JUDGMENT S.L. Kochar, J. Since both the aforesaid appeals arise out of one and the same judgment, they are being decided by this common judgment. By these appeals, the Appellants assail the validity, legality and propriety of the judgment dated 31-8-2000 passed by the learned First Additional Sessions Judge. Indore in S.T. No. 265/1990 by which the Appellant Ashok has been convicted for the offences punishable under Sections 302 and 307, Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 1,000/-, in default of payment of fine to suffer additional R.I. for three months and to suffer R.I. for five years and fine of Rs. 3,000/- and in default of payment of fine to suffer additional R.I. for six months respectively and Appellant Rajesh has been convicted u/s 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs. 1,000/- and in default of payment of fine to suffer additional R.I. for three months. Out of the amount of fine Rs. 2,000/- has been ordered to be paid as compensation to the injured. Facts of the prosecution case in brief, as submitted before the trial Court are that on 11-4-1990 at 11.00 AM when Brahma Prakash was operating telephone in the drawing room of his house at 189, Jaora Compound, Indore, he heard the words 'Ashok assault Babli' and when he came out of the room, he saw that accused Rajesh had caught hold of deceased Babli and accused Ashok assaulting the deceased Babli by knife at his chest and the acquitted co-accused persons were standing nearby in the verandah. After assaulting Babli by Appellant Ashok accused Rajesh had also caused injury at his thigh. After assaulting Babli. the accused persons started to run away. Babli chased them and in front of the House No. 191 of Matidas. Babli caught accused Rajesh sitting on motor cycle and fell him down. At that time, when the accused persons were running away from the place of incident, Manish, brother of the deceased Babli who was going from M.Y. Hospital, to his house at Jaora Compound, saw them and tried to stop them by standing his scooter blocking the road. At that time, accused Ashok was on a motor cycle and co-accused Jeevan was a pillion rider. Ashok instructed Jeevan and Vipin to assault Manish. At that time, accused Ashok was on a motor cycle and co-accused Jeevan was a pillion rider. Ashok instructed Jeevan and Vipin to assault Manish. Thereafter, accused Ashok got down from the motor cycle and assaulted Manish at his chest by knife shouting not to allow him to live. The unknown person telephoned to the Police Station that a quarrel is going on in front of the Jain Nursing Home at Dixit's house. This information was recorded by PW-18 Harishchandra Rawat at P.S. Sanyogitaganj, Indore at Roznamcha Sanha No. 1346 (Ex.P/20). Thereafter. Harishchandra Rawat along with ASI O. P. Pastriya went to the place of incident. By that time, the injured Akshya alias Babli and Manish were shifted to M.Y. Hospital. Indore. Accused Rajesh was caught at Palasiya and was lodged in Police Station Sanyogitaganj. At 11.30 AM PW-1 Brahma Prakash lodged the report of the incident vide Ex.P/1 which was recorded by the Station House Officer Bhupendra Shukla (PW-25) as Crime No. 259/90 under Sections 147, 148, 149 and 307, Indian Penal Code. He arrested accused Rajesh vide arrest memo Ex.P/8. A dagger was also seized from Rajesh vide Ex.P/9. On the same day, the telephone operator Deokaran (PW-15) informed that Akshay alias Babli who was brought to the hospital had died which information was recorded at the Police station vide Ex. P/47. SHO Shri Bhupendra Kumar Shukla reached the hospital and prepared the Panchnama of the dead body. He drew the spot map Ex.P/2 and also seized blood stained and controlled earth from the spot vide seizure-memo Ex.P/38. He also arrested accused Ashok on 13-4-1990 vide arrest memo Ex.P/13. He also arrested the acquitted co-accused persons and seized weapons of offence. Identification parade was held with regard to the co-accused persons. Query report in regard to the weapons was also obtained from the hospital. Seized articles were sent to the FSL, report whereof is Ex.P/42. Post-mortem was conducted on the dead body of Akshaya alias Babli by Dr. Vishnar (PW-23) report whereof is Ex.P/33. Injury report of Manish is Ex.P/31. In the opinion of Autopsy Surgeon Dr. Vishnar, Akshaya died because of haemorrhage and shock due to injury to heart. Injuries were homicidal and were sufficient to cause death in ordinary course of nature. After completion of investigation, the accused persons were charge-sheeted. The accused persons pleaded not guilty and stated that they have been implicated falsely. In the opinion of Autopsy Surgeon Dr. Vishnar, Akshaya died because of haemorrhage and shock due to injury to heart. Injuries were homicidal and were sufficient to cause death in ordinary course of nature. After completion of investigation, the accused persons were charge-sheeted. The accused persons pleaded not guilty and stated that they have been implicated falsely. Accused/Appellants examined four witnesses in defence. The prosecution in order to prove its case has examined as many as 27 witnesses. On conclusion of the trial, the learned trial Court finding the Appellants guilty for the specified offences, convicted and sentenced them, as indicated hereinabove. Initially six accused persons were prosecuted and tried. However, four accused persons namely, Pappu, Vipin, Manish and Jeevan have been acquitted by the trial Court. We have heard learned Counsel for the parties and perused the entire evidentiary material available on record. Learned Counsel for the Appellants have made the only submission that the conviction of the Appellant Rajesh u/s 302 with the aid of Section 34 of the Indian Penal Code is not sustainable because there is no evidence on record that he was having pre-meeting of mind, pre-meditation or pre-plan with the Appellant Ashok to commit murder of deceased Babli alias Akshaya and that the Appellant Rajesh would be responsible only for his act of causing grievous injury and the Appellant would be responsible only for commission of offence punishable u/s 304 (Part I) of the Indian Penal Code. Learned Counsel for the Appellants cited two authorities in support of their contentions i.e. Mahbub Shah v. Emperor, AIR (32) 1945 P.C. 118 and Bannilal Chaudhary v. State of Bihar, (2006) 3 MPWN 73. On the other hand, learned Counsel appearing for the State has supported the judgment and finding of the trial Court. To determine the question that the Appellant Rajesh had common intention with Appellant Ashok to commit murder of deceased Babli alias Akshaya, we have to look into the evidence of motive and previous incident occurred between the parties. For this purpose, the prosecution has examined PW-3 Rajesh Sinha and PW-4 Hemant Agrawal. PW-3 Rajesh Sinha has testified that in the year 1989. he was studying in Final Year in Agricultural College, lndore and was residing in a separate room situated in Tilak Nagar, lndore along with Naresh Vyas and Rajesh Banke, because in the hostel they were not able to concentrate on study. PW-3 Rajesh Sinha has testified that in the year 1989. he was studying in Final Year in Agricultural College, lndore and was residing in a separate room situated in Tilak Nagar, lndore along with Naresh Vyas and Rajesh Banke, because in the hostel they were not able to concentrate on study. In the month of April, 1990, Appellant Rajesh along with some friends visited his room and threatened him to live properly or else they will have to vacate the room. After this incident. Rajesh Tomar was chasing them on road and indirectly harassing them by hooting, whistling and obstructing their way by putting motor cycle before them. After about ten days, he discussed this issue with his friend Hemant Agrawal who suggested him to meet with deceased Babli. They met Babli. Thereafter, they met Rajesh Tomar who was in the company of 2/3 boys. Deceased Babli alias Akshaya asked the Appellant Rajesh Tomar as to why he was harassing this witness Rajesh Sinha whereupon Rajesh Tomar got annoyed and told Babli that he was not harassing him. During the course of verbal altercation, crowd assembled there on which Rajesh Tomar proposed to go to the room to have the talks there. Then they all reached to the room of this witness and during the course of talks, Rajesh Tomar and Babli got annoyed and in a heat of passion deceased Babli gave a slap to Rajesh. Thereafter. Rajesh Tomar cool-down and asked Babli as to why he had slapped him when he had done nothing. Babli told him that they had not come to assault him, but during the course of talks, he was loosing temper which was not proper and, therefore, he slapped him. At that very moment, the Appellant Rajesh. this witness Rajesh Sinha, Babli and all other companions of both the groups embraced each other and also shook hands, and disbursed. The same is the statement of PW-4 Hemant Agrawal. According to the prosecution, this was the motive for the Appellant Rajesh Tomar for assaulting the deceased Babli at his house. On perusal of the statements of both these witnesses, we are of the view that the Appellants and the deceased were foreigners to each other and had no previous enmity or ill-will. No strong reason is shown for keeping any grudge against each other in their mind and heart. On perusal of the statements of both these witnesses, we are of the view that the Appellants and the deceased were foreigners to each other and had no previous enmity or ill-will. No strong reason is shown for keeping any grudge against each other in their mind and heart. The learned trial Court, while appreciating the evidence in this regard in para 31 of the impugned judgment, has given finding that the Appellant Rajesh Tomar or his family members were not having any kind of enmity with the deceased or his family members. Therefor, there was no reason for them to speak against Rajesh Tomar. The learned trial Court in the same para has also given finding that there is exaggeration and contradiction in the statements of the prosecution witnesses as regards catching hold of Rajesh by the deceased Babli when he was going as a pillion rider on the motor cycle, but the same would not affect the prosecution case, because the Appellant Rajesh Tomar was taken by the police from the place of incident. When there was no inimical term between the Appellants and the deceased, it would by very difficult to come to the conclusion that the Appellant had gone to the house of deceased Babli having common intention to commit his murder. There is no evidence available on record as to how the Appellants and other acquitted co-accused reached at the house of deceased and in the boundary of his house near gate what transpired between the deceased Babli. the Appellants and other acquitted co-accused persons which could be very important factor to determine the intention of the Appellants as well as their common intention. Eyewitnesses drew attention when they were sitting inside the drawing room and overheard the sound of tumult coming from the road side and heard that some body was shouting "ASHOK ASSAULT BABLI". They also saw that the deceased and the Appellants were present in the verandah. The deceased was caught by Appellant No. 1 and Appellant Ashok dealt a knife blow on the chest of deceased. In the verandah including Babli seven boys were present. The eyewitnesses identified the Appellant as well as the acquitted co-accused persons showing their presence in the verandah. It is also stated by the eye-witnesses that the Appellant Rajesh caused a knife injury below the hip of the deceased Babli. Thereafter, all fled away. In the verandah including Babli seven boys were present. The eyewitnesses identified the Appellant as well as the acquitted co-accused persons showing their presence in the verandah. It is also stated by the eye-witnesses that the Appellant Rajesh caused a knife injury below the hip of the deceased Babli. Thereafter, all fled away. The deceased Babli even after sustaining two injuries chased them and pulled down the Appellant Rajesh who was going on motor cycle. The injured PW-5 Manish came from the opposite direction put obstruction in the way of accused persons to stop them. At that juncture, the Appellant Ashok caused him injury by knife. It appears that the Appellants and other co-accused persons being friends of Rajesh reached at the house of deceased Babli, because of earlier incident in which Babli had given a slap to Rajesh. Thereafter, though there was amicable settlement, they shook hands and also embraced each other, but when the Appellant Rajesh told all that event to his friends, the co-accused persons, they might have felt domination and reached at the house of Babli to talk to him and also to show him that they were not afraid of him. 9A. It is pertinent to note here that more than six persons reached up to the verandah of the house of the deceased where whole family members of the deceased including the eye-witnesses were residing, but none was attracted. None had stated that the accused persons called Babli or knocked at the door which shows that when the accused persons reached at the house of Babli, Babli met them in the courtyard and they had a talk on previous day issue and during this talk, all of a sudden quarrel took place in which without any pre-meditation in a heat of passion Appellant Ashok caused a solitary knife blow which landed on the chest of the deceased. After sustaining injury on the chest, deceased was active and tried to catch the accused persons or he was putting resistance. At that juncture, with a view to escape and run away Appellant Rajesh also gave a knife blow causing injury below the hip of the deceased. The accused persons rode on the motor cycle. Even then, Babli in injured condition chased them up to the distance of fifty feet and pulled down Appellant No. 1 Rajesh from the motor cycle. At that juncture, with a view to escape and run away Appellant Rajesh also gave a knife blow causing injury below the hip of the deceased. The accused persons rode on the motor cycle. Even then, Babli in injured condition chased them up to the distance of fifty feet and pulled down Appellant No. 1 Rajesh from the motor cycle. The previous day incident in which the way Babli behaved with Rajesh and during the course of talk slapped him. goes to indicate that he was having robust health and strong determination and domination power and at the time of talk with the Appellants and acquitted co-accused persons, he must have tried again to dominate them and at that juncture, quarrel took place suddenly and Appellants caused him injuries. Under all these circumstances, it would be very difficult to say that both the Appellants reached at the house of deceased having pre-meeting of mind, pre-meditation and pre-plan to commit his murder and in furtherance of the said common intention, they assaulted the deceased. There is no evidence available on record to show that both the Appellants were brandishing the knife or knowing that both were having knives and the same would be used for assaulting the deceased. There is difference between common intention and same intention. When the accused persons were having same intention they could not be held liable for the act of the principal accused. Privy Council in the case of Mahbub Shah (supra) and the Supreme Court in the case of Dajya Moshya Bhil and Others Vs. State of Maharashtra, have observed that in order to attract Section 34 of the Indian Penal Code, it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of Section 34 is that he must share the intention of other. Since in the instant case, the very genesis of the incident is not available in the statement of any of the eye-witnesses or the prosecution witnesses, and there was no inimical term between the parties, the dispute appears to be of ego and they entered into a sudden quarrel. Since in the instant case, the very genesis of the incident is not available in the statement of any of the eye-witnesses or the prosecution witnesses, and there was no inimical term between the parties, the dispute appears to be of ego and they entered into a sudden quarrel. According to the eye-witnesses' version, Appellant Ashok dealt the only blow by knife and Appellant Rajesh also caused one knife injury on the left thigh but the Autopsy Surgeon found in all four incised wounds on the person of the deceased. It appears that the injury on left wrist was caused by a solitary blow which ultimately landed on the left side of the chest of the deceased and the deceased tried to save himself by his left hand. In the result, we are constrained to hold that the Appellants were not having common intention to commit murder of deceased Babli alias Akshay. The incident occurred all of a sudden and the Appellant Ashok caused a solitary blow and thereafter ran away. He acted without any pre-meditation and caused injury in a heat of passion and also did not take undue advantage. Thus, his act would fall within the four-corners of Exception 4 of Section 300 of the Indian Penal Code, culpable homicide not amounting to murder punishable u/s 304 (Part I) of the Indian Penal Code. We convict him for the offence punishable u/s 304 (Part I) of the Indian Penal Code and sentence him to undergo R.I. for TEN (10) years with fine of Rs. 10,000/-. In default of payment of fine to suffer additional R.I. for two years. His conviction for causing injury to witness Manish punishable u/s 307, Indian Penal Code is also not sustainable because his intention was not to commit murder of Manish, but when Manish put obstruction in running away of the accused persons, he caused solitary injury to him. So his prime intention was to run away and in order to achieve that goal he caused this injury. In the opinion of Dr. Sharad Nayak (PW-6), the injury was grievous in nature and if treatment would have not been given in time, it could be dangerous to life. This also means that the nature of injury was grievous one. So his prime intention was to run away and in order to achieve that goal he caused this injury. In the opinion of Dr. Sharad Nayak (PW-6), the injury was grievous in nature and if treatment would have not been given in time, it could be dangerous to life. This also means that the nature of injury was grievous one. Therefore, the conviction of Appellant Ashok u/s 307 is altered into one u/s 326 of the Indian Penal Code and is sentenced to undergo R.I. for three years with fine of Rs. 3.000/- and in default of payment of fine to suffer additional R.I. for three months. Both the jail sentences are directed to run concurrently. The conviction and sentence, of the Appellant Rajesh for the offence u/s 302/34 of the Indian Penal Code are hereby set aside. Instead thereof he is convicted u/s 326 of the Indian Penal Code and is sentenced to the period already undergone (two years six months and 15 days), and fine of Rs. 7,000/-. In default of payment of fine he shall suffer additional R.I. for three years. Out of the amount of fine so realized or recovered. Rs. 15,000/- shall be paid as compensation to the legal heir of deceased Babli alias Akshay and Rs. 4,000/- shall be paid as compensation to injured witness Manish. Thus, both the aforesaid appeals stand allowed in part in terms indicated hereinabove. Let a copy of this judgment be retained in the record of Cr.A. No. 1068/2000 and the original judgment be placed in the record of Cr. A. No. 1030/2000 and a copy along with the record be transmitted to the trial Court for compliance. Order accordingly. Final Result : Allowed