JUDGMENT Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 7th of January 1993 passed in Sessions Trial No. 34/92 by the Additional Sessions Judge, Khairagarh, Sessions Division Rajnandgaon. 2. By the impugned judgment, appellant- Mohan has been convicted u/ss 302, 324 & 324 IPC and appellant- Ratiram has been convicted u/ss 302/ 34, 324 & 324/34 IPC and both have been sentenced to undergo imprisonment of life and R.I. for 1-1 year respectively. 3. The facts, briefly stated, are as under:- Five accused persons namely Ratiram, Gokul, Beniram, Kanaihya and Mohan were tried for the offences punishable u/ss 147, 148, 302/149, 324/149 and 324/149 IPC. Accused-Ratiram, Mohan & Beniram are real brothers. Accused- Gokul & Kanaihya are the sons of Ratiram. Deceased Chhabllu was another brother of the above 3 accused persons namely Ratiram, Beniram & Mohan. Injured Deo Singh (PW-2) and Ishwar (pW3) are the sons of deceased Chhabllu. A partition had already taken place between the 4 brothers and deceased- Chhabllu was residing separately along with his family members since long back. There was a dispute between deceased- Chhabllu and accused- Mohan on account of a residential plot. On 2.6.91, on the report of accused-Ratiram, Chhabllu and his sons Deo Singh and Ishwar were arrested u/s 151 Cr.P.C. and preventive actions were taken against them u/s 107 and I 16 (3) Cr.P.C. The present incident took place on 4.6.9 I at about 6.00 p.m. The case of the prosecution is that the above 5 accused persons made an unlawful assembly, participated in rioting with deadly weapons, and in prosecution of the common object of that assembly committed murder of deceased Chhabllu and caused hurt to Deo Singh (PW-2) and Ishwar (PW-3). The allegations are that all the accused persons came to the house of the deceased. Accused- Mohan was anned with tangia; accused- Ratiram was armed with sumela (a small iron rod used in bullock-cart) and the other accused persons were armed with lathis. All participated in assault, due to which, the deceased died and the above two witnesses received simple injuries. According to the prosecution, the incident was witnessed by Asharam (PW-1), Deo Singh (PW-2), Ishwar (PW-3), Dheliabai (pW4), Nirmata Bai (PW-5), Khomlal (PW-6), Bhagwati Prasad Upadhyay (PW -7) and Ramkisun (PW -9). Asharam (PW -1) lodged the First Information Report (Ex.-P/1). All participated in assault, due to which, the deceased died and the above two witnesses received simple injuries. According to the prosecution, the incident was witnessed by Asharam (PW-1), Deo Singh (PW-2), Ishwar (PW-3), Dheliabai (pW4), Nirmata Bai (PW-5), Khomlal (PW-6), Bhagwati Prasad Upadhyay (PW -7) and Ramkisun (PW -9). Asharam (PW -1) lodged the First Information Report (Ex.-P/1). The learned Sessions Judge held that it was not established that the accused persons formed an unlawful assembly and the above acts were committed in further of the common object of the unlawful assembly. The Sessions Judge, therefore, acquitted the 3 accused persons namely A-2 -Gokul, A-3 - Beniram and A-4 - Kanaihya. However, the remaining 2 accused persons i.e. A-I - Ratiram and A5 -Mohan were convicted as aforementioned. It was held that A-5 Mohan was liable for punishment u/ss 302, 324 & 324 IPC and A-1 Ratiram was liable for punishment under the same Sections with the aid of Section 34 IPC as he shared common intention with A-5 - Mohan for commission of the aforesaid offences. The further case of the prosecution is that in the same transaction A-1 - Ratiram also received grievous injuries. Ratiram lodged a separate F.I.R. (Ex.-D/7) on which an offence u/s 326 IPC was separately registered against Ramsewak son of deceased Chhabllu, and charge-sheet u/s 326 IPC was filed against him. According to the investigation of the said F.I.R. (Ex.-D/7), A-I Ratiram received injuries on account of assault made by Ramsewak. 4. Mr. D.N. Prajapati, learned counsel appearing on behalf of the appellants, argued that there is no evidence of sharing common intention by A-1 - Ratiram; case of Ratiram is similar to the cases of 3 other accused persons who have been acquitted; there is no evidence to hold that Ratiram participated in assaulting the deceased; on the contrary Ratiram himself received grievous injuries for which son of the deceased Sewakram is being prosecuted U/S 326 IPC, therefore, if separate acts of the 2 appellants are examined, nothing can be attributed to Ratiram. Even there is discrepancy in the eye-witness account and medical evidence so far as acts of Ratiram is concerned. About Mohan, he argued that all the witnesses who are coming against him are relative witnesses and their versions were not reliable for convicting him under the aforementioned Sections of IPC. 5. On the other hand, Mr. Even there is discrepancy in the eye-witness account and medical evidence so far as acts of Ratiram is concerned. About Mohan, he argued that all the witnesses who are coming against him are relative witnesses and their versions were not reliable for convicting him under the aforementioned Sections of IPC. 5. On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 6. We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. 7. We shall firstly examine the case of appellant No. 2 - Mohan. 8. Out of the above eye-witnesses, Asharam (PW-1) and Khomlal (PW6) both turned hostile. They deposed that they reached to the place of occurrence after the entire incident was over and they saw the deceased lyi'1g in pool of blood. Bhagwati Prasad Upadhyay (PW-7) deposed that when he reached to the place of occurrence, he saw that deceased- Chhabllu was lying in courtyard in pool of blood. He has already died. He also saw the injuries on Deo Singh (PW-2) and Ishwar (PW-3). He further added that appellants- Mohan and Ratiram were giving blows on the dead body of the deceased by sumela and tangia. There are many omissions in his evidence. In appreciation, we find that he also did not witness the actual incident and reached to the place of occurrence after the incident was over, The learned Sessions Judge has also not relied on the testimony of Bhagwati Prasad Upadhyay (PW-7). The Sessions Judge has relied on the testimonies of Deo Singh (PW-2), Ishwar (PW-3), Dheliabai (PW-4), Nirmala Bai (PW-5) and Ramkisun (PW-9). Out of the above 5 witnesses, Deo Singh (PW-2) and Ishwar (PW-3) are injured witnesses. Almost all the witnesses deposed that appellant- Mohan was armed with tangia and he gave repeated tangia blows on the head of the deceased. Ishwar (PW3) deposed that he was also assaulted by Mohan by tangia and Ratiram assaulted him by sumela, whereas, in cross-examination, he admitted that he did not tell this to the police that Mohan has assaulted him by tangia and Ratiram assaulted him by sumela. Ramkisun (PW-9) is Samdhi of deceased- Chhabllu. He .also deposed that the deceased was assaulted by tangia by Mohan and Ratiram also assaulted him by sumela. Ramkisun (PW-9) is Samdhi of deceased- Chhabllu. He .also deposed that the deceased was assaulted by tangia by Mohan and Ratiram also assaulted him by sumela. In the cross-examination, in Para-7, he clearly admitted that when the accused persons were coming to the house of Chhabllu having armed with tangia, lathi, sumela, he became frightened and his eyes were closed and he could not see the incident. On a close scrutiny of the entire evidence of Ramkisun (PW -9), it appears that he could not see the actual incident and he only witnessed the presence of the accused persons. The learned Sessions Judge has relied on the testimonies of Deo Singh (PW-2), Ishwar (PW3), Dheliabai (PW-4), Nirmala Bai (PW-5) and Ramkisun (PW-9). Even if we discard the testimony of Ramkisun (PW -9), the evidence of remaining 4 eyewitnesses i.e. PW-2, PW-3, PW-4 and PW-5 are intact on record to show that the appellant- Mohan, who was armed with tangia, assaulted the d~ceased by tangia. 9. Mr. Prajapati has argued that these witnesses are sons, wife and daughter-in-law of the deceased, they are close relatives, therefore, they are interested witnesses and their testimonies cannot be relied on to. In Namdeo Vs. State of Maharashtra1, the Supreme Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an "interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable,• inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. In Dharnidhar Vs. State of Uttar Pradesh and Others & other connected appeal;, the Supreme Court further reiterated that there is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before court. In Dharnidhar Vs. State of Uttar Pradesh and Others & other connected appeal;, the Supreme Court further reiterated that there is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before court. The Supreme Court held that a close relative of deceased does not, perse, become an interested witness. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes and deposes before court only with that intention and not to further cause of justice. However, version of interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same. When their statements find corroboration by other witnesses, expert evidence and circumstances of case clearly depict completion of chain of evidence pointing out guilt of accused, then statements of so-called "interested witnesses" can be relied upon by court. 11. Therefore, this argument cannot be accepted that the testimonies of relative witnesses cannot be relied on, only on the ground that they were the relatives of the deceased. However their evidence is to be scrutinized with due care and caution and if such evidence is found credible in appreciation, the conviction can well be based on their such testimonies. 12. In case on hand, Ishwar (PW-3) and Deo Singh (PW-2) are the injured witnesses. Therefore, their presence on the place of occurrence cannot be doubted. Nirmala Bai (PW-5) is daughter-in-law of the deceased and Dheliabai (PW-4) is wife of the deceased. They are also the natural witnesses being the members of the family of the deceased. The incident took place at about 6.00 p.m. Therefore, in absence of any evidence to the contrary, it cannot be held that they would not be present in their house. The evidence of Deo Singh (PW-2) and Ishwar (PW-3) is very specific about the role played by appellant - Mohan who was armed with tangia and gave repeated tangia blows to the deceased. The evidence of other 2 witnesses i.e. Dheliabai (PW-4) and Nirmala Bai (PW-5) is general about all the accused persons but Dheliabai (PW-4) also very clearly deposed that the deceased was assaulted by Mohan I by tangia. . 13. The evidence of these 4 witnesses is corroborated by thy medical evidence of Dr. The evidence of other 2 witnesses i.e. Dheliabai (PW-4) and Nirmala Bai (PW-5) is general about all the accused persons but Dheliabai (PW-4) also very clearly deposed that the deceased was assaulted by Mohan I by tangia. . 13. The evidence of these 4 witnesses is corroborated by thy medical evidence of Dr. S.S. Chabra (PW -18) who performed autopsy on the body of deceased. He noticed following injuries on the body of the deceased :(i) Incised wound % inch x % inch x bone deep on the right side of scalp; (ii) Incised wound 21/2 inch x 1/2 inch x bone deep on the right side of the scalp, parallel to injury No.1; (iii) incised wound 3 inch x % inch x bone deep on the left side of the scalp; & (iv) Abrasion, semi-circular, 1/2 inch on the left upper portion on ribs, 2 other abrasions were there on the right portion of the chest. Blood clots were present on the brain membrane and brain membrane was ruptured. The brain was also ruptured having haemorrhage. 14. All the above injuries caused to the deceased could be caused by sharp edged weapon like tangia. Therefore there is no discrepancy in the evidence of above 4 eye-witnesses & medical evidence and it was clearly established that appellant No.2- Mohan participated in assaulting the deceased by using a tangia and he gave repeated tangia blows on the head of the deceased resulting to his death. 15. Now we shall examine about the' conviction of appellant- Ratiram with the aid of Section 34 IPC. 16. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. If two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. If two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. To constitute common intertion, it is necessary that intention of each one of the accused be known to the rest and shared by them. The common intention has to be inferred from the act, conduct or other relevant circumstances of the case. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which he can be convicted. In Devilal and another Vs. The State of Rajasthan3, the Supreme Court held that the distinction between "common intention" under Section 34 and "common object" under Section 149 is of vital importance. The words "in furtherance of the common intention of all" are a most essential part of Section 34. Common intention is the intention to commit the crime actually committed and this common intention is anterior in time to the commission of the crime. On the other hand, Section 149 speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. 17. According to above eye witness, appellant- Ratiram also participated in assaulting the deceased by sumela. Deo Singh (PW-2) specifically deposed that Ratiram assaulted the deceased by sumela on his head which hit on the back portion of the head. Sumela is rod like article, by which, a lacerated wound was possible. However, we do not find any lacerated wound on the body of the deceased. Ishwar (PW-3) specifically made allegations against appellant Mohan that he used tangia but for other accused persons he made general allegations that they also assaulted the deceased by sumela & lathi, therefore, no specific allegations are there against appellant- Ratiram in the evidence of Ishawar (PW-3). The other 2 witnesses i.e. Dheliabai (PW-4) and Nirmala Bai (PW-5) also made general allegations against the other accused persons including appellant- Ratiram. They have also not specifically deposed that-Ratiram assaulted the deceased by sumela. In appreciation, we find that there is discrepancy in the ocular version of above eyewitnesses and the medical evidence so far as assault given by Ratiram to the deceased by sumela is concerned. Ratiram himself had received grievous injuries which according to him were caused by Ramsewak. They have also not specifically deposed that-Ratiram assaulted the deceased by sumela. In appreciation, we find that there is discrepancy in the ocular version of above eyewitnesses and the medical evidence so far as assault given by Ratiram to the deceased by sumela is concerned. Ratiram himself had received grievous injuries which according to him were caused by Ramsewak. The eye-witnesses have not given any explanation regarding the injuries sustained by Ratiram. Therefore, their version about the individual act attributed to Ratiram cannot be relied on and it was not proved beyond all reasonable doubts that Ratiram, in fact, assaulted the deceased or the 2 injured by using a sumela as alleged by the prosecution. We do not find any evidence on record to hold that Ratiram came to the place of occurrence for committing murder of the deceased or he shared common intention with appellant- Mohan for commission of murder of the decease('. There is no iota of evidence to infer that the intention of Mohan to committing murder of the deceased was known to appellant- Ratiram also. It appears that when Ratiram and Mohan came to the place of occurrence, a quarrel begun there in which Mohan intentionally assaulted the deceased by tangia causing his instantaneous death and Ramsewak quarreled with Ratiram and assaulted him and caused grievous injuries to him. Therefore, in the facts and circumstances of the case in absence of any evidence of sharing of common intention by appellant- Ratiram with appellant- Mohan, Ratiram cannot be convicted with the aid of Section 34 IPC. 18. For the foregoing reasons, the appeal is partly allowed. While confirming the conviction and sentences awarded to appellant No.2-Mohan u/ss 302, 324 & 324 IPC, the conviction and sentences awarded to appellant No. 1- Ratiram u/ss 302/34, 324 & 324/34 IPC are set-aside. Appellant- Ratiram is acquitted of the charges framed against him. Appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Appellant No.2- Mohan is directed to surrender immediately to undergo the remaining sentences imposed against him. Appeal Partly Allowed.