JUDGMENT Hon’ble Om Prakash-VII, J.—This criminal appeal has been preferred by appellants Sipttar and Ragister both sons of Sri Kaptan residents of village Murhsaina, P.S. Hazratpur, District Budaun against the judgment and order dated 27th January, 1986 passed by Special Judge, Budaun in Sessions Trial No. 143 of 1984 (State v. Sipttar and another) under Section 302 IPC, P.S. Hazratpur whereby the trial Court has convicted and sentenced the appellant Ragister under Section 302 IPC for life imprisonment and the appellant Sipttar under Section 302 read with 34 IPC for life imprisonment. 2. The prosecution case in nutshell is that on 13.2.1984, informant Sohanpal (P.W.1) moved a written report Ex.Ka.1 at Police Station Hazratpur, District Budaun mentioning therein that he is the resident of village Murhsaina, P.S. Hazratpur, District Budaun. The accused-appellants Sipttar and Ragister both sons of Sri Kaptan are also the residents of same village, but are residing in village Dhana Gautiya, P.S. Jaitipur, District Shahjahanpur because they have inherited the property of their in-laws. Informant’s son Kunwar Singh (deceased) had sown the crops on the land belonging to appellant Sipttar of village Dhana Gautiya on the basis of Batai (1/4th share) last year, but the accused-appellants did not give the due share of Kunwar Singh whereupon Kunwar Singh started working in the fields alongwith the informant at his village. Both the accused-appellants came to village Murhsaina at about 5:45 p.m. on the day of incident and reached at the field of the informant where Kunwar Singh was also present. Witnesses Chhabbi, Ram Nath, Nem Singh and Babu Ram were also present there. The accused-appellants before the witnesses asked to Kunwar Singh to work at their fields with them because in absence of Kunwar Singh, the cultivation of Sipptar was being adversely affected. On this, Kunwar Singh told that he will do his own agricultural work because there is no any benefit in doing the work at the fields of accused-appellants. It was also told by the deceased Kunwar Singh that accused-appellants had not given his share and whatever share had been given by the accused-appellants to him that had been taken away by the wife of the accused-appellant Sipttar. It was also told by the deceased Kunwar Singh that now he is married and he has obligation of his family on his shoulder. It was also told by the deceased Kunwar Singh that now he is married and he has obligation of his family on his shoulder. Hearing this, appellant Sipttar in a fit of rage abused Kunwar Singh and said that he is defaming his wife in-front of him. Accused Sipttar armed with lathi and accused Ragister armed with kanta caused blow upon the deceased on his neck and other parts of the body. While they were beating Kunwar Singh, the weapon used by them also came in contact with each other. Due to injuries received by Kunwar Singh, he became unconscious. As soon as the witnesses present there could understand the whole episode, accused-appellants fled away from the scene of incident. 3. On the basis of written report Ex.Ka.1, chick First Information Report Ex.Ka.11 was prepared at police station concerned on 13.2.1984 at 11:15 p.m. under Sections 308, 326, 324 IPC at Crime No. 23 of 1984. G.D. Entry of the information is Ex.Ka.12. 4. The investigating officer inspected the place of occurrence and took the samples of blood stained earth and plain earth from the spot and kept it in sealed cover and also prepared fard, which is Ex.Ka.9 in the lower Court record. 5. Injured Kunwar Singh had been medically examined on 14.2.1984 at 5:30 a.m. at P.H.C., Dataganj, Budaun brought by local police. Injury report prepared at P.H.C. concerned is Ex.Ka.13 on record. Dr. S.R. Rayal (P.W.6) had examined the injuries of Kunwar Singh, which were as follows: (i) Incised wound 7 cm. x 1 cm. x skin deep on joint of neck obliquely placed 2.5 cm. below chin. Margins of wound are clean cut and no tailing is there. (ii) Incised wound 4 cm. x 1 cm. x muscle deep on outer part of left side leg obliquely placed 2 cm. below left jaw angle. No tailing is there. (iii) Incised wound 2 cm. x 0.5 cm. x skin deep on outer part left side neck 1 cm. Below and paralled to injury No. 2. No tailing is there. (iv) Incised wound 3 cm. X 0.5 cm. X bone deep on right side top of head 12 cm. above right ear. Margins of wound are clean cut. Dr. S.R. Rayal (P.W.6) was of the opinion that injury No. 2 is serious in nature and rest are simple in nature. No tailing is there. (iv) Incised wound 3 cm. X 0.5 cm. X bone deep on right side top of head 12 cm. above right ear. Margins of wound are clean cut. Dr. S.R. Rayal (P.W.6) was of the opinion that injury No. 2 is serious in nature and rest are simple in nature. Injuries were caused with sharp edged weapon and the duration of injuries is about half day old. Since the condition of injured was very serious, he was immediately referred to District Hospital, Budaun for further treatment, where he succumbed to his injuries in the Hospital on 15.2.1984. 6. On receiving the death report from the District Hospital, police prepared the inquest report Ex.Ka.2 and also other police papers viz. Photo lash Ex.Ka.3, Challan Ex.Ka.4, letter to R.I. Of Police and C.M.O. Ex.Ka.5 and Ex.Ka.6 respectively. The dead body was sealed and its sample Ex.Ka.7 was taken and thereafter dead body was sent for postmortem through police constables. Since the deceased died during treatment in the hospital, therefore, postmortem report Ex.Ka.14 has been prepared after conducting the postmortem on 15.2.1984 at 2:50 p.m. The dead body of the deceased Kunwar Singh had been brought by Constable 387 Balwant Singh and Constable 339 Bhoop Singh. Deceased was aged about 28 years old. Death is said to have been occurred about 7 - 8 hours prior to the postmortem. On external examination, doctor has found that deceased was of average body built and rigor mortis was present in the upper extremity and postmortem staining was present on the buttock. Deceased was identified by the Constables who have brought the dead body. 7. The autopsy on the dead body of the deceased Kunwar Singh was done by Dr. R.M.S. Srivastava (P.W.7) on 15.2.1984 at 2:50 p.m. He found the following ante-mortem injuries on the persons of the deceased : (I) Stitched wound on the left side of neck (upper) extending horizontally obliquely approved midline of neck on dissection. No major vessels out, but muscles were cut size 1 -11 cm. x .25 cm. (II) Abrasion 1- 3 cm. x .25 cm. on left side of neck 1 cm. below injury No. 1. (III) Incised wound on mid of skull 3 cm. x .5 cm. x bone deep. Margins sharp. On dissection - depressed right parietal bone and laceration of brain present. x .25 cm. (II) Abrasion 1- 3 cm. x .25 cm. on left side of neck 1 cm. below injury No. 1. (III) Incised wound on mid of skull 3 cm. x .5 cm. x bone deep. Margins sharp. On dissection - depressed right parietal bone and laceration of brain present. Pupil in right and left dilated present and fixed, right pupil was more dilated than the left. Dr. R.M.S. Srivastava (P.W.7) prepared the Postmortem report Ex.Ka.14. The doctor was of the opinion that the death was caused due to shock of head injury. 8. The clothes present on the body of the deceased were taken by the doctor in possession and were handed over in a sealed cover at the concerned police station. Clotted blood was found present under the neath of the injury. Muscles were cut over thyroid. As per medical evidence, deceased died due to ante mortem injuries. 9. On receiving the inquest report, postmortem report and other police papers, case was converted into the offence under Section 304 IPC. The investigating officer recorded the statements of the witnesses and after completing the investigation, submitted charge-sheet against the present appellants under Sections 304, 324, 326, 323, 504, 506 IPC. 10. Learned Magistrate took the cognizance and on fulfilling the necessary requirements under Section 207 Cr.P.C., committed the case before the Sessions Judge for trial. Accused appeared before the trial Court and charge under Section 302 IPC was framed against accused Ragister and charge under Section 302 read with Section 34 IPC was framed against accused Sipttar. Accused persons pleaded not guilty and claimed to be tried. 11. Prosecution in support of its case examined P.W.1 Sohanpal (informant), who is the father of the deceased Kunwar Singh, P.W.2 Babu Ram, P.W.3 S.I. Suraj Singh, P.W.4 Radhey Shyam Pandey, P.W.5 Constable Horam Singh, P.W.6 Dr.S.R. Rayal and P.W.7 Dr. R.M.S. Srivastava. After the prosecution evidence, statements of the accused-appellants were recorded under Section 313 Cr.P.C. 12. Accused Ragister in his defence has stated that he had no concern with the said agricultural land. He denied the prosecution case and showed unawareness about the First Information Report and police papers, inquest report, postmortem report and also the charge-sheet submitted by the investigating officer. This accused has specifically stated that he used to go to recover the money advanced by his brother, therefore, he has been falsely implicated in this case. He denied the prosecution case and showed unawareness about the First Information Report and police papers, inquest report, postmortem report and also the charge-sheet submitted by the investigating officer. This accused has specifically stated that he used to go to recover the money advanced by his brother, therefore, he has been falsely implicated in this case. Daughter of the informant Sohan Pal (P.W.1) is married with the nephew of the witness Babu Ram (P.W.2). Due to this reason, they have deposed against him. It has also been stated that brother of this appellant has gone from his village to his in-laws’ house and he lived in his village. Sohanpal wants to oust him, therefore, he has been falsely implicated in this case. 13. Accused Sipttar in his defence has denied the fact mentioned in the First Information Report and has also shown his unawareness about the police papers and investigation done by the police and has also shown unawareness about the inquest report and postmortem report. This accused has specifically stated that he has been implicated in this case due to animosity. Sub Inspector Radhey Shyam Pandey was against him, therefore, he implicated Sipttar in this case. This accused Sipttar has also stated that Kunwar Singh was in his employment. He (accused Sipttar) was living in his in-laws’ house because his father-in-law left no other heir except his wife. Kunwar Singh was poor person and was in need of money, therefore, he gave him employment. When the marriage of Kunwar Singh was settled, Kunwar Singh demanded some money from him and requested the accused to get the money adjusted from his employment and on this assurance money was given to Kunwar Singh, who resiled subsequently and neither paid the money back nor served with the accused. However, he assured to make payment as soon as the Kharif crop is yielded. When this accused sent his brother for recovery of money from Kunwar Singh, he gave excuses on one pretext or the other. Accused Sipttar further stated that on the date of occurrence, he had gone to village Murhsaina alone. Kunwar Singh told him that since he had got married, he was unable to do work there. Kunwar Singh suggested him that whatever work he used to do on his fields can be got done by his brother (brother of Sripattar). Accused Sipttar further stated that on the date of occurrence, he had gone to village Murhsaina alone. Kunwar Singh told him that since he had got married, he was unable to do work there. Kunwar Singh suggested him that whatever work he used to do on his fields can be got done by his brother (brother of Sripattar). Kunwar Singh also told him that his wife (wife of Sipttar) used to take all whatever was given to him after persuading him. On this, accused Sipttar asked him to talk sensibly, on which Kunwar Singh again repeated the same words, which caused annoyance to Sipttar and in a fit of rage he gave blow of Takori on Kunwar Singh which he had with him in the hand. A few persons came on the spot and intervened. This accused asserted that quarrel took place between him and Kunwar Singh and his brother was not at all present there. No evidence has been adduced by the accused-persons in their defence. 14. We have heard Sri Deepak Kumar Srivastava, learned counsel for the appellants, learned counsel for the complainant as well as Smt. Raj Laxmi Sinha, learned A.G.A. for the State and perused the entire record carefully. Learned counsel for the appellants have submitted that there was no motive to commit the present offence by the appellants. Prosecution has not been able to establish the date, time and place of occurrence. Prosecution case is not supported with the evidence of any independent witness. All the witnesses named in the First Information Report have not been examined. Medical evidence do not support the prosecution case. Deceased was servant of the appellants. He had taken some money in advance in connection with his marriage. When the appellants asked him to return the same, he did not respond. The present offence has been committed by some other person at another place. Due to enmity, mentioned-above, the appellants have been falsely implicated in the present case. Offences under Sections 323, 324 IPC are only attracted and ingredients to constitute an offence under Section 302 IPC is totally lacking. There is no any role assigned to the appellant Sipttar. Conviction held by the trial Court is against the evidence. Prosecution has also not established the ingredients of Section 34 IPC. Offences under Sections 323, 324 IPC are only attracted and ingredients to constitute an offence under Section 302 IPC is totally lacking. There is no any role assigned to the appellant Sipttar. Conviction held by the trial Court is against the evidence. Prosecution has also not established the ingredients of Section 34 IPC. Thus, referring the entire facts and circumstances of the case and evidence available on record, prayer for allowing the Appeal and acquitting the appellants has been made. 15. Learned A.G.A. as well as learned counsel for the complainant have argued that appellants had gone on the spot in furtherance of their common intention in their premeditated plan. They were armed with lathi and kanta. Therefore, on the basis of attending circumstances arise on the spot, it shall be presumed that they have committed the present offence in furtherance of their common intention. The prosecution has been able to establish the guilt of the appellants beyond reasonable doubt. Medical evidence fully supports the prosecution case. It is not a case of sudden grave and provocation, therefore, benefit cannot be extended in favour of the appellants. If no injury was found/caused by lathi, then also involvement of the appellant Sipttar in the present crime is established from other evidence adduced by prosecution. Laches done by the investigating officer have no importance because there are ocular eye account witnesses and they have supported the prosecution case. Suggestions given to the prosecution witnesses by the defence have not been established by any evidence. Statement of the co-accused Sipttar in the form of confession of the guilt is only to save the other appellant. It is not supported with any evidence nor in line of the prosecution case. Non-production of all the witnesses cited in the First Information Report will not affect the credibility of the prosecution witnesses, who have supported the prosecution case. Minor variations or discrepancies are not of such nature which effect the credibility of the ocular evidence. Thus, prayer has been made that Appeal be dismissed having no merits. 16. In the present matter, as is clear from the record, offence is said to have been committed on 13.2.1984 at 5:45 p.m. First information report was lodged on 13.2.1984 at 21:15 hours. Distance between the place of occurrence and police station is about 3 kms. Informant Sohan Pal is the father of the deceased. 16. In the present matter, as is clear from the record, offence is said to have been committed on 13.2.1984 at 5:45 p.m. First information report was lodged on 13.2.1984 at 21:15 hours. Distance between the place of occurrence and police station is about 3 kms. Informant Sohan Pal is the father of the deceased. Accused Sipttar is assigned with lathi and accused Register is assigned with kanta. Initially case was registered under Sections 308, 326, 324 IPC, but on receiving the death report and postmortem report, it has been converted into offence under Section 304 IPC. During trial, charge under Section 302 IPC has been framed against the appellants. 17. In the First Information Report, in the category of witnesses, informant Sohan Pal, Chhabbi, Ram Nath, Name Singh and Babu Ram have been shown as eyewitnesses. Prosecution has examined before the Court P.W.1 Sohan Pal and P.W.2 Babu Ram as witnesses of fact. Injury report Ex.Ka.13 prepared on 14.2.1984 indicates that injuries found on the body of the deceased were incised wounds and at the time of examination, injured was unconscious. Injury No. 2 was serious in nature and other injuries were simple in nature. In the opinion of doctor, all the injuries have been caused by sharp edged weapon meaning thereby no injury found on the body of the injured/deceased was caused by lathi. Prosecution case from the very beginning is that lathi was used, but it strike with the kanta, therefore no injury could be caused with the use of the lathi. 18. Thus, in the backdrop of above facts, it is to be seen - Whether the witnesses examined before the trial Court were actually eye account witnesses and their evidence are not shaken being they are relative/interested witnesses? Whether the participation of the appellants in commission of present offence is established beyond reasonable doubt? What is the effect/impact of the plea/stand taken by the appellant Sipttar in his statement recorded under Section 313 Cr.P.C.? Whether offences said to be proved against the appellants are made out against them or not? 19. In this case, offence is said to have been committed in the field of informant Sohan Pal situated at village Murhsaina, District Budaun. Site plan prepared by the investigating officer Ex.Ka.8 indicates that deceased was beaten by the accused at place ‘A’ shown in the site plan. 19. In this case, offence is said to have been committed in the field of informant Sohan Pal situated at village Murhsaina, District Budaun. Site plan prepared by the investigating officer Ex.Ka.8 indicates that deceased was beaten by the accused at place ‘A’ shown in the site plan. Informant and his sons were present at place ‘B’, which is situated in the same field. There are drainage towards northern side and western side of the field. The informant, deceased and other witnesses were irrigating the field on the date of incident. In the First Information Report also, the place of occurrence has been shown as the field of the informant Sohan Pal where he alongwith the deceased and his other sons was busy in irrigating the field. P.W.1 Sohan Pal in the statement deposed before the trial Court has stated the same place of occurrence. P.W.2 Babu Ram has also stated the same place of occurrence although there are some variations in his statement regarding topographical situation of the place of occurrence. The investigating officer, who had prepared the site plan, has also taken the blood stained earth from the same place of occurrence. On the basis of above details, when the accused persons have admitted that they had gone to village Murhsaina and some conversation as has been mentioned in the First Information Report, took place between them, it is established that present occurrence has taken place in the field of informant Sohan Pal situated at village Murhsaina, P.S. Hazratpur, District Budaun. 20. So far as the time of occurrence is concerned, offence is said to have been committed at 5:45 p.m. First information report was lodged on the same day i.e. 13.2.1984 at 21:15 hours. Deceased initially was medically examined at P.H.C., Dataganj on 14.2.1984 at 5:30 a.m. Injured/deceased was referred to District Hospital where he succumbed to his injuries and postmortem was conducted on 15.2.1984 at 2:50 p.m. Time of death has been mentioned in the postmortem report as about 7 to 8 hours before the postmortem. 21. For fixing the time of occurrence, this Court proceeds to examine the injuries found on the body of the deceased. As per statement of Dr. 21. For fixing the time of occurrence, this Court proceeds to examine the injuries found on the body of the deceased. As per statement of Dr. R.M.S. Srivastava (P.W.7), who has conducted the postmortem, three injuries were found, first stitched wound on the left side of the neck, second abrasion on the left side of the neck and third incised wound on the middle portion of the head. Injury No. 3 was bone deep in the dimension of 3 cm. x 0.5 cm. Deceased died due to shock and hemorrhage as a result of ante mortem injuries. The injury report Ex.Ka.13 prepared at P.H.C. Dataganj indicates four incised wounds. But on comparison of the injuries found on the body of the deceased during postmortem and injuries mentioned in the injury report Ex.Ka.13, it is clear that injuries are same. Since deceased was initially medically examined at P.H.C., Dataganj, therefore, doctor attending the injured has stitched the wounds. There is no any difference in the injuries mentioned in the injury report and in the postmortem report. 22. Defence has also not in the cross-examination put any such type of question that injuries found on the body of the deceased could not be caused/occurred at the time mentioned in the First Information Report. On question in the cross-examination, P.W.6 Dr. S.R. Rayal has only stated that there may be difference/variation of 3 to 4 hours either side in the timing of the injuries. This answer made by P.W.6 Dr. S.R. Rayal does not exclude the possibility that injuries found on the body of the deceased and shown in the injury report could not be caused at the time mentioned in the First Information Report. Prosecution case is that injuries have been caused by Kanta, which is sharp edged weapon and injuries shown in the injury report are also incised wounds. Offence is said to have been caused on 13.2.1984 at 5:45 p.m. Deceased died on the next day during treatment. Postmortem is done on 15.2.1984. Therefore, on the basis of time of death shown in the postmortem report, it can easily be inferred that present offence has been occurred on 13.2.1984 at about 5:45 p.m. 23. Thus, prosecution has been able to establish the time of the occurrence. Medical evidence also fully supports the prosecution case. 24. Postmortem is done on 15.2.1984. Therefore, on the basis of time of death shown in the postmortem report, it can easily be inferred that present offence has been occurred on 13.2.1984 at about 5:45 p.m. 23. Thus, prosecution has been able to establish the time of the occurrence. Medical evidence also fully supports the prosecution case. 24. Now Court proceeds to examine the presence of said eye account witnesses on the spot at the time of occurrence. P.W.1 Sohan Pal is the father of the deceased. Offence is said to have been committed at 5:45 p.m. It was the month of February. As per the prosecution version, the informant, the deceased and other sons of the informant were busy in irrigating their fields at the place of occurrence, which is situated in village Murhsaina. The arguments of learned counsel for the defence that witnesses examined as eye account witnesses were not present on the spot at the time of occurrence and they are not an eye account witnesses. Learned counsel has referred the variations occurred in the statement of this witness and the statement of P.W.2 Babu Ram referring the topographical details mentioned in the site plan. 25. Informant, deceased and informant’s other sons were said to be present in the field at the time of occurrence. Accused came there. P.W.1 Sohan Pal has also stated the same thing. Deceased, informant and other witnesses excluding P.W.2 Babu Ram and Nem Singh were busy in irrigating the field. This fact has been corroborated by the evidence of P.W.2 Babu Ram, who had gone on the spot for requesting to take water for irrigating his field. It was the month of February and the investigating officer has also found the blood stained earth on the spot. There is a tubewell situated in the field of Nem Singh. Whatever details have been stated by P.W.1 Sohan Pal and P.W.2 Babu Ram regarding tubewell and the field to which the informant and his sons were irrigating is natural one. Villagers in the month of February used to irrigate their field and presence of P.W.1 the informant on the spot at the time of occurrence is most natural and probable one. 26. P.W.2 Babu Ram may be categorized as chance witness, but the purpose for which he had gone on the spot is also a probable story. Villagers in the month of February used to irrigate their field and presence of P.W.1 the informant on the spot at the time of occurrence is most natural and probable one. 26. P.W.2 Babu Ram may be categorized as chance witness, but the purpose for which he had gone on the spot is also a probable story. Some suggestions regarding relationship between the informant P.W.1 and P.W.2 Babu Ram have been put by the defence, but both these witnesses have denied the relationship between them. Defence has also not adduced cogent or reliable evidence to establish that both these witnesses are relative. If for the sake of arguments, defence version that both the witnesses are relative be taken into consideration, then also the statement of P.W.2 Babu Ram only on this basis cannot be discarded. P.W. 2 Babu Ram is also resident of the same village. Field belonging to this witness is also situated in the same vicinity. He used to irrigate his field from the tubewell of Nem Singh, from which the informant was irrigating his field. Some variations have come in the statement of these two witnesses i.e. whether P.W.1 Sohan Pal was moving the rahat or digging the field with khurpi, regarding the place of standing of the witnesses, but these variations have come during cross-examination. It is not possible for any person to give exact details of standing/moving position during any incident specially when the assailants are causing injuries to the informant side. In the present case, P.W.1 Sohan Pal and P.W.2 Babu Ram have categorically stated that prosecution side was busy in irrigating their field. The tubewell and the field are just adjacent to each other. Variations of few paces in standing position of witnesses do not shake the testimony of these witnesses on material point. Thus, the trial Court has rightly believed the presence of these witnesses on the spot as natural witnesses. This Court does not find any error in the trial Court’s finding on this point. It is also not material in this case whether the said tubewell belongs to the informant or Nem Singh. As in the statement recorded under Section 313 Cr.P.C. accused Sipttar himself admitted that he has gone to the field of the informant on the date of occurrence. 27. It is also not material in this case whether the said tubewell belongs to the informant or Nem Singh. As in the statement recorded under Section 313 Cr.P.C. accused Sipttar himself admitted that he has gone to the field of the informant on the date of occurrence. 27. On the basis of above discussion, the date, time and place of occurrence have been found established by the prosecution beyond reasonable doubt. Medical evidence fully supports the prosecution case. Presence of P.W.1 Sohan Pal and P.W.2 Babu Ram is natural and probable and they are an eye account witnesses. Non-examination of the other witnesses mentioned in the First Information Report do not place the statement of eye account witnesses examined in the matter in the category of untrustworthy, then it is to be seen what role was played by which of the accused in commission of the present offence and motive stated by the prosecution was sufficient to commit the present offence. 28. In the First Information Report, it is mentioned that both the accused had come on the spot and asked to Kunwar Singh (deceased) to accompany them to do their agricultural work. When Kunwar Singh refused to do so, some discussion/conversation took place between them. Accused-appellant Sipttar told that the deceased is defaming his wife. Thereafter, accused Sipttar armed with lathi and accused Ragister armed with kanta caused blow upon the deceased. 29. P.W.1 Sohan Pal has deposed before the Court that when deceased Kunwar Singh denied to go with the accused-persons, accused Sipptar abused the deceased and caused lathi blow. Accused Ragister caused kanta blow. This witness has also stated that the lathi strike with the kanta. The same fact has been mentioned in the First Information Report that accused Sipttar caused blow of lathi which strike with the kanta. 30. P.W.2 Babu Ram has stated before the Court that when deceased Kunwar Singh denied to go with the accused persons, they stated that he will have to go “Usey Chalna Padega”. Accused Sipttar said that “Maar Saley Ko”. Both the accused started beating the deceased with lathi and kanta. This witness has also stated that lathi strikes with kanta. During course of examination, this witness has admitted that no injury was caused with the use of lathi. When deceased fell down, he received no lathi blow. Accused Sipttar said that “Maar Saley Ko”. Both the accused started beating the deceased with lathi and kanta. This witness has also stated that lathi strikes with kanta. During course of examination, this witness has admitted that no injury was caused with the use of lathi. When deceased fell down, he received no lathi blow. It has also been stated that “dqaoj lsu dks ykBh ugh yxhA dqaojlsu ds xhjus ij ykBh okys us ykBh ugh pykbZA fxjus ls igys ykBh okys us ykBh pykbZ FkhA ij og dkars ls Vdjk xbZ FkhA dkark uhps Fkk o ykBh Åij FkhA eSus ykBh okys dks nqckjk ykBh pykrs ugha ns[kkA ekSds ij [kwu fxjk FkkA^^ Both the witnesses have categorically stated that all the injuries received by the deceased were caused by accused Ragister, who was armed with kanta. The same fact has also been mentioned in the First Information Report. 31. In the statement recorded under Section 313 Cr.P.C., accused Ragister has denied this fact. Accused Sipttar also in the answer to questions No. 1 and 3, which were related to the date, time and place deposed by the witnesses before the Court, has denied this fact. In the answer to question No. 13, he has stated that he had gone to the place of occurrence all alone. When the deceased denied to go with him and made some aspersions on the character of his wife, he lost the self control and in a fit of rage (sudden grave and provocation) he caused injuries with takori. People came there and intervened in the matter. Co-accused Ragister was not present there. 32. Learned trial Court while construing all the fact mentioned above has concluded that the statement made by accused Sipttar under Section 313 Cr.P.C. is departure from the prosecution story because the presence of accused Ragister has been denied. Accused has also denied of having gone with lathi in his hand. No evidence to substantiate or prove the statement made by this accused under Section 313 Cr.P.C. have been adduced, thus disbelieved the statement of accused Sipttar made under Section 313 Cr.P.C. 33. On the close scrutiny of the statement and the evidence available on record and mentioned above, it emerges that accused Sipttar was only armed with lathi and accused Ragister was armed with kanta. On the close scrutiny of the statement and the evidence available on record and mentioned above, it emerges that accused Sipttar was only armed with lathi and accused Ragister was armed with kanta. Whey they reached on the spot, they only asked to the deceased to do their agricultural work. Till that time, intention of the accused persons was not clear about the commission of the offence as they were requesting/asking to the deceased to do their work. 34. When deceased denied to accompany them and stated some words against wife of the accused, then accused Sipttar had asked Kunwar Singh in anger that why he was casting some aspersions upon the wife of the accused and caused lathi blow. 35. P.W.1 Sohan Pal has also stated the same facts before the Court. P.W.2 Babu Ram has stated that accused Sipttar at this juncture exhorted that “Maar Saley Ko”. The said exhortation made by accused Sipttar does not find place in the First Information Report and in the statement of P.W.1 Sohan Pal. No injury caused by lathi is found on the body of the deceased. All the injuries found on the body of the deceased are caused by the appellant Ragister with the use of kanta. Trial Court with the aid of Section 34 IPC has found guilty to the accused Sipttar for committing the offence under Section 302/34 IPC. 36. Learned A.G.A. has placed reliance on the law laid down by the Apex Court in the matter of Brajendra Singh v. State of Madhya Pradesh, 2012 (77) ACC 992, regarding relevance of the statement made under Section 313 Cr.P.C. Relevant paragraph 9 of the said judgment is quoted below. “9. It is a settled principle of law that the statement of an accused under Section 313 Cr.P.C. can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under Section 313 Cr.P.C. simplicitor normally cannot be made the basis for conviction of the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced. Equally true is that the statement under Section 313 Cr.P.C. simplicitor normally cannot be made the basis for conviction of the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced. We may refer to a recent judgment of this Court in the case of Ramnaresh and others v. State of Chhattisgarh, (being pronounced today) wherein this Court held as under : “In terms of Section 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the Courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. [Ref. Rafiq Ahmed @ Rafi v. State of Uttar Pradesh [ (2011) 8 SCC 300 ]. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.” Statement made by P.W.2 Babu Ram before the Court that “Maar Saley Ko” does not find place in the statement recorded by the investigating officer under Section 161 Cr.P.C. although no question in this regard has been put by the defence during cross-examination from the witnesses, yet it is to be seen whether there was intention on part of the accused Sipttar to commit the present offence and he can be held guilty with the aid of Section 34 IPC for committing the murder of Kunwar Singh (deceased). 37. It is pertinent to mention here that accused appellants’ plea that it was a case of sudden grave and provocation or loss of self control is not acceptable because at the time of talking with each other prior to the offence has been committed, no such type of word has been uttered by the deceased so that accused appellant Sipttar lost his self control and participated in commission of the offence. Role played by the appellant Sipttar regarding commission of present offence is not sufficient to hold him guilty taking recourse of Section 34 IPC. It is an admitted case of the prosecution that no second blow of lathi or repeated blow was caused by accused Sipttar. The first and only blow said to be caused by accused Sipttar also strike with the kanta. All the injuries have been caused by accused appellant Ragister with the use of kanta. Medical evidence also supports the prosecution case in this regard. 38. Therefore, this Court is of the view that participation of the accused appellant Ragister with the aid of Section 34 IPC emerged on the spot or at the spur of moment is not proved. All the injuries have been caused by accused appellant Ragister with the use of kanta. Medical evidence also supports the prosecution case in this regard. 38. Therefore, this Court is of the view that participation of the accused appellant Ragister with the aid of Section 34 IPC emerged on the spot or at the spur of moment is not proved. Common intention of the accused appellant Sipttar is not clear from the evidence of the prosecution. The view taken by the trial Court regarding participation of the accused appellant Sipttar in commission of the present offence is not sustainable. The view taken by this Court also finds support with the law laid down in the case of Brajendra Singh (supra) because the statement of the accused appellant Sipttar that he himself only has committed the present offence is not in line with the prosecution evidence. It might be possible that accused Sipttar has taken stand only to save his younger brother, but this statement does not find support with any evidence available on record. 39. Learned counsel for the appellants have placed reliance on the following case laws : (i) Jit Singh and another v. State of U.P., 2014 (4) ADJ 178 (DB), Allahabad High Court wherein this Court has altered the charge under Section 302 IPC to Section 304 Part-II IPC reducing the sentence. (ii) Ashok Kumar and others v. State of U.P., 2013 (82) ACC 119, Allahabad High Court wherein this Court has acquitted the appellants finding no motive against them, witnesses examined by the prosecution were not supporting the prosecution version and the prosecution evidence was suffering from many defects and probabilities. As has been mentioned above that accused Sipttar had gone on the spot armed with lathi and accused Ragister was armed with kanta. It was 5:45 p.m. in the month of February. Trial Court has convicted the accused appellant Sipttar with the aid of provisions of Section 34 IPC. No any injury has been caused by the accused-appellant Sipttar with the use of lathi. P.W.2 Babu Ram for the first time in the Court has deposed that the accused appellant Sipttar had exhorted. On marshalling of the facts and scrutiny of the evidence, it is evident that there is no any specific evidence regarding the role played by appellant Sipttar for causing the injuries to the deceased. P.W.2 Babu Ram for the first time in the Court has deposed that the accused appellant Sipttar had exhorted. On marshalling of the facts and scrutiny of the evidence, it is evident that there is no any specific evidence regarding the role played by appellant Sipttar for causing the injuries to the deceased. Under the provisions of Section 34 IPC, the essence of liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. When an accused is convicted under Section 302 read with Section 34 IPC, it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. 40. The Apex Court in the case of Sripathi and others v. State of Karnataka, AIR 2010 SC 249 , has held in paragraphs 9 & 10 as follows : “9. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred form the circumstances appearing from the proved facts of the case and the proved circumstances. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred form the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, AIR 1977 SC 109 , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 10. The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and others v. State of Andhra Pradesh, AIR 1993 SC 1899 , Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. 41. On comparison of the facts of the present case with the fact of the case of Sripathi (supra), we are of the view that law laid down in the aforementioned case is equally applicable in the present matter. The role played by appellant Sipttar is simply as per prosecution story itself of talking with deceased at initial stage. Fact of exhortation has been stated for the first time by P.W.2 Babu Ram in the Court. Thus, trial Court has wrongly held guilty taking recourse of the provisions of Section 34 IPC. No injury has been caused by accused appellant Sipttar. Role played by this appellant has also not been stated by the witnesses consistently. Thus, we are of the view that appellant Sipttar may be given benefit of doubt. 42. As far as role played by accused appellant Ragister is concerned, the injuries found on the body of the deceased have been caused by the weapon assigned to this appellant. P.W.1 Sohan Pal and P.W.2 Babu Ram both have stated that accused Ragister have caused repeated blows by kanta upon the deceased. As per medical report, deceased died as a result of ante mortem injuries. Trial Court has found this appellant for committing offence under Section 302 IPC simplicitor and has sentenced him for life imprisonment under Section 302 IPC. In the opinion of Doctor conducting the postmortem, death of the deceased was caused due to shock of head injuries. Deceased died during treatment in the hospital on the next day of the occurrence. Accused appellant Ragister has caused repeated kanta blows upon the deceased. In the opinion of Doctor conducting the postmortem, death of the deceased was caused due to shock of head injuries. Deceased died during treatment in the hospital on the next day of the occurrence. Accused appellant Ragister has caused repeated kanta blows upon the deceased. Section 300 IPC defines murder as follows : “Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Clause ‘thirdly’ of Section 300 distinguished from the second clause of Section 299 The difference between the second clause of Section 299 and clause ‘thirdly’ of Section 300 to one of degrees of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium, or lowest degree. The word likely in second clause of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words ‘bodily injury ... To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium, or lowest degree. The word likely in second clause of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words ‘bodily injury ... sufficient in the ordinary course of nature to cause death’, in clause thirdly of Section 300, mean that death will be the most probable result of the injury having regard to the ordinary course of nature. 43. In the absence of any circumstances to show that the injury was caused accidentally or unintentionally, it had to be presumed that the accused had intended to cause the inflicted injury and the condition of clause (3) of Section 300 I.P.C. were satisfied. 44. It is fallacious to contend that when death is caused by a single blow, clause thirdly is not attracted and, therefore, it would not amount to murder. The ingredient ‘intention’ in that clause gives clue in a given case whether offence involved is murder or not. 45. Where evidence of both eye witnesses reliable and well corroborated by medical and other evidence on record inspires confidence that accused had intention to kill deceased then conviction is liable to be sustained. 46. In the present matter, on analysis of the prosecution evidence, conversation between both the parties at initial stage was not of such nature that appellant was deprived of the power of self control by grave and sudden provocation. The repeated kanta blows have been made by the accused appellant Ragister with intention to cause such bodily injury as he knows that it would likely to cause the death of the deceased to whom the injuries have been caused and the injury caused on the head of the deceased was sufficient in the ordinary course of nature to cause the death of the deceased, who died due to head injury. The act of the accused appellant Ragister also indicates that the case of the present appellant clearly comes within the purview of Section 300 IPC. Deceased died due to the simplicitor act of the accused appellant, therefore, trial Court’s conclusion in respect of this appellant Ragister is in accordance with the fact and law. No interference is required by this Court regarding conviction and sentence imposed upon the accused appellant Ragister. 47. Deceased died due to the simplicitor act of the accused appellant, therefore, trial Court’s conclusion in respect of this appellant Ragister is in accordance with the fact and law. No interference is required by this Court regarding conviction and sentence imposed upon the accused appellant Ragister. 47. On the basis of above discussion, this Court is of the view that Appeal filed in regard to appellant Sipttar is liable to be allowed and impugned judgment and order dated 27.1.1986 convicting and sentencing the appellant Sipttar under Section 302 read with Section 34 IPC is liable to be set-aside and is hereby set-aside partly allowing the present Appeal. Appellant Sipttar is acquitted for the offence punishable under Sections 302 read with Section 34 IPC in S.T. No. 143 of 1984 (State v. Sipttar and another). So far as the Appeal preferred in respect of appellant Ragister is concerned, having no merit, Appeal is liable to be dismissed and is hereby dismissed The impugned judgment and order dated 27.1.1986 in regard to accused appellant Ragister is hereby affirmed. Personal bonds and surety bonds filed in respect of appellant Sipttar is hereby cancelled and sureties are discharged from their liabilities. Accused appellants Ragister is hereby directed to surrender before the Chief Judicial Magistrate concerned to serve out the remaining sentence. The record of the trial Court alongwith copy of the judgment be sent to the Court concerned for immediate compliance. Compliance report be also submitted to this Court. ————