JUDGMENT 1. - By the judgment and order dated 20.4.2004 the learned Additional Sessions Judge (Fast Track) No. 1, Sirohi recorded conviction of accused-appellant Bhura Ram for offence punishable under Section 302 I.P.C. and of accused Ramesh Kumar for the offence punishable under Section 302/34 I.P.C., and sentenced them to undergo life term imprisonment with a fine of Rs. 5000/- each and further to undergo one year's additional imprisonment in the event of default in payment of fine. 2. The factual matrix necessary to be noticed for adjudication of this appeal is that Soma S/o. Chhagan Lal submitted a written report (Exh.P/13) to the Station House Officer, Police Station, Revdar on 24.2.2003 at 6:15 pm with assertion that he and his father Chhagan Lal went to village Meethan to join "Sheetla Saptami Fair" and while returning from that they were waiting for a bus at Revdar road. His cousin brother Ramesh S/o. Babu Harijan and Bhura S/o. Kesha Harijan both residents of Khan came there and gave 'kulhari' blows on the head, back and neck of his father. Ramesh gave knife blows on the back and neck of his father. On intervention, both the accused persons made an attempt to flee from the spot. The incident was witnessed by Magan Lal and Udai Dan. Shri Chhagan Lal died at the spot and the 'kulhari' of accused Bhura Ram was found struck in his skull. A dispute relating to the matrimonial engagement was shown as the motive behind the incident. 3. On basis of the written report aforesaid, a criminal case was lodged and the investigation commenced. After completion of investigation, a police report was filed before the court of Judicial Magistrate, First Class, Revdar alleging commission of offence punishable under Section 302/34 I.P.C. Being a sessions triable case, the same was committed to the Court of Sessions, Sirohi. Learned Sessions Judge, Sirohi transferred the same to the court of learned Additional Sessions Judge (Fast Track) No. 1, Sirohi. On 19.6.2003 the learned Additional Sessions Judge (Fast Track) No. 1, Sirohi framed charges against both the accused persons for commission of offence punishable under Section 302 and in alternative 302/34 I.P.C. On denial of the same the trial commenced, as desired. 4. On 19.6.2003 the learned Additional Sessions Judge (Fast Track) No. 1, Sirohi framed charges against both the accused persons for commission of offence punishable under Section 302 and in alternative 302/34 I.P.C. On denial of the same the trial commenced, as desired. 4. The prosecution supported its case with the aid of several witnesses (PW-1 to PW-13), out of whom, S/Shri Soma Ram (PW-9), Udai Dan (PW-2), Pukhraj (PW-3) and Mohanlal (PW-5) were cited as the eye-witnesses. PW-8 Dr. Surendra Sain adduced medical evidence as he conducted autopsy on the person of deceased Shri Chhagan Lal. PW-12 Shri Amar Singh being the Investigating Officer provided details of all the steps taken during the course of investigation. Several documents were also exhibited to support the prosecution case. 5. An opportunity was given to both the accused persons to explain the adverse and incriminating circumstance appearing in prosecution evidence. Accused Bhura Ram while availing the opportunity termed the evidence as false with the explanation that the deceased Chhagan Lal was making efforts to pull Soram to molest her chastity, thus, the incident took place. At the time of incident Soma S/o. Chhagan Lal was not present. Accused Ramesh also termed the entire evidence as false with the assertion that he was not at all present at the place of incident and he has been falsely implicated in the case concerned. In defence, statements of Harish Kumar (DW-1) and Smt. Soram (PW-2) were recorded. 6. The trial court after examining the evidence available on record arrived at the conclusion that accused Bhura Ram murdered Chhagan Lal and accused Ramesh participated in the crime with a common intention, accordingly the conviction was recorded and sentence was awarded. 7. In appeal, the argument advanced by learned counsel for the accused-appellants is that the deceased Chhagan Lal was trying to molest Smt. Soram wife of accused Bhura and, therefore, only in self-defence a 'kulhari' blow was given. The accused may have exceeded in that but in no case he was intending to kill Chhagan, therefore, his conviction for the offence punishable under Section 302 I.P.C. is unjustified. While advancing the case of accused Ramesh, it is submitted that the trial court failed to appreciate that as per the defence advanced, the accused was not even present at the spot but the trial court failed to appreciate the plea of alibi taken by this accused. While advancing the case of accused Ramesh, it is submitted that the trial court failed to appreciate that as per the defence advanced, the accused was not even present at the spot but the trial court failed to appreciate the plea of alibi taken by this accused. In alternative it is also submitted that no evidence is available on record to establish common intention to this accused while joining accused Bhura in the crime in-question. 8. Per contra, learned Public Prosecutor submits that in view of definite evidence given by eye-witnesses, the involvement of both the accused persons in the crime in-question is absolute and their common intention to kill Chhagan Lal is also apparent. It is asserted that the detailed narration of the entire incident by the eye-witnesses Soma (PW-9), Udai Dan (PW-2), recovery of weapons of offence at the instance of both the accused persons, availability of blood-stains thereon and matching of blood-group of the blood-stains so available with the blood group of deceased is sufficient to establish commission of the offence by the accused persons for which they have been convicted. 9. Heard learned counsel for the appellant and the learned Public Prosecutor. We have also examined the entire record minutely.PW-8 Dr. Surendra Jain conducted autopsy on the person of deceased Chhagan Lal and verified the contents of the postmortem report (Exh.P/10). According to the medical evidence available on record, the person of the deceased Chhagan Lal was having 12 ante-mortem injuries, the details of which is as under:- 1. Incised wound 3 cm x ½ cm elliptical on right back at 72 level. 2. Incised wound 2.75 cm x ½ cm at T 10 level. 3. Incised wound 3.5 cm x ½ cm at T 8 level. 4. Incised wound 9.5x 3x6 cm right parietal. 5. Cutting of ear middle of ear right. 6. Incised wound 12 cm x 1 x 4 cm right occipital. 7. Incised wound 4 cmx 1½ cm x 1½ cm right occipital. 8. Incised wound 5 cm x ½ x 2 cm back & neck. 9. Incised wound 6 cm x ½ cm x ½ cm middle of scalp. 10. Incised wound 10 cmx.25 cm on left back. 11. Incised wound 2x.25 cm Midscapular region. 12. Punctured wound .25 cmx.25 cm just infront right ear. 10. As per Dr. 8. Incised wound 5 cm x ½ x 2 cm back & neck. 9. Incised wound 6 cm x ½ cm x ½ cm middle of scalp. 10. Incised wound 10 cmx.25 cm on left back. 11. Incised wound 2x.25 cm Midscapular region. 12. Punctured wound .25 cmx.25 cm just infront right ear. 10. As per Dr. Surendra Jain (PW-8) the cause of death of Chhagan Lal was head injury. No further details with regard to the cause of death of Chhagan Lal was prescribed. The details of the injuries and the cause of death given is sufficient to arrive at the conclusion that the death of Shri Chhagan Lal was homicidal one. 11. The prosecution case has been supported by the eyewitnesses, namely, Soma Ram (PW-9), Udai Dan (PW-2), Pukhraj (PW-3) and Mohanlal (PW-5). As per PW-2 Udai Dan, on 24.3.2003 he was discharging his duties as Guard at State Bank of Bikaner & Jaipur, Revdar Branch from 12:00 noon to 3:00 pm. After completing duty hours he went to Meetan Crossing and was watching "Sheetla Saptami Fair". At about 5:30 pm in the evening he saw Ramesh and Bhura indulging in fight with deceased Chhagan. Bhura was giving 'kulhari' blows and Ramesh was giving knife blow. Son of Chhagan was also there and he was crying loudly and was calling for the aid.PW-9 Soma is the son of deceased Chhagan Lal. As per this witness, he and his father on 24.3.2003 went to join "Sheetla Saptami Fair" in village Meethan. At about 5:00 pm they proceeded for Revdar and then were waiting for the bus opposite the garage of Mohan Mistri. Accused Ramesh then came and asked his father that whether he want to indulge in any fight. At that moment accused Bhura gave 'kulhari' blows on the back and neck of his father. He further gave 'kulhari' blow on the head of Chhagan Lal. Ramesh then took out a knife and gave a blow from that on the back and neck of Chhagan Lal. The 'kulhari' by which head injury was caused by Bhura, struck in the head of Chhagan Lal and by leaving that there the accused fled from the spot.PW-12 Amar Singh is the Investigating Officer. He arrived at the place of occurrence on receiving telephonic information and received written report (Exh.P/13) from Soma pertaining to the incident. The 'kulhari' by which head injury was caused by Bhura, struck in the head of Chhagan Lal and by leaving that there the accused fled from the spot.PW-12 Amar Singh is the Investigating Officer. He arrived at the place of occurrence on receiving telephonic information and received written report (Exh.P/13) from Soma pertaining to the incident. As per this witness, the entire site was inspected, a site-plan was prepared and other necessary documents too were prepared and the dead-body was sent for its autopsy. The doctor who conducted autopsy handed-over the 'kulhari' that was found struck in the head of deceased and the same was kept in a sealed bag. A report of that seizure was made as Exh.P/19. The blood-stained clothes of deceased were also seized. Accused Ramesh and Bhura Ram were arrested during the course of investigation and their arrest memos (Exh.P/1 and Exh.P/2 respectively) were prepared. The clothes worn by the accused persons were also seized. The clothes of Bhura Ram were having blood-stains. At the instance of accused Ramesh Kumar a blood-stained knife was recovered and the Recovery Memo of that was made and marked as Exh.P/24. This witness in cross-examination stated that during the course of investigation he had some information about molestation of Soram by accused Bhura. She was not found present at the time of incident.PW-8 Dr. Surendra Jain conducted autopsy on the person of deceased Chhagan Lal, thus, he verified the contents of the post-mortem report and further he provided all other necessary details pertaining to ante-mortem injuries received by the deceased. This witness stated that the body of deceased was not having any stab wound and out of the 12 injuries, 11 injuries (injury No. 1 to 11) would have been received from one weapon. As per this witness, the head injury (injuries No. 4, 6, 7 and 9) were sufficient to cause death in normal course of nature. 12. With this background of evidence, the learned trial court found definite involvement of the accused persons in the crime in question and convicted them accordingly. 13. From the evidence adduced by eye-witnesses PW-2 Udai Dan and PW-9 Soma Ram we too are having no doubt about the presence of both the accused persons and their participation in the crime in-question. With this background of evidence, the learned trial court found definite involvement of the accused persons in the crime in question and convicted them accordingly. 13. From the evidence adduced by eye-witnesses PW-2 Udai Dan and PW-9 Soma Ram we too are having no doubt about the presence of both the accused persons and their participation in the crime in-question. As per eye-witness PW-9 Soma Ram, at the first 'kulhari' blow was given by Bhura Ram on the back and neck of deceased Chhagan Lal. Subsequent thereto he gave 'kulhari' blow on his head. Knife blows were given by Ramesh Kumar on the back and neck of Chhagan Lal. 14. The cause of death is head injuries and all those injuries are assigned to accused Bhura Ram. It is pertinent to notice that as per the medical evidence four grievous injuries were found on the head of deceased and these repeated injuries on the vital parts of deceased are sufficient to arrive at the conclusion that accused Bhura Ram was certainly intending to kill Chhagan Lal. Besides the four head injuries as per the eye-witnesses certain other injuries on the back and neck of deceased were also given with 'kulhari' by accused Bhura Ram, as such, we do not find any wrong with the finding arrived at by the trial court relating to the accused Bhura Ram for committing the offence punishable under Section 302 I.P.C. No evidence is available on record to accept that the accused gave such blows in self-defence or on being provoked due to molestation of his wife. 15. Now coming to the role of accused Ramesh, suffice to mention here that even as per the prosecution witnesses no allegation is there against him for causing any head injury. As per PW-9 Soma Ram, Ramesh gave knife blows on the back and neck of Chhagan Lal. On neck there is only one injury (i.e. injury No. 8). The injury No. 8 may had been given by accused Bhura Ram too in view of the fact that the eye-witnesses quite definitely mentioned about giving injuries on neck by this accused also. This aspect acquires little more importance in view of the fact that as per Dr. Surendra Jain (PW-8), the injuries would have been received by only one weapon. This aspect acquires little more importance in view of the fact that as per Dr. Surendra Jain (PW-8), the injuries would have been received by only one weapon. Be that as it may, the deceased was having at least five incised wounds (injury No. 1, 2, 3, 10 and 11) on his back. These injuries, though, are not the cause of death but may had been given by accused Ramesh Kumar, whose presence is otherwise established as per the version given by the eye-witnesses. His presence at the spot is further established in view of the recovery made at his instance. Under such circumstance we are having no doubt about the presence of this accused at the place of occurrence and his participation in the crime in-question. The only question that requires consideration is about the availability of common intention for causing the offence. To avail the aid of Section 34 I.P.C., the pre-condition is of establishing common intention and participation of accused in commission of offence. The absence of any of the factor restricts application of this provision. To arrive at the conclusion of common intention, a pre-meeting of mind is to be seen and such meeting may occur at pre-happening stage and also at the moment of happening. True it is, Ramesh Kumar and Bhura Ram came to the deceased Chhagan Lal together, but merely on that count no definite finding can be given relating to their common intention. All the fatal injuries were given by accused Bhura to deceased Chhagan Lal. The allegation against this accused is of giving knife blows on the neck and back of deceased Chhagan Lal but so far as the neck injury is concerned, i.e. a single one and that is definitely assigned to accused Bhura Ram. The injuries on the back may be assigned to both the accused persons but, those are not the cause of death. No evidence is available to arrive at the conclusion that some pre-mediation or pre-meeting of mind was there or even some common intention arrived and accorded even at the time of incident. Accused Ramesh was armed with a knife and if there would have been common intention, then he would have given stab wound to the deceased, but admittedly no such wound was found on the person of deceased. Accused Ramesh was armed with a knife and if there would have been common intention, then he would have given stab wound to the deceased, but admittedly no such wound was found on the person of deceased. Looking to all these facts, we are of the view that this accused was not sharing any common intention with accused Bhura Ram, as such, his conviction under Section 302/34 I.P.C. is erroneous. This accused has certainly caused grievous incised injuries with a sharp and dangerous weapon, therefore, he is liable to be convicted for the offence punishable under Section 326 I.P.C.Accordingly, this appeal is accepted in-part. 16. The conviction and sentence of accused Bhura Ram deserves no interference and, therefore, the same is affirmed. The appeal is dismissed to the extent that relates to this accused. 17. The conviction of accused Ramesh Kumar for offence punishable under Section 302/34 I.P.C. is concerned, i.e. set aside, accordingly the sentence awarded is also set aside. However, he is convicted for the offence punishable under Section 326 I.P.C. He has already undergone sentence for a period of 18 months and presently he is availing suspension. Having considered all the circumstances, we deem it appropriate to sentence this accused for imprisonment relating to the period already undergone in prison. The bail-bonds and sureties furnished by this accused stands discharged.Appeal partly allowed. *******