JUDGMENT - G.R. MAJITHIA, J.:---The appellants, Prabhu Rama Shinde, and Bhau @ Sudhakar Prabhu Shinde, Original accused Nos. 1 and 2, father and son, respectively were charged for intentionally or knowingly causing death of Shrikant @ Bitu Vasantrao Godase. They were also charged for committing an offence punishable under section 135 of the Bombay Police Act by Joint District Judge Additional Sessions Judge, Solapur, in Sessions Case No. 120 of 1993. The charge having been proved, they were convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and were sentenced to suffer imprisonment for life and to pay a fine of Rs. 100/- each, in default to suffer rigorous imprisonment for one month. They were, however, acquitted of the offence punishable under section 135 read with section 37(1) of the Bombay Police Act. They were allowed the set off under section 428 of the Criminal Procedure Code, by judgment and order dated August 19, 1993. 2. The prosecution story, as has been unfolded by oral and documentary evidence, reads as under:- Appellant Nos. 1 and 2, original accused Nos. 1 and 2, are father and son respectively. They own agricultural land bearing Gat No. 231 situate in village Kurnur, Taluka Akkalkot. The deceased owned land bearing Gat. No. 227. A common bund, which runs north-south, separates these parcels of land. A well in Gat. No. 229 is co-owned by the appellants, the deceased and several other persons including some of the eye witnesses. On the common bund, in between the lands bearing Gat. No. 231 and Gat. No. 227 owned by the appellants and the deceased, respectively, there is a cement pole. The appellants and the deceased had installed electric motors of 5 HP and 3 HP, respectively, on the cement pole. They were getting water from the well in accordance with their respective shares in it. Sharing of the water from the joint well in Gat. No. 229 led to straining of relations between the two families, namely, of the appellants and the deceased. As and when the deceased switched on the electric motor for the supply of well water, the appellants switched off, thereby causing loss to the standing crop in the land of the deceased. No. 229 led to straining of relations between the two families, namely, of the appellants and the deceased. As and when the deceased switched on the electric motor for the supply of well water, the appellants switched off, thereby causing loss to the standing crop in the land of the deceased. About a fortnight prior to the incident resulting in the death of the deceased, there was a quarrel between the appellants and the deceased over sharing of well water. The incident in question took place on February 11, 1993 between 6 to 6.30 p.m. near about the common bund between the land bearing Gat. No 231 and the land bearing Gat. No. 227. It needs to be mentioned that the land comprised in Gat No. 231 is owned by appellant No. 1 and the land comprised in Gat No. 232 is owned by his brother Ganpat Rama Shinde. At about 4.00 p.m., the deceased went to the field. He wanted to water the standing crop of wheat. He switched on the electric motor for receiving water from the common well in accordance with the share for irrigating his wheat crop. At about 6 to 6.30 p.m., the prosecution alleges, both the appellants came to the spot. Appellant No. 1 is alleged to have switched off the electric motor. Resultantly, the deceased could not water his standing wheat crop. Altercation ensued between the appellants and the deceased. PW 6- Bhimrao Jadhav, PW 7- Ashok Birajdar, PW 8- Laxman Dagade and PW 9- Shivaji Shinde were working in their respective fields. They heard the cries of the deceased. They left their respective fields and ran towards the land of the appellants. They were at a certain distance from the appellants and the deceased. They saw that appellant No, 2 had held both the hands of the deceased from his back side with one of his hands and was holding an axe in his other hand. They also saw appellant No. 1 inflicting blows with a sickle on the stomach of Shrikant, the deceased. PWs. 6 to 9 are alleged to have witnessed the infliction of sickle blows on the stomach of the deceased. The deceased cried "MELO" and fell down. PWs. 6 to 9 wanted to intervene and separate the appellants and the deceased. However, appellant No. 1 threatened them of dire consequences if they came forward. PWs. 6 to 9 are alleged to have witnessed the infliction of sickle blows on the stomach of the deceased. The deceased cried "MELO" and fell down. PWs. 6 to 9 wanted to intervene and separate the appellants and the deceased. However, appellant No. 1 threatened them of dire consequences if they came forward. It is alleged by the prosecution that appellant No.1 had snatched the axe from the hand of appellant No.2 and had threatened PWs. 6 to 9 that they should not come forward or else he would see them. The appellants remained at the spot for some time. Thereafter they went away by Palapur Road. After their departure, PWs. 6 to 9 went to the place where the deceased was lying. They saw that the intestine from the stomach of the deceased had come out. The clothes on his person, namely, the underwear and banian were besmeared with blood. Before any help could be offered to him, the witnesses found that the injured Shrikant had succumbed to his injuries. P.W. 6 Bhimrao was requested to report the matter to the Police Patil and Kotwal of village Kurnur. The distance between the field of the appellants and village Kurnur is approximately 4 kms. P.W. 6 went to Police Patil, P.W. 12- Salgare, and disclosed the incident to him. The Kotwal of the village was also apprised of the matter. Mohan Shinde (P.W. 11) was requested to carry the information of the death of Shrikant to his parents who were residing at Akkalkot which is at a distance of 24 kms. from village Kurnur. P.W. 11 left Kurnur on his motor cycle for supplying information to the parents of the deceased. P.W. 11- Mohan Shinde, after conveying the sad news to the parents of the deceased, also went to Akkalkot North Police Station. He conveyed the information to Head Constable Ghadge at about 2.00 a.m. in the night intervening February 11, 1993 and February 12, 1993. The Head Constable made an entry in the Station Diary. The Head Constable also communicated the information to PSI Rajeshirke (PW 17). It appears that PSI Rajeshirke with police party left Akkalkot for Kurnur and reached the place of incident at about 3 to 3.30 a.m. on February 12, 1993. PSI Rajeshirke, on arrival at the spot, saw the dead body lying in the field. The Head Constable also communicated the information to PSI Rajeshirke (PW 17). It appears that PSI Rajeshirke with police party left Akkalkot for Kurnur and reached the place of incident at about 3 to 3.30 a.m. on February 12, 1993. PSI Rajeshirke, on arrival at the spot, saw the dead body lying in the field. PWs 6 to 9 and the Police Patil and the Kotwal of the village were also present by the side of the dead body. PW 6- Bhimrao narrated the entire occurrence to PSI Rajeshirke. The PSI returned to the police station with P.W. 6- Bhimrao at about 5.00 a.m. F.I.R. was registered on the basis of the statement of P.W. 6 and an offence under sections 302, 506 read with section 34 of the Indian Penal Code was registered at Akkalkot (North) Police Station. PSI Rajeshirke took over the investigation. PSI Rajeshirke along with complainant Bhimrao returned to the spot at about 7.00 a.m. He drew inquest panchanama (Ex.9). He sent the body of the deceased with PW 13- Narayankar to the Municipal Dispensary at Akkalkot. The doctor attached to the Municipal Dispensary was also requested to ascertain the cause of death of the deceased and to take his blood samples. The spot panchanama was drawn in the presence of two panchas. PSI Rajeshirke collected earth stained with blood and ordinary earth, and seized a white Nehru Shirt, a white pant and a pair of slipper, etc. under seizure panchanama, Ex. 21. PSI Rajeshirke deputed a Head Constable and certain Constables to arrest the appellants. Appellant No. 1 was arrested on February 12, 1993 at about 4.15 p.m. and appellant No. 2 was arrested on February 13, 1993 at about 10.00 p.m. appellant No. 1 at the time of his arrest was wearing a shirt and Dhoti. These clothes were stained with blood. They were seized under a panchanama. Appellant No. 2 was wearing a banian and underwear stained with blood at the time of his arrest. The same were seized under a panchanama. On February 14, 1993, the appellants were sent to the Medical Officer, Municipal Dispensary, Akkalkot, for taking their blood samples. On February 16, 1993 appellant No. 1 made a statement that he was willing to get the weapon of offence recovered. A memorandum (Ex. 26) to this was reduced to writing which was witnessed by panchas. On February 14, 1993, the appellants were sent to the Medical Officer, Municipal Dispensary, Akkalkot, for taking their blood samples. On February 16, 1993 appellant No. 1 made a statement that he was willing to get the weapon of offence recovered. A memorandum (Ex. 26) to this was reduced to writing which was witnessed by panchas. The Police staff left the police station in a jeep. Appellant No. 1 took them to the land of Ganpat Shinde situate within the limits of village Kurnur. He moved the earth and produced the sickle. The same was attached under a panchanama (Ex. 27). The sickle was marked as Article 18. Its blade was stained with blood and earth. On February 17, 1993, appellant No.2 volunteered to get the axe recovered. A memorandum (Ex. 28) was drawn which was witnessed by panchas. Appellant No, 2 then led the police and the panchas to the standing crop of jawar in his field and produced the axe and the same was seized under panchanama (Ex. 29). The axe is marked Article 19. The seized articles were sent to the Chemical Analyser for report. The Medical Officer in-charge of the Municipal Dispensary also sent the post-mortem report to the police station. 3. After completion of the investigation, charge-sheet was filed in the Court of the Judicial Magistrate, First Class, Akkalkot, who committed the case to the Court of Session vide order dated April 29, 1993. 4. The learned trial Judge framed the charge as stated above against the appellants. They pleaded not guilty to the charge. In the alternative, they pleaded that Bhimrao (PW 6) wanted to grab their land as there is no male member in their family to look after the land. The appellants examined an advocate (DW 1) to prove the map of the scene of offence. 5. The prosecution relied on the evidence of eye witnesses and circumstantial evidence to substantiate the charge. PW 6- Bhimrao Jadhav, PW 7- Ashok Birajdar, PW 8- Laxman Dagade and PW 9- Shivaji Shinde are the eye witnesses. PW 11-Mohan Shinde can also fall in the category of eye witnesses. He was called upon to convey the message of the death of the deceased to his parents at Akkalkot. He left the village on the motor cycle. After conveying the news to the deceased's parents, he also reported at the police station. 6. PW 11-Mohan Shinde can also fall in the category of eye witnesses. He was called upon to convey the message of the death of the deceased to his parents at Akkalkot. He left the village on the motor cycle. After conveying the news to the deceased's parents, he also reported at the police station. 6. PW 6- Bhimrao is the complainant. On the basis of his statement, the First Information Report was registered. The same is exhaustive and the entire incident is mentioned therein. He deposed that the father of the deceased, Vasantrao, was serving as a Head Mechanic in S.T. Depot at Akkalkot. The agricultural land of Vasantrao adjoins his land. Vasantrao's land was cultivated by Pandhari Vithoba Shinde and the deceased. The deceased was residing with him. He knew the appellants. Their agricultural land is close to the agricultural land owned by him. The source of irrigation is the joint well. The co-sharers take water from the joint well in accordance with their share by electric motors. He and the father of the deceased had installed one common electric motor. The switch of the electric motor is on the cement pole which is on the common bund. The appellants personally cultivate their land and they have got their own electric motor. The switch of their electric motor is also on the same cement pole. About 15 days prior to the incident, the deceased was irrigating his land from the common well. At that time, appellant No. 1 had switched off the electric motor. There was an altercation between the deceased and the appellants. On the date of the incident, viz. February 11, 1993, he had come to his field at about 8.00 a.m. Shivaji Shinde (PW 9) was working in the field of the deceased. PW 7- Ashok- and PW 8 - Laxman- were working in their respective fields. Their lands are close to the spot of the incident. At about 3.00 p.m. the deceased came to the well. He switched on the electric motor for watering his wheat crop. At about 5.30 to 6.00 p.m., the appellants came to the spot. Appellant No. 1 switched off the electric motor. Resultantly, the deceased could not irrigate his land. Quarrel ensued between the deceased and the appellants. PW 6 heard the quarrel going on between the appellants and the deceased from his field. He ran to the spot. At about 5.30 to 6.00 p.m., the appellants came to the spot. Appellant No. 1 switched off the electric motor. Resultantly, the deceased could not irrigate his land. Quarrel ensued between the deceased and the appellants. PW 6 heard the quarrel going on between the appellants and the deceased from his field. He ran to the spot. PW 7 and PW 8 and some others also rushed to the spot. The quarrel was going on in between the cement pole and the mango tree which was near the well. Appellant No. 2 had held the hands of the deceased from behind in one of his hands and was holding an axe in his other hand. He saw appellant No. 1 inflicting 2-3 sickle blows on the stomach of the deceased. The deceased cried " vkbZ vkbZ " (mother, mother) and fell down. He was standing at a distance of about 100 feet from the spot. He wanted to intervene and separate the deceased from the appellants but appellant No. 1. threatened him with serious consequences if he came forward. Resultantly, he could not come forward to separate the appellants and the deceased. He stopped there for about 5 to 10 minutes, so also PWs 7 and 8. Both the appellants left the place and went on Palapur Road. After their departure, he went to the spot where the deceased was lying. He saw that the intestine had come out of the stomach of the deceased and the deceased had succumbed to the injuries. At the time of the death of the deceased, he was wearing a banian and an underwear which were besmeared with blood. PW 7 Ashok, PW 8 Laxman and PW 9 Shivaji requested PW 6 Bhimrao to go to village Kurnur. PW 6 went to the village and reported the matter to the Police Patil and the Kotwal. After apprising the Police Patil and the Kotwal of the incident, he requested Mohan Shinde (PW 11) to go to Akalkot to inform about the death of the deceased to his parents. PW 6, the Police Patil, and the Kotwal returned to the spot. They and some other persons were sitting at the spot. At about 3.30 a.m., the Police came to the spot in a jeep. The Police party noticed the condition of the deceased. PW 6, the Police Patil, and the Kotwal returned to the spot. They and some other persons were sitting at the spot. At about 3.30 a.m., the Police came to the spot in a jeep. The Police party noticed the condition of the deceased. They took PW 6 to the Police Station for recording the F.I.R. The F.I.R. was recorded after they reached the Police Station at about 5/5.30 a.m. on February 12, 1993. The witness admitted his signature on the complaint. Inquest Panchanama was also drawn by the police. PW 7 Ashok and PW 8 Laxman had also witnessed the occurrence. They corroborated the evidence of PW 6 in material particulars. PW 9 Shivaji Shinde is cultivating the land of the deceased for the last 2 years. He was working in the field when the incident took place. He saw appellant No. 1 inflicting sickle blows on the deceased. When the injuries were being caused, he was at a distance of 100 feet from the spot. He also heard the cries of the deceased. 7. We have gone through the evidence of PWs 6,7,8 and 9. Their evidence is consistent and natural. The lands of PW 7 and PW 8 are close to the land of the deceased. PW 6 is a co-sharer in the well from where the appellants and the deceased received irrigation for their respective lands. They are agriculturists and in all likelihood they were working in their respective fields at the time of the incident and they had occasion to witness the incident. Nothing was brought out in their cross-examination to cast any shadow of doubt on their testimonies. 8. The evidence of the eye witnesses is corroborated by circumstantial evidence. Dr. Manohar More (PW 10) conducted the autopsy on the body of the deceased. He found ante-mortem injuries on the person of the dead body. The nature and description of the injuries found by him on the body of the deceased are detailed and described in column No. 17 of the postmortem notes, Ex. 39. PW 10 deposed that injury No. 1 was incised wound, horizontal 4 cm below umbilicus - over abdomen - intestinal coils coming out; the wound was contaminated; there was dry blood; it was exposing underneath the muscles; it was grievous in nature; the size was 5 cm X 3 cm; it was deep to the abdomen. 39. PW 10 deposed that injury No. 1 was incised wound, horizontal 4 cm below umbilicus - over abdomen - intestinal coils coming out; the wound was contaminated; there was dry blood; it was exposing underneath the muscles; it was grievous in nature; the size was 5 cm X 3 cm; it was deep to the abdomen. He further stated that the blood vessel was totally punctured and venacava had been punctured. He opined that injuries Nos. 1, 9 and 10 mentioned by him in column 17 of the postmortem notes (Ex. 39), namely:- "1. Incised stab wound horizontal 4 cm below umbilicus - Abdomen -Int. coils coming out, wound contaminated, blood stained dry, exposing underneath muscles - Grievous nature - size 5 cm X 3 cm - deep abdomen. 9. Incised wound 8 cm X 3 cm Rt. mid thigh exposing underneath muscle, vessels oblique contaminated - Grievous injury. 10. Incised abrasion of length 6 cm below above injury (10) Rt. thigh." were possible by means of an instrument such as sickle produced at the trial at Article 18 and shown to him. He further opined that a person receiving such injuries would succumb to death immediately. 9. The weapon of offence - sickle - was not recovered by appellant No. 1. The same was produced at Article 18 at the trial. The Investigating Officer had seized the clothes on the person of appellant No. 1 and earth stained with blood from the spot. The Chemical Analyser in his report opined that all these articles were stained with human blood of 'B' group which was that of the deceased. The evidence of PW 10 coupled with the Chemical Analyser's report renders reassurance to the evidence of the eye witnesses. 10. It cannot be disputed that the injuries which are fully detailed in the post-mortem notes (Ex. 39) were inflicted by appellant No. 1. PW 10 has opined that injuries Nos. 1, 9 and 10 could result in instantaneous death. Appellant No. 1 was rightly convicted and sentenced for the offence punishable under section 302 of the Indian Penal Code. Learned Counsel for the appellants did not dispute the correctness of the recovery of the weapon of offence, the Chemical Analyser's report, the postmortem notes and the medical evidence of PW 10. He also could not point out any infirmity in the evidence of the eye witnesses, viz. PWs. Learned Counsel for the appellants did not dispute the correctness of the recovery of the weapon of offence, the Chemical Analyser's report, the postmortem notes and the medical evidence of PW 10. He also could not point out any infirmity in the evidence of the eye witnesses, viz. PWs. 6, 7, 8 and 9. He, however, submitted that appellant No. 2 should not be convicted for the offence punishable under section 302 of the I.P.C. with the aid of section 34 of the I.P.C. He submitted that the fatal injuries were caused by appellant No. 1. The death of the deceased was as a result of the criminal act committed by appellant No. 1. Appellant No. 2 only caught hold of the hands of the deceased. On these facts, he submitted, it is difficult to hold that appellant No. 2 was sharing the common intention with appellant No. 1 of causing the death of the deceased. He submitted that applying the principle of law laid down under section 38 of the Indian Penal Code, the case of appellant No. 2 can be separated from that of appellant No. 1 and appellant No. 2 can be held guilty only under section 304 Part II of the I.P.C. 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. He submitted that on the proved facts of the case it can be inferred that appellant No. 2 shared the common intention of appellant No. 1 for the commission of a lesser offence than murder. We find substance in this submission. Concededly, the only part attributed to appellant No. 2 is that he held the hands of the deceased from behind. He did not utter any word. He did not cause any injury to the deceased although he was holding an axe in his hand. Inference can reasonably be drawn that he shared the common intention of appellant No. 1 of committing a lesser offence than murder. 11. Section 38 of the Indian Penal Code reads thus:- "38. He did not utter any word. He did not cause any injury to the deceased although he was holding an axe in his hand. Inference can reasonably be drawn that he shared the common intention of appellant No. 1 of committing a lesser offence than murder. 11. Section 38 of the Indian Penal Code reads thus:- "38. Persons concerned in criminal act may be guilty of different offences.---Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act." This section provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other. Sections 34, 35 and 38 of the Penal Code deal with the same subject and should be read together. Section 34 speaks of acts done with a 'common intention', section 38 of acts done with different intentions. A quarrel arose between C on the one side and A and B on the other. C abused A, whereupon A struck him with a stick, and B struck him down with an axe on the head. He also received two other wounds with the axe on other parts of the body. Any one of the three axe-wounds was sufficient to cause death, more especially that on the head. In such a situation, 'B' would be guilty of culpable homicide, while A would be guilty of voluntarily causing hurt. (See in this connection (Sultan)1, (1930)12, Lah. 442.) Sections 34 and 35 deal with individual responsibility for a single criminal act perpertrated by a large number of persons who either share a common intention or possess the Criminal knowledge and the third with co-operation between several accused in the completion of criminal act. Section 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention, common or otherwise, or knowledge. Section 38 would cover two different situations. One is where several persons act together in furtherance of a common intention, as in the illustration to the section. Section 38 would cover two different situations. One is where several persons act together in furtherance of a common intention, as in the illustration to the section. In such a situation, the section provides that the Court may convict each person of a different offence, according as circumstances operate to create legal extenuation in individual cases. The other situation is where there is action in common but a difference in the several intentions of the participants. In that case section 38 is converse to section 34, and each person is to be found guilty of the particular offence constituted by his individual act. In the first case, however, section 38 is a supplement to section 34 and not a converse. This section applies where a Criminal Act is jointly done by several persons and those persons have different intentions or states of knowledge. 12. An identical situation arose in the case reported as A.I.R. 1977, Supreme Court 2252 (Bhaba Nanda v. State of Assam)2. In that case the facts were as under:- Shashi Mohan Sarma, the deceased, in the company of his elder brother Gopi Nath, was proceeding to his field with some mustard seeds in a basket. Gopi Nath was going with some cattle to tether them in the field. When the two brothers had proceeded to some distance, Shashi Mohan was chased by the three appellants before the Apex Court. The allegation against one of the appellants, namely Bhaba Nanda Sarma, was that he caught hold of the hands of Shashi Mohan from behind. The other appellants gave him blows on his head and other parts of his body. Bhaba Nanda did not cause any injury. On these proved facts the Apex Court held that Bhaba Nanda shared the common intention of his two brothers for the commission of a lesser offence than murder. The Apex Court found him guilty under section 304 Part II of the I.P.C. holding thus:--- "..... Applying the Principle of law under section 38 of the Penal Code, therefore, the case of Bhaba Nanda can be separated from that of the other two. He can be held 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 Shashi was likely to result in his death. He can be held 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 Shashi was likely to result in his death. The facts of this case indicate that Bhaba Nanda shared the common intention of his other two brothers for the commission of a lesser offence than murder. But while committing the act in furtherance of that common intention, Phanidhar and Harendra developed and shared the common intention of causing his murder." The ratio of this judgment is fully applicable to the facts of the instant case. We accordingly alter the conviction of appellant No. 2 for the offence punishable under section 302 with the aid of section 34 of the I.P.C. to section 304 part II of the I.P.C. and sentence him to suffer rigorous imprisonment for 7 years only. 13. For the reasons aforestated, the appeal partly succeeds. The conviction and sentence of appellant No. 1 (Original Accused No. 1) are sustained. The conviction of appellant No. 2 (Original accused No. 2) is altered from section 302 read with section 34 of the I.P.C. to section 304 Part II read with section 34 of the I.P.C. The sentence of life imprisonment imposed upon appellant No. 2 (Original Accused No. 2) is altered to rigorous imprisonment for 7 years. The sentence of payment of fine of Rs. 100/- in default to suffer rigorous imprisonment for one month imposed upon him for the offence punishable under section 302 read with section 34 of the I.P.C. is set aside. Fine if paid be refunded. Appeal party allowed.