JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the original accused who have been convicted for the offence punishable under sections 302, 324 read with section 34 of IPC by the learned Additional Sessions Judge, Panchmahal at Godhra under the judgment dated 29.12.2011. 2. Briefly stated the prosecution version was that deceased Ranjit's wife Muniben had some dispute with her husband. Muniben was therefore residing at her matrimonial home. Ranjit had gone to her place for bringing about a settlement and to bring back his wife. At that time, Janabhai-accused No. 2, father of Muniben and his other two relatives accused No. 1 and accused No. 3 assaulted Ranjit with axe, stick and Sambela, a kitchen equipment made of solid log of wood, causing his death. Ranjit's son Hitesh has also gone with his father. He rushed back to report the incident to Sekadiabhai, father of Ranjit who lived nearby. Sekadiabhai thereupon went to the house of the accused. He was also assaulted by these three accused with the respective weapons causing grievous injuries to Sekadiabhai. The charge to that effect therefore was framed at Exh. 12 alleging that the accused had committed offences punishable under sections 302 and 324 read with section 34 of IPC and section 135 of the Bombay Police Act. 3. Hitesh, PW-2, Exh. 60, son of Ranjitbhai was aged about 10 years at the time of incident. He was the son of Ranjit's first wife. He deposed that on the night of the incident, he was at home, watching T.V. when his father asked him to accompany him to call Muniben who was at the house of the accused. He had gone to the house of Bhudarbhai, accused No. 1. When they reached there, accused No. 2-Janabhai was standing near the door of his house. Janabhai pulled his father inside the house and first threw dried chilly powder in his eyes. Janabhai gave axe blows to his father on his back. Bhudar Dhana, accused No. 1 gave stick blow. He had seen the incident. He thereupon ran to his house to call his grandfather Sekadiabhai. He reported to his grandfather that Janabhai and Bhudarbhai, accused No. 2 and accused No. 1 respectively had killed his father. He and his grandfather went to the house of Janabhai Bhudarbhai. Bhudar Dhana, accused No. 1 gave stick blow. He had seen the incident. He thereupon ran to his house to call his grandfather Sekadiabhai. He reported to his grandfather that Janabhai and Bhudarbhai, accused No. 2 and accused No. 1 respectively had killed his father. He and his grandfather went to the house of Janabhai Bhudarbhai. At which time, Bhavsingh, accused No. 3 gave a blow to his grandfather with a log of wood. Bhudar-accused No. 1 hit him with a stick. He again ran back to call his mama Gamabhai. When he returned, he found that his father had died, but grandfather was still breathing but unconscious. In the cross-examination of this witness, nothing substantial has come out. 4. Sekadiabhai Manjibhai, PW-10, Exh. 57, the injured witness deposed that Ranjit was his son. He has taken divorce from his first wife and married Muni. On the date of incident, Ranjit had gone to the house of Janabhai Bhudarbhai to call his wife with his son Hitesh. The three accused had assaulted him, upon which, Hitesh had ran back to inform him and told him that Janabhai Bhudarbhai had given axe blow to the deceased and Bhudarbhai had hit him with a stick. When he went there, Janabhai Bhudarbhai was standing with an axe. Bhudar had a stick and Bhavsingh had a log of wood. Janabhai Bhudarbhai gave an axe blow to him on the neck. In the cross-examination, he agreed that from his house, first would come the house of Janiabhai on a hillock. On another hillock, there would be house of Bhudarbhai. His house was separated by three or four hillocks from the house of Janabhai and Bhudarbhai. Upon hearing the noise from Hitesh, he had gone running with a stick in his hand. He denied that in the process, he had fallen down and that is how he has got injuries. He denied that he and Ranjit had gone to the house of deceased with Ranjit carried an axe. 5. Gamabhai Sekadiabhai, PW-11, Exh. 58 was brother of deceased Ranjit. He also referred to Hitesh and Ranjit going to the house of Janabhai Bhudarbhai to call Ranjit's wife back and later on Hitesh running to tell him about the assault by Janabhai Bhudarbhai and others. He had also gone to the place and on the way, he had met Metarbhai Parsingbhai, PW-3 who had lodged the complaint. He also referred to Hitesh and Ranjit going to the house of Janabhai Bhudarbhai to call Ranjit's wife back and later on Hitesh running to tell him about the assault by Janabhai Bhudarbhai and others. He had also gone to the place and on the way, he had met Metarbhai Parsingbhai, PW-3 who had lodged the complaint. 6. Metarbhai Parsingbhai, PW-3, Exh. 30 was a relative of the deceased and lived in the same locality. He claimed to be an eyewitness. He lodged FIR, Exh. 31. In the cross-examination, however, he agreed that all the houses were situated on different hills. 7. PW-8, doctor Parasram Patel, Exh. 51 had carried out postmortem on the dead body of Ranjit. In his deposition as well as in the postmortem note Exh. 52, he referred to the following external injuries. "1. Lorge oval shape Incised wound over lumber resign over & around the spinal cord a. I.W. Oval shape size about 7 cm LONG X 3 CM WIDE 2.6 deep muscles, nerves of vessel sent b. other I.W. of over shape C clear adges size about 7.5 cm x 3.5 x 6 cm deep just below 1st wound (over spiral cord. Cut spinal card of L2 L3 c. 3rd wound oval shape size about 7.5 cm x 4cm wide & 7 cm deep just below 2nd wd. Howatowa between spiral card & duestival post found. 2. Stab wound size about 4 cm deep, 2 cm wide, 2 cm long over L side of face and nose bones and moxila bone. 3. IW oblique C clear adges sized about 11 cm x 2 cm size & 3 cm deep over L side of Lower back" Corresponding to such external injuries, he had recorded that there was a fracture on L2, L3, vertebral bodies and damage to nerves and vessels. There was a fracture of the nosal bone also. In his opinion, death occurred due to hemorrhagic shock caused by assault and injuries over spinal code by heavy, hard and sharp object. In the examination-in-chief, he stated that the injuries mentioned in column No. 17 (those referred to herein above) could be caused by the muddamal article axe. He was shown the stick and the wooden log and stated that these objects could cause injuries mentioned in column No. 18 and those on the spinal code. This later deposition of the witness is somewhat confusing. He was shown the stick and the wooden log and stated that these objects could cause injuries mentioned in column No. 18 and those on the spinal code. This later deposition of the witness is somewhat confusing. To begin with, in column No. 18 of the postmortem note, he has not referred to any specific injuries. He had only stated that all injuries noted in column No. 17 were antemortem. Further, in the cross-examination, he clarified that the injuries mentioned in column No. 17 could be caused by an axe. All the three injuries could have been caused by the same weapon viz. the axe used from the sharp side and not the blunt part. He clarified that the injuries could be related only to a sharp cutting instrument and not a blunt substance such as a stick or log of wood. 8. Dr. Ramprakash Gupta, PW-9, Exh. 54 had treated injured Sekadiabhai at Chhotapur community health center where he was posted as medical officer at the relevant time. His deposition and the injury certificate Exh. 55 referred to the following injuries: "1. Incised would on chin and left side mandible 4 X 1/4 cm Skin deep. 2. Multipia abraded contusion on right side chest, left arm and left side face. 3. B/L Ear bleedi. 4. Contusion on T/M Joint? Fracture left side mandible Refer to ENT and SCMO." 9. He stated that injury No. 1 could be caused with sharp side of an axe. Injury No. 2 with a blunt part of an axe. Injury Nos. 3 and 4 could be caused by either a stick or a log of wood. 10. Various articles collected during the course of investigation were sent for forensic analysis. The investigating agency had recovered a broken log of wood from the scene of incident and discovered the axe at the instance of No. 2 under the Panchnama. The forensic science laboratory report read with serological report, Exh. 76, would show that the blood group of the deceased as well as that of injured Sekadiabhai was 'B'. The blood of same group was detected from the piece of wood, the axe, the shirt of the accused No. 1, his show, the shirt of accused No. 2 and the pant worn by accused No. 3. This, in the nutshell, is the evidence on record. 11. The blood of same group was detected from the piece of wood, the axe, the shirt of the accused No. 1, his show, the shirt of accused No. 2 and the pant worn by accused No. 3. This, in the nutshell, is the evidence on record. 11. On the basis of such evidence, it can be seen that Hitesh, the minor son of deceased Ranjit, was an eyewitness. As pointed out by him, his father asked him to accompany him to go to the house of Janabhai where Muniben, Ranjit's wife was residing temporarily. When they went to the house, Janabhai dragged him into the house and gave axe blows. According to this witness, Bhudarbhai, accused No. 1 also gave a stick blow to his father. He rushed back to inform this incident to his grandfather Sekadiabhai and came back to the place of incident with the grandfather. We have no reason to disbelieve the version of this witness. Though a child witness, he had given a fairly clear and consistent account of the incident. The defense could not shake his deposition in the cross-examination. Even if for our own confidence, we would have looked for corroboration to the deposition of this witness, it was easily available in the form of the deposition of Sekadiabhai himself. It was him to whom Hitesh had informed, upon which, Sekadiabhai PW-10 had rushed to the house of the accused. He was also assaulted by all three accused when he reached the site. He saw all the three accused present there with a stick, axe and log of wood respectively. 12. Deposition of these witnesses get ample support from the medical evidence. Doctor Parasram Patel, PW-8, Exh. 51 who had carried out the postmortem, has noted three serious injuries on the back of the injured besides couple of other injuries on the other parts of the body. These three injuries could have been caused by sharp and hard substance. These injuries led to fracture on the spine and severance of the vain and the muscles. These injuries ultimately resulted into death. He opined that the remaining injury could have been caused by a blunt substance like stick or a log of wood. Likewise, injuries on Sekadiabhai were noticed by doctor Ramprakash Gupta, PW-9, who had treated him. He had noticed four injuries. Injury No. 1 and 2 could be caused by an axe. Nos. These injuries ultimately resulted into death. He opined that the remaining injury could have been caused by a blunt substance like stick or a log of wood. Likewise, injuries on Sekadiabhai were noticed by doctor Ramprakash Gupta, PW-9, who had treated him. He had noticed four injuries. Injury No. 1 and 2 could be caused by an axe. Nos. 3 and 4 with a stick or a log of wood. 13. Insofar as the involvement of the three accused in causing injuries to deceased Ranjit and his father Sekadiabhai is concerned, the prosecution has led sufficiently reliable evidence in this respect. We are prepared to discard the testimony of PW-3 Metarbhai, the first informant. He could not have been an eye-witness to the assault on Ranjit. By all accounts, Ranjit and Hitesh alone were present when the three accused assaulted Ranjit. Hitesh ran back to inform his grandfather and Metarbhai would reach only thereafter and there was no possibility of Metarbhai having reached the site even when the assault on Ranjit was going on. In his cross-examination, he had admitted that the houses are located in the localities on small hill. From his house, one would have to climb down into a slop and climb up a slop again to reach the house of the accused. Likewise, Gamabhai, PW-11 was neither an eye-witness nor claimed to be one. In his deposition, he himself stated that he was told by Metar Bhavsingh that Ranjit was assaulted by the three accused. However, discarding the depositions of these two witnesses would not shake the foundation of the very prosecution case so far the assault on Ranjit and later on his father Sekadiabhai is concerned. From the evidence, it becomes clear that Ranjit was first assaulted by accused No. 2 Janabhai with an axe. He was repeatedly given blows on his back. Accused No. 1 Bhudarbhai had also given him one blow with a stick. Hitesh, PW-12, the sole eyewitness, does not refer to any blow given by accused No. 3 Bhavsingh to Ranjit. Learned APP however, attempted to demonstrate from the medical evidence the presence of one blow with a 'Sambela' (log of wood). In our opinion, evidence of doctor Parasram Patel, PW-8 cannot be so read as to hold that there must have been at least one blow given by the accused with the Sambela. Learned APP however, attempted to demonstrate from the medical evidence the presence of one blow with a 'Sambela' (log of wood). In our opinion, evidence of doctor Parasram Patel, PW-8 cannot be so read as to hold that there must have been at least one blow given by the accused with the Sambela. Firstly, the nature of injuries referred to by the doctor which can be caused by hard and blunt substance, could be attributed either to a stick or to the piece of wood. Secondly, though in the examination-in-chief, the doctor attributed one of the injuries on the back with a hard and blunt object, in the cross-examination, clarified that all the three injuries could have been caused only by a sharp instrument such as axe. Even otherwise, in absence of an eyewitness account suggesting that accused No. 3 had used Sambela and caused injury to Ranjit, involvement of this accused cannot be taken to have been established. From the record, it thus emerges that Ranjit was assaulted repeatedly with axe by accused No. 2-Janabhai and once by Bhudarbhai with a stick. 14. Coming to the attack on Sekadiabhai, his own evidence would be of great importance. This witness, PW-10 had reached the place of incident, upon being informed by his grandson that Ranjit was beaten by the accused. According to his deposition, when he reached there, the three accused were standing with the stick, axe and Sambela respectively. Janabhai- accused No. 2 had hit him with an axe on the neck. In addition to his deposition, we may also refer to Hitesh, PW-12, son of the deceased. He had pointed out that Bhavsingh, accused No. 3 had hit his grandfather with the sambela and Bhudarbhai, accused No. 1 had hit him with a stick. These statements by the witnesses get corroboration from the evidence of doctor Ramprakash Gupta, PW-9, who had treated Sekadiabhai. As noted, he had recorded four injuries in his injury certificate. He had found a fracture on the collar bone, injury on the nose. He had opined that two of these injuries could be caused by an axe and the other two by hard blunt substance such as stick and sambela. We therefore has no hesitation in coming to the conclusion that all the three accused had caused injuries to Sekadiabhai. 15. He had opined that two of these injuries could be caused by an axe and the other two by hard blunt substance such as stick and sambela. We therefore has no hesitation in coming to the conclusion that all the three accused had caused injuries to Sekadiabhai. 15. Insofar as accused No. 2 is concerned, he had used a weapon as an axe, gave multiple blows to Ranjit on his back with great force and caused his instantaneous death. Accused No. 2 was therefore correctly convicted for offence under section 302 of IPC. The crucial question however is, can either of the two remaining accused be convicted for the same offence that with the aid of section 34 of IPC? In this context, we may recall that we have not accepted the version of the prosecution that accused No. 3 had caused any injury to deceased Ranjit. Though accused No. 1 did use stick to give one blow to Ranjit, this blow was not on any vital part of the body. The incident happened at the residence of the accused. It was thus not a case where the accused armed themselves with different weapons and went to the place of the deceased. Premeditation or pre-planning is thus ruled out. This however, does not mean that applicability of section 34 of IPC, sharing of common intention by different accused, would be automatically ruled out. It is well settled that even without pre-planning, common intention can emerge while an act is committed or is in the process of being committed. In the present case, however, one cannot lose site of the fact that an axe, a stick and a sambela are the common household or agricultural implements always available in a household in a rural area, particularly engaged in agricultural activities. On one hand thus, the incident took place at the residence of the accused where the deceased himself had come to take his wife back and on the other hand, the weapons used were predominantly agricultural household implements, which would be handy in the house of the accused. The incident thus, happened at the spur of the moment and no sharing of the common intention can be culled out either from the direct evidence of the witnesses or from the proved facts. The incident thus, happened at the spur of the moment and no sharing of the common intention can be culled out either from the direct evidence of the witnesses or from the proved facts. Each accused would therefore be responsible for his individual act and no vicarious liability can be attached with the aid of section 34 of IPC. Therefore, while confirming the conviction and sentence of accused No. 2 for offence under section 302 alongwith section 324, the conviction and sentence of accused No. 1 and accused No. 3 for offence under section 302 read with section 34 must be deleted. 16. In the result, the appeal is disposed of with following directions: "1. Conviction and sentence of accused No. 2 for offence under sections 302 and 324 of the IPC is confirmed. Appeal qua him is dismissed. 2. Conviction and sentence of accused No. 1 and accused No. 3 for offence under section 302 read with section 34 of IPC is set aside. Their conviction and sentence for offence under section 324 is confirmed. Appeal qua them is allowed in part." We are informed that accused No. 1 and accused No. 3 have already undergone sentence far in excess of what we have confirmed in this appeal. Accused No. 3 who is in jail, shall be released forthwith, if not required in any other criminal case. Bail bond of accused No. 1 is discharged.