JUDGMENT : MOHAMMAD RAFIQ, J. Aforesaid appeal and revision petition both have been directed against common judgment dated 24.01.2009 passed by the Court of Additional Sessions Judge (Fast Track) No. 1, Ajmer (for short ‘the trial court’). Revision petition has been filed by complainant-petitioner Kishan Rawat challenging acquittal of three accused; namely Smt. Janta; Smt. Chena and Smt. Shanti, who have been arrayed as Respondent No. 2 to 4 therein. Appeal has been filed accused-appellants Nahar Singh @ Nahra @ Nara and Uda Singh @ Uda challenging the aforesaid judgment passed by the trial court whereby each of them has been convicted and sentenced as under: Section 302/34 IPC: Imprisonment for life with fine of Rs. 2,000/-, in default whereof to further undergo three month’s simple imprisonment. Section 307/34 IPC: Seven years rigorous imprisonment with fine of Rs. 1,000/-, in default whereof to further undergo one month’s simple imprisonment. Section 341 IPC: One month’s simple imprisonment. However, accused-appellant Nahar Singh @ Nahra @ Nara has further been sentenced for offence under Section 4/25 Arms Act to one year’s rigorous imprisonment with fine of Rs. 1,000/-, in default whereof to further undergo one month’s simple imprisonment. All the sentences were ordered to run concurrently. Facts of the case are that an F.I.R. No. 193/2007 (Exhibit P-24) for offences under Sections 302, 323, 34 IPC was registered on the basis of Parcha Bayan (Exhibit P- 3) of Smt. Sohani (P.W.2), injured, wife of Kishan Rawat. Parcha Bayan (Exhibit P-3) was recorded at Jawahar Lal Nehru Hospital, Ajmer on 20.06.2007 at 9.30 P.M. wherein it was stated by Smt. Sohani that she was residing with her husband and children in Gram Lohagal. Her father-in-law, Ghasi contracted two marriages. Her husband Kishan and Meera were born from his first wife Ratni and three sons namely Shankar Singh, Uda Singh and Nahar Singh and three daughters were born from his second wife Shanti. Being born from first wife, Smt. Shanti separated her husband from her and she did not want to give any share in the ancestral land to them. They were earning their livelihood by the work of gota machine. It was further alleged that a day before the incident, when they demanded their share in the ancestral land, Shanti, step mother-in-law and her sons started abusing them. They were earning their livelihood by the work of gota machine. It was further alleged that a day before the incident, when they demanded their share in the ancestral land, Shanti, step mother-in-law and her sons started abusing them. It was further alleged that on the day of incident at 7.00 P.M. when her husband, Kishan (P.W.1) went out of the house, Uda Singh @ Uda and Nahar Singh @ Nahar started beating him and thereafter these persons dragged him to courtyard (‘bada’) where Smt. Janta and Smt. Chena also came. Nahar Singh @ Nahra was armed with sword and Uda Singh @ Uda was having axe (kulhadi). It was further stated that when she and her son Kalu went to intervene, these persons also attacked Kishan (P.W.1) and Kalu, as a result of which they fell down on the earth. Smt. Janta and Smt. Chena subjected her to beatings. Thereafter, Uda Singh @ Uda and Nahar Singh @ Nahra ran away. Her husband Kishan and son Kalu, who were unconscious, were brought to hospital by the neighbours, where Kalu died. The Police after completion of investigation filed challan against the accused for various offences and kept investigation pending against Smt. Shanti. Subsequently, challan was filed against her also. Charges were framed for various offences against the accused, which they denied and claimed trial. The prosecution produced 24 witnesses and exhibited 38 documents. Thereafter, the accused were examined under Section 313 Cr.P.C. wherein they pleaded innocence. Defence produced only two witnesses and exhibited four documents. The trial court, on conclusion of trial, vide impugned judgment and order dated 24.01.2009 acquitted three female accused-Respondent No. 2 to 4 (in Revision Petition No. 475/2009), but convicted and sentenced the accused-appellants in the manner as indicated hereinabove. We have heard Mr. Biri Singh Sinsinwar, learned Senior Counsel appearing on behalf of accused-appellant Uda Singh @ Uda and accused-respondents in Revision Petition No. 475/2009; Mr. Rakesh Kumar, learned counsel appearing on behalf of accused-appellant Nahar Singh @ Nahra @ Nara; Mr. Neeraj K. Tiwari, learned counsel for the complainant-petitioner Kishan Rawat and Mr. Aladeen Khan, learned Public Prosecutor appearing on behalf of the State. Mr. Biri Singh Sinsinwar, learned Senior Counsel as well as Mr. Rakesh Kumar, learned counsel for the accused-appellants argued that the trial court has failed to appreciate evidence of the prosecution in true perspective. Neeraj K. Tiwari, learned counsel for the complainant-petitioner Kishan Rawat and Mr. Aladeen Khan, learned Public Prosecutor appearing on behalf of the State. Mr. Biri Singh Sinsinwar, learned Senior Counsel as well as Mr. Rakesh Kumar, learned counsel for the accused-appellants argued that the trial court has failed to appreciate evidence of the prosecution in true perspective. Kishan (P.W.1) has specifically stated that he had consumed liquor before the incident and went to tea stall of Madan Singh (P.W.6). Moreover, Madan Singh (P.W.6) has also stated that when Kishan came to his shop, Nahar Singh was sitting at the shop of Chhotu Kishan abused Nahar Singh, whereupon Nahar Singh pelted stones at him, which hit on the left eye of Kishan. Thereafter, both of them disbursed. This witness further stated that Kishan purchased a quarter of liquor and consumed the same at his shop. It is, thus, clear that it was Kishan, who picked up the quarrel first under the influence of the liquor. Even according to his medico-legal report, ishan was intoxicated. All the prosecution witnesses have stated that the police came at the place of incident on the same day and they narrated the whole story to them, but the police instead of lodging FIR on that basis, waited for Parcha Bayan (Exhibit P-3) of injured Smt. Sohni, which is hit by Section 162 Cr.P.C. It is argued that Injury No. 2 of deceased Kalu proved fatal and became cause of his death. Allegation is that both the accused inflicted injury on the person of deceased, but it is not known as to who was the author of that fatal injury. It has been settled by the Supreme Court in various judgments that if there is one fatal injury and it is not known as to who caused that fatal injury, then the accused ought to be convicted for the lesser offence. Reliance in this connection has been placed on the judgment of the Supreme Court in Ram Lal Vs. Delhi Administration, (1973) 3 SCC 466 . It is contended that while father of the accused and the complainant is same, their mothers are different. The incident has taken place in courtyard (bada) of the accused. Though the prosecution has narrated the story that the accused dragged the injured inside courtyard (bada), but this fact did not get corroboration either from the injury report or post mortem report. The incident has taken place in courtyard (bada) of the accused. Though the prosecution has narrated the story that the accused dragged the injured inside courtyard (bada), but this fact did not get corroboration either from the injury report or post mortem report. There are no such corresponding marks even in the site plan (Exhibit P-4). Story of dragging has been concocted only with a view showing that it was accused appellants, who were aggressors and started the incident, which is not a correct fact. Over whelming evidence on record show that the complainant Kishan was in intoxicated state and picked up quarrel with the accused. Accused merely acted in their right of private defence and personal property. Learned Senior Counsel argued that facts of the case clearly prove that the accused had no common intention to kill the deceased and common intention has to be preceded by predetermination of mind. There is no evidence on record to show that there was premeditation of mind and the incident has taken place all of sudden when the injured complainant started abusing the accused and picked up quarrel with them. So far as death of Kalu is concerned, the accused-appellants were having no common intention to commit his murder. The evidence shows that when the quarrel began between the accused and the injured Kishan, his wife Smt. Sohani (P.W.2) and his son Kalu came there in order to intervene and save him. If Kalu was hit by the accused accidentally, conviction of the accused-appellants for offence of culpable homicide amounting to murder with the aid of Section 34 IPC could not have been recorded by the trial court. At the maximum, the accused-appellant Nahar Singh @ Nahara @ Nara, with regard to whom it is alleged by Kishan (P.W.1) that he inflicted a sword blow, could be held guilty for offence under Section 304 Part II IPC. His additional statement that accused Uda Singh @ Uda inflicted axe (kulhadi) blow on the person of Kalu is not corroborated by medical evidence. Learned counsel referred to statement of Dr. His additional statement that accused Uda Singh @ Uda inflicted axe (kulhadi) blow on the person of Kalu is not corroborated by medical evidence. Learned counsel referred to statement of Dr. R.K. Talwar (P.W.14), who has proved Post Mortem Report (Exhibit P-19), according to which the deceased had a cut incised wound on the middle of the head extending from right to left in the size of 9x2.5 c.m., which led to fracture of bone of the head in the size of 7x2 c.m. Cause of death was opined to be ante mortem injury in the head which was caused by sharp edged weapon. There was one more injury on right side of forehead of the deceased in the size of 4x1.5 c.m., which was opined to be simple. In these circumstances, accused-appellant Uda Singh @ Uda cannot be held to have shared any common intention with the other accused. It is on this fact that this Court was persuaded to suspend sentence of accused Uda Singh @ Uda, but did not grant such liberty to accused Nahar Singh @ Nahar @ Nara. Learned counsel in support of his arguments also cited judgment of the Supreme Court in Abani K. Debnath & Another Vs. State of Tripura, (2005) 13 SCC 422 . Mr. Aladeen Khan, learned Public Prosecutor has opposed the appeal and supported the impugned judgment by referring to statements of prosecution witnesses in detail and other evidence, reference to which shall be made at appropriate place hereinafter. Mr. Neeraj K. Tiwari, learned counsel for the petitioner-complainant argued that impugned judgment so far as it relates to Respondent No. 2 to 4-accused is patently illegal and contrary to the facts as well as law and against the material on record. Trial court has failed to appreciate that there were allegations against all the accused in the statements of prosecution witnesses, but despite that, the trial court erroneously acquitted respondents No. 2 to 4. The trial court has failed to appreciate statements of the prosecution witnesses, who have categorically stated about involvement of the accused-respondents and the trial court has illegally acquitted them. The prosecution witnesses have consistently stated about involvement of the accused respondents for the alleged offences but without taking into consideration this material aspect, the trial court has erroneously acquitted the accused-respondents. Therefore, the impugned judgment to that extent is liable to be quashed and set aside. The prosecution witnesses have consistently stated about involvement of the accused respondents for the alleged offences but without taking into consideration this material aspect, the trial court has erroneously acquitted the accused-respondents. Therefore, the impugned judgment to that extent is liable to be quashed and set aside. We have given our anxious consideration to rival submissions and carefully perused the material on record. Kishan (P.W.1) has stated that when he was sitting on the shop of Madan Singh (P.W.6), Nahar Singh came there and started abusing. When this witness tried to dissuade him, he pelted stones on this witness leading to injury below his left eye. This witness further stated that when he was going to his house, the accused persons caught hold of him and started beating him. They dragged him inside the courtyard (bada). Nahar Singh inflicted sword blow on his head. Uda Singh @ Uda was having axe (kulhadi); Smt. Chena and Smt. Shanti were having sticks (lathi) and Smt. Janta was having knife (churra). On hearing his hue and cry, his son Kalu @ Rajendra and wife Sohani came there to save him. When Kalu tried to intervene, Nahar Singh inflicted sword below on his person. Uda inflicted injury by axe (kulhadi) on his head. While this part of statement of Kishan (P.W.1) has been believed by the trial court, but later part of statement of this witness where he alleged that Shanti, Janta and Chena also inflicted injuries to female members of his family, has not been believed by the trial court. In fact, in the cross examination, this witness has alleged that when the deceased Kalu was being taken to hospital in the vehicle, Janta, Chena and others repeatedly pulled him out of the vehicle in critical condition. Smt. Sohani (P.W.2) has also proved the fact that certain altercation took place between two parties a day earlier on the dispute of partition of ancestral land. She was in their house when she heard hue and cry outside. She came out and learnt that her husband was being beaten by the accused. She and her son Kalu ran towards the house of Ghasi. They saw that Uda, Nahar, Chena, Janta and Shanti were dragging Kishan inside courtyard (bada). Nahar was having sword and Uda Singh was having axe (kulhadi) in their hands. Her husband was bleeding from the head. She and her son Kalu ran towards the house of Ghasi. They saw that Uda, Nahar, Chena, Janta and Shanti were dragging Kishan inside courtyard (bada). Nahar was having sword and Uda Singh was having axe (kulhadi) in their hands. Her husband was bleeding from the head. When Kalu tried to save him, Nahar Singh inflicted sword blow on his head and kulhadi blow was inflicted by Uda, as a result of which Kalu became unconscious and fell down. Janta was having knife (churra) and Shanti and Chena were having sticks (lakdi). Sunita @ Kamla (P.W.4), daughter of Kishan, complainant, has stated that she had gone to fetch water with Sharda (P.W.7). While she was returning, some woman told her that accused Nahar Singh was pelting stones at his father. She, then went towards hotel of Madan Singh (P.W.6) and met her father on the way, who was coming home. He was having an injury below his eye. When she enquired, Kishan told that Nahar Singh caused this injury by stone. When she and her father had reached near courtyard (bada) of Ghasi, Nahar, Uda, Chena, Janta and Shanti dragged her father Kishan inside courtyard (bada) of Ghasi. Nahar inflicted sword blow and Uda Singh inflicted Kulhadi blow to her father. At that time, her mother and brother Kalu came there and tried to save her father. Nahar Singh inflicted sword blow and Uda Singh inflicted kulhadi blow on Kalu. Chena and Janta also subjected her mother to beating. Even Sohani (P.W.2) and Sunita @ Kamla (P.W.4) have alleged that when Kalu was being taken to hospital in the vehicle, Janta, Chena and Shanti did not allow to take him to hospital and repeatedly dragged him out of the vehicle. This part of their statements has not been believed by the trial court, but earlier part has been believed by the trial court. Sharda (P.W.7) has also stated that when she and Sunita were going to fetch water from government tap, a woman told Sunita that her father was being beaten. Then, both of them went to their homes. After 7.00-7.30 P.M., she heard noise near courtyard (bada) of Ghasi, then she, Naini and Mohini went to that place. She saw that accused dragged Kishan in their courtyard (bada). Nahar Singh inflicted a blow of sword on Kishan. Uda also inflicted axe (kulhadi) blow on Kishan. Then, both of them went to their homes. After 7.00-7.30 P.M., she heard noise near courtyard (bada) of Ghasi, then she, Naini and Mohini went to that place. She saw that accused dragged Kishan in their courtyard (bada). Nahar Singh inflicted a blow of sword on Kishan. Uda also inflicted axe (kulhadi) blow on Kishan. When Kalu tried to intervene and save Kishan, Nahar Singh inflicted sword blow on his back and Uda inflicted axe (kulhadi) blow, as a result of which both fell down. Thereafter, Chena caught hold of Sohani by her hairs and Janta also started beating her. When Kalu and Kishan were being taken to hospital in vehicle, Chena, Shanti and Janta were not allowing them to board the vehicle and they were dragging them out of the vehicle. Mohini (P.W.8), Smt. Naini (P.W.9) and Moti (P.W.10) have also made statements similar to that of Sharda (P.W.7). Madan Singh (P.W.6) has stated that on the fateful day, Kishan came to his hotel around 6.00 P.M. and thereafter, Nahar Singh also came at shop of Chhotu, which was facing his hotel. Kishan started abusing Nahar Singh. Nahar Singh pelted stones at him. First stone did not hit Kishan, but another stone hit Kishan on left side near his eye. This witness stated that he intervened and thereafter, both of them went away. After about 15 minutes, he heard that quarrel had taken place between Kishan and Nahar Singh and Kalu and Kishan had been sent to hospital. Shankar Lal Ojha (P.W.23) has stated that while sword had been recovered at the instance of Nahar Singh pursuant to information under Section 27 of the Indian Evidence Act (Exhibit P-33) of which site plan was Exhibit P-21 and memo of recovery was Exhibit P-20. Recovery of axe (kulhadi) has been made at the instance of Uda pursuant to information under Section 27 of the Indian Evidence Act (Exhibit P-34) of which site plan was Exhibit P-23 and recovery memo was Exhibit P-22. These recoveries have also been corroborated by attesting witness Gopal Singh (P.W.15). The recoveries were made from the roofs of house of the accused. Dr. These recoveries have also been corroborated by attesting witness Gopal Singh (P.W.15). The recoveries were made from the roofs of house of the accused. Dr. R.K. Talwar (P.W.14) has proved that the deceased Kalu sustained injury on right side of his forehead in size of 4 x 1 c.m. He also proved that the deceased kalu had another incised wound in middle of the head extending from right to left in the size of 9 x 2.5 c.m. which led to fracture of bone of the head in the size of 7 x 2 c.m. Perusal of the judgment passed by the trial court shows that the trial court has not found guilt of the female accused, i.e. Respondents No. 2 to 4 in Revision Petition No. 475/2009, proved beyond reasonable doubt, but on the basis of the evidence adduced by the prosecution, the trial court has concluded that guilt of accused Nahar Singh @ Nahra @ Nara and Uda Singh @ Uda was proved beyond reasonable doubt. In view of the analysis of the evidence that we have also made hereinabove, we are not inclined to uphold the argument that the accused-appellants did not share any common intention for the offence in question. The incident in which Kalu lost his life was preceded by another incident in which accused Nahar Singh pelted stones at injured Kishan. This too was preceded by certain altercations between two groups on the previous day. Evidence proves that when Nahar Singh came back to his house, his brother Uda Singh also joined him. Thereafter, when Kishan was going to his house and crossing courtyard (bada) of Ghasi, the accused dragged him into courtyard (bada) and subjected him to beating. What has been stated by the prosecution witnesses, if analysed with reference to injuries sustained by Kishan and deceased Kalu, finds sufficient corroboration. Once it is proved by evidence that incident has taken place in two parts, it cannot be held that the accused did not have prior meeting of mind and later incident was not preceded by premeditation of mind so as not to attract provisions of Section 34 IPC. Section 34 IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Section 34 IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. It requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds. Statements of all the witnesses consistently proves that while the head injury has been attributed to Nahar Singh, another head injury on the forehead of the deceased has been attributed to accused Uda Singh @ Uda, which has been caused by axe (kulhadi). Both these weapons have been recovered at the instance of the accused-appellants. Similarly, head injury of injured Kishan has been attributed to Nahar Singh, which has been proved by Dr. Aditya (P.W.21), who stated that Kishan sustained injury in the size of 8 x 1 c.m. bone deep on the right parietal region of the head. Similarly, three injuries were sustained by Smt. Sohani in the scuffle and as per opinion of doctor Exhibit P-28, injury no. 1 of the injured Kishan was grievous in nature and dangerous to life. In these facts, although we are not inclined to hold that the accused did not share common intention, at the same time, however, as per the statement of Dr. Aditya Ratnani (P.W. 21), Kishan was under the influence of liquor and Kalu sustained fatal injury in the process of saving his father, the accused appellant cannot be held to have common intention to commit his murder. Therefore, in our opinion, the trial court erred in law in convicting them for offence of culpable homicide amounting to murder. The evidence clearly show that Kalu and Sohani had arrived at the scene of occurrence after hearing hue and cry made by Kishan. Kalu received injuries at the hands of the accused-appellants when he tried to intervene and save his father. Therefore, the accused-appellants cannot be held to have any common intention to commit murder of Kalu but it is a fact that he has died on account of injuries received at the hands of the accused. Therefore, the offence of the accusedappellants, in our considered view, falls under Section 304 Part I IPC. Therefore, the accused-appellants cannot be held to have any common intention to commit murder of Kalu but it is a fact that he has died on account of injuries received at the hands of the accused. Therefore, the offence of the accusedappellants, in our considered view, falls under Section 304 Part I IPC. Judgment of the Supreme Court in Abani K. Debnath & Another (supra) cited by learned counsel for the accused-appellants is distinguishable on the facts of the present case and is of no avail to the accused-appellant. However, judgment of the trial court, so far as it has acquitted the accused-Respondent No. 2 to 4 in Revision Petition No. 475/2009, cannot be faulted with because evidence against them falls short of the required proof beyond reasonable doubt and in our opinion, the trial court has rightly acquitted them. In the result, appeal of accused-appellants, namely, Nahar Singh alias Nahra alias Nara S/o Ghasi and Uda Singh alias Uda S/o Ghasi, is partly allowed. Their conviction under Section 302/34 IPC is altered to one under Section 304 Part-I read with Section 34, IPC, and sentenced to undergo ten years rigorous imprisonment with fine of Rs.2000/- each; in default in payment of fine, each to further undergo three months' additional simple imprisonment. Their conviction and sentence for offence under Sections 307/34 and 341 IPC and under Section 4/25 of the Arms Act is maintained. All the sentences shall run concurrently. Accused-appellant Nahar Singh alias Nahra alias Nara is in jail. He has to suffer the remaining period of sentence with default clause. Accused-appellant Uda Singh alias Uda is on bail as his sentence was suspended by this court on his application for suspension of sentence. His personal bond/surety bonds stand discharged. He has to surrender before the jail authority concerned to suffer the remaining period of sentence with default clause. However, the period for which the accused-appellants remained in jail during trial, shall be counted for the purpose of Section 428 of the Cr.P.C. towards the period of sentence awarded to them. The revision petition filed by complainant-petitioner is dismissed.