JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of the judgment and order rendered by Sessions Court, Patan on 18.08.2005 in Sessions Case No.425 of 2002 (old Sessions Case No.120 of 2001). The appellants in Criminal Appeal No.2100 of 2005 and the appellant in Criminal Appeal No.1888 of 2005 were accused Nos.1, 2 and 3 respectively before the Trial Court. They were charged to have committed murder of Pankaj Nanalal Raval on 21.04.2001 at Village Virta, Taluka Chanasma by accused No.2 – Kirankumar Kanaiyalal Barot inflicting knife blows on the deceased, by accused No.1 – Hiteshkumar Laljibhai Barot throwing an angle at the victim Pankaj, which hit on his neck and accused Nos.1 and 3 giving kick and fist blows to the deceased while catching hold of him. This incident was seen by the father of the victim – Nanalal and certain other witnesses. On people gathering, the accused persons escaped from the place of incident and deceased was taken to the hospital. The deceased succumbed to the injuries suffered by him. Police was informed about the same by the Doctor initially and then, FIR was lodged by Nanalal – father of the victim. On the basis of the FIR, offence was registered and investigated and ultimately charge-sheet was filed in the Court of learned JMFC, Chanasma, who in turn, committed the case to the Court of Sessions and Sessions Case No. 425 of 2002 came to be registered. Charge was framed against the accused persons at Exh.16 for the offences punishable under Sections 302, 323, 324 read with Section 34 of the IPC, to which all the accused persons pleaded not guilty and claimed to be tried. The Trial Court, after considering the evidence led by the prosecution, came to the conclusion that the prosecution is successful in establishing the charges levelled against the accused persons and convicted them for the offence punishable under Sections 302 and 323 read with Section 34 of the IPC. For the offence of murder, the accused persons were ordered to undergo imprisonment for life and to pay fine of Rs.25,000/- each, in default, to undergo R.I. for 3 years. For the offence punishable under Section 323 read with Section 34 of the IPC, the accused persons were ordered to undergo R.I. for 1 year and to pay fine of Rs.1,000/- each, in default, to undergo R.I. for 3 months. For the offence punishable under Section 323 read with Section 34 of the IPC, the accused persons were ordered to undergo R.I. for 1 year and to pay fine of Rs.1,000/- each, in default, to undergo R.I. for 3 months. All the sentences were ordered to run concurrently. The Trial Court also ordered that if the accused – convicts deposit the amount of fine, an amount of Rs.75,000/-shall be paid to the first informant. 2. Learned advocate Mr. Pratik Barot appears for original accused No.1 – Hiteshkumar Laljibhai Barot, learned advocate Mr. Jal Unwala appears for original accused No.2 – Kirankumar Kanaiyalal Barot and learned Senior Advocate Mr. P.M. Thakkar appears with Mr. R.J. Goswami for original accused No.3, whereas the State is represented by learned APP, Mr. K.L. Pandya. 3. The prosecution case in brief is that the first informant – Nanalal and his 3 sons Jashvant, Paresh and Pankaj were all engaged in the business of making and marketing local beverage called Pepsi. On the day preceding the incident, it is the case of the prosecution that accused No.1 went to the house of the first informant where he met Paresh. Accused No.1 asked for Pepsi and Paresh said that it was not ready. Accused No.1, therefore, again asked that whatever may be ready, may be given to him and Paresh again said that nothing is ready. In response to this, accused No.1 told Paresh that he would deal with him next morning. Next morning when Nanalal was away attending some social call and Paresh alone was at stall, accused No.1 had come there, picked up a quarrel and attacked Paresh. The hubbub attracted the neighbours and ultimately, they were separated and accused No.1 went away. Again that very evening, accused No.1 went to the stall of the first informant accompanied by accused Nos.2 and 3. At that time, accused No.1 was armed with iron angle and accused No.2 had a big knife hidden under his socks. The size of the knife was 26 cms. with a blade size of 15 cms. long and 3 cms. wide, whereas accused No.3 was not armed with any weapon. Upon reaching there, where accused No.1 inquired about Jashvant, then Pankaj, who was sitting on the stall, replied that Jashvant had gone out and what work did they have. In response to the answer, the accused persons gave abuses to Pankaj. long and 3 cms. wide, whereas accused No.3 was not armed with any weapon. Upon reaching there, where accused No.1 inquired about Jashvant, then Pankaj, who was sitting on the stall, replied that Jashvant had gone out and what work did they have. In response to the answer, the accused persons gave abuses to Pankaj. First informant – Nanalal who was sitting on a bench near the stall, initially did not intervene, but the moment he noticed that accused No.1 inflicted an angle blow on head of his son and accused No.2 is about to inflict a knife blow on his son Pankaj, he intervened and in that intervention, suffered injury on his thumb and chin. In the meantime, accused No.2 inflicted a blow with the knife on chest of the deceased, which went deep into thoracic cavity. Accused Nos.1 and 3, by that time, caught hold of the victim and started giving kick and fist blows, whereas accused No.2 once again inflicted a knife blow, which landed on the left hip of the victim. In the meantime, many persons had assembled and have rushed to the spot. The assailants, therefore, ran away. The deceased was taken to the hospital and while under treatment, he died within 10 minutes. The FIR was lodged. Inquest Panchnama and postmortem was done and at the end of the investigation, charge-sheet was filed in the Court of learned JMFC, Chanasma. The case was committed to the Court of Sessions and Sessions Case No.425 of 2002 (old Sessions Case No.120 of 2001) came to be registered and the learned Presiding Officer recorded conviction and imposed punishment as stated hereinabove and hence, these appeals. 4. Learned advocate Mr. Unwala appearing for accused No.2 submitted that accused No.2 is convicted along with accused Nos.1 and 3 for the offence of murder punishable under Section 302 read with Section 34 of the IPC. He submitted that the dispute, if any, that accused No.1 had was with Paresh or at the worst with Jashvant. None of the accused persons had any grievance, dispute, quarrel or any animosity with the victim and therefore, even if the incident is connected with earlier incident in the morning and previous evening, accused No.2 had no involvement. If accused No.2 had an intention to cause death and commit murder of the victim, he would not have stopped giving one blow. If accused No.2 had an intention to cause death and commit murder of the victim, he would not have stopped giving one blow. He could have given number of blows on the vital part of the body with the weapon that he had with him. It was also submitted that had there been any intention on the part of accused No.2 to commit murder of the victim, he would have armed himself with the weapon openly, gone to the place of the victim and assaulted him, but it is only at a later point of time that accused No.2 drew a knife and inflicted blow on the deceased, even as per the prosecution case. Mr. Unwala submitted that the facts were not as simple as projected by the prosecution. There is suppression of genesis of the incident by the prosecution. The witnesses do not attribute anything to the deceased, but if evidence of PW4 is seen, it emerges that the deceased must have spoken something which offended accused No.2 and accused No.2 responded by saying that why was he behaving in that fashion. Mr. Unwala submitted that looking to an overall view of the matter, he would not press for the clean acquittal so far as accused No.1 is concerned. His endeavour has been to mitigate the gravity of the offence. According to him, Section 302 would not be attracted and taken at best, only Section 304 would be attracted. 5. Learned Senior Advocate, Mr. Thakkar appearing with Mr. R.J. Goswami for accused No.3 submitted that even if the prosecution story is taken at its face value at the best he can be said to have caught hold of the victim and given kick and fist blows, but this allegation has to be judged from the picture given by the witnesses in respect of other parts of the incident. The witnesses did not attribute any overt act being meted out by accused No.3. He is alleged to have caught hold of the deceased and given fist and kick blows. It was submitted that the name of accused No.3 has not been given initially before the Doctor at the time of preparing Inquest. It was submitted that barring verbal say by the witnesses, there is nothing to substantiate their version. Mr. He is alleged to have caught hold of the deceased and given fist and kick blows. It was submitted that the name of accused No.3 has not been given initially before the Doctor at the time of preparing Inquest. It was submitted that barring verbal say by the witnesses, there is nothing to substantiate their version. Mr. Thakkar submitted that the case of accused No.3 is totally different from the case of accused No.1 and he could not have been convicted for the offence of murder with the help of Section 34 of the IPC. Learned advocate Mr. Pratik Barot for accused No.1 submitted that he had no dispute, problem or animosity with the victim. He submitted that there is nothing to show that the accused persons had any common intention because, initially, when they reached the place, they inquired about Jashvant, whereas before they went to the house, there was a dispute between Paresh and accused No.1. Accused No.1 has not caused any fatal injury and therefore, accused No.1 could not have been convicted for the offence of murder with the help of Section 34 of the IPC. 6. Learned APP opposed these appeals. According to him, the entire incident was premeditated. All the three accused persons went together. Two of them were armed with weapon and committed attack on the victim. The victim was so badly injured that he died within minutes of the incident. He submitted that accused No.2 inflicted as many as three blows with knife. These three blows resulted into not only injury to the first informant because of the intervention, but also caused the fatal injury as well as another injury to the deceased. He submitted that the evidence of eye-witnesses and the prosecution case, as a whole, would indicate that three persons acted in concert and committed death of the victim. He submitted that the appeals may, therefore, be dismissed. Date : 05-07-2011 7. We have examined the record and proceedings in the context of rival submissions. We find that the first informant who happens to be the father of the victim is himself an eye-witness to the incident. He is PW1 examined at Exh.27. The incident was also seen by PW2, Chandrakant Tulsibhai Patel, Exh.30 and PW4, Hitendrakumar Gopaldas Patel, Exh.32. We have examined the record and proceedings in the context of rival submissions. We find that the first informant who happens to be the father of the victim is himself an eye-witness to the incident. He is PW1 examined at Exh.27. The incident was also seen by PW2, Chandrakant Tulsibhai Patel, Exh.30 and PW4, Hitendrakumar Gopaldas Patel, Exh.32. Upon perusal of evidence of PW1, Nanalal Mohanlal Raval, Exh.27, the first informant and father of the victim, it transpires that on the previous day of the incident, accused No.1 had come to the house of the first informant when first informant's son – Paresh was present. Accused No.1 demanded Pepsi which was denied to him by Paresh as the same was not ready. This enraged accused No.1 who reacted by saying that he will deal with him next morning. Next morning, accused No.1 again went to the house of the first informant. The first informant was not present at his house, where Paresh was found and accused No.1 picked up a quarrel with him and beaten him. However, Paresh was rescued by neighbours and accused No.1 went away. After these two episodes, again in the evening, all the three accused persons went to the Pan Stall of the first informant, which the first informant used to run with the help of his sons. The first informant was sitting on a bench near the stall, whereas his son Pankaj was at the stall. Upon reaching there, accused No.1 inquired about Jashvant. Responding to the question, Pankaj said that he had gone out and what work did he have. In response thereto, accused No.2 pulled out a knife and accused No.1 threw the iron angle at Pankaj, which hit him on the back side of his head. Because of the impact, Pankaj fell down. At that time, accused No.2 inflicted a blow with the knife, but the same was stopped by the first informant by catching hold of the knife. There was grappling and in that, first informant Nanalal suffered injury on his right thumb and right side of his chin. Both injuries were bleeding injuries. In the meantime, accused Nos.1 and 3 caught hold of Pankaj and accused No.2 inflicted a knife blow in the chest of Pankaj. He gave another blow with knife which hit the deceased on left hip. Both injuries were bleeding injuries. In the meantime, accused Nos.1 and 3 caught hold of Pankaj and accused No.2 inflicted a knife blow in the chest of Pankaj. He gave another blow with knife which hit the deceased on left hip. As per this witness, accused Nos.1 and 3 continued to give kick and fist blows to the deceased while they had caught hold of him. Hearing the commotion, Jayanti, Hitendra and Chandrakant came there running and rescued him, whereas the accused persons ran away. The deceased was then taken to hospital in Jeep car of Chhagaji Shivaji, where he succumbed to the injuries while under treatment. 8. The witness has identified the accused, Muddamal knife and the clothes of the victim. He has been tested on touchstone of cross-examination and he holds fast to his version in the examination-in-chief. In fact, the probing in the cross-examination strengthens his story. It emerges from his cross-examination that accused No.2 – Kirankumar and the deceased son had nothing to do with each other. It also emerges that accused No.2 had nothing to do with the episode either of the previous evening or in the morning of the day of the incident. It also transpires that accused No.2 is not the permanent resident of Village Virta, but stays in a village nearby. The cross-examination reveals that at the time of episode, the verbal aggression by the accused persons was such that ordinary person would lose his temper. However, his son – victim Pankaj remained quite. He also admits that the altercation at the time of the incident was between accused Nos.1 and 2 on one side and the victim on the other side and accused No.3 remained quite throughout. He states that it is true that accused No.1 had thrown the iron angle at the victim before giving the knife blow by accused No.2. He states that he suffered injury when accused No.2 tried to inflict blow on the victim. He states that it is true that at the time of incident, accused Nos.1 and 3 had caught hold of the victim by his left and right hand respectively. He states that his clothes were not stained with the blood of the deceased while taking the deceased to the hospital. The witness states that he was disturbed and shocked and therefore, he could not give history to the Doctor immediately and properly. He states that his clothes were not stained with the blood of the deceased while taking the deceased to the hospital. The witness states that he was disturbed and shocked and therefore, he could not give history to the Doctor immediately and properly. He also told the police that he would give his complaint later on. During cross-examination to learned advocate for accused No.3, he stated that accused No.3 had not used any abusive language, nor had he done any act which would provoke anyone. The evidence of PW2, Chandrakant Tulsibhai Patel, Exh.30, is on the same lines, but admits during cross-examination that accused Nos.1 and 3 used to go to the stall of the victim off and on for Pan Bidi and that he had never noticed any dispute between Pankaj, the victim and accused Nos.1 and 3. It also emerges that the victim was suffering from Polio and had fallen down because of the impact of the angle thrown at him. The evidence of the third eye-witness, Hitendrakumar Gopaldas, PW4, Exh.32 is again on the same lines and both PW2 and PW4 stick to their guns without being shaken in the cross-examination. 9. From the aforesaid evidence, the picture that emerges before us is that all the three accused persons went together to the place of incident. Accused No.1 was apparently armed with an iron angle. Accused No.1 had a quarrel with the brother of the victim in the morning hours of the day of the incident as also in the previous evening. Accused No.2 is not resident of Village Virta. He stays in a village nearby, but is nephew of accused No.1. He had no dispute with the victim, but still he accompanied accused Nos.1 and 3 and he was armed with a knife. The Panchnama of the discovery of knife by accused No.2 is supported by Panch witnesses and would go to suggest that the size of the knife was 26 cms. in length. The handle was of 11 cms. and the length of the blade was 15 cms. Width of the blade was 3 cms. This we state because, in our view, the weapon was not an ordinary knife and can certainly be termed as a deadly and dangerous weapon. in length. The handle was of 11 cms. and the length of the blade was 15 cms. Width of the blade was 3 cms. This we state because, in our view, the weapon was not an ordinary knife and can certainly be termed as a deadly and dangerous weapon. Accused No.2 had no reason to carry such a knife with him when he went in company of accused Nos.1 and 3 to the place of the victim, where again, he had no reason to go. At that time, accused No.1 was conspicuously armed with the iron angle. Accused No.3 also goes with accused Nos.1 and 2, but was not armed with any deadly weapon. 10. The victim died because of the injury suffered by him in the chest, which was attributed to accused No.2 and his knife. Accused Nos.1 and 3 were convicted by the Trial Court with the help of Section 34 of the IPC and the major contention is that accused Nos.1 and 3 could not have shared common intention to kill the victim with whom they had no dispute and in support of this, it is contended that accused No.3 did not do anything to cause any provocation. He did not use filthy language, nor did he quarrel with anyone. He did not fight with anyone after going to the place of incident. He stood there quietly speaking nothing. All that is attributed to him is that he caught hold of the arm of the victim and gave him kick and fist blows along with accused No.1. It was contended that accused No.2 had gone to the place of incident with knife concealed in his socks and no knowledge could have been inferred either of accused No.1 or of accused No.3 and therefore, they could not have been convicted with the help of Section 34 reading conspiracy amongst accused Nos.1, 2 and 3. It was also contended that the story of the prosecution suffers from the major defect of not disclosing the genesis of the incident. The story that is advanced by the prosecution is not believable and if that is so, the entire prosecution case must fail. It was also contended that the story of the prosecution suffers from the major defect of not disclosing the genesis of the incident. The story that is advanced by the prosecution is not believable and if that is so, the entire prosecution case must fail. However, learned advocate for accused No.2 in terms said that he does not press for a clean acquittal, but press for altering the conviction to a lesser offence i.e. culpable homicide not amounting to murder and for that purpose, it is canvassed that only one blow was given by accused No.2 as PW4 admitted in his cross-examination that when the deceased replied that Jashvant had gone out and what work did they have, one of the accused persons said as to why was he doing “Dadagiri”. It is, therefore, suggested that it would mean that the deceased must have used those words in a tone which was offensive and that provoked the accused and unfortunately, incident occurred. It was vehemently contended that accused No.2 inflicted only one blow which was fatal. The second injury is of a very trivial and superficial nature on a non-vital part of the body. Had there been an intention to kill, accused No.2 would not have stopped after giving one blow and therefore, intention to kill could not have been read by the Trial Court. Accused No.2 ought to have been convicted under Section 304 and not under Section 302. 11. We have examined the evidence from the angle suggested by the learned advocates for the parties. 12. We would take the case against accused No.2 first. Accused No.2 is nephew of accused No.1. He does not stay near village Virta and had no reason to visit the stall of the victim at the relevant time. He accompanied accused Nos.1 and 3 to the place of incident armed with a knife of a unusual size and unusual sharpness, as can be seen from the description in the discovery Panchnama, Exh.50. He carried that weapon in his socks. At the same time, he accompanied accused No.1 who was armed with an iron angle, which accused No.1 carried openly in his hand. After reaching the place of incident, on the deceased merely replying that Jashvant had gone out and what work did they have, accused No.1 threw the angle at the victim which hits him on the head in the back portion. After reaching the place of incident, on the deceased merely replying that Jashvant had gone out and what work did they have, accused No.1 threw the angle at the victim which hits him on the head in the back portion. Accused No.1 had some grievance regarding non-supply of Pepsi in the previous evening and, in that connection, keeping his words given in the previous evening, accused No.1 had gone to the place of the first informant and beaten Paresh. Accused No.1 was, therefore, nurturing the grievance for non-supply of Pepsi against the suppliers as the whole Pepsi business was a joint family business of the first informant. Coming back to the episode, no sooner did accused No.1 throw the angle at the victim and the victim fell on the ground, then, accused No.2 pulled the knife out of the socks and inflicted a blow on the deceased. However, sensing the danger, the first informant who was sitting on the bench lying near the place of incident intervened and was able to catch hold of the knife and was able to ward off the first blow given by accused No.2. In doing so, the first informant received injury on his right thumb and right side of chin. The factum of the first informant having received such injuries is not seriously challenged by the defence. The version about the incident given by PW1, the first informant, therefore, cannot be doubted by doubting presence of PW1 at the place of the incident. Again going back to the incident, after PW1 was successful in warding off the first blow given by accused No.2 aimed at the victim Pankaj, accused No.2 inflicted second blow which hit the deceased on his chest and the knife went deep into the thoracic cavity. Accused No.2 did not stop there. He even inflicted a third blow which landed on the hip of the victim. It is, therefore, not correct to say that accused No.2 gave only one blow to the victim and therefore, he could not have intended to cause death of the victim. Accused No.2 did not stop there. He even inflicted a third blow which landed on the hip of the victim. It is, therefore, not correct to say that accused No.2 gave only one blow to the victim and therefore, he could not have intended to cause death of the victim. Accused No.2 inflicted three blows aimed at the victim, one of which did not land on victim because of intervention of PW1 and the second blow landed on a non-vital part of the body, obviously, because though the deceased tried to escape he was unable to do because accused Nos.1 and 3 had caught hold of him. Considering the size of the knife, considering the site of injury, considering the number of blows and considering the fact that accused No.2 inflicted blows on the victim without any reason, it can safely be inferred that accused No.2 had intention to cause death of the victim. Accused No.2 went to the place of incident along with accused No.1, who happens to be his maternal uncle and who had grievance against the victim's family and accused No.2 committed assault as if he was waiting for a signal from accused No.1, which he received from accused No.1 when accused No.1 threw angle at the victim. Accused No.2 is not resident of Village Virta. He had no reason to go to the victim's shop. He had no reason to get enraged or provoked if at all for the victim merely saying that Jashvant had gone out and what work did he have because that dialogue was between accused No.1 and the victim and accused No.2 had no reason to get enraged with such a reply. He seemed to have taken upon himself to take revenge on behalf of accused No.1. We are, therefore, of the view that accused No.2 could not be said to have no intention to cause death of the victim. He caused injury on vital part of the body which was sufficient to cause death of a human being. The death of the victim was undisputedly homicidal. The Trial Court was, therefore, justified in coming to the conclusion that accused No.2 had committed murder of Pankaj. 13. Now coming to accused No.1, theevidence indicates that he had a grievance against Paresh for non-supply of Pepsi, which was a joint family business. The death of the victim was undisputedly homicidal. The Trial Court was, therefore, justified in coming to the conclusion that accused No.2 had committed murder of Pankaj. 13. Now coming to accused No.1, theevidence indicates that he had a grievance against Paresh for non-supply of Pepsi, which was a joint family business. He had gone to the house of the first informant twice in the morning and beaten Paresh and was required to go because of the intervention of the neighbours. He again went to the house of Paresh armed with a sword, but Paresh ran into the house and closed the door. Accused No.1, therefore, went back and again in the evening went to the shop of the victim in company of accused Nos.2 and 3. Accused No.1, at that time, was armed with a weapon, namely, an iron angle. He used that angle in the incident. The allegation of use of the angle was sought to be challenged by saying that there was no corresponding injury, but if the postmortem note and the inquest Panchnama are seen, the injury was found on back of the neck which was described by the witnesses broadly by saying that the angle hit on the back of the head. The site of injury cannot be described with precision by a layman in such cases and therefore, to argue that the injury was on the neck and not on the back of head or that there was no corresponding injury is not an argument that can be accepted. Accused Nos.1 and 2 have acted in a concerted method. Accused No.1 inflicted blow by throwing iron angle and accused No.2, as if he was waiting for the signal, started giving blows on the deceased. These factors, if examined collectively, would lead to a legitimate inference that accused Nos.1 and 2 had a common intention to cause death of the deceased. Accused No.1, in addition, caught hold of the victim and gave kick and fist blows. It is true that there is no medical evidence to support this version, but when we find that PW1, PW2 and PW4 are witnesses of truth so far as the incident in main is concerned, we have no reason to doubt their versions insofar as the same attribute accused No.1 of catching hold the deceased and giving kick and fist blows to him. In our view, therefore, accused No.1 was rightly convicted for the offence of murder of Pankaj by employing Section 34 of the IPC. 14. At this stage, it would also be appropriate to state that in the initial version about the incident before the Doctor and at the time of Inquest, the first informant speaks of accused Nos.1 and 2 having gone to the place of incident and having assaulted the deceased. Therefore, involvement of accused Nos.1 and 2 in the incident is also consistently shown by the prosecution witnesses. 15. Now coming to accused No.3, the role attributed to him is that he accompanied accused Nos.1 and 2 to the place of incident, caught hold of the deceased and gave him kick and fist blows. Upon examination of evidence of witnesses, it transpires that accused No.3 had not played any role in the episode initially. He stood there speaking nothing and doing nothing, initially, but later it is attributed that he caught hold of the victim and gave him kick and fist blows. It may be noted that accused No.3 accompanied accused Nos.1 and 2 without being armed with any weapon. It comes on record that accused Nos.1 and 3 used to go to the stall of the victim off and on. His conduct of standstill neither participating nor speaking anything would indicate that he was dumbstruck by what was happening namely attack by accused Nos.1 and 2. Name of accused No.3 was not given initially as an assailant, nor was any role attributed to him of any assault. It is only at a later point of time that he is alleged to have caught hold of the victim and having given kick and fist blows. There is nothing on record to permit drawing of an inference about accused No.3 knowing that accused No.2 was armed with a deadly knife and that there was an intention to kill. If this aspect is considered in light of the fact that accused Nos.1 and 3 used to go to the stall often for Pan Bidi, it cannot be inferred that accused No.3 was sharing common intention to kill the victim. In our view, therefore, the possibility of accused No.3 being roped in at a later point of time cannot be ruled out as his name is not indicated initially in the name of the assailants. In our view, therefore, the possibility of accused No.3 being roped in at a later point of time cannot be ruled out as his name is not indicated initially in the name of the assailants. He, therefore, could not have been convicted by the Trial Court for murder taking aid of Section 34. Benefit of doubt must go to accused No.3. 16. Learned advocate Mr. Barot relied on the following decisions:- (i) Balbir Singh and others Vs. State of Punjab and others, (2005) 9 SCC 299 ; (ii) Kashmira Singh Vs. State of Punjab, reported in 1995 Supp (4) SCC 558; (iii) Ajay Sharma Vs. State of Rajasthan, reported in (1999) 1 SCC 174 ; (iv) State of Punjab Vs. Bakhshish Singh and others, reported in (2008) 17 SCC 411; 17. Learned advocate Mr. Unwala relied on the following decisions:- (i) Abbas Ali Vs. State of Rajasthan, reported in AIR 2007 SC 1239 ; (ii) Ramchandra Dhondiba Kaware Vs. State of Maharashtra, reported in AIR 2009 SC 1835 ; (iii) Ramesh Kumar @ Toni Vs. State of Haryana, reported in AIR 2009 SC 2447 ; (iv) Naimuddin Vs. State of W.B., reported in AIR 2010 SC 505 ; (v) State of Punjab Vs. Bakhshish Singh and others, reported in (2008) 17 SCC 411; (vi) Tholan Vs. State of T.N., reported in AIR 1984 SC 759 ; (vii) Babubhai Virabhai Bariya Vs. State of Gujarat & Anr., reported in 2009 (1) GCD 397; 18. We have gone through the judgments relied upon by learned advocate Mr. Unwala. We find that the judgments were rendered considering the facts of those cases. Much emphasis was given by Mr. Unwala on the fact that only one blow was given by accused No.2, but as discussed above, here is not a case where accused No.2 inflicted only one blow. He inflicted three blows of which only one blow proved to be fatal. One blow was warded off by the father of the victim and the other blow landed on the non-vital part of the body. The fact remains that he inflicted three blows and what is relevant for inferring intention as one of the factors is the number of blows inflicted rather than number of blows received by the victim. Similarly, the common intention part is inferred by us in light of the factors stated hereinabove, namely, that accused Nos.1 and 2 are relatives. The fact remains that he inflicted three blows and what is relevant for inferring intention as one of the factors is the number of blows inflicted rather than number of blows received by the victim. Similarly, the common intention part is inferred by us in light of the factors stated hereinabove, namely, that accused Nos.1 and 2 are relatives. Accused No.2 acts on accused No.1 initiating the attack. Both accused Nos.1 and 2 were armed with weapons and accused No.2 had no reason to be at the place of incident as he was staying in a different village and his involvement in the incident was not in dispute. Once we find from the conduct of accused No.2 that there was intention to kill, there is no question of giving any benefit of a lesser offence. The intention to kill is clear from the conduct of accused No.2. He might not have any grievance against the victim, but still he attacked him thrice and succeeded twice in giving blows. One of the blows proved to be fatal. The blow was given on the vital part of the body with a deadly weapon. Under the circumstances, the judgments relied upon by learned advocate Mr. Unwala cannot be of any help to accused No.2. So far as accused No.1 is concerned, again it is on question of common intention and the judgments are rendered in the facts and circumstances of the case. We have discussed the evidence elaborately in the earlier paragraphs, which would show that accused No.1 had grievance and he took help of accused No.2 in squaring of the accounts. Both accused Nos.1 and 2 went to the place armed and both of them used their respective weapons. It is unfortunate that though accused No.1 had grievance against Paresh, brother of the victim, he is made victim who was even otherwise a physically handicapped person who could not have defended himself properly and who fell down on a simple hit by an iron angle on the neck. 19. The resultant effect of foregoing discussion is that Criminal Appeal No.2100 of 2005 must fail and stands dismissed. The sentence of accused No.1 – Hiteshkumar Laljibhai Barot was suspended pending appeal and was admitted to bail. He shall, therefore, surrender to custody within six weeks from today. 20. So far as Criminal Appeal No.1888 of 2005 is concerned, the same is allowed. The sentence of accused No.1 – Hiteshkumar Laljibhai Barot was suspended pending appeal and was admitted to bail. He shall, therefore, surrender to custody within six weeks from today. 20. So far as Criminal Appeal No.1888 of 2005 is concerned, the same is allowed. The judgment and order of conviction and sentence dated 18.08.2005 recorded by the Sessions Court, Patan in Sessions Case No.425 of 2002 (old Sessions Case No.120 of 2001) qua accused No.3 – Mehulkumar Vishnubhai Barot is set aside. As accused No.3 is on bail, his bail bond shall stand cancelled. Fine, if any, paid by him be refunded.