JUDGMENT 1. - A written FIR lodged by Madho Singh set the police in motion, who after investigation submitted challan against accused-appellants Roop Singh and Daulat Singh before the Additional Sessions Judge, Sirohi for the offence under Sections 302 I.P.C., which after trial, culminated into conviction vide judgment dated 26.2.1982 passed in Sessions Case No.25/1979 and sentence under Section 302/34 I.P.C., against which this appeal has been preferred. 2. In brief, the prosecution story as disclosed is that on 3.8.1978 at about 10 p.m., a written report was lodged by Madho Singh at Police Station Rani, Distt. Pali stating therein that at about 6.00 p.m., he was cutting waste grass in Sesame crop in his field. At that time, his elder brother Sohan Singh was going from his village to his field Well Gunderiya. In the said field cattle of Sohan Singh were being grazed by one Kumari Narayani. At about 5-7 minutes thereafter, he heard the cries of Kumari Narayani and saw in the direction of his brother's going and found that Daulat Singh was beating his brother with 'dhariya' and Roop Singh with knife. He also made cries and ran towards the place of occurrence from his field. Nainiya and Kumari Sunder Kanwar, who were in the field of Sohan Singh also ran towards the place of occurrence. Daulat Singh inflicted a 'lathi' blow on the hand of Nainiya when they all reached on the spot. On seeing all of them, the accused-persons ran away on bicycle. On the spot, they all found his brother unconscious and having blood all over the body. Bhikha Chaudhary, who was also coming from the field towards them, was sent by him on the well of Narpat Singh to fetch the tractor. Narpat Singh brought tractor in which they took him to the hospital, but Sohan Singh succumbed to his injuries. A conspiracy was hatched by the accused-persons with one Ram Singh, on a day before incident at the bus stand. Ram Singh instigated Roop Singh and Daulat Sigh to kill Sohan Singh. The said discussion of the accused-persons was overheard by Prathvi Singh, who conveyed the same to him. On this report, police submitted a challan after investigation against the accused-persons under Section 302 I.P.C. 3. Ram Singh instigated Roop Singh and Daulat Sigh to kill Sohan Singh. The said discussion of the accused-persons was overheard by Prathvi Singh, who conveyed the same to him. On this report, police submitted a challan after investigation against the accused-persons under Section 302 I.P.C. 3. The trial court, during trial took cognizance against accused Ram Singh under Section 302 and 109 I.P.C. The accused Roop Singh and Daulat Singh were charged by the Court under Section 302 I.P.C. and accused Ram Singh under Section 302 read with Section 109 I.P.C. The accused-persons denied the allegations and claimed trial. Ram Singh preferred a revision against charge framed before this Court, which was accepted on 3.7.1980 and charge against Ram Singh was quashed. The trial proceeded only against accused Roop Singh and Daulat Singh. 4. The prosecution examined 24 witnesses and got exhibited documents Ex.-P/1 to Ex.-P/28. The accusedpersons in their statement under Section 313 Cr.P.C. stated that the prosecution witnesses are stating against them under the pressure of Madho Singh and there is litigation pending with witnesses Narpat Singh, Nainiya and Madho Singh. Out of this enmity they have been involved in a false case. One witness was examined in defence. 5. The trial court after evaluating the oral as well as documentary evidence and relying on the oral testimony of the eye-witnesses, convicted the accused-persons under Section 302/34 I.P.C. and sentenced each of them to undergo life imprisonment with a fine of Rs.200/- each, in default of payment of fine to further undergo two months rigorous imprisonment. 6. Both the parties were heard. The entire record was gone through. 7. The learned counsel for the accused-appellants argued that from the record it is well established that every witness produced by the prosecution is having enmity with the accused persons. From the site memo and version of witnesses, it is not possible for the prosecution witnesses to have seen the occurrence in minute detail. The witnesses are interrelated and are of one family. The version of witnesses do not find support and corroboration from each other. No blood was found on the cloth of accused and also on lathi recovered from the accused-Daulat Singh. The accused Roop Singh was arrested on next day of incident having sharp edged injuries on his palm. The witnesses are interrelated and are of one family. The version of witnesses do not find support and corroboration from each other. No blood was found on the cloth of accused and also on lathi recovered from the accused-Daulat Singh. The accused Roop Singh was arrested on next day of incident having sharp edged injuries on his palm. This fact was admitted by the accused Roop Singh in the statement under Section 313 Cr.P.C. 'Dhariya' was not recovered from accused Daulat Singh, but instead a 'lathi' was recovered. There were no marks of bicycle on the place of occurrence, on which the accused-persons alleged to have gone. As per site memo, no vacant field was available for grazing the cattle as the filed was already ploughed and crops were standing therein. From the oral as well as documentary evidence, the case of murder against the accused-persons is not made out and also there is no evidence of common intention of the accused-persons to kill Sohan Singh. The injuries are not sufficient in the ordinary course of nature to cause death. No case against the accused-persons is made out for offence under Section 302/34 I.P.C. 8. Learned Public Prosecutor vehemently supported the judgment of the learned trial court and pleaded that the presence of the witnesses in the field is more probable. Madho Singh was working in his field, Nainiya the labour and Kumari Sunder Kanwar daughter of deceased were also in the field of deceased. Narayani who was grazing the cattle of deceased Sohan Singh in the field, saw the accused-persons beating with knife and 'lathi', when she made cries, the other witnesses ran towards the place of occurrence and saw the incident. The oral evidence of the eye-witnesses is fully corroborative, reliable and trustworthy. Whatever minor contradictions and omissions that cropped up during examination are bound to occur as per human conduct. The prosecution case cannot be dismantle simply on the basis of relationship of witnesses with the deceased. 9. The learned Public Prosecutor further strenuously argued that the postmortem report clearly reveals that the injuries inflicted on the head of the deceased is by sharp edged weapon and were sufficient in the ordinary course of nature to cause death. Both the accused-persons were having enmity with the deceased proceeded these having common intention to wipe out Sohan Singh went there and inflicted severe injuries by knife and 'lathi'. Both the accused-persons were having enmity with the deceased proceeded these having common intention to wipe out Sohan Singh went there and inflicted severe injuries by knife and 'lathi'. A clear case of murder against the accused is well proved. No interference is warranted in the judgment given by the trial court. 10. Both the accused have been convicted on the basis of having common intention for commission of offence. It is a trite law that Section 34 of the I.P.C. is only a rule of evidence and does not create a substantive offence. If any act is done in furtherance of common intention by two or more persons to do a thing jointly, it will be assumed that each of them has done individually and will be liable individually for the act committed. It is indeed difficult to obtain the direct evidence of common intention, but the inference of having common intention can be drawn from the acts or conduct of the accused-persons and relevant circumstances. 11. The common intention can be developed on the spot also but the intention must be anterior in point of time to the commission of offence. While arriving at the conclusion of common intention of the accused persons totality of the circumstances must be taken into consideration and would depend on the facts and circumstances of each case, therefore, whether an act is in furtherance of common intention is an incident of fact and not a law ? ( AIR 2004 SC 4570 ). 12. In the light of above observation sharing of common intention of both the accused is to be considered in the light of the evidence tendered and from the act and conduct of the accused-persons. PW-11 Narayani an independent witness and not related to the victim-party, has stated in her statement that at about 6.00 p.m., when she was grazing the cattle in the field, Sohan Singh was coming towards Well Gunderiya and Daulat Singh came from Kishanpura. At that time, Sohan Singh objected about the animals being taken by Daulat Singh from his field, upon which, Daulat Singh inflicted a 'lathi' blow on the head of the deceased, thereafter, accused Roop Singh came on bicycle from Village Kishanpura and inflicted knife injury on the body of deceased Sohan Singh. This clearly indicates that both the accused-persons did not come jointly. This clearly indicates that both the accused-persons did not come jointly. Roop Singh arrived on the spot only after scuffle between Sohan Singh and Daulat Singh was going on. The incident was neither pre-planned nor prior consent of mind of the accused-persons. The injury report reveals only lacerated wound and bruises, that can be referred to by blunt weapon and nine injuries of incised wound are from sharp edged weapon. The injuries caused by blunt weapon are simple and not on vital part of the body of deceased. The theory of pre-consent of mind of the accused was demolished vide judgment passed on 3.7.1980 in S.B. Cr.Revision No.581/98 by this Court when charge against accused Ram Singh was quashed. From the testimony given by this witness, it can safely be inferred that both the accused-persons were not having common intention of killing deceased Sohan Singh. The site memo also reveals that the incident was seen by this witness at a distance of 72 feet only and she has narrated that the accused Daulat Singh inflicted 'lathi' blow and accused Roop Singh gave beating with knife. Nothing in her cross-examination has revealed about her testimony being either tainted or biased, coupled with this testimony, the statement of other witnesses namely PW-5 Nainiya, PW-9 Mst. Sunder Kanwar, PW-10 Madhav Singh if scrutinized, then it can be found that they have all seen the accused-persons on the place of occurrence. They reached on the spot either while beating was going on or the accusedpersons were going on by bicycle. More relevant evidence is of PW-5 Nainiya, who has stated that when he reached on the spot, a 'lathi' blow was given by accused Daulat Singh on his hand which is also supported by medical report Ex.-P/21. From the statement of all these witnesses, a safe conclusion is that accused Daulat Singh alone gave beating by 'lathi' on the person of the deceased and caused simple injuries and thereafter accused Roop Singh appeared on the seen, who gave knife blow on the vital part of the body of deceased. More particularly, injury No.2 shown in Ex.-P/20 and found to be sufficient to cause death in the ordinary course of nature. 13. More particularly, injury No.2 shown in Ex.-P/20 and found to be sufficient to cause death in the ordinary course of nature. 13. From the above, it is found that there was neither any pre-plan nor any prior consent of mind of both the accused about the incident, but Roop Singh came later having a knife and when saw fighting going on between Sohan Singh and Daulat Singh, joined them and gave beating with knife to deceased Sohan Singh, which proved fatal. The conduct and action of both the accused do not reflect sharing of common intention in commission of offence. The injuries inflicted by 'lathi' are simple whereas the injuries inflicted by knife are dangerous and serious and were on vital part of the body. When the intention or act done by the accused-persons is not in furtherance of common intention, the support of Section 34 cannot be taken as the act done was not in furtherance of common intention. So accused Daulat Singh cannot be held liable for having common intention with accused Roop Singh, therefore, conviction under Section 302/34 I.P.C. for both accused is contrary to the evidence and facts available on record, but accused Daulat Singh was there on the spot and gave beating with 'lathi' and caused simple injuries by blunt weapon as per statement of the prosecution certainly can be held responsible for the offence under Section 323 I.P.C. 14. Now remains the question of Roop Singh. As held above, there was no sharing of common intention of both the accused in commission of offence and accused Daulat Singh is responsible only for his act of causing simple injury by blunt weapon. Accused Roop Singh is to be held responsible only for his act or commission while giving repeated knife injuries on the person of deceased. The prosecution has produced four eye-witnesses namely PW-5 Nainiya, PW-9 Mst. Sunder Kanwar, PW-10 Madho Singh and PW-11 Mst. Narayani. As held above, PW-11 Narayani is also an independent witness. Similarly, PW-5 Nainiya is also an independent witness as he is not related to the victim party. A careful scrutiny of the statement of both the witnesses reveals that they have seen the occurrence. Sunder Kanwar, PW-10 Madho Singh and PW-11 Mst. Narayani. As held above, PW-11 Narayani is also an independent witness. Similarly, PW-5 Nainiya is also an independent witness as he is not related to the victim party. A careful scrutiny of the statement of both the witnesses reveals that they have seen the occurrence. They have stated that it was Roop Singh who gave repeated knife injuries on the person of deceased Sohan Singh, which establishes that Roop Singh is responsible for the injury caused by Sharp weapon on the person of Sohan Singh. Nainiya, who reached on the spot and also received blunt injury given by accused Daulat Singh, which is supported by medical evidence has also stated about the role played by Roop Singh. PW-9 Mst. Sunder Kanwar and PW-10 Madho Singh cannot be termed as eye-witnesses because as per Mst. Sunder Kanwar, she has seen the occurrence while remaining in her field having a boundary wall of thorny bushes about 3 feet hight in her front, but Nainiya went on the spot and restrained the accused-persons from beating to Sohan Singh. At that time, Nainiya also received 'lathi' injury from Daulat Singh. From this statement of Mst. Sunder Kanwar it cannot be presumed that she has seen minute detail of occurrence, so is the case of PW-10 Madhav Singh and both are blood relative of the deceased. If the testimony of both these witnesses is discarded, still there is full proof about the part played by the accused-persons by giving injuries on the person of deceased on the basis of statement of PW-5 Nainiya and PW-11 Mst. Narayani whose statements support and corroborate each other. Both have seen the occurrence and gave the minute details about the part played by the accused. They are not related to the victim parties. Their presence on the spot is more probable and reliable. In the corroborative statement of independent witnesses, there is nothing in the cross-examination which demolished the prosecution story and it can safely be derived that accused Roop Singh gave repeated knife injuries on the person of deceased and Daulat Singh belaboured with 'lathi' causing simple injury. 15. The blood stained knife has been recovered from the possession of the accused through Ex.-P/11 which when sent for Forensic Science Examination was found to be smeared with human blood through Ex.-P/27. 15. The blood stained knife has been recovered from the possession of the accused through Ex.-P/11 which when sent for Forensic Science Examination was found to be smeared with human blood through Ex.-P/27. The doctor PW-1 Champalal has specifically mentioned that the incised wound received by the deceased could be caused by knife (Article-1) and handle (Article-2) which was shown to him during examination. The accused gave knife injury, which is supported from the injury report of the accused Roop Singh given by PW-24 Dr. Prakash Dayal, who found as many as 9 injuries on the right hand palm and phalanges of the accused. He has also stated that all these injuries can be caused by handle of a knife without wooden cover while giving blows on someone else. The accused Roop Singh though tried to explain about the injuries but failed as the doctor has specifically denied that these injuries cannot be received from barbed-wire fencing. The defence version of doctor DW-1 Dharmendra Sharma is also not of much help to accused Roop Singh, because this witness has admitted in the examination that the sharp edged injuries mentioned in Ex.-P/20 can be caused by either 'dhariya' or 'knife' or sharp edged weapon. He has personally not seen the body. Moreso PW-21 Dr. Champa Lal who conducted the postmortem has categorically stated after seeing the knife (Article-1) that the injuries on the body of the deceased can be caused by this Article-1 the knife. The corroborative, reliable and trustworthy prosecution witnesses coupled with the injuries received by the accused on his right hand clearly proves that it was accused Roop Singh who gave knife beating to deceased Sohan Singh on the head and vital part of his body and while doing so, he received the injuries on his palm and phalanges. The injury No.2 proved fatal and also sufficient in the ordinary course of nature to cause death. 16. The accused Roop Singh intended to inflict these injuries with such a force on scalp that brain matter came out and also on the occipital area, front area on the parietal reason. The repeated blows given by accused Roop Singh on the head, a vital part of the body, clearly indicates his intention to cause death or the accused knew that the injuries inflicted would be sufficient to cause death. The repeated blows given by accused Roop Singh on the head, a vital part of the body, clearly indicates his intention to cause death or the accused knew that the injuries inflicted would be sufficient to cause death. The incised wounds given by the accused proved sufficient to cause death. Accused Roop Singh individually can be held responsible for serious injuries on vital part of the body of the deceased and also other injuries caused by sharp weapon. 17. Learned counsel pleaded that the accused never intended to kill the accused and only one injury No.2 mentioned in Ex.-P/20 is dangerous. Hence his case does not go beyond Section 304 Part-I I.P.C., but this argument is without any force because there are bodily injuries on the person of the deceased and the nature of injuries as per report is serious and from the act and conduct of the accused, it is proved that there was intention of the accused to inflict such injuries and the injury inflicted is neither accidental nor unintentional. The inflicted injuries as per medical report are sufficient in the ordinary course of nature to cause death. The case of accused squarely falls under Section 300 clause thirdly as pointed out in AIR 1985 SC 465 (Virsa Singh v. State of Punjab) . The accused Roop Singh is guilty of culpable homicide amounting to murder. The prosecution has proved the case against Roop Singh for culpable homicide amounting to murder. 18. For the foregoing conclusion, it is found that the case against accused Daulat Singh is proved under Section 323 I.P.C. and against accused Roop Singh is proved under Section 302 I.P.C. so the appeal is partly allowed. 19. With these observations, both the accused deserves to be acquitted for the offence under Section 302/34 I.P.C. but accused Daulat Singh is held guilty under Section 323 I.P.C. and accused Roop Singh is held guilty under Section 302 I.P.C. for causing murder of Sohan Singh. 20. Resultantly, while partly allowing the appeal, the conviction and sentence of accused Roop Singh and Daulat Singh under Section 302/34 I.P.C. is set-aside. 21. The accused Roop Singh is convicted under Section 302 I.P.C. and is sentenced to undergo life imprisonment with a fine of Rs.5,000/-; in default thereof to further undergo imprisonment for six months. Accused Roop Singh is on bail, his bail bonds stand forfeited. 21. The accused Roop Singh is convicted under Section 302 I.P.C. and is sentenced to undergo life imprisonment with a fine of Rs.5,000/-; in default thereof to further undergo imprisonment for six months. Accused Roop Singh is on bail, his bail bonds stand forfeited. The trial court is directed to seek the custody of accused Roop Singh and send him to jail to suffer the sentence awarded. 22. The accused Daulat Singh is convicted for offence under Section 323 I.P.C. looking to the time lapse from the date of incident to the date of decision which is about 30 years, it would be proper if he is sentenced for period already undergone, which comes out to be 9 months and 23 days. Hence, accused Daulat Singh is sentenced under Section 323 I.P.C. for a period already undergone. He is on bail, his bail bonds stand cancelled. The record be sent to the trial court immediately.Appeal partly allowed. *******