JUDGMENT 1. - This Criminal Appeal under section 374 Criminal Procedure Code arises out of the judgment and order dated 2.12.1999 passed by the learned Additional Sessions Judge, Deeg, District Bhartpur, by which the learned trial Judge has convicted accused-appellant-Sikandar for offence under section 302 Indian Penal Code simplictor and appellant-Somnath for offence under section 302/34 Indian Penal Code. Both the accused-appellants have been sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- each. In default thereof each of them has to undergo simple imprisonment for three months. 2. According to the prosecution case, on 24.5.1996 PW-1 Rajesh, resident of village Sublana submitted a written report Ex.P/1 to PW-17 Ganpat Swaroop, SHO of Police Station, Kaman at the site, alleging therein that in the evening while his Bhabhi Asharani was on way to Jungle to answer the call of nature appellant- Sikandar Fauji caused and teased her. On her return, she informed this fact to his brother Prem Chand, who in turn rebuked appellant- Sikandar Fauji. After a short-while i.e. at about 7.30- 8.00 p.m. he and his brother Prem Chand returned from the Jungle and soon they reached near their home, the accused- appellants alongwith Buta Ram came there duly armed with lathis and knife. Accused-Buta and Somnath had lathis with them while accused- Sikandar had a knife. All the three accused asked to kill Prem Chand. Saying so, accused-Buta Ram and Somnath caught hold of Prem Chand, while appellant-Sikandar inflicted a knife blow on the stomach of Prem Chand with an intention to kill him, as a result thereof, the intestines of Prem Chand protruded out and he fell down on the earth and breathed his last. When he tried to apprehend to accused, the accuse tried to attack. 3. On the basis of above written report, police registered a case for offence under sections 302/34 and 120-B Indian Penal Code vide FIR, Ex.P/9 and proceeded with the investigation. In the course of investigation, the police inspected the site and prepared site plan, Ex.P/5, collected blood smeared soil and controlled soil from the place of incident and prepared a memo Ex.P/4 and seized blood stained clothes of the deceased. The accused were arrested and a knife was recovered at the instance of appellant Sikandar and a memo Ex.P/7 to that effect was prepared. 4. The deceased was subjected to post-mortem. The accused were arrested and a knife was recovered at the instance of appellant Sikandar and a memo Ex.P/7 to that effect was prepared. 4. The deceased was subjected to post-mortem. The post-mortem report, Ex.P/13 indicates that there was incised penetrating wound 6 cm x 3 cm deep up to peritoneal cavity on let side of lower abdomen passing obliquely. The Doctor noticed that there were some loops of intestines were lying on the abdominal wall passing out through the wound. On dissection of body it was found that were two incised wounds of the size of 1 cm x 1/2 cm x deep up to rumen of intestines and 1 1/2 cm x 1/2 cm x deep up to rumen of intestines. In the opinion of doctor, the cause of death was hemorrhagic shock due to the injuries sustained on abdomen and intestines. 5. Having completed investigation, the police submitted a charge- sheet against the appellants and co-accused-Buta Ram. The learned trial Court, on the basis of evidence and material collected during investigation and placed before it, framed charges against the accused-appellants and co-accused for offence under sections 302 and 302/34 Indian Penal Code. 6. In order to prove its case, the prosecution examined as many as 19 witnesses and not exhibited some documents. After the prosecution evidence was over, the accused were examined under section 313 Criminal Procedure Code The accused-appellants examined DW-1 Ram Chand, DW-2 Mukhtyar Singh and DW-3 Sabu. 7. The learned trial Judge vide order dated 14.10.1999 dropped the proceedings against co-accused-Buta Ram as he died during pendency of trial of the case. However, at the conclusion of trial, the learned trial Judge found the charges proved against the appellants and accordingly convicted and sentenced them in the manner stated hereinabove. Hence, this appeal against conviction. 8. We have heard learned counsel for the accused-appellant and the learned Public Prosecutor and have gone through the impugned judgment, evidence and material on record. In assailing the conviction of appellant-Somnath for offence under sections 302/34 Indian Penal Code, Mr. N.A. Naqvi, learned counsel for the appellant has vehemently contended that prosecution has not been able to prove beyond doubt that appellant-Somnath was at all present at the time and place of incident and, if present whether he shared common intention in causing the death of deceased. N.A. Naqvi, learned counsel for the appellant has vehemently contended that prosecution has not been able to prove beyond doubt that appellant-Somnath was at all present at the time and place of incident and, if present whether he shared common intention in causing the death of deceased. Even if his presence at the place and time of incident is established, then also mere presence of a person at the time and place of incident not by itself is sufficient to prove the existence of common intention, specifically in the absence of any evidence of the prosecution in that behalf. Learned counsel further argued that the statements of prosecution witnesses as regards the presence and role of appellant-Somnath are highly contradictory with each other. The learned trial Court has committed serious error in basing conviction of appellant-Somnath on the basis of highly unreliable and inconsistent testimony of the witnesses. In this back-ground, learned counsel has submitted that appellant-Somnath deserves to be acquitted of the charge. 9. We have considered the above argument and have scrutinised the prosecution evidence. PW-1 Rajesh, author of the FIR has deposed that accused-Buta Ram, Sikandar and Somnath were found present in front of the gate of his house at the time when he and his brother returned home. Somnath and Buta Singh (sic Ram) had lathies with them, while Sikandar had a knife. All the three accused shouted that Prem Chand should be done to death and should not be spared. Hearing the noise, Mahendrapal, Rajrani and Charan Singh came there. Having seen these witnesses, accused-Buta Singh (sic Ram) and appellant-Somnath caught hold of Prem Chand and accused-Sikandar, with an intention to kill him, struck knife blow in the stomach of Prem Chand. In cross-examination, the witness deposed that accused-Buta Ram and Somnath had caught the hands of Prem Chand. He could not state whether the accused had used one hand each or both hands in catching the hands of Prem Chand. He further stated that Buta Ram and appellant-Somnath were having lathies in their hands at the time when they caught the hands of Prem Chand. PW-2 Mahendra Pal, an eye-witness who reached the spot on hearing cries has deposed in his examination-in-chief that accused-Buta had caught one hand of Prem Chand while Somnath had caught another hand. In cross-examination, the witness stated that accused-Buta Ram was holding one hand of Prem Chand. PW-2 Mahendra Pal, an eye-witness who reached the spot on hearing cries has deposed in his examination-in-chief that accused-Buta had caught one hand of Prem Chand while Somnath had caught another hand. In cross-examination, the witness stated that accused-Buta Ram was holding one hand of Prem Chand. When confronted with his statement, Ex.D/1 he denied to have made statement to the effect that accused-Buta Ram and Somnath had cought hold the hands of Prem Chand. He further specifically denied that Somnath and Buta Ram caught hold the waist of Prem Chand. PW-7 Mst. Asharani, widow of deceased-Prem Chand and PW-8 Pinki, sister of Asharani and wife of Charan Singh (brother of deceased) both eye-witnesses of the incident have stated in their examination-in-chief that accused-Buta Ram and Somnath had caught hold her husband. In cross-examination, they stated that before accused-Sikandar struck knife blow, accused-Buta Ram and Somnath had belaboured her husband with lathies. PW-9 Mst. Rajrani, Jethani of Asharani has stated in her examination-in-chief that accused-Somnath caught hold of Prem Chand and Sikandar inflicted a knife blow on the stomach of Prem. In cross-examination, she stated that deceased-Prem Chand was her 'Dewar'. According to her, Buta Ram and Somnath did not inflict lathi blows in her presence. PW-5 Charan Singh (younger brother of deceased) who has witnessed the incident has stated in his examination-in-chief that soon Prem Chand reached in front of the gate of his house, accused-Sikandar, Somnath and Buta Ram caught Prem Chand. Prem Chand raised an alarm and asked the accused as to why they were doing so. In the meantime, Asharani, Pinkirani and Mahendrapal came out. Having seen them, accused-Somnath and Buta Ram asked accused-Sikandar "Dekhta Kya Hai, Apna Kaam Karlo". Thereupon, Sikandar struck a knife blow on the stomach of Prem Chand. In cross-examination, the witness has stated that Somnath and Buta Ram who had lathies in their hands were holding the hands of Prem Chand. He further stated that he cannot say as to which of the accused had caught hold the deceased from front side or back side. 10. From the evidence discussed above, it is evident that all the eye-witnesses of the incident are members of deceased's family. PW-1 Rajesh Kumar and PW-5 Charan Singh are the real brothers of deceased. PW-7 Asharani is the widow of deceased, while PW-9 Rajrani is the Bhabhi of deceased. 10. From the evidence discussed above, it is evident that all the eye-witnesses of the incident are members of deceased's family. PW-1 Rajesh Kumar and PW-5 Charan Singh are the real brothers of deceased. PW-7 Asharani is the widow of deceased, while PW-9 Rajrani is the Bhabhi of deceased. PW-2 Mahendra Pal is the neighbour of deceased. None of the witnesses is consistent with his/her statement as regards the role allegedly played by accused-appellant-Somnath. The written report, Ex.P/1 submitted by PW-1 Rajesh Kumar, younger brother of deceased mentions that both the accused cought (sic caught) hold of deceased by waiste, whereas the witnesses including PW-1 Rajesh have deposed that appellant- Somnath and co-accused-Buta Ram cought the hands of deceased-Prem,-Chand. PW-5 Charan Singh has gone a step ahead by stating that all the three accused cought hold of deceased. PW-9 Rajrani, Bhabhi of deceased states about appellant-Somnath only that he cought hold of deceased. PW-7 Asharani, wife of deceased has stated in her cross-examination that co-accused-Buta Ram and appellant- Somnath belaboured her husband with lathis. However, we do not find any injury having been inflicted by lathi. The medical evidence speaks about incised wounds only. It appears to us that the eye- witnesses of the incident, who happen to be members of deceased family have tried to implicate appellant-Somnath for the simple reason that he had accompanied appellant-Sikandar and was present at the place and time of incident. The prosecution has not been able to prove beyond doubt that appellant-Somnath, in any manner, helped appellant-Sikandar in causing the death of deceased. 11. To attract the provisions of Section 34 Indian Penal Code, the prosecution is obliged to prove two ingredients, namely, (i) common intention and (ii) participation of the accused in commission of the offence. If these two ingredients are satisfied, even overt-act on the part of some of the persons sharing the common intention is not necessary. In the case at hand, the prosecution could not succeed in proving any of the ingredients as against appellant-Somnath that he had the common intention and that he participated in commission of offence. What was proved that he was present on the spot at the time when fatal injury was caused to the deceased. In the case at hand, the prosecution could not succeed in proving any of the ingredients as against appellant-Somnath that he had the common intention and that he participated in commission of offence. What was proved that he was present on the spot at the time when fatal injury was caused to the deceased. In this view of the matter, it must be held that merely because accused-Somnath accompanied the principal accused when he inflicted the fatal blow to the deceased would not by itself prove the existence of common intention. The prosecution has failed to prove the case of common intention of the accused in causing death of the deceased. Thus appellant-Somnath deserves to be acquitted of the charge under section 302/34 Indian Penal Code. 12. As regards appellant-Sikandar, learned counsel appearing for the appellant frankly conceded that he does not dispute the incident of causing knife blow on the stomach of deceased-Prem Chand, which proved fatal and caused his death. However, he argued that there was no previous enmity between the parties and the incident took place on a very petty matter and the offence was committed without premeditation in a sudden quarrel, in the heat of passion upon a sudden quarrel and the appellant did not take any undue advantage. Referring the post-mortem report, learned counsel argued that appellant did not act in a cruel or unusual manner. In this back-ground, learned counsel argued that appellant-Sikandar is entitled to the benefit of Exception 4 of Section 300 Indian Penal Code. He has placed reliance on Jagtar Singh v. State of Punjab, (1983) 2 SCC 343 : 1982 Cr. L.R. (SC) 228 and Takhaji Hiraji v. Thakore Kuber Singh Chaman Singh and Ors., (2001) 6 SCC 145 . 13. We have given our thoughtful consideration to the above argument and have gone through the evidence and material as also the case laws cited at the bar. The question that we are called upon to examine in the facts and circumstances of the case is whether appellant-Sikandar could be said to have committed murder of deceased-Prem Chand, punishable under section 302 Indian Penal Code. 14. As per the prosecution case, at about 6.00 p.m. on the day of incident when Mst. Asharani wife of deceased was going to attend the call of nature, appellant-Sikandar chased and teased her. 14. As per the prosecution case, at about 6.00 p.m. on the day of incident when Mst. Asharani wife of deceased was going to attend the call of nature, appellant-Sikandar chased and teased her. On her return, she disclosed this fact to her husband Prem Chand, who in turn rebuked appellant-Sikandar and some quarrel took place. After a short-while i.e. at about 7.30-8.00 p.m. when deceased and his brother PW-1 Rajesh Kumar were returning after attending the call of nature and reached near their house, appellant-Sikandar, Buta Ram and Somnath obstructed them. Co- accused-Buta Ram has died during pendency of trial and we have disbelieved the prosecution evidence as against Somnath. Now remains appellant- Sikandar, who inflicted a knife blow on the stomach of Prem Charid, which proved fatal. There is no allegation that he repeated the blows, which is also evident from the post- mortem report that there was one incised penetrating wound 6 cm x 3 cm x deep up to peritoneal cavity on right side of lower abdomen passing obliquely. The doctor has not opined the injury on the person of deceased as being sufficient to cause death in the ordinary Court of nature. That apart, the witnesses witnessing the incident who are members of deceased's family have categorically deposed that there was no enmity between the two. 15. PW-19 Dr. Girdhari Lal Agrawal who conducted autopsy has stated that it went deep up to peritoneal cavity on left side of lower abdomen passing obliquely and some loops of intestines were lying on the abdomen wall passing out through the wound. The question that arises for determination is whether in the circumstances in which the appellant-Sikandar struck a blow with knife on the stomach, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which proved fatal. The circumstances, as aforesaid, in which the incident occurred would clearly negative any suggestion of premeditation. In our considered view, it was in sudden quarrel that appellant struck single blow with a sharp edged weapon, namely, knife. Therefore, it cannot be said that appellant intended to cause that particular injury which proved fatal. As stated above, there was no premeditation nor was there enmity or malice between the parties and that meeting was by chance. In our considered view, it was in sudden quarrel that appellant struck single blow with a sharp edged weapon, namely, knife. Therefore, it cannot be said that appellant intended to cause that particular injury which proved fatal. As stated above, there was no premeditation nor was there enmity or malice between the parties and that meeting was by chance. The cause of quarrel though trivial was just sudden and in this background the appellant struck one knife blow. In these circumstances, the appellant could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Therefore, the appellant could not be convicted for having committed murder of deceased-Prem Chand and thus, his conviction under section 302 Indian Penal Code is liable to be set aside. 16. The question which now emerges for consideration is as to what offence the appellant has committed. As per the prosecution, the incident took place on a trivial matter, in which appellant- Sikandar struck a knife blow. As already stated above, there was no previous enmity and in the circumstances, therefore, the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Accordingly, the appellant can be said to have committed an offence under section 304 Part II Indian Penal Code. 17. For these reasons, we allow the appeal of appellant-Somnath and acquit him of the charge under section 302/34 Indian Penal Code. The appellant- Somnath is on bail, he need not to surrender and his bail bonds stand discharged. Appeal of appellant-Sikandar @ Pappu is partly allowed. While modifying the impugned judgment we instead of Section 302 Indian Penal Code, convict him under section 304 Part II Indian Penal Code and sentence him to the period already undergone by him in confinement, till today. Appellant-Sikandar @ Pappu is in jail, he shall be set at liberty forthwith, if not required in any other case.Appeal partly allowed. *******