JUDGMENT 1. - The accused appellants stood charged for having committed .the offence under section 302/34 IPC and were tried by the learned Sessions Judge Baran in Sessions Case No. 55 of 1395, who convicted and sentenced each of them under the said section for causing the murder of Vishnu Deva to suffer imprisonment for life and to pay a fine of Rs. 450/- in default to further undergo three months simple imprisonment. In all the three instant appeals the aforesaid judgment has been called in question by the accused appellants. 2. The prosecution story as unfolded during trial may be summarised as foilows. A written report was lodged by the informant Jagdish with the Police Station Kotwali Baran on March 8, 19S5 around 1.05 a.m. alleging therein that on that night about 10.45 p.m. his brother Vishnu Deva (since deceased) was going to the house of Tej Karan Yadav to see the film on Televison. When Vishu Deva passed in front of the house of Ramesh Chand (accused), Nemi Chand, Radha Kishan, Ramesh and one Kailash caught hold of Vishnu Deva. Ratnesh and Radha Kishan pushed Vishnu Deva down, they set on his chest and inflicted blows with sharp edged weapons on his head. Hearing the hue and cry of Vishnu Deva. informant Tej Karan Yadav, Phool Chand, Kanhaiya Lal Yadav, Kanhiya Lal Meghwal rushed to the place of occurrence. While seeing them, the assailants taken to heels, Vishnu Deva was escorted to Hospital but he died on the way. On the basis of the written report a case bearing No. 98/95 for the offence under section 302 IPC was registered and investigation commenced. On conclusion of investigation charge sheet against the accused appellants was filed and case was committed to the court of Sessions Judge where charges under section 302 and in the alternate 302/34 IPC were framed against the accused appellants. They denied the charges and claimed trial. As many as 19 witnesses were examined by the prosecution in support of its case. The accused appellants denied the allegations appeared against them in their explanation recorded under section 313 Cr.P.C. No. evidence however was produced in defence. Learned Sessions Judge, after hearing the rival contentions convicted and sentenced the accused appellants as indicated hereinabove. 3. Mr. As many as 19 witnesses were examined by the prosecution in support of its case. The accused appellants denied the allegations appeared against them in their explanation recorded under section 313 Cr.P.C. No. evidence however was produced in defence. Learned Sessions Judge, after hearing the rival contentions convicted and sentenced the accused appellants as indicated hereinabove. 3. Mr. S.R. Bajwa, learned Senior Advocate appearing for the accused appellant Nemi Chand very strongly contended before us that in the instant case there is a lack of evidence on record to suggest that accused party formed common intention to kill deceased Vishnu Deva. The informant Jagdish falsely named one Kailash in the FIR against whom Investigation Officer did not find any evidence and he was not charge sheeted. The allegation against accused Nemi Chand in the FIR is that he caught hold of the deceased Vishnu Deva. The possibility of falsely implicating the accused Nemi Chand cannot be ruled out as from the record it is not borne out that Nemi Chand had any enmity with the deceased or he had close relations/friendship with the co-accused Ramesh and Radha Kishan. From the testimony of the witnesses, it cannot be said firmly that Nemi Chand was present at the spot or he actively participated in the alleged assault. In the alternative it was argued that even if the presence of Nemi Chand is established his case does not travel beyond 326/34 IPC. Reliance was placed on Kashmira Singh v. State of Punjab ( AIR 1994 SC 1651 ) Munna and Ayyia v. State of U.R (AIR 1994 SC 278) and Daiya Moshya Bhil and Others v. State of Maharashtra ( AIR 1984 SC 1717 ). 4. Miss Rajesh Kandwai learned amicus curies appearing for the accused appellants Radha Kishan and Ramesh canvassed that the alleged incident had taken place on the street at mid night and there was no artificial source of light. As per the prosecution evidence, the alleged eye witnesses were standing about 30 to 40 ft. away from the place of incident, therefore in the darkness it was not possible to identify the real assailants. The prosecution has given out a totally false genesis of occurrence. The proximate cause leading to the quarrel has also been suppressed. Under such circumstances no reliance can be placed upon the prosecution evidence. 5. away from the place of incident, therefore in the darkness it was not possible to identify the real assailants. The prosecution has given out a totally false genesis of occurrence. The proximate cause leading to the quarrel has also been suppressed. Under such circumstances no reliance can be placed upon the prosecution evidence. 5. On the other hand learned Public Prosecutor supported the impugned judgment and canvassed that guilt against the accused appellants has been established by the prosecution and they have rightly been convicted. 6. We have reflected over the rival submissions and carefully scanned the material on record. 7. The witnesses examined by the prosecution are Mangi Bai PW 1 (wife of the deceased) Rajesh PW 2, Kailash PW 3 (sons of the deceased) Kanhiya Lal PW 5, Tej Karan PW 6, Phool Chand PW 7, Kanhaiya Lal son of Ram Nath PW 8 and Jagdish PW 11 (brother of the deceased). Jagdish PW 11 is the informant who deposed that on hearing hue and cry he rushed to the spot where he found his brother Vishnu Deva lying down. Radha Kishan was inflicting injuries on his neck, head and cheek with knife. Ramesh was giving blow on his head with Mister (wooden instrument used for plastering the wall). While Nemi Chand had caught hold of him. Deposition of Jagdish had been supported consistently by almost all the eye witnesses. We have carefully scrutinised the deposition of all the witnesses. Even if we ignore the testimony of wife and sons of the deceased we have before us the deposition of other eye witnesses who are the neighbours of the deceased. Kanhaiya Lal son of Nengi Lal PW 5 deposed that Nemi Chand had caught hold of Vishnu Deva and Radha Kishan with knife and Ramesh with Fanta (used for plastering) were beating Vishnu Deva. He had seen injuries on the head, cheek and neck of Vishnu Deva. In the cross examination the witnesses explained that there was source of light. On the front wall of his house he installed an electric bulb which was on at the time of incident. Tej Karan PW 6, Phool Chand PW 7 and Kanhiya Lal son of Ram Nath PW 8 who are also the neighbours of the deceased also supported the prosecution case. On the front wall of his house he installed an electric bulb which was on at the time of incident. Tej Karan PW 6, Phool Chand PW 7 and Kanhiya Lal son of Ram Nath PW 8 who are also the neighbours of the deceased also supported the prosecution case. The contradictions appearing in the deposition of these witnesses are minor in nature and we are of the view that their testimony could not be shattered in the cross examination. 8. As per Postmortem Report (Ex.P/10) the deceased sustained following seven injuries - (i) Stab wound on Right Cheek 1.5 cm x 1 cm. x bone deep. (ii) Incised wound just behind Right ear 2 x 0.5 x 0 5 cm. (iii) Upper 1/2of Right ear is completely cut (absent) (iv) Incised wound 1 cm. x 0.3 cm. x through and through tubule of right ear. (v) Echmoses both lids of both eyes. (vi) Incised wound 6 cm. x 1.5 cm. x bone deep on left parietal area of scalp. (vii) Swelling 6x3 cm. on Right parietal area of scalp right frontal area of scalp. Dr. S.K. Gupta PW 12 deposed that he conducted Post Mortem of the dead body of Vishnu Deva and cause of the death was head injury. 9. On the basis of information given by the accused appellant Radha Kishan and Ramesh, knife and Mister used in the occurrence were recovered. Learned trial court after discussing the prosecution evidence at length, convicted and sentenced the accused appellants Radha Kishan and Ramesh and we do not find any infirmity in the finding of the trial court so far it related to accused appellants Radha Kishan and Ramesh is concerned. We are of the considered opinion that guilt under Section 302/34 IPC has been established beyond reasonable doubt against them. 10. Now we proceed to analyse the allegations levelled against accused appellant Nemi Chand. Mangi Bai PW 1 deposed that Nemi Chand sat on the chest of the deceased and caught hold of his hands. Rajesh PW 2 stated that Nemi Chand had caught hold of legs whereas Tej Karan PW 6 deposed that Nemi Chand was armed with Balsot. No doubt there are contraditions in the depositions but all the witnesses are consistent so far as the presence of the accused Nemichand at the place of incident is concerned. 11. Rajesh PW 2 stated that Nemi Chand had caught hold of legs whereas Tej Karan PW 6 deposed that Nemi Chand was armed with Balsot. No doubt there are contraditions in the depositions but all the witnesses are consistent so far as the presence of the accused Nemichand at the place of incident is concerned. 11. In Daiya Moshya Bhils case (supra) their Lordships of the Supreme Court observed as under- "It must straightway be conceded that the three appellants came together, near the place where deceased Gunjarya in company of his two brothers, some witnesses and some companions were working and where the incident occurred. Standing by itself this circumstances may be sufficient to suggest that the three had some common intention. The question is whether they had the common intention to commit murder of Gunjarya. If the three shared the common intention to commit murder of Gunjanraya as is now contended obviously appellants Nos. 2 and 3 would not come unarmed. It is admitted by the prosecution that at that time appellant No. 1 was armed with a dharya but appellants 2 and 3 were unarmed. It would be contrary to common sense to hold that appellants 2 and 3 accompanied appellant No. 1 with the avowed object of committing murder of Gunjarya yet came unarmed. Their intention by this very tell tale circumstance is contraindicated. Let it be made clear here that in order to attract S. 34 it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of section 34 is that each must share the intention of the other, appellants 2 and 3 though they were in the company of the appellant No. 1 were shown to be unarmed. The High Court has overlooked this most important circumstance." 12. In the instant case also the appellant Nemi Chand was unarmed at the time of the occurrence where as appellant Radha Kishan was armed with knife and appellant Ramesh was armed with Mister, therefore an inference of common intention being formed on the spur of moment can be made. The High Court has overlooked this most important circumstance." 12. In the instant case also the appellant Nemi Chand was unarmed at the time of the occurrence where as appellant Radha Kishan was armed with knife and appellant Ramesh was armed with Mister, therefore an inference of common intention being formed on the spur of moment can be made. The fact that appellant Radha Kishan was armed with knife and appellant Nemi chand caught hold of the deceased Vishnu Deva may permit an inference that appellant Nemi Chand could have shared the common intention with appellant Radha Kishan of causing grievous hurt to deceased Vishnu Deva. Therefore in the facts and circumstances of the case the minimum common intention that can be attributed to appellant Nemi Chand is one of causing grievous hurt with a sharp edged weapon like knife. Thus appellant Nemi Chand is shown to have committed an offence under Section 326 read with section 34 of IPC and he should be convicted accordingly. It would be unjust to hold that appellant Nemichand accompanied appellants Radha Kishan and Ramesh with the object of committing murder of Vishnu Deva yet came unarmed. Learned trial court in our considered view, committed illegality in convicting appellant Nemi Chand under Section 302/34 IPC. 13. Accordingly, the appeals of appellants Radha Kishan and Ramesh fail and are hereby dismissed. Appeal of appellant Nemi Chand is partly allowed, his conviction and sentence under section 302 read with 34 IPC is set aside, he is instead convicted for an offence under section 326 read with section 34 IPC and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 25,000/-. In default of making payment of fine, he shall further suffer rigorous imprisonment for two years. Fine, if realised shall be paid to the widow of deceased Vishnu Deva. Appellant Nemi Chand is on bail. His bail bonds shall stand cancelled. He shall now surrender to serve out the sentence. *******