Honble SHARMA, J.–Mahaveer Prasad, Ramotar and Gurudayal, appellants herein, along with five co-accused, were put to trial before learned Additional Sessions Judge (Fast Track) Jhunjhunu, who vide judgment dated December 19, 2001 while acquitting co- accused persons, convicted and sentenced the appellants as under:- u/S. 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months. u/S. 447 IPC: Each to suffer simple imprisonment for three months. u/S. 323/34 IPC: Each to suffer simple imprisonment for one year. Substantive Sentences were ordered to run concurrently. (2). It is the prosecution case that on September 25, 1996 informant Mahaveer Prasad (PW.1) submitted a written report (Ex.P.1) at Police Station Khetri District Jhunjhunu to the effect that on the said day around 6-6.30 PM. Mana Ram, Chanda Ram, Pala Ram, Nancha Ram, Ramotar, Mahaveer, Gurdayal and their ladies armed with lathis came to the chowk in front of his house. Mahaveer and Ramotar inflicted lathi blows on the person of his father Gotu Ram, who became unconscious, Gurdayal then gave lathi blow on the person of informant. On that report a case under sections 147, 448, 341 and 323 IPC was registered and investigation commenced. In the course of investigation injured Gotu Ram succumbed to his injuries and section 302 IPC was added. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Jhunjhunu. Charges under Sections 147, 447, 336, 302 alternatively 302/149, 323 alternatively 323/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Sec. 313 CrPC, the appellants claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). Prior to his death Gotu Ram was examined vide injury report (Ex. P.14) which reads as under:- 1. Lacerated wound 2-1/2 cm x 1/2 cm x bone deep on upper part of rt. side of forehead 2. Lacerated wound 3" x 1/2 x bone deep on top of skull above the top of hair 3. (3). Prior to his death Gotu Ram was examined vide injury report (Ex. P.14) which reads as under:- 1. Lacerated wound 2-1/2 cm x 1/2 cm x bone deep on upper part of rt. side of forehead 2. Lacerated wound 3" x 1/2 x bone deep on top of skull above the top of hair 3. Hematoma 2-1/2 cm x 2" cm between Inj. No. 2 & 4. Hematoma 2" x 1-1/2" on occipital region 5. Swelling 3" x 3" on dorsum of rt. hand. As per Post Mortem Report (Ex. P-20) the cause of death was shock and hemorrhage following brain injury due to fractures of skull bone. Smt. Birdi (PW. 5) vide injury report (Ex. P.15) received one lacerated wound 1/2 x 1/2 x 1/2 on lateral epicycloid of rt. elbow. Mahaveer (PW.1) vide injury report (Ex. P.16) received one lacerated wound 3/4" x 1/2 x 1/2 on mid part of eye brow between both eye brow and one swelling (bruise) 1-1/2 x 1" on lateral aspect of left elbow. Harphool (PW.3) vide injury report (Ex. P.17) received one abrasion 1/4 x 1/4 x 1/8 below left lower eye lid. Bhoma Ram (PW.2) vide injury report (Ex. P. 18) received one abrasion 1/4 x 1/4 x 1/4 below medial aspect of left ankle. Gyarsi Devi (PW.4) vide injury report (Ex. P. 19) received one abrasion 1/2 x 1/4 on post aspect of rt. elbow joint. (4). At this juncture injuries sustained by the accused party in the same incident may also be noticed. Appellant Ramotar vide injury report (Ex.D-7) received following injuries:- 1. Lacerated wound 1/2" x 1/4" x 1/4 above lateral part of left eye brow. 2. Lacerated wound 3/4 x 1/2 x 1/4 on lateral part of Rt. forearm. 3. Abrasion 3/4 x 1/4 x 1/2 on lower part of Rt. forearm. 4. Abrasion 3" x 1/4 x 1/8 1/4" parallel to injury No. 3. 5. Lacerated wound 3/4 x 1/2 x 1/2 on top of scalp oblique. 6. Abrasion 1/4 x 1/4 x 1/4 below nail tip of middle finger. 7. Abrasion 1/2 x 1/2 x 1/2 on upper part of Rt. side to chest. Smt. Chandkori vide injury report (Ex.D.8) received one lacerated wound 1/2 x 1/4 x 1/4 on nose oblique bleed touch. Lacerated wound 3/4 x 1/2 x 1/2 on top of scalp oblique. 6. Abrasion 1/4 x 1/4 x 1/4 below nail tip of middle finger. 7. Abrasion 1/2 x 1/2 x 1/2 on upper part of Rt. side to chest. Smt. Chandkori vide injury report (Ex.D.8) received one lacerated wound 1/2 x 1/4 x 1/4 on nose oblique bleed touch. Gurudayal vide injury report (Ex.D-9) received one lacerated wound 1/2 x 1/2 x 1/4 on lateral aspect of arm and one swelling with bruise 3" x 1/2 on lower 1/2 of Rt. forearm dorsal aspect. (5). Coming to the testimony of Mahaveer (PW.1) we notice that he made improvements in his deposition at the trial. He attributed injuries on neck and head of Gotu Ram to Mahaveer and Ramotar. He also stated that Gurudayal inflicted injury on the person of informant, but only one injury was found on his person. In the cross examination he however admitted that accused party also lodged report against him. (6). Fact situation emerges from the material on record may be summarized thus:- (i) Members of complainant party and accused party were near relatives. (ii) The land (chowk) where the incident occurred, jointly owned and possessed by both the parties. (iii) Accused Mahaveer and Ramotar gave blows on the person of Gotu Ram that proved fatal. (iv) There was no allegation against accused Gurudayal for having inflicted blow on the person of Gotu Ram. (v) Cross cases were registered between the parties. (vi) Members of accused party sustained lacerated wounds on the head and injuries sustained by the accused party were not explained by the prosecution witnesses. (vii) Incident occurred all of sudden and both the parties fought freely. (7). Similar situation arose before the Honble Supreme Court in Dharman vs. State of Punjab ( AIR 1957 SC 324 ) dispute regarding Shamlati land existed between the parties. The accused claimed that the land was in their possession whereas the party of the deceased put forward the claim that the land had been in their possession for many years. On the date of the incident a fight ensued. The deceased died in the course of a sudden and free fight by the injury inflicted by the appellant. The deceaseds party was also armed with dangerous weapons. On the date of the incident a fight ensued. The deceased died in the course of a sudden and free fight by the injury inflicted by the appellant. The deceaseds party was also armed with dangerous weapons. Held by the Supreme Court, that when two such contending parties, each armed with weapons, when clashed and in the course of free fight some injuries were inflicted on one party or the other, it could not be said that either of them acted in cruel or unusual manner and the case against the appellant clearly fell within Exception 4 to Section 300 IPC. (8). Ratio indicated in Dharman vs. State of Punjab (supra) is squarely applicable to the facts of the instant case. Appellants Mahaveer and Ramotar, who have been attributed injuries on the head and neck of the deceased with lathi are found guilty under Section 304 Part II IPC, since they had knowledge that they were causing such bodily injuries as were likely to cause death. (9). That takes us to the allegations made against appellant Gurudayal, learned trial judge convicted him under Sections 302/34, 447 and 323/34 IPC. (10). Section 34 as it originally stood, was in the following terms: "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of the section clear. Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. (11). 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. (12). As already noticed in the FIR it was not stated that Gurudayal inflicted any injury on the person of the deceased. It was only at the trial that Mahaveer (PW.1) made improvements in his testimony and attributed injuries on the person of deceased to him also. On examining the testimony of Mahaveer from the point of view of trustworthiness, we find it highly unreliable qua appellant Gurudayal and possibility that he has been over implicated cannot be ruled out. The prosecution in our opinion could not establish beyond reasonable doubt that he shared common intention with Mahaveer Prasad and Ramotar. (13). On examining the testimony of Mahaveer from the point of view of trustworthiness, we find it highly unreliable qua appellant Gurudayal and possibility that he has been over implicated cannot be ruled out. The prosecution in our opinion could not establish beyond reasonable doubt that he shared common intention with Mahaveer Prasad and Ramotar. (13). For these reasons, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of appellants Mahaveer Prasad and Ramotar and instead of section 302 read with 34 IPC, we convict them under Section 304 Part II IPC, looking to the fact that the appellants have undergone confinement for a period of more than six years, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. We however acquit them of the charges under Sections 302, 447 and 323 read with Section 34 IPC. Appellants Mahaveer Prasad and Ramotar, who are in jail, shall be set at liberty forthwith if they are not required to be detained in any other case. (ii) We allow the appeal of appellant Gurudayal and acquit him of the charges under Sections 302 read with 34, 447 and 323 read with 34 IPC. Appellant Gurudayal is on bail, he need not surrender and his bail bonds stand discharged. (iii) The impugned judgment of the learned trial Judge stands modified as indicated hereinabove.