Judgment Shiv Kumar Sharma, J.-This appeal owes its origin in the Judgment dated 29.06.2001 rendered in Sessions Case No. 15/1999 by learned Judge, Special Court (Fake Currency Notes Cases) Jaipur City, Jaipur whereby the two appellants (herein after to be referred as accused) were convicted and sentenced as under:- Rais: Under Section 302 IPC: To suffer life imprisonment and fine of Rs. 200/-in default to further suffer one month simple imprisonment. Habib: Under Section 302/34 IPC: To suffer life imprisonment and fine of Rs. 200/-in default to further suffer one month simple imprisonment. 2. The prosecution story is woven like this:-On 22.04.1999 around 1.15 PM the informant Parvej (PW. 20) submitted a written report (Exhibit P-9) at the Police Station Ramganj, Jaipur City to the effect that at about 11.30 AM on the said day Ahmad (since deceased) and Tabrej came to his residence to meet him. After about 5 minutes when they were going towards Subhash Chowk Rais and Habib (accused) belaboured them near Lal Haveli. Habib caught hold of Ahmad and Rais started inflicting blows on the person of Ahmad with knife. When the informant raised cries Habib and Rais fled away from the spot. The informant and Tabrej took the injured Ahmad to hospital in auto-rickshaw where he was declared dead. On the basis of said report a case under Section 302, IPC was registered and investigation commenced. Autopsy on the dead body was performed, statement of witnesses under Section 161, CrPC were recorded, necessary memos were drawn accused were arrested and at the instance of Rais knife was recovered. On completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Judge, Special Court (Fake Currency Notes Cases) Jaipur City, Jaipur Charge under Section 302, IPC was framed against the accused Rais, whereas Habib was charged under Section 302/34 IPC. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 22 witnesses and exhibited 22 documents. In the explanation under Section 313 CrPC, the accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. 3. Death of Ahmad was indisputably homicidal in nature. As per post-mortem report (Exhibit P-13) following ante mortem injuries were found on the dead body:-“1. In the explanation under Section 313 CrPC, the accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. 3. Death of Ahmad was indisputably homicidal in nature. As per post-mortem report (Exhibit P-13) following ante mortem injuries were found on the dead body:-“1. Abrasion 1 x ½ cm reddutions (Lt.) tibinal upper. 2. Abrasion 3 x 1 cm reddutions fronto medial of Lt. elbow joint. 3. Incised wound of size ½ x ¼ x skin deep oblique Lt. side neck lower anterior laterally fresh clotted blood. 4.Incised wound 2 x ½ cm x skin deep oblique fresh clotted blood Lt. side abdomen near umbilicus 4 cm Lt. side from umbilicus. 5.Incised wound 2x ½ cm skin deep oblique fresh clotted blood over Lt. arm upper ¼ part medially axillary area. 6. Incised wound 2 ½ cm x 1 cm oblique and skin deep. Fresh clotted blood over posterior bonder of Rt. axilla middle part. 7. Incised wound (stab) wound of size 2 ½ x 1cm x chest cavity deep oblique fresh clotted blood over left side chest anteriorly near mammary line lower part over in between 5th and 6th inter costal space segram” The cause of death was shock brought about as a result of injuries to vital organs. According to Dr. H.L. Bairwa (PW. 13), who performed autopsy on the dead body, the injuries were found sufficient, in the ordinary course of nature, to cause death. 4. The formation of the prosecution case is based on the testimony of informant Parvej (PW. 20) and Tabrej (PW. 4), who were examined as eye witnesses of the occurrence. 5. We have heard the submissions advanced before us and carefully scanned the material on record. 6. We first proceed to discus the case of accused Habib, who was charged for having committed offence under Section 302/34 IPC. The informant Parvej (PW. 20) in his cross-examination deposed that Habib was only intervening and made attempt to resolve the matter. He stated that:- Þ;g ckr lgh gS fd tc eSus >xM+k ns[kk rks gchc chp cpko dj jgk FkkA dHkh vgen dks idM+ jgk Fkk] dHkh jbZl dks idM+ jgk FkkAß 7. It is trite law that Section 34 IPC is only a rule of evidence and does not create a substantive offence. He stated that:- Þ;g ckr lgh gS fd tc eSus >xM+k ns[kk rks gchc chp cpko dj jgk FkkA dHkh vgen dks idM+ jgk Fkk] dHkh jbZl dks idM+ jgk FkkAß 7. It is trite law that Section 34 IPC is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. Common intention requires a prior consent or a pre-planning. It is intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed. 8. Having carefully scanned the material on record we find that the accused Habib did not share common intention with accused Rais. Habib was only present at the scene of occurrence and only made attempt to intervene. Thus, charge under Section 302/34 IPC is not established beyond reasonable doubt against accused Habib. 9. That takes us to the case of accused Rais, who was charged under Section 302 IPC. The informant Parvej (PW. 20) categorically deposed against Rais. According to Parvej, Rais was inflicting knife blows on the person of Ahmad. Tabrej Khan (PW. 4) also corroborated the testimony of Parvej and stated that Rais took out knife from his pent and stated inflicting blows with knife on the person of Ahmad. As per the statement of Investigating Officer, knife allegedly used in the commission of offence, was recovered vide recovery memo (Exhibit P-5) at the instance of accused Rais. The blade of knife was 13 cm. in length and it contained the words “The Best Defense China” The injuries inflicted by Rais were found sufficient to cause death in the ordinary course of nature by Autopsy Surgeon. 10. Mr. Alok Sharma, learned Counsel for the accused Rais criticised the finding of learned trial Judge from various angles. It was canvassed that since the incident occurred suddenly in the heat of passion and it was not a planned act of accused Rais and the deceased had received only one fatal injury the conviction of accused Rais could be altered from Section 302 to 304 Part II IPC. It was canvassed that since the incident occurred suddenly in the heat of passion and it was not a planned act of accused Rais and the deceased had received only one fatal injury the conviction of accused Rais could be altered from Section 302 to 304 Part II IPC. Reliance is placed on Manke Ram vs. State of Haryana, 2003 (11) SCC 238 , Keshav Lal vs. State of M.P., 2002 (3) SCC254, Malhu Yadav vs. State of Bihar, 2002 (5) SCC 724 and Bajranga vs. State of Rajasthan, 2005 (3) WLC 274 (Raj). 11. Per Contra, learned Public Prosecutor supported the impugned Judgment and argued that accused Rais was already having a knife in his pocket and repeatedly inflicted knife blows on the person of Ahmad, therefore, his case comes under clause thirdly of Section 300 IPC and he was rightly convicted and sentenced. 12. Having gone through the case law cited before us, we notice that in Malhu Yadav vs. State of Bihar (Supra), there was no premeditation to commit the offending act and as a matter of fact from the genesis or origin of the occurrence, it could be seen that accused (A-1) while uprooting some of the standing crops, was caught by witness (PW. 10) and during the course of tussle and hullas raised, only the other members of the family of the deceased and villagers as well as the accused arrived on the scene and the attempt as well as the aim of the accused was merely to get another accused (A-1) released from the clutches of the witness (PW. 10) and the deceased, and only when their request to allow the other accused (A-1) to go was rejected with a retort that A-1 will be subjected to a Village Panchayat and till then he would not be released, the situation flared up suddenly and worsened, resulting in the assault on the deceased. Thus, Exception 4 to Section 300 was found attracted and the accused was convicted under Section 304 Part I IPC. 13. Thus, Exception 4 to Section 300 was found attracted and the accused was convicted under Section 304 Part I IPC. 13. In Manke Ram vs. State of Haryana (Supra), it was an admitted case that there was no enmity between the accused and deceased and a few days before the incident in question the accused was promoted to the rank of Assistant Sub-Inspector of Police and he was put in charge of Sangatpura Police Station wherein the deceased was also posted as Head Constable. It was also the case of the prosecution itself that on the fatal day when the accused came back from the duty to his quarters he invited the deceased to his room to have a drink which was accepted by the deceased and both of them were drinking in the room of the accused. It is at that point of time PW. 5 who happened to be the nephew of the deceased came into the room and interrupted their drinking session by asking his uncle to get up and join him for dinner which was obviously not liked by the accused who being offended by the said interruption started abusing in a language which was not to the liking of the deceased, who protested against such abuses. It was also the prosecution case that it is sequel to this interruption of PW. 5, a physical fight started between the accused and the deceased in which, of course, the accused used his service revolver causing fatal injuries. While PW. 5 stated that there was no physical fight between the deceased and the accused; the accused contended that there was such physical fight in which he was sought to be strangulated by the deceased because of which he used the service revolver to protect himself . In such circumstances, it was held by their Lordships of Supreme Court that the incident took place in a sudden fight in the heat of passion at the time when the accused and deceased had consumed considerable amount of alcohol. It was also found in view of the fact that the service revolver being next to the place where the fight took place and not kept there by a planned act by the accused it cannot be ruled out that the shots were fired not with an intention of taking any undue advantage by the accused. It was also found in view of the fact that the service revolver being next to the place where the fight took place and not kept there by a planned act by the accused it cannot be ruled out that the shots were fired not with an intention of taking any undue advantage by the accused. It was probable that in an inebriated condition the accused used the service revolver because of the physical fight between the two and the accused was found guilty of an offence punishable under Section 304 Part II IPC. 14. In Keshav Lal vs. State of M.P. (Supra), it was found that the occurrence took place all of a sudden in the heat of passion without any premeditation. The accused was, therefore, found entitled to the benefit of Exception 4 and he was convicted under Section 304 IPC. 15. In Bajranga vs. State of Rajasthan (Supra), the Division Bench of this Court viewed the manner and method of accused, position of victim, resistance offered by him, opportunity available to witnesses to see occurrence, presence of light and other factors and discussed the intention being not to cause death, altered the conviction from Section 302 IPC to Section 304 Part I IPC. As such the ratio of the cases, on which reliance is placed by learned Counsel for the accused Rais is not applicable in the instant case. 16. As already noticed in the instant case, the accused Rais was having a knife of 13 cm. long blade (made by China) in his pocket and on seeing Ahmad started inflicting blows indiscriminately on the person of Ahmad, who was declared dead while taken to the hospital. Dr. H.L. Bairwa (PW . 13), who performed autopsy on the dead body, deposed that the injuries sustained by the deceased were sufficient, in the ordinary course of nature, to cause death. We are, therefore, of the view that the accused Rais inflicted injuries on the person of Ahmad with the intention to cause bodily injuries and the bodily injuries intended to be inflicted were sufficient, in the ordinary course of nature, to cause death. We find ourselves unable to persuade with the submissions of learned Counsel for the accused Rais that Exception 4 to Section 300, IPC is attracted. We find ourselves unable to persuade with the submissions of learned Counsel for the accused Rais that Exception 4 to Section 300, IPC is attracted. In the facts and circumstances of the case, in our considered opinion, the case of accused Rais is covered by clause thirdly of Section 300,IPC and he was rightly convicted and sentenced under Section 302, IPC. 17. For these reasons we dispose of the instant appeal in following terms:- .(i) Weallow the appeal of accused Habib and acquit him of the charge under Section 302/34 IPC. He on bail, he need not surrender and his bail bonds stand discharged. .(ii) Appeal of accused Rais stands dismissed and his conviction and sentence under Section 302, IPC stand confirmed. (iii) The impugned Judgment of trial Court stands modified as indicated above