Vinod Prasad, J.;- A family consisting of two real sibling brothers Devi Ram ( A-1), Suresh @ Kallu ( A-2) and Smt. Radha Devi ( A-3) wife of Devi Ram and Krishna Kumar ( A-4) their son have come up to this Court in it's appellate jurisdiction, through instant appeal, challenging judgement and order of their conviction and sentence, dated 21.12.1981, recorded by Vth Additional Session's Judge, Aligarh, in S.T. No.440 of 1979, State Vs. Devi Ram and others, relating to Crime No.263 of 1978, P.S. Khair, district Aligarh. ( A-1) & ( A-2) were convicted and sentenced under Section 304part( I) IPC to ten years R.I., whereas rest of the two appellants ( A-3) & ( A-4) were convicted 304 part ( I)/34 IPC and were sentenced to five years R.I. All the appellants were further convicted and sentenced under Section 323 /34 IPC to six months R.I. All the sentences of each of the appellants were directed to run concurrently. 2. Looking to the prosecution allegations, as was sketched by the informant Radhye Shyam ( P.W.3) in his written report, Ext. Ka-1, and subsequently testified during trial by all the fact witnesses Saraswati Devi ( P.W.1), Smt. Saroj ( P.W.2), Radhey Shyam ( P.W.3), and Banwari Lal ( P.W.4) were that informant, who was Central Nazir in Tehsil Khair had gone to the market to read newspaper on the date of the incident ie: 16.12.1978 at 12.00 in the noon. In his absence, at 2.30 p.m., because of digging of a sewage drain,( PW1) and( A-1) engaged them self in a wordly duel. The commotion brought other accused at the scene, who all started assaulting( P.W.1.). When her daughter Km. Malti Devi and daughter-in-law Smt. Saroj ( P.W.2) intervened to save their mother/mother-in-law then they were also belaboured with hammer, chisel and brick bats. Firstly Krishna Kumar( A-4) had assaulted P.W.1 on her head by hammer. Km. Malti Devi was caught hold by Smt.Radha ( A-3), who then was assaulted with chisel and hammer by ( A-1) and ( A-3). Other two injured along with an infant boy, Santosh, of one and a half years, were assaulted by bricks bats by Suresh @ Kallu ( A-2). This incident was witnessed by Murari Lal, Banwari Lal, Janki and many others. Other two injured along with an infant boy, Santosh, of one and a half years, were assaulted by bricks bats by Suresh @ Kallu ( A-2). This incident was witnessed by Murari Lal, Banwari Lal, Janki and many others. ( P.W.3) received information regarding the brawl at quarter to 3 p.m. on which he rushed back to his house and was informed about the incident. Km.Malti Devi was in a precarious condition and therefore, she and P.W.1 were carried to the hospital for their medical treatment, where Km. Malti Devi was admitted. Leaving both the injured in the hospital, informant( P.W.3) returned back to his house, where he scribed written report, Ext. Ka-1, and then accompanied by ( P.W.2) and Santosh infant child, he came to the police station Khair, district Aligarh, covering a distance of one and half furlong, where he lodged his report the same day at 4 p.m. against four named accused persons, who are the appellants. 3. C.P. Jairam Singh P.W.6 registered Ext. Ka-1 by preparing chik FIR, Ext. Ka-3 and GD entry Ext. Ka-4. Injured Km.Malti Devi, succumbed to her injury in the hospital same day at 6.30 or quarter to 7 p.m. and hence registered offence was converted u/s 304 IPC from 323/34, vide Ext. Ka-5. S.I. Virendra Pal Singh, in whose presence FIR was registered, commenced investigation into the crime, conducted spot inspection, prepared site plan Ext. Ka-6, recovered blood stained apparels of the injured P.W.1 and prepared it's recovery memo Ext. Ka-7 and thereafter seized the blood stained Dhoti with which deceased injuries were wrapped and prepared it's seized memo Ext. Ka-8. After demise of Km. Malti Devi, inquest on her cadaver was performed by him by preparing inquest memo Ext. Ka-9 and other relevant documents vide Ext. Ka-10 to Ka-13. Sealing the dead body, it was dispatched for autopsy purposes through Constable Shiv Ram Singh. After recording investigatory statements of the incident witnesses u/s 161 Cr.P.C., PW7( I.O.) concluded the investigation by laying down a charge-sheeted against all the accused vide Ext. Ka-14. 4. Injured Smt. Sarswati, Smt. Saroj, Km. Malti were medically examined on 16.12.1978 at 3.30 p.m., 5 p.m. and 3 p.m., respectively, vide their medical examination reports Ext. Ka.15, Ka-16, Ka-17 by doctor S.C. Tyagi P.W.8. Santosh was also medically examined by the same doctor same day at 5.10p.m. but his injury report was not exhibited. Ka-14. 4. Injured Smt. Sarswati, Smt. Saroj, Km. Malti were medically examined on 16.12.1978 at 3.30 p.m., 5 p.m. and 3 p.m., respectively, vide their medical examination reports Ext. Ka.15, Ka-16, Ka-17 by doctor S.C. Tyagi P.W.8. Santosh was also medically examined by the same doctor same day at 5.10p.m. but his injury report was not exhibited. Relevant portion of their injury reports of these injured are reproduced herein below:- Injury report of Santosh ( 1) C/o pain left iliac crest. No sign of ext. injury is seen. Nature of injury: Injury no.( 1) is simple caused by blunt weapon. Injury report of Saraswati ( 1) Fresh lacerated wound on left side of skull 4.5 cm x 1 cm x 0.5 cm. Nature of wound:- Injury ( 1) is simple caused by blunt weapon. Duration- Fresh. Injury report of Smt. Saroj ( 1) Fresh Abrasion on left forearm. 1.5 cm x 0.2 cm in lower 1/3rd region. ( 2) C/o pain Rt. Thumb. No sign of Ext. injury is seen. ( 3) C/o pain left iliac fossa with traumatic swelling 6 cm x 4 cm. Nature of Injury: Injury No.( 1), ( 2) is simple. Injury No.( 3) kept under observation all the injuries are caused by blunt weapon. Duration: Fresh. Injury report of Malti ( 1) Fresh Stab wound on Back of the right side of chest, above the scapula Rt. side 3 cm x 1.5 x 4.5 cm ( depth). ( 2) Fresh lacerated wound on left side of skull 1 cm x 1 cm x 0.5 cm. ( 3) C/o pain chest front. Advice X-ray chest. General Condition :- Pulse 118/minute. Conscious. B.P. 100/60 Nature of Injury:- Injury No.( 1) & ( 3) kept under observation referred to Distt. Hospital for X-ray & treatment injury No.( 1) caused by sharp weapon. Injury No.( 2) & ( 3) by blunt weapon. Duration:- Fresh. 5. Post-mortem examination on the cadaver of the deceased was performed on 17.12.1978 at 2.45 p.m. by Dr. V.P. Agrawal, P.W.5, and her autopsy report, Ext. Ka-2, was prepared, a perusal of which indicates that the deceased was aged about twenty years and was having an average built body. Rigor Mortis was present all over her body and no decomposition had started. Post-mortem staining was present on different dependant parts of her body. V.P. Agrawal, P.W.5, and her autopsy report, Ext. Ka-2, was prepared, a perusal of which indicates that the deceased was aged about twenty years and was having an average built body. Rigor Mortis was present all over her body and no decomposition had started. Post-mortem staining was present on different dependant parts of her body. Her cornea was closed and hazy, left hemisphere of brain was congested, her 5th rib of right side chest was fractured, pleura was ruptured, right lung had incised wound 1" in length on the upper lobs causing internal bleeding. In the stomach semi digested food was present, whereas small intestine contained food material. Large intestine had faecal matter. In the estimation of autopsy doctor, death was due to shock and haemorrhage as a result of sustained injuries described in Ext. Ka-2, which were as follows:- Ante mortem injuries ( 1) Lacerated wound 1/2" x 1/10" x bone deep on the left side of skull 3 1/2" above left ear ( 2) Stitched wound with three stitches-1" in length. On opening the stitches, their margins are clear cut and chest cavity deep. Appears to be incised wound ( stab wound) on the back of chest Rt. side upper part-2" inner by midline near the.... upper angle of right scapula bone. The direction of.... is inwards and........." 6. Charge-sheeting of the accused resulted in their summoning and finding their case triable by Session's Court, it was committed to Session's Court for trial on 23.10.1980 by C.J.M. Aligarh, where it was registered as S.T. No.440 of 1979, State Vs. Devi Ram and others. 7. Vth Additional Session's Judge, Aligarh charged all the accused with offences u/s 304/34, 323/34 and 323 I.P.C. respectively, which charges were read out and explained to them, who denied the same by pleading not guilty and claimed to be tried and consequently, to establish their guilt and bring home framed charges, their prosecution commenced during course of which reliance was placed by the prosecution on the oral testimonies of eight witnesses, out of whom, injured Saraswati Devi( P.W.1), injured Smt. Saroj( P.W.2), informant Radhey Shyam ( P.W.3) and Banwari Lal ( P.W.4) were the fact witnesses. Dr. V.P. Agarwal ( P.W.5), constable Jai Ram Singh( P.W.6), SI Virendra Pal Singh ( P.W.7) and Dr. S.C. Tyagi ( P.W.8) were produced as formal witnesses. 8. Dr. V.P. Agarwal ( P.W.5), constable Jai Ram Singh( P.W.6), SI Virendra Pal Singh ( P.W.7) and Dr. S.C. Tyagi ( P.W.8) were produced as formal witnesses. 8. In their statements u/s 313 Cr.P.C., all the accused denied incriminating circumstances put to them occurring in the prosecution evidences and pleaded their false implication.( A-1) additionally pleaded his alibi by stating that he was in village Samrasthpur Kota and was collecting revenue money.( A-3)further pleaded that she was constructing her house and for that reason bricks were being transported at 12.30 P.M. on the incident date, on a pony but( P.W.1), ( P.W.2) and the deceased stopped it from being brought to the construction site. ( A-3), remonstrated and objected to it on which she was vituporized. Thereafter, brick bats were hurled by either side on the rival contender. To establish their defence accused examined, Pushpendra Kumar Singh, Assistant Collection Amin ( D.W.1), Radhey Shyam Rawat, Tehsil Atrauli ( D.W.2), Ganga Deen Singh, village pradhan of village Hisel, ( D.W.3), Todarmal ( DW4), Heera Lal ( D.W.5), Dr. Subhash Tyagi ( D.W.6) and Bankey Lal ( D.W.7) as defence witnesses. Doctor ( D.W.6) had examined ( A-3) on 17.12.1978 at 10.20 A.M. and had prepared her medical report, Ext Kha 25, according to which, she had sustained a contusion with blue colour and redness on the right face 3 cm x 2 cm. She was also complaining about pain in her abdomen, scapula and back but there were no visible mark of injury. At the time of her examination, the sustained injuries were half day old. Injury report of appellant Radha Devi ( A-3) is Ext. Kha-25. She was brought to the doctor by constable Shiv Swaroop Narain Dubey by P.S. Khair, who had identified her. He has been cross examined only by one question that the said injury could have been sustained by fall on a hard surface. 9. Trial court after looking into the prosecution and defence evidences, critically appreciating them, concluded, vide impugned judgment and order, that prosecution had successfully established it's case beyond all reasonable doubt and, therefore, convicted the appellants under sections 304( I), 304( 1)/34 and 323/34 I.P.C. and sentenced them accordingly, as has already been sketched in the opening paragraph of this judgment and hence this appeal by the entire family challenging their aforesaid conviction and sentence. 10. 10. At the time when the appeal was called out for hearing, nobody appeared to argue the appeal on behalf of the appellants and, therefore, Sri Arun Kumar Srivastava was appointed as amicus curiae to assist the Court. 11. I have heard learned amicus curiae in support of the appeal and learned AGA in opposition. 12. At the outset it was informed by learned amicus curiae that appellant Devi Ram ( A-1) had already expired and his appeal has already been abated on 27.1.2010. This has left this court to consider appeal of rest of three appellants, ( A-2), ( A-3) and ( A-4). Assailing impugned judgement it is contended by learned amicus curiae that the prosecution case is not believable, it had failed to explain injuries sustained by Smt. Radha Devi ( A-3) and, therefore, prosecution witnesses are not wholly reliable. It is further submitted that, in fact, the ladies of the two houses had fought with each other and had brick batted and male members have been falsely implicated. Defence theory of verbal tiradic onslaught and ensued brick pelting is more credible and, therefore, trial Judge committed ex facie error in not relying upon defence evidences.( A-3) was got medically examined by the police and no cross examination from( D.W.6) was done by the prosecution to dislodge her injuries. Injuries sustained by ( A-3) has been accepted by the prosecution and, therefore, it was it's duty to explain it. Appellant's defence of prosecution side being the aggressor is creditworthy and cannot be discarded. No independent witness was examined during trial and because of the enmity harbingered by the informant and his family members that the appellants were falsely implicated by cooking up a false case. Evidences of prosecution witnesses are contradictory and paradoxical and, therefore, cannot be lend with any credence. It was on above submissions that it was argued that the appeal of the appellants be allowed and they be acquitted of the charges. Evidences of prosecution witnesses are contradictory and paradoxical and, therefore, cannot be lend with any credence. It was on above submissions that it was argued that the appeal of the appellants be allowed and they be acquitted of the charges. It is further contended that ( A-2) & ( A-4) could not have been convicted under section 304( I)/34 I.P.C. nor appellant ( A-3) could have been convicted under section 304( I) I.P.C. At the worst, looking to the entire facts and circumstances stated during trial, guilt of ( A-3) will not fall within the ambit of section 304 ( I) I.P.C. but will be only under section 326 I.P.C. A single blow by a non-conventional weapon at the spur of the moment, when both the sides were engaged in verbal dual and stone pelting is neither indicative of any intention nor of knowledge to commit murder. What can be safely concluded is that in the tiradic altercation, appellant ( A-3) acted recklessly and gave a single blow to the deceased Km. Malti Devi by a chisel and, therefore, he only intended to cause her grievous hurt and not her murder. Assault, when both the parties were engaged in verbal onslaught, by a single blow will indicate only that intention and nothing more. It was therefore, submitted that the established charge against appellant ( A-3) can be only under section 326 I.P.C. Next it was argued that ( A-2) and ( A-4) could not have been convicted at all as they did not travel beyond the scope of their defence of causing simple hurt. It was submitted that attack by appellant ( A-3) on the deceased was at the spur of moment and prosecution allegations that appellant ( A-4) had caught hold of the deceased prior to the attack is a teradiddle. On the strength of aforesaid submissions, learned amicus curiae pleaded that the appellants be acquitted. Addressing on the question of sentence, it was submitted that, in case appellants are not given clean acquittal, looking to the period of detention, facts and circumstances of the case, other facts that more than three decades have gone by and appellants had no criminal proclivity nor had any criminal background and it was a fight between two neighbors, their sentence be reduced to the period already undergone with some fine and they should not be relegated to imprisonment. 13. 13. Learned AGA argued to the contrary and submitted that the post-mortem examination report of the deceased leaves no room for doubt that she was assaulted bitterly. Twenty years old damsel was given a lacerated wound on her skull and incised wound with chest cavity deep on the right side upper part fracturing her 5th rib. Head injury had also caused fracture of the left parietal bone under injury no.1 and therefore, it cannot be a case of exercise of right of private defence. It is further contended that the mischief was started by ( A-1) by digging a drain from the front of the house of the informant and, therefore, appellants cannot be conferred benefit of exercise of right of private defence.( A-1) had failed to establish his alibi. Specific role of assault on the deceased has been assigned to appellant ( A-3) and, therefore, he cannot be absolved of the crime committed by him. It is also contended that the testimonies of the two injured cannot be brushed aside and there was no reason for them to feign a story and depose fib to falsely implicate the appellants. Mother would be the last person to frame- in innocent persons and spare real murders of her daughter. It was, therefore, submitted that the appeal lacks merit and be dismissed. Arguing on the question of sentence it was contended that the same is neither excessive nor unjust and therefore, does not call any interference by this Court. 14. I have considered the rival contentions and have perused the evidences, both oral and documentary, on the record. Bickering between two neighbours and their professional and domestic rivalry often leads to untoward incident even on a very petty issues which, sometimes, yield to very unfortunate results. Present is one of such cases where two neighbours fought with each other because of animosity and feeling of jealousy in which, a young unmarried damsel lost her life. Some of the facts about the incident are uncontroverted. Prosecution had testified those facts through examination-in-chief of it's fact witnesses, whereas the defence has admitted it through 313 Cr.P.C. statement of ( A-3). These admitted facts are date, time and place of the incident, pelting of bricks during the incident and presence of ( PW1),( PW2), the deceased & ( A-3). Prosecution had testified those facts through examination-in-chief of it's fact witnesses, whereas the defence has admitted it through 313 Cr.P.C. statement of ( A-3). These admitted facts are date, time and place of the incident, pelting of bricks during the incident and presence of ( PW1),( PW2), the deceased & ( A-3). Once the defence has not challenged these aspects of the incident, prosecution was not obliged to establish them as it is the cardinal principle of law of evidence that the facts admitted need not be proved. This now leaves this Court only to judge as to whether the two surviving male appellants were also involved in the crime and had wielded the hammer and the chisel or not and who was the aggressor and which of the two versions is more credible, as the defence has taken a plea of exercise of right of private defence. 15. On an analysis of prosecution evidence vis-a-vis with defence plea, it is revealed that the prosecution case right from the very beginning is consistent that ( A-1) was digging a sewage drain by adze on the date and time of the incident when( P.W.3) was not present in his house. During trial none of the prosecution witnesses have faltered on the said score. Both, the appellants and the informant, were next door neighbours. Informant was employed as a Central Nazir in Tehsil Khair and was therefore, a revenue department employee. ( A-1) was also an Ameen in the same department. Incident had occurred in mid-day and therefore, question of mistaken identity does not come for consideration at all. During cross-examination of the two fact witnesses, whose presence at the spot was not disputed, ie: P.W.1 and P.W.2, no suggestion was given to them that any load of brick was being transported on a pony, which was objected to, by them, on which incident had occurred. The suggestion to P.W.1 was that she had started brick bats and nothing else. If the defence was sure about the genesis of the incident according to it's defence case as was stated by ( A-3) in her statement under Section 313 Cr.P.C., it should have cross-examined these prosecution witnesses on that score which it completely fail to do. The site plan sketched by the I.O., Ext. Ka-6, also supports the prosecution case. If the defence was sure about the genesis of the incident according to it's defence case as was stated by ( A-3) in her statement under Section 313 Cr.P.C., it should have cross-examined these prosecution witnesses on that score which it completely fail to do. The site plan sketched by the I.O., Ext. Ka-6, also supports the prosecution case. 'A' is the place in the site plan, which is adjacent towards north of the house of the informant. Old drainage has also been shown in the site plan, which was on the other side of the lane and therefore, it is not at all doubtful that ( A-1) had started the mischief on which, the incident occurred. It is further revealed that the assault was started by ( A-1) by giving a blow on the head of P.W.1 by his adze and when her daughter ( deceased) and daughter-in-law( P.W.2)endeavoured to save her, they were also beaten with chisel and adze by the appellants. The said allegation by the prosecution is corroborated by the medical report of the injured Saraswati, Smt. Saroj and Km. Malti Devi ( deceased). Sarswati had sustained a lacerated wound on her skull 4.5 cm x 1 cm x 0.5 cm, Saroj had sustained abrasion whereas deceased Km. Malti Devi had sustained a stab wound and also a lacerated wound. These injured were examined medically by P.W.8 doctor S.C. Tyagi on the date of the incident itself without lapsing of much time. Deceased Malti Devi was initially examined at 3p.m.,( P.W.1) was examined at 3.30 and Saroj was examined at 5 p.m. During cross-examination doctor was never suggested that the injuries sustained by ( P.W.1) and( P.W.2) could not have been by adze and therefore, there is no scope for the defence to argue to the contrary nor there is any reason for this Court to take a contrary view than what has been stated by the fact witnesses. Since the defence had not challenged the use of two weapons, adze and chisel, wielding of it during the incident remains an established fact. 16. Turing towards the participation of the two surviving appellants Suresh @ Kallu ( A-3) and Krishna Kumar ( A-2), it is the consistent case of the prosecution that ( A-3) had assaulted the injured deceased with chisel whereas ( A-1) had assaulted her by adze. 16. Turing towards the participation of the two surviving appellants Suresh @ Kallu ( A-3) and Krishna Kumar ( A-2), it is the consistent case of the prosecution that ( A-3) had assaulted the injured deceased with chisel whereas ( A-1) had assaulted her by adze. This statement by ( P.W.1) has been corroborated by another injured ( P.W.2), who had also testified that when her mother-in-law forbade ( A-1) to desist from digging drain, he assaulted her with adze by causing injury on her head. She further deposed that deceased was assaulted with chisel. Although there is some discrepancy in depositions of( PW1) & ( PW2) regarding use of chisel but that is wholly insignificant, as after a lapse of two and half years, when these witnesses had testified in Court, there has to be some failing of memories. Use of adze and chisel during the incident was never given up by the prosecution nor was challenged by the accused and hence, testimonies of the two injured prosecution witnesses remain intact. Independent witness ( P.W.4) corroborated both the injured ( P.W.1) and ( P.W.2) when he deposed that ( A-1) had assaulted ( P.W.1) by adze and thereafter ( A-3) had assaulted the deceased with chisel and ( A-1) by adze. Although this witness does not seems to be a wholly reliable witness and also seems to be distantly related to the informant, being husband of the sister-in-law of the informant, but only on that score, his entire evidence cannot be brushed aside. No doubt this witness had denied the contents of the affidavits alleged to have been filed by him and he had also stated that these affidavits were prepared in the office of Superintendent of Police but this does not distract his entire testimony, which can be considered to the extent it lend credence to the injured version. Vetted from such an angle( P.W.4) has corroborated the prosecution allegations in it's substratum and, therefore, there are consistent creditworthy evidences on record regarding participation of the two surviving male appellants in the crime. Injury report of the deceased as well as her autopsy report, leaves no room for doubt that the injury sustained by her was caused by adze and chisel. The defence version that only brick bats were resorted to in the incident, therefore, is a spurious version, which cannot be attached with any creditworthiness. Injury report of the deceased as well as her autopsy report, leaves no room for doubt that the injury sustained by her was caused by adze and chisel. The defence version that only brick bats were resorted to in the incident, therefore, is a spurious version, which cannot be attached with any creditworthiness. As already mentioned above, accused never put their defence version to the prosecution witnesses and, therefore, it has to be taken as feign defence only to fathom out a case for exercise of right of private defence. It is further brought forth through prosecution evidences that during the incident, ( P.W.2) had rushed to save her mother-in-law and at that moment, she had Santosh, a toddler, in her lap. Had( P.W.2) been the aggressor, she would not have ventured to carry her baby in her lap and participate in brick bats. Such a feat was undertaken by her only in probable eventuality to save her mother-in-law from sustaining grievous injury when she was being assaulted by the appellants.( P.W.2) seems to be a truthful witness because she had no qualms to feign a false story. She was candid in admitting that her infant son had sustained insignificant injury on his leg therefore, he was not carried to the hospital immediately. 17. Another reason which countenance prosecution story is that prior to the present incident both the neighbours had not engaged in physical assault on each other nor there is any evidence to that effect and hence fabrication of false case seems to be not possible. Site plan indicates digging of the drain, and it has not been challenged by the accused at all by questioning the I.O. on that score and, therefore, motive and immediate cause of assault stands proved satisfactorily. In such a view, so far as participation of three surviving appellants in the crime is concerned, it is established beyond any shadow of doubt. 18. Next, turning towards the submission that no offence under section 304( I) I.P.C. is disclosed against two appellants ( A-4) and ( A-2) nor it is disclosed against appellant ( A-3), I find great force in it. So far as appellants Krishna Kumar ( A-2) and Smt. Radha Devi ( A-4) are concerned, against them only prosecution allegation is that they had resorted to brick pelting during the incident. So far as appellants Krishna Kumar ( A-2) and Smt. Radha Devi ( A-4) are concerned, against them only prosecution allegation is that they had resorted to brick pelting during the incident. These appellants were not present at the scene of the assault from the very beginning. Krishna Kumar ( A-2) is the son of ( A-1) whereas Smt. Radha Devi ( A-4) was his wife. They must have reached at the spot after hearing verbal onslaught between their father/husband with( P.W.1) Saraswati Devi. It is categorical admission of( P.W.1), in her cross examination, that when she desisted( A-1) not to carry out the drain, then vituperation ensued in between them and, she had also abused( A-1). Some people had collected at that moment and were trying to pacify the situation. It is her further admission that, all of sudden, stone pelting started. She also admitted that Smt. Radha Devi ( A-4) had also sustained brick injury in the same incident. In such a view, it seems that during verbal dwell, the assault by either side commenced by stone throwing and in the midst of it single blow by adze and chisel were given to the deceased and to( P.W.1). This conclusion can be arrived at from the testimony( P.W.2) also who had deposed that( A-1) was digging the drainage by adze and there was a brawl and muscle flexing in between ( P.W.1) and( A-1). It was because of this reason that ( P.W.1) was pulled back by ( P.W.2) and her daughter, the deceased, and meanwhile, brick batting had started. She further evidenced that they had pulled back ( P.W.1) outside house of the appellants. This could happen only when ( P.W.1) was either inside appellants' house or very closed by. She had further stated that after the witnesses had surrounded( P.W.1), stone pelting had stopped. In above view, so far as the knowledge to commit murder of the deceased is concerned, the same cannot be implanted on appellant Krishna Kumar ( A-2) and Smt. Radha Devi ( A-4) with the aid of section 34 I.P.C. and they cannot be held vicariously liable u/s 304 IPC. For applicability of section 34 I.P.C., common intention has to be present since prior to the incident. At the spur of the moment also it can develop but, for that, there has to be confidence inspiring clear and unambiguous evidence. For applicability of section 34 I.P.C., common intention has to be present since prior to the incident. At the spur of the moment also it can develop but, for that, there has to be confidence inspiring clear and unambiguous evidence. In the absence of such depositions, section 34 I.P.C. cannot be resorted too, to convict an accused, whose act falls outside it's purview. A careful perusal of the testimonies of all the fact witnesses indicate that neither Krishna Kumar ( A-2) nor Smt. Radha Devi ( A-4) harbingered and / or possessed such an intention of causing injury to the deceased by chisel and to cause her death. They were never in the close proximity and their only participation in the incident was through brick pelting. Act of assault by adze and chisel were individual act by each of the two appellants Devi Ram ( A-1) and Suresh @ Kallu ( A-3). It was preceded by an altercation and in that surcharged atmosphere each of these two appellants hurled one blow each on the deceased. Suresh @ Kallu ( A-3) did not assault anybody else at all. It was only appellant Devi Ram ( A-1), who had wielded adze twice, firstly by assaulting( P.W.1) and thereafter assaulting the deceased. It will be, therefore, very impractical and un-pragmatic to apply section 34 I.P.C. on the facts and circumstances of the present appeal. Even Devi Ram ( A-1) and Suresh @ Kallu ( A-3) did not share the common intention with each other as their roles in the incident are limited to their individual acts. 20. In view of above, conviction of the two appellants Krishna Kumar( A-2) and Smt. Radha Devi( A-4) under section 304( I)/34 I.P.C. is indefensible and has to be overturned. In my above opinion, I draw support from some of the Apex Court decisions, which are referred to herein below:- 21. In Rama Shankar, vs. State of Haryana:1996 Cr.L.J.( SC) 4166 it has been held by the apex court as under:- "7. It is true that both the Courts below have attributed common intention to A-2 and A-3 for the substantive offence of murder of Ajit Singh punishable under Section 302 of the Indian Penal Code. Ordinarily, in an appeal under Article 136 of the Constitution, this Court would not be justified in interfering with the finding of fact. It is true that both the Courts below have attributed common intention to A-2 and A-3 for the substantive offence of murder of Ajit Singh punishable under Section 302 of the Indian Penal Code. Ordinarily, in an appeal under Article 136 of the Constitution, this Court would not be justified in interfering with the finding of fact. However, after going through the impugned judgment as well as the judgment rendered by the Sessions Judge, Hisar, we are of the considered view that both the Courts below have committed a material illegality and error while appreciating the evidence of Raghbir Singh ( PW-2) and Ramphal ( PW-3) while attributing common intention to A-2 and A-3 under Section 34of the Indian Penal Code in respect of murder of Ajit Singh. As indicated above, Raghbir Singh ( PW-2) after going to his office ( Forest Department) narrated incident to Umed Singh and thereafter came to the place of incident alongwith them and then the quarrel started which had ended in murderous assault on Ajit Singh, Ajit Singh was not a party to the first incident but he joined on his own at a later stage in the second incident. There is nothing in the evidence of either Raghbir Singh ( PW-2) or Ramphal ( PW-3) which would enable the Court to draw an inference of common intention on the part of A-2 and A-3 to commit murder of Ajit Singh. It is the complainant party which came on its own. It is not the case of any of the injured eye-witnesses that all the three accused were going towards the Forest Office where Raghbir Singh ( PW-2) was working to seek his explanation. All the three accused were standing at the place of first incident. It was only the complainant party which returned thereafter had wordy exchange between them. All of a sudden A-1 caused stab injuries to Ajit Singh. The first incident itself happened without any premeditation. In fact A-2 and A-3 joined A-1 at a later stage. It is in these circumstances if the evidence of Raghbir Singh ( PW-2)and Ramphal ( PW-3) is scrutinized, it is very difficult to come to a conclusion that A-2 and A-3 shared the common intention with A-1 to commit the murder of Ajit Singh. In fact A-2 and A-3 joined A-1 at a later stage. It is in these circumstances if the evidence of Raghbir Singh ( PW-2)and Ramphal ( PW-3) is scrutinized, it is very difficult to come to a conclusion that A-2 and A-3 shared the common intention with A-1 to commit the murder of Ajit Singh. It is well settled that common intention can develop on the spur of the moment but the prosecution evidence is too short to come to that conclusion. It was not even the case of both these injured eye-witnesses that the accused persons had thrown a challenge and therefore, they were waiting at the place of Ist incident. It was the complainant party which came to the place of incident within a short time with Umed Sing and thereafter Ajit Singh joined them. It is in these circumstances we are of the considered view that no common intention as regards committing the murder of Ajit Singh could be attributed to A-2 and A-3. This vital circumstance it appears was not brought to the notice of the High Court. We, therefore, hold that there was no common intention on the part of A-2 and A-3 to commit the murder of Ajit Singh. Resultantly, it must follow that conviction of A-2 and A-3 under Section 302 read with 34 of the Indian Penal Code is unsustainable." 22. In Chhotu and others, vs. State of Maharashtra:1997 Cr.L.J. 4394 it has been held by the apex court as under:- "As earlier noticed the deceased had sustained 55 incised injuries on his person which indicates that A1 to A3 had given repeated blows upon him for some time. Considered in that context it was expected of A4, if really he was sharing the common intention of the other three to commit the murder, to assault the deceased with the knife he was allegedly carrying. He is, therefore, entitled to at least the benefit of reasonable doubt." 23. In Abani K. Debnath and Anr. v. State of Tripura:2006 Cr.L.J. 314 it has been held by the apex court as under:- "4. The common intention as is well known in criminal jurisprudence is the pre-mediated meeting of mind. No doubt the common intention can also be formed on the spot. In Abani K. Debnath and Anr. v. State of Tripura:2006 Cr.L.J. 314 it has been held by the apex court as under:- "4. The common intention as is well known in criminal jurisprudence is the pre-mediated meeting of mind. No doubt the common intention can also be formed on the spot. But in the instant case since the original quarrel was between Anil Das PW.1 and Amar Denath A-5, in our view, it is difficult to say that there was common intention either pre-meditated or formed on the spot with regard to the murder of Ranjit Das. We have already noted that Ranjit Das was an intervenor to save Anil Das and in such a situation the incident appeared to have been in a spur of moment. By no stretch of imagination, it can be said that the murder of Ranjit Das can be said to be with the common intention of A-1 and A-5. From the evidence on record it clearly appears that the dao blow was dealt by only A-1. If at all a conviction under Section 302 IPC is maintained, the death was resulted by an independent act of A-1. In such a situation , A-5 cannot be roped with the aid of 34 IPC. We are clearly of the view that a conviction of A-5 under Section 302 IPC with the aid of 34 IPC is not sustainable and, therefore, conviction qua A-5 under Section 302/34 IPC is set aside." 24. In Hafiz v. State of U.P.: AIR 2006 SC 632 it has been held by the apex court as under:- "39. So far as Rafiq, Sharif and Lal Mohammad, Respondent Nos. 2 to 4 in Criminal Appeal No. 1163 of 2004 are concerned, there is no justification for giving them the benefit of doubt as has seen by the High Court. The fact that they had also beaten the deceased with lathis is established not only by the evidence of PW1 and PW2, but also by the evidence of PW3. It cannot, however, be said that they had any intention to cause death of the deceased Abdul Rahman. They might have come armed with lathies with a common intention of threatening the deceased and his brother and causing injuries upon the deceased. They are, therefore, found guilty for commission of the offence under Section 326/34 IPC and sentenced to three years' rigorous imprisonment." 25. They might have come armed with lathies with a common intention of threatening the deceased and his brother and causing injuries upon the deceased. They are, therefore, found guilty for commission of the offence under Section 326/34 IPC and sentenced to three years' rigorous imprisonment." 25. Turning towards the crime committed by the Suresh @ Kallu( A-3), I am of the opinion that his act also does not come within the purview of section 304( I) I.P.C. He had wielded the chisel only once on the deceased. He had not assaulted anybody else. He was not present at the scene of the incident right from the very beginning. No attempt was made by him to cause grievous injury to any other person. Chisel was an unconventional weapon and in fact is a mason's tool. It was picked up by( A-3) from the spot, at the spur of the moment. It is not the prosecution case that( A-2) had arrived at the scene armed with chisel. He come there empty handed. Picking up mason's tool and giving a single blow on the chest of the deceased is neither indicative of any intention nor that of knowledge to commit murder. Thus, his crime does not fall within the scope of either murder or culpable homicide not amounting to murder u/s 304 part I, ie: murder of first degree or murder of the second degree. At the worst, what can be concluded is that( A-3) intended to cause grievous hurt to the deceased, because of abuses being hurled on his father, which must have been taken by him to be a faux pass and an abash. Perturbed by such insulting act, if appellant Suresh @ Kallu ( A-3), had given a single blow to the deceased, his crime cannot be brought within the fold of section 304( I) I.P.C. It can be only presumed that he carried an intention to cause grievous hurt to the deceased. No doubt the deceased lost her life the same day but the question is not that the deceased sustained such an injury which resulted in her death. The question which really falls for consideration is, as to whether appellant Suresh @ Kallu ( A-3) possessed such an intention while giving single blow to the deceased. From the evidences mens rea for such a presumption is absent. The question which really falls for consideration is, as to whether appellant Suresh @ Kallu ( A-3) possessed such an intention while giving single blow to the deceased. From the evidences mens rea for such a presumption is absent. Consequently crime committed by the Suresh @ Kallu( A-3) will not be graver than 326 I.P.C. To this extent, the impugned judgment of conviction and sentence is erroneous and cannot be countenanced. On the aforesaid aspect of single blow with grievous injury resulting in death with absence of knowledge and intention, some of the opinion by the Apex Court and of other High Courts are referred to herein below:- 26. In Shambhu Kuer, Appellant v. State of Bihar: AIR 1982 SC 1228 it has been held by the apex court as under:- "The conviction of appellant Shambhu Kuer was upheld by the High Court, with the finding that he continued to hold the deceased till the assault was completed by Mandip. One of the three injuries on the deceased which had pierced the right lung, was according to the medical witness, sufficient to cause the death in the ordinary course. Counsel for the appellant contends, and we think right that the eye-witnesses did not clearly state that the appellant continued to hold the deceased till the assault was over. All that appears in the evidence is that Shambhu Kuer caught hold of the deceased and the latter scuffled to get himself released. Immediately thereafter Mandip took out a knife and started assaulting the deceased. From the mere fact that the appellant caught hold of the deceased and scuffled with him, while Mandip took out a knife and commenced the assault, it cannot be inferred beyond reasonable doubt, that he shared the intention of Mandip to murder the deceased. At the most, he was vicariously liable for an offence under S. 326 read with S. 34 Penal Code. We therefore, partly allow this appeal, alter the conviction of the appellant to one under Section 326 read with Section 24 I.P.C. and sentence him to imprisonment already undergone, which, we are told, is about 61 years." 27. In Ashok Kumar vs. State of Punjab: AIR 1977 SC 109 it has been held by the apex court as under:- "There is, however, nothing to show that it was the appellant who inflicted injury No. 3. Both injuries Nos. In Ashok Kumar vs. State of Punjab: AIR 1977 SC 109 it has been held by the apex court as under:- "There is, however, nothing to show that it was the appellant who inflicted injury No. 3. Both injuries Nos. 2 and 3 are on the left side, one in the epigastric region and the other 6" below the axilla and it is not possible to say which of these two injuries was caused by the appellant. The only evidence given by the eye-witnesses was that the appellant gave a knife blow on the left flank of the deceased and this evidence would be compatible with either of the two injuries Nos. 2 and 3. Moreover, it appears from the dimensions of injuries Nos. 3 and 4 - both are 1/3" x 1/4" - that these two injuries must have been caused by the same weapon and the same person must be the author of both these injuries. Now the only assailant, who according to the prosecution evidence, inflicted two injuries was the unidentified assailant and hence injury No. 3 would more properly be attributable to him and not to the appellant. It is, therefore, not possible to say that the prosecution has established beyond reasonable doubt that injury No. 3, which was the fatal injury, was caused by the appellant. The possibility cannot be ruled out that it was injury No. 2 which was caused by him and hence the conviction of the appellant for the offence under Section 302 cannot be sustained and for the individual injury caused by him, he can be convicted only under Section 324. 28. Turning towards the conviction under section 323/34 I.P.C., I find that there is credible and confidence inspiring evidences in that respect. All the appellants had resorted to brick pelting causing simple injuries to the prosecution side. Their defence is not commendable. They seems to be the aggressor and, therefore, they cannot be given any benefit of their plea of exercise of right of private defence, which they had taken under section 313 Cr.P.C. As has already been discussed, their defence seems to be a fabricated one. Their conviction under section 323/34 I.P.C., therefore, does not call for any interference by this Court. 29. Wrapping up the discussion, the appeal is allowed in part. Their conviction under section 323/34 I.P.C., therefore, does not call for any interference by this Court. 29. Wrapping up the discussion, the appeal is allowed in part. Conviction of all the three surviving appellants, viz: ( A-2), ( A-3), and ( A-4) u/s 304( I) and 304( I)/34 I.P.C. are hereby set aside but their conviction under section 323/34 I.P.C. is affirmed. Appellant Suresh @ Kallu ( A-3) is convicted under section 326 I.P.C., for which offence, he is sentenced to three years RI with fine of Rs. 10,000/-. In default of payment of fine, he shall undergo six months further RI. All these appellants, for the charge under section 323/34 I.P.C., are sentenced to the period of imprisonment already undergone by them with fine of Rs. 1,000/- imposed on each of them. In default of payment of fine, they shall undergo one month further simple imprisonment. Appellants Krishna Kumar ( A-2) and Smt. Radha Devi ( A-4) are on bail, they need not surrender, their bail bonds and surety bonds shall be discharged after fine is paid by them or they are arrested for serving default sentence. All the appellants are allowed one month time to deposit fine imposed on them. 30. Appellant Suresh @ Kallu ( A-2) is directed to surrender to his personal bonds and surety bonds within a period of one month from today, failing which, trial Judge is directed to issue non bailable warrant against him, get him arrested and lodge him in jail to serve out the sentence imposed herein above. If the fine is deposited by the said appellant Suresh @ Kallu( A-3), Rs. 5,000/- out of it, shall be given as compensation to the informant for the injury caused to him. 31. Let a copy of the judgment be certified to the trial court for it's intimation.