JUDGMENT 1. - This appeal is directed against the judgment and order dated 26.4.2006 passed by learned Additional Sessions Judge (Fast Track), Banswara convicting and sentencing the accused appellants as under:- Accused Shankar Lal - Under S.302 IPC - Life imprisonment with a fine of Rs. 2000/- and in default of payment of fine further to undergo six months simple imprisonment. Under S.323 IPC - Three months simple imprisonment. Accused Jhumaklal @ Jhumanlal, Beerbal and Suresh Chandra Under S.302/34 IPC - Life imprisonment with a fine of Rs. 2000/- and in default of payment of fine further to undergo six months simple imprisonment to each. Under S.323 IPC - Three months simple imprisonment to each. 2. In brief, facts of the case are that on 4.9.2005 at about 11:00 PM a statement given by Shri Devilal (PW-3) at Koba Choraha was reduced in writing by a police team of Police Station Anandpuri and on basis of that a case was lodged for the offences punishable under Sections 307, 147, 148, 149 and 323 Indian Penal Code. As per the statement given by Shri Devilal M/s Bharat, Dhaneshwar and Rajmal came to his shop on two different motorcycles at about 08:30 PM on 4.9.2005. Dhaneshwar had a cigarette from the shop and then he moved towards his motorcycle. At that time Jhumanlal @ Jhumaklal and four other persons came there and caught hold of Bharat and his friends. They started quarrelling with them and put down Bharat on earth and then gave stone blows. The assailants fled from the spot when Magan, Raman etc. came there. 3. During the course of treatment Bharat died, therefore, investigation was initiated for an offence punishable under Section 302 Indian Penal Code also. The investigating agency after completing the investigation submitted a police report before the competent court and the case then was committed to the court of Sessions. On 17.11.2005 the accused appellants were charged for the offences punishable under Sections 148, 323, 324, 302 read with 120-B Indian Penal Code. On denial of the charges, trial commenced as desired. 4. The prosecution supported its case with the aid of 19 witnesses out of whom Devilal (PW-3), Rajmal (PW-4), Dhaneshwar (PW-5), Ganeshlal (PW-6) and Ramlal (PW-7) were cited as eye witnesses. Dr. S.K. Bhatnagar (PW-15) conducted autopsy on the person of deceased Bharat and Dr. On denial of the charges, trial commenced as desired. 4. The prosecution supported its case with the aid of 19 witnesses out of whom Devilal (PW-3), Rajmal (PW-4), Dhaneshwar (PW-5), Ganeshlal (PW-6) and Ramlal (PW-7) were cited as eye witnesses. Dr. S.K. Bhatnagar (PW-15) conducted autopsy on the person of deceased Bharat and Dr. Devendra Verma (PW-16) examined injuries of Rajmal and Dhaneshwar, therefore, they substantiated the medical evidence advanced by the prosecution. The testimony of Shri Prithvi Singh (PW-19) was also examined and he narrated all the steps taken during the course of investigation being investigating officer. The postmortem report (Ex.P/15) and injury reports of Devilal, Rajmal and Dhaneshwar Ex.P/6, Ex.P/7 and Ex.P/8 and the report given by Forensic Science Laboratory (Ex.P/26) were exhibited along with other documents prepared by the investigating agency during the course of investigation. While explaining the adverse circumstances and incriminating material available in prosecution evidence, the accused appellants termed the entire prosecution evidence as false and pleaded their innocence. In defence statements of Shri Ambalal (DW-1) and Subhash Patidar (DW-2) were recorded. The documents D/1 to D/6 were also exhibited in defence. The trial court after examining the entire evidence available on record arrived at the conclusion that the accused appellants participated in the crime in question and, therefore, convicted and sentenced them. One accused Jayantilal was acquitted from all the charges. 5. In appeal, the only argument advanced by counsel for the appellants is that the trial court materially erred while convicting accused appellant Shankar for an offence punishable under Section 302 Indian Penal Code and other accused appellants for the offence punishable under Section 302/34 Indian Penal Code. It is submitted that even by accepting the prosecution case, accused appellant Shankar could have not been held guilty for commission of any offence beyond the offence described under Section 304 part-II Indian Penal Code. With regard to other accused persons it is submitted that there is no evidence available on record to establish that they were sharing a common intention with accused Shankar, therefore, their conviction with the aid of Section 34 Indian Penal Code is apparently bad. 6. Per contra, as per learned Public Prosecutor the accused appellants at their own came to the shop of Devilal (PW-3) and assaulted deceased Bharat and other injured persons Rajmal and Dhaneshwar. This fact is sufficient to establish common intention to commit crime. 6. Per contra, as per learned Public Prosecutor the accused appellants at their own came to the shop of Devilal (PW-3) and assaulted deceased Bharat and other injured persons Rajmal and Dhaneshwar. This fact is sufficient to establish common intention to commit crime. The manner in which Bharat was caused fatal injuries as per learned Public Prosecutor is sufficient to arrive at the conclusion that the accused persons were intending to kill him. 7. Heard counsel for the appellants and learned Public Prosecutor. 8. Before discussing other evidence available on record it shall be appropriate to mention details pertaining to the medical evidence available on record. As per Ex.P/15, the postmortem report of deceased Bharat, his person was having three injuries as under:- 1. 9 x 3 x bone deep left occipital region lacerated wound blunt. 2. Bruise with swelling 17 x 10 cm left shoulder. 3. Abrasion 7 x 7 cm right calop wounds. 9. The cause of death given is head injury and hemorrhagic shock due to that. 10. Injured Devilal was having a simple injury at his neck and the other injured Rajmal was having four simple injuries. Dhaneshwar was also having four simple blunt injuries. 11. The contents of the postmortem report and the opinion given therein is substantiated by Dr. S.K.Bhatnagar (PW-15). The injuries received by Devilal, Rajmal and Dhaneshwar are substantiated by Dr. Devendra Verma (PW-16). From perusal of the medical evidence it is apparent that deceased Bharat was having a single blunt injury on his head and that was the cause of death. The injuries received by Dhaneshwar, Rajmal and Devilal are simple injuries attributed by blunt object. 12. Now coming to the evidence adduced by the eye witnesses. It is apparent that at the first instance some altercations entered between Jayantilal and Bharat, Rajmal and Dhaneshwar. The accused appellants subsequent thereto came at the shop of Devilal and started quarrelling with deceased Bharat and his friends. During the course of quarrel a head injury was caused to Bharat by accused Shankar by giving a stone blow. The other accused persons gave simple injuries to Devilal, Rajmal and Dhaneshwar. As per injured eye witness Devilal (PW-3), when Bharat, Dhaneshwar and Rajmal were standing near to his shop the accused persons came on motorcycle and made a complaint with regard to their ill behaviour with Jayantilal. The other accused persons gave simple injuries to Devilal, Rajmal and Dhaneshwar. As per injured eye witness Devilal (PW-3), when Bharat, Dhaneshwar and Rajmal were standing near to his shop the accused persons came on motorcycle and made a complaint with regard to their ill behaviour with Jayantilal. A quarrel between them occurred and during the course of that Bharat fell down and then a stone blow was given by Shankar. Injured eye witness Rajmal also stated that on 4.9.2005 at about 04:00 PM Jayantilal met them and some hot discussions with him took place. Subsequent thereto accused persons came at the shop of Devilal where a quarrel took place and during the course of that a stone blow was given by Shankar on the head of Bharat and that resulted into his death. The same version is given by injured Dhaneshwar and Ganeshlal. 13. The evidence adduced by the eye witnesses in quite unambiguous terms establishes that the accused persons came at the spot of occurrence without carrying any weapon and they entered into altercations and then quarrelled with Bharat, Dhaneshwar, Rajmal etc. During the course of quarrel Bharat fell down and Shankar gave a stone blow on his head. As a consequent to this blow Bharat died. No evidence is available on record to the effect that other accused persons instigated accused Shankar to gave stone blow on the head of deceased Bharat. The other accused persons were throwing stones and that resulted into simple injuries to Devilal, Rajmal and Dhaneshwar. No evidence is available on record to establish that accused Shankar too was having any intention to cause death of Bharat. On the contrary the evidence available is sufficient to establish that the entire incident occurred due to altercations between two parties and during the course of that an spontaneous stone blow was given by Shankar to Bharat. The evidence available on record in no manner suggests about causing any offence punishable under Section 302 Indian Penal Code. The offence committed by Shankar as per the evidence available on record indicates that without having any intention to cause death he gave a bodily injury to Bharat that caused his death. As such, the offence committed by him does not run beyond an offence described under part-II of Section 304 Indian Penal Code. 14. The offence committed by Shankar as per the evidence available on record indicates that without having any intention to cause death he gave a bodily injury to Bharat that caused his death. As such, the offence committed by him does not run beyond an offence described under part-II of Section 304 Indian Penal Code. 14. The other question that requires adjudication is about availability of common intention of other appellants with accused Shankar. 15. It is well settled that the burden to establish that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert or otherwise lies on prosecution. Common intention necessarily postulates the existence of pre-arranged plan implying a prior meeting of minds to cause a criminal act. 16. In the case in hand, no evidence is available on record about pre-arranged plan implying a prior meeting of minds while assaulting deceased Bharat with the aid of stone by accused appellant Shankar Lal. As such, common intention in commission of the crime is absent. The trial court, thus, erred while arriving at the conclusion about availability of common intention. 17. In view of the discussions made above, we are of the considered opinion that the conviction of accused Shankar for the offence punishable under Section 302 and other accused persons under Section 302/34 Indian Penal Code is bad. Accordingly, the same is quashed. Accused appellant Shankar is convicted and sentenced for the offence punishable under Section 304 part-II Indian Penal Code. His conviction for other offence is maintained. 18. The conviction of accused appellants Jhumaklal @ Jhumanlal, Beerbal and Suresh Chandra for the offence punishable under Section 302/34 Indian Penal Code is set aside. They are acquitted from the charge concerned. However, their conviction for the offence punishable under Section 323 Indian Penal Code is maintained. 19. Accused appellant Shankar Lal is sentenced to undergo eight years rigorous imprisonment with a fine of Rs. 2000/- and in default of payment of fine further to undergo six months simple imprisonment. The conviction of accused appellants Jhumaklal @ Jhumanlal, Beerbal and Suresh Chandra for the offence punishable under Section 323 Indian Penal Code is maintained and they are sentenced to undergo the imprisonment for the period already undergone by them. The bail bonds and sureties furnished by the accused persons except accused Shankar stand discharged. 20. The conviction of accused appellants Jhumaklal @ Jhumanlal, Beerbal and Suresh Chandra for the offence punishable under Section 323 Indian Penal Code is maintained and they are sentenced to undergo the imprisonment for the period already undergone by them. The bail bonds and sureties furnished by the accused persons except accused Shankar stand discharged. 20. In the terms mentioned above the appeal stands allowed in part.Appeal partly allowed. *******