Judgment D. S. Dhaliwal, J. 1. Appellants, Ramakant dubey and Srikant Dubey, have been convicted and sentenced to undergo rigorous imprisonment for life for an offence under isection 302 read with Sec.34 of the Indian penal Code by Sessions Judge, East champaran, Motihari, vide judgment and order dated 7th November, 1992, passed in sessions Trial No.221 of 1991. 2. The prosecution case, briefly stated, is like this : - On 5.10.1988 at about 4 PM. Punyadeo Dubey (deceased) was returning to his house along with his she buffalo from the river side. When he reached at the Dar-waja of Raja Dubey, the father of the appellants, Gauri devi, wife of Raja Dueby who happened to be present there, objected to his taking the she buffalo through her Darwaja and exhorted her husband, Raja dubey, and the appellants to assault punyadeo. There was some exchange of hot words between the deceased and Gauri devi. In the meantime, Raja Dubey (since acquitted) along with the appellants came out from the house. At that time Raja Dubey and Ramakant Dubey were armed with a spear each, whereas Srikant Dubey carried a lathi. Appellant Ramakant Dubey gave a spear blow hitting Punyadeo Dubey in the lower protion of abdomen. As a result of the injury Punyadeo Dubey fall down on a menure dump. It is alleged that thereafter, srikant Dubey (appellant) rode on the chest of Punyadeo and Ramakant Dubey (appellant) pressed his (Punyadeo Dubey) neck with feet. 3. It is further alleged that Kapildeo dubey (RW.7), brother of the deceased, rushed forward upon which he was given a lathi blow by appellant, Srikant Dubey and gauri Devi (since dead) gave a Dabiya blow on his head. Similarly, when Prem Chandra dubey, the son and Bhagwati Devi, wife or the deceased, stepped forward they were assualted by Raja Dubey, Ramakant Dubey and Gauri Devi. As a result of the assault, punyadeo Dubey died at the spot. 4. Kapildeo Dubey along with the others brought the dead body of his brother, Punyadeo Dubey, to Nakardayee railway Station where there was a Police outpost. Leaving Rajdeo Rai (RW.4) with the dead body, Kapildeo Dubey and the others the injured proceeded to the State dispensary, Adapur. As a result of the assault, punyadeo Dubey died at the spot. 4. Kapildeo Dubey along with the others brought the dead body of his brother, Punyadeo Dubey, to Nakardayee railway Station where there was a Police outpost. Leaving Rajdeo Rai (RW.4) with the dead body, Kapildeo Dubey and the others the injured proceeded to the State dispensary, Adapur. Devendra Narain thakur (RW.8), Officer-in-Charge of Adapur police Station, on coming to know about the occurrence went to the State Dispensary and recorded Fardbeyan (Ext.3) of kapildeo Dubey, on the same day, at 6.30 p. M. and on its basis the case was formally registered in Police Station, Adapur, on 6.10.1988 at 3 A. M. 5. Devendra Narain Thakur took up the investigation. He went to Railway Station nakardeyee and prepared inquest report (Ext.2) in respect of the dead body of punyadeo Dubey, in presence of Rajdeo Rai (RW.4), and Uday Bhan Tiwary (RW.1 ). 6. Dr. Tarkeshwar Upadhyaya (RW.9)of Sadar Hospital, Motihari conducted autopsy on the dead body of Punyadeo dubey on 6.10.1988 at 6 P. M. and vide post mortem examination report (Ext.5) he found an antemortem incised wound measuring 1" x 4" x cavity deep with bulging out of parts of small intestine in left iliac fossa region. On dissection the doctor further found one through and through incised wound in small intestine. Doctor opined that punyadeo Dubey died due to shock and haemorrhage of the aforesaid injury and the time which elapsed between the death and postmortem was within 24 horus. 7. After completion of the investigation chargesheet was filed against the appellants, their father, Raja Dubey, mother, Gauri devi and Ramawati Devi, wife of Appellant ramakant Dubey. The case was committed to the Court of Sessions and the appellants were charged for various offences, including 302 read with Sec.34 of the Indian penal Code in respect or the murder rf punyadeo Dubey. Gauri Devi died during the trial. The trial ended in conviction of the appellants, as indicated earlier and their other co-accused were acquitted. 8. The prosecution evidence against the appellants consists of the testimony of 9 witnesses, Udai Bhan Tiwary (P. W.1) and rajdeo Rai (P. W.4) are only formal witnesses. They havs proved the inquest report. Gauri Devi died during the trial. The trial ended in conviction of the appellants, as indicated earlier and their other co-accused were acquitted. 8. The prosecution evidence against the appellants consists of the testimony of 9 witnesses, Udai Bhan Tiwary (P. W.1) and rajdeo Rai (P. W.4) are only formal witnesses. They havs proved the inquest report. The main stay of the prosecution is the occular account of the eye witnesses, namely, Jagat Narain Dubey (P. W.2), rajendra Kishore Dubey (P. W.3), Prem chandra (P. W.5), Bhagwati Devi (P. W.6), kapildeo Dubey (P. W.7 ). Sub Inspector, devendra Narayan Thakur (RW.8) is the Investigating officer in this case. Dr. Tarkesh-war Upadhyaya (P. W.9) proved the postmortem report, Appellants denied all the prosecution allegation against them and claimed false implication. They, however, led no evidence in their defence. 9. Counsel for the appellants, in the first instance, tried to assail the testimony of the eye witnesses arguing that they are close relations of the deceased and have not come forward with clean hands, therefore, their evidence should not be accepted. After considering the contention, I do not find any merit in the same. Prem Chandra dubey (P. W.5), Bhagwati Devi (P. W.6) and kapildeo Dubey (P. W.7) are all injured witnesses. Their presence at the spot, therefore, cannot be doubted. Appellants arep. also collaterals of the deceased and the eye-witnesses Kapildeo Dubey although admitted that there were proceedings under section 107 Cr. RC. between Raja Dubey, father of the appellants, and co-villagers in which he too was named by the Police, but categorically stated that he had no litigation with the appellants. It has also come in evidence that he had purchased about 4 kathas of land from one Raj Kumarl Devi, and that Raja Dubey, father of the appellants was an attesting witnesses of the sale deed. No doubt Raja Dubey had also purchased another piece of land from said Raj kumari Devi, but there is nothing to indicate that there was any dispute between the parties over the purchase of the said plots. Raja Dubey was rather an attesting witness of the sale deed executed in favour of this witness. Thus, there is no cogant reason to disbelieve the testimony of RWs.5, 6 and 7, when they stated that Ramakant Dubey (appellant) caused the fatal blow to Punyadeo dubey with spear in his abdomen. 10. Raja Dubey was rather an attesting witness of the sale deed executed in favour of this witness. Thus, there is no cogant reason to disbelieve the testimony of RWs.5, 6 and 7, when they stated that Ramakant Dubey (appellant) caused the fatal blow to Punyadeo dubey with spear in his abdomen. 10. The testimony of Jagat Narain dubey (RW.2), however, stands on a different footing, as he was not named as an eye-witness in the First Information Report. According to him, at the time of occurrence, he was present at some distance from his house and he went to the place of occurrence only on hearing the alarm. No doubt in his examination-in-chief he has stated that Ramakant Dubey inflicted spear blow in the abdomen of Punyadeo Dubey as a result of which he fell down, but in his cross-examination he stated that he went to the Darwaja of Raja Dubey on hearing the ialarm of "mar-Gaya, Mar-Gaya" and when the reached there he found Punyadeo dubey lying dead on the ground. Since he was not initially present at the spot, it becomes doubtful as to whether he could have seen the giving of spear blow to the deceased which was in fact the very first bolow and opening of the assault. 11. Rajendra Kishore Dubey (RW.3)also corroborates time of the occurrence he was passing though the Darwaja of Raja dubey. At that time the deceased was going along with the she buffalo, Gauri devi, the mother of the appellants was present there and on her exhortation Raja cubey and the appellants came there variously armed. He has further stated that ramakant Dubey inflicted spear blow in the abdomen of the deceased as a result of which he fell down. He has further stated that Srikant Dubey rode on the chest of the deceased and Ramakant Dubey pressed the neck of the deceased. 12. Counsel for the appellants next contended, with no less vehemence, that the occurrence took place all of a sudden and the appellants are said to have come out from their house carrying different weapons, therefore, the applicability of Sec.34 Indian penal Code is not made out. 12. Counsel for the appellants next contended, with no less vehemence, that the occurrence took place all of a sudden and the appellants are said to have come out from their house carrying different weapons, therefore, the applicability of Sec.34 Indian penal Code is not made out. Counsel maintained that the version of the eye-witnesses that Srikant Dubey rode on the chest of the deceased, whereas ramakant Dubey pressed his neck is not corroborated by the medical evidence, as the Doctor did not find any injury either on the nack or on the chest. With regard to appellant Ramakant Dubey, the counsel contended that taking into account that he gave only one blow and the occurrence took place all of a sudden, he cannot be said to have any intention to cause death of the deceased and at best it can only be attributed to him that he had knowledge that injury which he was going to cause was likely to cause death and as such the offence does not travel beyond Sec.304 of the Indian Penal Code. 13. Coming to the first part of the contention regarding the attraction of the vicarious liability against Srikant Dubey with the aid of Sec.34 Indian Penal Code, I find that the crime was not a pre-meditated one. The occurrence took place all of a sudden when Gauri Devi who was present at Darwaja objected to taking of the she buffalo through the Darwaja by the deceased. It has appeared in the cross-examination of P. W.7 that there was some exchangs of hot words between the deceased and the mother of the appellants. It was then that the lady exhorted her husband and the appellants to assault. The appellants thereafter came from the house variously armed. It was appellant Ramakant dubey who gave spear blow in the abdomen of the deceased. Appellant Srikant dubey although armed did not cause any injury to the deceased with the lathi. The only allegation against him was that he rode can the chest of the deceased. It is also alleged that Ramakant Dubey pressed the meek by stepping on it. The medical avidence does not support these allegations as the Doctor did not find any injury to the meek or on the chest. The only allegation against him was that he rode can the chest of the deceased. It is also alleged that Ramakant Dubey pressed the meek by stepping on it. The medical avidence does not support these allegations as the Doctor did not find any injury to the meek or on the chest. In order to attract the liability under Sec.34 of the Indian Penal code the accused must share a common intention and acts in furtherance of the same. Injury to the deceased was given by appellant Ramakant Dubey and in those circumstances i find that there was no prior meeting of minds so as to infer that Srikant dubey shared a common intention with ramakant Dubey. 14. Arguing on offence, the Public prosecutior tried to meet the contention of tne defence counsel submitting that the act of appellant Ramakant Dubey is fully covered by clause third of Sec.300 of the Indian Penal Code as the injury was intentional. Public Prosecutor maintained that it has appeared in evidence that Punyadeo dubey died due to injury at the spot and as such the said injury was sufficient to cause death in ordinary course. 15. The contention of the Public prosecutor would have cut some ice if [prosecution had led cogent evidence to show that the injury cuased on the person of the deceased was sufficient to cause death in ordinary course. The Doctor who conducted the postmortem examination on fie dead body has nowhere stated that the injury was sufficient to cause death in ordi-mary course of nature. No doubt witnesses hiave stated that Punyadeo Dubey died at the spot, but circumstances of the case indicate otherwise. Admittedly, the dead body of the deceased was found by the police at the platform of Nakardeyee Railway Station. Had the deceased Punyadeo died, in fact, at the spot, there was no sense in carrying his dead body to Nakardeyee Railway station. The injured P. Ws. were taking him ior medical aid to the Hospital and when they reached the Railway Station he was foumd dead and thereafter leaving his dead body with Udai Bhan Tiwary (P. W.1) and Rajdeo rai (P. W.4) in whose presence the inquest was prepared, they proceeded to the Hospital. Therefore, it becomes doubtful as to whether the injury caused to the deceased was sufficient to cause death in ordinary course of nature. Therefore, it becomes doubtful as to whether the injury caused to the deceased was sufficient to cause death in ordinary course of nature. In this view of the matter, having regard to the seat and dimensions of the injury the only safe inference would be that appellant Ramakant Dubey, imtended to cause such bodily injury which was likely to cause death and as such the offence would fall under Sec.304 Part 1. 16. In view of the discussion made above, the appesal of Srikant Dubey is allowed and the conviction and sentence passed upon him is hereby set aside. The conviction of Ramakant Dubey is altered from under Sec.302 to the one under section 304 Par 1 of the Indian Penal Code and for which offence he is sentenced to undergo rigorous imprisonment for 8 years.