Per Virender Singh, J. 1. At the very outset, it needs to be mentioned here that initially four accused namely (i) Subhash Chander, (ii) Des Raj, (iii) Surinder Pal alias Pappu & (iv) Smt. Asha Rani were put to trial in this case. Smt. Asha Rani stood discharged by the Trial Court at the time of considering the case for charge, whereas Subhash Chander stands acquitted vide impugned judgment. The State neither assailed the order of discharge earned by Smt. Asha Rani nor acquittal earned by Subhash Chander. This is how accused Des Raj and Surinder Pal are before us through the present two appeals viz, Criminal Appeal Nos. 13/2009 & 14/2009. Learned Trial Court has sent the entire record to this Court in terms of Section 374 Cr.P.C. (State Code) for confirmation of life sentence imposed upon both the accused. Hence Confirmation No. 04/2009. Accused-Des Raj is being represented by Mr. B. L. Kalgotra, Advocate, and accused Surinder Pal by Mr. V. B. Gupta, Advocate. Mr. H. A. Siddiqui, learned AAG, represents the State. 2. Deceased in this case is one Rajinder Kumar. Date of occurrence is of 25.06.1998 and place of occurrence is shop of the deceased situated at Village Hakal falling within the jurisdiction of Police Station, Satwari. Time of occurrence is about 8.30/9.00 pm. FIR lodger/ complainant is Narinder Kumar, the real brother of the deceased, who immediately after the occurrence lodged a verbal report (EXPW-NK) in concerned Police Station alleging therein that on the previous day i.e 24.06.1998, accused Des Raj had come to his shop and started using abusive language upon which he and his brother (Rajinder Kumar-deceased) prevented him which resulted into a scuffle between them resulting into intervention of the villagers. It is then alleged that while leaving the shop, accused Des Raj threatened that he would teach a lesson to him and his brother. It is further alleged that on 25.06.1998 at about 9.00 pm accused Des Raj along with accused Surinder Pal alias Pappu came to the shop of the complainant and his brother and told them that they had become `Badmash' upon which they (complainant and his deceased brother) said that `what does he mean by that'. On this, accused Des Raj gave a blow on the face of complainant Narinder Kumar and then took a `Kirch' from his dub and tried to assault him. On this, accused Des Raj gave a blow on the face of complainant Narinder Kumar and then took a `Kirch' from his dub and tried to assault him. It is then the case of the complainant that his deceased brother who was present on the shop tried to save the complainant upon which accused Des Raj made a murderous assault by Kirch on the deceased and attacked him repeatedly and that accused Surinder Pal kept catching hold of victim. Thereafter, the accused fled away from the scene of occurrence. The injured was immediately shifted to GMC hospital and on the way he got down to lodge the report. On the said verbal report, a case FIR No. 83/1998 came to be registered immediately under section 307/34 RPC. 3. The investigation of the case was assigned to PW-Ahmed Din, ASI who reached the hospital for recording the statement of the victim but was told by the concerned Doctor that he was not fit to make a statement. Ultimately, victim Rajinder Kumar succumbed to the injuries on the same night which resulted into conversion of main offence from 307 to 302 RPC. 4. During investigation, accused Des Raj was apprehended who made a disclosure statement with regard to the concealment of weapon of offence i.e Kirch which was recovered and sent to FSL for chemical analysis. 5. It also revealed during investigation that Smt. Asha (since discharged) was married to one Raj Kumar, real brother of the complainant and the deceased and that she was claiming a share in the shops for which the complainant and the deceased were not agreeing which resulted into filing of a civil suit against the complainant side and on account of this litigation, she (Smt. Asha Rani) had developed enmity against the complainant and the deceased and in order to remove Rajinder Kumar and the complainant Narinder Kumar, she took the help of accused Des Raj and Subhash Chander and her real brother Surinder Pal and all of them then had hatched a conspiracy to eliminate Narinder Kumar and deceased Rajinder Kumar. 6. 6. The Investigating Officer recorded the statements of certain witnesses from where it revealed that in fact, accused Des Raj, Surinder Pal and Subhash Chander had come to the shop of the complainant on the fateful day and that accused Surinder Pal and Subhash caught hold of deceased, whereas accused Des Raj inflicted injuries to him which resulted into his death. 7. On completion of the investigation, police came to the conclusion that accused Des Raj, Surinder Pal and Subash Chander were involved for the offence under section 302/34 RPC read with section 4/25 Arms Act whereas Smt. Asha Rani was involved for the offence under section 302/34 read with section 109 RPC. 8. After the submission of the challan, all the accused were charged accordingly. As stated above, Smt. Asha Rani stood discharged at the initial stage, whereas accused Subhash Chander stands acquitted after full-fledged trial. Both the accused namely Des Raj and Surinder Pal were convicted for the offence under section 302/34 RPC and sentenced to life imprisonment with a fine of Rs. 5000/-each, in default thereof, to further undergo imprisonment for two months, whereas accused Des Raj stands convicted under section 25 of Arms Act also with a sentence of three years and fine of Rs. 2000/- in default thereof, to further undergo imprisonment for 30 days. 9. The prosecution in support of its case has examined the following witnesses out of the total list of 18 witnesses. Those are (i) Narinder Kumar, (ii) Raghunath, (iii) Darshan Kumar, (iv) Pardeep Kumar, (v) Ravi Kumar, (vi) Mohan Lal, (vii) Gara Ram, (viii) Sanjay Kumar, (ix) Surjeet Singh, (x) HC. Bhagat, (xi) K.K.Raina, (xii) Dr. Anayat Ullah and (xiii) Ahmed Din the I.O of the case. 10. We do not feel the necessity of entering into a detailed discussion with regard to each and every piece of evidence so as to make our judgment weighty and sketchy unnecessarily and will be referring to material evidence only in order to rescan the prosecution case in its right perspective once again, the appeal being the continuation of trial. 11. It would be worthwhile to mention the injuries received by the deceased on his person. 11. It would be worthwhile to mention the injuries received by the deceased on his person. Those are, (a) A stitched wound 1.5 cm bearing 4 stitches over the mid ancillary line on the left side of the chest, 5 cm deep into the chest rupturing the left lung and left ventricle of the heart both edges sharp, (b) An incised punctured wound 1.5 cm on inner aspect of left arm below the mid axillary line and 4 cm deep into the tissues both edges sharp and (c) An Incised punctured wound 3 cm below the left iliac crust and 5 cm behind the anterior superior iliac spine 2.5 cm x X= cm x 6 cm deep into the pelvic cavity rupturing the gut. 12. PW-Narinder Kumar, who happens to be the real brother of the deceased-Rajinder Kumar when stepped into witness box deposed about the scuffle which ensued at their shop, a day earlier to the main occurrence and then he depicts the main occurrence ensued at their shop in which accused-Des Raj gave a blow on his face and then took out a Kirch (weapon of offence) from his pant and tried to save himself. He came out from the shop and called his brothers Raghunath and Darshan Kumar whereas Rajinder Kumar remained at the shop when accused Surinder Pal and Subhash caught hold of him by one hand each and accused Des Raj gave first injury with Kirch on his heart (in common parlance `Dil Par Mari'). He describes the other two injuries also received by Rajinder Kumar deceased. He also talks of Asha Rani in whose house all the accused had hatched a conspiracy and she was instigating them to finish the victim (Rajinder Kumar). He further states that immediately after the occurrence, Rajinder Kumar was lifted to hospital and on the way he alighted at Satwari and lodged a verbal report with the Police. This witness depicts the motive also in the bosom of Asha Rani, who had married to his real brother Raj Kumar as she was claiming her share from them which was denied by them and this resulted into this very occurrence. 13. This witness depicts the motive also in the bosom of Asha Rani, who had married to his real brother Raj Kumar as she was claiming her share from them which was denied by them and this resulted into this very occurrence. 13. No doubt, this witness has given a little bit twist to the present case in his statement on oath before the Trial Court, inasmuch as, he brought the name of Subhash Chander and Asha Rani-accused also by attributing them specific part to the effect that Subhash Chander had caught hold of deceased-Rajinder Kumar from one arm and Surinder Pal his co-accused from another arm and Asha Rani had been instigating them to finish the deceased, upon which Mr. Kalgotra, learned counsel for accused-Des Raj, made an attempt to turn the tables stating that this improvement made during the trial knocks at the bottom of the case so as to dislodge the prosecution case in its entirety and that according to the learned counsel this witness has rather gone to the extent of changing the main situs of the occurrence from the one initially set up by the prosecution and went to state that he (Narinder Kumar) left the shop and went to nearby shop owned by them and then raised the alarm attracting his two brothers namely Raghunath and Darshan Kumar and then developed a story of taking the deceased-Rajinder Kumar to a distance of about 40/50 feet near the electric pole from where the blood stained earth is actually lifted by the Investigating Officer, which aspect undoubtedly shall be kept in our mind to appreciate the prosecution case in its right perspective. 14. Mr. Kalgotra would submit that this amounts to changing the entire scenario creating doubts with regard to the manner in which the occurrence had taken place. According to the learned counsel, prosecution has not made any attempt to make its stand clear vis-a-vis the actual occurrence, therefore it cannot be said with certainty that accused-Des Raj, in fact, was involved in this case or not. 15. According to the learned counsel, prosecution has not made any attempt to make its stand clear vis-a-vis the actual occurrence, therefore it cannot be said with certainty that accused-Des Raj, in fact, was involved in this case or not. 15. We have the evidence of Pw-Raghunath and Darshan Kumar also, the other two real brothers of the deceased, who also happens to be the eye witnesses to the occurrence as they reached the shop from their house after hearing the noise and saw Surinder Pal-accused, and Subhash Chander catching hold of the victim and Des Raj attacking him with Kirch at different parts of the body. We do find certain discrepancies in the statements of these two witnesses to the occurrence who compared with the statement of Pw-Narinder Kumar, these three witnesses being back bone of the prosecution case and have also considered the attack launched by Mr. Kalgotra on the prosecution case in his attempt to dislodge the prosecution case in totality, but the main aspect of the case is that the occurrence had taken place in and around the shop of the deceased and Narinder Kumar where they were sitting at about 8.30 p.m. when the accused reached the shop. The house of the deceased side happens to be near their shops only from where Raghunath and Darshan reached the spot. In these circumstances, presence of Narinder Kumar, Raghunath and Darshan cannot be doubted at all. The discrepancies which have occurred in the statements of Raghunath and Darshan are not of that character which is going to uproot the prosecution case from its foundation. 16. We do find some substance in the arguments of Mr. Kalgotra vis-a-vis the situs of occurrence and have also noticed the fact that when the Investigating Officer stepped into the witness box, he stated that he had lifted some blood near the Pole and the fact that no blood is shown to have been lifted from the shop where deceased-Rajinder Kumar was sitting, but that fact, in our considered view, is not going to dent the prosecution case adversely so as to disbelieve it in its totality for extending benefit of doubt to accused-Des Raj. In fact, it is one place only where the occurrence has taken place and what appears to us was that when the deceased was given injuries at his shop, there is every possibility that the blood might not have fallen on the floor/ground and then the accused and the deceased while scuffling covered some distance towards electric Pole where the deceased ultimately fell on the ground and this is the place from where he was lifted and taken to the hospital for immediate medical aid. This appears to be the reason that the blood was lifted by the Investigating officer from this very place only and not from the shop of the deceased. Mr. Kalgotra, in his wisdom, no doubt, made an attempt to create doubts in the minds of the Court with regard to the manner in which the occurrence had taken place but when the prosecution case is appreciated in its totality, the arguments advanced by Mr. Kalgotra fall on the ground being not acceptable to us. 17. We are conscious of the fact that Pw-Kewal Singh, who also happens to be at the scene of occurrence, has been given up by the prosecution and produced by the accused and that we have also noticed another fact from the suggestions made to the main witness Narinder Kumar, the first informant, that he (Narinder Kumar) in fact wanted to injure Des Raj with Kirch but incidentally it landed on the person of his real brother-deceased herein. Mr. Mr. Kalgotra during the course of arguments set up altogether a new case before us stating that although the accused had taken a plea in his suggestions that Narinder Kumar wanted to kill Des Raj-accused but incidentally Kirch landed on the deceased and that the accused has come out with a case of total denial when examined under Section 342 Cr.P.C., still from the evidence on record, he could develop that the accused Des Raj had a right of private defence in this case and the Court, if at all, finds that Des Raj is the person who caused injury on the person of deceased-Rajinder Kumar, those were caused in exercise of his right of private defence for the reason that during scuffle when Raghunath and Darshan had reached there, they all made an attempt to cause injuries on his person (Des Raj) and during this scuffle all these persons covered a distance about 50-60 feet upto the electric Pole where the deceased had fallen on the ground. Dwelling upon his arguments, Mr. Kalgotra submitted that it is bounden duty of the prosecution to prove its case beyond the shadow of all reasonable doubts whereas the accused can put his defence even by probabilities. In this regard, he lends support from a judgment of Apex Court rendered in case titled `Harbhajan Singh v. State of Punjab & another reported as ` AIR 1966 SC 97 '. 18. On the plea of private defence, Mr. Kalgotra relies upon a case titled `V. Subramani and another v. State of T.N.' reported as ` (2005) 10 SCC 358 '. 19. We have appreciated even this limb of arguments also advanced by Mr. Kalgotra in support of his case but find no force in it. No doubt, the accused is changing his stand when one looks at the evidence on record. When the incriminating evidence was put to him in terms of Section 342 Cr.P.C. after closure of the prosecution evidence, he pleaded his case of total denial and in support of his defence produced Pw-Kewal Singh, who was earlier given up by the prosecution having been won over, he says something else and supports the suggestions put forth to Pw-Narinder Kumar to a great extent. Even if one gives margin to all these aspects and considers the arguments of Mr. Even if one gives margin to all these aspects and considers the arguments of Mr. Kalgotra to appreciate as to whether accused-Des Raj could develop his case of exercise of right of private defence from the prosecution evidence from the fact that the deceased had fallen near the electric pole which is the only attack launched by Mr. Kalgotra, we can not even remotely take it to be a case to conclude that three injuries received by deceased-Rajinder Kumar at the hands of accused-Des Raj have been caused in the exercise of right of his private defence. 20. Viewed thus, the arguments put forth by Mr. Kalgotra do not appeal to us and merit rejection. To be fair to Mr. Kalgotra, the judgments cited by him, thus, would not be applicable to the facts of the present case at all. 21. After churning the entire evidence in its right perspective, what we find is that the prosecution has been able to prove its case beyond any shadow of doubt against accused-Des Raj at least and he has no escape from the charge (s) for which he already stands convicted and sentenced. 22. However, we find the prosecution case on a very slippery footing so far as involvement of accused-Surinder Pal @ Pappu in the present occurrence is concerned, for which Mr. Gupta has also been able to put forth certain basic flaws in it. In our considered view, importing Subhash Chander-accused along with Surinder Pal appears to be the fundamental flaw which creates thick clouds of doubt in the minds of the Court vis-a-vis participation of Surinder Pal also. Not only that, the prosecution witnesses have gone to the extent of attributing a specific overt act to Subhash Chander by catching hold deceased-Rajinder Kumar from one hand and the second hand by Surinder Pal accused whereas this was never the case set up by Narinder Kumar in his initial statement (EXPW-NK) which is foundation of lodging of the FIR. Narinder Kumar, and for that matter, his two real brothers namely Raghunath and Darshan when stepped into the witness box, categorically stated that accused-Des Raj, Surinder Pal @ Pappu and Subhash Chander made the deceased helpless, thereby facilitating accused Des Raj to inflict three injuries on his person. This is altogether a new story put forth before the Court given complete deviation from the original one. This is altogether a new story put forth before the Court given complete deviation from the original one. The Court cannot ignore this material weakness crept in the prosecution case so as to see it in with a pinch of salt. This would certainly create doubt in our minds qua involvement of Surinder Pal @ Pappu-accused. 23. We have appreciated his case, yet from another angle so as to see, whether it fits within the mischief of common intention so as to hold him guilty with the aid of Section 34 RPC. Prosecution case put forth is that Des Raj and Surinder Pal came at the shop of Narinder Kumar and the deceased and started telling him (Narinder Kumar) that he had become Badmash upon which he (Narinder Kumar) told them as to what `Badmash' meant to them upon which accused-Des Raj gave a blow on his face and then took out a Kirch from his pant in order to assault him. From this piece of evidence on record, it can be safely concluded that accused-Surinder Pal was not aware of the fact, whether accused-Des Raj was carrying a Kirch in his pant or not. Therefore, it cannot be said with certainty that he had shared common intention with his co-accused-Des Raj viz to commit murder of Rajinder Kumar-deceased. He might have come along with Des Raj to threaten Pw-Narinder Kumar without there being any common intention in his bosom to even to assault Rajinder Kumar, who remained at the shop itself when Narinder Kumar after receipt of blow on his face ran away and went to the other shop and called his two brothers Raghunath and Darshan. Keeping all these material aspects into consideration especially the fact that the prosecution has made an attempt to give a specific role of catching hold of him by an arm along with Subhash Chander which is absolutely a new version, demolishes the substratum of the prosecution case vis-a-vis accused Surinder Pal at least. The prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of mind of both the assailants to commit the offence, be it pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the Crime. In the case on hand, the said evidence is not available. The prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of mind of both the assailants to commit the offence, be it pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the Crime. In the case on hand, the said evidence is not available. Therefore, it is not safe to hold Surinder Pal accused as guilty. 24. The matter does not rest here. Subhash Chander, who has played the same role as attributed to Surinder Pal, has earned clear acquittal vide impugned judgment. Admittedly, the State has not filed any appeal against the acquittal. The case of Surinder Pal, thus, is at par with Subhash Chander. This also is a good ground for dislodging the prosecution case qua him. Involvement of Asha Rani in the prosecution case during the course of investigation and thereafter her discharge recorded by the Trial Court which ultimately not assailed by the State is also a ground to see the prosecution case with an eye of suspicion so far as involvement of Surinder Pal @ Pappu is concerned. Taking all these factors collectively, an irresistible conclusion which can possibly be drawn in the case on hand is that the prosecution has miserably failed to prove its case beyond any shadow of doubt qua Surinder Pal @ Pappu. He, thus, deserves, acquittal. 25. Admittedly, Surinder Pal-accused is on bail during the pendency of the instant appeal and Des Raj is undergoing his life sentence. 26. As a sequel to the aforesaid discussion, the net result now surfaces is that Criminal Appeal No. 14/2009 filed by accused-Des Raj merits dismissal whereas Criminal Appeal No. 13/2009 filed by Surinder Pal @ Pappu deserves to be allowed. Ordered accordingly. 27. Surinder Pal-accused is discharged of his bail bond(s) furnished by him during the pendency of the instant appeal. Accused-Des Raj shall serve the sentence already slapped upon him by the Trial Court unless disturbed. 28. Both the Appeals along with all connected CMAs stand disposed of in these terms. 29. Confirmation No. 04/2009 also stands disposed of accordingly. 30. The Trial Court be informed about the outcome of the present case by the Registry. Original record be remitted back to the Court concerned.