J. N. BHATT, J. ( 1 ) SINCE both these appeals arise out of common judgment they are being disposed of also by this common judgment. Criminal Appeal No. 1204 of 1992 is at the instance of original accused No. s. 1. 2 and 3 whereas Criminal Appeal no. 27 of 1993 is at the instance of original accused No. 4 of Sessions Case No. 119 of 1992 which are hereinafter referred to as accused persons 1 to 4 respectively for the sake of convenience and brevity. ( 2 ) THE accused persons by filing these two appeals under Sec. 374 Cr. P. C. , 1973 (Code) gave assailed the judgment of conviction and sentence recorded by the Addl. City Sessions Judge in Sessions Case No. 119 of 1992 passed on 4-8-1993 whereby accused persons came to be convicted and sentenced for having committed offence punishable under Sec. 302 read with Sec. 34 I. P. C. and resultant sentence of life imprisonment for having committed murder of one Satish Mohanlal and also under Sec. 323 of I. P. C. and Sec. 135 (1) of Bombay Police Act read with Sec. 34 but no separate order of sentence is recorded. ( 3 ) FEW relevant material facts may be narrated at this stage. On 27-1-1992 at about 4-00 p. m. incident occurred near the house of Arvind Jayantilal in Naroda "c" colony in Ahmedabad. As per prosecution case the accused persons formed a common intention to commit murder any and every person whoever will intervene in saving the complainant-Arvind Jayantilal. In pursuance of said common intention accused No. 1-Arvind inflicted a blow on the left waist portion of the deceased- satish with the help of iron pipe. Accused No. 4-Tinu @ Vinu inflicted pipe blow on the head of deceased-Satish whereas accused No. 3-Manojkumar @ Manubhai gave a stick blow on hand of the deceased-Satish and accused No. 2-Sanjay pelted stones which hurt the deceased on the neck portion. Accused No. 4-Tinu @ Vinu inflicted pipe blow on the head of deceased-Satish whereas accused No. 3-Manojkumar @ Manubhai gave a stick blow on hand of the deceased-Satish and accused No. 2-Sanjay pelted stones which hurt the deceased on the neck portion. It was, therefore, alleged by the prosecution that the accused persons either in pursuance of common intention or by abatement with each other and committed murder of Satish and were guilty of offence punishable under Sec. 302 read with Sec. 34 of I. P. C. and Sec. 302 read with Sec. 140 of I. P. C. ( 4 ) IT was also the case of prosecution that accused No. 3-Manojkumar inflicted stick blow on the person of Dinesh, accused No. 2-Sanjay gave fist blows to Arvind Jayantilal and threw stone on Jayantilal which hurt him on his back. Therefore, the accused persons were also charged for having committed offence punishable under Sec. 323 read with Sec. 34 or in the alternative under Sec. 323 read with Sec. 114 I. P. C. It was also the case of the prosecution that individually accused Ne. 4-Tinu @ Vinu was responsible for committing murder of Satish by inflicting iron pipe blow on the head of deceased Satish and thereby had committed offence punishable under Sec. 302 whereas accused No. 2-Sanjay had caused voluntary hurt to Arvind Jayantilal and therefore, he was also responsible for punishment under Sec. 323 I. P. C. Accused No. 1-Anil, accused No. 3-Manoj and accused No. 4 -Vinu were charged for having committed offence punishable under Sec. 135 (1) of Bombay Police Act for committing breach of Notification of the Ahmedabad Police Commissioner, dated 27-12-1991 published in the newspaper under Sec. 37 (1) of the Bombay Police Act, 1951. ( 5 ) IN order to substantiate the charges against the accused persons the prosecution had relied on the following 16 PWs :1. Ashwinkumar R. Rajpura, 2. Dilipbhai M. Solanki, 3. Rameshchandra B. Shah, 4. Jayantilal B. Sojitra, 5. Mansukhbhai Tarabhai, 6. Tinubhai J. Gohil, 7. Vinayakrav V, Patil, 8. Ashwin J. Sinhgarh, 9. Harish G. Singhal, 10. Bela T. Patel, 11. Natvarbhai P. Patel, 12. Mahendrabhai H. Pandya, 13. Bhanuprasad @ Dinesh P. Makwana, 14. Jehaji Dahyaji, 15. Maldev V. Parmar, 16. Govind J. Chaudhary. Dilipbhai M. Solanki, 3. Rameshchandra B. Shah, 4. Jayantilal B. Sojitra, 5. Mansukhbhai Tarabhai, 6. Tinubhai J. Gohil, 7. Vinayakrav V, Patil, 8. Ashwin J. Sinhgarh, 9. Harish G. Singhal, 10. Bela T. Patel, 11. Natvarbhai P. Patel, 12. Mahendrabhai H. Pandya, 13. Bhanuprasad @ Dinesh P. Makwana, 14. Jehaji Dahyaji, 15. Maldev V. Parmar, 16. Govind J. Chaudhary. ( 6 ) PROSECUTION also placed reliance on the documentary evidence to which reference will be made by us as and when required at an appropriate stage. The accused persons have not led any defence, however, they have relied on the documentary evidence produced at Exh. 57 to 59 at their instance. They are the medical case paper regarding medical treatment given to deceased-Satish in Civil Hpospital. ( 7 ) UPON examination and evaluation of evidence and after hearing the learned A. P. P. and the Advocate appearing for the defence, the trial Court found that the accused persons are guilty of the offence punishable under Sec. 302 read with Sec. 34 I. P. C. for committing murder of Satish Mohanlal. The trial Court also found that accused No. 4-Vinu @ Tinu individually guilty for his act of giving pipe blow on the head of the deceased-Satish and convicted him for the offence punishable under Sec. 302 over and above the conviction of accused persons under Sec. 302 read with Sec. 34 of I. P. C. The accused persons are also held guilty for the offence punishable under Sec. 323 I. P. C. and also under Sec. 135 (1) of Bombay Police Act. All the accused persons came to be sentenced for Rigorous Imprisonment for life. No separate sentence was awarded for the offence under Sec. 323 I. P. C. and 135 (1) of Bombay Police Act, 1951. ( 8 ) WE have extensively heard the learned Advocates-M/s. Nitin Amin and K. G. Sheth and the learned A. P. P.-Mr. K. P. Raval and we have also dispassionately gone through the entire testimonial and documentary evidence relied on by the parties. In our opinion, the impugned judgment and order of conviction and sentence for the offence punishable under Sec. 302 read with Sec. 34 I. P. C. is not sustainable. The prosecution has not been able to show that there was common intention to kill every and anybody whosoever intervene or intercept in saving the life of Arvind jayantilal. In our opinion, the impugned judgment and order of conviction and sentence for the offence punishable under Sec. 302 read with Sec. 34 I. P. C. is not sustainable. The prosecution has not been able to show that there was common intention to kill every and anybody whosoever intervene or intercept in saving the life of Arvind jayantilal. Such an unusual, bold and vague allegation of prosecution must be spelt out from the surrounding circumstances. The learned A. P. P. has not been able to satisfy us that there are circumstances which would lead us to any inference on such common intention on the part of the accused persons. Unfortunately, the learned trial Judge has also not seriously considered this aspect. We have, therefore, no hesitation in finding that the prosecution has not been able to prove the common intention as alleged. ( 9 ) PROSECUTION has placed reliance on the following three eye-witnesses : (i) PW 8-Arvind Jayantilal-complainant-Exh. 38, (ii) PW 9-Harish Chandulal- exh. 39-cousin of the complainant, (iii) PW 13-Dinesh Punjabhai Makwana- exh. 49-Student of F. Y. B. A. of S. V. Arts College. ( 10 ) THE PW 8-Arvind Jayantilal-complainant has stated in his evidence that the accused No. 1-Anil inflicted pipe blow on the person of PW 13-Dinesh whereas PW 9-Harish has stated in his evidence that the accused No. 1-Anil inflicted blow with iron pipe on the left hand side portion of Satish when he intervened for saving Arvind Jayantilal. Evidence of Harish on this point is supported by PW 13- Dinesh. ( 11 ) INSOFAR as the role of accused No. 2 is concerned it is stated by all the three eye-witnesses that he was not armed with any weapon. He had thrown a stone on the back portion of Arvind Jayantilal and also at Satish which hit him on the neck portion. ( 12 ) ALL the three eye-witnesses have stated that the accused No. 3-Manoj @ manu was armed with stick and while he was trying to inflict a stick blow on the person of Jayantilal it landed on the person of Satish. He had also given stick blow on PW 13 who tried to intervene. Second blow was also given to him on the left waist portion. Prosecution is, therefore, that the accused No. 3-Manoj had onl% inflicted stick blows. He had also given stick blow on PW 13 who tried to intervene. Second blow was also given to him on the left waist portion. Prosecution is, therefore, that the accused No. 3-Manoj had onl% inflicted stick blows. ( 13 ) INSOFAR as accused No. 4-Vinu @ Tinu is concerned, it is consistent case of the prosecution that he was armed with iron pipe produced at Art. 4 and while attempting to give a blow on the person of Jayantilal, Harish intervened and the blow landed. on his-left waist portion. ( 14 ) PW 9-Harish Chandulal and PW 13-Dinesh have consistently testified that the stick blow was given by Vinu @ Tinu on the head portion of Satish. Said blow given on the head ultimately proved fatal. ( 15 ) THE autopsy was conducted by PW 7-Dr. V. V. Patil who was examined at Exh. 28. The post-mortem report is produced at Exh. 29. According to medical evidence of Dr. Patil and as per post-mortem report the deceased had sustained as many as 7 injuries out of which one was serious and inflicted on the head. The remaining injuries, were simple. The injury sustained by the deceased on his head was corresponding to external injury as per Column 19 of the post-mortem report which was sufficient in ordinary course of nature to cause death and all the injuries were ante-mortem as per medical evidence and external injury corresponding to internal injury enumerated in Column 19 of the post-mortem report-Exh. 29 was sufficient in ordinary course of nature to cause death which proved fatal and it was possible by iron pipe like muddamal article 4. Prosecution has successfully proved that the aforesaid fatal injury was given by accused No. 4 -Vinu @ Tinu who used muddamal article-iron pipe and other accused persons have given simple injuries to the deceased-Satish as well as injured witnesses. In this connection, the prosecution has relied on the decision of the Honble Supreme Court in the case of Gurmail Singh and Ors. v. State of Punjab, reported in AIR 1982 SC 1466 . ( 16 ) IT is settled proposition of law that ordinarily the evidence of injured eyewitness could not be discredited and/or discarded unless it is successfully felt out from the record that such testimonies are totally unrealiable and untrustworthy. v. State of Punjab, reported in AIR 1982 SC 1466 . ( 16 ) IT is settled proposition of law that ordinarily the evidence of injured eyewitness could not be discredited and/or discarded unless it is successfully felt out from the record that such testimonies are totally unrealiable and untrustworthy. We have no hesitation in holding the original accused No. 4-Vinu @ Tinu the appellant in Criminal Appeal No. 27 of 1993 had given fatal blow with the help of muddamal article 4-iron pipe on the head of deceased-Satish which culminated into his death. The question, which now. is required to be considered is as to whether the conviction and sentence recorded by the trial Court for offences punishable under Sec. 302 read with Sec. 34 is sustainable or not. Firstly, it may be mentioned that the prosecution has not been able to successfully establish that there was common intention as alleged by the prosecution. Therefore, there is no question of vicarious liability with the help of Sec. 34 I. P. C. Insofar as the death of deceased-Satish mohanlal is concerned, only accused No. 4 had given blow with iron pipe-Article 4 on his head which resulted into his death. It could not be said to have been done out of common intention as no such common intention is proved. There is also no evidence on the record to show that the accused Nos. 1, 2 and 3 had committed abatement. So, the alternative case of the prosecution for offence committed by accused No. 4 was abetted by accused Nos. 1, 2 and 3 is also not proved beyond reasonable doubt. ( 17 ) UNDER these circumstances, the accused persons are liable for individual acts for commission of offences. Insofar as accused No. 1 is concerned he had used iron pipe and had given blow which proved to be simple injury. Therefore, accused No. 1 only could be held guilty for offence punishable under Sec. 324 of I. P. C. Section 324 prescribes punishment for voluntarily causing hurt by dangerous weapons and offender can be punished with imprisonment of either description for a term which may extend for 3 years or with fine or with both. Accused No. 1 has undergone the punishment for more than 6 years. Maximum punishment prescribed is of 3 years. Accused No. 1 has undergone the punishment for more than 6 years. Maximum punishment prescribed is of 3 years. Accused No. 1 has to undergo maximum sentence for offence punishable under Sec. 324 for three years. Whereas he was undergone as such almost double the period of maximum punishment. Therefore, he is required to be set at liberty forthwith. ( 18 ) ACCUSED No. 2, brother of accused No. 1 is also found guilty for the offence punishable under Sec. 323 as he had pelted stone and caused voluntary hurt. He has also undergone more than 3 and years punishment. Maximum punishment for offence under Sec. 323 is one year or fine or with both. Accused No. 2 is, therefore, convicted and sentenced for offence punishable under Sec. 323 for maximum period of one year. Sentence he has already completed that period he shall be set at liberty forthwith. Since he has already granted bail and he has completed the maximum period sentenced by us his bail-bond, therefore, shall stand cancelled. ( 19 ) ACCUSED No. 3 is found to have given stick blows and inflicted injury, therefore, he is convited and sentenced for the offence punishable under Sec. 324 I. P. C. to undergo Rigorous Imprisonment for three years. He has already undergone more than that period. Therefore, he shall be set at liberty forthwith. ( 20 ) NOW, the important question which falls for our consideration at this juncture is with regard to culpability of accused No. 4. The evidence unequivocally disclose that the accused No. 4 was armed with iron pipe and inflicted blow on the head of deceased. It is also amply clear from the evidence on record there was no intention to commit murder of deceased. Alleged common intention has not been proved to the hilt. In such circumstances, it cannot be said that the offence committed by him is culpable homicide amounting to murder. In order to bring the case within para 3 of Sec. 300 I. P. C. it ought to be established that there was a common intention to inflict particular bodily injury which in the ordinary. course of nature was sufficient to cause death. It is noticed by us in the course of evaluation of evidence of prosecution that the accused No. 4 though armed with iron pipe had no intention to commit murder of deceased. course of nature was sufficient to cause death. It is noticed by us in the course of evaluation of evidence of prosecution that the accused No. 4 though armed with iron pipe had no intention to commit murder of deceased. In fact, the intention was to inflict pipe blow on the complainant, the deceased became victim of the assault when he tried to intervene in the assault in saving the pipe blow being inflicted upon Jayantilal. In that process iron pipe held by the accused No. 4 unknowingly landed on the head of the deceased. It could also be safely concluded that he did not have intention to cause particular type of injury on the person of deceased. No doubt, the injury caused by him on the head of deceased is found to be sufficient in ordinary course of nature to cause death. What ought to be found is that the injury found to be the injury that was intended to be inflicted, no such evidence is led. Any such circumstances are spelt out. Therefore, the culpability and the criminality committed by the accused No. 4 could be at the best punishable under Sec. 304 Part II. As he had committed culpable homicide not amounting to murder in case of death of deceased. He is, therefore, required to be convicted and sentenced for the offence punishable under Sec. 304 Part II for Rigorous Imprisonment of 6 years. We are informed that -he has already undergone more than six years period and therefore, he is also required to be set at liberty forthwith. . ( 21 ) IN the result, the impugned judgment and order recorded by the learned- Additional City Sessions Judge in Sessions Case No. 1 19 of 1992 holding all the accused persons guilty for offence punishable under Sec. 302 read with Sec. 34 is quashed and accused persons are acquitted of the said charges against them. ( 22 ) ACCUSED Nos. 1, 2, 3 and 4, therefore, are held individually liable for their individual act as stated by us thereinabove. Both the appeals are partly allowed. .