Z. K. SAIYED, J. ( 1 ) THE present Appellants - original accused in Sessions Case No. 145 of 1992, along with other two accused, were charged and tried by the learned Additional Sessions judge, Surat, for the offence punishable under Section 302, 324 read with Section 34 of Indian Penal Code (for short "ipc")and also under Section 135 of the Bombay police Act. ( 2 ) IT is the case of the prosecution that the complainant Chanabhai Budhiabhai rathod in his complaint stated that he is an agricultural labourer, residing with his family at Abrama, Taluka Kamrej, Dist. Surat. They are five brothers and four sisters. Ramesh was his younger brother and was married with Nimuben at Abrama, taluka Kamrej and he was staying with his three daughters separately. On 18. 4. 1999, chhatabhai Budhiabhai was going for agricultural work in the field of Thakor parbhubhai of his village at about 2. 00 o'clock in the after-noon and at that time one Tinuben, wife of Namubhai Karsanbhai (accused) was cutting the green grass. At that time she was alone. So he went there and stood there for some time. Thereafter, he demanded to have illicit relation with her, but, she refused. So, he went to the field by saying that she should not tell this fact to anyone. Thereafter, when chhanabhai was taking dinner with his wife at about 8. 00 p. m. at that time the husband of Tinuben, present appellants - accused namubhai Karsanbhai, Rakesh Karsanbhai, mahesh Karsanbhai and one Rafik came there and Namubhai told him that "why did he molest his wife by holding her in the field and then he started giving filthy abuses. Chhanabhai, complainant asked him not to give abuses and scuffle took place between them. At that time brother of chhanabhai came there with his father budhabhai Fakirbhai to rescue them. At that time appellant - accused Rakesh karsanbhai, who is residing opposite to the house of the complainant, went to his house and brought Axe and gave Axe blow on the neck of Ramesh, brother of the complainant, and also gave blow on his father, who intervened in the quarrel and also gave Axe blow on his hand. In the said incident Ramesh died. The injured were taken to Dinbandhu Hospital, at Abrama where injured Ramesh died. In the said incident Ramesh died. The injured were taken to Dinbandhu Hospital, at Abrama where injured Ramesh died. ( 3 ) THEREAFTER the complaint was lodged by Chanabhai Budhiabhai Rathod at 3. 30 a. m. at Kamrej Police Station. Offence was registered at CR No. I-104 of 1999 against the accused for the offence punishable under Sections 302, 324 read with Section 34 and also under section 135 of the bombay Police Act. Thereafter, investigation was handed over to P. S. I. Henri Julius. The investigation was carried out by P. S. I. , Kamrej Police Station. Investigating Officer also sent the Yadi to the Executive Magistrate for Inquest panchnama. Inquest Panchnama was drawn in presence of Executive Magistrate, statement of injured witnesses were recorded, Panchnama of place of incident was drawn in presence of panchas, possession of muddamal was taken in presence of panch witnesses and thereafter, the accused were arrested. Thereafter, after completion of investigation, the Police filed charge-sheet against the accused in the court of learned Judicial Magistrate First class, Surat. ( 4 ) AFTER filing the charge-sheet, in the present case, as the offence was exclusively triable by the Court of Sessions, the learned judicial Magistrate First Class, Surat, committed the said case to the Court of sessions at Surat. ( 5 ) THEREAFTER, the charge (Ex. 5) was framed against the present - appellants -accused. The accused pleaded not guilty to the said charge and claimed to be tried. ( 6 ) IN order to bring home the charge levelled against the accused, the prosecution has examined in all 13 witnesses and relied upon their oral testimonies. They are as under: p. W. 1 Sangitaben Rambhai, Ex. 13 p. W. 2 Budhiyabhai Fakirbhai, Ex. 14; p. W. 3 Dr. Mohmed Iqbal Qureshi, Ex. 17, who has prepared the Post Mortem Note of deceased; p. W. 4 Chhaganbhai Budhiabhai, Ex. 19 p. W. 5 Bachubhai Somabhai, Panch of discovery panchnama, Ex. 24; p. W. 6 Jayeshbhai Manjibhai, Ex. 25, p. W. 7 Dr. Atulbhai Hirachand, Ex. 28 p. W. 8 Budhabhai Babubhai, Panch witness, Ex. 32; p. W. 9 Ramanbhai Narottambhai , Ex. 33; p. W. 10 Rameshbhai Ranchhodbhai, Panch, exh. 34; p. W. 11 Dhansukhbhai Bhurabhai, Panch, ex. 36; p. W. 12 Sardarsinh Maganbhai, P. S. O. , exh. 38 p. W. 13 P. S. I. Henri Julius, Ex. Atulbhai Hirachand, Ex. 28 p. W. 8 Budhabhai Babubhai, Panch witness, Ex. 32; p. W. 9 Ramanbhai Narottambhai , Ex. 33; p. W. 10 Rameshbhai Ranchhodbhai, Panch, exh. 34; p. W. 11 Dhansukhbhai Bhurabhai, Panch, ex. 36; p. W. 12 Sardarsinh Maganbhai, P. S. O. , exh. 38 p. W. 13 P. S. I. Henri Julius, Ex. 39 to Prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence. They are as under : (1) Post Mortem Report, Ex. 16; (2)complaint at Exh. 20 (3) Inquest Panchnama ex. 21; (4) Recovery panchnama of clothes of deceased, Ex. 22; (5) Case papers of budhiabhai,ex. 30; (6) Medical Certificate of Budhiabhai, Ex. 31; (7) Panchnama of scene of offence, Exh. 41; (8) Panchnama of physical condition of accused,ex. 42; (9)Discovery panchnama of Axe, Ex. 43; (10)F. S. L. Report, Exh. 44; (11) Serologist report, Ex. 45; ( 7 ) THEREAFTER, after examining the witnesses the further statement of accused under Section 313 Cr. P. C. was recorded in which the appellant - accused have denied the case of prosecution. ( 8 ) AFTER considering the oral as well as documentary evidence and after hearing the parties, the learned Additional Sessions judge vide impugned Judgment dated 31. 8. 2000 held the accused No. 1, 2 and 3 guilty to the offence punishable under section 302 read with Section 34 of I. P. Code and were convicted and sentenced to suffer rigorous imprisonment for life for the offence punishable under Section 302 I. P. Code with fine of Rs. 1000/- each, i/d to undergo R. I. for three months. The accused nos. 1,2 and 3 were also held guilty for the offence punishable under sec. 324 read with section 34 I. P. Code and were convicted and sentenced to suffer R. I. for one year and to pay fine of Rs. 500/- each and i/d to undergo RI for 1-1/2 months. All the sentences were ordered to run concurrently. The accused No. 4 Mohmedrafik abdulkadar Shaikh was acquitted from the offence punishable u/s. 302, 324 read with section 34 I. P. Code. ( 9 ) BEING aggrieved by and dissatisfied with the impugned Judgment and Order of conviction and sentence passed by the learned Trial Judge the present appellants -accused Nos. All the sentences were ordered to run concurrently. The accused No. 4 Mohmedrafik abdulkadar Shaikh was acquitted from the offence punishable u/s. 302, 324 read with section 34 I. P. Code. ( 9 ) BEING aggrieved by and dissatisfied with the impugned Judgment and Order of conviction and sentence passed by the learned Trial Judge the present appellants -accused Nos. 2 and 3 have filed Criminal appeal No. 908 of 2000 and the appellant -accused No. 1 Rakesh Karsanbhai has filed criminal Appeal No. 911 of 2000, through jail. Learned Advocate Ms. Sadhna Sagar is appointed through Legal Aid to defend the case of the present Appellants - accused. ( 10 ) HEARD Ms. Sadhna Sagar, learned advocate, appointed through Legal Aid, for the appellant - accused and Mr. Mukesh patel, learned A. P. P. , for the respondent -State. ( 11 ) LEARNED Advocate Ms. Sadhna Sagar has contended that the appellants - accused in both the Appeals are wrongly booked in the commission of offence and they are wrongly convicted for the alleged offence charged against them. She contended that in the complaint itself the complainant himself has admitted that he has made illicit demand with the wife of Namubhai and so the cause of quarrel arose when the complainant made illicit demand with tinuben, wife of accused - Namubhai. There was no common intention of the present appellant - accused to commit murder. She contended that in a hit of exchange of dialog the incident took place and only one blow was given to the deceased. The father of the complainant intervened and during scuffle he had received injury. At the time of occurrence of incident there was no weapon with the accused and there was no intention to kill ramesh. From the prosecution case it is established that, on account of illicit demand made by the complainant from the wife of namubhai, the accused went to the complainant to scold him and during that period due to sudden provocation appellant- accused Rakesh went to his house and came with Axe and gave one blow of Axe to the deceased. His father tried to intervene and received injury on hand. She has contended that looking to the facts and cirumstances of the case the appellants -accused may be given benefit of doubt and acquitted from the offence punishable against them. His father tried to intervene and received injury on hand. She has contended that looking to the facts and cirumstances of the case the appellants -accused may be given benefit of doubt and acquitted from the offence punishable against them. Alternatively, she contended that the evidence of the prosecution establishes culpable homicide not amounting to murder punishable either under Part-I or Part-II of Section 304 I. P. Code. The appellant - accused are in jail for more than 8 years and, therefore, the conviction may be altered from section 302 to either Part-I or Part-II of Section 304 I. P. Code and the sentence which has already been undergone by the appellants - accused may be treated as substantive sentence and the appellants - accused may be set at liberty forthwith. ( 12 ) LEARNED APP Mr. Mukesh Patel, for the respondent, has contended that the there is voluminous reliable, trustworthy and clinching evidence on record which unequivocally and unerringly proves that the appellants - accused have committed the murder of victim and also caused injury to the father of deceased. He contended that it was a cruel attack of the assault by the accused on the deceased. He further contended that from the evidence of the complainant and other witnesses as well as from the documentary evidence, the prosecution has proved the guilt of the accused. He contended that there was common intention of the appellants to attack on the deceased and the injured witnesses and in the result they have committed serious offence. He contended that it is a clear case of murder and no exception is attracted to bring the case within four corners of culpable homicide not amounting to murder punishable under section 304, Part-I or Part-II. He further contended that the prosecution has established its case beyond reasonable doubt and prayed that the Judgment and order passed by the trial Court is required to be confirmed. He also contended that the trial Court, after fully appreciating the evidence, has rightly convicted and sentenced the appellants - accused. There is no lacuna in the Judgment of the trial Court and prayed to confirm the Judgment and order of conviction and sentence passed by the trial Court. ( 13 ) WE have gone through the oral as well as documentary evidence led by the prosecution before the trial Court. There is no lacuna in the Judgment of the trial Court and prayed to confirm the Judgment and order of conviction and sentence passed by the trial Court. ( 13 ) WE have gone through the oral as well as documentary evidence led by the prosecution before the trial Court. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and entire evidence on record which read and re-read by the learned Advocate, appearing for the parties to bring the reasonable probabilities of the case. It is not in dispute that victim ramesh died homicidal death. The prosection has relied upon the evidence of eye witnesses. ( 14 ) THE prosecution has relied upon the evidence of P. W. I, Sangitaben Rambhai, ex. 13, injured and eye witness P. W. Budhiabhai Fakirbhai Ex. 14, P. W. 4 chhaganbhai Budhiabhai, complainant, ex. 19, P. W. 3 Medical Officer Mohmed iqbal Qureshi, maker of autopsy, Ex. 17 and p. W. 7 Dr. Atul Hirachand, Ex. 28. We have perused and compared the oral evidence of p. W. 3 Dr. Mohmed Iqbal Qureshi, ex. 17 with Post Mortem Note Ex. 18. This witness has explained the injury of deceased ramesh and also narrated the possibility of injuries caused by Muddamal Axe. ( 15 ) SANGITABEN, P. W. I, Ex. 13 has deposed before the trial Court that she is an eye witness of the incident. She was present at the time of occurrence of incident. All the accused were identified by her and she has also explained the injuries on deceased and also identified the Muddamal Axe. Budhiabhai Fakirbhai, P. W. 2, Ex. 14, who is a sufferer of the incident and received injury from the appellant accused Rakesh has also explained the whole incident and when he has tried to save his son, other appellant - accused of Criminal Appeal no. 908 of 2000 who were present there and he was restrained by them and the appellant rakesh had also inflicted one blow on his hand. He has identified all the appellants -accused and even narrated the role played by them during the incident. We have compared the evidence of this witness with the evidence of Dr. Atul Hirabhai, P. W. 7, ex. 28 and perused the documentary evidence produced at Exh. 30 and also perused the case history given by this injured witness. He has identified all the appellants -accused and even narrated the role played by them during the incident. We have compared the evidence of this witness with the evidence of Dr. Atul Hirabhai, P. W. 7, ex. 28 and perused the documentary evidence produced at Exh. 30 and also perused the case history given by this injured witness. Medical Officer is an independent witness and also a public servant. This witness gave his opinion regarding the injury and the possibility of injury by Muddamai Axe. We have perused the medical Certificate of Budhiabhai fakirbhai, Ex. 31 and compared the oral evidence of injury on this witness with the documentary evidence. We have not found any contradictory version from both the evidence, oral as well as documentary evidence. ( 16 ) IN this case originally the cause of incident took place from the conduct of the prosecution witness No. 4 Chhaganbhai budhiabhai Ex. 19. We have perused his oral evidence as well as complaint Ex. 20. When Tinaben, wife of Namubhai was cutting the green grass at that time this witness No. 4 has made illicit demand, she refused and made complaint to her husband-appellant about the illicit demand made by the complainant. Thereupon, Namubhai scolded the complainant, P. W. 4 and quarrel rook place during hot discussion. He is an eye witness of the incident and he has admitted in his complaint as well as in his oral evidence Ex. 19 about the same thing. From this oral evidence the prosecution has established that during the scuffle the brother of the complainant received fatal injury as well as father, p. W. 2 was also assaulted by appellant -accused Rakesh. ( 17 ) IT is true that the panch witness of discovery panchnama, Ex. 43 turned hostile. P. W. 5 Bachubhai Somabhai, Ex. 24, panch of discovery panchnama did not support the prosecution case. We have also perused the oral evidence of P. W. 6 Panch of scene of offence, Ex. 25. Even P. W. 8 Budhiabhai babubhai, Panch of discovery panchnama, ex 33 also turned hostile. This discovery panchnama was prepared under the provision of Section 27 of the Evidence act and under the guidance of appellant -accused the Muddamal Axe was discovered. We have also perused the oral evidence of P. W. 6 Panch of scene of offence, Ex. 25. Even P. W. 8 Budhiabhai babubhai, Panch of discovery panchnama, ex 33 also turned hostile. This discovery panchnama was prepared under the provision of Section 27 of the Evidence act and under the guidance of appellant -accused the Muddamal Axe was discovered. No doubt, both the panchas turned hostile, but in light of the provision of Section 27 of the Evidence Act, we have found from the evidence of I. O. , P. W. 13 p. S. I. Henri Julius, Ex. 39 that he was not aware about the muddamal Axe. Even the defence has not made any question in i connection with the previous knowledge of police regarding the Muddamal Axe. We are of the opinion that the discovery panchnama can be proved by oral evidence by maker of panchnama and the panchas of discovery panchnama, if turned hostile, yet, it is not fatal to the prosecution case.- The prosecution has relied upon the oral evidence of Investigating Officer, P. W. 13 and through his oral evidence Ex. 41 the panchnama of scene of offence and panchnama of physical condition of accused - appellant Ex. 42 were proved. We have compared the evidence of eye witnesses and the evidence of medical ! expert as well as report of F. S. L. and the report of Serologist, Ex. 44 and 45 respectively and found that the blood of deceased was found during scientific analysis. From the oral as well as documentary evidence we have not found any contradictory version regarding the alleged offence. ( 18 ) LEARNED Advocate Ms. Sadhna Sagar has contended that from the oral evidence ; of injured witness as well as eye witnesses, the conduct of the appellant of Criminal appeal No. 908 of 2000 is brought on record. They were cited as abater and when injured witness Budhiabhai Fakirbhai, p. W. 2 tried to save his son-deceased ramesh, he was caught hold by both the appellants - accused. Therefore, the appellants - accused of criminal Appeal no. 908 of 2000 are not involved in the case of murder. The prosecution was unable to cite them as real culprit of murder. She has also contended that the common intention of the appellants of Criminal Appeal no. 908 of 2000 is not established. Therefore, the appellants - accused of criminal Appeal no. 908 of 2000 are not involved in the case of murder. The prosecution was unable to cite them as real culprit of murder. She has also contended that the common intention of the appellants of Criminal Appeal no. 908 of 2000 is not established. She has contended that both the appellants - accused are in jail since more than 8 years. Their role cannot be considered as real culprit of murder. Even they cannot be considered as abater. She has vehemently contended that at the commencement of incident they were not aware with the result of the quarrel and suddenly Rakesh, appellant - accused in criminal Appeal No. 911 of 2000 came with axe from his house and it was used as weapon on the injured person as well as on the deceased. She has tried to establish that appellants were not joined with the common intention to kill deceased or assault the inujured person. ( 19 ) WE have gone through the provision of Section 34 of the Indian Penal Code. In a common intention it must be anterior in time to the commission of offence. It is also equally settled principles of law that the intention of individual has to be inferred from the overt act on conduct or from other relevant circumstances. Therefore, the totality of circumstances must be taken into consideration in order to arrive at a conclusion whether the appellants have common intention to commit offence under which they could be convicted. ( 20 ) FROM the oral evidence of eye witness it cannot be gainsaid, however, that the appellants' acts facilitated the stabbing of the deceased by appellant - accused Rakesh, but there is nothing whatever to indicate that the appellant knew that he intended to kill Ramesh though they must have anticipated with Rakesh to assault on deceased Ramesh with the muddamal weapon which he was having with him. In that view of the matter though the common intention of the appellants to cause death of ramesh is established beyond reasonable doubt, it has been conclusively established that their common intention was to cause injuries to deceased and also they have tried to clarify from the P. W. 4 Chhaganbhai budhiabhai, Ex. 19 that why he has made illicit demand from Tinuben. 19 that why he has made illicit demand from Tinuben. ( 21 ) TO apply Section 34 I. P. Code, apart from the fact that there should be two or more accused, two factors must be established, viz. (i) common intention and. (ii) participation of the accused in the commission of offence. If common intention is proved, but, no oven act is attributed to the individual accused Section 34 will be attributed as essentially it involves various liability. But, if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be invoked. In every case, it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case. ( 22 ) IN a common intention there could rarely be direct evidence. The ultimate decision, at any rate, would invariably depend upon the inference deducible from the circumstances of each case. It is settled law that common intention or the intention of individual concerned in furtherance of common intention couid be proved either from direct evidence or by inference from the acts or attending circumstances of the case or conduct of the parties. ( 23 ) IT is true that common intention can develop during the course of occurrence, but, there has to be cogent material on the basis on which the Court can arrive at that finding and hold the accused vicariously liable for the act of other accused by invoking Section 34 I. P. Code. ( 24 ) FROM the oral evidence of eye witnesses it is established that during scuffle and hot exchange of dialog appellant- accused Rakesh went to his house and came with Axe and then he gave blow on deceased as well as to P. W. 4, father of the complainant who was caught by appellants of Criminal Appeal No. 908 of 2000. Merely because of the fact that the appellants -accused caught hold the father of the complainant, P. W. 4 and scuffle with him while Rakesh (appellant - accused of ' Criminal Appeal No. 911 of 2000) used Axe and commenced the assault, it cannot be inferred beyond reasonable doubt that they shared the intention of Rakesh to murder deceased and gave blow of Axe and caused serious injuries to the P. W. 4, father of the complainant. ( 25 ) WE have also noticed that both the appellants of Criminal Appeal No. 908 of 2000 were not having any weapon with them while attack on the deceased as well as injured persons and they do not have used by word "expression" their intention to cause death of deceased. There is no evidence indicating that there was any prior-concert of mind of all the four accused persons including these two appellants in perpetrating the offence of murder. Section 34 I. P. Code does not create distinct offence, it only lays down the principles of joint criminal liablity. ( 26 ) THE Hon'ble Supreme Court in the case of MUMMIDI HEMADRI and ORS. v. STATE OF ANDHRA PRADESH, reported in AIR 2007 SCW 4507 , has observed as under : "incident arising out of harassment by one of accused of daughter-in-law of member of deceased party - Accused persons attacking deceased with knife -Evidence showing that accused - appellants only caught hold of deceased before attack by other accused persons - Evidence as to whether appellants were armed full of contradiction - S. 149 though attracted, the accused - appellant would be liable to be convicted u/s. 304 Part - II r/w Section 149 instead of S. 300 r/w S. 149. " ( 27 ) IN the case of LACHMAN SINGH v. STATE OF HARYANA, reported in (2006) 10 SCC 524 , the Hon'ble Supreme court has held that "occurrence takes place in course of sudden quarrel, conviction of appellant is required to be altered from section 302 to Section 304, Part-I". In the case of HARENDRA NATH v. STATE of ASSAM, reported in AIR 2007 SCW 4631 the Hon'ble Supreme Court have set out the distinction between "murder" and "culpable homicide" not amounting to murder and altered the conviction recorded under Section 302 to Section 304 Part-I. ( 28 ) WE are of the opinion that if the substratum of prosecution case remains unaffected and remaining part of the evidence is trustworthy the prosecution case should be accepted to the extent it is considered safe and trustworthy. ( 29 ) THIS Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned Judgment and order. ( 29 ) THIS Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned Judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Hon'ble Supreme Court while dealing with criminal appeals, this court has examined the entire evidence on record for itself independently of the trial court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial court has rightly recorded the order of conviction and sentence. ( 30 ) AS observed and discussed at length, in our opinion, in light of the oral as well as documentary evidence, it is established by the prosecution that the appellant - accused of Criminal Appeal No. 911 of 2000 gave axe blow to the deceased and committed an offence of murder of victim Ramesh and thereby committed an offence punishable under Section 302 I. P. Code. However, we are of the opinion that the case of the appellants of Criminal Appeal No. 908 of 2000 is not covered within the meaning of "murder" which is pubishable under Section 302 I. P. Code, but their case is falling under part-II of Section 304 I. P. Code. ( 31 ) FOR the foregoing reason Criminal appeal No. 911 of 2000, filed by appellant- accused Rakesh Karsanbhai Rathod, fails and is hereby dismissed and the Judgment and order dated 31. 8. 2000, rendered by the learned Sessions Judge, Surat, in Sessions case No. 197 of 1999 is hereby confirmed. Criminal Appeal No. 908 of 2000, filed by appellants - accused Namubhai Karsanbhai rathod and Maheshbhai Karsanbhai rathode, is partly allowed and the conviction and sentence awarded by the learned Sessions Judge, Surat, in Sessions case No. 197 of 1999 to these appellants -accused is altered to the extent that both the appellants - accused are held guilty for the offence punishable under Part -II of Section 304 I. P. Code, instead of Section 302 i. P. Code. Both the appellants - accused of criminal Appeal No. 908 of 2000 are in jail since 8 years and, therefore, if the sentence which they have undergone may be treated as sentence for the offence punishable under Part - II of Section 304 I. P. Code is awarded to them, the same would meet the ends of justice. Hence, for the offence punishable under Section 304 Part-II of I. P. Code both the appellants - accused of criminal Appeal No. 908 of 2000 hereby ordered to undergo Rigorous Imprisonment already undergone by them. The sentence of fine is not altered. The appellants -accused of Criminal Appeal No. 908 of 2000 are directed to set at liberty forthwith if their presence is not required in other offences. ( 32 ) ACCORDINGLY, Criminal Appeal no. 911 of 2000 filed by appellant - accused rakesh Karsanbhai Rathod is dismissed and the Criminal Appeal No. 908 of 2000 filed by appellants - accused Namubhai and maheshbhai Karsanbhai is partly allowed to the aforesaid extent. (PRA) Criminal Appeal No. 908 of 2000 is partly allowed. Criminal Appeal no. 911 of 2000 dismissed.