JUDGMENT Vijay Lakshmi, J. This Criminal Appeal has been preferred by the appellants against the impugned judgment and order dated 20.3.1982 passed by the VII Additional Sessions Judge, Azamgarh, in S.T. No. 362 of 1978, State Vs. Ram Murat and others, whereby the accused-appellants Ram Murat, Hari Shanker and Sheo Murat have been convicted and sentenced to undergo six months' R.I. for the offence under section 323 I.P.C., and two and half years' R.I. for the offence u/s 307/34 I.P.C. and the accused-appellant Jagarnath has been convicted and sentenced to undergo six months' R.I. for the offence under section 323/34 I.P.C., and three years' R.I. for the offence u/s 307 I.P.C. Both the sentences were ordered to run concurrently. 2. Briefly described, some background facts of this case are that on 3.11.1974 at about 9.00 A.M. when the complainant Mangla Pathak and his son Shree Niwas were present in their field and their ploughman Kirtu Ram was ploughing the field, the accused-appellants Jagarnath Tiwari, Ram Murat, Sheo Murat and Hari Shanker reached there. The accused Jagarnath Tiwari was armed with spear (ballam) and co-accused Ram Murat, Sheo Murat and Hari Shanker were armed with lathi. Accused Jagarnath Tiwari asked the complainants as to why they were encroaching upon his field. Thereupon some altercation and exchange of hot words took place between them. The accused Jagarnath exhorted the rest of the accused persons with the words "tku ls ekjks lkys dks" and uttering these words he gave a spear blow on the neck of Shree Niwas (the son of complainant) causing injury on the lower side of neck. Hearing alarm Bechan, Kashinath, Mangaroo Ram, Aparwal Rai and several other villagers reached at the scene of occurrence and saw the accused persons running away from the spot. The complainant after arranging conveyance went to the police station and lodged the first information report. The police sent both the injured for medical examination. Both the injured were medically examined on the same day at 7.30 P.M. The doctor found the following injuries on the body of the injured Shree Niwas: 1. Incised wound 3/4" x 1/12" x1/2" at the root of the neck and in front of the neck just above manubrium sterni. 2. Complaint of pain in both buttocks and lower part of the back but no mark of injury. 3. Incised wound 3/4" x 1/12" x1/2" at the root of the neck and in front of the neck just above manubrium sterni. 2. Complaint of pain in both buttocks and lower part of the back but no mark of injury. 3. Complaint of pain in the right thigh and legs but no mark of ext. injury. 4. Complaint of pain in left thigh and left leg but no mark of ext injury. Injury no. 1 was caused by sharp object. Injuries were fresh. The following injuries were found by the doctor on the body of Mangla Pathak: 1. Lacerated wound 1/4" x 1/4" on the scalp on anterior part of middle part. 2. Abrasion 1/2" x 1" on the front medial lower part of the left forearm. 3. Contusion 1" x 1/2" on the right shoulder. All the injuries were simple caused by blunt object. Duration fresh. 4. During investigation the I.O. recorded the statements of witnesses, prepared the site plan and after completing other formalities submitted charge sheet against the appellants. 5. The case being triable by the court of Sessions was committed to it where charges under sections 323, 307/34 and 324/34 I.P.C. were framed against the accused-appellants Ram Murat, Sheo Murat and Hari Shanker and charges u/s 307, 324 simpliciter and 323/34 I.P.C. were framed against accused-appellant Jagarnath Tiwari. All the accused persons denied from the charges and claimed to be tried. 6. The prosecution in order to prove its case examined six witnesses in all, out of which three were witnesses of fact and three were of formal character. After conclusion of prosecution evidence, the statements of the accused persons under section 313 Cr.P.C. were recorded in which all of them denied from the charges and stated that they have been falsely implicated due to land dispute. The accused Jagarnath stated that Mangla was destroying his crop of peas and when he tried to stop him, he assaulted him and in defence he had to assault him. 7. Learned trial court after hearing both the parties convicted all the accused persons as aforesaid. 8. Aggrieved by the aforesaid impugned judgment and order all the accused persons have preferred the instant appeal before this court. 9. 7. Learned trial court after hearing both the parties convicted all the accused persons as aforesaid. 8. Aggrieved by the aforesaid impugned judgment and order all the accused persons have preferred the instant appeal before this court. 9. It is noteworthy that out of the four accused three accused-appellants namely Ram Murat, Sheo Murat and Jagarnath died during pendency of the appeal and vide order of this court dated 12.5.2016 the appeal stood abated against them. Now only accused-appellant Hari Shanker is before this court. 10. Heard Sri Ashok Kumar Mishra, learned counsel for the appellant Hari Shanker, and Sri Fahim Ahmad, learned AGA for the State and perused the record. 11. Learned counsel for the appellant has contended that the appellant is innocent, he has not been assigned any deadly weapon, which itself is evident from the perusal of the first information report, in which it is clearly mentioned that the appellant was armed with lathi only. The submission of learned counsel for the applicant is that in view of the above it cannot be said that the appellant had any common intention to commit murder or to cause any grievous hurt to the informant or his son. However, the learned trial court wrongly framed charges under sections 307 and 324 I.P.C. with the aid of section 34 I.P.C. against the appellant and also illegally convicted him under the aforesaid sections. 12. While drawing the attention of this court to the statement of injured Sri Niwas, learned counsel for the appellant has further submitted that the learned court below while convicting the appellant has not considered the statement of the injured Shree Niwas, who has clearly stated as under: ekj ihV 2&3 feuV gqbZA esjs ,d Hkkyk eqyfte txjukFk us ekjk okdh eqyfteku us 2&2 ykBh ekjh ftldh T;knk pksV ugha vkbZA 13. Learned counsel for the appellant has next submitted that there is a cross version of the occurrence and the family members of accused side have also received injuries. Learned counsel for the appellant has next submitted that there is a cross version of the occurrence and the family members of accused side have also received injuries. In this regard he has drawn the attention of the court to the following admission of PW2: vkt ls igys eSaus c;ku eSftLVsªV ds ;gka fn;k Fkk fd esjs firk th us gyokgs dk MUMk pyk;k FkkA nkjksxk th us eq> ls iwNrkaN fd;k FkkA eSaus nkjksxk th dks MUMk cpko esa pykus okyh ckr crkbZ FkhA nkjksxk th us D;ksa ugh fy[kk eSa ugh crk ldrkA Learned counsel for the appellant has also drawn the attention of this court to the following admission of PW1, Mangla: ?kVuk ds le; cpko esa vius gyokgs fdjrw dk gy gkdus okyk MUMk Nhu dj cpko esa ekjkA ftlls jke ewjr vkSj txjukFk dks pksVsa vkbZA -------------- eSa otg ugh crk ldrk fd fjiksVZ esa ;g ckr D;ksa ugh fy[kkbZ fd cpko esa gyokgs dk MUMk ys dj pyk;k ftlls jke ewjr vkSj txjukFk dks pksVs vkbZA esjs f[kykQ blh vnkyr es dzWzkl dsl py jgk gSA The submission of learned counsel for the appellant is that admittedly both the parties have committed maarpeet with each other and both of them have sustained injuries. It is also admitted that the cross case with regard to the same incident was also pending in the same court. However, as the cross case could not be decided along with the impugned judgment, it could not be held as to which party was aggressor. The submission of learned counsel is that the complainant was encroaching and was ploughing on the fields of the appellants also, along with his own field and was destroying the crop of peas of the appellants. They resisted and tried to stop the complainant from ploughing their field, on which altercations took place, which converted into maarpeet between both the parties. The further submission of learned counsel for the appellant is that on the basis of the admissions made by the witnesses it is clearly evident that the complainant party was aggressor but the court below has not recorded any finding about the cross version of the incident in the impugned judgment and has wrongly convicted the appellant. 14. The further submission of learned counsel for the appellant is that on the basis of the admissions made by the witnesses it is clearly evident that the complainant party was aggressor but the court below has not recorded any finding about the cross version of the incident in the impugned judgment and has wrongly convicted the appellant. 14. The learned counsel for the appellant has next submitted that in so far as the role of only surviving appellant is concerned, he has neither been assigned any deadly weapon, nor there is any evidence on record to show that he had any intention to kill the complainant or his son or to cause any grievous injury to them. The injury report of Shree Niwas clearly shows that apart from only one incised wound, which was inflicted by co-accused Jagarnath, his remaining injuries are only complaint of pain. Likewise the injuries sustained by the complainant Mangla are also simple in nature, which is evident from the statement of the doctor, PW4, who has clearly stated that except injury no. 1 of PW2 Shree Niwas all other injuries of the injured were simple in nature, caused by blunt object. 15. It is next contended that though four eyewitnesses are named in the FIR and it is also stated that several villagers had reached there but no other eyewitness has been produced by the prosecution in support of its case except Aparwal Rai (PW3). The statement of Aparwal Rai shows that he has not seen as to who was the author of the simple injuries sustained by Mangla. PW3 has also stated that Shree Niwas had not sustained any lathi injury in the occurrence. In this regard the learned counsel for the appellant has drawn the attention of this court to the following statement of PW3: eSa ekj ihV ls igys igqap x;k FkkA eWxyk ds 2&1 ykBh yxhA eqyfteku esa ls fdlh dh ykBh yxh FkhA eWxyk fxjs ughA Jh fuokl ds ,d pksV cYye dh yxhA 16. In this regard the learned counsel for the appellant has drawn the attention of this court to the following statement of PW3: eSa ekj ihV ls igys igqap x;k FkkA eWxyk ds 2&1 ykBh yxhA eqyfteku esa ls fdlh dh ykBh yxh FkhA eWxyk fxjs ughA Jh fuokl ds ,d pksV cYye dh yxhA 16. The next submission of learned counsel for the appellant is that section 34 I.P.C. has no application in the facts of the present case and the appellant has wrongly been convicted under section 307 I.P.C. with the aid of section 34 I.P.C. Learned counsel has submitted that even assuming for the sake arguments, the prosecution story to be true, only offence under section 323 I.P.C. is made out against the appellant. It has lastly been submitted by learned counsel for the appellant that the occurrence is of the year 1974, the appeal has also become critically old as it was filed in the year 1982, except the present appellant all other appellants have expired and the only surviving appellant, at present, has also become a very old and infirm person his being about 74 years of age, which is evident from his statement recorded under section 313 Cr.P.C., which has been recorded on 17.2.1982 when the appellant was 40 years old. Learned counsel has submitted that in the wake of all these facts some lenient view may be taken in the matter, in case this court affirms the conviction of the appellant under section 323 I.P.C. 17. Learned AGA has vehemently opposed the aforesaid arguments by submitting that the appellant has actively participated in the maarpeet. 18. Considering all the facts and circumstances of the case and the fact that there is a cross version of the occurrence, the appellant has been assigned only lathi, all the injuries except one of ballam, sustained by both the injured are caused by blunt object and are simple in nature. Admittedly the author of ballam injury is Jagarnath, who has died. There is no evidence on record to substantiate the fact that the appellant had any common intention either to kill or cause grievous injury to any one of the injured. Admittedly the author of ballam injury is Jagarnath, who has died. There is no evidence on record to substantiate the fact that the appellant had any common intention either to kill or cause grievous injury to any one of the injured. Admittedly, there is a cross case of the occurrence and the complainant and the witnesses have admitted that the complainant Mangla, too, had inflicted injuries to the appellant Jagarnath by a danda used by his ploughman for which a cross case was lodged against the complainant and due to non-disposal of cross case with the instant case this fact could not be ascertained as to which party was the aggressor and which party had exceeded the right of private denence, it cannot be said that the appellant had any common intention to cause any fatal injury to any of the injured. 19. For the application of section 34 I.P.C. it is necessary that all the accused persons must have some prearranged plan i.e. prior meeting of minds and when there is neither the pre-concert nor meeting of minds, section 34 of the I.P.C. is not attracted. 20. In (2003)12 Scc 5943, Preetam Singh Vs. State of Rajasthan, the Apex court has held as under: - "A pre-arranged plan and meeting of minds to commit the particular crime is the requisite to infer common intention. Although common intention can develop on the spot. It should be the result of prior concert. Such prior concert can be inferred from the conduct of the accused revealing unity of purpose and the part played by them at the time of incident and other relevant factors." In (2005)9 Scc 310 , Manjit Kalogi Thakur Vs. State of Gujarat, the Apex Court as held as under: - "When the incident happened all of a sudden when three accused persons attacked the deceased with weapons but fatal injury was inflicted on the deceased by the second accused and the first and third accused gave blow on the head causing only simple injuries, only the second accused was responsible for the murder. The first and third accused did not have preconcert plan to commit murder and cannot be convicted for murder with the aid of section 34 I.P.C. They could also not be convicted under section 324/34 I.P.C." In 1995 SCC (Cri)163, Shangara Vs. The first and third accused did not have preconcert plan to commit murder and cannot be convicted for murder with the aid of section 34 I.P.C. They could also not be convicted under section 324/34 I.P.C." In 1995 SCC (Cri)163, Shangara Vs. State of Punjab, the Apex court has held as under: - "The accused causing incised injury on thigh of the deceased cannot have common intention of murder, when fatal injury on the head of the deceased was caused by other accused person." In 1994 SCC (Cri) 265,Babubhai Ranchodbhai Patel Vs. State of Gujarat, the Apex Court has held as under: "The accused causing simple injury cannot be said to have shared common intention to commit murder with the accused causing fatal injury." 21. Now testing the facts of the instant appeal on the touchstone of law as laid down by Hon'ble Apex Court the aforesaid judgments, it appears that there is no evidence on record that the appellant had any prior concert with other accused persons to commit the murder or to cause grievous injury to any one. 22. The appellant was armed with lathi only. The occurrence has taken place suddenly after some hot talks took place between the parties. Both the parties have committed maarpeet with each other and it is not certain as to who was the aggresor hence it cannot be said that the appellant had any prior meeting of mind with other accused persons. 23. Considering the above facts in the wake of the law laid down by Hon'ble Apex Court as cited above, the appellant cannot be held guilty under section 307/34 I.P.C. and his conviction under section 307/34 I.P.C. is set aside. However, as there is sufficient evidence that he participated in the marpeet, his conviction under section 323 I.P.C. is confirmed. 24. At this stage the learned counsel for the appellant submitted that this appeal is critically old, the appellant has now become 74 years of age, hence, keeping in view his old age and feeble physical condition some lenient view be taken regarding his sentence under section 323 I.P.C. 25. The appellant has been sentenced for imprisonment of six months' R.I. for his conviction under section 323 I.P.C. by learned trial court. 26. In view of the facts and circumstances of the case, the appeal is partly allowed. The appellant has been sentenced for imprisonment of six months' R.I. for his conviction under section 323 I.P.C. by learned trial court. 26. In view of the facts and circumstances of the case, the appeal is partly allowed. The appellant Hari Shanker is acquitted of the charges under section 307/34 I.P.C. So far as the offence under section 323 I.P.C. is concerned, in the wake of the facts and circumstances of the case, the conviction of the appellant under section 323 I.P.C. is confirmed but the sentence awarded by the trial court i.e. imprisonment for six months' R.I. is reduced to the imprisonment already undergone. 27. Appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Let a copy of this judgment along with lower courts' record be sent back to the court concerned.