JUDGMENT S.L. Kochar, J. The Appellants have come up in appeal aggrieved with the judgment of conviction and sentence rendered against them by learned VI ASJ; Ujjain in Sessions Trial No. 177/1994 by which convicted the Appellants under Sections 302/34 and 325/34 of the Indian Penal Code, sentenced each to undergo RI for life and fine of Rs. 2000/-. n default whereof to undergo RI for six months, four years RI and fine of Rs. 500/-; in default of payment of fine to undergo two months RI respectively. However, the substantive jail sentences were directed to run concurrently. Essential facts need to be mentioned for deciding this appeal are as follows: 3. In village Rajla, Appellants and complainant party were the neighbours and between their house there was road. The field of complainant and Appellant Madanlal was also situated adjacent to the road. Therefore, complainant Shivnarayan and deceased Shambhu fixed fencing of bushes on the road to stop cattle to enter in their field. On 8-7-1993, in the evening at 7.30 p.m. complainant Shivnarayan. his brother Shambhu. their wives Reshambai and Yashodabai were standing in front of their house. At that moment Appellant Madanlal came on the road and tried to remove fencing of bushes. He was having lathi. Complainant Shivnarayan (P.W. 2) and deceased Shambhu objected removal of bushes which culminated into verbal altercation between Appellant Madanlal. complainant and deceased Shambhu and at this juncture Appellant Balu and acquitted co-accused Govardhan also reached over there having lathis and all the three started assaulting complainant Shivnarayan and Shambhu. Appellant Madanlal dealt a lathi blow, causing injury on the skull and right hand of Shivnarayan. Appellant Balu and acquitted co-accused Govardhan struck lathi blow on the person of Sliambhu. The Appellant Balu caused injury by lathi on the head of Shambhu and Govardhan on the back portion/scapula region. The incident was witnessed by Reshambai (P.W. 6). wife of Shivnarayan. Yashodabai. wife of Shambhu, neighbours Badrilal (P.W. 7) and Ramesh (P.W. 5). After assault, Appellants went away. On receiving information, father of Shivnarayan reached on the spot. He also informed Pradeep Kumar (P.W. 8) and one Munnalal. In the tractor of Pradeep Kumar (P.W. 8). The incident was witnessed by Reshambai (P.W. 6). wife of Shivnarayan. Yashodabai. wife of Shambhu, neighbours Badrilal (P.W. 7) and Ramesh (P.W. 5). After assault, Appellants went away. On receiving information, father of Shivnarayan reached on the spot. He also informed Pradeep Kumar (P.W. 8) and one Munnalal. In the tractor of Pradeep Kumar (P.W. 8). injured Shivnarayan and Sliambhu were taken to P.S. Nagda and on 9-7-1993, early in the morning at 8.30 a.m. Shivnarayan lodged the FIR vide Ex.P.7 recorded by SHO Anil Kumar Bhat and registered offence u/s 307 of the Indian Penal Code. Injured Shivnarayan and Shambhu were sent to Civil Hospital, Nagda for examination and treatment. Condition of Shambhu was bad. Therefore, he was referred to Janseva Hospital. Nagda where on 10-7-1993, in the night at 2.00 a.m. he died. On receipt of information from hospital, murg number 31/1993. u/s 174 of the Code of Criminal Procedure was registered and inquest proceedings vide Ex. P.9 was drawn by Ram Kumar Rai Investigating Officer (P.W. 12). Dead body was sent for post-mortem examination which was performed by Dr. Jaju (P.W. 1). He proved post-mortem report (Ex.P.5) and also MLC report of deceased Shambhu (Ex.P.4-A) and MLC report Ex.P11 of Shivnarayan (P.W. 2) as well as X-ray report (Ex.P.3) of Shivnarayan (P.W. 2). This very Doctor also examined Appellants Madanlal and Balaram. Ex.D/4-A and D/5-A are the MLC report of Appellants Madan and Balaram. Investigating Officer Ram Kumar Rai (P.W. 12) prepared spot map and after arrest of the accused persons, seized lathi in pursuance of their statements. On completion of investigation, Appellants and acquitted co-accused Girdhari were charge-sheeted for commission of offence under Sections 302/34 and 325/34 of the Indian Penal Code. The Appellants refuted the charges. Defence of Appellant No. 1 Madanlal was that he was sitting at his house on the date of incident at about 8 to 8.30 p.m. At that juncture. Shambhu, Shivnarayan and Ramesh reached over there and assaulted him. He sustained injuries and also lodged the report in the police station and he was medically examined. Appellant Balaram contended that when he returned back from the forest, he received information of beating to his brother Madanlal upon which he went to gather information and he too was assaulted by Shambhu, Shivnarayan and Ramesh. According to the Appellants, they were falsely implicated. They have examined Indersingh (D.W. 1). Appellant Balaram contended that when he returned back from the forest, he received information of beating to his brother Madanlal upon which he went to gather information and he too was assaulted by Shambhu, Shivnarayan and Ramesh. According to the Appellants, they were falsely implicated. They have examined Indersingh (D.W. 1). Head Constable to prove rojnamcha sanha report (Ex.D/6-C) and readable copy of some part of this report is Ex.D/6-D recorded at the instance of Appellant Madanlal on 8-7-1993 at 11.30 p.m. Same rojnamcha was also got proved from Investigating Officer Ram Kumar Rai (P.W. 12) in cross-examination para 12 vide Ex.D.3. It appears that because of typing mistake, instead of 8-7-1993. 9-7-1993 was typed. Ex.D.3 and D/6-C are the same documents. No offence was registered on the basis of the report of the Appellants. The learned trial Court, while acquitting co-accused Girdhari, convicted and sentenced the Appellants as mentioned hereinabove. The learned Counsel for Appellants has submitted that in the same incident Appellants had also sustained injuries and to this effect, in para 24 of the judgment, learned trial Court has given finding, and the learned trial Court has erred in holding that on account of non explanation of injuries on the person of Appellants by the witnesses, the evidence of prosecution witnesses could not be disbelieved because injuries were superficial and simple. The learned Counsel has also pointed out that report Ex.D/3 (D6-C/D6-D) was lodged by Appellant Madan first in time in the same night, therefore, the act of the Appellants causing injuries to the deceased and Shivnarayan (P.W. 2) was fully protected by the law of right of private defence of their person. Apropos, the learned Dy. AG Shri Desai has supported the judgment and finding of the trial Court and submitted that Appellants have not raised specific plea of acting in right of private defence of their person as well as well as now it is well settled legal position that non-explanation of the superficial and simple injuries found on the person of accused by the witnesses, the statements of prosecution witnesses would not brittle. The conviction of the Appellants is based on the testimony of injured eye witness Shivnarayan (P.W. 2). brother of the deceased, independent witness Ramesh (P.W. 5) and Reshambai (P.W. 6), wife of Shivnarayan (P.W. 2) vis-a-vis the medical evidence of Dr. Jaju (P.W. 1) and Dr. The conviction of the Appellants is based on the testimony of injured eye witness Shivnarayan (P.W. 2). brother of the deceased, independent witness Ramesh (P.W. 5) and Reshambai (P.W. 6), wife of Shivnarayan (P.W. 2) vis-a-vis the medical evidence of Dr. Jaju (P.W. 1) and Dr. Mahendra Nagar (P.W. 4) as also the evidence of Investigating Officer Ram Kumar Rai (P.W. 12). Badrilal (P.W. 7) and Bapuial (P.W. 9) were also examined as eye witnesses but they turned hostile. The presence of all the three eye witnesses was natural. They were residing near to the place of incident and Shivnarayan (P.W. 2) sustained grievous injury in the same incident. He also lodged the report (Ex.P.7). The say of Shivnarayan (P.W. 2) is that he had purchased land from one Shivnarayan Gari before 10 years from the date of his examination in Court i.e. 21-1-1997. Adjacent to the said land Appellants were also having their land and they already constructed their house. After some time, he also constructed house on the land and left 5 ft. open land. The house of the Appellants was situated after his five feet vacant land. Adjacent to vacant land he had agricultural field and to protect the crop from cattle he was putting fencing on his own land but Appellants were always removing the same. On the date of incident, in the evening at 7.00 p.m. he was standing on his vacant five feet land with his brother Shambhu. at that moment Appellant Madan reached over there in bullock cart and started abusing him. He objected. At that time, younger brother of Appellant Madan Appellant No. 2 Balu also reached over there and wielded lathi which struck on the head of his brother Shambhu who was standing on their 5 ft. vacant land. Shambhu fell on the ground because of lathi blow. Appellant Madan dealt a lathi blow on his head but he protected the blow by his right hand and sustained injury. Acquitted co-accused Govardhan also assaulted him by lathi on right rib area. At that time, Rama Lohar. Shantilal and Bapulal Jain intervened and Appellants went to their house. In the same night he lodged the report Ex.P.7. In cross-examination, this witness has specifically stated that the bushes fencing was put on the same day and there was no way for Appellants from their land. At that time, Rama Lohar. Shantilal and Bapulal Jain intervened and Appellants went to their house. In the same night he lodged the report Ex.P.7. In cross-examination, this witness has specifically stated that the bushes fencing was put on the same day and there was no way for Appellants from their land. They had already given some land to Appellants and dispute arose for the first time upon bushes fencing. He also admitted in para 14 that on the disputed land, after the incident he constructed the house and there was no land vacant on the date of his examination in Court. He denied causing of any injury to Appellants. Ramesh (P.W. 5) an independent witness deposed that on the date of incident in the evening between 6 and 7 p.m. the quarrel took place at the house of deceased Shambhu. He was standing outside his house. At that juncture, deceased Shambhu and Shivnarayan (P.W. 2) returned from field with plough. The Appellants removed and threw the fencing on which dispute arose. Shivnarayan (P.W. 2) asked Appellant not to remove and throw fencing, but Appellant Balu did not stop his act and he dealt a lathi blow on the head of deceased Shambhu and Appellant Madan caused lathi blow on the head and hand of Shivnarayan (P.W. 2). He reached upto some distance from his shop which was situated near and infront of the place of incident to stop Appellants but they did not restrain themselves. One Bapu Seth was also present there. The fencing was on an open land between the house of Appellants, Shivnarayan (P.W. 2) and deceased Shambhu. The Appellants fled away after assault and injured persons were taken to Nagda Hospital in Tractor. In para four, this witness has stated that complainant had made fencing on their land and dispute arose because of the said fencing. In cross-examination, he denied any relation with deceased except the fact that they belong to same caste. In cross-examination, he has also stated that both the party were ready to assault each other but he did not know whether Appellants sustained any injury or not. Reshambai (P.W. 6) has also stated that Appellants asked her husband Shivnarayan to remove bushes fencing which was refused by him, thereafter Appellants assaulted Shambhu and her husband Shivnarayan. In cross-examination, he has also stated that both the party were ready to assault each other but he did not know whether Appellants sustained any injury or not. Reshambai (P.W. 6) has also stated that Appellants asked her husband Shivnarayan to remove bushes fencing which was refused by him, thereafter Appellants assaulted Shambhu and her husband Shivnarayan. On going through the statements of all the three eye witnesses, it is crystal clear that bushes fencing was on the land of complainant party and Appellants asked them to remove or else they themselves remove the same. At that moment, the quarrel flared up and in the said quarrel Appellant Balu dealt a lathi blow which landed on the head of deceased Shambhu and Appellant Madan caused injury by lathi to Shivnarayan who sustained fracture of right ulna bone. Dr. Jaju (P.W. 1) examined deceased Shambhu and Shivnarayan (P.W. 2) first in time and found one lacerated wound on left back side of the head and swelling on right palm. On X-ray examination of palm of Shivnarayan. fracture of ulna bone was found, which was grievous injury. He proved MLC report (Ex.P.1-A). X-ray report Ex.P.2 and x-ray plate Ex.P.3. He also examined deceased Shambhu and found one lacerated wound on right side of the skull. There was swelling on the face and blood was trickling from nose. He was not in a position to speak and in semi unconscious condition and one bruise 1 cm x 2 cm was also present on right scapula region. He proved his report Ex.P.4-A. He also performed post-mortem of deceased Shambhu on 10-7-1993 and noted the same injuries. On internal examination, underneath the head injury, he found fracture of right parietal bone. Pieces of bone were inside. Membrane of right skull was lacerated and blood and blood clot was present in the cavity. In his opinion, deceased Shambhu died because of haemorrhagic shock due to head injury within 18 hours from the date and time of post-mortem examination i.e. on 10-7-1993 at 10.30 a.m. He proved post-mortem report (Ex.P.5). In cross-examination, this very witness has proved medical report of Appellant Madan (Ex.P.4). He found Madan in inebriated condition. The smell of alcohol was coming from his mouth and he noted one lacerated wound on left side of skull, one bruise on right shoulder and abrasion on left index finger. On examination of Appellant Balu. In cross-examination, this very witness has proved medical report of Appellant Madan (Ex.P.4). He found Madan in inebriated condition. The smell of alcohol was coming from his mouth and he noted one lacerated wound on left side of skull, one bruise on right shoulder and abrasion on left index finger. On examination of Appellant Balu. he found one abrasion on left clavicle bone. Injuries of both the Appellants were caused by hard and blunt object. In cross-examination, he admitted that Appellant Madan could sustain injuries by fall because of consumption of liquor. He proved report Ex.P.5. The injuries were simple in nature. This witness nowhere stated that injuries sustained by Appellants were bleeding. We also can come to the conclusion looking to the nature, size and place of injuries that they were superficial and same could not be visible to the eye witnesses standing at a distance of 10-15 ft. It is also notable that incident had not taken much time. On visualisation of the evidence of eye witnesses, medical evidence as well as the statement of Investigating Officer, we fully agree with the finding of the learned trial Court in para 24 and 25 of the impugned judgment that Appellants suffered simple and superficia injuries, therefore, if same were not explained by the eye witnesses, on this count, their evidence could not be brushed aside. It also emerged that the dispute arose when Appellants started removing bushes fencing made by the complainant party and fencing was already made prior to the time of incident, therefore, Appellants had no right to remove the same and they should have not taken law in their own hand. They were having sufficient time to recourse the legal proceedings if they were feeling that fencing was illegally constructed, though they had not led any evidence to this effect and have also not given a specific suggestion to prosecution witnesses on this point. On over all assessment, we are of the considered view that Appellants were the aggressor. Now the crucial question for determination is as to what offence has been committed by the Appellants. In view of the eye witnesses account, incident occurred all of a sudden and at the time of verbal altercation between Appellant Madan and injured witness Shivnarayan (P.W. 2). Now the crucial question for determination is as to what offence has been committed by the Appellants. In view of the eye witnesses account, incident occurred all of a sudden and at the time of verbal altercation between Appellant Madan and injured witness Shivnarayan (P.W. 2). Appellant Balu reached on the spot and dealt a lathi blow which landed on the head of deceased Shambhu which ultimately proved fatal and deceased succumbed to death because of this injury. Another injury; bruise on right scapula region of the deceased could be caused by fall. Witnesses have stated that after sustaining head injury, deceased fell on the ground. Appellant Madanlal also dealt a solitary blow to Shivnarayan (P.W. 2) who to save his head put his hand between the head and the blow, therefore, he sustained injury on the right palm as well as left side of the lead. There was fracture of right ulna bone. In view of the eye witnesses account, it would be very difficult to discern that both the Appellants had common intention to commit murder of deceased Shambhu and caused him injury in furtherance of their common intention. The Appellant Balaram reached on the spot suddenly and dealt blow which fell on the head of deceased, resulting into his death on third day in the hospital. In this facts situation, we are of the opinion that both the Appellants would be responsible for their individual act because there is no evidence available to establish or infer that they had pre-meeting of mind, pre-meditation and pre-plan under which both acted on the spot. In this connection, we can profitably refer the observations made by Supreme Court in the case of Sukhbir Singh v. Kirtansingh and others. 2005 (10) SCC 567 in para seven and eight which are as under:- 7. In State of U.P v. Iftikhar Khan this Court considered in detail the nature of vicarious liability u/s 34. Indian Penal Code. It was held that to convict a person for offence applying Section 34. Indian Penal Code, it is necessary to establish that the criminal act was done in concert, pursuant to a prearranged plan and it is also to be borne in mind that it is difficult, if not impossible, to procure direct evidence to prove the intention of a person. Indian Penal Code, it is necessary to establish that the criminal act was done in concert, pursuant to a prearranged plan and it is also to be borne in mind that it is difficult, if not impossible, to procure direct evidence to prove the intention of a person. Therefore, Courts, in most cases, have to infer the intention from the act or the actual conduct of a particular person or from the other relevant circumstances of the case. Such inference of common intention within the meaning of Section 34. Indian Penal Code should never be reached unless the necessary inference is deducible from the circumstances of the case. The cases referred to by the learned Counsel for the Appellant turned on the facts of that case. The complicity of the accused could be decided u/s 34. Indian Penal Code only on the basis of facts of each case. Coming to the facts of the present case, the High Court has taken the view that the second accused Kirtan Singh and the third accused Surendra did not share the common intention of causing death of Ran Veer. On a close scrutiny of the facts discussed in this case, it cannot be said that the High Court had taken a perverse view and the finding of the High Court cannot be said to be unreasonable. Therefore, this Court cannot interfere with that finding of the High Court and the acquittal of the second accused Kirtan Singh for the offence punishable u/s 302. Indian Penal Code is only to be confirmed." Also See Mukati Prasad Rai v. State of Bihar, AIR 2005 SC 1271 . Since Appellant Balu dealt a solitary blow by lathi and lathi is not considered a lethal weapon, he could not be attributed intention to commit murder of deceased Shambhu, but at the same time he could be attributed knowledge that his act was likely to cause death, therefore, the offence against him would be made out - culpable homicide not amounting to murder punishable u/s 304-IIof the Indian Penal Code. The Appellant Madan caused grievous injury by lathi, therefore, responsible for commission of offence punishable u/s 325 of the Indian Penal Code. Resultantly, this appeal is allowed in part. The Appellant Madan caused grievous injury by lathi, therefore, responsible for commission of offence punishable u/s 325 of the Indian Penal Code. Resultantly, this appeal is allowed in part. Conviction and sentence of the Appellants under Sections 302/34 and 325/34 of the Indian Penal Code are hereby set aside, instead thereof Appellant Balaram is convicted u/s 304-II of the Indian Penal Code, sentenced to RI for five years and fine of Rs. 10.000/- (rupees ten thousand); in default of payment of fine he shall suffer additional RI for two years. Out of this fine amount, Rs. 9,000/- (rupees nine thousand) be paid as compensation to the wife or legal heirs of the deceased Shambhu. Appellant Madanlal is convicted u/s 325 of the Indian Penal Code and sentenced to the period already undergone (two months) and fine of Rs. 5,000/- (rupees five thousand); in default of payment of fine he shall suffer additional RI for six months. Out of realisation of fine amount, Rs. 3,000/- (rupees three thousand) be paid as compensation to injured witness Shivnarayan (P.W. 2). For imposing sentence, lenient view has been taken looking to the fact that Appellants are agriculturists and facing this prosecution since 1993. The Appellants are on bail. They are directed to appear before the trial Court on 24-1-2007 and trial Court is directed to send Appellant No. 2 Balaram to undergo remainder part of the sentence and bail bond and surety board of Appellant No. 1 Madanlal shall be discharged upon his depositing the fine amount before the trial Court. On failure of the Appellants to appear on given date, the trial Court is directed to take suitable action against them under intimation to this Court. Office is directed to send copy of this judgment and record Appeal partly allowed. Final Result : Allowed