Judgment :- M. Thanikachalam, J. The accused in S.C.No.79/94 on the file of the District Sessions Judge, Chengalpet, who stand convicted for the offences under Sections 302 r/w 34 and 307 r/w 34 I.P.C., are the appellants. 2. The Inspector of Police, Duraipakkam Police Station, had filed a final report against the accused/ appellants, alleging that both the accused are liable to be convicted under Section 302 r/w 34 I.P.C. as well as Section 307 r/w 34 I.P.C. (two counts), since they have intentionally, with common intention, committed the murder of one Mayan on 25.6.1993 at about 10.00 p.m., by assaulting with deadly weapons, that in the same incident, they have attempted to commit murder of one Kurumban as well as Durai and in that process, they had caused injuries also to them and therefore, they should be dealt with accordingly. 3. The learned trial Judge, satisfying himself, by going through the materials placed before him, to proceed further, framed charges, questioned the accused for which they refused to plead guilty, disputing the averments in the final report also. 4. To prove the case, as projected in the final report, which was reflected in the charges, 14 witnesses had been examined and 26 documents were filed, in addition to producing of 7 material objects. 5. The learned trial Judge meticulously examining the above evidence, arrived at a conclusion that the charges (1) & (2) framed against both the accused, alone had been proved, whereas the third charge framed against both the accused had not been proved. In this view, he acquitted both the accused from the third charge and convicted and sentenced both the accused under charge Nos. 1 & 2 i.e. under Sections 302 r/w 34 I.P.C. as well as 307 r/w 34 I.P.C., directing both the accused to undergo life imprisonment for the offence under Section 302 r/w 34 I.P.C. and 7 years R.I. for the offence under Section 307 r/w 34 I.P.C. 6. Aggrieved by the conviction and sentence slapped by the trial Court, this appeal is filed, questioning the correctness of the trial Court's finding, on various grounds. 7. The facts leading to conviction in brief: (a) Thiru Kurumban, P.W.1 is the brother of one Mayan. Durai (P.W.2), Govindaraj (P.W.4) and Dasan (P.W.5) are residing in the house of P.W.1. Thiru Sekar (P.W.3) is residing adjacent to the house of P.W.1. 7. The facts leading to conviction in brief: (a) Thiru Kurumban, P.W.1 is the brother of one Mayan. Durai (P.W.2), Govindaraj (P.W.4) and Dasan (P.W.5) are residing in the house of P.W.1. Thiru Sekar (P.W.3) is residing adjacent to the house of P.W.1. (b) On 25.6.1993, when the wife of P.W.1 had been to fetch water, there was some wordy altercation between her and Karunanidhi, the first accused. When P.W.1 came to his house on that evening, the matter was reported to him by his wife, who in turn went to the house of the first accused to question his conduct. But, A1 was not there and therefore, he returned. (c) On the same day, at about 10.00 p.m. or so, P.W.1, his brother Mayan, P.W.3, P.W.4 and P.W.5 were watching TV programme in the house of P.W.5. At that time, A1, who entered there, without caution, questioned P.W.1 and his brother, that how dare were they to make quarrel with ladies, when he was absent. While responding, Mayan asked the first accused to get out from the premises. At that time, the first accused stabbed Mayan over his abdomen, causing stab injuries through which his intestine came out. At the same time, A1 also beat Mayan on his left shoulder and on seeing this, P.W.1 attempted to assault A1 with stick. The second accused, who is the brother of the first accused, on seeing this, assaulted P.W.1 with knife causing injuries over the leg as well as hand. P.W.2, who came there to prevent further untoward incident, was attacked by the second accused, causing injuries over his head. On seeing this, P.W.1 assaulted the second accused, which blow fell on his father also. Thereafter, both the accused flew away from the scene of crime. (d) Dasan, P.W.5 in order to save P.W.1, P.W.2 and his brother Mayan, took them in an auto to the doctor P.W.7, who declared Mayan, dead. He had treated P.W.2 and issued Ex.P.6. Treating P.W.1 also, P.W.7 had issued Ex.P.7, accident register copy. The second accused who came for treatment was also treated by P.W.7., for which Ex.P.9 accident register copy was issued. P.W.2 was further treated by P.W.8 and he had issued Ex.P.12, certificate. He had treated P.W.2 and issued Ex.P.6. Treating P.W.1 also, P.W.7 had issued Ex.P.7, accident register copy. The second accused who came for treatment was also treated by P.W.7., for which Ex.P.9 accident register copy was issued. P.W.2 was further treated by P.W.8 and he had issued Ex.P.12, certificate. (e) On 25.6.1993 at about 11.00 p.m., A2 along with his father and sister went to the police station and preferred a complaint to P.W.13, who registered a case in Cr.No.2339/1993 on the same night i.e. on 26.6.1993 at about 1.00 a.m. On receipt of information through phone about the death of Mayan and hospitalisation of P.Ws.1 & 2, P.W.13 rushed to the hospital, examined P.W.1 recorded his statement Ex.P.1, on which basis, later on, he had registered a case in Cr.No.2340/96, under Sections 302 and 324 I.P.C., for which the printed F.I.R. Ex.P.21 was submitted to the court concerned, marking the copies to the higher authorities for investigation, etc. (f) Thiru Soundararajan, P.W.14, the then Inspector, Duraipakkam Police Station, on receipt of the copy of the first information report, rushed to scene of crime, prepared observation mahazar, sketch, and recovered material objects 6 & 7 under the cover of a mahazar, in the presence of the witnesses. After recording the statements of the witnesses, he went to the hospital, conducted inquest over the body of Mayan and the result is Ex.P.24. (f) At the request of P.W.14, on receipt of Ex.P.14, P.W.9 conducted autopsy over the body of Mayan, which revealed the following internal as well as external injuries: External Injuries: 1. Abrasions a) 1 cm x ½ cm over the left cheek; b) 3 cms x 1 ½ below the right collar bone; c) 2 cms x 2 mm over the back of left shoulder. 2. Fracture of left collar bone over the outer aspect. 3. An oblique, incised gaping wound of 4 ½ cms x 3 ½ cms just above the left side front of hip, through which part of the small intestine found protruded. Internal Injury: An oblique, incised gaping wound of 4cms x 1cm x 1/2cm over the left side of pelvic floor, with diffuse haematoma around. Analysing the effect of the above injuries, the doctor had opined that Mayan died of haemorrhagic shock, as a result of stab injuries over the abdomen, as indicated in Ex.P.15. Internal Injury: An oblique, incised gaping wound of 4cms x 1cm x 1/2cm over the left side of pelvic floor, with diffuse haematoma around. Analysing the effect of the above injuries, the doctor had opined that Mayan died of haemorrhagic shock, as a result of stab injuries over the abdomen, as indicated in Ex.P.15. (g) P.W.14, in continuation of the investigation, examined other witnesses and arrested the second accused on 14.7.1993. The first accused surrendered before the Court. By examining the arrested accused, M.O.2 was recovered under Ex.P.26, on the basis of Ex.P.25, admissible portion of the confession statement of A2. Thereafter, taking the first accused into his custody from the court, when he was examined, A1 volunteered under Ex.P4 to disclose the concealment of the weapon (M.O.1), which was recovered under Ex.P.5. (h) The investigation of both crime Nos.2339 & 2340/1993 revealed the fact that the case given by the second accused is a mistake of fact, whereas the complaint given by P.W.1 is a genuine one. Thus, concluding the investigating officer had filed a final report and on that basis, both the accused have been tried and the result was the conviction, which is impugned before us. 8. Heard the learned counsel appearing for the appellants Mr. K. Kannan and the learned Additional Public Prosecutor. 9. Learned counsel, Mr. K. Kannan appearing for the appellants submits, that P.W.1 and his men are the aggressors and in fact the accused party are the victims, which was not taken note of by the trial Court. It is the further submission of the learned counsel for the appellants that, no consistent case is projected, regarding the incident said to have taken place, as well as the involvement of the accused, but unfortunately, the trial Court had failed to note the same. It is the further submission of the learned counsel for the appellants, that there would not have been any common intention between the accused to murder or to attempt to commit murder, but unfortunately without taking into consideration the non participation of the accused, for the alleged offence under Sections 302 I.P.C. and 307 I.P.C. both the accused were convicted, as if they should be dealt with under Section 34 I.P.C., which is erroneous. On the above basis, the learned counsel for the appellants submits that the relief should be given to the accused, at least on the basis of the benefits of doubt. 10. The learned Additional Public Prosecutor would contend that though some of the injured witnesses had not supported the case of the prosecution, the injured eye witnesses viz., P.W.1 had categorically deposed about the involvement of the accused and explained the injuries sustained by A2 as well as his relatives, whose evidence is so convincing, inspiring and there is nothing wrong in sustaining the conviction on the basis of the sole evidence of P.W.1, which is supported by other unquestionable attending circumstances. In this view, opposing the contentions raised by the appellants, he submits no interference is required, since a well considered legally sound judgment had been rendered by the learned trial Judge. 11. The third charge against both the accused is that they have attempted to commit murder of one Durai, who has been examined as P.W.2. The learned trial Judge has recorded a finding that the prosecution has failed to prove that both the accused attempted to commit murder of P.W.2 and in this view, acquitted the accused/appellants from this charge. Questioning the same, no appeal has been preferred and therefore, this Court is not called upon to go into detail regarding the evidence given by P.W.2, except for the limited purpose, to find out whether his evidence is supportive of the prosecution case, in respect of other two charges. 12. The specific case of the prosecution is that while the second accused attempted to commit murder of P.W.1, viz., Kurumban, the first accused being present, with common intention, acted in furtherance of the same and in this view, a plea was made to convict the first accused also under Section 34 of I.P.C., which was accepted by the trial Court. The specific case of the prosecution is that while the second accused attempted to commit murder of P.W.1, viz., Kurumban, the first accused being present, with common intention, acted in furtherance of the same and in this view, a plea was made to convict the first accused also under Section 34 of I.P.C., which was accepted by the trial Court. By going through the evidence available on record, taking the evidence of P.W.1 as such, without any minus or plus, we are unable to say that the lower Court is justified in convicting both the accused under Section 307 r/w 34 I.P.C. Even if the evidence of P.W.1 is to be accepted, as stated supra, the maximum that would prove is, the offence under Section 326 I.P.C. only, against the 2nd accused and the same could not be stretched to the first accused also, under Section 34 I.P.C., which is not so elastic, so as to include any person, who was present in the scene of crime. 13. Dr. Jambulingam (P.W.7), who examined P.W.1 when he was brought to hospital by P.W.5 on 25.6.1993 at about 11.35 p.m., had noticed four injuries and they are: 1. Incised wound about 1 ½" long 1" deep over right dorsum of middle finger. 2. Deep incised wound about 2 cm x 1 cm over right lateral part of thigh. 3. An incised wound over right parietal region about 1 ½" long ½" deep 4. Abrasion over left side neck and chin left side. One of the injuries is related to brain and therefore, the doctor had opined under Ex.P.13 that, that injury is grievous in nature. In the cross examination, P.W.8 had certified that one of the injuries sustained by P.W.1 is grievous in nature, which is not seriously challenged. Therefore, accepting the oral evidence of P.Ws.7 & 8, we conclude that P.W.1 sustained grievous injury in the incident narrated in the final report. If this grievous injury was aimed to terminate the life of P.W.1, knowing fully well that the injury would cause death and in that case, the person, who caused the injury should face the offence for murder, then automatically A2 would be held liable under Section 307 I.P.C. and not otherwise. If at all, he should be dealt with only under Section 326 I.P.C., since he had caused injuries to P.W.1, endangering his life. 14. If at all, he should be dealt with only under Section 326 I.P.C., since he had caused injuries to P.W.1, endangering his life. 14. As far as Section 34 I.P.C. is concerned, it fails to act or react against the first accused. It is not the case of P.W.1 that while the second accused had attacked him, using the knife, the first accused also assaulted him, being present or contributed any act, to commit the offence by the first accused. In the absence of any overt act committed by the first accused, as far as P.W.1 is concerned, convicting the first accused, as did by the trial Court, is erroneous, in our view, under Section 307 r/w 34 I.P.C. or under Section 326 r/w 34 I.P.C. Subject to the acceptance of the oral evidence given by P.W.1, the second accused could be convicted only under Section 326 I.P.C. As seen from the evidence, no prearranged plan between the two accused, has been made out. Further, even as per the oral evidence of P.W.1, it is not his case that the first accused also attacked him, while the second accused attempted upon his life or attempted to endanger his life. It is the repeated case of P.W.1, that the second accused by name Shanmugam alone, stabbed him with knife, questioning the conduct of P.W.1, since he attempted to assault the brother of the second accused. Therefore, if the act done by the second accused, whether it comes under 307 I.P.C. or 326 I.P.C., as the case may be, the second accused alone would be liable to be punished and not the first accused, for the injury sustained by P.W.1. 15. There was an incident on 25.6.1993 at about 10.00 p.m., though the charges did not say so. In the same incident, as disclosed by the medical certificates viz., Exs.P.9, P.10 and P.11, the accused party also sustained some minor injuries. The difference of time noted in the documents are as reported by the parties, approximately. It is also not the case of the defence before us, that one of the accused and his relatives have not sustained injuries in the same incident, whereas they have sustained injuries elsewhere by the attack of P.W.1's party. The difference of time noted in the documents are as reported by the parties, approximately. It is also not the case of the defence before us, that one of the accused and his relatives have not sustained injuries in the same incident, whereas they have sustained injuries elsewhere by the attack of P.W.1's party. In view of the fact that A2 and others have sustained injuries in the same incident, an argument was advanced before us, as if the prosecution party is the aggressor, whereas the accused party is the victim. If both the parties had sustained injuries on the same incident, then only this kind of defence would arise, thereby suggesting, irrespective of the time noted in the certificates, it could be safely concluded as did by the trial Court that the second accused, his relatives and P.W.1, deceased Mayan had sustained injuries only in the same incident. The question of non explanation of injuries sustained by A2 as well as his relatives, fails to create any doubt in our mind, in view of the clear explanation given by P.W.1, which is not suppressed by the investigating officer also. The investigating officer had produced the wound certificates or accident register copies, as the case may be, for the injuries sustained by A2 as well as his relatives. P.W.1 has categorically deposed that when the first accused stabbed Mayan, on seeing the same, he attempted to assault A1 and at that time, when A2 assaulted him, in turn he assaulted A2 by a stick, which fell upon the father of A2, thereby causing injuries. The above case spoken by P.W.1, as seen from the cross examination, is not under challenge. In fact, it is suggested to P.W.1, as seen from the cross examination that when two parties entered into the scuffle, the prosecution party also sustained injuries and taking advantage of the same, as well as the previous enmity, a false case is foisted. This suggestion, coupled with other attending circumstances, as concluded by us, strengthens once again, that in the same incident, both the parties have sustained injuries and the injuries sustained by accused party had been properly explained by P.W.1. This suggestion, coupled with other attending circumstances, as concluded by us, strengthens once again, that in the same incident, both the parties have sustained injuries and the injuries sustained by accused party had been properly explained by P.W.1. Further considering the nature of injuries inflicted by the first accused to the deceased as well as by the second accused to P.W.1, it cannot be said that the prosecution party is the aggressor, whereas the accused party is the victim. Hence, branding P.W.1 and his men as aggressor, no relief could be given to the accused, as claimed by the learned counsel for the appellants. In this view, this defence is rejected. The presence of both the accused is more or less an admitted fact and the same is also proved by the acceptable evidence of P.W.1, whose evidence is supported even by the hostile witnesses viz., P.Ws.2 & 3. The trial Court, considering the acceptable evidence of P.W.1, has come to the conclusion that the second accused alone caused grievous hurt to P.W.1, which is also supported by the effective investigation. Under the above said circumstances, we conclude that the second accused alone had caused grievous hurt to P.W.1. Thus, concluding we have to see, whether it would come within the meaning of Section 307 I.P.C. 16. As far as A2 is concerned, he had know intention or mens rea to commit murder of P.W.1 and therefore, he would not have attempted his life also. As seen from the oral evidence of P.W.1, when P.W.1 attempted to assault Karunanidhi-A1, by natural impulse, the second accused being the brother, reacted and assaulted P.W.1, of course using deadly weapon. It is also not said, at the time of assault by A2, by words, expressing his intention to commit murder of P.W.1. The injuries are not so serious causing any deformity over the body of P.W.1. It is also not said, at the time of assault by A2, by words, expressing his intention to commit murder of P.W.1. The injuries are not so serious causing any deformity over the body of P.W.1. Thus, it is crystal clear, when there was a scuffle between the parties and the second accused had seen his brother being attacked, he acted voluntarily, without any intention or premeditation and in that course, he had assaulted P.W.1 using deadly weapon, causing grievous injury and therefore, in our considered opinion, this will not come within the meaning of Section 307 I.P.C. whereas the act of the second accused comes within the ambit of Section 326 I.P.C., under which Section alone, this accused is liable to be convicted, for causing injury to P.W.1. There was no contribution by A1, though present. In other words, it cannot be said that the first accused acted with common intention or done anything, for the commission of the offence, in furtherance of the common intention. Therefore, though the first accused was present when the second accused had inflicted grievous hurt to P.W.1, he is not liable to be convicted under Section 326 I.P.C. also. The trial Court had not properly analysed the effect of Section 34 I.P.C. Hence, the conviction slapped against A2 under Section 307 r/w 34 I.P.C. has to be set aside and he is to be convicted under Section 326 I.P.C., thereby acquitting the first accused from this charge. 17. The first charge is that both the accused with common intention and in furtherance of the same, committed murder of one Mayan by stabbing, as well as causing some other kind of injuries on 25.6.1993 at about 10.00 p.m., which case was accepted by the trial Court, as such. P.W.9, who conducted autopsy over the body of Mayan, had noticed the above stated external injuries, as incorporated in Ex.P.15 and on dissection, it was noticed that there was a gaping wound of 4 cm x 1 cm x ½ cm over the left side of pelvic floor, which cut the blood vessel causing bleeding, which appears to have taken the life of Mayan, as opined by the doctor that he died of haemorrhagic shock, as a result of stab injuries over the abdomen. The cause spoken by P.W.9, is not in challenge and therefore, safely we conclude that because of the stab injury alone, Mayan had met with his end. 18. P.W.1 is an injured witness and his presence is not questioned. He has specifically stated that when they were watching TV in the house of P.W.5, all of a sudden, the first accused Karunanidhi entered the house and questioned the previous conduct of P.W.1 and Mayan. It is the further case of P.W.1 that when his brother Mayan requested the first accused to go away, he uttered- The above evidence so given by P.W.1 is not at all challenged, except throwing some suggestion that in the scuffle Mayan sustained injuries, that too even not stating that A1 was not responsible for the injuries. The trial Court very elaborately and eloquently considering the oral evidence of P.W.1, which is supported by the medical evidence, came to an unerring conclusion, that the stab injury was caused by A1 to the deceased Mayan. It is also admitted by the hostile witness, P.W.2, that there was some dispute between the parties, in which he had sustained injuries. It is further strengthened by another hostile witness, P.W.3 that he had seen Karunanidhi, who came to the house of P.W.1 and caused disturbance. For the reasons best known to P.Ws.2 and 3, they have not fully supported the case of the prosecution. But their evidence in a way supports the presence of A1 and the specific act committed by A1 is proved by the acceptable oral evidence of P.W.1. It is also the case of P.W.4 that the incident had taken place in the house of P.W.5, that there was a wordy altercation between Karunanidhi and P.W.1 at the first instance, etc. This evidence is confirmed by the evidence of P.W.5, who had stated about the stab injuries sustained by Mayan, who fell near his house and P.W.1's house. It is the further case of P.W.5 that Mayan informed to him that Karunanidhi stabbed him, which in a way could be treated as dying declaration, not challenged. 19. This evidence is confirmed by the evidence of P.W.5, who had stated about the stab injuries sustained by Mayan, who fell near his house and P.W.1's house. It is the further case of P.W.5 that Mayan informed to him that Karunanidhi stabbed him, which in a way could be treated as dying declaration, not challenged. 19. P.W.6, who was present at the time of arrest of the first accused by the investigating officer, though not spoken about the actual arrest, would state categorically about the confession, disclosing the whereabouts of M.O.1 which was recovered under Ex.P.4, later identified by P.W.1 as the weapon used by A1, which is well supported by the investigating officer. The doctor has also opined, that the weapon like M.O.1 would cause stab injuries sustained by the deceased Mayan. We are unable to find any discrepancy in the injuries sustained by Mayan, in order to say that this weapon could not have been deployed by the first accused. The difference of time and the so called discrepancy pointed out by the learned counsel for the appellants, were well met out by the learned trial Judge very elaborately and we are constrained to confirm the view, since we find no error of any kind in his conclusion. In this view, we conclude that A1 had stabbed Mayan, which is the cause for his death. 20. The main contention of the learned counsel for the appellants is that in any event, the first accused is not liable to be convicted under Section 302 I.P.C., if at all his act should come under Section 304 I.P.C., since the act comes within the frame of Exception (4) to Section 300 I.P.C. In this context, we have to see under what circumstances the incident had taken place. 21. P.W.1 had stated that his wife had informed to him about the dispute, which had taken place, while fetching water, between Karunanidhi and herself. He had also further stated, in order to question the same, he went to the house of Karunanidhi, where he was not available. Naturally when P.W.1 had been to the house of the first accused, he would have uttered some words, though he suppressed, taking into consideration the suffering sustained by his wife at the hands of Karunanidhi. He had also further stated, in order to question the same, he went to the house of Karunanidhi, where he was not available. Naturally when P.W.1 had been to the house of the first accused, he would have uttered some words, though he suppressed, taking into consideration the suffering sustained by his wife at the hands of Karunanidhi. When Karunanidhi came to the house, it was informed to him, who in turn rushed to the house of P.W.1 and questioned the conduct. Thus, it is seen, there was no premeditation to commit the murder of Mayan or to attempt to commit the murder of P.W.2. If at all, the first accused, accompanied with A2, would have gone to the scene of crime, only to question the conduct of Mayan and P.W.1 and in that process, it seems A1 was armed with deadly weapon. When there was sudden fight in the heat of passion, upon a sudden quarrel, even without taking undue advantage, not acting in a cruel or unusual manner, naturally aggravated by the questioning of the conduct of Mayan and P.W.1, A1 stabbed Mayan and this should come only under Exception 4 to 300 I.P.C. Unless, he had the intention to cause death or of causing such bodily injury, as is likely to cause death, he would not have chosen the deadly weapon and stabbed Mayan over the abdomen, though it is a single stab, proved to be fatal. In this view, we are of the considered opinion that the conduct of the first accused comes under Section 304(i) I.P.C. If there was no quarrel preceding to the incident and the first accused had not questioned the previous conduct of Mayan and P.W.1, the matter would be something different. The previous conduct, leading to the incident, amply prove the fact that there was a sudden fight, without premeditation and in the heat of passion, the incident had taken place. Under the above circumstances, punishing the accused under Section 302 I.P.C., may not be proper and the appropriate penal provision must be only under Section 304(i) I.P.C. 22. The trial Court, while convicting the first accused, had convicted the second accused also under Section 34 I.P.C., which is not acceptable to us. The Apex Court in Parasa Raja Manikyala Rao & Anr. The trial Court, while convicting the first accused, had convicted the second accused also under Section 34 I.P.C., which is not acceptable to us. The Apex Court in Parasa Raja Manikyala Rao & Anr. v. State of A.P. ( 2003 (7) Supreme 509 ,) has held as follows, regarding the application of Section 34 I.P.C. "Common intention' implies prearranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it may, however be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert." It is also further held as follows, confirming the previous decisions: "...that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted." 23. To fit in the present case, with the above dictum, we have to see the oral evidence of P.W.1. P.W.1 has not whispered even a single word about the involvement of the second accused, while the first accused stabbed the deceased Mayan. It is not the case of P.W.1 that the second accused prevented Mayan from escaping from the scene of crime or caught hold of him or assaulted him, whether that assault is the cause for the death or not. On the other hand, it is the specific case of P.W.1 that only the first accused stabbed Mayan and the second accused had not contributed his act, for the assault. Thus, it is shown by the oral evidence of P.W.1 that the second accused had not done any act in furtherance of common intention of all, which should follow, each of such person is not liable for the act done by A1, in the same manner, as if it were done by A2 also. Thus, it is shown by the oral evidence of P.W.1 that the second accused had not done any act in furtherance of common intention of all, which should follow, each of such person is not liable for the act done by A1, in the same manner, as if it were done by A2 also. In this view, it may not be legal for us, to convict the second accused under Section 304(i) r/w 34 I.P.C. 24. In the investigation conducted by the investigating officer, we are unable to find much discrepancy. The arrest and recovery are well spoken and supported by the independent witnesses. The contention of the learned counsel that the deceased had come to the house after his job at about 10.00 p.m. and thereafter alone, if at all, he would have come to the scene of crime, thereby creating some doubt, failed to inspire our confidence to cast cloud upon the prosecution case. The trial Court, considering all these facts, had come to the conclusion that A1 is responsible for the death of Mayan, which alone is acceptable to us and for the reasons recorded by us, the conviction is to be only under Section 304 (i) I.P.C. To the above extent, the appeal has to be allowed. 25. In the result, the appeal is allowed in part and the conviction and sentence slapped by the trial Court against A1 under Section 302 I.P.C. is set aside, instead he is found guilty under Section 304(i) I.P.C., for which he is directed to undergo R.I. for 7 years, acquitting of the charge under Section 307 r/w 34 I.P.C. The second accused is found guilty only under Section 326 I.P.C. instead of 307 r/w 34 I.P.C., for which he is sentenced to the period already undergone by him. He is found not guilty under Section 302 r/w 34 I.P.C. and he is acquitted of the charge. The first accused is released on bail by this Court on 12.4.1999. The first accused is directed to surrender before the trial Court within 15 days from today, failing which the trial Court is directed to secure the accused, by issuing NBW, in order to serve out the remaining period of sentence.