JUDGMENT 1. - Appellants Abdul Majid, Abdul Latif and Abdul Hafiz through this appeal under section 374 Cr.P.C., have called in question their conviction under sections 302 & 302/34 IPC recorded by learned Sessions Judge Baran, vide judgment dated 12.10.1995. Each of them has been sentenced to imprisonment for life and pay fine of Rs. 1,000/-, in default three months simple imprisonment. 2. The case relates to an occurrence which took place on 27.12.1991, at about 4.50 p.m. in village Anta, in which Abdul Hamid suffered injuries and died on 1.1.1992. The prosecution case, as disclosed in the FIR Ex.P/ 1, lodged by Abdul Wahid PW 1 eye-witness was that Abdul Hafiz and Abdul Mazid-accused had gone to the shop of Shakil for collecting the amount which was due against him and on the saying of Shakil that he had already paid Rs. 200/- and would pay the remaining amount after 2-4 days, Majid grappled with Shakil, Latif and Shokat also reached there and Shokat caused a blow by a stone on the head of Shakil. Hafiz and Latif caught hold of Abdul Hamid and Majid lifted an iron rod from a neighbouring shop, and caused injuries to him. It was further stated that the time the occurrence took place, Latif and Hafiz were exhorting Abdul Majid that they should kill Hamid and they were prepared to face the consequences. On this report, a case under sections 307, 324 & 324/34 IPC was registered. During the course of investigation the injuries of Abdul Hamid, Abdul Shakil and Abdul Wahid were examined by Dr. Y.K. Gupta, PW 9, who prepared the injury reports Ex.P / 10, 11 & 12. Abdul Hamid, who was admitted in the hospital, could not be saved despite surgical treatment given to him and he died on 1.1.1992, whereupon Section 302 IPC was added. The post-mortem-examination of the body was conducted by Dr. Shital Jain PW 12, who prepared the post-mortem- report Ex.P/16. After the completion of the investigation, the police submitted a challan against four accused persons. 3. The trial Court framed a charge under section 302 IPC against Abdul Majid and under section 302/34 against Abdul Latif and Abdul Hafiz. Shokat was charged under section 323 IPC. All the four accused pleaded not guilty. After the completion of the investigation, the police submitted a challan against four accused persons. 3. The trial Court framed a charge under section 302 IPC against Abdul Majid and under section 302/34 against Abdul Latif and Abdul Hafiz. Shokat was charged under section 323 IPC. All the four accused pleaded not guilty. The prosecution examined PW 1 Abdul Wahid, PW 2 Shakil, PW 3 Nand Ji, PW 4 Jamil, PW 5 Ahsan and PW 7 Nathe Khan as eye-witnesses. Nandji, however, did not support the prosecution version. The Medical Officers who had examined the injuries and had performed the autopsy were also examined. The accused in their statements under section 313 Cr.P.C. denied accusation. They did not examine any witness in defence. The learned Sessions Judge held that the charge under section 313 IPC was proved against Shokat. He further held that a charge under section 302 IPC was also established against Abdul Majid and charges under section 302/34 IPC were established against Abdul Latif and Abdul Hafiz. He, there fore, convicted and sentenced them as stated above. Shaukat has not challenged his conviction under section 323 IPC. 4. The contention of Mr. Bajwa, learned counsel for the appellants is two fold : (1) The act of Abdul Majid does not travel beyond Section 302 Part II IPC (2) it is not proved on record that the three appellants had shared common intention to cause the death of Abdul Hamid. 5. Learned Public Prosecutor on the other hand, tried to support the judgment of the trial Court. 6. We have given the submissions our thoughtful consideration. It has come in the evidence of Abdul Wahid PW 1 that, accused-Abdul Majid had given a blow by `Sabal' on the head of Abdul Hamid. This fact is also stated by other witnesses i.e. PW 2 Shakeel, PW 4 Jamil, PW 5 Ahsan and PW 7 Nathe Khan. This testimony stands corroborated by the medical evidence contained in the statement of Dr. Gupta PW 9, who had prepared the injury report Ex.P/12. He states that there was a lacerated wound with swelling of the diversion of 3" x 1 /2" x 1 /2" on the right frontal region of the scalp, which was caused by a blunt object. He further says that the duration of the injury, when he examined the same at 7.05 p.m., was within six hours. He states that there was a lacerated wound with swelling of the diversion of 3" x 1 /2" x 1 /2" on the right frontal region of the scalp, which was caused by a blunt object. He further says that the duration of the injury, when he examined the same at 7.05 p.m., was within six hours. There is consistency in the direct evidence and the medical evidence as regards the head injury suffered by Abdul Hamid at the hands of Abdul Majid-accused. 7. Some of the witnesses have stated that Majid had inflicted more than one blow on the head of Hamid. However, that part of the evidence cannot be believed in view of the medical evidence and the statement of Abdul Wahid PW 1. According to Abdul Wahid PW 1 only one injury was caused by Abdul Majid on the head of Abdul Hamid. As a matter of fact only one injury was found by the medical officer who had examined the injuries of Abdul Hamid. It is true that the medical officer had also observed bleeding from the right ear of Abdul Hamid, which he has recorded as injury No. 2 on the injury report Ex.P/12, but Dr. Gupta admits in categorical terms that it was possible that injury No. 2 was the result of the injury No. 1. He makes statement that it could be known only after operation as to whether there were two injuries or the injury No. 2 was the effect of injury No. 1. The Medical Officer who had performed operation has not been examined by the prosecution. In view of the statement of Dr. Gupta, more so when it is consistent with the statement of PW 1 Abdul Wahid, it has to be held that only one injury was caused to the head of Abdul Hamid by accused-Majid. 8. The question that calls for consideration is whether accused-Majid has rightly been convicted under section 302 IPC? It is noticed that the occurrence had taken place at the spur of moment. Two accused had gone to collect the amount from the son of the deceased and after some altercation Shakil and the accused were separated. It is further noticed that there was no dispute between the deceased and the accused persons. Deceased was the intervener and he suffered the injury after the first part of the occurrence had taken place. Two accused had gone to collect the amount from the son of the deceased and after some altercation Shakil and the accused were separated. It is further noticed that there was no dispute between the deceased and the accused persons. Deceased was the intervener and he suffered the injury after the first part of the occurrence had taken place. The prosecution has not brought on record as to what transpired after Shakil and accused had grappled and separated. It has come in the statement of Abdul Wahid that where was some excitement but it is not clear as to what was the cause of excitement. In the circumstances, that the deceased was an intervener and only one injury was caused by Majid and he had not repeated the blow on the vital part it has to be held that the accused had not intended to cause the death of Abdul Hamid. In any case, when the accused picked up the `Sabal' and chose to deal the blow at the head, it has to be presumed that he had the knowledge that the injury which he was causing could cause death. As such the act of the accused-Majid squarely falls under exception 4 of Section 300 IPC, punishable under section 304 Part II IPC. 9. The Apex Court in the case of Harish Kumar v. State (Delhi Administration), AIR 1993 SC 973 , on the circumstances that the accused had gone to the scene of occurrence after the initial exchange of words and he had inflicted only one injury and the deceased died two days after the infliction of the injury, held that the offence committed was under section 304 Part II of the IPC and not under section 302 IPC.So also in the case of Tholan v. State of Tamil Nadu, AIR 1984 SC 759 , where only one knife blow was caused to the deceased with whom the accused was not having any dispute and the occurrence had taken place on spur of moment, the Apex Court convicted the accused under section 304 Part II IPC. Again in the case of Hem Ram v. The State (Delhi Administration), AIR 1990 SC 2252 , where, only one stab wound had been inflicted and the occurrence had happened in spur of moment without any premeditation, the accused was convicted under section 304 Part II IPC so also in the case of K. Ramakrishnan v. State of Kerala, AIR 1999 SC 1428 , in the circumstances that only one blow was caused to the deceased and there was no animosity towards him, the accused was convicted only under section 304 Part II IPC.The aforesaid cases provide the guidelines, as to in what circumstances the act of the accused falls under section 304 Part II IPC. In our opinion in the instant case, accused-Majid, who had caused only one injury to the deceased can be convicted under section 304 Part II IPC and not under section 302 IPC. 10. Now we switch over to the second important contention of Mr. Bajwa with regard to the application of Section 34 IPC. The accused had tried to make out a case under section 34 IPC on the basis of two circumstances : (1) The co-accused had exhorted Abdul Majid to cause the death of the deceased. (2) Two accused persons had held back the deceased at the time Majid inflicted the injuries. 11. Coming to the first circumstances, it may be stated that this exhortation had not taken place before the causing of the injuries. This fact is evident by the statement of PW 1 Abdul Wahid. His statement, indicates that after Majid had inflicted the `Sabal' blow on the head of Hamid, Latif and Hamid had instigated him to kill the deceased. His statement does not show that after this exhortation injuries were inflicted on Abdul Hamid. The evidence of exhortation to constitute criminal intention under section 34 IPC must precede the act. If the exhortation was after the infliction of injuries, it cannot be inferred that all the accused had shared a common intention to cause the death of Abdul Hamid. It is significant to point out that the accused persons did not bear enmity with the deceased and they had not gone to the place of occurrence armed with any weapon and, therefore, it can be safely inferred that they had not shared common intention of causing death of Abdul Hamid. It is significant to point out that the accused persons did not bear enmity with the deceased and they had not gone to the place of occurrence armed with any weapon and, therefore, it can be safely inferred that they had not shared common intention of causing death of Abdul Hamid. Of course, some witnesses state that after Latif had exhorted, the injuries were caused by Majid but that evidence cannot be believed in view of the categorical statement of PW 1 Abdul Wahid that the exhortation had taken place after the infliction of the injury. 12. As to the second circumstance that the two accused had held back the deceased when Majid had inflicted blow, it may be stated that this fact was not stated by the witnesses in their police statements. In the FIR Ex.P/1 also this fact was not stated that the two accused had caught hold of Abdul Hamid when Majid had inflicted the injury. The evidence of holding back by the two accused is clearly an improvement in the prosecution version. It is, therefore, difficult to accept this part of the prosecution story. Even if for arguments sake, it is accepted that the two accused-Latif and Abdul Hafiz had caught hold of Abdul Hamid and thereafter Majid had caused injuries to Hamid, the inference of common intention can not be drawn. There is nothing on record that at the time two accused had caught hold of Abdul Hamid was having any weapon in his hand. It seems that after the two accused had held back Abdul Hamid, Majid thought of bringing the weapon from the shop, situated nearby and he inflicted the blow. On the basis of the observations of their lordships in the case of Ramashish Yadav & Ors. v. State of Bihar, 1992 (2) SC (Criminal) 267 , it is not possible to press into service Section 34 IPC to convict Abdul Latif and Abdul Hafiz. It can not be safe to convict Hafiz and Latif with the aid of Section 34 IPC. They can be convicted only under section 323 IPC for their individual acts. 13. Consequently, the appeal partly succeeds. The conviction of the appellants under section 302 or 302/34 IPC is vacated. Instead, accused-Abdul Majid is convicted under section 304 Part II IPC and Abdul Latif and Abdul Hafiz are convicted under section 323 IPC. They can be convicted only under section 323 IPC for their individual acts. 13. Consequently, the appeal partly succeeds. The conviction of the appellants under section 302 or 302/34 IPC is vacated. Instead, accused-Abdul Majid is convicted under section 304 Part II IPC and Abdul Latif and Abdul Hafiz are convicted under section 323 IPC. Abdul Mazid is sentenced to suffer rigorous imprisonment for seven years and pay a fine of Rs. 1,000/-u/s. 304 Part II IPC. In default, he shall undergo three months simple imprisonment. Abdul Hafiz and Abdul Latif are sentenced to undergo rigorours imprisonment for three months under section 323 IPC which they have already undergone. They are not required to surrender to the bail bonds which stand cancelled.Appeal partly allowed. *******