JUDGMENT 1. - This appeal is directed against the judgment dated 27.3.1995 passed by the Additional Sessions Judge, Banner, convicting the appellants of offence under section 302/34 IPC and sentenced each of them to undergo imprisonment for life. They have also been convicted of the offence under section 325/34 IPC and sentenced to five years rigorous imprisonment each. They have also been convicted of the offence under section 324/34 IPC and sentenced to two years rigorous imprisonment. Each of the appellants has been asked to pay a compensation to the tune of Rs. 10,000/-, in total Rs. 40,000, payable to the dependents of deceased Saroopa Ram. Each of the appellant has also been asked to pay a sum of Rs. 500/-, in total Rs. 2000/-, as compensation to injured PW 3 joga Ram. 2. Briefly stated the prosecution case is that on 3.7.1994, PW 3 Joga Ram submitted a written FIR at Police Station, Shiv, stating inter alia that at about 9.00 a.m. while he was standing in front of his house, his son Saroopa Ram was ploughing the field. At that time, appellants-Kachhba Ram armed with a `kulhadi' Gaja Ram & Chutra Ram with `kassi' and Amba Ram with a lathi, arrived there. Standing on the border of the field, they gave a call to Saroopa Ram and enquired as to who had uprooted the wooden pads embodied by them. Saroopa Ram questioned back as to how they embodied wooden pads in his field and, therefore, he had uprooted them. Accused persons asked Saroopa Ram to come close to them. Saroopa Ram did not go, as such, the accused persons entered in the field and dragged him to their field. Accused Gaja Ram gave a `kassi' blow on the head of Saroopa Ram, Kachhba Ram attacked on him by `kulhari' and Chutra Ram by `kassi' on account of which he fell down. He was also thrased when he went to save the life of his son. He was released on intervention by PW 7 Chandana Ram and PW 8 Bhanwara Ram. However, Saroopa Ram succumbed to the injuries on the way to Gunga Hospital. On this information, police registered a case for the offence under sections 302, 307 IPC and proceeded with investigation. After usual investigation, police laid chargesheet against the appellants for the offence under sections 302, 302, 447, 325, 324, 323 read with with Section 34 IPC. However, Saroopa Ram succumbed to the injuries on the way to Gunga Hospital. On this information, police registered a case for the offence under sections 302, 307 IPC and proceeded with investigation. After usual investigation, police laid chargesheet against the appellants for the offence under sections 302, 302, 447, 325, 324, 323 read with with Section 34 IPC. 3. The appellants denied the charges levelled against them and claimed trial. The prosecution in support of the case examined 13 witnesses and produced certain documents. The appellants in their statements under section 313 of the code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them. Analysing the prosecution evidence, the trial Court found the prosecution case proved against the appellants and, as such, convicted and sentenced them as noticed above. 4. Mr. Manish Shishodia, learned counsel appearing for the appellants, contended that the original telephonic message, which has been treated as FIR and which must have been recorded in the Rojnamcha, has been deliberately not produced and, thus, genesis and original version of the incident has been deliberately suppressed from the Court. It is also submitted that the fact assumes further importance because of the fact that the document, which has been treated as FIR, seems to be a post investigation document giving sufficient opportunity to the complainant to exaggerate, embellish as well as falsely implicate more accused persons in the occurrence. It is also submitted that the prosecution has not explained the injuries on the person of one of the accused i.e. Kachhba Ram. It is also submitted that the learned Judge has committed error in applying Section 34 IPC in the facts of the case. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court. 5. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. Before we deal with the contentions of the respective parties, we may indicate the evidence produced by the prosecution during trial. 6. PW 1 Dr. Prem Chand Deepan has stated that on 3.7.1994, he conducted the post-mortem of the dead body of deceased Saroopa Ram and noticed the following injuries : "Skull fractured in the middle of skull. Both parietal bones damaged & fractured with eversion of membranes & oozing of blood. Both cerebral hemisphere & part of cerebellum cut & damaged. PW 1 Dr. Prem Chand Deepan has stated that on 3.7.1994, he conducted the post-mortem of the dead body of deceased Saroopa Ram and noticed the following injuries : "Skull fractured in the middle of skull. Both parietal bones damaged & fractured with eversion of membranes & oozing of blood. Both cerebral hemisphere & part of cerebellum cut & damaged. A deep lacerated wound present in the middle of skull measuring 12cm x 4cm x 8cm & another 6cm x 2cm x 3cm." He has proved the post-mortem report Ex. P4. In his opinion, the cause of death was due to fracture of skull bones & damage of brain (fatal injury to both cerebral hemisphere & cerebellum) with loss of excess blood.On the same day, he also examined injuries of PW 3 Joga Ram and noticed the following injuries: "1. Lacerated wound 3cm x 0.5cm x 0.3cm on forehead; 2. Lacerated wound 4cm x 0.5cm x 0.2cm on Lt. parietal region; 3. Swelling 6cm x 4cm x on Lt. forearm; 4. Scratch not measurable on Lt. hand." He has proved the injury report Ex.P1 On radiological examination, injury No.3 was found to he grievous. He opined that all the injuries except injury No. 3 are simple caused by blunt object. 7. PW 2 Dr. H.R. Soni has stated that on 6.7.1994, he examined the injuries of accused-Kachhba Ram at the request of the police and noticed the following injuries vide Ex. P/5: "1. Abrasion 5cm x 3cm, outer aspect of left shoulder joint; 2. Abrasion with bruise 6cm x 3cm present on right shoulder joint; 3. Bruise 11/2cm x 1cm, base of nail bed of right hand middle finger." 8. The prosecution in support of the case has examined three eye witnesses viz; PW 3 Joga Ram father of deceased Saroopa Ram, PW 7 Chandana Ram and PW 8 Bhamra Ram, PW 4 Shyam Singh, PW 6 Hukma Ram, PW 9 Guman Singh and PW 10 Pabudan Singh are the formal witnesses being the motbirs of the different memos prepared by the police. 9. PW 3 Joga Ram is the father of deceased Saroopa Ram. He has stated that on 3.7.1994, he was standing outside his house. He also stated that near the `dhoras' of his field, there were two khuntas (wooden pads), which were removed by his son Saroopa. 9. PW 3 Joga Ram is the father of deceased Saroopa Ram. He has stated that on 3.7.1994, he was standing outside his house. He also stated that near the `dhoras' of his field, there were two khuntas (wooden pads), which were removed by his son Saroopa. He also stated that appellants-Kachha, Gaja, Chutra and Amba arrived together at the scene of occurrence and gave a call to Saroopa Ram. They questioned as to who had removed the `khuntas'. Saroopa admitted to have removed the same as they were fixed in his field. The appellants called him to come close to them. Saroopa did not move. All the accused persons dragged him to their field. When they were dragging Saroopa, he rushed to the spot. He further stated that appellants-Kachhba gave a `kulhari' blow on right hand of Saroopa. Thereafter, Gajja gave a `kassi' blow on the head of Saroopa. Chutra also gave a kassi blow on his head and Amba inflicted a lathi blow. Saroopa fell down. All the accused persons thrashed his son Saroopa. He covered him and asked them as to what wrong was done by Saroopa. He further stated that at that time, PW 7 Chandana Ram and PW 8 Bhamra Ram also arrived. On their intervention, the accused persons released them. Saroopa was taken to hospital in a tractor. As the doctor was not available, he was taken to the hospital at Gunga. On the way, Saroopa succumbed to the injuries. In the hospital, the doctor declared him dead. In the cross-examination, he admitted that PW 7 Chandana Ram and PW 8 Bhamra Ram arrived after hearing the distress call given by him. He also admitted that the occurrence took place in the field of the accused persons. He also admitted that the dispute between the parties was settled about five years back, however, stated that immediate reason for quarrel was fixing of wooden pads by the accused persons in his field. He also admitted that since last more than one year, they have been asking the accused persons to remove the `khuntas' but they were not removed. He also admitted that on 3.7.1994, the incident took place because of removal of `khuntas' by deceased Saroopa. He also denied the suggestion that Saroopa assaulted Kachhba. He also admitted that one of the appellants-Amba was 90 years old at the time of incident. 10. He also admitted that on 3.7.1994, the incident took place because of removal of `khuntas' by deceased Saroopa. He also denied the suggestion that Saroopa assaulted Kachhba. He also admitted that one of the appellants-Amba was 90 years old at the time of incident. 10. PW 7 Chandana Ram has stated that on the date of incident at about 9.00 a.m., when he was proceeding towards his shop, he witnesses a quarrel in the field of Joga Ram & Kachhba Ram, Gajja Ram was armed with a `kudal` (kassi), Kachhba with a `kulhari', Chutra Ram having `kudal' (kassi) and Amba with a lathi. He also stated that Gajja Ram gave a `kudal' blow on the head of Saroopa, Kachhba Ram inflicted an injury on the right hand of Saroopa and Amba Ram gave a lathi blow. He also stated that after Saroopa Ram had fallen, his father PW 3 Joga Ram covered him. He alongwith Bhamra Ram reached on the spot and got them released. In the cross examination, he stated that he witnessed the incident from a distance of 200 pawandas. He also admitted that incident took place because Saroopa Ram had removed the khuntas fixed by Gajja Ram. 11. PW 8 Bhamra Ram has stated that his field is near the field of PW 9 Jora Ram. At about 9.00 a.m., he was ploughing his field. The shouts from the field of Joga Ram attracted him. When he turned to the field of Joga Ram, he noticed Amba Ram, Chutra Ram, Kachhba Ram and Gaja Ram dragging Saroopa Ram towards their field. Gaja Ram and Chutra Ram gave a `kudali' blow on the head of Saroopa Ram. Kachhba Ram gave `kulhari' blow on the right hand of Saroopa. Amba Ram inflicted injury by lathi. Saroopa Ram had fallen on the ground. He was covered by his father PW 3 Joga Ram. On intervention by him and Chandna Ram, the victims were released. In the cross examination, he admitted that he had witnessed the incident from a distance of 200 pawandas. He also admitted that the incident took place because deceased Saroopa had removed the `khuntas'. He also admitted that the actual incident took place two to four minutes after his arrival on the spot. 12. PW 5 Prabhu Ram has stated that he has a tractor in the partnership with Joga Ram. He also admitted that the incident took place because deceased Saroopa had removed the `khuntas'. He also admitted that the actual incident took place two to four minutes after his arrival on the spot. 12. PW 5 Prabhu Ram has stated that he has a tractor in the partnership with Joga Ram. On 3.7.1994 at about 9.00 a.m., when he reached in the field with the tractor, quarrel between Joga Ram and the accused persons was already over. PW 11 Sawai Singh has also stated almost in the same line i.e. he reached on the spot after the incident was over. 13. PW 12 Ratan Lal is a police witness. He has stated with respect to the receipt of articles of seized and packed and keeping of the same in the Malkhana. PW 13 Rewant Singh was S.H.O. Police Station, Shiv at the relevant time. He has investigated the incident. He has stated that on receiving a telephonic message to the effect that a quarrel had taken place among the `Kumbhars' of Mandaliya and they had taken their injured to village Gunga, he reached to the hospital at Gunga and received a written F.I.R. Ex. P/6 from PW 3 Joga Ram. He has give the details of investigation. He has also given the details of recovery of weapons of offence from all the accused persons. The details are not required to be given as the weapons have not been produced in the Court. Thus, the evidence of recovery is not incriminating in this case. In the cross examination, he admitted that the incident took place in the field of Amba Ram and his sons. 14. The statements of three eye-witnesses viz; PW 3 Joga Ram, PW 7 Chandna Ram and PW 8 Bhamra Ram are consistent that all the four accused persons caused injuries by different weapons to deceased Saroopa Ram. The first criticism against the eye witnesses is that they have not given the true version of the incident. It is submitted that the true incident has been deliberately suppressed from the Court. Much emphasis has been laid on the fact that the prosecution has not produced the Rojnamcha, wherein the information received about the incident has been entered. We do not find any substance in the contention. It is submitted that the true incident has been deliberately suppressed from the Court. Much emphasis has been laid on the fact that the prosecution has not produced the Rojnamcha, wherein the information received about the incident has been entered. We do not find any substance in the contention. PW 13 Rewant Singh has stated that he had received the information only to the effect that a quarrel had taken place among the Kumbhars of village Mandaliya and the injured have been taken to the hospital at Gunga. On receiving this information, he immediately reached to the hospital, where a written F.I.R. Ex. P6 was submitted to the police. PW 3 Joga Ram has stated that Saroopa Ram died on the way to hospital at Gunga. The doctor after examining Saroopa, declared him dead. He got the report written by a boy of school on payment of Rs. 5/-. He submitted the F.I.R. Ex.P6 before the S.H.O., Police Station, Shiv. He stated that he was seriously injured and remained in the hospital for one month. There is no reason to disbelieve the statement of PW 13 Rewant Singh corroborated by the statement of PW 3 Joga Ram. 15. Another criticism is that the injuries on the person of accused- Kachhba Ram have not been explained. It is well established that in all cases, it is not necessary for the prosecution to explain the injuries, more particularly when they are of trivial nature. PW 2 Dr. Hemraj Soni, who examined Kachhba Ram and prepared the injury report Ex.P.5, has stated that all the injuries were simple in nature caused by blunt object. There are abrasions/bruises on finger or on the shoulder. 16. It is argued by the learned counsel that there is a contradiction between the ocular and medical evidence inasmuch as there are no injuries on the person of deceased Saroopa Ram, caused by sharp edged weapon. In this regard, PW 1 Dr. Prem Chand Deepan in the cross-examination has denied the suggestion that the lacerated wound can be caused only by a blunt object. He explained that a lacerated wound can be caused even by a sharp-edged weapon. He has stated that it depends upon the depth of the injury. Thus, in view of the statement of Dr. Prem Chand Deepan, we do not find any inconsistency between the ocular and medical evidence. He explained that a lacerated wound can be caused even by a sharp-edged weapon. He has stated that it depends upon the depth of the injury. Thus, in view of the statement of Dr. Prem Chand Deepan, we do not find any inconsistency between the ocular and medical evidence. However, as the eye witnesses have attributed the head injury to Gaja Ram and Chutra Ram by two different weapons, it was not necessary for the prosecution to show the weapon to the expert and to confirm as to by which weapon, the injury on head could have been caused. Accused Gaja is alleged to have caused injury on the head by `kassi', whereas Chutra is alleged to have caused injury on the head of Saroopa by `kulhari'. There is no injury caused by lathi attributed to Amba. There is also no injury on the right hand of Saroopa attributed to accused-Kachhba. Thus, apparently, Kachhba and Amba Ram have not caused any injury to deceased Saroopa. It is difficult to comprehend the participation of Amba Ram, who was admittedly 90 yrs. old at the time of the incident. The appellants-Chutra Ram and Kachhba Ram are the sons of Amba Ram and Gaja Ram is his grand son. If the two sons and a grand son were dragging Saroopa Ram, there was no reason for Amba Ram, a 90 yrs. old person, to join them. The three eye witnesses have definitely exaggerated the incident by implicating Amba Ram in the incident. This finding finds assurance from the fact that no injury has been caused to Saroopa Ram by lathi. Thus, the statement of three eye-witnesses cannot be relied upon, so far as the participation of appellant-Amba Ram is concerned. 17. All the accused persons have been convicted of the offence under section 302 IPC with the aid of Section 34 IPC. Under section ;14 1PC, when a criminal act is done by several persons in furtherance of the common intention of all, each of such manner, as if it were done by alone. The words employed in Section 34 I.P.C. in furtherance of the common intention of all" are of great significance. The common intention is anterior in time to the commission of crime. The words employed in Section 34 I.P.C. in furtherance of the common intention of all" are of great significance. The common intention is anterior in time to the commission of crime. When out of the named accused persons, some have actually assaulted the victims, the weapons and blows may indicate the intention to kill but necessarily, that intention may not be attributed to a person, who has not participated. In such a situation, Section 38 IPC comes into play. Section 38 IPC reads as follows : "38. Persons concerned in criminal act may be guilty of different offences.Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that Act." Thus, Section 38 IPC applies to a criminal act jointly done by several persons, when such persons had different intention in doing the joint act.In Abrahim Sheikh v. State of West Bengal, reported in AIR 1964 SC 1263 , the Apex Court observed that though several persons may do a criminal single act, the responsibility may vary according to their degree of participation. The Apex Court referred the illustration given in Section 38 IPC. This has been followed by the decision of the Apex Court in Bhaba Nanda Sharma v. State of Assam reported in AIR 1977 SC 2252 . 18. The injuries found on the person of deceased Saroopa Ram are of severe nature. There are two lacerated wounds on the head and one simple injury on the elbow. The injuries on the head have been attributed to Gaja Ram and Chutra Ram. The participation of Kachhba Ram in the crime cannot take him to sharing the common intention to cause the murder of Saroopa Ram. As far as Amba Ram is concerned, we have already held that his participation in the crime is extremely doubtful. As regards the appellants-Gaja Ram and Chutra Ram, it may be noticed that `khuntas' (wooden pads) were fixed since long. The deceased Saroopa committed mischief by removing them. The appellants did not arrive on the spot after preparation. It appears that the incident has taken place on spur of the moment. Both the appellants have given single blow. In these circumstances, it cannot be said that they shared a common intention to commit murder of Saroopa Ram. The deceased Saroopa committed mischief by removing them. The appellants did not arrive on the spot after preparation. It appears that the incident has taken place on spur of the moment. Both the appellants have given single blow. In these circumstances, it cannot be said that they shared a common intention to commit murder of Saroopa Ram. At best, they can be clothed with the knowledge that their act was likely to cause death. Thus, appellants-Gaja Ram and Chutra Ram are liable to be convicted for the offence under Section 304 Part 11/34 IPC instead of Section 302 IPC. Accused Kachhba is liable to be convicted for the offence under section 324 IPC. 19. Consequently, this appeal is partly allowed. Appellant Amba Ram and Kachhba are acquitted of offence under section 302/34 IPC . Appellant Kachhba is convicted of offence under section 324 IPC and the sentence is reduced to the period already undergone. They are on bail. Their bail bonds stand discharged. The conviction of appellants Gaja Ram and Chutra Ram is converted into offence under section 304 Part II read with Section 34 IPC. Both of them are awarded the sentence to the period already undergone. However, we are inclined to enhance the amount of compensation in case of Chutra Ram. Accused Gaja Ram will pay a compensation to the tune of Rs. 15,000/- and Chutra Ram will pay an amount of Rs. 25,000/- as compensation. The higher amount has been awarded to Chutra Ram for the reason that he got some relief in the matter of substantive sentence as we have thought it proper not to send him back in the jail after number of years. Thus, the total amount of compensation of Rs. 40,000/-, as awarded by the trial Court remains intact. This amount shall be deposited with the trial Court within a period of three months from today. On depositing the amount, the same shall be paid to PW 3 Joga Ram for the benefit of widow and children of deceased Saroopa Ram. Thus, the appellant-Gaja Ram shall be released forthwith, if he is not required in any other case. Their bail bonds stand discharged.Appeal partly allowed. *******