JUDGMENT 1. - Since the both the appeals are directed against one and same judgment of the learned Sessions Judge, Jalore dated 11-1-82, they were heard together and are disposed of by a common judgment. By the impugned judgment, (1) accused Chela was convicted under Section 302, Indian Penal Code and sentenced to life imprisonment with a fine of Rs. 200/-, (2) accused Gena was convicted under Section 326, Indian Penal Code and sentenced to three years' rigorous imprisonment with a fine of Rs. 200/-; and (3) accused Mala and Gulaba were convicted under Section 323, IPC, but instead of being at once sentenced to any punishment, were released on probation of good conduct. Accused Gena, Mala and Gulaba were acquitted of the offence under Section 302/34, IPC. Accused Chela and Gena have come-up in appeal and challenged their conviction. Aggrieved against the judgment of the acquittal of Gena, Mala and Gulaba from the offence. Under Section 302/34, IPC. The State has, also, come-up in appeal. 2. The prosecution case is short and simple and may briefly be summarised as under: PW 2 Smt. Raji and PW 3 Sultana are parents of the deceased-victim Karmi. aged about 22 years at the time of his murder. Accused Gena, Gulaba and Mala are sons of accused Chela. The parties are residents of village Karola-ka-Golipa, Police Station, Sanchore, District Jalore. The relations between PW 3 Sultana and the accused persons were not happy. It resulted in some criminal cases between them. After sun-rise on 11th July, 1981, PW 2 Smt. Raji, PW 3 Sultana and the accused Karmi were going in a bullock-cart from their Dhani to their field to sow the crop. Sultana and the deceased were sitting in the cart while Smt. Raji was corning behind on foot. When they reached near the field of Jhoga Kalbi, accused Chela, Gena, Gulaba and Mala came there together. Accused Chela bad a Dhariya, Gena had an axe while Mala and Galaba had lathis. They pulled-down Karmi from the bullock-cart. Accused Geniya struck a blow with his axe, which hit on the right index finger of Karmi. Accused Cheliya struck a blow of his Dhariya on the right side of Karmi's head. Karmi fell down. Thereafter all the four accused started jointly beating him. Sultana raised cries. Hearing his cries, PW 1 Dargaram and PW 4 Joga rushed to the spot. Accused Cheliya struck a blow of his Dhariya on the right side of Karmi's head. Karmi fell down. Thereafter all the four accused started jointly beating him. Sultana raised cries. Hearing his cries, PW 1 Dargaram and PW 4 Joga rushed to the spot. They intervened and rescued Karmi The accused thereafter retreated and vent away. Darga Ram, Joga and Mst. Raji took Karmi in a tractor to Government Hospital, Sanchore. Karmi was admitted there for treatment. PW 7 Dr. ML Jain gave him treatment and addressed letter Ex. P 6 to the police. PW 12 ASI Ranchchod Singh, on receiving letter Ex. P 6, went to the hospital. Karmi was lying unconscious there. PW 4 Joga presented typed report Ex. D 2 to the Investigating Officer (here in the hospital. The police registered a case under Sections 307 & 326, IPC. The investigation was taken-up. Despite treatment, Karmi did not survive and breathed his last at about 12.00 p m. on July 11, 1981 The police added Section 302, Indian Penal Code during investigation. PW 12 Ranchor Singh prepared the inquest report of the victim's dead body. He also inspected the site and prepared the site-plan. The blood stained clothes of the deceased were seized and sealed. The post-mortem examination on Karmi's dead body was conducted at about 2.00 p.m. on July 11, 1981 by Dr. Jain PW 7. The doctor noticed the following ante-mortem injuries over the dead body:External (i) Incised wound with clotted blood 3" x 1" x 3" brain matter deep, placed obliquely on the left occipital region of scalp extending from middle and upper part of occipital bone to the pinna of ear, appearing end of the wound was on the back of pinna of left ear at the level of upper one third and lower two third region and wider end of the wound was on the mid-occipital region left side The shape of the wound was spindle like. There was a fracture of occipital bona of left side exactly in the wound; (ii) Incised wound with clotted blood 3/4" x 1/2" x bone deep on the distal phalynx region of outer aspect of little finger of right hand with simple fracture a distal phalynx bone of the finger. The finger was cut completely and hanging from the skin margin only; (iii) Lacerated wound 1 c.m. x 3/4 cm. The finger was cut completely and hanging from the skin margin only; (iii) Lacerated wound 1 c.m. x 3/4 cm. x skin deep on the dorsal aspect of 4th finger of right hand on distal phalynx region in the middle; (iv) Contusion 1" x 3/4" on the dorsal aspect of left wrist joint on outer aspect; (v) Contusion 10" x 1" vertically and slightly obliquely on the left supra scapular region in its middle extending from supra scapular region to downwards towards back; (vi) Contusion 4" x 1" obliquely on the right scapular region in its lower part in middle at the level of inferior scapular angle; Internal (i) Scalp, skull and Vertibrae--Compound fracture of left occipital bone of scalp and skull in relation to injury No. 1 of size 2.5" x 1" bone cut, which was felt manually. Vertebrae healthy; (ii) Membrane--Ruptured in the wound No 1 and fracture of scalp and skull; (iii) Brain and spinal cord--Brain lacerated in relation to injury No. 5 and coming out of the wound; (iv) Thorax, Valves, ribs, cartilages, pleurea larynx and trachea, paricardium were healthy. Lungs healthy, pale and white. Heart was healthy. Right side was full, left side was empty. Large vessels were healthy, except vessels cut in relation to injury No. 1; (v) Abdomen--Mouth, pharynx and oesophagus were having clotted blood. Large and small intestines were healthy, balooned up and full geses. Liver, spleen, kidneys were congested, Bladder was empty. Valves, paritonlum and organs of generation (external and internal) were healthy; (vi) Muscles, bones and joints--Healthy except as mentioned in previous respective columns. 3. In the opinion of Dr. Jain the cause of death of the victims was shock and haemorrhage due to injuries to the scalp, skull and vittal parts of the brain. The post-mortem examination report is Ex. P 9. The accused were arrested and in consequence of the informations furnished by them, lathis, Dhariya and axe were recovered. The weapons and the clothes of the deceased were sent for chemical examination. Blood was detected on most of them. On completion of investigation, the police presented a crime report against four accused Chela, Gena, Mala & Gulaba in the Court of the Munsif-cum-Judicial Magistrate, Sanchore, who, in his turn, committed the case for trial to the Court of Sessions. The learned. Blood was detected on most of them. On completion of investigation, the police presented a crime report against four accused Chela, Gena, Mala & Gulaba in the Court of the Munsif-cum-Judicial Magistrate, Sanchore, who, in his turn, committed the case for trial to the Court of Sessions. The learned. Sessions Judge framed a charge under Section 302, Indian Penal Code against accused Chela and under Sections 302/34, Indian Penal Code against the remaining three Gena, Gulaba and Mala. The accused pleaded not guilty and claimed to be tried. They denounce the whole prosecution story and pleaded innocence. According to them, they were falsely implicated as their relations with the deceased and his family were not happy. In support, of its case, the prosecution examined twelve witnesses and filed some documents. In defence, the accused adduced no evidence. Out of the twelve witnesses examined by the prosecution, PW 1 Dargaram, PW 2 Smt. Raji, PW 3 Sultana and PW 4 Joga have claimed to have seen the incident. The learned Sessions Judge accepted their evidence and treated them as witnesses of truth. The learned Sessions Judge was, however, of the opinion that no case for the applicability of Section 34, Indian Penal Code was made out against accused Gena, Mala and Gulaba. He took that accused Chela was the author of the fatal blow inflicted on the deceased Karmi. It was the individual act of accused Chela. The accused had formed no common intention to commit the murder of Karmi. As such accused Gena, Mala and Gulaba could not be convicted under Section 302/34 IPC. He further held that accused Gena had inflicted a grievous injury on the right index finger of Karmi with his axe. Accused Gulaba and Mala had struck blows with their Lathis to Karmi. Thus, each accused was held responsible for his individual act. The four accused were, therefore, convicted and sentenced as mentioned at the very out-set. 4. We have heard Mr. Mridul Jain for the accused persons and the learned Public Prosecutor Mr. R.K. Soni. We have also gone through the case file carefully. 5. Keeping in view the direct, positive and unimpeached evidence of the four eye witnesses PW 1 Dargaram, PW 2 Smt. Raji, PW 3 Sultana and PW 4 Joga, Mridul Jain did not challenge the incident. Mridul Jain for the accused persons and the learned Public Prosecutor Mr. R.K. Soni. We have also gone through the case file carefully. 5. Keeping in view the direct, positive and unimpeached evidence of the four eye witnesses PW 1 Dargaram, PW 2 Smt. Raji, PW 3 Sultana and PW 4 Joga, Mridul Jain did not challenge the incident. He has confined his contentions only on two matters namely: (1) accused Gena was wrongly convicted under Section 326, IPC. The evidence of the eye witnesses that he struck a blow on the right index finger with his axe is shaky. The medical evidence contradicts what they stated against accused Gena; and (2) the offence made out against accused Chela does not come within the ambit of Section 302, IPC. The offence does not travel beyond Section 304 Part-II, IPC. 6. On the other, the learned Public Prosecutor has challenged the finding of the trial court that no case for the applicability of Section 34, Indian Penal Code was made out. It was argued that all the four accused persons came together, pulled down Karmi from the bullock-cart and made a joint and concerted attack on him. They retreated together. The manner in which Karmi was assaulted and belaboured shows that the accused had formed a common intention to commit his murder and his murder was committed in furtherance of that common intention. We have taken the respective contentions into consideration. 7. We will first take the case of accused Gena. He had been convicted under Section 326, Indian Penal Code because according to the eye witnesses he had an axe. He struck a blow with his axe on the right hand of Karmi. It resulted in the fracture of distal phalynx bone of his little finger. It was argued by Mr. Jain that Dr. Jain PW 7 has clearly admitted in his cross-examination that this injury on the right little finger of Karmi could not be caused by an axe because of the width and length of its blade. We have no reasons to distrust the opinion of Dr. Jain, ft appears that when Karmi was pulled-down from the bullock-cart and accused Chela lifted his Dhariya to strike the blow. Karmi raised his hands & placed them on his head to protect it. Accused Chela struck a blow with his Dhariya on the head of Karmi. We have no reasons to distrust the opinion of Dr. Jain, ft appears that when Karmi was pulled-down from the bullock-cart and accused Chela lifted his Dhariya to strike the blow. Karmi raised his hands & placed them on his head to protect it. Accused Chela struck a blow with his Dhariya on the head of Karmi. Since Karmi had placed both his hands on the head to protect it, the blow of the Dhariya cut his little finger & caused serious injury to his head, which ultimately resulted in his death. Dr. Jain stated that injuries Nos. 1 & 2 could be caused by a single blow. The probability, therefore, is that Karmi raised his hands, placed them on his head and accused Chela struck a blow to him on his head with his Dhariya, as a result, the right little finger of Karmi was cut. The averment of the eye witnesses that accused Gena struck a blow with his axe to Karmi does not appear to be true. We are, therefore, unable to maintain his conviction under Section 326, IPC. 8. As regards the second contention that the offence made out against accused Chela does not come within the ambit of Section 302, IPC, it was argued by Mr. Jain that only one blow was inflicted to the deceased-victim by accused Chela with his Dhariya. The relations between the parties, though were not happy, but not sunk deep low so as to prompt accused Chela to commit Karmi's murder. It was argued that it is a case of single injury without any repetition of blows. In these circumstances, the offence made out against accused Chela does not travel beyond the second Part of Section 304, IPC. In support of his contention, Mr. Jain relied upon Illie v. Iliahi Bux and Mohan v. State of Rajasthan 1987 Cr. LJ 175 and the numerous cases cited in it. We have given our utmost consideration to the submission of Mr. Jain and we are unable to agree with him. 9. We have gone through the decisions relied upon by Mr. Jain and are of the opinion that they can be easily distinguished. When the incident takes place at the spur of moment on insignificant matters or where the intentional injury is not inflicted the case may take the shape of the offence of culpable homicide not amounting to murder. 9. We have gone through the decisions relied upon by Mr. Jain and are of the opinion that they can be easily distinguished. When the incident takes place at the spur of moment on insignificant matters or where the intentional injury is not inflicted the case may take the shape of the offence of culpable homicide not amounting to murder. Here in the instant case, accused Chela had a Dhariya. It is in the knowledge of every body that Dhariya, is a dangerous weapon which can be easily wielded for deadly results. Accused Chela struck a blow of his Dhariya with such force and the impact of it was so great that it cut the right little finger of Karmi and thereafter caused compound fracturer of the occipital bone of Karmi. It does not appear that injury No. 1, which was on the head of Karmi, was not caused intentionally. It further does not appear that it was caused accidentally. Injury No. 1 was inflicted by accused, Chela intentionally. Dr. Jain has stated that injury No. 1 was sufficient in the ordinary course of nature to cause death. The requirements of clause 3rdly of Section 300 Indian Penal Code and the offence made out is that of culpable homicide amounting to murder. Here in the instant case, both these elements are present. As such, we are unable to accept the contention of Mr. Jain that the offence made out amounts only to culpable homicide not amounting to murder. In our opinion, the learned Sessions Judge was perfectly justified in convicting accused Chela for the offence under Section 302, IPC, His conviction under Section 302, Indian Penal Code is proper and calls for no interference. 10. Coming to the appeal filed by the State, it was argued by the learned Public Prosecutor that the four culprits had come together pulled-down Karmi from the bullock cart and thereafter made a joint and concerted attack on him These facts are sufficient to apply Section 34, Indian Penal Code and to come to the conclusion that the culprits had formed a common intention to commit the murder of Karmi and his murder was committed in furtherance of this common intention. We have examined the submission of the learned Public Prosecutor and are unable to accept his submission. We have examined the submission of the learned Public Prosecutor and are unable to accept his submission. If the accused had formed the common intention to commit the murder, it was expected that accused Gena, Gulaba and Mala would have struck severe blows to the victim We, have held that Gena did not cause any injury to the deceased. Accused Gulaba and Mala were young-lads at the time of the incident. They merely accompanied their father (accused Chela). When it is doubtful whether Section 34, Indian Penal Code can be applied or not, the safe rule is not to invoke it. In our opinion, the learned Sessions Judge was correct in not applying Section 34, Indian Penal Code against accused Gena, Gulaba and Mala. The State appeal must, therefore, fail. 11. In the result: (1) the appeal of accused Chela is dismissed. His conviction and sentence under Section 302, Indian Penal Code are maintained; (2) the appeal of accused Gena is allowed. His conviction and sentence under Section 326, Indian Penal Code are set-aside and he is acquitted; (3) the State appeal against the acquittals of accused Gena, Mala and Gulaba from the offence under Section 302/34, Indian Penal Code is dismissed; (4) accused Gena. Gulaba and Mala are already on bail and need not surrender. Their bail bonds shall stand cancelled. 12. The appeals shall stand accordingly disposed of.Order accordingly. *******