JUDGMENT : DEEPAK ROSHAN, J. 1. This appeal is directed against the judgment of conviction dated 26.07.1994 and order of sentence dated 27.07.1994 passed by the 5th Additional Sessions Judge, Hazaribagh in Sessions Case No. 569 of 1993 whereby the appellants have been convicted under section 302/34 I.P.C. and sentenced to undergo imprisonment for life. 2. By an order dated 02.09.1994, appellant no. 1 namely, Teja Gope and appellant no. 2 namely, Binu Gope were granted bail by this Court whereas appellant no. 3 namely, Lakhan Gope and appellant no. 4 namely, Krishna Gope were granted bail by this Court on 12.04.1995. 3. During pendency of this criminal appeal, the appellant no. 1 namely, Teja Gope has died. Accordingly, this criminal appeal qua appellant no. 1 namely, Teja Gope stands abated. 4. The prosecution story as disclosed in the ferd-beyan of the informant namely, Parvatia Devi (PW-3) is that on the day of occurrence, she was going to give maize and rice to her son at Saunda colliery along with her husband namely, Ganesh Bhuiyan (deceased) and Teekan Prajapati. It was further disclosed that when they reached near a Bandh at village-Maldih, the appellants were sitting there having tangi and lathi in their hand. The accused-appellants namely, Krishna Gope and Lakhan Gope assaulted her husband-Ganesh Bhuiyan with tangi and the appellant namely, Binu Gope assaulted him with lathi at the instigation of accused-appellants namely, Teja Gope and Baldeo Gope, who were exhorting that the Ganesh Bhuiyan (deceased) was not ready to withdraw the case as such he should be killed. The informant has further stated that she sent the information of the incidence to her son namely, Mithu Ram (PW-4) who came in the evening and thereafter she along with her son went to the police station and got recorded her ferd-beyan at 9.00 p.m. The formal FIR vide Barkagaon P.S. Case No. 130/91 was drawn thereafter. 5. The police after investigation submitted the charge-sheet on 26.11.1991 against the accused persons upon which cognizance was taken and the case was committed to the court of sessions. A charge was framed against all the accused persons under section 302/34 of India Penal Code and the accused persons pleaded not guilty and claimed to be tried. 5. The police after investigation submitted the charge-sheet on 26.11.1991 against the accused persons upon which cognizance was taken and the case was committed to the court of sessions. A charge was framed against all the accused persons under section 302/34 of India Penal Code and the accused persons pleaded not guilty and claimed to be tried. It needs to be recorded that one accused namely, Baldeo Gope has been declared absconder and on 4.12.1993 his trial was split-up before framing of the charge against the remaining accused persons. 6. In order to prove charges levelled against the accused persons, the prosecution has examined altogether six witnesses out of which, PW-3 is the informant herself. The informant's son namely, Mithu Ram is PW-4, the doctor who conducted autopsy over the dead body is PW-5 and the investigating officer has examined himself as PW-6. PW-1 and PW-2, though claimed to be the eye-witnesses as per the First Information Report, have turned hostile. Apart from the aforesaid oral evidence, the prosecution has proved certain documents in evidence. There was a general denial of the occurrence by the defense. 7. The informant PW-3 has stated in her examination-in-chief that on the day of occurrence she was going to give maize and rice to her son who was employed in Saunda colliery. Her husband namely, Ganesh Bhuiyan and Teekan Prajapati (PW-1) were accompanying her. She has further stated that when they reached near the Bandh of village-Maldih, the accused persons were sitting there with lathi and tangi in their hand started assaulting her husband. The accused namely, Krishna Gope and Lakhan Gope assaulted her husband-Ganesh Bhuiyan (deceased) with tangi and the accused-Binu Gope assaulted him with lathi. The accused Teja Gope (since dead) and one Baldeo Gope (absconder) were instigating the others to kill her husband as he was not ready to withdraw the case. She has further deposed that her husband-Ganesh Bhuiyan was murdered by the accused-appellants due to a long pending case between them. The informant's son namely, Mithu Ram (PW-4) has supported the prosecution case with respect to the information of occurrence and that he went to the police station along with his mother and put his signature on the First Information Report. 8. The informant's son namely, Mithu Ram (PW-4) has supported the prosecution case with respect to the information of occurrence and that he went to the police station along with his mother and put his signature on the First Information Report. 8. The investigating officer (PW-6) has stated that on 28.08.1991 in the morning at 6.30 a.m. he reached village-Kharanti and found that the dead body of deceased Ganesh Bhuiyan was lying on a cot beneath the peepal tree. He prepared the inquest-report (Ext.4) and sent the dead body for postmortem examination. PW-4 has supported him to the extent that in his presence the inquest-report (Ext. 4) was prepared and he put his signature (Ext.1/1) while another witness Teekan Prajapati put his L.T.I over the same. 9. The learned trial court having placed reliance on the testimonies of the witnesses and finding corroboration with the medical evidence, has held the appellants guilty for committing murder of the deceased-Ganesh Bhuiyan. The learned trial court has found that the informant (PW-3), who is the sole eye-witness, has given clear and vivid description of the manner of occurrence as well as time and place of occurrence. The learned trial court has also found that the evidence of the doctor (PW-5) together with post-mortem report which is Ext-2, fully supports the manner of assault by the accused persons to the deceased, as stated by the witnesses. 10. Mr. Hemant Kumar Shikarwar, the learned counsel for the appellants has submitted that PW-1, PW-2 and PW-3 were originally cited as eye-witnesses to the occurrence but PW-1 and PW-2 have been declared hostile and PW-3, being the widow of the deceased-Ganesh Bhuiyan, is a highly interested witness. The learned counsel has further submited that enmity between the parties and the delay in lodging the First Information Report clearly show that the informant after consulting her son has concocted a false story. He finally concluded his argument by submitting that even if the prosecution case as brought on record through the prosecution witnesses is accepted, the conviction under section 302 I.P.C. read with section 34 I.P.C. is bad in law and, at best, conviction of the appellants no. 3 and 4 ought to have been under section 304 Part II I.P.C. and not under section 302 I.P.C. 11. Mr. 3 and 4 ought to have been under section 304 Part II I.P.C. and not under section 302 I.P.C. 11. Mr. Gouri Shankar Prasad, the learned A.P.P. has opposed the plea raised on behalf of the appellants and fully supported the impugned judgment. He has submitted that the learned trial Judge after considering all the materials, oral as well as documentary evidences, has rightly found that the accused-appellants are guilty of the offence of murder of Ganesh Bhuiyan and he has rightly convicted the appellants under section 302/34 I.P.C. and sentenced to undergo imprisonment for life. 12. Having heard the learned counsel for the parties and after minutely examining the evidences on record, specially the cross-examination of the sole eye-witness, it appears to us that the manner of occurrence has been duly described by the informant. She has categorically stated that the appellant no. 4-Krishna Gope gave tangi blow on the head of the deceased whereas appellant no. 3-Lakhan Gope assaulted him with tangi on his leg and appellant no. 2-Binu Gope gave a lathi blow on her husband. The allegation against appellant no. 1-Teja Gope (since dead) is that he instigated the other appellants along with Baldeo Gope (absconder). 13. PW-5 is the doctor who has stated that on 28.08.1991 he was posted as Civil Assistant Surgeon in Sadar Hospital, Hazaribagh. On that date at 2.40 p.m. he had conducted the post-mortem examination of the dead body of Ganesh Bhuiyan and found the following antemortem injuries: (i) Incised wound 2" x ¼" deep to bone over the posterior part of scalp. (ii) Incised wound 1" x ¼" deep to bone over the right middle part of the leg and fracture of right Tibia and Fibula bones. (iii) Incised wound 1" x ¼" muscle deep over the left thigh. (iv) Abrasion 1½" x ½" over the posterior part of left shoulder. (v) Multiple bruise of different size over the back. (vi) Bruise 6" x 8" over the left side of chest. 14. The doctor has found fracture of sternum bone and fracture on left-side rib nos. 3 to 7. The right lung was intact but left lung was ruptured and chambers were empty. The doctor has stated that the time elapsed since death was about 24 hours, at the time of post-mortem examination. 14. The doctor has found fracture of sternum bone and fracture on left-side rib nos. 3 to 7. The right lung was intact but left lung was ruptured and chambers were empty. The doctor has stated that the time elapsed since death was about 24 hours, at the time of post-mortem examination. In the opinion of the doctor the death was caused due to shock and hemorrhage caused due to said injuries caused by incised and hard blunt substance. He has proved post-mortem report vide Ext.2. 15. All the accused persons have been convicted with the aid of section 34 I.P.C. To fasten the liability of the one accused person upon the others before section 34 I.P.C. is pressed into service, it must be established that all the accused persons were sharing a common intention in furtherance of which the act alleged has been committed. The prosecution case is that the accused persons were waiting and way-laid the deceased, however, the appellant no. 2 namely, Binu Gope was holding a lathi is a fact which creates a doubt that he was also sharing a common intention to kill the deceased. Had he shared a common intention, he could have also armed himself with some deadly weapon. Allegation against him is that after the appellants-Lakhan Gope and Krishna Gope assaulted the deceased with tangi the appellant-Binu Gope has given lathi blow on the back of the deceased. The prosecution witnesses have consistently spoken about the role played by the appellant-Binu Gope to the extent that the appellant-Binu Gope was not the one who has started the assault first on the deceased. The facts which have been proved by the prosecution on common intention to rope in all the accused persons with the aid of section 34 I.P.C. for the death of the deceased do not establish that the appellant no. 2-Binu Gope was sharing common intention to kill Ganesh Bhuiyan. All that the prosecution has been able to prove is that he had also intended to assault the deceased. 16. In the aforesaid facts, we hold that the prosecution has failed to prove the charge under section 302/34 I.P.C. against the appellant no. 2-Binu Gope and accordingly, his conviction under section 302/34 I.P.C. is set-aside. 17. All that the prosecution has been able to prove is that he had also intended to assault the deceased. 16. In the aforesaid facts, we hold that the prosecution has failed to prove the charge under section 302/34 I.P.C. against the appellant no. 2-Binu Gope and accordingly, his conviction under section 302/34 I.P.C. is set-aside. 17. In view of the nature of assault by him on the deceased, we convict him under section 324 I.P.C. He is accordingly sentenced to undergo R.I. for 2 years. 18. Insofar as the appellants namely, Lakhan Gope and Krishna Gope are concerned, the prosecution has led consistent evidence to establish that they have assaulted Ganesh Bhuiyan with an intention to kill him. 19. The doctor has found three incised wound on the scalp, on the right leg and on the left thigh, on the deceased. The injury on the right leg has resulted in fracture of tibia and fibula bone. The injury on the left thigh was also incised with dimension of 1" x ¼" muscle deep. The learned sessions Judge has recorded a finding that fracture of sternum bone and left side rib nos. 3 to7 were caused by the blow given by the appellant-Krishna Gope by back side of tangi. 20. Section 300 of the Indian Penal Code provides that culpable homicide would be murder if the act by which the death is caused is done with the intention of causing death, or if the offender has caused such bodily injury which he knew was likely to cause death of the person to whom the harm is caused, or if the bodily injury caused was sufficient in the ordinary course of nature to cause death, or if the offender had knowledge that the act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. However, section 300 IPC provides exceptions to the main provision in certain circumstances. Those exceptions are part of section 300 IPC itself. In State of U.P. vs. Virendra Prasad, (2004) 9 SCC 37 , the Hon’ble Supreme Court has held as under: “16. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons – being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.” 21. The injuries found by the Doctor PW-5 were incised wounds. One of the incised wounds was 2" x 1¼" bone deep over the posterior part of scalp. Other two incised wounds were on right leg and the left thigh of the deceased. The injury no. (ii) indicates the force with which the deceased was hit by the accused; it has resulted in fracture of right tibia and fibula bones. Other incised wound found on the deceased was 1'' x 1¼'' muscle-deep over the left thigh. When a person is attacked by more than one person it is not necessary that all accused must have inflicted injury on the vital part of the body. Common intention of all can be gathered from the manner of occurrence and injuries found on the injured-deceased. All the incised wounds are attributed to the appellants-Krishna Gope and Lakhan Gope. 22. The learned counsel for the appellants has contended that these two appellants can be convicted under section 304 Part II IPC but not under section 302 IPC. 23. In the above facts, we are unable to accept this contention. The number of injuries on the deceased would disclose that these two appellants have attacked the deceased in a cruel manner. They have inflicted repeated blow on the deceased. Moreover, the incident did not happen over some trivial issue or in a sudden fight. 24. The learned counsel for the appellants has submitted that there was such inordinate delay in lodging the First Information Report which creates a doubt on the prosecution case. They have inflicted repeated blow on the deceased. Moreover, the incident did not happen over some trivial issue or in a sudden fight. 24. The learned counsel for the appellants has submitted that there was such inordinate delay in lodging the First Information Report which creates a doubt on the prosecution case. We find that the informant has stated that her son namely, Mithu Ram was employed in Saunda colliery and she along with her husband and the carrier-Teekan Prajapati were going to give maize and rice to him and on the way the accused persons have assaulted her husband. The accused-Krishna Gope and Lakhan Gope armed with tangi have assaulted her husband namely, Ganesh Bhuiyan on head and leg. In her cross-examination, she has stated that after her son came home in the evening she went to the police station to lodge the First Information Report. To us this appears to be a normal conduct of the informant. Merely because she waited for her son to come home and thereafter went to the police station to lodge a First Information Report, it cannot be inferred that she was waiting for her son for deliberating upon the matter and she has falsely implicated the accused persons in the crime. She has further stated that there was heavy rain and it was flood-like situation in the river and that is the reason in the night she could not go to the police station. In the aforesaid facts, we find that the prosecution has sufficiently explained the delay in lodging the First Information Report. 25. We hold that the appellant nos. 3 and 4 have rightly been convicted under section 302/34 IPC. Accordingly, this criminal appeal on their behalf is dismissed. The bail-bonds furnished by them are cancelled and they are directed to surrender to serve the remaining sentence. 26. Accordingly, Cr. Appeal No. 142 of 1994 (R) is partly allowed. 27. Let the lower-court records be transmitted to the court concerned, forthwith. 28. Let a copy of the judgment be transmitted to the court concerned through ‘FAX’.