BYAS, J.—Since these three appeals one represented and the two through jail - are directed against one and the same judgment of the learned Additional Sessions Judge, Rajsamand dated November 24, 1980, they were heard together and are disposed of by a single judgment. By the impugned judgment, accused Issaq Mohammad was convicted under section 302, I.P.C. while accused Mohammad Safi was convicted under section 302/34, I.P.C. and each was sentenced to imprisonment for life with a fine of Rs. 501/-, in default of the payment of fine to further undergo six months rigorous imprisonment. Accused Issaq Mohammad was further convicted under sec. 324, I.P.C. and sentenced to one years rigorous imprisonment. The accused have come-up in appeals and challenge their conviction. 2. Succinctly stated, the prosecution case is that Munti Meerasi - the deceased-victim, aged about 25 years R/o Mandsor (M.P.) was married to Smt Firoza of village Jagpura district Udaipur (Rajasthan). The appellants, who are real brothers inter se, are residents of Ratlaam (M.P.) and are maternal uncles of Smt. Firoza. Smt. Firoza remained with her parents at Jagpura and was reluctant to live with her husband at Mandsor. PW 6 Farooq is a resident of Mandsor and was a friend of the deceased Munti. Farooq has same relatives at Jagpura. 3. A few days before December 30, 1979, PW 6 Farooq, his father Nabar Khan (PW 7) and other inmates of their family alongwith deseased Munti came to attend some Urs in Kapasan in district Chittorgarh. After attending the Urs-at Kapasan, all of them went to Jagpura on December 30, 1979 in connection with condolences of the death of some relative of Nabar Khan. They stayed at the house of one Mehtab Khan. At about 8.00 p.m. on the same day, Farooq and Munti went to the shop of PW 9 Mubarak Khan and purchased Biris from there. While both of them were returning together from the shop of Mubarak Khan and reached near the mosque, the two accused suddenly appeared there. Accused Mohammed Safi caught hold of Munti, abused him and told him as to why he had come there. Accused Issaq Mohammad took out a Gupti from the pocket of his pants and plunged it into the chest of Munti. PW 6 Farooq tried to intervene and rescue Munti. Accused Mohammed Safi caught hold of Munti, abused him and told him as to why he had come there. Accused Issaq Mohammad took out a Gupti from the pocket of his pants and plunged it into the chest of Munti. PW 6 Farooq tried to intervene and rescue Munti. Accused Issaq Mohammad struck a blow of his Gupti on the stomach of Farooq, which resulted in a slight injury. Accused Mohammad Safi gave a bite on the wrist of Farooq. Munti fell down with profuse bleeding from his wound. He staggered a few steps and fell down. He did dot survive and passed away instantaneously. Both the accused harriedly sped away. Many persons collected on the spot. The incident was seen by PW 8 Aziz Khan. The villagers, who collected on the spot, ran after the accused and found them in the house of Firozas parents. They detained them at some place in the village. Saqoor (PW D, who also reached the spot, immediately left the village, reached police station, Railmagra at about 3.00 a.m. (on December 31, 1979) and presented written report EX. P. 1 of the occurrence. The police registered a case and swung into the investigation. The Station House Officer Ganpat Singh (PW 12) arrived on the spot, inspected the site and prepared the site plan as well as the site inspection memo. He prepared the inquest report of the victims dead body. He also seized the blood stained soil from the place of the incident. The postmortem examination of the victims dead body was conducted at about 10.00 on December 31, 1979 by PW 6 Dr. S.N. Sharma - the then Medical Officer, Primary Health Centre, Railmagra. The doctor noticed the following ante-mortem injuries over the victims dead body:- "Incised penetrating wound, the depth of the wound was greatest of all the three dimensions, Diameter of the wound was less than that of the weapon. Edges clean and retarcied; shape fusitaren; size 1" x 3" on 4th, 5th and 6th rib left side-" In the opinion of Dr. Sharma, the cause of death of Munti was severe haemorrhage leading to shock due to penetrating injury to vital organ and due to circulatory failure. The post-mortem examination report prepared by him is EX.P 12. The accused were arrested and in consequence of the information furnished by accused Issaq Mohammad, Gupti and its wooden case were recovered. Sharma, the cause of death of Munti was severe haemorrhage leading to shock due to penetrating injury to vital organ and due to circulatory failure. The post-mortem examination report prepared by him is EX.P 12. The accused were arrested and in consequence of the information furnished by accused Issaq Mohammad, Gupti and its wooden case were recovered. The bloodstained clothes of the deceased-victim were also seized and sealed. On the completion of the investigation, the police submitted a challan against the appellants in the Court of the Munsif cum Judicial Magistrate, Railmagra, who, in his turn, committed the case for trial to the Court of Additional Sessions Judge, Rajsam-and. The learned Sessions Judge framed a charge under sections 302 and 307. I.P.C. against accused Issaq Mohammad and under section 302/34, I.P.C. against accused Mohammad Safi, to which they pleaded not guilty and faced the trial. In support of its case, the prosecution examined twelve witnesses and filed some documents. In defence, the accused examined two witnesses. According to the defence witnesses, Munti gave two or three slaps to accused Issaq Mohammad. Issaq Mohammed took to heels. Munti ran after him. He had a Gupti in his hand. Munti slipped away in the mud and thus sustained an injury on his chest. It resulted in his death. On the conclusion of the trial, the learned Additional Sessions Judge found the prosecution story substantially true and the charges duly established against the appellants. He found no substance or merit in the defence put forward by the accused. The accused were consequently convicted and sentenced as mentioned at the very out-set. 4. We have heard Mr. J. L. Daga — learned counsel for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully. 5. Mr. Daga did not challenge the testimony of PW 5 Dr. S. N. Sharma relating to the cause of death of Munti. We have also gone through the testimony of Dr. Sharma and find no reasons to distrust his opinion. Since his testimony has not been assailed before us, we need not touch his evidence in details. Suffice it to say that the death of Munti was homicidal and not natural. 6. Before we take-up the contention of Mr. We have also gone through the testimony of Dr. Sharma and find no reasons to distrust his opinion. Since his testimony has not been assailed before us, we need not touch his evidence in details. Suffice it to say that the death of Munti was homicidal and not natural. 6. Before we take-up the contention of Mr. Daga, we may point out that the prosecution has examined three eye witnesses, viz., PW 2 Bashir, PW 6 Farooq and PW 8 Aziz Khan, each of whom has claimed to have seen the incident. The learned Sessions Judge accepted each of them as a witness of truth and on the strength of what they testified, held the charges proved against the accused. 7. In assailing the conviction of the appellants, the first contention raised by Mr. Daga is that the above three persons have been falsely inducted as ocular witnesses. None of them was present on the scene of the incident. Their claim to have seen the incident is wholly unfounded and untrue. In order to properly appreciate the contention, it would be proper to read their statements. 8. PW 6 Farooq, describing the background of the incident, stated that at about 8.00 p.m. on the day of the incident, he and the deceased went to the shop of Mubaraq (PW 9) and purchased Biris. While they were returning toge- ther and reached near the mosque, the two accused suddenly appeared, Accused Mohammad Safi caught the Giradhan (collar of the shirt) of Munti, abused him and told him as to why he had come there. Accused Issaq Mohammad took out the Gupti from the pocket of his pants and plunged it into the chest of Munti. Munti raised cries. There was profuse bleeding from his wound. The witness further added that when he tried to rescue Munti, accused Issaq Mohammad struck a blow on his stomach with his Gupti, resulting in a slight injury. Accused Mohammad Safi gave a bite on his right wrist. Thereafter the accused harriediy ran away. Munti staggered a few steps and fell down. He passed away instantaneously. Many persons collected on the spot and they ran after the accused. PW 8 Aziz Khan deposed that at about 8.00 p.m. on the day of the incident, he was going from his house to the mosque. Thereafter the accused harriediy ran away. Munti staggered a few steps and fell down. He passed away instantaneously. Many persons collected on the spot and they ran after the accused. PW 8 Aziz Khan deposed that at about 8.00 p.m. on the day of the incident, he was going from his house to the mosque. When he reached near the mosque, he saw that accused Mohammed Safi caught hold of Munti and accused Issaq Mohammad plunged the Gupti in his chest. Both the accused thereafter ran away towards the house of their sister. Many persons of the locality assembled there and they ran after the accused. The accused were caught in the house of their sister. They were brought out and detained by the villagers till the arrival of the police. 9. Both these witnesses were cross-examined at length, but nothing could be elicited which could be of any help to the accused. PW 8 Aziz Khan is not a Mirasi. He is a Mewati. Nothing was suggested in his cross-examination that he was averse to the accused or had a soft corner for the deceased victim. In fact, the deceased and the accused were not residents of village Jagpura. As such, this witness Aziz Khan (PW 8) could have no grievance against the accused or a soft corner for the deceased. His statement could not be shattered or broken in the cross-examination. So also, PW 6 Farooq is not expected to falsely induct himself as a witness of the incident. No doubt, the deceased Munti was his friend, but that alone is not sufficient to discard what he testified on oath against the accused. He had no ill-will or quarrel with the accused and it is inconceivable that he would depose to falsely implicate them on a grave charge of murder. He is an injured witness, injury on his stomach and tooth-bite on his wrist were found when he was examined by Dr. S.N. Sharma, vide injury report EX. P. 13. His presence on the spot is, therefore, not open to any suspicion. 10. The names of both these witnesses, viz , PW 6 Farooq and PW 8 Aziz Khan, have been mentioned in the first information report EX. P. 1, which was lodged promptly without any delay. The testimony given on oath is presumed to be true unless there is something inherently improbable to disbelieve it. Mr. 10. The names of both these witnesses, viz , PW 6 Farooq and PW 8 Aziz Khan, have been mentioned in the first information report EX. P. 1, which was lodged promptly without any delay. The testimony given on oath is presumed to be true unless there is something inherently improbable to disbelieve it. Mr. Daga could not point out any infirmity or flaw which may make their testimony unworthy of belief or credence. The testimony of Mubarak Khan (PW 9) affords a corroboration to the testimony of PW 6 Farooq. He deposed that the deceased Munti and Farooq had come to his shop at about 7.30 p.m. on the day of the incident and purchased Biris. Both of them went together from his shop and after some-time, he heard that Munti was stabbed to death and his dead body was lying in the mud. Taking all these factors together into consideration, we are unable to agree with Mr. Daga that both these witnesses had not seen the incident and that they have been falsely inducted as ocular witnesses. The trial Court accepted them as witnesses of truth and after a close scrutiny of what they testified, we are unable to take a different view. From what they testified, it can be held without any hesitation that when the deceased Munti and PW6 Farooq were returning from the shop of Mubarak (PW 9) and reached the mosque, the two accused suddenly appeared there. Accused Mohammad Safi caught the collar of the shirt of Munti and accused Issaq Mohammed plunged the Gupti in his chest, resulting in the instantaneous death. 11. As regards PW 2 Bashir, it was argued by Mr. Daga that in his statement EX. D 1, recorded under section 161. Cr.P.C. during trial, he did not state that he had seen the incident. In Ex. D 1, he simply stated that he saw the two accused Issaq Mohammad and Mohammad Safi running and Farooq (PW 6) raising the cries, Munti was lying in the mud with a wound on his chest, from which blood was emitting out. It was argued that the witness had later-on, during trial, introduced himself as a witness of the incident. The contention of Mr. Daga is not without force. The witnesses was confronted with his statement EX. It was argued that the witness had later-on, during trial, introduced himself as a witness of the incident. The contention of Mr. Daga is not without force. The witnesses was confronted with his statement EX. D1 and he could not explain as to why he had not stated in it that he had seen the incident, that is to say, accused Mohammad Safi catching hold of Munti and accused Issaq Mohammed plunging the Gupti in his chest. As he had not disclosed to have seen the incident in his statement EX. D 1, his statement during trial that he had seen the incident dies down and cannot be accepted. However, this does not be little or diminish the value of the direct testimony of PW 6 Farooq and PW 8 Aziz Khan. 12. It was next argued by Mr. Daga that the two eye witnesses have not explained the injuries of the appellants. When the appellants were arrested, injuries were found on their person. The medical examination of their injuries was conducted by PW 5 Dr. Sharma. Injuries mentioned in EX. D 3 were found on the person of accused Issaq Mohammad and injuries mentioned in EX. D 4 were found on the person of accused Mohammad Safi. It was urged that the silence on the part of the eye witnesses about the injuries on the person of the appellants make their testimony suspicious and dubious. This silence shows that they have concealed the truth and have not stated the true version of the incident. 13. We find no force in the contention of Mr. Daga, PW 6 Farooq and PW 8 Aziz Khan were not cross-examined and no questions were put to them about the injuries of the accused. No suggestion was thrown to them in cross-examination that the accused were assaulted and injuries were caused to them by the deceased or PW 6 Farooq. In their statements recorded u/s 313, Cr.P.C. the accused did not state that they were assaulted and belaboured by Munti or PW 6 Farooq. On the contrary accused Issaq Mohammad stated in reply to question No. 11 that the villagers caught him and his brother (Mohammad Safi) in a cote (Bara) and beat them. Issaq Mohammed further stated in his statement that the deceased Munti struck a blow to him with his Gupti. But that is not borne-out by the medical evidence. On the contrary accused Issaq Mohammad stated in reply to question No. 11 that the villagers caught him and his brother (Mohammad Safi) in a cote (Bara) and beat them. Issaq Mohammed further stated in his statement that the deceased Munti struck a blow to him with his Gupti. But that is not borne-out by the medical evidence. In his injury report EX. D 3, the injuries found on his body were opined to have been caused by some blunt object. Abrasions and contusions were found on his body. No penetrating wound was found. As such, his statement that he was struck a blow with a Gupti by Munti is wholly untrue and incorrect. It appears that both the accused persons, after committing the murder of Munti, took shaker in the house of their sister (Firozas mother), the villagers caught them there and gave them the beating. It is how they sustained some injuries. Accused Mohammad Safi, in his statement, did not state that he was assaulted and belaboured. He denied his presence on the scene of the occurrence. Taking all these factors into consideration, especially the fact that the two eye witnesses were not cross-examined and were not called upon to explain the injuries on the person of the accused persons, the non-explanation of the injuries on the person of the accused persons by the eye witnesses has no bearing. 14. It was next urged by Mr. Daga that the appellants were assaulted and belaboured by the deceased and PW 6 Farooq, as a result of which they sustained injuries. A right of private defence of person was, thus, available to them, but it was wrongly denied by the trial court. The contention is bizarre and barren of force, we have held above that the appellants sustained injuries on account of beating given to them by the villagers after when they had taken shelter in the house of their sister. There is no material on record to suggest even that the deceased Munti and PW 6 Farooq had any sort of weapon with them at the time of the incident. No suggestion was put to the eye witnesses that the appeallants acted in self defence. Even in their statement recorded under section 313, Cr.P.C., none of them raised the plea of private defence. An accused, of course, can take alternate and even inconsistent defences. No suggestion was put to the eye witnesses that the appeallants acted in self defence. Even in their statement recorded under section 313, Cr.P.C., none of them raised the plea of private defence. An accused, of course, can take alternate and even inconsistent defences. He can deny that he committed the acts alleged against him and at the same time it is open to him to state that if he did the act, he acted in his right of private defence. But then there should be material on record in support of the plea of right of private defence. The accused can show from the prosecution evidence and other material that he acted in private defence. Here in the instant case, as we have discussed above, the injuries to the appellants were caused not by the deceased or PW 6 Farooq, but by the villagers. There is, thus, no material on record to show that the accused acted in their right of private defence. Merely because injuries were found on their person, it cannot be assumed that they were caused in the incident, especially when there is material to the contrary. We have, therefore, no hesitation in rejecting the contention of Mr. Daga that the Court below wrongly turned down the plea of private defence. 15. The next contention of Mr. Daga relates to the nature of offence made out from the established facts. It was argued that the appellants and the deceased Munti suddenly met near the mosque. There was no pre meditation or intention on the part of the appellants to commit the murder of Munti. It was at the spur of the moment that the incident took place. Accused Issaq Mohammad caused only one injury to the deceased. In these circumstances and especially when there was no intention to kill, the offence made out does not fall within the ambit of section 302, I.P.C. It was argued that the offence does not travel beyond section 326, I.P.C. Reliance in support of the contention was placed on Hariram v. State of Haryana (1) and Jagtarsingh v. State of Punjab (2). It was, on the other hand, contended by the learned Public Prosecutor that accused Issaq Mohammad plunged the Gupti deep into the chest of Munti causing his instantaneous death. The injury was sufficient in the ordinary course of nature to came death. It was, on the other hand, contended by the learned Public Prosecutor that accused Issaq Mohammad plunged the Gupti deep into the chest of Munti causing his instantaneous death. The injury was sufficient in the ordinary course of nature to came death. The stomach is a vulnerable part of the human body and Gupti is a dangerous weapon. The intention to kill was, thus, there. We have taken the respective submissions into consideration. 16. In Harirams case (supra), there was an altercation between the deceased and the accused. The weapon used was a Jelly. In Jagtarsinghs case (supra) a sudden quarrel on spur of moment arose between the deceased and the accused out of trivial reason. Here in the instant case, the matter is entirely different. There was no altercation between the deceased and the accused nor any sudden quarrel had taken place between them. It is in the knowledge of everybody that chest is the most vulnerable and delegate part of the human body and Gupti is a formidable weapon which can be easily wielded with the deadly results. Accused Issaq Mohammad plunged the Gupti deep into the chest of Munti. Though the doctor was not examined to state as to whether the injury found on the victims chest was sufficient in the ordinary course of nature to cause death, it makes no difference. The injury was caused on the left side of the chest with a sharp-edged instrument, namely, Gupti and the injury was deep penetrating the heart. This sort of injury must be held to be sufficient in the ordinary course of nature to cause death. The case is, thus, covered by clause 3rd of Sec. 300, I.P.C. Moreover, when a man stabs another in a vital part of the body such as the chest with a dangerous weapon like Gupti, he must be held to have intended to cause the death of his victim. In such a case, the person inflicting the wound would be guilty of murder as the act, by which the death is caused, is done with the intention of causing the death. We may refer to Gani Mohammad v. State of Rajasthan (3) on the point. The offence made out is, therefore, of culpable homicide amounting to murder, punishable under section 302, I.P.C. 17. We may refer to Gani Mohammad v. State of Rajasthan (3) on the point. The offence made out is, therefore, of culpable homicide amounting to murder, punishable under section 302, I.P.C. 17. It was lastly contended that accused Mohammad Safi was wrongly convicted under section 302 with the aid of section 34, I.P.C. It was urged that section 34 was wrongly harnessed against him. It was argued by Mr. Daga that accused Mohammad Safi, as per testimony of PW 6 Farooq, merely caught the collar of the shirt of the deceased Munti. He did nothing further. He did not instigate, excite or prompt accused Issaq Mohammad to cause any injury to the deceased. The Gupti was in the pocket of the pants of accused Issaq Mohammad. There is no evidence on record to show that accused Mohammad Safi knew that accused Issaq Mohammad had a Gupti in the pocket of his pants. It was all of a sudden that accused Issaq Mohammad took out the Gupti from the pocket of his pants and thrusted it into the chest of the deceased. There is no material on record to suggest that the accused had formed any common intention to commit the murder of Munti and the murder was committed in prosecution of that common object. The conviction of accused Mohammad Safi under section 302 with the aid and applicability of section 34, I.P.C. is, therefore, not justified. Reliance in support of the contention was placed on Ranapratap v. State of Haryana (4), Shambhu Kuer v. State of Bihar (5), Baba Nand Sharma v. State of Assam (6) and the State of Uttar Pradesh v. Ram Kishan (7). 18. It was, on the other hand, contended by the learned Public Prosecutor that accused Mohammad Safi caught hold of Munti and, thus, rendered him defenceless. It facilitated the stabbing by accused Issaq Mohammad. We have taken the respective submissions into consideration. 19. PW 6 Farooq, who was with the deceased-victim and had seen the entire incident, deposed that accused Mohammad Safi caught the collar of the shirt of the deceased Munti and thereafter accused Issaq Mohammad plunged the Gupti into his heart. The accused were, no doubt, together. In Ranaprataps case (supra), the co-accused held the deceased and, thus, facilitated stabbing by another accused. It was observed by their Lordships:- "No doubt they held the deceased and this facilitated the stabbing by Manmohan. The accused were, no doubt, together. In Ranaprataps case (supra), the co-accused held the deceased and, thus, facilitated stabbing by another accused. It was observed by their Lordships:- "No doubt they held the deceased and this facilitated the stabbing by Manmohan. But there is nothing whatever to indicate that they knew that Manmohan would cause fatal injuries to the deceased, though they must have anticipated that he would cause grievous injuries. It is one of those borderline cases where one may with equal justification infer that the common intention was to commit murder or to cause grievous injury. But the benefit of any such doubt must go to the accused. In the circumstances, we conclude, but not without hesitation, that the common intention of the accused has not been established, beyond reasonable doubt, to be to cause the death of the deceased. But it certainly was to cause grievous injuries to the deceased. The conviction of Ranapratap and Satpal under s. 302 read with s. 34 and the sentence of life imprisonment are therefore set aside and instead they are convicted under s. 326 read with s. 34." 20. In Shambhu Kuers case (supra), one accused caught hold of the deceased and latter suceffied to get himself released. Immediately thereafter the other accused took out a knife and struck blows to the deceased. Their Lordships observed that from these facts it cannot be inferred beyond reasonable doubt that the accused, who caught hold of the deceased, had shared the intention of the other to cause the murder of the deceased. 21. In Baba Nand Sharmas case (Supreme Court), it was observed:- "As regards B, merely because he caught hold of the hands of the deceased, it is difficult to hold that he shared the common intention of the other two accused in causing the death of the deceased. His intention was to join in the commission of the acts by the other two with the intention of getting the deceased assaulted severally with the knowledge that such an assault in all probability and likelihood might result in his death. His participation in the crime, therefore, did not take him to the extent of sharing the common intention to cause murder. His participation in the crime, therefore, did not take him to the extent of sharing the common intention to cause murder. Applying the principle of law under section 34, I.P.C. the case of B can be separated from that of the other two accused and he could be found guilty only under section 304 Part II, as he had intentionally joined in the commission of an act with the knowledge that the assault on the deceased was likely to result in his death." In Ram Kishans case (supra), one the accused caught hold of the deceased and the other caused stab injuries to him. The common intention to cause death was held doubtful and the accused, who caught hold of the deceased was convicted under section 326/34 instead of Section 302/34, I.P.C. 22. In the instant case, accused Mohammad Safi merely caught hold of the collar of the shirt of the deceased Munti. There is no material on record to show that he knew that accused Issaq Mohammad was having a Gupti in the pocket of his pants. There is again no evidence to suggest that accused Mohammad Safi excited, instigated, prompted or exhorted accused Issaq Mohammad to cause injuries to the deceased. Section 34 requires simultaneous consensus on the part of the accused persons. The common intention must be to commit the particular offence. The common intention of one must not only be known to the other but must also be shared by him. In the instant case, from the material on record, it cannot be inferred that the intention of accused Issaq Mohammad to commit the murder of the deceased was known to Mohammad Safi and he had shared that common intention. Merely because he caught hold of the deceased by the collar of his shirt, it cannot be inferred that there was a common intention to commit the murder. The conviction of accused Mohammad Safi under section 302 with the aid of Section 34, I.P.C. is, therefore, not sound. His conviction should be altered to that under section 326/34, I.P.C. 23. As regards accused Issaq Mohammad, it was he who plunged the Gupti deep into the chest of the deceased penetrating his heart. His conviction under section 302, I.P.C. is, therefore, sound and calls for no interference. 24. In the result, (1) the appeal of accused Issaq Mohammad is dismissed. As regards accused Issaq Mohammad, it was he who plunged the Gupti deep into the chest of the deceased penetrating his heart. His conviction under section 302, I.P.C. is, therefore, sound and calls for no interference. 24. In the result, (1) the appeal of accused Issaq Mohammad is dismissed. The conviction and sentence of accused Issaq Mohammad under section 302, I.P.C. are maintained; and (2) the appeal of accused Mohammad Safi is partly allowed. His conviction and sentence u/s 302/34, I.P.C. are set-aside and instead he is convicted u/s 326/34, I.P.C. and is sentenced to the period already undergone by him during investigation, inquiry and trial. He is on bail and need not surrender. His bail bonds shall stand cancelled. 25. The appeals shall stand accordingly disposed of.