JUDGMENT Hon’ble Bharat Bhushan, J.—Sole surviving appellant Udai Veer Singh has assailed the judgment and order dated 12.10.1983 passed by Vth Additional Sessions Judge, Meerut in Sessions Trial No. 298 of 1982, (State v. Hukum Singh and others) under Section 302 read with Section 34 of Indian Penal Code (in short, IPC) arising out of Case crime No. 130 of 1982 Police Station Inchauli, whereby appellant was convicted and sentenced to life imprisonment. 2. Initially three accused, namely, Hukum Singh, Udai Veer Singh and Inder Singh alias Jaswant Singh were charged and tried under Section 302 read with Section 34 IPC and thereafter, convicted and sentenced, as aforesaid. During pendency of this appeal, two appellants, namely, appellant No. 1 Hukum Singh and appellant No. 3 Inder Singh @ Jaswant Singh have died and appeal filed on their behalf stand abated in view of orders 30.4.2012 and 17.5.2016 of coordinate Benches of this Court. This Court is now concerned with appeal of surviving appellant Udai Veer only. 3. Prosecution case, in brief, is that on 9.7.1982 Sohan Singh (PW-3) younger brother of complainant Mangey Ram (PW-2) was irrigating his agriculture field from tubewell. This water started seeping into the agriculture farm of Inder Singh. Sohan Singh picked up some mud from the farm of Inder Singh to block this seepage into his field but this enraged Inder and thereafter he chased Sohan Singh for violent physical attack but Sohan Singh managed to escape towards village abadi. 4. Meanwhile deceased Phool Singh, father of informant Mangey Ram (PW-2) was returning from the ‘Gher’ (compound) of one Veer Singh after taking bath. Late Inder Singh (Abated), his brother appellant Udai Veer and their father Late Hukum Singh (Abated) accosted Phool Singh. By that time late Inder Singh had acquired a Khanti (Iron rod), late Hukum Singh and appellant Udai Veer lathies. Appellant and his late companions shouted that Sohan Singh has managed to slip away, therefore, his father Phool Singh be attacked. Udai Veer and Hukum Singh grappled with deceased Phool Singh and Inder Singh attacked him with Khanti (Iron rod) at about 2:00pm. PW-2 Mangey Ram raised alarm. Some other village folks namely, Mewa Lal (not examined), Katar Singh (not examined) and PW-5 Shiv Pal arrived on the spot. All these persons said to have witnessed the incident. Phool Singh succumbed to his injuries almost simultaneously. PW-2 Mangey Ram raised alarm. Some other village folks namely, Mewa Lal (not examined), Katar Singh (not examined) and PW-5 Shiv Pal arrived on the spot. All these persons said to have witnessed the incident. Phool Singh succumbed to his injuries almost simultaneously. His corpse was lying inside the door of Veer Singh’s ‘Gher’ (compound). Mangey Ram (PW-2) lodged First Information Report (in short, FIR) at 3:05pm at Police Station Inchauli, District Meerut, which was located at about 9 kms. from the place of occurrence. Inquest proceedings were initiated and investigation ensued. Cadaver of deceased was sent for postmortem which was conducted by PW-1 Dr. Vijay Singh, the then Medical Officer, Pyarey Lal Sharma Hospital, Meerut (in short, P.L.Sharma) Hospital, Meerut. Initial investigation was conducted by PW-6 S.I. Udai Vir Singh Tomer, the then Incharge, Police Station Inchauli. Later on, investigation was completed by PW-7 J.C.Dixit, the then Sub Inspector of Police, Police Station Inchauli. After investigation, charge-sheet (Ex. Ka.) was filed against late Hukum Singh, late Inder Singh and surviving appellant Udai Veer Singh under Section 302 IPC. The case was committed to the Court of Sessions vide order dated 20.8.1982. The trial Judge framed charges against all three accused under Section 302 read with Section 34 IPC on 4.1.1983. 5. During course of trial, evidence of PW-1 Dr. Vijay Singh (conducted autopsy) PW-2 Mangey Ram (informant/eye-witness), PW-3 Sohan Singh (son of deceased), PW-4 Constable Om Prakash (took corpse for postmortem), PW-5 Shiv Pal Singh (eye-witness), PW-6 Udai Veer Tomar (Ist Investigator), PW-7 (IInd Investigator) and PW-8 Head Constable Raj Singh (recorded FIR) were recorded. 6. Statements of appellants were recorded under Section 313 Cr.P.C. wherein they denied all the allegations. However, all of them admitted the existence of prior enmity. Late accused Inder Singh pleaded alibi while surviving appellant Udai Veer Singh pleaded right of private defence. Three formal witnesses were produced on behalf of accused persons. DW-1 Dr. Fariduddin had examined Smt. Bhagwati, wife of late Hukum Singh on 11.7.1982 and found four injuries on her person i.e. after two days of incident. After another two days, X-ray examination was conducted upon her on 13.7.1982 by DW-2 Dr. N.S.Pal, the then Radiologist, P.L.Sharma Hospital, Meerut. DW-3 Dr. S.K.Tyagi had conducted medical examination of surviving appellant Udai Veer Singh in the night of 10.7.1982 at about 2:15am and found four injuries on his person. 7. After another two days, X-ray examination was conducted upon her on 13.7.1982 by DW-2 Dr. N.S.Pal, the then Radiologist, P.L.Sharma Hospital, Meerut. DW-3 Dr. S.K.Tyagi had conducted medical examination of surviving appellant Udai Veer Singh in the night of 10.7.1982 at about 2:15am and found four injuries on his person. 7. After conclusion of trial, learned trial Judge found enough evidence to hold surviving appellant Udai Veer Singh, late Hukum Singh and late Inder Singh guilty of offence under Section 302 read with Section 34 IPC vide judgment and order dated 12.10.1983 and sentenced them to life imprisonment. This judgment is under challenge before this Court. 8. Heard Sri Dilip Kumar and Sri Rajrshi Gupta, on behalf of surviving appellant Udai Veer Singh and learned Additional Government Advocate. 9. Learned counsel for the appellant has submitted that prosecution has not explained the injuries sustained by appellant Udai Veer Singh and his mother Bhagwati Devi, therefore, they have suppressed the genesis of incident by cooking up false story. Learned counsel has insisted that defence version is enough to reject the prosecution evidence. He has further argued that FIR was ante-timed which is manifest from several documents prepared by the Investigating Officer (in short, I.O.). He has also claimed right of private defence arguing that Sohan Singh (PW-3) son of deceased Phool Singh had stopped the irrigation channel by obstructing it with mud reducing the flow of water to their field. Udai Veer claimed that he had slapped Sohan Singh whereupon on the same day at 2:00pm, Phool Singh and his sons Mangey Ram (PW-2) and Sohan Singh (PW-3) armed with lathi entered into their ‘Gher’ (compound) and assaulted appellant Udai Veer. When his mother Bhagwati Devi tried to rescue him, she was also beaten. Udai Veer Singh claimed to have retaliated in exercise of his right of private defence. Learned counsel for the appellant has also submitted that no independent witness has been produced and the evidence which has been produced is contradictory and not reliable. 10. Per contra, learned Additional Government Advocate (in short, AGA) has disputed the argument of learned counsel for the appellant saying that there is no evidence to demonstrate that incident occurred in the ‘Gher’ (compound) of appellants. In fact, corpse of deceased was found inside the door of ‘Gher’ (compound) of Veer Singh. He has further submitted that incident occurred within same clan. In fact, corpse of deceased was found inside the door of ‘Gher’ (compound) of Veer Singh. He has further submitted that incident occurred within same clan. Most of their residences are nearby and that even accused persons and family of deceased are closely related. Late Hukum Singh is real brother of deceased Phool Singh, therefore, the argument that prosecution evidence should not be believed merely because no independent witness has been produced, is not acceptable. Learned counsel has further argued that the fact that incident occurred in the ‘Gher’ (compound) of Veer Singh itself indicates that it was per-arranged plan hatched and executed thereafter. Deceased Phool Singh was attacked in furtherance of such plan. In such a scenario, right of private defence did not accrue in favour of surviving appellant. Learned AGA has also submitted that surviving appellant Udai Veer Singh had physically grabbed the deceased Phool Singh thereby facilitating the attack by Inder Singh and therefore, he is guilty of offence of Section 302 read with Section 34 IPC especially in the light of the fact that sharp and passionate utterances were made by appellants before killing deceased thus unmasking their murderous intentions. 11. Bare perusal of evidence would reveal that both families are related to each other. In fact, late appellant Hukum Singh was the real brother of deceased Phool Singh. Almost all the witnesses and accused belonged to same clan. The evidence of PW-2 Mangey Ram discloses two episodes. In the first instance, PW-3 Sohan Singh had an altercation with co-accused late Inder Singh. It is alleged that PW-3 Sohan Singh was irrigating his agriculture field. But some water was percolating into the field of Inder Singh, therefore, Sohan Singh took some mud from the field of Inder Singh for blocking the flow of water in his field. Apparently, there was prior tension in the family. Rival parties belong to same same clan yet there was antagonistic relationship between them. All the accused persons have also admitted existence of prior enmity with deceased and his family in their statement under Section 313 Cr.P.C. 12. Sohan Singh (PW-3) took mud from the agriculture field of Inder Singh to block the flow of water in his farm but, this infuriated Inder Singh who threatened him and ran towards Sohan Singh (PW-3) for assault. Feeling threat, Sohan Singh (PW-3) ran towards village and went into hiding. Sohan Singh (PW-3) took mud from the agriculture field of Inder Singh to block the flow of water in his farm but, this infuriated Inder Singh who threatened him and ran towards Sohan Singh (PW-3) for assault. Feeling threat, Sohan Singh (PW-3) ran towards village and went into hiding. Meanwhile, deceased Phool Singh, father of Sohan Singh, and informant Mangey Ram was returning from the ‘Gher’ (compound) of Veer Singh after taking bath. He was accosted by accused persons. Inder Singh had meanwhile managed to bring appellant Udai Singh and late Hukum Singh alongwith him and they also acquired weapons. Inder Singh was having Khanti (Iron rod) and appellants Udai Veer Singh and late Hukum Singh were wielding lathies. Late Hukum Singh and appellant Udaiveer Singh reportedly abandoned their lathies and grabbed deceased Phool Singh. Late appellant Inder Singh attacked deceased Phool Singh at his head by using Khanti (Iron rod) at 2:00pm in the day time. Deceased Phool Singh died instantaneously. PW-2 Mangey Ram was nearby. In fact, site-plan has disclosed that residences of both accused persons are located in the same ‘Gher’ (compound) and that of deceased Phool Singh was located across the ‘Gher’ (compound) of Veer Singh. A north-south road bifurcates the place of occurrence, the residence of accused persons, and ‘Gher’ (compound) of deceased Phool Singh, therefore, presence of Mangey Ram is not surprising. 13. The testimony of PW-2 Mange Ram, therefore, can be divided into two parts; one part discloses the events occurred at the agriculture field between Sohan Singh (PW-3) and late appellant Inder Singh. Second portion reflects the incident, wherein three accused persons attacked, wounded and caused death of deceased Phool Singh. The evidence indicates that this second incident occurred in presence of Mangey Ram (PW-2). He was of course not present at the time of earlier incident. 14. Learned counsel for the appellant has argued that mere fact that even earlier stated incident was disclosed in the FIR indicates that concoction was done because according to him evidence discloses that Sohan Singh (PW-3) did not meet Mangey Ram prior to recording of FIR. We are afraid, this argument is not sustainable. PW-2 Mangey Ram has specifically asserted that incident in which his father died occurred in his presence. He, in fact raised alarm. As far as earlier part of incident is concerned that was communicated to him by Sohan Singh (PW-3). We are afraid, this argument is not sustainable. PW-2 Mangey Ram has specifically asserted that incident in which his father died occurred in his presence. He, in fact raised alarm. As far as earlier part of incident is concerned that was communicated to him by Sohan Singh (PW-3). The prosecution evidence indicates that PW-2 Mangey Ram was in his ‘Gher’ (compound) which was across ‘Gher’ (compound) where incident took place. He has specifically stated in paragraph12 of his testimony that he did have some conversation with PW-3 Sohan Lal, while he was dictating the FIR to Brij Pal Singh. 15. Same facts have been reiterated by PW-3 Sohan Singh in his testimony. He has testified that initial incident occurred at agriculture field but he managed to escape. He did return to the place of occurrence after hearing commotion of children. He has deposed that he narrated entire earlier incident to his brother while he was dictating the FIR and later on to I.O. Learned counsel for the appellant has drawn the attention of this Court towards evidence wherein PW-2 Mangey Ram has said that Sohan Singh met him after 20-25 minutes of incident and he did not have any conversation with Sohan Singh prior to dictation of FIR. Learned Counsel for appellant has submitted that if Mangey Ram did not have any conversation with Sohan Singh, there was no occasion for him to know earlier incident occurred in the agriculture field of Inder Singh. It is argued that FIR has been concocted and ante-timed. We are afraid, this argument pre-supposes that witness must depose with mathematical precision. We do not believe that evidence of witnesses should be appraised in such manner. Ordinarily, witnesses are overtaken by events. Deceased Phool Singh was father of both Mangey Ram and Sohan Singh. Deceased Phool Singh went across the road for taking bath while Sohan Singh went to watering the agriculture field. Everything was normal and suddenly, first Sohan Singh was assaulted and thereafter, deceased Phool Singh was done to death. This obviously was a very traumatic moments for both brothers. Therefore, to expect them to behave as human tape-recorder would be unrealistic and unreasonable. Everything was normal and suddenly, first Sohan Singh was assaulted and thereafter, deceased Phool Singh was done to death. This obviously was a very traumatic moments for both brothers. Therefore, to expect them to behave as human tape-recorder would be unrealistic and unreasonable. The essence of evidence of both PW-2 Mangey Ram and PW-3 Sohan Singh is that Sohan Singh arrived at the place of occurrence just when his brother was dictating the FIR and that made it possible for his brother to include earlier part of the incident as well in the contents of FIR. 16. We can examine it from another angle. Suppose PW-2 Mangey Ram was not aware of earlier part of incident, then there was no occasion for him to include that incident in his FIR. The FIR would not have lost value merely because the earlier stated incident occurred between Sohan Singh and late appellant Inder Singh had not been mentioned. Mangey Ram has very simply stated that earlier incident was communicated to him by Sohan Singh. This was fortified by PW-2 Sohan Lal. It is pertinent to point out that Sohan Singh has admitted that he escaped from agriculture field and hid himself at a place just 200 yards away from the place of occurrence and that he came immediately at the place of second occurrence after hearing the wild uproar erupted by children due to incident. The statement of PW-2 Mangey Ram that he did not meet Sohan Singh for first 25 minutes after death of his father is obviously based on guess work only. Surely, he was not observing the watch at the time of incident in anticipation of these questions. 17. The incident is further reinforced by the evidence of PW-5 Shiv Pal Singh, another member of clan. His compound is also located across the place of occurrence. He has testified that he came out after hearing the commendation and saw that appellant Udai Veer Singh and late appellant Hukum Singh had physically grabbed deceased Phool Singh and late appellant Inder Singh used Khanti (Iron rod) to beat him. He has also supported the claim of presence of Mangey Ram on the spot. 18. He has testified that he came out after hearing the commendation and saw that appellant Udai Veer Singh and late appellant Hukum Singh had physically grabbed deceased Phool Singh and late appellant Inder Singh used Khanti (Iron rod) to beat him. He has also supported the claim of presence of Mangey Ram on the spot. 18. We have carefully examined testimonies of Mangey Ram (PW-2), Sohan Singh (PW-3) and Shiv Pal Singh (PW-5) and we believe that cumulatively their evidence has been able to establish the case of the prosecution i.e. deceased Phool Singh was grabbed by late Hukum Singh and Udai Veer Singh at 2:00pm on 9.7.1982 at ‘Gher’ (compound) of Veer Singh while deceased Phool Singh was returning after taking bath and that late Inder Singh hit him at head with Khanti (Iron rod) with sharp edge. As far as Shiv Pal Singh is concerned, both families are related to him. Deceased was real uncle. Similarly late Hukum Singh was also his uncle and both Udai Veer Singh and Inder Singh are his first cousins. Therefore, there was no reason for him to falsely implicate the appellant. 19. Learned counsel for the appellant has submitted that there are vast discrepancies between evidence of these witnesses. PW-2 has stated that he met Sohan Singh after dictating substantial part of FIR while at another place, he has said that he dictated FIR after 5 minutes of assault on his father. He has also drawn attention of this Court by saying that when PW-2 Mangey Ram asked Sub Inspector of Police (in short, S.I.) to record FIR, S.I. asked him to give the written report. Counsel for appellant has submitted that this indicates that report had not been written till appearance of Mangey Ram at the Police Station. We are afraid, these so called discrepancies are very minor in nature. Prosecution evidence demonstrates that a report was prepared before reaching the Police Station that by itself reflects that report was not ante timed. Inquest report (Ex Ka-3) was prepared on the same day by 6:30pm and it contains the crime number and details of crime very explicitly. Not only this, the dead body was sent to mortuary same day by 8:30pm. Papers, Ex Ka-5 and 6 executed on the spot, also contain crime number and other details of case. Inquest report (Ex Ka-3) was prepared on the same day by 6:30pm and it contains the crime number and details of crime very explicitly. Not only this, the dead body was sent to mortuary same day by 8:30pm. Papers, Ex Ka-5 and 6 executed on the spot, also contain crime number and other details of case. Minor discrepancies disclosed by learned counsel for the appellant are not sufficient for disbelieving their statements on oath. Incident occurred at 2:00pm on 9.7.1982, FIR lodged at 3:05 and corpse was at mortuary by 8:30pm. There was no possibility of ante-timing of FIR. 20. Learned counsel for appellant has also submitted that FIR was sent to Magistrate after few days in violation of provisions of Section 157 Cr.P.C. and that would make FIR suspicious. It is true that Section 157 Cr.P.C. enjoins the I.O. to forthwith send report of cognizable offence to the Magistrate so that concerned Magistrate may be able to supervise the investigation, if required. But, mere delay in dispatch of FIR to the Magistrate by itself is no ground to discard prosecution case completely. Sometimes, delay in dispatch of FIR can be suspicious but not in each and every case. Mere technical violation of provisions of Section 157 Cr.P.C. is not by itself sufficient to throw the complete prosecution case. In the present case, the incident was witnessed by several persons. Medical report also indicates that incident occurred somewhere around 2:00pm on 9.7.1982. This conclusion of PW-1 Dr. Vijay Singh was not challenged during cross-examination. In fact, doctor was not cross-examined at all. As far as date and time of death of deceased Phool Singh is concerned, there is no dispute. It was also natural for dependents of deceased Phool Singh to rush to Police Station. PW-8 Head Constable Raj Singh has deposed that FIR was lodged at 3:05pm on 9.7.1982. Inquest report was prepared on the same day and this fact has been fortified by testimony of PW-6 Udai Vir Tomar, the first I.O. as well. The documentation was done on the spot which enshrined crime number thereby obviating any possibility of ante timing of FIR. 21. Learned counsel for the appellant has also raised the plea of right of private defence. The documentation was done on the spot which enshrined crime number thereby obviating any possibility of ante timing of FIR. 21. Learned counsel for the appellant has also raised the plea of right of private defence. He has submitted that incident occurred other way round; that deceased and his son Mangey Ram and Sohan Singh went to the ‘Gher’ (compound) of rival party and assaulted Udai Veer and thereafter his mother Bhagwati Devi. Appellant Udai Veer and his mother Bhagwati Devi sustained injuries in the process which have not been explained by prosecution. Counsel for appellant has placed reliance on the judgment of Apex Court in Darshan Singh v. State of Punjab and another, (2010) 2 SCC 333 . 22. Learned counsel for the appellant has submitted that it was the duty of the prosecution to explain the injuries sustained by Udai Veer and his mother Bhagwati Devi and that in absence of any explanation, his claim of right of private defence should be accepted. There is no doubt that criminal law does contemplate a right of private defence to the persons under attack. The provisions in this regard are enshrined under Sections 96 to 106 IPC. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. Law provides right to protect one’s physical person and property against illegal aggression by other person though such protection is not beyond the necessity of events. The Apex Court in Darshan Singh case (Supra) delineated the following process : “(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well-settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.” 23. First of all, it is pertinent to point out that there is nothing on record to support the plea of right of private defence. Not a single witness of fact has supported directly or indirectly the claim of right of private defence. No evidence has been given on behalf of appellants in support of this claim. It is true that it is not necessary to give evidence in defence to claim right of private defence. Right of private defence depend on the material on record. Statement under Section 313 is not sufficient. It is pertinent to point-out that late appellant Hukum Singh did not claim right of private defence. Another appellant late Inder Singh claimed plea of alibi. Only surviving appellant Udai Veer has claimed right of private defence. They claimed to have been beaten inside their house by deceased Phool Singh and his sons. In fact, his mother Bhagwati Devi was also allegedly beaten in the same incident. Another appellant late Inder Singh claimed plea of alibi. Only surviving appellant Udai Veer has claimed right of private defence. They claimed to have been beaten inside their house by deceased Phool Singh and his sons. In fact, his mother Bhagwati Devi was also allegedly beaten in the same incident. Now, this contention is based on the claim that stated incident occurred inside ‘Gher’ (compound) of late Hukum Singh etc. and that Udai Veer and his mother were injured in this attack and thereafter, Udai Veer retaliated. Relevant portion of statement of Udai Veer Singh recorded under Section 313 Cr.P.C. is reproduced below: ^^9-7-1982 dks gekjs V;wc oSy dk ikuh gekjs Tokj ds [ksr esa tk jgk Fkk djhc ,d cts fnu eSusa ns[kk ukyh esa ikuh de gks x;k gS eSa ukyh ns[kus ihNs dks x;k rks ns[kk ukyh lksgu flag us vius bZ[k ds [ksr esa dkV yh Fkh lksgu flag Qwy flag e`rd dk yM+dk gS eSusa lksgu flag dks FkIiM+ ekjs vkSj ikuh mlds [ksr esa tkus ls jksd fn;k mlh fnu djhc nks cts fnu Qwy flag o mlds yM+ds lksgu o ekaxsjke ykfB;ka ysdj gekjs ?ksj esa vk, vkSj dgk fd lksgu flag dks ekjus dk etk p[kk,sxsa mUgksaus gekjs lkFk ekjihV dh esjh ekrk Hkxorh cpkus dks vkbZ mls Hkh ekjk esjs o esjh eka ds pksVsa vkbZ geus vius cpko ds fy, ekjihV dhA** 24. This statement reflects two things that incident occurred in the compound of late appellant Hukum Singh and deceased Phool Singh and sons assaulted them with lathies in which mother of surviving appellant Udai Veer, Bhagwati Devi also sustained injuries. As stated earlier, there is not iota of evidence in support of claim of right of private defence but three formal witnesses DW-1 Dr. Fariduddin, DW-2 Dr. N.S.Pal and DW-3 Dr.S.K.Tyagi have been produced to demonstrate existence of injuries on the person of appellant Udai Veer and his mother Bhagwati Devi. First of all, Bhagwati Devi, injured and Udai Veer have not been testified in the Court. The original injury report of Bhagwati Devi was also not produced by the defence. A photocopy of injury report was placed on record which was prepared by Dr. Fariduddin (DW-1) on the basis of medico-legal register but learned trial Judge found it wrong inasmuch as photostat copy was not the document originally prepared by doctor. The original injury report of Bhagwati Devi was also not produced by the defence. A photocopy of injury report was placed on record which was prepared by Dr. Fariduddin (DW-1) on the basis of medico-legal register but learned trial Judge found it wrong inasmuch as photostat copy was not the document originally prepared by doctor. Some words were written subsequently on this photostat copy. Trial Court concluded that injury report of Bhagwati Devi was manufactured precisely to invent a case of private defence. Further, it is apparent that even this medical examination was conducted on 11.7.1982 while incident occurred on 9.7.1982 at 2:00pm. X-ray was advised yet it was not done for another two days. Finally x-ray was conducted on 14.7.1982 after four days of alleged incident. Medical examination of appellant Udai Veer was done on 10.7.1982 after considerable delay. Surprisingly, Udai Veer Singh got himself medically examined at P.L.Sharma Hospital but did not bring his mother on the same day i.e. 10.7.1982. Trial Judge concluded that all the stated injuries on the body of both persons were found to be simple. The trial judge found these documents unreliable and concluded that these documents have been created solely for the purpose of taking plea of self-defence. We have no reason to disagree with the conclusion of trial Judge on this score. In addition to that, there is no iota of evidence to indicate that incident took place in the ‘Gher” of late Hukum Singh, late Inder Singh or appellant Udai Veer Singh. On the other hand, there is very good evidence to disclose that incident occurred at the door-steps of ‘Gher’ of Veer Singh. Inquest report which was prepared immediately in the aftermath of incident also indicates that cadaver of deceased Phool Singh was found at the door-steps of ‘Gher’ of Veer Singh. This inquest report was signed by five witnesses of the same village. The assertion enshrined in the report reinforce the prosecution version. A memorandum of recovered articles was prepared as Ex Ka-4 which indicates that wet and blood stained Dhoti and blood stained shirt etc. were found on the spot. All these materials were recovered from the place indicated by the prosecution and not from the ‘Gher” of Hukum Singh. No blood was found inside ‘Gher’ of Hukum Singh. In fact, samples of blood stained earth was taken from the place of occurrence indicated by the prosecution. were found on the spot. All these materials were recovered from the place indicated by the prosecution and not from the ‘Gher” of Hukum Singh. No blood was found inside ‘Gher’ of Hukum Singh. In fact, samples of blood stained earth was taken from the place of occurrence indicated by the prosecution. Surprisingly, even late Hukum Singh and late Inder did not talk of right of private-defence. Late Hukum Singh did not even refer to injuries caused to his wife in his statement under Section 313 Cr.P.C. After all, Bhagwati Devi was his wife and therefore, for him not to disclose the alleged injuries caused to Bhagwati Devi in the same incident is rather strange. Similarly, later Inder Singh did not talk of injuries sustained by Udai Veer Singh and his mother Bhagwati Devi. He did not even say that the incident occurred at their place. 25. We have carefully examined all the material on record. We do not believe that incident occurred at the ‘Gher’ of appellants. We do not believe that deceased Phool Singh in his wet clothes attacked appellants. We also believe that it was incumbent upon the appellant to establish the right of private-defence either by positive evidence or by probabilising the existence of such right by evidence already on record. There is nothing on record to support plea of private defence. We believe that appellants went to ‘Gher’ of Veer Singh to assault and beat deceased Phool Singh, a member of their own clan. 26. Learned counsel for the appellant has raised an alternative argument. He has said that role of Udai Veer is very limited. The prosecution has alleged that Udai Veer Singh was wielding lathi at the time of incident and that prosecution evidence itself discloses Udai Veer Singh did not even use lathi in attack inasmuch as the prosecution story says that both appellant Udai Veer and late appellant Hukum Singh grappled deceased Phool Singh physically and made him immobilized and it was late appellant Inder Singh who attacked deceased with Khanti (Iron rod). Learned counsel has further said that evidence of DW-1 Vijay Singh indicates that deceased sustained only two injuries on his person. Injury No. 1 is lacerated wound 8 cm. X 1 cm. bone deep was on top of head. This injury could be caused by iron bar. Learned counsel has further said that evidence of DW-1 Vijay Singh indicates that deceased sustained only two injuries on his person. Injury No. 1 is lacerated wound 8 cm. X 1 cm. bone deep was on top of head. This injury could be caused by iron bar. Learned counsel for the appellant has further submitted that fatal injury was caused by Inder Singh. This fact has been mentioned specifically not only in FIR Ex Ka-2 but in the testimony of all eye-witness. Surviving appellant was merely holding lathi but even this lathi was not used in attack. Counsel submits that there is no evidence on record to indicate that appellant Udai Veer Singh wanted to assassinate Phool Singh. Secondly, there is no evidence to say that surviving appellant shared common intention of late appellant Inder Singh. Therefore, he submits firstly that charge of murder is not sustainable. Secondly, aid on Section 34 IPC cannot be taken to fasten the same guilt on surviving appellant Udai Veer Singh. 27. Section 34 IPC provides for principle of vicarious liability when an accused shares a common intention with the actual principal perpetrator of the crime. Two essential requirements of the Section are (i) common intention and (ii) participation of the accused in the commission of the offence. In Suresh and another v. State of U.P., (2001)3 SCC 673 , the Supreme Court elucidated the said provision in the following words : “48. In Ramaswami Ayyangar v. State of T.N. [ (1976) 3 SCC 779 : 1976 SCC (Cri) 518 : AIR 1976 SC 2027 ] this Court declared that Section 34 is to be read alongwith preceding Section 33 which makes it clear that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, it is essential that in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. However, it is essential that in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. In Ramaswami case [ (1976) 3 SCC 779 : 1976 SCC (Cri) 518 : AIR 1976 SC 2027 ] it was contended that A-2 could not be held vicariously liable with the aid of Section 34 for the act of other accused on the grounds: firstly, he did not physically participate in the fatal beating administered by the co-accused to the deceased and thus the “criminal act” of murder was not done by all the accused within the contemplation of Section 34; and secondly, the prosecution had not shown that the act of A-2 in beating PW was committed in furtherance of the common intention of all the three pursuant to a prearranged plan. Repelling such an argument this Court held that such a contention was fallacious which could not be accepted. The presence of those who in one way or the other facilitate the execution of the common design itself tantamounts to actual participation in the “criminal act”. The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result. Conviction of A-2 under Sections 302/34 of the Code in that case was upheld.” xxxxxxxxx “52. In Surendra Chauhan v. State of M.P. [ (2000) 4 SCC 110 : 2000 SCC (Cri) 772] this Court held that apart from the fact that there should be two or more accused, two factors must be established — (i) common intention, and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section-34 will be attracted as essentially it involves vicarious liability. Referring to its earlier judgment this Court held: (SCC p. 117, para 11)” “11. Under Section-34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Referring to its earlier judgment this Court held: (SCC p. 117, para 11)” “11. Under Section-34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. (Ramaswami Ayyangar v. State of T.N. [ (1976) 3 SCC 779 : 1976 SCC (Cri) 518 : AIR 1976 SC 2027 ]) The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra [ (1999) 8 SCC 428 : 1999 SCC (Cri) 1452] To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.” 28. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.” 28. In Mithu Singh v. State of Punjab, (2001) 4 SCC 193 , the Supreme Court acquitted Mithu Singh under Section 302 read with Section 34 IPC, but upheld his conviction under Section 27 of the Arms Act, 1959 observing that inference as to common intention should not be readily drawn; culpable liability can arise only if such inference can be drawn with a degree of assurance. In the facts of the said case, it was observed that the required degree of assurance was missing. At the same time, the Supreme Court observed that while examining the question of common intention, the Court should be conscious and aware that it is difficult, if not impossible, to collect and produce direct evidence and in most cases inference as to the intention shall be drawn from the acts and conduct of the accused and other relevant circumstances as available. The entire observation or ratio of the Supreme Court has to be kept in mind. 29. In Rajesh Kumar v. State of Himachal Pradesh, (2008)15 SCC 705 , the Apex Court elucidated and laid down the following principles as applicable to Section-34 IPC: “13. Section-34 has been enacted on the principle of joint liability in the doing 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 from 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 from 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.” 30. In State of Uttar Pradesh v. Ram Kishan and others, 1976 SCC (Criminal) 443, the co-accused had caught hold of the victim and death was caused by stab wounds inflicted by knife by one of their associates. As many as 8 injuries were caused to the victim including on the abdomen, chest and other vital paris. It was held that the co-accused had shared the common intention with the principal accused to cause grievous hurt under Section 326, IPC. 31. In Bhabanand Sharma and others v. The State of Assam, 1977 SCC (Criminal) 602, one accused caught hold of the hands of the deceased and the death was caused by others who inflicted fatal injuries to him. It was held that Section 34, I.P.C. cannot be made applicable to the accused who merely caught hold of the hand of the victim. 32. In Shambha Kuar v. The State of Bihar, 1982 SCC (Criminal) 264, accused Shambha Kuar caught hold of the victim and the other accused Mandip gave blows to him with a knife. It was held that Section 34, I.P.C. cannot be made applicable to the accused who merely caught hold of the hand of the victim. 32. In Shambha Kuar v. The State of Bihar, 1982 SCC (Criminal) 264, accused Shambha Kuar caught hold of the victim and the other accused Mandip gave blows to him with a knife. Accused Shambha Kuar was convicted under Section 302/34, IPC. Their Lordships of the Supreme Court held that Section 34, I.P.C. was wrongly applied. 33. It is, therefore, apparent that to constitute common intention, it is necessary that intention of each of the accused is known to others and is shared by them. If there is no evidence to demonstrate that every accused was aware of the intention of others, and shared the same, the aid of Section-34 IPC to fasten the guilt of others, could not be justified. Coming back to the facts of the present case, it is apparent that deceased Phool Singh was not a target of assailants. When the incident occurred co-accused Inder Singh tried to attack Sohan Singh (brother of informant and son of deceased Phool Singh). Sohan Singh (PW-3) managed to escape. Meanwhile, Phool Singh, who was coming from Gher of Veer Singh after taking bath, suddenly came before late Inder Singh, late Hukum Singh and appellant Udai Veer Singh. Phool Singh was father of escapee Sohan Singh. Accused persons turned their minds towards Phool Singh apparently in frustration. It is pertinent to point out that accused persons, namely, late Hukum Singh and Udai Veer Singh were yielding lathies while late Inder Singh was armed with Khanti (iron rod). These lathies were not used by appellant Udai Veer Singh as per prosecution story. They caught hold of deceased Phool Singh and Inder Singh assaulted with iron rod. The medical report indicates that deceased died on account of injury No. 1 caused on the head of deceased. Doctor opined that it was possible that iron rod had caused this injury. It was the single blow from late Inder Singh which caused death of deceased Phool Singh. It is clear that Udai Veer Singh did not attack Phool Singh individually except catching hold of him. Therefore, it is very difficult to conclude that appellant Udai Veer Singh shared common intention of late Inder Singh in committing murder of deceased Phool Singh. It was the single blow from late Inder Singh which caused death of deceased Phool Singh. It is clear that Udai Veer Singh did not attack Phool Singh individually except catching hold of him. Therefore, it is very difficult to conclude that appellant Udai Veer Singh shared common intention of late Inder Singh in committing murder of deceased Phool Singh. At the most, it can be said that such an assault had resulted in the death of Phool Singh. It cannot be said that his participation in crime goes to sharing common intention to cause murder of deceased Phool Singh. 34. We have no doubt that all the appellants shared the intention to beat deceased Phool Singh but there is no evidence to support the claim that surviving appellant Udai Veer Singh shared common intention to commit the murder of deceased Phool Singh. In our opinion, he can be held guilty under Section 304 IPC Part-II as he had intentionally joined in the commission of an act with the knowledge that the assault on appellant Phool Singh might result in his death. 35. For the reason stated above, the appeal of surviving appellant Udai Veer Singh is partly allowed. His sentence under Section 302 read with Section 34 IPC is converted into one under Section 304 Part-II IPC. We sentence appellant Udai Veer Singh to undergo rigorous imprisonment for eight years and to pay a fine of Rs. Two Lacs. In case of non-payment of fine, appellant Udai Veer Singh shall undergo further imprisonment for a period of two years. 75% of the fine, when realized, shall be paid to legal heirs of deceased Phool Singh. 36. Office is directed to certify this judgment to concerned Court through Sessions Judge concernd within ten days. The concerned Court then report compliance of this judgment within one month threafter.