Judgment Sheema Ali Khan, J. 1. Three persons, namely, Arjun Jha, Ram Chandra Jha and Harish Chandra Jha were made accused in a case under sec. 302/34 of the Indian Penal Code. Arjun Jha died before the judgment in this case was delivered and Ram Chandra Jha died during the pendency of the appeal before this Court. 2. Now the sole appellant before this Court is Harish Chandra Jha who has been convicted under sec. 302/34 of the Indian Penal Code to undergo R.I. for life. 3. The only question that has to be decided in the facts of this case is whether the sole appellant Harish Chandra Jha can be convicted under sec. 302/34 of the Indian Penal Code? 4. The prosecution case is that Govind Jha (informant) gave his beyan stating therein that he heard from one Punianand Choudhary that his uncle Balbhadra Jha had been assaulted by Arjun Jha, Ram Chandra Jha and Harish Chandra Jha. When he went to the place of occurrence which was the field belonging to his family, he saw that Harish Chandra Jha and Ram Chandra Jha were armed with lathi and farasa and Arjun Jha was behind them. It has been alleged that Ram Chandra Jha gave a lathi blow to Govind and he fell down as a result of the assault. When he reached near his uncle he found him unconscious and lying in a pool of blood. He also saw that Arjun Jhas cow was in the field. A number of persons had gathered at the place of occurrence and they told him that Harish Chandra Jha had given farasa blow to the deceased. 5. Before referring to the evidence regarding manner of occurrence it would be relevant to state here that the deceased, informant and the accused persons are all related in the following manner. Jaideo Jha, Baldeo Jha and Sukhdeo Jha are full brothers. The deceased Balbhadra Jha is the son of Sukhdeo Jha and the informant Govind Jha is the grand-son of Jaideo Jha, whereas, accused Arjun Jha is the son of Baldeo Jha and accused Ram Chandra Jha and the appellant are the sons of Arjun Jha. 6. The genesis of the occurrence is because of a dispute arising with respect to boundary and partition of the land on which the occurrence had taken place. 7. 6. The genesis of the occurrence is because of a dispute arising with respect to boundary and partition of the land on which the occurrence had taken place. 7. There are two eye witnesses who have deposed in the court. P.W.1 Kailu Pathak has stated that Balbhadra Jha was working in the field, when the dispute arose. Arun Jhas cow trampled the field of Balbhadra Jha which led to exchange of hot words; this witness tried to intervene and advised them to get the matter settled through a Panchayat. In the meantime, it is stated that Arjun Jha called out to his sons and Ram Chandra Jha armed with farasa and Harish Chandra Jha armed with lathi came to the place of occurrence and assaulted Balbhadra Jha. It is specifically alleged that Ram Chandra Jha gave farasa blow on the head of Bal Bhadra Jha whereas the other two assaulted Balbhadra Jha with lathi. 8. Similarly P.W.2 has also specifically supported the manner and version of the assault as stated by P.W.1 Kailu Pathak. 9. The informant Govind Jha (P.W.3) has changed his statement in the court to the extent that he has attributed the farasa blows on the head of Balbhadra Jha to Ram Chandra Jha. 10. From the recitals in the First Information Report as well as the evidence of the eye witnesses, it is quite clear that the dispute arose because of violation of the boundary right of the parties which caused anger and agitation and led to assault on the spur of the moment. From the evidence it is also clear that as far as this appellant is concerned, he is said to have given a lathi blow to Balbhadra Jha, the deceased. 11. Mrs. Prakash submitted that P.W.1 and P.W.2, the eye witnesses, are interested witnesses. Some defence witnesses have been examined in order to show that P.W.1 Kailu Pathak was a bataidar of the informant and as such, he is the interested witnesses and his evidence should therefore be carefully scrutinised. 12. Considering the evidence that has come on record regarding the alleged occurrence, we are satisfied that the prosecution has successfully proved that at the alleged time and place, the occurrence took place in the manner alleged. But this Court has to decide whether the conviction of the appellant under sec. 302/34 of the Indian Penal Code is justified. 13. 12. Considering the evidence that has come on record regarding the alleged occurrence, we are satisfied that the prosecution has successfully proved that at the alleged time and place, the occurrence took place in the manner alleged. But this Court has to decide whether the conviction of the appellant under sec. 302/34 of the Indian Penal Code is justified. 13. Sec. 34 of the Indian Penal Code envisages that there must be common intention, that is, a meeting of mind and the action that follows should be pursuant to pre-arranged plan. To convict a person under section 34 of the Indian Penal Code it would be presumed that each one had a common intention and each one would be liable for the act of the other even though he may or may not have participated in the actual assault. 14. The facts reveal that, Arjun Jha called out to his sons for help from the field where he was working, and his sons rushed from the house to give him assistance, and at that time appellant Harish Chandra Jha and Ram Chandra Jha did not know the reason why Arjun Jha had shouted for help and, as such, it can not be said that there was a common intention or a pre-arranged plan when the appellant came to the place of occurrence to commit assault which led to the death of the deceased. After reaching the place of occurrence, they saw that their father Arjun Jha and Balbhadra Jha were already involved in a hot-words exchange and thereafter, Ram Chandra Jha is said to have assaulted Balbhadra Jha with a farasa on his head. As far as this appellant is concerned, there is allegation of assault with lathi on the deceased Balbhadra Jha. The injuries by Iathies are bruises on left and right shoulder (1 1/2" x 1 1/2"), bruise on the lateral side of forearm and bruise 6" x 1" on the left side of the back. Regarding these injuries there is no specific allegation, allocating the blows to any one of the three accused persons and thus it is submitted that in fact it cannot be conclusively said the witnesses had actually seen the occurrence. However, the evidence and injury report indicate clearly that lathi injuries were inflicted on Bal Bhadra Jha and the appellant cannot be exonerated from participation in the occurrence on this ground. 15. However, the evidence and injury report indicate clearly that lathi injuries were inflicted on Bal Bhadra Jha and the appellant cannot be exonerated from participation in the occurrence on this ground. 15. Moreover, an altercation took place when Bal Bhadra Jhas buffalo strayed into the fields allegedly belonging to Arjun Jha. The fight occurred in this case due to dispute over the boundary rights, the fight was a sudden one, and there was no plan amongst the assailants to injure any one, but injury was caused as a result of the altercation on the spur of the moment to the deceased. There is no evidence to support that by words spoken there was any plan amongst the accused persons to cause the death of Bal Bhadra Jha. 16. It has been held in the case of Mahbub Shah vs. Emperror reported in 1945 Privy Council 118 that several persons can simultaneously attack a man and each can have the same intention, namely, intention to kill, and each can individually inflict a blow or several blows and yet none may have the common intention required by sec. 34 of the Indian Penal Code as there was no prior meeting of mind to form a prearranged plan. 17. The doctor has come to a finding that the injuries inflicted by lathi were simple in nature and death had been caused due to 4arasa blows on the head. Therefore, in this case, We find that the appellant Harish Chandra Jha was responsible for inflicting lathi blow on the deceased which caused him simple injury and, as such, in the facts of the case, we do not find him guilty for offence under sec. 302/34 of the Indian Penal Code. He is accordingly acquitted of that charge but found guilty of offence under sec. 325 of the Indian Penal Code. He is sentenced to undergo R.I. for one year under section 325 of the Indian Penal Code. He shall also be liable to pay a fine of Rs. 10,000/- and in default to undergo R.I. for a further period of three months. In case of realization of fine, half of it i.e. Rs. 5,000/- shall be paid to the informant, Govind Jha. 18. With this modification in the conviction and sentence, the appeal stands dismissed. Shiva Kirti Singh, J. 19 I agree.