. The appellants were consequently convicted and sentenced as mentioned at the very out-set. 4. In order to properly deal with the contentions raised by the learned counsel for the appellants, it would be proper first to notice the injuries found on the person of the accused/appellants. Doctor Jai Kishan (PW 7), in his cross-examination deposed that he examined the injuries of the appellants on November 30, 1980 i.e. after their arrest, and found the following:- On the person of Vaidhyanath:- 1. Abrasion and diffused swelling around it 1/4" x 1/4" on dorsal surface of left palm 1" below the left ring finger. 2. Bruise1/2" x 1/2" right side of frontal region of scalp 31/2" above the right eye brow. On the person of Babunath:- 1. Abrasion 11/4" x ⅛" on left check 1" away from left angle of mouth. 2. Diffused swelling and tenderness 1" x 1" central part of scalp at junction of parietal region. On the person of Gangavishan:- 1. Cut wound 3/4" x 1/4" x 1/4" lower part of chin 11/4" below the lower lip. 2. Swelling diffused and tenderness 11/2" x 1" lateral side of right fore-arm at upper part 1" below the right elbow joint. 5. On the person of Gangavishan:- 1. Cut wound 3/4" x 1/4" x 1/4" lower part of chin 11/4" below the lower lip. 2. Swelling diffused and tenderness 11/2" x 1" lateral side of right fore-arm at upper part 1" below the right elbow joint. 5. All the injuries were stated to have been caused by blunt object except the cut wound of accused Gangavishan which was caused by a sharp weapon. The injury reports prepared by Dr. Jai Kishan are Ex. D 4, Ex. P 5 and Ex. D 6. 6. We have heard the learned counsel for the appellants and the learned Public Prosecutor assisted by Mr. D. S. Shishodia-learned counsel for the complainant. We have also gone through the case file carefully. 7. Mr. Singhvi-learned counsel for the appellants did not challenge the incident and perhaps in view of the injuries found on the accused persons would not. In assailing the conviction, Mr. Singhvi raised the following two contentions:- (1) the right of private defence or person was clearly available to the appellants but it was denied to them by the Court below; and (2) the offence resulting from the death of Shivnath does not amount to that of culpable homicide amounting to murder punishable under section 302 IPC. The offence made out does not travel beyond section 326 IPC against the appellants. 8. We will examine these contentions at seriatim taking the question of private defence of person to start with. 9. Mr. Singhvi made strenuous efforts to show that the right of private defence of person was available to the appellants, but it was erroneously denied to them by the trial Court. It was argued that the appellants were going with a loaded bullock-cart from the field of their Dhani through the Katani way. When they reached the place shown by mark `9' in site plan Ex P 2, the deceased Shivnath, his brother Gopanath (PW 10) and his son Suratnath (PW 9) came there armed with Jayee and lathies. These three persons made an onslaught and inflicted injuries to them. As a result the appellants sustained injuries as described in their injury reports Ex. D 4, Ex. D 5 and Ex D 6. Their injuries were not explained by the eye witnesses of the prosecution. These three persons made an onslaught and inflicted injuries to them. As a result the appellants sustained injuries as described in their injury reports Ex. D 4, Ex. D 5 and Ex D 6. Their injuries were not explained by the eye witnesses of the prosecution. The presence of injuries on their person strongly suggests that the eye witnesses have suppressed the truth and have put forward only a truncated version of the incident. It was further argued that when the appellants were assaulted, they counteracted and struck blows to the deceased, his son and brother. Since the complainant party was the aggressor, a right of private defence was clearly available to the appellants. We have examined the contention and find no substance in it. 10. It is true that the appellants have sustained injuries as mentioned in the injury reports Ex D 4, Ex. D 5 and Ex. D 6. But the injuries are of trivial and simple in nature and few in number. There is no rule of universal application that whenever injuries are found on the person of the accused, the prosecution witnesses must furnish an explanation as to how they were received. If the injuries are trivial and insignificant in number, the prosecution is not required to offer an explanation for them as to how they were sustained by the culprits. 11. The essential question is as to which of the parties was aggressor. The number and nature of the injuries sustained by the respective parties is a circumstance certainly to be taken into consideration. As was pointed out in Mangat v. State of Uttar Pradesh, AIR. 1967 Allahabad 204 , if there is a great disproportion between the number of injuries inflicted on the two sides, it certainly indicates that those who have inflicted a larger number of injuries were likely to be the aggressors. The party which is aggressor, generally, comes well prepared and reaps an initial advantage in inflicting blows on those who are unprepared. The deceased, bis son Suratnath and his brother Gopanath received numerous blows by different types of weapons. The deceased sustained as many as twelve injuries. PW 10 Gopanath sustained equal number of injuries where as PW 9 Suratnath sustained three injuries. On the other side, each of the appellants sustained only two injuries. The deceased, bis son Suratnath and his brother Gopanath received numerous blows by different types of weapons. The deceased sustained as many as twelve injuries. PW 10 Gopanath sustained equal number of injuries where as PW 9 Suratnath sustained three injuries. On the other side, each of the appellants sustained only two injuries. When an aggression is made, the affected party, which is assaulted and attacked, is bound to re-act to ward off the aggression and from being further beaten. In that process it is quite possible that the aggressor party may receive insignificants and trivial injuries as were received by the appellant in the instant case. The disproportion between the injuries of the complainant party and those of the appellants strongly suggests that the appellants were the aggressors who inflicted numerous blows of grave nature on the members of the complainant party. 12. Every criminal incident leaves a circumstance here and a circumstance there which tolls the tale. Here in the instant case, the loaded cart of the appellants was found standing at the plate shown by mark 9 in site plan Ex. P2 while they were taking it from their field to their Dhani. If the members of the complainant party were aggressors, in all probabilities, the appellants should have been attacked and assaulted at place 9. But that is not the case of the appellants. The incident took place in the field of Kishannath at place shown by mark A,B,C,D and E m si e plan Ex P 2. There runs a way at the place shown by these points. The members of the complainant party were assaulted and be laboured at these places. That strongly negatives the appellants contention that they were first assaulted and attacked. If the complainant party was the aggressor, as contended by the appellants, the assault and attack on them should have been, in the normal course, at the place where their cart was standing and not in the field of Kishannath. The presence of the appellants loaded camel cart at point 9 and the members of the complainant party being beaten in the filed of Kishannath loudly speak as to which of the parties was aggressor. 13. The circumstances on record show that members of the complainant party were wholly unprepared for attack. Unpreparedness on their part for attack is a strong circumstance to show their nor-aggressiveness. 13. The circumstances on record show that members of the complainant party were wholly unprepared for attack. Unpreparedness on their part for attack is a strong circumstance to show their nor-aggressiveness. After all, requires material to make out a plea of private defence. Simply because the accused received trivial and insignificant injuries, a right of private defence cannot be assumed. A right of private defence cannot be decided merely on conjuctures and surmises or on hypothetical suppositions. There is no rule of law that a right of private defence springs up as soon as the accused shows presence of some trivial, minor or insignificant injuries on their person. No right of private defence of person was available to the accused and it was rightly denied to them by the trial Court 14. Turning to the next question relating to the nature of offence, it was argued by Mr, Singhvi that no offence under section 302, IPC is made out. The relations between the parties may be stern but had not sunk so low as to prompt and stimulate the accused to commit the murder of Shivnath. The accused and the deceased were related to each other, though in some distant degrees. There was no pre-meditation on their part. The circumstances of the case point out that when they saw Shivnath coming in the filed of Kishannath they wanted to teach him a lesson, as he had picked-up quarel with them in the morning when they were taking their cart through his field and the field of Kishannath. It was further argued that Section 34, IPC was wrongly invoked to make all the appellants liable for the death of Shivnath. There was no pre-concert or pre-designed plan to commit the murder of Shivnath. Section 34, IPC therefore, had no appliability. It was argued that the offence made out does not travel beyond section 326, IPC against all the appellants. It was also argued that the deceased had received four injuries on his head by a sharp weapon like Jharbar. Out of them, as per medical evidence, injuries No. 1,2 and 3 were individually sufficient in the ordinary course of nature to cause death. It was also argued that the deceased had received four injuries on his head by a sharp weapon like Jharbar. Out of them, as per medical evidence, injuries No. 1,2 and 3 were individually sufficient in the ordinary course of nature to cause death. Accused Gangavishan had the Jharbar while he inflicted blows to the deceased-victim Gangavishan was, thus, the author of these four injuries on the person of the deceased Even if Section 302, IPC is invoked, it is only accused Gangavishan who can be convicted thereunder and not the remaining two. 15. It was, on the other hand, contended by the learned Public Prosecutor that the assault made on the deceased was joint and concerted. It cab be, therefore, safely inferred that all of them had formed a common intention to kill him. We have taken the respective submission into consideration. 16. The evidence of the ocular witnesses show that accused Gangavishan had a Jharbar, accused Vaidhyanath had a Jayee and accused Babunath had a lathi. The post-mortem report and the medical evidence show that the deceased Shivnath was struck four blows on head by a sharp-edged weapon. These four injuries were, therefore, not caused by a lathi or a Jayee. it may also be mentioned that the Jayee is a pointed weapon and docs not cause an incised wound. It causes only a punctured wound. In these circumstances, it can be said without any hesitation that it was accused Gangavishan who had struck the four blows on the head of the deceased-victim with a Jharbar. The Jhaibar is a weapon having a sharp-edged blade. Dr. Jai Kishan (PW 7) stated that the deceased had died on account of head injuries, that is to say, the injuries inflicted by accused Gangavishan. The doctor further admitted in his cross-examination that injuries No. 5 to 12 found on the victims dead body (which include the punctured wounds caused by Jayee, bruises and abrasions caused by lathi) were not sufficient in the ordinary course of nature to cause death. 17. Since the first four injuries on the head of the deceased-victim, out of which three were individually sufficient in the ordinary course of nature to cause death, were inflicted by accused Gangavishan, his case comes within the ambit of Clause 3rdly of Section 300 IPC. He has, therefore, no escape from his conviction under section 300 IPC. 18. 17. Since the first four injuries on the head of the deceased-victim, out of which three were individually sufficient in the ordinary course of nature to cause death, were inflicted by accused Gangavishan, his case comes within the ambit of Clause 3rdly of Section 300 IPC. He has, therefore, no escape from his conviction under section 300 IPC. 18. As regards the remaining two accused, Vaidhyanath and Babunath, the pertinent question is whether their conviction under section 302, IPC with the and and applicability of Section 34 is proper. The existence of the common intention shared by the persons is, on the ultimate analysis, a question of fact. Section 34, IPC requires that the criminal act must be committed in furtherance of the common intention. Generally, direct evidence relating to common intention is seldom available. It is a question of inference from the circumstances as to whether the criminal at was committed in furtherance of the common intention of all. The common intention should be to commit the particular offence and not that which was likely to be committed. 19. In Hardeo Singh v. State of Punjab, 1975 CR.I.R.(SC) 95 , it was observed that the common intention must be to commit particular crime and not any offence that may have resulted. 20. If there is no common intention, all the persons attacking cannot be convicted of murder, in such a case, person actually committing the particular offence will be guilty of that offence. It is the individual act which will count in such a case. Here in the instant case, there was no pre-meditation or pre-arranged plan to commit the murder. It was perchance that the appellants, while taking the loaded camel cart to their house, noticed the deceased coming in the field of Kishannath. Accused Vaidhyanath and Babunath had Jayee and lathi which are ordinary agricultural implements. They caused simple injuries on non-vital parts of the deceased which were not sufficient to cause death. There is, thus, no material that the appellants had formed the common intention to commit the murder of Shivnath. The common intention required was to commit the murder of Shivnath and that common intention is completely missing Section 34, IPC requires that the common intention of one to commit the particular offence should be shared by the other. There is, thus, no material that the appellants had formed the common intention to commit the murder of Shivnath. The common intention required was to commit the murder of Shivnath and that common intention is completely missing Section 34, IPC requires that the common intention of one to commit the particular offence should be shared by the other. The circumstances in the instant case do not permit us to infer that accused Vaidhyanath and Babunath had shared the common intention with accused Gangavishan to commit the murder of Shivnath. We are therefore, unable to maintain the conviction of the appellants Vaidhyanath and Babunath under section 302 With the aid and appliance of section 34 IPC. The circumstances point out that the common intention of the culprits was to give a good thrashing and beating to the deceased-victim. These two appellants, therefore, can be safely convicted under section 326/34, IPC. 21. We have held above that it is the accused Gangavishan who caused three injuries on the head of the deceased with the sharp weapon Jharbar, each of which was sufficient in the ordinary course of nature to cause death. His conviction should have been, therefore, simplicitory under section 302 instead of 302/34, IPC. There is no legal bar in converting his conviction under section 302/34, into the one under section 302, IPC. 22. In the result, the appeal of accused Gahgavishan is dismissed. His conviction and sentence are maintained though with a slight modification that his conviction under section 304/34 is converted into the one under section 302, IPC. The appeal of accused Vaidhyanath and Babunath is party allowed. Their conviction and sentence under section 302/34, IPC are set-aside and instead they are convicted under section 326/34, IPC in respect of the death of Shivnath. Each of them is sentenced to three years rigorous imprisonment. Their conviction and sentence for the remaining offences are maintained. Substantive sentences shall run concurrently. They are on bail. In case they have not served out the full term of their sentence, they will surrender before the learned Additional Sessions Judge, Nagaur to serve out the unexpired portion of their sentence. In case they fail to do so, the learned Additional Sessions Judge shall cause them arrested and send them to jail for the aforesaid purpose. 23. The appeal is accordingly disposed of in the manner indicated above.Appeal partly allowed. *******