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2007 DIGILAW 438 (BOM)

Ravindra Shalik Naik v. State of Maharashtra

2007-03-28

A.P.LAVANDE, D.D.SINHA

body2007
JUDGMENT (PER D.D.SINHA, J.) : Heard Shri Daga, learned Counsel for the appellants, and Mrs. Khade, learned Additional Public Prosecutor for the respondent. 2) Both the criminal appeals are directed against the common judgment dated 28.1.2002 passed by the Ad hoc Additional Sessions Judge, Yavatmal whereby all the appellants are convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of rupees one thousand each, in default to suffer rigorous imprisonment for one month each. Appellant Ravindra is also convicted for the offence punishable under Section 324 of Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fine of rupees five hundred, in default to suffer rigorous imprisonment for fifteen days. Hence, both the appeals are heard together and disposed of by the common judgment. 3) The facts and circumstances, which have given rise to the prosecution of the appellants, are as follows : Appellant Shalik is father of appellants Ravindra and Naresh. It is the prosecution case that on 13.11.1999 at about 7 p.m. appellant Naresh was going to his house and was carrying bundle of cotton/grass. The road to his house was adjacent to the house of complainant Vandana (PW 1). On the way, the cotton bundle hit the roof (kud) of the complainant's house and, therefore, husband of the complainant, Dewanand (PW 3) accosted appellant Naresh and told him that he should have been more careful while carrying the bundle of cotton and ought to have seen that no damage was done to the roof of the house of the complainant. It is the case of the prosecution that quarrel ensued between appellant Naresh and Dewanand (PW 3) and there was exchange of words between them. Appellants Shalik and Ravindra also came to the spot of incident and started quarrelling with the husband of the complainant . Dewanand (PW 3). The father-in-law of the complainant, Kisan Gedam, intervened to pacify the quarrel between appellants and his son Dewanand. Appellants Shalik, Ravindra and Naresh went inside their house, which was close to the spot of incident and all of them returned to the spot armed with axe, knife and gupti. Dewanand (PW 3). The father-in-law of the complainant, Kisan Gedam, intervened to pacify the quarrel between appellants and his son Dewanand. Appellants Shalik, Ravindra and Naresh went inside their house, which was close to the spot of incident and all of them returned to the spot armed with axe, knife and gupti. It is the case of the prosecution that all the three appellants inflicted injuries on the head and abdomen of deceased Kisan by means of those weapons. It is also the case of the prosecution that appellants Ravindra and Naresh inflicted injuries on the hand of husband of complainant . Dewanand (PW 3) with those weapons with intention to cause his death. Deceased Kisan was taken to the Hospital at Ner where he was declared dead. 4) Shri Daga, learned Counsel for the appellants, contended that in the instant case, though the prosecution has examined in all twelve witnesses, however, material evidence is of PW 1 complainant Vandana, PW 3 Dewanand (eye witnesses) and PW 8 Dr. Jadhao. So far as other prosecution witnesses are concerned, such as panch, etc. they have not supported the prosecution case and, therefore, their evidence is not material. 5) Learned Counsel Shri Daga submitted that testimony of PW 1 Vandana is full of material omissions and contradictions and, therefore, the trial Court should not have placed reliance on the same. It was contended that PW 1 Vandana in her first information report gave entirely different version of the prosecution case than the one given in her testimony before the Court and, therefore, substantive evidence of this witness does not corroborate contents of the first information report. It was submitted that in the first information report, complainant Vandana has stated that all the appellants inflicted blows by axe and sharp edged weapons on the head, abdomen and near left side waist portion of deceased Kisan. It is also mentioned in the first information report that appellants Ravindra and Naresh inflicted injuries with the sharp edged weapons on the abdomen of husband of the complainant with intention to kill him. It was contended that in the ocular testimony of this witness, she has stated that at the time of incident, appellant Ravindra was armed with gupti and appellant Naresh was having knife. It was contended that in the ocular testimony of this witness, she has stated that at the time of incident, appellant Ravindra was armed with gupti and appellant Naresh was having knife. Appellant Ravindra inflicted injury on the abdomen of deceased Kisan with gupti and appellant Naresh caused injury on the head of deceased Kisan by a knife. The complainant also stated in her evidence that appellant Shalik was armed with axe and gave blows by axe on the head of deceased Kisan. 6) Learned Counsel Shri Daga further submitted that PW 1 Vandana improved her version by giving details about nature of the weapons held by each one of the appellants whereas in her first information report, she made a general statement that all the appellants were armed with axe and sharp edged weapons and inflicted injuries with those weapons. It was contended that as per prosecution case, incident had taken place about 7 p.m. and it has come in the evidence of the complainant that there was darkness at the relevant time and there was no electric pole located within the vicinity of the place where the incident had taken place. It was, therefore, contended that in such situation, it was virtually impossible for PW 1 Vandana to notice whether accused Ravindra was having a gupti, accused Naresh was having a knife and accused Shalik was having an axe and it was also impossible for the complainant to say whether accused Ravindra inflicted injury on the abdomen, Naresh caused injury on the chest and accused Shalik gave a blow on the head of deceased Kisan because of darkness. The learned Counsel for the appellants submitted that improvements made by PW 1 Vandana in her testimony before the Court are unnatural and render her testimony improbable and doubtful. 7) Learned Counsel Shri Daga further submitted that there is a material omission brought out by the defence in the crossexamination of PW 1 Vandana. It has come in the cross9 examination of this witness that while recording her statement by the Police, she had stated that accused Ravindra came with a gupti and accused Naresh came with a knife, however, she is unable to assign any reason as to why Police had not mentioned words .gupti. and .knife. in her complaint. It has come in the cross9 examination of this witness that while recording her statement by the Police, she had stated that accused Ravindra came with a gupti and accused Naresh came with a knife, however, she is unable to assign any reason as to why Police had not mentioned words .gupti. and .knife. in her complaint. It was also contended that PW 1 Vandana has stated in her cross-examination that she had stated to Police regarding holding of particular weapon by a particular accused and injuries caused by them with those particular weapons on the person of deceased Kisan. However, she is unable to assign any reason as to why Police has not recorded her complaint accordingly. The learned Counsel, therefore, contended that these are proved material omissions, which render her testimony not only doubtful, but also destroy the material particulars of the prosecution case itself. The learned Counsel further submitted that apart from the above referred omissions, there are omissions of material nature in the testimony of this witness and, therefore, ocular testimony of this witness being improbable and inconsistent with the medical evidence, ought to have been rejected by the trial Court. 8) Learned Counsel Shri Daga also contended that so far as testimony of PW 3 Dewanand is concerned, the trial Court has rejected his testimony insofar as it relates to the fact of attempting to cause injuries by accused Ravindra with gupti on his abdomen. It was submitted that if the testimony of this witness, which relates to assault on his own life by accused Ravindra is disbelieved by the trial Court, it is evident that this witness is an unreliable witness and, therefore, his whole testimony ought to have been discarded by the trial Court. It was further contended that evidence of PW 3 Dewanand is full of material omissions and, therefore, his entire testimony becomes doubtful. 9) Learned Counsel Shri Daga further argued that so far as evidence of PW 8 Dr. Jadhao is concerned, it does not corroborate the testimonies of eye witnesses. It was contended that Dr. Jadhao conducted autopsy on the dead body of deceased Kisan on 14.11.1999 and found following injuries : .1) Chop wound (laceration) over right parietal region size 3 inch x 1½ inch x by bone deep - may be caused by sharp cutting edged heavy weapon, i.e. axe. It was contended that Dr. Jadhao conducted autopsy on the dead body of deceased Kisan on 14.11.1999 and found following injuries : .1) Chop wound (laceration) over right parietal region size 3 inch x 1½ inch x by bone deep - may be caused by sharp cutting edged heavy weapon, i.e. axe. 2) Chop wound over right shoulder upper front, size 3 inch x 1 inch x ½ inch - may be done by sharp cutting edged weapon, i.e. heavy weapon axe. 3) Stabbed injury over left infra-scapular region oval shaped, size ½ inch x 1 inch x 1 inch x by penetrating heart and lung - may be done by sharp weapon. 4) Stabbed injury over abdomen just above inguinal ligament oval shaped, size 3 inch x 2 inch x intestine comes out, may be done by sharp weapon. 5) Chop wound over left forearm, extensor surface at the junction of upper 2/3rd and lower 1/3rd junction - size 3 inch x 2 inch x ulna fracture broken in pieces at junction of upper 2/3rd and lower 1/3rd - may be done by sharp edged weapon. The Doctor also observed internal injuries, which are as under : 1) Stabbed injury over posterial surface of left lung + stabbed injury over posterial surface of heart. It was submitted by the learned Counsel for the appellants that as per the medical evidence, cause of death was due to penetrating stab injury over infra-scapular region penetrating heart and left lung as well as cardio respiratory failure. It was contended that in the cross-examination, Dr. Jadhao has admitted that two injuries can be caused with a single blow, if the blow given on head lands on the shoulder. It was also admitted by the Doctor that in such situation, injury nos. 1 and 2 mentioned in column 17 of the post mortem report could have been caused by a single blow given on head, if it would have been intended to cause injury on the head, however, landed on the shoulder. It was further contended that Dr. Jadhao has also admitted in his crossexamination that injuries mentioned in column no. 17 of the post mortem report could be caused during scuffle between victim and the appellants. It was further contended that Dr. Jadhao has also admitted in his crossexamination that injuries mentioned in column no. 17 of the post mortem report could be caused during scuffle between victim and the appellants. The medical evidence further discloses that injury no.5 could not be caused by a weapon like gupti since gupti seized in the investigation of the crime in question was a double edged weapon. The learned Counsel, therefore, contended that the medical evidence does not corroborate the testimony of either Vandana (PW 1) or Dewanand (PW 3), in respect of using of particular weapon by the particular appellant and placement of injuries and, therefore, evidence of these eye witnesses becomes not only doubtful, but also unreliable. 10) Learned Counsel Shri Daga vehemently argued that it has come in the evidence of the complainant that relations between families of complainant including deceased Kisan and appellants were cordial and there was no enmity between these two families and, therefore, there was no motive for the appellants to commit crime in question. It is also the case of the prosecution that house of the appellants was adjacent to the house of complainant Vandana and both the families were residing in their respective houses since long. Since there was no animosity between two families, prosecution failed to prove any motive behind the crime. It was, therefore, contended that testimonies of eye witnesses because of material omissions and contradictions and for want of corroboration from medical evidence are doubtful and absence of motive renders evidence of eye witnesses unreliable. 11) Shri Daga, learned Counsel for the appellants, alternatively contended that even if it is presumed for the sake of arguments that incident as alleged by the prosecution had taken place at the relevant time, even then, there is no evidence adduced by the prosecution to establish that the appellants shared common intention to commit murder of deceased Kisan. Even as per the case of prosecution, quarrel started between appellant Naresh and PW 3 Dewanand and that too on a very pity matter. The other appellants, namely, Ravindra and Shalik came on the scene of offence at the later point of time and as per the prosecution case, scuffle ensued thereafter wherein deceased Kisan received injuries on his person and succumbed to those injuries. The other appellants, namely, Ravindra and Shalik came on the scene of offence at the later point of time and as per the prosecution case, scuffle ensued thereafter wherein deceased Kisan received injuries on his person and succumbed to those injuries. It was, therefore, contended that since prosecution failed to establish that the appellants shared common intention to kill Kisan, the appellants cannot be convicted for the offence of murder with the aid of Section 34 of Indian Penal Code. The criminal liability, in such situation, would depend upon nature of injury caused by the particular appellant and the placement of such injury on the person of deceased Kisan. It was submitted that as per the prosecution case, appellant Shalik alleged to have inflicted injury by means of an axe on the head of deceased Kisan whereas Ravindra inflicted solitary injury on the abdomen and appellant Naresh has not inflicted any injury on the vital part of the body of the deceased. The learned Counsel, therefore, contended that conviction of the appellants under Section 302 with the aid of Section 34 of Indian Penal Code is not sustainable in law. 12) Shri Daga, learned Counsel for the appellants, submitted that even if it is presumed that prosecution has established complicity of the appellants in the crime in question, even then the offence alleged to have been committed by the appellants shall not be punishable under Section 302 of Indian Penal Code, but shall fall within the purview of Exception IV to Section 300 of Indian Penal Code. It was contended that prosecution evidence demonstrates that incident of assault was without premeditation and occurred in a sudden fight and in a heat of passion. The prosecution evidence does not disclose that appellants have taken undue advantage of the situation or acted in a cruel or unusual manner. It was submitted that after the deceased fell down on the ground, the appellants had not inflicted any injury on the person of the deceased, which shows that conduct of the appellants was neither cruel nor unusual and, therefore, conviction awarded to the appellants under Section 302 of Indian Penal Code cannot be sustained in law. In order to substantiate the contentions, reliance is placed on the decisions in Sukhbir Singh v. State of Haryana { 2002 (3) SCC 327 } and Dhondba Bhakru Bhende v. State of Maharashtra {2004 ALL MR (Cri) 1646}. In order to substantiate the contentions, reliance is placed on the decisions in Sukhbir Singh v. State of Haryana { 2002 (3) SCC 327 } and Dhondba Bhakru Bhende v. State of Maharashtra {2004 ALL MR (Cri) 1646}. 13) On the other hand, Mrs. Khade, learned Additional Public Prosecutor for the respondent, supported the impugned judgment of conviction and contended that PW 1 Vandana and PW 3 Dewanand were the most natural eye witnesses, whose presence on the spot more or less is not disputed by the defence. It was contended that defence has virtually admitted the incident and the presence of all the appellants as well as PW 1 Vandana, PW 3 Dewanand and deceased Kisan on the spot of incident at the time of assault. It was submitted that the first information report was lodged by complainant Vandana almost immediately in which she has mentioned entire prosecution case including names of all the appellants and has also mentioned about assault on deceased Kisan with axe as well as other sharp edged weapons. It was contended by the learned Additional Public Prosecutor that testimony of PW 1 Vandana corroborates the prosecution case disclosed in the first information report. It was submitted that discrepancy about use of particular weapon by the particular appellant as mentioned in the first information report and substantive testimony of Vandana is a minor discrepancy, which does not adversely affect the evidence of PW 1 Vandana. It was submitted that PW 1 Vandana being eye witness to the incident and her evidence being consistent with the prosecution case disclosed in the first information report by her, which is corroborated by the medical evidence, the trial Court was justified in placing reliance on the testimony of PW 1 Vandana. It was further submitted that omissions in her evidence are also not of material nature. Hence, her evidence could not be discarded on the basis of minor omissions brought out in her testimony by the defence. 14) Learned Additional Public Prosecutor Mrs. Khade further argued that evidence of PW 3 Dewanand is also consistent with the prosecution case and lends corroboration to the testimony of PW 1 Vandana. It was submitted that PW 3 Dewanand in his evidence has specifically stated that his father was assaulted by the appellants with knife, gupti and axe. 14) Learned Additional Public Prosecutor Mrs. Khade further argued that evidence of PW 3 Dewanand is also consistent with the prosecution case and lends corroboration to the testimony of PW 1 Vandana. It was submitted that PW 3 Dewanand in his evidence has specifically stated that his father was assaulted by the appellants with knife, gupti and axe. It was submitted that merely because part of his testimony relating to assault on himself to commit his murder is not accepted by the trial Court, that by itself does not render the other part of evidence of PW 3 Dewanand unacceptable. It was contended that evidence of this witness, which pertains to assault on deceased Kisan, is completely corroborated by the medical evidence. It was, therefore, contended that the prosecution has proved the offence of murder beyond reasonable doubt. 15) It was submitted by the learned Additional Public Prosecutor that evidence of prosecution witnesses demonstrates that appellants came on the spot of occurrence armed with the deadly weapons and inflicted injuries by the same on the person of deceased Kisan, which shows that all the appellants shared common intention to commit murder of deceased Kisan and, therefore, conviction awarded by the trial Court for the offence punishable under Section 302 with the aid of Section 34 of Indian Penal Code is sustainable in law. 16) It was also argued by the learned Additional Public Prosecutor that in the instant case, as many as five serious injuries were inflicted by the appellants on the person of deceased Kisan and some of them were on the vital part of the body, which resulted in causing death of Kisan and the assault was committed in a cruel and unusual manner and, therefore, same is not covered by Exception IV to Section 300 of Indian Penal Code. In order to substantiate the contentions, reliance is placed on the decisions in Ramesh s/o Laxman Gawli vs. State of M.P. And others { (2000) 1 SCC 243 }, State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and others { 2004 (7) SCC 659 } and Suraj Sham Arkhel and another vs. State of Maharashtra {2006 ALL MR (Cri) 24 - NOC 47}. 17) We have given anxious thought to the various contentions canvassed by the learned Counsel for the parties and carefully scrutinized the prosecution evidence. 17) We have given anxious thought to the various contentions canvassed by the learned Counsel for the parties and carefully scrutinized the prosecution evidence. In the instant case, though prosecution has examined number of prosecution witnesses, however, the prosecution case is primarily based on the evidence of PW 1 Vandana (eye witness), PW 3 Dewanand (eye witness) and medical evidence of PW 8 Dr. Jadhao. Other prosecution witnesses, such as PW 4 Pravin, PW 5 Baburao, PW 6 Syyed and PW 10 Mahadeo are panch witnesses on memorandum, etc. and they have not supported the prosecution case and, therefore, their evidence is of no consequence so far as prosecution and defence are concerned. 18) PW 1 Vandana is the complainant, who lodged the complaint in the Police Station almost immediately after the incident in question, which had taken place on 13.11.1999. In the first information report, the complainant has mentioned the names of all the appellants and also stated material particulars of the prosecution case including genesis of the offence as well as role played by the appellants in the assault and the weapons used by them while committing crime in question. The close scrutiny of the testimony of this witness demonstrates that in her examination-in-chief this witness has specifically stated that on the day of incident, i.e. on 13.11.1999 at about 7 p.m. her husband Dewanand (PW 3), his brother Anil and son Akshay were in their house. Appellant Naresh came from the field and was carrying a cotton bundle on his head and was going towards his house from the courtyard of the house of this witness. It has come in her examination-in-chief that cotton bundle hit the roof (kud) of the house and, therefore, some damage was caused to the roof (kud ) of the house. PW 3 Dewanand, therefore, accosted appellant Naresh and told him that if he would have been careful, damage to the roof of the house would not have been caused. This witness has further stated in her examinationin- chief that appellant Naresh thereafter started quarrel with PW 3 Dewanand and also slapped him and started abusing this witness as well as her family members. It has come in the examination-in-chief of this witness that her father-in-law deceased Kisan came to the place of incident and tried to pacify the appellants. This witness has further stated in her examinationin- chief that appellant Naresh thereafter started quarrel with PW 3 Dewanand and also slapped him and started abusing this witness as well as her family members. It has come in the examination-in-chief of this witness that her father-in-law deceased Kisan came to the place of incident and tried to pacify the appellants. According to this witness, appellants Naresh and Ravindra came with gupti and knife on the spot of incident. Appellant Ravindra inflicted injury with gupti on the abdomen of deceased Kisan whereas appellant Naresh inflicted injury with the knife on the hand of deceased Kisan. She has further stated that appellant Shalik went to his house and brought axe from the house and inflicted injury by means of an axe on the head of deceased Kisan. The witness has deposed that after the assault was committed by appellants on Kisan, all the appellants gave her threats. According to this witness, she brought her father-in-law Kisan inside the house and closed the door. Kisan succumbed to the injuries in the house of this witness. PW 1 Vandana has further stated in her examination-in-chief that she went to the Police Station and lodged first information report (Exh. 35). She has also identified the weapons, such as axe (Article 17), gupti (Article 14) and knife (Article 13). She has also identified the appellants correctly in the Court. 19) So far as cross-examination of PW 1 Vandana is concerned, defence failed to extract anything, which would destroy or shatter her ocular testimony. On the other hand, suggestions given to her in her cross-examination as well as tenor of the cross-examination demonstrate that defence has not disputed presence of the appellants, deceased Kisan, PW 1 Vandana and PW 3 Dewanand at the place of incident at the relevant time. Similarly, scuffle as well as assault are also not specifically disputed by the defence in view of following statements made by this witness in her cross : i) .Nobody had witnessed the accused while causing injuries to my husband and father-in-law and by which weapon except me and my family members.. ii) .At the time of incident, which had taken place at the corner of my house and near the courtyard of the appellants, my husband was standing just behind my father-in-law, but in our courtyard.. ii) .At the time of incident, which had taken place at the corner of my house and near the courtyard of the appellants, my husband was standing just behind my father-in-law, but in our courtyard.. iii) .Initially quarrel began between accused Naresh and my husband Dewanand Gedam. When the quarrel started, accused Shalik was in his house and accused Ravindra was standing in his courtyard. I say that all the three accused started assaulting with their weapons at a time.. The overall assessment of testimony of PW 1 Vandana shows that the defence has not disputed genesis of the incident, quarrel which had taken place between appellant Naresh and PW 3 Dewanand and the presence of this witness, PW 3 Dewanand and deceased Kisan as well as of the appellants. The tenor of the cross-examination of this witness demonstrates that even inflicting of injuries on the person of deceased Kisan is not seriously disputed by the defence. Apart from that, ocular testimony of this witness completely corroborates material particulars of the prosecution case mentioned in the first information report, which also contains names of the appellants, who were armed with deadly weapons. 20) Similarly, scrutiny of medical evidence of PW 8 Dr. Jadhao shows that it completely corroborates the testimony of PW 1 Vandana. The medical evidence shows that there were five injuries sustained by deceased Kisan, out of which injury nos. 1, 2 and 5 were chop wounds and injury nos. 3 and 4 were stab wounds. Axe (Article 17), knife (Article 13) and gupti (Article 14) were produced before the Doctor for obtaining his opinion as to whether injuries sustained by deceased Kisan could be caused by those weapons. After examination, Dr. Jadhao has opined that injury nos. 1, 2 and 5 mentioned in column no.17 could have been caused by axe and injury no.3 could have been caused by gupti and injury no.4 could have been caused by knife. Similarly, as per opinion of the Doctor, all the injuries were ante mortem and cause of death was due to penetrating stab injuries over infra-scapular region penetrating heart and lung and due to cardio respiratory failure. It is, therefore, evident that medical evidence completely corroborates the ocular testimony of PW 1 Vandana. 21) It is no doubt true that there are certain omissions brought out in the cross-examination of PW 1 Vandana by defence. It is, therefore, evident that medical evidence completely corroborates the ocular testimony of PW 1 Vandana. 21) It is no doubt true that there are certain omissions brought out in the cross-examination of PW 1 Vandana by defence. However, those omissions, in our view, are not of material nature particularly in view of the fact that defence has not seriously disputed genesis of the incident, quarrel which had taken place, presence of deceased Kisan, PW 1 Vandana, PW 3 Dewanand and all the appellants including injuries sustained by deceased Kisan in the said incident and, therefore, those omissions in the circumstances of this case cannot be treated to be material one and in our view, do not shatter the ocular testimony of this witness. 22) It is no doubt true that there are some discrepancies about using of particular weapon by a particular appellant and placement of injuries caused by particular appellant on the person of deceased Kisan. However, these discrepancies are not only minor, but, in our view, in the facts and circumstances of the present case, to some extent, are natural. In any case, we are of the view that these minor discrepancies do not either destroy or shatter the ocular testimony of PW 1 Vandana. The presence of PW 1 Vandana at the scene of offence was most natural and her conduct of lodging first information report without lapse of time rules out possibility of concoction and fabrication and material particulars of the prosecution case stated therein are corroborated by the testimony of this witness, which is also corroborated by the medical evidence. The evidence of PW 1 Vandana, in our view, is cogent, consistent and inspires confidence and, therefore, trial Court was justified in accepting the same. 23) So far as PW 3 Dewanand is concerned, his testimony also corroborates the evidence of PW 1 Vandana. He has given genesis of the incident in the examination-in-chief and also stated that appellants Naresh and Ravindra inflicted injuries on the person of deceased Kisan with knife and gupti and appellant Shalik also assaulted his father. He has stated that his father was assaulted on the head by the axe. He has identified knife (article 13), gupti (article 14) and axe (article 17). It has come in the cross-examination of this witness that it did not happen that all the three accused came together and assaulted. He has stated that his father was assaulted on the head by the axe. He has identified knife (article 13), gupti (article 14) and axe (article 17). It has come in the cross-examination of this witness that it did not happen that all the three accused came together and assaulted. His father Kisan alone went inside the house after incident and at that time, his wife was near the door of the house. It is, therefore, evident that tenor of the cross-examination of this witness also suggests that defence has not seriously disputed the genesis of the incident, quarrel, assault as well as injuries sustained by deceased Kisan in the incident. In the light of this undisputed situation, the omissions, which are brought out in the cross-examination by the defence, in our view, cannot be said to be material in nature and they are inadequate to destroy the ocular testimony of this witness. Similarly, evidence of PW 3 Dewanand is completely corroborated by the medical evidence and is consistent with the material particulars of the prosecution case disclosed in the first information report as well as in the testimony of PW 1 Vandana and, therefore, trial Court was justified in accepting the evidence of this witness for awarding conviction to the appellants for causing murder of deceased Kisan. 24) It is no doubt true that the trial Court has not accepted part of the testimony of prosecution witness Dewanand so far as it relates to the attempt to commit murder of this witness by the appellants. In the normal set of circumstances and in a given case, if the testimony of the witness is otherwise improbable and does not inspire confidence and if part of the testimony of such witness is discarded, then it would be difficult to accept remaining part of testimony of such witness as true and genuine. However, in the instant case, apart from the fact that PW 3 Dewanand is the injured witness, genesis of the incident, scuffle, which had taken place and presence of deceased Kisan, appellants as well as eye witnesses including this witness are not seriously disputed by the defence. However, in the instant case, apart from the fact that PW 3 Dewanand is the injured witness, genesis of the incident, scuffle, which had taken place and presence of deceased Kisan, appellants as well as eye witnesses including this witness are not seriously disputed by the defence. In such situation, the testimony of Dewanand, which relates to the assault by the appellants on deceased Kisan, which is otherwise reliable and is consistent with the material particulars of the prosecution case and also corroborated by the medical evidence, in our view, has been rightly accepted and relied upon by the trial Court. In the instant case, as per the prosecution evidence, at the relevant time, there was a scuffle between PW 3 Dewanand and appellants Naresh and Ravindra, who were armed with deadly weapons. The apprehension of this witness that they would cause injury on his person with those deadly weapons was a possible apprehension, but was held to be unfounded by the trial Court and, therefore, the trial Court rejected this part of the testimony of PW 3 Dewanand. In the case in hand, in view of the undisputed facts and circumstances as well as considering credibility of the remaining part of the testimony of witness Dewanand, which relates to assault on deceased Kisan by appellants with deadly weapons as well as assault on this witness by appellant Narendra, for the offence punishable under Section 324 of Indian Penal Code, the trial Court was justified in accepting the same. 25) It is well settled that common intention presupposes prior concert, which requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of common intention of them all. It is no doubt true that in order to attract Section 34 of Indian Penal Code, pre-arranged plan or meeting of mind is sine qua non. However, this pre-arranged plan may develop hastily and rudely conceived. Pre-arranged plan may be inferred from the circumstances and conduct. Prior concert or prior plan of the accused has to be judged in the facts and circumstances of each case. The acts of the parties will demonstrate whether act is committed with the common intention of all or otherwise. However, this pre-arranged plan may develop hastily and rudely conceived. Pre-arranged plan may be inferred from the circumstances and conduct. Prior concert or prior plan of the accused has to be judged in the facts and circumstances of each case. The acts of the parties will demonstrate whether act is committed with the common intention of all or otherwise. It is also possible that the common intention may develop even on the spur of the moment and, therefore, attending circumstances can be a good guiding evidence for coming to the conclusion as to whether assailants shared the common intention while committing the assault. In the instant case, evidence of eye witnesses shows that all the appellants were armed with deadly weapons such as axe, knife and gupti and each one of them inflicted injuries by the deadly weapon on the person of Kisan, who succumbed to the injuries almost immediately thereafter. It is no doubt true that quarrel began on a petty issue, however, resulted into an altercation of hot words and further resulted into scuffle. The appellants inflicted successive blows by deadly weapons on the person of deceased Kisan, which shows that common intention to cause murder of deceased Kisan was developed at the spur of the moment and each one of the appellants, therefore, inflicted injuries with the deadly weapons on the person of deceased Kisan, who suffered as many as five chop and stab injuries. Some of them were on the vital parts of the body. The very fact that each one of the appellants was armed with deadly weapon and inflicted injuries thereby on the victim makes it implicitly clear that each one of them shared the common intention, which was developed at the spur of moment to inflict such bodily injuries, which they knew, would result in causing death of Kisan. It is well established that common intention may develop on the spot though Section 34 of Indian Penal Code pre-supposes a prior concert, i.e. prior meeting of minds. However, such pre-concert can develop on the spot. There should be material on the basis of which the Court can arrive at that finding and hold the accused vicariously liable for the act of another accused with the aid of Section 34 of Indian Penal Code. However, such pre-concert can develop on the spot. There should be material on the basis of which the Court can arrive at that finding and hold the accused vicariously liable for the act of another accused with the aid of Section 34 of Indian Penal Code. In a given case, there may be no material to demonstrate the pre-arranged plan or meeting of mind in that sense of the term, however, on the other hand, if there is a positive evidence and specific circumstances to demonstrate that common intention was developed at the spur of moment and at the spot and acts were done in furtherance of the said common intention, in that case, all the assailants would be convicted for the offence committed by all or any one of them. As we have already observed that pre-arranged plan may develop on the spot during the course of commission of crime, however, crucial aspect is that the said plan must precede the act constituting the offence. In the instant case, deceased Kisan was completely unarmed and was an elderly person and if the appellants did not intend to cause such bodily injuries, which they knew, would result in causing death, in that case, they would not have come on the spot armed with deadly weapons like axe, gupti and knife. Similarly, they would not have inflicted injuries by means of deadly weapons on the person of deceased Kisan. Causing multiple injuries by inflicting successive blows by deadly weapons on the person of Kisan would show that common intention to cause murder of Kisan was developed just prior to commission of assault by the assailants. It is pertinent to note that none of the appellants either disassociated himself from the quarrel during the course of assault or tried to prevent deadly assault on deceased Kisan. The conduct of all the assailants in coming to the spot with deadly weapons and inflicting injuries thereby on the person of deceased Kisan, some of them were on the vital parts of the body of Kisan to which he succumbed, clearly shows that common intention of appellants was to kill Kisan. The conduct of all the assailants in coming to the spot with deadly weapons and inflicting injuries thereby on the person of deceased Kisan, some of them were on the vital parts of the body of Kisan to which he succumbed, clearly shows that common intention of appellants was to kill Kisan. In the instant case, common intention to commit murder of Kisan was developed just prior to commission of act of assault by the appellants on Kisan and, therefore, contention canvassed by the learned Counsel for the appellants that in the instant case, prosecution failed to establish ingredients of Section 34 of Indian Penal Code is misconceived and cannot be accepted. . 26) So far as decision of the Apex Court in the case of Sukhbir Singh (cited supra) is concerned, in para (15) of the judgment, the Apex Court has observed thus : .The High Court, on appreciation of evidence, has rightly found that the common object of the accused persons, if any, was not to cause the death of the deceased and such an intention could be attributed only to appellant Sukhbir Singh. The prosecution evidence probabilises the version of the accused that the occurrence was sudden and unanticipated. The occurrence including the quarrel and the causing of fatal blows to the complainant party, all took place within such a narrow compass which renders the story of the prosecution highly improbable. In the facts and circumstances of the case, it cannot be said that the findings returned by the High Court were completely improbable. The appeal filed by the State is not sustainable even on merits.. In the case of Sukhbir Singh (cited supra), the prosecution failed to prove common object of the accused persons to cause death of deceased and, therefore, such intention was attributed to only one accused, i.e. Sukhbir Singh and when the State went in appeal against such decision, the Apex Court has held that findings recorded by the High Court were not completely improbable. In the instant case, we have already concluded that evidence on record clearly demonstrates that the appellants did share common intention and, therefore, in the facts and circumstances of the present case, decision of the Apex Court in the case of Sukhbir Singh is of no help to the appellants. In the instant case, we have already concluded that evidence on record clearly demonstrates that the appellants did share common intention and, therefore, in the facts and circumstances of the present case, decision of the Apex Court in the case of Sukhbir Singh is of no help to the appellants. 27) The contention of Shri Daga, learned Counsel for the appellants, that offence committed by the appellants is culpable homicide not amounting to murder and falls within the ambit of Exception IV to Section 300 of Indian Penal Code since it was committed without premeditation is also not acceptable. We want to express that Exception IV to Section 300 of Indian Penal Code will not be attracted every time when quarrel takes place suddenly, for its applicability, a number of facts are required in addition to the suddenness of the fight. There must be heat of passion, sudden fight and absence of undue advantage taken by the accused or crime is not committed in cruel or unusual manner. To bring a case under Exception IV to Section 300 of Indian Penal Code, apart from the fact that culpable homicide must be without premeditation, the whole incident must be on a sudden fight in the heat of passion and on a sudden quarrel. However, where a person during the course of a sudden fight, without premeditation and in the heat of passion takes undue advantage and acts in a cruel manner by inflicting injuries with deadly weapon on the vital parts of the body of the victim and causes such bodily injuries, which are sufficient in the ordinary course of nature to cause death, there is no reason to hold that such act did not amount to murder. In the instant case, all the appellants were armed with deadly weapons. The deceased was elderly person and was totally unarmed. In the instant case, all the appellants were armed with deadly weapons. The deceased was elderly person and was totally unarmed. The fact that appellants inflicted injuries on the person of deceased Kisan with deadly weapons and some of them on the vital parts of the body shows that the appellants have not only taken undue advantage of the situation, but also committed the assault in a cruel and unusual manner and, therefore, in our considered view, the act committed by the appellants is murder and does not come within the purview of Exception IV to Section 300 of Indian Penal Code and, therefore, conviction awarded by the trial Court is sustainable in law. In the peculiar facts and circumstances of the present case, decision of this Court in the case of Dhondba Bhakru Bhende (cited supra) is of no help to the appellants. 28) In the instant case, though the appellants are acquitted by the trial Court for the offence punishable under Section 307 read with Section 34 of Indian Penal Code, however, so far as appellant Ravindra is concerned, he is also convicted for the offence punishable under Section 324 of Indian Penal Code for causing injury with gupti to PW 3 Dewanand. The injury certificate and evidence of PW 8 Dr. Jadhao corroborate the version of PW 3 Dewanand. Since there is no prosecution evidence to establish complicity of appellants Naresh and Shalik in respect of assault on PW 3 Dewanand, the trial Court convicted only appellant Ravindra under Section 324 of Indian Penal Code, which, in our view, is sustainable in law. 29) For the reasons stated hereinabove, both the appeals are dismissed.