JUDGMENT S.L. Kochar, J. The appellants have filed this Criminal Appeal against the judgment passed by learned Addl. Sessions Judge, Garoth at Camp Bhanpura in ST No. 98/1990, decided on 24-11-1997, whereby sentencing all the appellants to undergo imprisonment for life and fine of Rs. 1000/- and in default of payment of fine further imprisonment for one month each u/s 302/34 Indian Penal Code, one month R.I. each u/s 323/34, Indian Penal Code and one month R.I. u/s 24 of the Cattle Trespass Act. Prosecution case MULTUM IN PARVO (much in little/in brief) before the trial Court was that on 22-9-1989 in the morning in village Kanvla 10 cows of appellants while entering into the field of complainant Harisingh and deceased Surajmal, were causing damage to the crop. The deceased Surajmal and his son Parasmal were taking those cows to cattle pond. When they reached in front of Panchayat house on the main road, appellants reached over there having axe and lathis in their hands asked Surajmal about cattle and stopped him. Surajmal replied that their cattle, after entering into his field causing damage to crops, therefore, he was taking them to cattle pond. At that juncture, appellants started beating Surajmal and Parasmal. Witnesses Harisingh and Amarsingh came to rescue them, they too were also assaulted by the appellants. Because of injuries, Surajmal fell unconscious. He was taken to Bhanpura P.S. where FIR (Ex. P. 11) was lodged by Hari Singh (PW. 5). Deceased Surajmal, witness Parasmal (PW. 14), Harisingh (PW 5) and Amarsingh (PW. 16) were sent to Bhanpura hospital for medical examination. Because of serious injuries Surajmal was immediately shifted to the Mandsaur hospital where he succumbed to the injuries in the hospital on 23-9-1989. After necessary investigation, charge sheet was filed. The case of the appellants Prahlad and Prabhudas before the trial Court was that without any reason their cows were being taken to the cattle pond by the complainant party and when they reached to rescue their cattle complainant party started beating them and caused injuries to Prabhudas and Prahlad. In that event Prabhudas and Prahlad acted in right of private defence of their person. Defence of appellant Lav and Kush was one of alibi. Appellants have not examined any witness in defence. They have got proved Rojnamcha Sanha (Ex. D. 11) which was admitted by the prosecution. In that event Prabhudas and Prahlad acted in right of private defence of their person. Defence of appellant Lav and Kush was one of alibi. Appellants have not examined any witness in defence. They have got proved Rojnamcha Sanha (Ex. D. 11) which was admitted by the prosecution. The learned trial Court, after examination of prosecution witnesses and hearing both the parties, convicted the appellants as mentioned above and this conviction is under challenge before this Court. The contention of the Sr. Counsel Shri Jai Singh is that the case of the appellants is squarely covered by the law of right of private defence and complainant party has not explained the injuries sustained by Prahlad and Prabhudas. Whereas in their report (Ex. D. 11) they have explained the injuries of the appellants. On this ground he prayed for acquittal of the appellants. During pendency of trial Prabhudas has died. The learned counsel Shri Jaisingh has placed reliance on a judgment passed by Apex Court in case of Subramany and others vs. State of Tamil Nadu, 2002 SCC (Cri) 1659. To combat appellants argument, the learned Dy. A.G. Shri Desai submitted that appellants had no right of self defence because the complainant party was lawfully taking cattle to cattle pond because they were committing damage to their crop. Therefore, question of explaining injuries would not arise and the evidence on record is clearly indicating that the appellants were the aggressor. He has also submitted that on D. 11 Rojnamcha Sanha the appellants have placed heavy reliance but in that Rojnamcha Sanha they have not explained the injuries sustained by eye witnesses PW. 14 Parasmal, PW. 16 Amarsingh and PW. 5 Harisingh. In this report, they have also admitted the fact that they requested Surajmal not to take cattle to cattle pond and in future they will not allow their cattle to go towards the field of deceased Surajmal. The learned Dy. A.G. has also vehemently submitted that Ex. D. 11 is a concocted piece of document which was brought into existence at belated stage after due deliberation and consultation which is clear from the fact that admittedly the incident had taken place on 22-9-1989 in the morning at 8.00 a.m. whereas this report was lodged at 4.00 p.m. in the P.S. though Prahlad and Prabhudas sustained simple injuries. D. 11 is a concocted piece of document which was brought into existence at belated stage after due deliberation and consultation which is clear from the fact that admittedly the incident had taken place on 22-9-1989 in the morning at 8.00 a.m. whereas this report was lodged at 4.00 p.m. in the P.S. though Prahlad and Prabhudas sustained simple injuries. Whereas the report lodged by deceased party was on the same day at 9.30 a.m. The distance of the P.S. is 10 km. The complainants' report was very prompt in time. Over and above, he has supported the judgment passed by the trial Court. Having heard the learned counsel for parties and after perusing the entire record, we are not convinced with the argument advanced by learned counsel for defence that the appellants had acted in right of private defence and are entitled for acquittal. The defence has only one document in their favour i.e. Rojnamcha Sanha (D. 11), on the basis of which heavy reliance has been placed by the learned counsel for establishing the case of self defence. On perusal, we find that this report was lodged in the P.S. at 4.00 p.m. whereas the incident had taken place in the morning at 8.00 a.m. The deceased party lodged the report immediately after one and a half hour i.e. at 9.30 a.m. whereas appellants report (D. 11) is at a belated stage and this report is not containing any explanation about delay. One fact is also notable that appellant Prahlad and deceased - accused Prabhudas were examined and on their person doctor found simple injuries. They were not admitted even for an hour in the hospital. Therefore, they had no reason for not lodging the report immediately, if they had bona fide case of private defence. Looking to the delay in lodging the report and serious infirmities as indicated hereinabove, we have no hesitation to hold that this report is a concocted piece of evidence and lodged after due deliberation and consultation. They also could not claim the private defence because they had obstructed the complainant party to take the cattle to the cattle pond especially when they were acting in accordance with law. The cattle of the appellants were damaging the crop after committing trespass in the field of the deceased. They also could not claim the private defence because they had obstructed the complainant party to take the cattle to the cattle pond especially when they were acting in accordance with law. The cattle of the appellants were damaging the crop after committing trespass in the field of the deceased. Therefore, he had all right to take the cattle to the cattle pond and accused persons have no right to stop them. P.W. 12 Bharmal has proved Ex. P. 37 showing damage to the crop in the field of Surajmal. In the statement of this witness regarding damage to the crops before whom panchanama Ex. P. 37 was prepared, nothing has come in cross examination to disbelieve this witness. The judgment relied by the counsel for appellants passed by Supreme Court in Subramany and others vs. State of Tamil Nadu (supra) is not helpful to the appellants in the facts and circumstances of the present case. In this case, the learned High Court of Tamil Nadu has given clear finding that accused persons were having settled possession over the disputed land/property and acted in right of private defence of property and they had also suffered injuries on their person which were not explained by the prosecution though the injuries were simple in nature. This is not the case on hand. In the present case, the appellants were having no right to stop the complainant party to take the cattle. The moment they obstructed them, the complainant party had right to use force. Thus, we are of the firm view that this judgment is not applicable in the present case. Apart from this, Ex. D. 11 is not explaining the injuries sustained by PW. 14 Parasmal, PW. 16 Amarsingh and PW. 5 Harisingh. Even their presence is not mentioned in this report. In accused statement u/s 313 Criminal Procedure Code appellant Prahlad has not stated that he and his father acted in right of private defence. Other two appellants Lav and Kush have pleaded alibi and according to them they were not present on the scene of occurrence. 5 Harisingh. Even their presence is not mentioned in this report. In accused statement u/s 313 Criminal Procedure Code appellant Prahlad has not stated that he and his father acted in right of private defence. Other two appellants Lav and Kush have pleaded alibi and according to them they were not present on the scene of occurrence. This Court is also of the opinion that even if the complete prosecution case is accepted as it is, the appellants could not be convicted for the offence punishable u/s 302 with the help of section 34 Indian Penal Code because there is no evidence on record to establish affirmatively that present appellants along with deceased - accused Prabhudas came to the scene of occurrence having pre-meeting, premeditation and pre-plan for committing murder of deceased Surajmal. The FIR (Ex. P. 11) lodged by PW. 5 Harisingh as well as his statement in Court and the statement in Court and the statement of injured eye witness PW. 14 Parasmal, PW. 16 Amarsingh and defence document D. 11, are clearly revealing the fact that the appellants came on the scene of occurrence just to rescue their cattle who were being taken to the cattle pond by deceased Surajmal and his son PW. 14 Parasmal. At the first instance appellants requested them not to take their cattle to the cattle pond. They have also promised for not allowing their cattle in future to go towards their field. These facts clearly indicates unequivocably that the main intention of the appellants was to get release their cattle from the complainant party so that they may not be lodged into the cattle pond. This is also admitted position between the parties that they were not having previous enmity. Thus, it would be very difficult to hold that the appellants acted in furtherance of common intention to commit murder of Surajmal. Supreme Court in case of Gajjan Singh Vs. State of Punjab, held that mere fact of coming together along with rifle does not mean that accused had common intention. A similar view has been taken by this Court in case of Aziz and others vs. State of M.P., 1991 JLJ 207 . Since the appellants did not act in furtherance of common intention to commit murder of Surajmal, their conviction with the help of section 34of the Indian Penal Code is not sustainable. A similar view has been taken by this Court in case of Aziz and others vs. State of M.P., 1991 JLJ 207 . Since the appellants did not act in furtherance of common intention to commit murder of Surajmal, their conviction with the help of section 34of the Indian Penal Code is not sustainable. Therefore, they would be responsible for their individual act. According to the statement of eye witness PW. 5 Harisingh, PW. 14 Parasmal and PW. 16 Amarsingh, who all had also received injuries in the same incident and were examined by Dr. Pramila Nahar (PW. 8). Their MLC report is P. 27, P. 28 and P. 29 respectively. This Doctor has also examined at the first instance deceased Surajmal on 22-9-1989. His MLC report is Ex. P. 26. Including injured witness with deceased none had suffered any injury caused by sharp edged weapon. The injured witness Harisingh, Parasmal and Amarsingh had all simple injuries whereas deceased Surajmal died because of head injury i.e. fracture of frontal bone and injury on face. He suffered all the injuries caused by hard and blunt object. Say of Harisingh (PW. 5) in his statement duly corroborated by his FIR (Ex. P. 11) that Prabhudas (died during the course of trial) has dealt lathi blow on the head of Surajmal. In Court, he has also improved his statement to the effect that Surajmal was assaulted by all the accused persons and in para 6, he was contradicted by defence with his FIR (Ex. P. 11) and statement (D. 1) in which he has not mentioned that apart from Prabhudas the present appellants had also assaulted deceased Surajmal by their respective weapons. More or less same are the statement of Parasmal (PW. 14) and Amarsingh (PW. 16). In view of the positive evidence available on record, Prabhudas was the author of fatal injury resulting into death of deceased. The appellant Lav was attributed for using sharp edged weapon axe and caused injury by axe but neither the deceased Surajmal nor injured witness PW. 5 Harisingh, PW. 14 Parasmal and PW. 16 Amarsingh have received any injury caused by sharp edged weapon. PW. 14 Parasmal, in para 10 of his deposition, stated clearly that appellant Lav has dealt blow with sharp side of axe on his head. But his this version is fully negatived by the medical evidence given by PW. 8 Dr. 5 Harisingh, PW. 14 Parasmal and PW. 16 Amarsingh have received any injury caused by sharp edged weapon. PW. 14 Parasmal, in para 10 of his deposition, stated clearly that appellant Lav has dealt blow with sharp side of axe on his head. But his this version is fully negatived by the medical evidence given by PW. 8 Dr. Pramila Nahar as well as M.L.C. Ex.P. 27. Thus, the overtact attributed to appellant Lav is in conflict with the medical evidence. Therefore, we held that he is not guilty of any offence and liable to be acquitted. So far as the appellant Prahlad and Kush are concerned, against them the witnesses have deposed that they caused injury by lathi to deceased Surajmal as well as injured witness Harisingh, Parasmal and Amarsingh. All these injuries are simple in nature which is clear from the statement of Dr. Pramila Nahar (PW. 8). Thus, they are guilty of commission of offence u/s 323 Indian Penal Code. In view of the aforesaid factual and legal discussion, we set-aside the conviction of the appellants u/s 302/34 and 323/34, Indian Penal Code and instead Prahlad and Kush are convicted u/s 323, Indian Penal Code and sentenced to one year R.I. Their conviction u/s 24 of the Cattle Trespass Act is maintained. Appellant Lav is acquitted from all charges. Appellant Lav is on bail. Whereas appellant Prahlad and Kush are in jail. They are directed to be released forthwith if not required in any other case. The bail bond and surety bond of appellant Lav stands discharged.