JUDGMENT 1. - This criminal appeal under Section 374 Cr.P.C. has been filed against the judgment dated April 20, 2009 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Kota. Thereby the appellants Om Prakash, Sheoji @ Shiv Ram and Sita Ram have been convicted under Section 307/34 IPC and each sentenced to suffer Rigorous imprisonment for ten years and fine of Rs. 1000/-. In default to pay the fine, to further suffer simple imprisonment for six months. 2. The facts of the case are that the complainant Pw.1 Manju submitted a written report Ex.P-1 on 5-4-2008, on which FIR No. 17/2008 (Ex.P-9) was registered at Police Station Bapawar, District Kota for the offences under section 147, 148, 149, 341, 504 and 307 IPC. The allegation against the accused was that on 4-4-2008 a "Jagran" was organised in the village Umarda by him. Of the villagers going for the said "Jagran", Nawal Kishore was stopped on the way by one Shaitan Singh and another, Sheoji and abused. The miscreants also pushed down the motor-cycle of one visitor Mahavir and his friends also on their way to "Jagran". The aforesaid visitors to the "Jagran", who had been harassed and abused narrated the matter to the complainant's husband Ramesh Chand. Thereupon Ramesh Chand in the company of Nawal Kishore and another went to the village of miscreants to admonish them and ask them to desist. Ramesh Chand along with his companions first went to the house of Bhanwar Singh but found nobody there. Then he sought ought miscreants at the house of Sitaram Nath. A quarrel and scuffle between Sitaram and Ramesh Chand followed. Ramesh Chand was then attacked with a Sword, a Gandasi, a Kuntia and sticks with the intention of killing him. It was stated that Om Prakash inflicted a Dharia blow to Ramesh Chand's head. Sheoji @ Shiv Ram inflicted a blow on Ramesh Chand's head by a Kuntia. Sitaram and his wife were stated to have beaten Ramesh Chand with sticks on his arms. Nawal Kishore, Ummed Singh, Meghraj, Dwarki Lal and Dinesh Kirad were stated to be witness who intervened in the matter. The intervention resulted into the accused fleeing. Ramesh Chand was rendered unconscious and left to die with blood oozing out from his head. Sitaram and his wife were stated to have beaten Ramesh Chand with sticks on his arms. Nawal Kishore, Ummed Singh, Meghraj, Dwarki Lal and Dinesh Kirad were stated to be witness who intervened in the matter. The intervention resulted into the accused fleeing. Ramesh Chand was rendered unconscious and left to die with blood oozing out from his head. The complainant not herself a witness stated that the facts detailed in the written report resulting in the FIR were narrated to her by Nawal Kishore.Investigation followed the FIR. Challan was filed against Om Prakash, Sheoji @ Shiv Ram, Shaitan Singh, Sitaram and Dropadi wife of Sitaram for the offences under sections 307, 326, 324, 323, 147, 148 and 149 IPC before the jurisdictional Magistrate. In due course after committal, the case come up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Kota and the accused were charged for offences under sections 148 and 307 read with 149 IPC. Charges were denied and the accused put to trial. The prosecution in support of its case examined 24 witnesses and exhibited 43 documents. The accused in their explanation under Section 313 Cr.P.C., denied the charges and stated that the entire prosecution case was based on false evidence and that they were falsely implicated. No defence witness was however examined. Reliance was however placed on five documents. 3. The learned trial Judge on evaluating the evidence led before it and the submissions by respective counsel was pleased to acquit all the accused of the offence under section 148 and 149 IPC and also acquit the accused Shaitan Singh and Dropadi w/o Sitaram of the offence under section 307/149 IPC. However the accused appellants Om Prakash, Sheoji @ Shiv Ram and Sitaram were convicted for the offence under section 307/34 IPC. Sentenced as detailed above followed. 4. Learned counsel for the appellant has submitted that the prosecution evidence on which finding of conviction has been arrived at by the learned trial court was not of requisite probative worth, fundamentally for the reason that the incident took place at 8.30 PM in the evening of 4-4-2008 when it was dark and without any proved source of illumination to render the prosecution witnesses ascribing specific injuries on Ramesh Chand to the accused untrustworthy. It has been submitted that over implication at the instance of prosecution witnesses and the malafides of prosecution case is evident from the fact that three head injuries were stated to have been caused to Ramesh Chand on the ocular evidence, when in fact from the medical evidence only two head injuries were proved. Counsel submits that the learned trial court has disbelieved the prosecution case with regard to commission of offences under sections 147, 148 and 149 IPC and also acquitted the accused Shaitan Singh and Dropadi Bai. It has been submitted that the learned trial court has however erred in invoking Section 34 IPC vis-a-vis the accused particularly Sitaram in spite of the legal precondition of prior meeting of minds being absent from evidence on record. It has been further submitted that there is no evidence of the medical witnesses that the injuries to the head of Ramesh Chand were sufficient in the ordinary course of nature to have caused death and consequently, if at all, the accused Om Prakash and Sheoji @ Shiv Ram could have been convicted, only for an offence under section 326 and Sitaram only for an offence under Section 323 IPC. It has been further submitted that the trial court overlooked the genesis of the incident where the injured Ramesh Chand and others had admittedly gone looking for the accused appellants without any good reason and appeared to have been the aggressors. 5. Having heard learned counsel for the parties and considered the impugned judgment dated 20-4-2009 under challenge in this appeal. Also scanned the material evidence available on record. The obtaining factual situation is as under:- 1. A "Jagran" was being held at the instance of newly elected Sarpanch Manju and her husband Ramesh Chand on the evening of 4-4-2008. 2. The visitors to the Jagran on the way were accosted and harassed by Shaitan Singh and Sheoji @ Shiv Ram. 3. The harassed visitors Pw.9 Nawal Kishor and Pw.6 Mahavir and his friends complained to the injured Ramesh Chand with regard to obstruction being created in the way of those who were seeking to congregate at the "Jagran". 4. 2. The visitors to the Jagran on the way were accosted and harassed by Shaitan Singh and Sheoji @ Shiv Ram. 3. The harassed visitors Pw.9 Nawal Kishor and Pw.6 Mahavir and his friends complained to the injured Ramesh Chand with regard to obstruction being created in the way of those who were seeking to congregate at the "Jagran". 4. On the complaint of the visitors with regard to obstruction and harassment on the way to the "Jagran" the injured Ramesh Chand along with Pw.9 Nawal Kishore and Pw.7 Dwarki Lal went looking for the accused at about 8.30 PM asking them to desist from obstructing and harassing or troubling the visitors to the "Jagran". 5. Ramesh Chand found the accused Sitaram near the Chabutara of Mahadevji in front of house of accused Sitaram Nath. A scuffle followed. Om Prakash, Sheoji @ Shiv Ram, Shaitan Singh and Dropadi Bai also appeared on the scene and were alleged to have attacked Ramesh Chand. 6. Ramesh Chand was attacked and inflicted two grievous injuries on his head and three simple injuries on his arm. 6. Dr. Deepak Sharma, Pw.14, who examined Ramesh Chand on 15-4-2008 and prepared injury-report Ex.P-20, in the first instance found that Ramesh Chand had sustained five pre-operational injuries 1,2, 4,5, and 6, which are as under:- 1. Incised wound on Front parietal region left 2x8 cm long- Sharp 2. Incised wound 2 x 10cm vertical Front parietal region Left Sharp (3. Operation wound) 4. Abrasion 1x1cm L wrist-Blunt 5. Abrasion ½ x 1cm R wrist-Blunt 6. Lacerated wound ½ x 1 cm forearm-Blunt Injury No. 3 was the result of urgent operation undertaken by Pw.8 Dr. Mamraj Agrawal on the evening of 4-4-2008 itself. Pw.8 Dr. Mamraj Agrawal stated in his evidence that at the time Ramesh Chand was operated and treated he had two grievous injuries (No.1&2) each caused by a sharp edged weapon. The patient was unconscious, brain matter was hanging out, eyes were closed and the limbs were not moving. He stated that the condition of Ramesh Chand before his operation as recorded in Ex.P-14, C.T. Scan which indicated that the left portion of the skull was broken into several pieces and blood was deposited in the brain. He further stated that broken pieces of skull were removed surgically as also was the damaged part of the brain. Pw.22 Dr. He stated that the condition of Ramesh Chand before his operation as recorded in Ex.P-14, C.T. Scan which indicated that the left portion of the skull was broken into several pieces and blood was deposited in the brain. He further stated that broken pieces of skull were removed surgically as also was the damaged part of the brain. Pw.22 Dr. Sangita Saxena, Radiologist stated that the x-ray of the injured indicated two grievous injuries on the head of the patient as per x-ray plate (Ex.P-30) and report thereof is Ex.P-21. 7. The factum of the altercation and attack on Ramesh Chand has been established fully from the evidence of Pw.7 Dwarkilal, Pw.9 Nawal Kishore, Pw.10 Meghraj and Pw.16 Dinesh. The consistent evidence from the unshaken testimony before the trial court at the instance of aforesaid prosecution witnesses indicates that Om Prakash inflicted a dharia blow on the head of Ramesh Chand, followed by a sword blow also on the head of Ramesh Chand by Sheoji @ Shiv Ram. Pw.10 Meghraj stated that at the relevant time he was carrying a torch in the light of which the assailants were clearly identifiable and their specific act of causing injury on Ramesh Chand visible. 8. The juxtaposing of the ocular evidence based on eye witness account with the medical evidence of the injuries suffered by the injured Ramesh Chand establishes with the requisite certainty required in a criminal case beyond reasonable doubt that Ramesh Chand was inflicted two incised wounds measuring 2x8 cm on front parietal region and another incised wound measuring 2x10 cm on left parietal region by Om Prakash and Sheoji @ Shiv Ram respectively. As far as case of Sitaram is concerned, it is however quite apparent from the evidence on record that he has been assigned injuries on Ramesh Chand with a stick on the left and right hands which injuries are simple in nature. Of these injuries, two were abrasions on the wrists on Ramesh Chand. 9. The injured Ramesh Chand appeared before the trial court as Pw.23. However owing to the grievous head injuries sustained by him and the consequent operation conducted by Pw.8 Mamraj Agrawal in the evening of 14-4-2008, he was unable to speak or write to give his evidence before the trial court. 9. The injured Ramesh Chand appeared before the trial court as Pw.23. However owing to the grievous head injuries sustained by him and the consequent operation conducted by Pw.8 Mamraj Agrawal in the evening of 14-4-2008, he was unable to speak or write to give his evidence before the trial court. The trial court however evaluated his capacity to give his evidence in court through his answers by way of gestures to questions put to him. He was put specific questions and response thereto based on his gestures recorded. A reading of evidence of Ramesh Chand before the trial court in the aforesaid manner indicates that the injured Ramesh Chand was able to indicate that five persons had beaten him. On being asked as to whether he recognised the assailants, he first pointed out to Sitaram and his wife Dropadi Bai. He then identified Om Prakash, Sheoji @ Shiv Ram. On further being asked as to where injuries had been inflicted, the witness pointed to his head and pointed out to the injuries thereon as also the injuries on his hand. The trial court also noted and recorded that there were signs of injuries on the head of Ramesh Chand and that his skull shape had changed and it was depressed following the operation. 10. On evaluating the evidence on record before it, the trial court concluded that the evidence of the prosecution against the accused Shaitan Singh and Dropadi Bai was insufficient to establish their complicity in the attack on injured Ramesh Chand and hence it held that they were entitled to an acquittal. The trial court however proceeded to convict the accused Om Prakash, Sheoji @ Shiv Ram and Sitaram under section 307/34 IPC.In my considered opinion, the accused Om Prakash and Sheoji @ Shiv Ram, from the evidence available on record, were liable to be convicted for the offence under section 307 IPC simplicitor in respect of two different injuries inflicted by them one each, on the head of injured Ramesh Chand. Pw.7 Dwarki Lal, Pw.9 Nawal Kishore, Pw.10 Meghraj and Pw.16 Dinesh have also attributed to the two accused the two grievous injuries to Ramesh Chand's head. The oral testimony of these witnesses is fully corroborated by the medical evidence on record emanating from Pw.8 Dr. Mamraj Agrawal, Pw.14 Dr. Deepak Sharma, Pw.22 Dr. Pw.7 Dwarki Lal, Pw.9 Nawal Kishore, Pw.10 Meghraj and Pw.16 Dinesh have also attributed to the two accused the two grievous injuries to Ramesh Chand's head. The oral testimony of these witnesses is fully corroborated by the medical evidence on record emanating from Pw.8 Dr. Mamraj Agrawal, Pw.14 Dr. Deepak Sharma, Pw.22 Dr. Sangita Saxena and Pw.24 Ghanshyam Gautam and the documents exhibited by the prosecution. 11. I am however of the view that section 34 IPC would not be attracted to the facts of the present case. The evidence on record does not justify coming to a finding of a prior meeting of minds of the accused for assaulting the injured Ramesh Chand. It is not in dispute that Ramesh Chand along with Pw.7 Dwarkilal and Pw.9 Nawal Kishore went looking for the accused appellants in view of complaints made to him by the visitors to the "Jagran" that they had been obstructed and harassed on the way by the accused appellants. The incident took place in front of the house of accused Sitaram. The presence of the accused at their own house was natural. Ramesh Chand was obviously neither invited nor expected. Prior meeting of the minds of the accused Sitaram or others for the commission of the offence in the facts of the case cannot even remotely be made out. In the evidence of Dwarki Lal Pw.7, it is admitted that Sitaram was admonished and asked by Ramesh Chand to caution his children. A scuffle then followed as per the prosecution between Ramesh Chand and Sitaram. It is then that Ramesh Chand as per the prosecution case was attacked by the other accused Om Prakash and Sheoji @ Shiv Ram. The suddenness of the incident was thus very clear. Meeting of the minds of the accused prior or on the spot cannot be inferred in law. 12. The Hon'ble Supreme Court in case of Lala Ram v. State of Rajasthan, [ (2007) 10 SCC 225 ] has held that for the purpose of making out constructive liability under section 34 IPC, both commonality of purpose and participation of the accused is necessary. However for the purpose of determination of intention inference has to be drawn from the circumstances appearing from proved facts. However for the purpose of determination of intention inference has to be drawn from the circumstances appearing from proved facts. It has been further held that intention of any of the accused sought to be roped in for the criminal culpability of others with the aid of section 34 IPC was also to be drawn from the nature of participation of such accused as also nature of injuries caused by such accused. In the case of Jagannath v. State of Madhya Pradesh, [(2007) 15 SCC 378] the Hon'ble Supreme Court has held that where assault has taken place on the spur of moment preceded by a quarrel between the parties, it would be difficult to find a case of common intention within the provisions of section 34 IPC. 13. It is the prosecution evidence that the injured Ramesh Chand, aggrieved of obstruction of visitors to the "Jagran" as conveyed to him by Pw.6 Mahavir and Pw.9 Nawal Kishore, went to the house of Sitaram and had a scuffle with him. In the context of quarrel between the two, Ramesh Chand appears to have been attacked by the accused Om Prakash and Sheoji, both sons of Sitaram. In the facts obtaining for the two grievous injuries caused to the head of Ramesh Chand, Om Prakash and Sheojito whom the two injuries have been attributed would be liable for their own acts. The injuries being grievous by sharp edged weapon on a vital part of the body would lead to an inference of an intention on the part of the two accused to murder Ramesh Chand. The injured having however survived, the act of the accused Om Prakash and Sheoji @ Shiv Ram clearly entails criminal culpability under Section 307 IPC simplicitor for which they deserve to be convicted.Sitaram, however cannot in my considered opinion be drawn into the said criminal culpability of Om Prakash and Sheoji @ Shiv Ram for an offence under Section 307 IPC simplicitor with the aid of section 34 IPC. I find in the facts and circumstances of the case that no meeting of mind between Sitaram on the one hand and Om Prakash and Sheoji @ Shiv Ram on the other either prior to incident or on the spur of the moment when Ramesh Chand was attacked, can be made out. 14. I find in the facts and circumstances of the case that no meeting of mind between Sitaram on the one hand and Om Prakash and Sheoji @ Shiv Ram on the other either prior to incident or on the spur of the moment when Ramesh Chand was attacked, can be made out. 14. Consequently, appeals by Om Prakash and Sheoji @ Shiv Ram would entail modification of the impugned judgment dated 20-4-2009 in Sessions case No. 70/2008 passed by the trial court. Their conviction would stand altered to an offence under Section 307 IPC simplicitor from one under section 307 read with 34 IPC as found by the trial court. On the question of sentence each of the accused appellants, Om Prakash and Sheoji @ Shiv Ram would individually be liable to suffer ten years rigorous imprisonment and fine of Rs. 1000/-. In default, each of the aforesaid accused would be liable to suffer six months simple imprisonment in addition to their substantive sentence. 15. The appeal of accused appellant Sitaram s/o Gopal is partly allowed and his conviction under section 307/34 IPC is set aside. From the evidence available on record Sitaram is found to have inflicted simple injuries with stick on the person of injured Ramesh Chand. He would stand convicted under section 323 IPC. On the question of sentence, I would sentence Sita Ram to imprisonment for the period of imprisonment already undergone. Sita Ram is on bail, he need not surrender and his bail bonds are discharged. 16. The impugned judgment of the learned trial court dated 20-4-2009 in Sessions Case No. 70/2008 passed by the learned Additional Sessions Judge (Fast Track) No. 1 Kota stands modified accordingly.Appeal partly allowed. *******