KUNDAN SINGH, J. This appeal has been preferred against the judgment and order elated 11-9-78, passed by Sri R. A. Singh, the then Sessions Judge, Fatehpur, in ST. No. 154 of 1978, whereby Sukkha, Jhalla and Jai Lal have been convicted under Sections 302/34, I. P. C. and sentenced to imprisonment for life. Sukkha has furhter been convicted under Section 323, I. P. C. and sentenced to two months R. I. , while Jhalla and Jai Lal have also been convicted under Sections 323/34, I. P. C. and sentenced to two months R. I. , making all the sentences to run concurrently. The prosecution case in brief is as follows: 2. Shahzad informant and Ulfat are brothers of Shaukat Ali deceased, Razzaq is son of Ulfat (PW-2 ). He was mentally weak. On 30-7-77, after easing himself Razzaq took ablution in a pond and at about 8. 00 a. m. he was jerking his hands to wipe out the water. In the meantime Sukkha accused-appellant happened to be there. While Razzaq was jerking his hands some drops of water fell on Sukkha also. That enraged Sukkha and he gave slaps to Razzaq, who went to his house weeping and narrated about all that what had happened with him. Thereupon Ulfat (PW-2) and Shaukat (deceased) went to the house of the accused at about 5. 00 P. M. and asked Sukkha why he had slapped the boy. Sukkha rather expressing regret for his wrong he misbehaved with Shaukat. In retaliation Shaukat Ali also scolded Sukkha. Ulfat had, however, pacified the situation at that time and brought Shaukat back to home. On the same day, i. e. 30-7-77, at about sun set after milching his cattle in Bagar the deceased was carrying milk to his house. As soon as he reached near Tiraths well he was way laid by Sukkha, his brother Jai Lal and his fellow villager Jhalla, who were armed with lathi and pharsas, respectively. Shaukat Ali cried. On hearing his screeches Ulfat, his cousin brother Zulfi and two neighbours, namely, Bakridi and Rasool came rushing. Jai Lal exhorted his companions to assault Shaukat Ali who had come to their house to insult them. Thereupon Sukkha hit the deceased with the butt-end of his lathi and Jhalla gave pharsa blows on his head. Shaukat fell down in the injured state. Jai Lal exhorted his companions to assault Shaukat Ali who had come to their house to insult them. Thereupon Sukkha hit the deceased with the butt-end of his lathi and Jhalla gave pharsa blows on his head. Shaukat fell down in the injured state. Ulfat tried to save Shaukat Ali but he was also dealt lathi blows. The witnesses reprimanded the accused, who thereafter had run away towards south. Shaukat Ali writhed with pain and died on the spot. Shahzad got a report scribed and at 11. 00 p. m. left for P. S. Next day he lodged the F. I. R. at 5. 00 a. m. at police station Lalauli, which was 8 miles from the place of occurrence. 3. PW-8 Prem Chandra, S. O. of Police Station Lalauli, took the investigation in his own hand and recorded the statements of Head Muharrir Vishwanath, informant Shahzad and Rasool Khan at the police station itself. Thereafter he proceeded to the village where the incident had occurred. He reached there at 10. 45 a. m. There he prepared the inquest report and sent the dead body to Mortuary for post- mortem examination. He also recorded the statements of Ulfat, Zulfi, Bakridi and other witnesses. He sent Ulft injured also for medical examination. He tried to interrogate Razzaq but he could not tell any thing, being out of mind. He also inspected the spot and prepared its site plan. Then he took the blood stained and ordinary earth into custody and prepared necessary recovery memos. He recorded the statements of some other witnesses also and made search for the accused but they could not be found. 4. Ulfat was medically examined at 8. 00 p. m. on 31-7-77 by Dr. S. K. Rastogi (PW-7) who found 3 contusions and 2 abrasions on his person and those injuries, in the opinion of the doctor, were simple. Autopsy on the dead body of Shaukat Ali was conducted by Dr. B. R. Bajpai, Medical Officer, at 2. 00 p. m. on 1-8-77. He found 3 incised wounds and 3 contusions on his body. After the transfer of Prem Chandra, S. O. , Sri M. C. Dubey (PW-6) complete other necessary formalities in relation to the investigation and submitted charge-sheet in court against all the three accused persons. 5. The prosecution examined 8 witnesses in all and filed affidavits of Chaukidar Chunka and Mohd. After the transfer of Prem Chandra, S. O. , Sri M. C. Dubey (PW-6) complete other necessary formalities in relation to the investigation and submitted charge-sheet in court against all the three accused persons. 5. The prosecution examined 8 witnesses in all and filed affidavits of Chaukidar Chunka and Mohd. Ashraf constable to prove its case. Out of them, PW-1 Shahzad, PW-2 Ulfat and PW-3 Bakridi have been examined as witnesses of the factum of incident, while others were cf formal character. As usual all the accused persons took the plea of rien culpa and denied the prosecu tion version. They stated that they have been falsely implicated in the present case due to previous enmity. Sukkha further stated that he was not present at the place of occur rence. Zulfi, Shaukat, Ulfat are cousin brothers and he had a dispute with Zulfi about Sahan. Shaukat was helping Zulfi. He was a bad character and bad elements used to visit him. Jhalla stated that he had a dispute with Rasool about certain land and he has been involved in the present case at his instance. Jhalla disclosed his age as 17 years on 22-8-78 in his statement recorded under Section 313, Cr. P. C. The accused also examined one Satya Deo as D. W. 1 in order to prove that the special report was received by the D. M. on 1-8-77. 6. Learned Sessions Judge after going through the evidence on record held the accused persons guilty of the offences charged with and accordingly he convicted and sentenced them as aforesaid. 7. We have heard Sri Aniar Saran and Sri R. B. Sahai, learned counsel for the appellants and learned A. G. A. and also perused the evidence on record. Learned counsel for the appellants contended that appellant Sukkha has been convicted and sentenced under Section 302/34, I. P. C. for causing injuries to Shaukat Ali in furtherance of a common intention to kill him and that his case does not fall within the ambit of Section 34, I. P. C. since no comon intention can be interred from the role assigned to him in the commssion of murder of Shaukat Ali. According to them. Section 34, I. P. C. makes liable each accused for the criminal act if committed by him in furtherance of a common intention alike the one who had done that act alone. According to them. Section 34, I. P. C. makes liable each accused for the criminal act if committed by him in furtherance of a common intention alike the one who had done that act alone. A common intention pre-supposes prior concert. It requires a pre-arranged plan. The common intention can be determined by the words or from subsequent conduct i. e. by a systematic plan of compaign unfolding itself during the course of action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together sub sequently. During the course of act when it was committed, the accused must have committed some material act from which it can be inferred that he had actually par ticipated in furtherance of the common intention. In case an accused had an intention to rescue another and if necessary, to kill those who oppose his intention that cannot be designed as common intention in the similar manner an accused inflicts minor, simple or superficial injuries to any person who intervenes or even on deceased causing no substan tial damage 10 any part of body or uses blunt side of sharp or pointed weapon in causing injuries or uses weapon not in usual manner as used. In that backdrop the learned counsel for the appellants emphasised that it is necessary to infer the common intention only when the accused had actually participated by inflicting fatal injuries. In support of his conten tion, he relied upon the following observations of Supreme Court in the case of Rajagopalswamy v. Stale of Tamil Nadu rerported in 1994 Cr. L. J. 2) 95 : "so far as A-2 is concerned he inflicted simple injuries with the stick on PW 2 and one on the deceased Kamaswamy. Therefore, common irveimon to kill the two deceased cannot be made out against him. In the result the conviction of A-2 -under Section 302 read with 34, I. P. C. and the sentence of imprisonment for life awarded there under in respect murder of both the deceased arc set aside. A-2 inflicted only one simple injury on the deceased Kamaswamy. We convict him under Section 324, I. P. C. and sentenced him to one years R. I. His convict ion under Sec. 323, I. P. C. for causing hurt to PW-2 and sentence of 3 months R. I. are confirmed. " 8. A-2 inflicted only one simple injury on the deceased Kamaswamy. We convict him under Section 324, I. P. C. and sentenced him to one years R. I. His convict ion under Sec. 323, I. P. C. for causing hurt to PW-2 and sentence of 3 months R. I. are confirmed. " 8. We have given our anxious thought to the submissions made by the learned counsel for the paritcs and carefully examined the evidence on record. It is true that the Doctor who conducted post-mortem examination found three contusions besides incised wound on the body of Shaukat Ali. Out of them, one contusion was on the forehead and other two on the elbow joint and thigh, respectively. None of those injuries caused internal damage to any part of the body. These three contusions have been attributed to Sukkha appellant. There is consistent evidence of the eye-witnesses and it is so mentioned in the F. I. R. also by the informant that Sukkha caused the injuries on the person of the deceased with the butt-end of a lathi (Hoda ). Shahzad (PW-1) has deposed that Sukkha inflicted injuries with the butt-end of lathi piercingly. It was made clear by him in his deposition that Sukkha did not use lathi for inflicting the injuries as usual. It appears to us that Sukkha inflicted simple injuries on the person of the deceased with the butt-end of the lathi by thrusting it and not in usual manner out of revenge or hatred or to tease or humiliate him. He also caused three contusions and two abrasions on the person of Ulfat when he tried to save the deceased. The learned counsel for the appellants has not challenged that part of his conviction and sentence under Section 323 I. P. C. for causing injuries to Ulfat PW-2. The facts and circumstances of the case that Sukkha inflicted injuries on the body of the deceased which were simple, causing no internal damage to any part of the body of the deceased and that the injuries were inflicted with the butt-end of lathi by thrusting it, leave no room for doubt that the act committed by him does not fall within the mischief of common intention as defined in Section 34 of the Indian Penal Code. Thus the conviction and sentence of Sukkha under Section 302/34, I. P. C. are liable to be set aside. Thus the conviction and sentence of Sukkha under Section 302/34, I. P. C. are liable to be set aside. Instead he is liable to be convicted under Section 323, I. P. C. for causing simple injuries to the deceased and sentence of 6 months R. I. would meet the ends of justice. 9. So far as the part of Jai Lal appellant is concerned, all the eye-witnesses have deposed that Jai Lal and Jhalla were armed with phrasas. Jai Lal exhorted his companion Jhalla to assault him. Jhalla then gave 3 or 4 pharsa blows successively to Shaukat Ali deceased. Shahzad had mentioned in the F. I. R. that Sukkha armed with a lathi and Jhalla with a pharsa belaboured the deceased and Jai Lal exhorted them to launch asst jit on him as he had insulted them at their house. The informant has admitted in his statement that except instigating his companions Jai Lal did nothing and he did not take any part in the marpeet and that he remained standing by the side of the witnesses. At that time. Jai Lal was carrying a pharsa. Now we have to see whether there was any need for exhortation in the present case and had Jai Lal not exhorted his companions to assault the deceased, could the incident be avoided. In this connection we may quote, with advantage, the observations of the Supreme Court in the case Zainul Haque v. State of Bihar reported in A. I. R. 1974 S. C. 45 as under: "it has also found that eye-witnesses were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailants by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged 10 have exhorted the actual assailant. " 10. There is quite often a tendency to implicate some person, in addition to the actual assailants by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged 10 have exhorted the actual assailant. " 10. In the present case the appellant Jai Lal is said to have exhorted the actual assailant and thereafter he remained standing as a spectator at the scene of occurrence He did not participate in the incident. He did not cause any injury to the deceased or any witness present at the scene of occurrence though he was carrying a pharsa with him at that time. No overt act has been attributed to him except the exhortation and the evidence of exhortation is a weak type of evidence. There is no evidence on record to show that the exhortation was actually required for the commission of the offence. We are, therefore, constrained to hold that the appellant Jai Lal has not participated in the incident which ultimately culminated into the death of the victim. Thus his conviction and sentence arc liable to be set aside and he deserves his acquittal. 11. Now turning to the case of accused Jhalla, his learned counsel half heartedly contended that he has been falsely implicated in the present case. He also stressed that he was minor at the time of incident and hence he could not be convicted and sentenced under Section 302, I. P. C. We have thoroughly examined the evidence on record. Appellant Jhalla disclosed his age as 17 years on 22-8-78 when his statement was recorded under Section, 313 Cr. P. C. This Court after hearing the appeal in part directed the learned Sessions Judge by order dated 12-1-89, to hold an inquiry into the question of age of Jhalla appellant. The learned Sessions Judge conducted a fulfledged inquiry. Both the parties adduced evidence. Prosecution examined Dr. M. H. Khan as A. PW-3 and Suresh Chandra Misra as A. PW-2 to prove medical examination and X-ray report of radius and ulna of Jhalla. Shahzad, a resident of village Datauli and Kali Charan, an Assistant Teacher of the School in which accused Jhalla got education, were examined as A. PW-1 and A. PW-4, respectively, to prove the date of birth of the accused. Shahzad, a resident of village Datauli and Kali Charan, an Assistant Teacher of the School in which accused Jhalla got education, were examined as A. PW-1 and A. PW-4, respectively, to prove the date of birth of the accused. Beni Madhav Pandey was examined as OPW-1 by defence to prove the horoscope of Jhalla. Krishna Kumar, Gram Panchayat Adhikari of Datauli, was examined as OPW. 2 by defence to prove theparivar register. The learned Sessions Judge after examining the above evidence held that Jhalla accused was 19 years, 3 months and 29 days old on the date of occurrence i. e. 30th July, 1977. The learned counsel for the appellant could not point out any thing to dismantle the above finding recorded by the Sessions Judge regarding the age of Jhalla. Thus we also find that Jhalla was not a child on the date of incident and he cannot be granted any concession either in the matter of conviction or sentence on that ground. 12. As stated above, we have closely examined the evidence of the eye-witnesses. All the three eye- witnesses have consistently deposed that it was Jhalla accused who caused pharsa injury to the deceased. Nothing has been elicited from the cross-examination of any of the witnesses which may render their testimony unworthy of belief. It is broad day light incident which took place at about sun set. There was sufficient light and the accused Jhalla was known to the witnesses and there was no difficulty in recognizing him. The F. I. R. was lodged at 5. 00 a. m. in the morning by Shahzad at the police station Lalauli, which is at a distance of 8 miles from the place of occurrence. In the spectrum of the circumstnaces disclosed in the F. I. R. there was no delay in lodiging the first information report. There is no implicit or explicit reason to disbelieve the direct evidence of commis sion of offence by three persons who have claimed their presence on the spot at the time of incident. One of them is injured whose presence cannot any-wise be doubted at the spot looking to the diamension, nature and seat of his injuries, who was also dealt lathi injuries when he tried to save his brother. One of them is injured whose presence cannot any-wise be doubted at the spot looking to the diamension, nature and seat of his injuries, who was also dealt lathi injuries when he tried to save his brother. We are, therefore, of the considered view that the prosecution has succeeded in proving the guilt of Sukkha and Jhalla beyond any reasonable doubt. 13. Accordingly, the appeal succeeds and is hereby allowed in part. The conviction and sentence as awarded by the trial court to Jai Lal and Sukkha under Sections 302/34, I. P. C. are set aside. However, Sukkha is convicted under Section 323, I. P. C. for causing simple injury on the person of Shaukat Ali and is sentenced to 6 months rigorous imprisonment. The conviction and sentence awarded by the trial court to Sukkha under Sec. 323, I. P. C. for causing injuries to Ulfat (PW-2) are affirmed. The conviction and sentence awarded by trial court to Jhalla under Sections 302/34 are converted into one under Section 302, I. P. C. simpliciter and the sentence of life imprisoment inflicted upon him is upheld. Appellant Jai Lal is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. Appellant Sukkha and Jhalla are also on bail. The Chief Judicial Magistrate concerned is directed to take them into custody to serve out the sentences awarded to them. Appeal partly allowed. .