JUDGMENT : Hirodh P.S. Case No. 46 of 2008 was registered on 27.06.2008 under section 147,148,149,341,323,324,325,326,307 and 302 of the Indian Penal Code on 27.06.2008 against ten persons including four female folks – two of whom were identified with name of their husband – for causing death of Khiro Mahto and murderous attack on others. 2. The fardbeyan of Chetlal Mahto was recorded at 14:00 hrs. on 27.06.2008 at Sadar Hospital, Giridih by Daroga of Giridih by Daroga of Giridih (Town) police station. After the investigation a charge-sheet was submitted on 04-10.2008 against Sukar Mahto, Budhan Mahto, Reshman Mahto, Bhutti @ Taliya Devi, Kailashi Devi, Darbari Mahto and Raju Mahto and charges were framed against them in Sessions Trial No. 507 of 2008. Subsequently, Prayag Mahto, Kunti Devi and Pramila Devi were also put on trial in Sessions Trial No. 137 of 2010 by framing similar charges against them vide order dated 27.01.2010 3. In a paddy field about one kilometer south of village Hirodih a quarrel started between two sides. The informant has stated that at about 06.30 AM on 27.06.2008 he received an information that Raju Mahto, Prayag Mahto, Darbari Mahto, Reshman Mahto, Budhan Mahto, Sukar Mahto and female folks of their family including Pramila Devi and Bhutti Devi were destroying his paddy field. When he goes there accompanied by his family members and objects to the accused persons destroying his paddy field Budhan Mahto gave a lathi blow on him and exhorted others to beat him. Prayag Mahto and Darbari Mahto assaulted him with iron rods which fractured his right hand. Raju Mahto who was carrying a tangi tried to kill him but he warded off the blow and was hit on his left leg. When his sons, wife, daughter and daughters-in-law tried to intervene then the accused persons made his son Khiro Mahto focus of assault. Prayag Mahto and Budhan Mahto caught hold of Khiro Mahto and Raju Mahto inflicted a tangi blow on his head. When Khiro Mahto was writhing in pain on the ground Darbari Mahto assaulted him with an iron rod on his right leg. Keshar Mahto and Prabhu Mahto, the other two sons of informant were also assaulted by the accused persons. Several villagers including Majoj Kr. When Khiro Mahto was writhing in pain on the ground Darbari Mahto assaulted him with an iron rod on his right leg. Keshar Mahto and Prabhu Mahto, the other two sons of informant were also assaulted by the accused persons. Several villagers including Majoj Kr. Verma, Shiv Shankar Mahto, Rajendra Kumar Mahto, Dashrath Prasad Verma and Ghanshyam Mahto rushed to the place of occurrence and prevented any further assault on the informant's family. Keshar Mahto, Prabhu Mahto, Khiro Mahto and Chetlal Mahto were rushed to Sadar Hospital, Giridih for treatment- Khiro Mahto was declared dead on arrival. The informant has stated that for some time the accused persons were trying to capture his lands. 4. The learned Sessions Judge has returned a finding that members of the informant party were unarmed while the accused persons carrying deadly weapon like tangi, iron rod, lathi etc. were destroying the paddy fields. The accused persons have not suffered any injury but in the occurrence six persons on the prosecution side have suffered injuries on the vital parts of their body - one has died. The learned trial Judge has held that the accused persons were aggressors and without any apprehension of death or grievous hurt have started murderous assault on the prosecution party and, therefore, they cannot claim a right to private defence. 5. In S.T. No. 507 of 2008, Raju Mahto and Darbari Mahto have been convicted and sentenced to RI for life and a fine of Rs. 20,000/- each under section 302/34 of the Indian Penal Code (in short, IPC) and Reshman Mahto was convicted and sentenced under section 325/34 IPC to RI for three years. In S.T. 137 of 2010, Prayag Mahto was convicted and sentenced to RI for life and fine of Rs.20,000/- under section 302/34 IPC and further convicted and sentenced under section 325/34 IPC to RI for three years. The order of conviction and sentence of the above-named accused persons in both the Sessions trial has been delivered by the learned Sessions Judge by a common judgment. 6. The informant is PW-9 in S.T. No. 507 of 2008. He has described the occurrence as narrated by him in the fardbeyan. He has stated that a piece of land comprising writhing Khata NO. 42, Plot No. 2152 ad-measuring about 01.30 decimals at Mauza-Nai Tand belongs to him in which he had sown paddy crops the last evening. 6. The informant is PW-9 in S.T. No. 507 of 2008. He has described the occurrence as narrated by him in the fardbeyan. He has stated that a piece of land comprising writhing Khata NO. 42, Plot No. 2152 ad-measuring about 01.30 decimals at Mauza-Nai Tand belongs to him in which he had sown paddy crops the last evening. On receiving an information that the accused persons are ploughing his paddy field he had gone there with his family and when he questioned Budhan Mahto why his family members were destroying his paddy field Budhan Mahto assaulted him with lathi and exhorted others to beat him. He has narrated with great details the incident in which five of his family members have received injuries and his son Khiro Mahto has died. In S.T. No. 137/2010 he has given a similar description of the occurrence. With little variation in the number of assault on the prosecution party the other witnesses have also described the occurrence in a similar manner in both the Sessions trial and in the common judgment the learned Sessions Judge has extracted their evidence in extenso. Therefore, we propose to deal with them in brief. 7. Manoj Kr. Verma has been examined as PW-1 on 19.11.2009 in Sessions Trial No. 507 of 2008. He has deposed that early morning on 27.06.2008 when he was returning home from his field he over heard a quarrel in abusive language (gali-galauj) near the field of Chetlal Mahto. He has seen all ten accused persons there. Prayag Mahto and Darbari Mahto were beating Chetlal Mahto with a rod and Raju Mahto attacked Chetlal Mahto with a tangi (kulhari). On seeing murderous attack on Chetlal Mahto his wife and sons started crying and shouting and in the meantime Raju Mahto gave a tangi blow on the head of Khiro Mahto. He has further stated that Prabhu Mahto and Keshar Mahto when tried to rescue Khiro Mahto they were assaulted with iron rod by Prayag Mahto and Darbari Mahto. The villagers by that time had started pouring in and with their help Khiro Mahto was broght to Sadar Hospital, Giridih, but he could not survive. He has affirmed that the fardbeyan of Chetlal Mahto was recorded in his presence and he has also put his signature on the fardbeyan. He was examined as PW-5 in Sessions Trial No. 137 of 2010 on 09.01.2013. He has affirmed that the fardbeyan of Chetlal Mahto was recorded in his presence and he has also put his signature on the fardbeyan. He was examined as PW-5 in Sessions Trial No. 137 of 2010 on 09.01.2013. There he has said that he has seen the occurrence from a distance of about hundred feet and at that time he was alone and did not try to intervene. Shiv Shankar Mahto has been examined as PW-2 in Sessions Trial No. 507 of 2008; he was not produced in Sessions Trial No. 137 of 2010. He has deposed in the Court that he was cultivating his field which is adjacent to the field where a quarrel took place between both the sides. On hearing hulla he has gone there. He has seen Prayag Mahto, Darbari Mahto, Budhan Mahto, Raju Mahto and Reshman Mahto assaulting Chetlal Mahto. He has stated that Prayag Mahto broke right hand of Chetlal Mahto with iron rod, Darbari Mahto hit him on his back, Budhan Mahto assaulted him with lathi and when he fell on the ground Reshman Mahto gave a lathi blow on his face. He has further stated that when Khiro Mahto came running there to save his father he was restrained by Prayag Mahto and Budhan Mahto. They exhorted to kill him whereupon Raju Mahto struck a tangi blow on his head and when Keshar Mahto and Pabhu Mahto tried to save him they were also assaulted by Raju Mahto. In his cross-examination, he has remained firm that he has seen the accused persons assaulting Khiro Mahto, Chetlal Mahto, Keshar Mahto and Prabhu mahto. He has denied the suggestion that there was a marpit between both the sides. 8. Chameli Devi has been examined as PW-3 on 09.02.2010 in Sessions Trial No. 507 of 2008. She is the daughter-in-law of Chetlal Mahto. She has deposed in the Court that her father-in-law had sown paddy in the field which was destroyed by Budhan Mahto, Raju Mahto, Rshman Mahto, Prayag Mahto, Darbari Mahto, Kalsi Devi, Bhutti Devi, Pramila Devi and Jamuni Devi. She has stated that on seeing them coming to the field Budhan Mahto exhorted to Kill them. She has claimed that she has also received injury in the occurrence. In the cross-examination she has stated that Prayag Mahto, Raju Mahto and Darbari Mahto have assaulted Khiro Mahto. She has stated that on seeing them coming to the field Budhan Mahto exhorted to Kill them. She has claimed that she has also received injury in the occurrence. In the cross-examination she has stated that Prayag Mahto, Raju Mahto and Darbari Mahto have assaulted Khiro Mahto. Prayag Mahto and Darbari Mahto have hit him with a rod on his leg and Raju Mahto has struck one tangi blow on his head. She has further stated that Keshar Mahto was assaulted by Raju Mahto, Prayag Mahto, Budhan Mahto and Reshman Mahto and Prabhu Mahto was also assaulted by Raju Mahto on his head. On 21.06.2011, Chameli Devi was examined in Sessions Trial No. 137 of 2010 and she has deposed almost in a similar manner, as PW-2. Keshar Mahto has been examined as PW-4 in both the Sessions trial. He has deposed in the Court that the occurrence took place at about 06.30 on 27.06.2008. On information that the accused persons were destroying the paddy field he had gone there with his father and other family members. The accused persons were carrying dangerous weapon and as soon as his father reached there they exhorted to beat him. Prayag Mahto assaulted him with an iron rod on his right hand; Reshman Mahto on his face; Raju Mahto on left leg with tangi and; when his father fell on the grouond Reshman Mahto and Darbari Mahto again assaulted him. In the meantime when Khiro Mahto tried to intervene Budhan Mahto and Prayag Mahto caught him by hand and exhorted to assault him (Maaro saale ko), whereupon Raju Mahto inflicted a tangi blow on his head. When he tried to protect his brother the accused persons started assaulting him; Prayag Mahto assaulted him on right hand and Raju Mahto on head. He has further stated that Prabhu Mahto was assaulted by Raju Mahto when he tried to save him and Prayag Mahto assaulted him on right leg with iron rod. He has stated that the injured persons were brought to Sadar Hospital, Giridih and Khiro Mahto was declared dead by the doctor. In Sessions Trial No. 137 of 2010 he has given a similar narration of the occurrence as described by him in Sessions Trial No. 507 of 2008. He has affirmed that six persons of his family were injured and he himself had received three injuries. In Sessions Trial No. 137 of 2010 he has given a similar narration of the occurrence as described by him in Sessions Trial No. 507 of 2008. He has affirmed that six persons of his family were injured and he himself had received three injuries. Jamuni Devi has been examined as PW-5 in Sessions Trial No. 507 of 2008. She has stated that in the morning she had gone to the paddy field with her family members. Budhan Mahto exhorted to assaulted them, whereupon Prayag Matho and Darbari Mahto have assaulted Chetlal Mahto with iron rod. She has also stated about assault on Khiro Mahto and others and admitted that no one tried to catch hold of or snatch the weapons held by the accused persons. In Sessions Trial No. 137 of 2010 she has been examined as PW-1, Prabhu Mahto has been examined as PW-6 in Sessions Trial No. 507 of 2008 and he has deposed in the Court that on 27.06.2008 at about 6.30 he came to know that the accused persons were ploughing the paddy field belonging to his family and upon such information he along with other family members had gone there. He has also spoken about assault by the accused persons on him and his family members. In his cross-examination he has admitted that Bhudan Bandobasti of the land in question was created in favour of the accused persons and when an information was received about the accused persons ploughing his paddy field he did not inform any other villager or raise hulla. He has been examined as PW-3 in Sessions Trial No. 137 of 2010 and has narrated the occurrence in a similar manner. Geeta Devi has been examined as PW-8 in Sessions Trial No. 507 of 2008 and she has been examined as PW-6 in Sessions Trial No. 137 of 2010. In both the Sessions trials she has deposed in the Court in a similar manner and described the occurrence as spoken by others. 9. Arwind Choudhary is the advocate-clerk who has been examined as PW-10 S.T. No. 507 of 2008 and as PW-9 in Sessions Trial No. 137 of 2010. He has deposed in the court that Chetlal Mahto had given him Parcha of land issued by Bihar Bhudan Yagya Samiti which he had field in the Court. 9. Arwind Choudhary is the advocate-clerk who has been examined as PW-10 S.T. No. 507 of 2008 and as PW-9 in Sessions Trial No. 137 of 2010. He has deposed in the court that Chetlal Mahto had given him Parcha of land issued by Bihar Bhudan Yagya Samiti which he had field in the Court. This document was prepared on 20.07.1958 and was more than 30 years old - it was marked as Exhibit-7 with objection. He has also identified the signature of Karamchari on the Government receipts. The investigating officer has been examined in Sessions Trial No. 507 of 2008 as PW-11. He has stated in his cross-examination that he has recorded Sanha No. 419 dated 27.06.2008 in the case-diary and then gone to Giridih Hospital. He has visited the place of occurrence and found that the entire land in question was ploughed and there was no paddy crop in the field. His cross-examination is mainly confined to the statement of the prosecution witnesses recorded under section 161 of the Code of Criminal Procedure. 10. The Prosecution has Projected Manoj Kr. Verma, Shiv Shankar Mahto, Jamuni Devi, Prabhu Mahto, Keshar Mahto and Chetlal Mahto as eye-witness. Except Manoj Kr. Verma and Shiv Shankar Mahto others as family members of the informant and their testimony has been challenged as tainted with malice. 11. Merely because a witness is a close relative is not enough to reject his testimony if it is otherwise credible. In "Sucha Singh v. Sate of Punjab, (2003) 7 SCC 643 , the Hon'ble Supreme Court has held that relationship is not a factor to affect credibility of a witness for it is more often that relation would not conceal the actual culprit and make allegation against an innocent person. It has been observed that wherever a plea of false implication is made first a foundation has to be laid and the Court has to adopt a careful approach to fine out whether evidence of the related witness is cogent and credible. 12. In "Mano Dutt v. State of UP., (2012) 4 SCC 79 , the Hon'ble Supreme Court has made the following important observations regarding evidence of the family and friends of the victim: "24. ......Firstly, there is no bar in law in examining family members, or any other person, as witnesses. 12. In "Mano Dutt v. State of UP., (2012) 4 SCC 79 , the Hon'ble Supreme Court has made the following important observations regarding evidence of the family and friends of the victim: "24. ......Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel, and trying to defuse the crisis. Besides, when the statement of witnesses. who are relatives, or are parties known to the affected party, is credible, reliable, trust-worthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party." 13. Ms. Shilpi John, the learned Amicus appearing for Raju Mahto and Mr. Tarun Kumar No. I, the learned counsel for the appellants, namely, Prayag Mahto and Darbari Mahto would submit that there are serious contradictions in the testimony of the prosecution witnesses and it has been proved by the defence that Manoj Kr. Verma and Shiv Shankar Mahto have stated before the police that when they reached the field of Chetlal Mahto They found Khiro Mahto on the ground and while so, their own saying they are not the eye-witnesses. Ms. Shilpi John, the learned Amicus would submit that Rajendra Verma and Dashrath Prasad Verma who have put their signatures on the fardbeyan and the child who gave information to Chetlal Mahto about the accused persons ploughing his field have not been produced during the trial and in the occurrence in which eighteen persons were involved only four have suffered injuries and no female member on the prosecution side was found injured and, therefore, it must be held that the prosecution has suppressed the real version of the occurrence. 14. Section 145 of the Indian Evidence Act indicates how contradiction in the evidence of a witness shall be taken. A witness may not say everything about the occurrence before the police or in the Court. 14. Section 145 of the Indian Evidence Act indicates how contradiction in the evidence of a witness shall be taken. A witness may not say everything about the occurrence before the police or in the Court. He may give exaggerated version of the occurrence and he may say something which compared to testimony of other witness may appear inconsistent. But, it is not every inconsistency, omission or exaggeration which would amount to contradiction. Merely because a witness has failed to state something before the police his statement in the Court cannot be discarded. To discredit a witness the defence must show that a vital fact which would affect the core of the case was omitted by the witness to state before the police. Manoj Kr. Verma and Shiv Shankar Mahto have not stated before the police that they have seen the actual assault on Khiro Mahto but for that reason their presence at the place of occurrence cannot be doubted. They may not have seen the actual assault upon Khiro Mahto but they have seen the accused persons assaulting other prosecution witnesses. The learned Amicus appearing for the appellant Raju Mahto has submitted that Jamuni Devi has stated in her cross-examination that marpit continued for about one hour and other prosecution witness have admitted that several villagers had gathered there, however, it is surprising that neither any weapon was recovered nor any one of the accused persons was apprehended by them. On this issue all that we may indicate is that the reasons why the villagers have not come forward to intervene may be many, but on that ground veracity of the prosecution case cannot be doubted. Kailashi Devi and Budhan Mahto have died before the trial concluded and Bhutti Devi, Pramila Devi and Jamuni Devi who are said to have pelted stones on the prosecution witnesses have been acquitted by the learned trial Judge. Their acquittal has been recorded for good reasons and on the ground of their acquittal the whole prosecution case cannot be disbelieved. Chetlal Mahto, Keshar Mahto, Prabhu Mahto, Chemeli Devi and Jamuni Devi are injured witnesses. In a criminal trial an injured witness is accorded a special status. The evidence of an injured witness is tested on the same principles as that of an eyewitness but an injured witness lends assurance to the Court that he was present at the place of occurrence. In a criminal trial an injured witness is accorded a special status. The evidence of an injured witness is tested on the same principles as that of an eyewitness but an injured witness lends assurance to the Court that he was present at the place of occurrence. There are as many as six eye-witnesses who have fully supported the prosecution case and in view of their clear and cogent evidence the mistakes committed by the Investigating Officer such as failure to seize the crime weapons and clothes of the victim or to prepare a sketch map, and Ghanshyam Mahto, the independent witness, turning hostile would not haze the prosecution case with clouds of doubt. The kind of evidence the prosecution has laid in this case leaves little room for any doubt on complicity of the appellants in the occurrence. 15. A challenge to Truthfulness of the prosecution witnesses has been made on the ground of discrepancy with the medical evidence. 16. In Mani Ram v. State of U.P., 1994 Supp (2) SCC 289 the Hon'ble Supreme Court has held that the prosecution evidence is considered wanting in the most material part of the case if the direct evidence is not supported by expert evidence and if the evidence of the prosecution witnesses is totally inconsistent with the medical evidence that would be fundamental defect in the prosecution case. There is another rule in criminal law which is like a corollary to the principle laid down in "Mani Ram". In "Kapildeo Mandal v. State of Bihar, (2008) 16 SCC 99 the Hon'ble Supreme Court has held that wherever a plea of discrepancy between the ocular evidence and medical evidence is taken the oral evidence of eye-witnesses shall get primacy if the medical evidence is not totally inconsistent with the oral evidence. 17. Dr. Ashok Kumar, who was examined as PW-7 in Sessions Trial No. 137 of 2010, has proved the injury report of Chetlal. He has deposed in the Court that he examined Chetlal Mahto on 27.06.2008 at about 09:35 AM and found the following injuries on him : (i) Swelling and pain right upper 1/3rd, x-ray of right arm showed fracture of shaft of humerous (RT). (ii) Loss of loser two incisor teeth. (iii) Swelling around right wrist. (iv) Linear bruise on out aspect of right arm 4" x 1", brown in colour. (ii) Loss of loser two incisor teeth. (iii) Swelling around right wrist. (iv) Linear bruise on out aspect of right arm 4" x 1", brown in colour. (v) Abrasion of lower 1/3rd of left leg. 1" x 1/2" in size. 18. In his opinion the injury Nos. (i) and (ii) were grievous in nature and caused by hard and blunt substance whereas injury Nos. (iii), (iv) and (v) were simple in nature. 19. On the person of Keshar Mahto, PW-7 has found: (i) lacerated wound on top of scalp, size 2” x ½” scalp deep and (ii) swelling on middle 1/3rd at right fore-arm 1” in diameter. He has found one lacerated wound on left scalp, size about 2” x ½” scalp deep on Prabhu Mahto. Both the injuries cased to Prabhu Mahto and Keshar Mahto were simple in nature and caused within six hours of their examination by the doctor. 20. From the prosecution evidence we gather that in the present case the ocular evidence is not at all at variance with the medical evidence. The consistent case of the prosecution is that Chetlal Mahto, Khiro Mahto, Keshar Mahto, Chameli Devi, Prabhu Mahto, Geeta Devi and Jamuni Devi were assaulted by the accused persons. The injury reports of Chetlal Mahto, Prabhu Mahto and Keshar Mahto and the post-mortem report of Khiro Mahto would establish the manner of occurrence as described by the prosecution witnesses. Jamuni Devi and Chameli Devi have deposed in the Court that they were taken to Sadar Hospital, Giridih and treated by the doctor, but the prosecution has not produced their injury reports and the doctor who has treated them was not examined during the trial. However, for these reasons it cannot be inferred that they were not present at the place of occurrence. During their cross-examination the defence has tested them mainly with respect to their statements made under Section 161 of the Code of Criminal Procedure and their testimony is not affected in any manner nor is at variance or inconsistent with the manner of occurrence narrated by other witness. 21. Ms. Shilpi John, the learned Amicus has contended that two separate trials arising from the same First Information Report was not proper and it has caused prejudice to the appellants. The learned Amicus has relied on a decision in Vinubhai Ranchhodbhai Patel vs. Rajivbhai Duddabhai Patel, (2018) 7 SCC 743 . 21. Ms. Shilpi John, the learned Amicus has contended that two separate trials arising from the same First Information Report was not proper and it has caused prejudice to the appellants. The learned Amicus has relied on a decision in Vinubhai Ranchhodbhai Patel vs. Rajivbhai Duddabhai Patel, (2018) 7 SCC 743 . The learned Amicus has referred to paragraph Nos. 47 and 48 in Vinubhai Ranchhodbhai Patel which read as under : “47. In Sessions Case No. 58 of 1998 against A-16 and A-17, no evidence was recorded independently. On the other hand the evidence recorded in Sessions Case No. 118 of 1992 was marked as evidence in Sessions Case No. 58 of 1998. The Evidence Act, 1872 does not permit such a mode of proof of any fact barring in exceptional situations contemplated in Section 33 of the Evidence Act. 48. There is no material on record to warrant the procedure adopted by the Sessions Court. On that single ground, the entire trial of Sessions Case No. 58 of 1998 is vitiated and is not in accordance with procedures established by law. It is a different matter that both the accused put to trial in Sessions Case No. 58 of 1998 were acquitted by the Fast Track Court and the High Court did not interfere with the conclusions recorded by the Fast Track Court.” 22. Section 223 of the Code of Criminal Procedure permits a joint trial of the persons and offences subject to the limitation prescribed therein. However, as a general proposition joint trial is an exception and separate trial is the rule. It is within the discretion of the Court to permit a joint trial or not having regard to the circumstance of the case. In A.R. Antulay vs. R.S. Nayak and Another, (1988) 2 SCC 602 , the Hon'ble Supreme Court has held that an accused cannot assert any right to joint trial with other co-accused and normally it is the right of the prosecution to decide to whom it prosecutes. In the present case a joint trial was not impermissible but in our opinion no prejudice has been caused to the appellants. There was no irregularity in commencement and proceeding of both the trials and the accused persons have cross-examined the witnesses extensively. In the present case a joint trial was not impermissible but in our opinion no prejudice has been caused to the appellants. There was no irregularity in commencement and proceeding of both the trials and the accused persons have cross-examined the witnesses extensively. The testimony of the investigating officer recorded in Sessions Trial No. 507 of 2008 has been brought on record of Sessions Trial No. 137 of 2010, with consent of the defence. 23. A plea of right of private defence was raised by the accused persons and that has been rejected by the learned trial Judge and rightly so. Sections 96, 97, 99 and 100 of the Indian Penal Code deal with the right of private defence of the body and property. Section 96 of the Indian Penal Code provides that nothing in an offence which is done in the exercise of the right of private defence and Section 97 of the Indian Panel Code gives right to a person to defend his person and the property. Section 99 of the Indian Penal Code, however, provides that the right to private defence of the body and property is subject to restrictions and Section 100 of the Indian Penal Code deals with a situation when the right of private defence of the body extends to causing death. It is well-settled that the right of private defence cannot be claimed when the accused are aggressors and the members of the prosecution party were totally unarmed. From the evidences laid by the prosecution it is apparent that in this case the prosecution party was unarmed and no one on the accused side has suffered any injury in the occurrence. On such facts, we have no hesitation to hold that the appellants had no right to defend themselves or to defend their property. 24. The appellants have been convicted for murder with the aid of Section 34 IPC. 25. When a criminal act is done by several persons in furtherance of the common intention all each of such persons is liable for that act in the same manner as if it were done by him alone. However, common intention which necessarily implies a pre-arranged plan must be distinguished from same or similar intention. The plan may not be elaborate and there may not be a long interval of time between the plan and its execution. However, common intention which necessarily implies a pre-arranged plan must be distinguished from same or similar intention. The plan may not be elaborate and there may not be a long interval of time between the plan and its execution. A common intention may from suddenly or even in the midst of the occurrence, but the prosecution must show that all of them have consented either by their words or acts to accomplish the task. Though it is not necessary that the persons accused of a crime must have had deliberations before they have committed the crime but to fasten liability upon all with the aid of Section 34 IPC it must be established by the prosecution that the final act was committed in furtherance of common intention of all. The participation of the appellants in the occurrence is a foregone conclusion and to find out the extent of their criminal liability, we would give a brief description of the overt acts of each of the appellants in a tabular chart - main assaults. PWS Raju Mahto Appellant in Cr. Appeal (DB) No. 1400/2016 Darbari Mahto Appellant in Cr. Appeal (DB) No. 1367/2016 Prayag Mahto Appellant in Cr. PWS Raju Mahto Appellant in Cr. Appeal (DB) No. 1400/2016 Darbari Mahto Appellant in Cr. Appeal (DB) No. 1367/2016 Prayag Mahto Appellant in Cr. Appeal (DB) No. 1367/2016 CHETLAL MAHTO S.T. No. 507/2008 Weapon : Tangi Assault: (i) on his left leg, (ii) on head of Khiro Mahto (iii) on head of Keshar & Prabhu S.T. No. 507/2008 Weapon : Iron rod Assault: (i) on his right hand (ii) above the right knee of Khiro Mahto S.T. No. 507/2008 Weapon : Iron rod Assault: (i) on his right hand, (ii) caught Khiro Mahto by hand S.T. No. 137/2010 Weapon : Tangi Assault: (i) on his left knee, (ii) on head of Khiro Mahto, (iii) assaulted Keshar & Prabhu S.T. No. 137/2010 Weapon : Iron rod Assault: (i) on right leg of Khiro Mahto S.T. No. 137/2010 Weapon : Iron rod Assault : (i) on his right hand, (ii) caught Khiro Mahto & exhorted to kill him SHIV MAHTO S.T. No. 507/2008 Weapon : Tangi Assault : (i) on head of Khiro Mahto, (ii) on the head of Keshar Mahto & Prabhu Mahto S.T.No. 507/2008 Weapon : Iron rod Assault : (i) on the waist of Chetlal Mahto (ii) above the knee of Khiro Mahto S.T. No. 507/2008 Weapon : Iron rod Assault : (i) on the right hand of Chetlal Mahto (ii) caught Khiro Mahto and exhorted to kill him S.T. No. 137/2010 Not Examined S.T. No. 137/2010 Not Examined S.T. No. 137/2010 Not Examined CHAMELI DEVI S.T. No. 507/2008 Weapon : Tangi Assault: (i) on leg of Chetlal Mahto (ii) on head of Khiro Mahto (iii) on head of Keshar Mahto (iv) on head of Prabhu Mahto S.T. No. 507/2008 Weapon : Iron rod Assault: (i) on the fractured hand of Chetlal Mahto after he fell on the ground (ii) above the right knee of Khiro Mahto S.T. No. 507/2008 Weapon : Iron rod Assault: (i) on right hand of Chetlal Mahto (ii) caught both the hand of Khiro Mahto (iii) on the right hand of Keshar (iv) on wrist of Chameli Devi S.T. No. 137/2010 Weapon: Tangi Assault : (i) on left leg of Chetlal Mahto (ii) assaulted Khiro Mahto (iii) on head of Keshar Mahto (iv) on head of Prabhu Mahto S.T. No. 137/2010 Weapon: Rod Assault : (i) on right hand of Chetlal Mahto (ii) assaulted Khiro Mahto (iii) on back of Keshar Mahto S.T. No. 137/2010 Weapon : Rod Assault : (i) on right hand of Chetlal (ii) caught Khiro Mahto and exhorted to kill him (iii) Keshar Mahto on his right hand (iv) on left hand of Chameli Devi. KESHAR MAHTO S.T. No. 507/2008 Weapon: Tangi Assault : (i) on left leg of Chetlal Mahto (ii) on head of Khiro Mahto (iii) on the head of witness-Keshar Mahto (iv) on the head of Prabhu Mahto S.T. No. 507/2008 Weapon: Iron rod Assault : (i) assaulted Chetlal Mahto (ii) on leg of Khiro Mahto S.T. No. 507/2008 Weapon: Iron rod Assault : (i) on right hand of Chetlal Mahto (ii) caught Khiro Mahto & exhorted to assault him (iii) on right hand of Keshar Mahto (iv) on the right leg of Prabhu Mahto S.T. No. 137/2010 Weapon : Tangi Assault : (i) above left knee of Chetlal Mahto (ii) on head of witness-Keshar Mahto (iii) on head of Khiro Mahto (iv) on head of Prabhu Mahto S.T. No. 137/2010 Weapon : Tangi & Lathi Assault : (i) assaulted Khiro Mahto after he fell on the ground (ii) assaulted Prabhu Mahto by lathi S.T. No. 137/2010 Weapon : Iron rod & Lathi Assault : (i) on right hand of Chetlal (ii) on left hand of Keshar Mahto (iii) caught Khiro Mahto (iv) assaulted Prabhu Mahto by lathi (v) assaulted Chameli Devi JAMUNI DEVI S.T. No. 507/2008 Weapon : Tangi Assault : (i) on left leg of Chetlal Mahto (ii) on head of Khiro Mahto (iii) on head of Keshar Mahto and Prabhu Mahto S.T. No. 507/2008 Weapon : Iron rod Assault : (i) on the right hand of Chetlal Mahto (ii) assaulted Khiro Mahto S.T. No. 507/2008 Weapon : Iron rod Assault : (i) on the right hand of Chetlal Mahto (ii) assaulted Khiro Mahto S.T. No. 137/2010 Weapon : Tangi Assault : (i) on head of Khiro Mahto (ii) assaulted Keshar Mahto & Prabhu Mahto S.T. No. 137/2010 Not stated anything S.T. No. 137/2010 Weapon : Rod Assault : (i) assaulted Chetlal Mahto PRABHU MAHTO S.T. No. 507/2008 Weapon : Tangi Assault : (i) on right leg of Chetlal Mahto (ii) on head of Khiro Mahto (iii) on head of witness- Prabhu Mahto (iv) head of Keshar Mahto S.T. No. 507/2008 Weapon : Iron rod Assault : (i) on the right hand Chetlal Mahto (ii) on the leg of Khiro Mahto S.T. No. 507/2008 Weapon : Iron rod Assault : (i) on right hand of Chetlal Mahto (ii) caught Khiro Mahto (iii) on the right leg of witness-Prabhu Mahto (iv) on the hand of Keshar Mahto S.T. No. 137/2010 Weapon: Tangi Assault: (i) on left leg of Chetlal Mahto (ii) on head of Khiro Mahto (iii) on head of witness-Prabhu Mahto (iv) on head of Keshar Mahto S.T. No. 137/2010 Weapon: Iron rod & lathi Assault: (i) assaulted Chetlal Mahto (ii) on the leg of Khiro Mahto (iii) on the hand of Keshar Mahato with lathi S.T. No. 137/2010 Weapon: Iron rod & lathi Assault : (i) on right hand of Chetlal (ii) caught the hand Khiro Mahto (iii) assaulted Prabhu Mahto (iv) on the hand of Keshar Mahto GEETA DEVI S.T. No. 507/2008 Weapon : Tangi Assault : (i) on left leg of Chetlal Mahto (ii) on head of Khiro Mahto (iii) on head of Keshar Mahto (iv) assaulted Prabhu Mahto (v) assaulted Jamuni Devi & Chameli Devi S.T. No. 507/2008 Weapon : Iron rod Assault : (i) assaulted Chetlal Mahto (ii) above the right knee of Khiro Mahto (iii) assaulted Keshar Mahto S.T. No. 507/2008 Weapon : Iron rod Assault : (i) on right hand of Chetlal Mahto (ii) caught Khiro Mahto (iii) assaulted Keshar Mahto S.T. No. 137/2010 Weapon : Tangi Assault : (i) on left leg of Chetlal Mahto (ii) on head of Khiro Mahto (iii) on head of Keshar Mahto (iv) on head of Prabhu Mahto S.T. No. 137/2010 Weapon : Iron rod Assault : (i) on the leg of Chetlal Mahto (ii) on the leg of Khiro Mahto S.T. No. 137/2010 Weapon : Rod Assault : (i) on right hand of Chetlal Mahto (ii) caught both the hand of Khiro Mahto MANOJ KR. VERMA S.T. No. 507/2008 Weapon : Kulhari Assault : (i) on left leg of Chetlal Mahto (ii) on head of Khiro Mahto (iii) on head of Keshar Mahto (iv) on head of Prabhu Mahto S.T. No. 507/2008 Weapon : Iron rod Assault : to Chetlal Mahto, Prabhu Mahto & Keshar Mahto S.T. No. 507/2008 Weapon : Iron rod Assault : (i) on the right hand of Chetlal Mahto (ii) caught right hand of Khiro Mahto (iii) to Prabhu Mahto & Keshar Mahto S.T. No. 137/2010 Weapon: Kulhari Assault: (i) on head of Khior Mahto (ii) on head of Keshar Mahto and Prabhu Mahto S.T. No. 137/2010 Weapon : Iron road Assault : to Chetlal Mahto, Keshar Mahto & Prabhu Mahto with rod. S.T. No. 137/2010 Weapon : Iron rod Assault: (i) to Chetlal Mahto on his right hand (ii) caught Khiro Mahto and exhorted to kill him (iii) to Keshar Mahto and Prabhu Mahto 26. Dr. Girindra Kumar Singh, who has been examined in Session Trial No. 507 of 2008 as PW-10, had found one incised wound on the top of the head of Khiro Mahto of the size “2 inches x 1 inches x 2 inches.” The injury was caused by a sharp weapon and in his opinion the cause of death was shock and hemorrhage on account of the head injury. 27. Raju Mahto has struck a tangi blow on the head of Khiro Mahto and this has proved fatal for him. Ms. Shilpi John, the learned Amicus has contended that Raju Mahto has assaulted Khiro Mahto in the middle of the occurrence and he has not repeated the blow and while so, his conviction under section 302 IPC is not proper. 28. The intention of an accused can be gathered from the manner of occurrence, the nature of the injury, the weapon used and whether the injury was on vital or non-vital part of the body. In Mahesh Balmiki alias Munna vs. State of Madhya Pradesh, (2000) 1 SCC 319 the Hon'ble Supreme Court has held that in some cases a single blow may entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other case under Section 326 IPC. In Mahesh Balmiki alias Munna vs. State of Madhya Pradesh, (2000) 1 SCC 319 the Hon'ble Supreme Court has held that in some cases a single blow may entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other case under Section 326 IPC. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat, (2003) 9 SCC 322 , the Hon'ble Supreme Court has observed that “a sudden fight implies mutual provocation and blows on each other.” It has been held that the help of Exception 4 of Section 300 IPC can be invoked if death is caused (a) without pre-meditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with the person killed. In Pulicherla Nagaroju @ Nagaraja Reddy vs. State of A.P. (2006) 11 SCC 444 , the Hon'ble Supreme Court has observed that many petty or insignificant matters such a plucking of a fruit, straining of cattle, quarrel of children, utterance of a rude word or even on objectionable glance may lead to altercation and group clash which may witness deaths, however, such incidents would not bring in Section 302 IPC into play. 29. The judgments on the subject indicate that the question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. Raju Mahto has struck one tangi blow on the middle of the head of Khiro Mahto. The force of assault was such that the tangi was stuck on his head and at once the blood has spurted like a spring. Two of the accused persons had caught hold of Khiro Mahto and then Raju Mahto has struck the fatal blow. The doctor has found internal injuries such as fracture of skull bone and the brain was damaged. That was sufficient to kill and there was no need for him to inflict a second blow on Khiro Mahto. His intention was very much clear. He intended to hit on the head and he has struck on the head of Khiro Mahto. Nothing more is required to prove a charge a under Section 302 IPC. 30. Prayag Mahto caught hold of Khiro Mahto when Raju Mahto has struck the fatal blow. His intention was very much clear. He intended to hit on the head and he has struck on the head of Khiro Mahto. Nothing more is required to prove a charge a under Section 302 IPC. 30. Prayag Mahto caught hold of Khiro Mahto when Raju Mahto has struck the fatal blow. By holding hand of Khiro Mahto he has ensured fatal blow on his head and therefore, he must be imputed with the knowledge that Khiro Mahto would be killed. A decision on the point can be found in Mamand vs. Emperor, AIR 1946 PC 45 . There was evidence on the record the Mamand was grappling with Gahra so that he might not rescue Naman from the clutches of the second and third appellants and this justified the inference that the murder was committed in furtherance of the common intention of all the appellants. Sir John Beaumont, J. has held that Mamand, the appellant, who was merely grappling with Gahra, had formed a common intention with the second and third appellants to murder Naman. Prayag Mahto and Budhan Mahto while holding hands of Khiro Mahto exhorted to kill him and Raju Mahto has then struck the fatal blow. It has also come on record that he was carrying an iron rod and he has assaulted Chetlal Mahto, Prabhu Mahto and Kesar Mahto. On such facts, conviction of Prayag Mahto under Sections 302/34 and 325/34 IPC does not call for any interference by this Court. 31. There was a dispute between both the sides and a Panchayati was to be convened to resolve the dispute however as stated by PW-1 in paragraph no. 20 of his cross-examination it was deferred because one of the Panchas fell sick. He has stated that Khata No. 42 comprises about 200-250 acres of land which are gair-mazurwa lands over which several villagers including the accused persons have their land. Chetlal Mahto and his family members have denied that there was any land dispute with the accused persons, however, Manoj Kr. He has stated that Khata No. 42 comprises about 200-250 acres of land which are gair-mazurwa lands over which several villagers including the accused persons have their land. Chetlal Mahto and his family members have denied that there was any land dispute with the accused persons, however, Manoj Kr. Verma and Shiv Shankar Mahto have stated in the Court that both the sides were claiming their right over a piece of land at Nai Tand, PW-2 has stated that there was a land dispute between both the sides and in his cross-examination he has stated that the disputed land is big plot in which the accused persons also posses a piece of land. The role played by Darbari Mahto in the occurrence was very limited. He has not even touched Khiro Mahto. He is said to have assaulted Chetlal Mahto, Prabhu Mahto and Kesar Mahto. The grievous hurt caused to Chetlal is attributable to Prayag Mahto - right hand was broken. Some of the prosecution witnesses have stated that he has assaulted Khiro Mahto on his right knee when he had fallen on the ground, but no injury on the right knee of Khiro Mahto has been found by PW-7. There is not doubt on presence of Darbari Mahto at the place of occurrence and his participation in the occurrence, but it is also true that the prosecution witnesses have given exaggerated version of the occurrence which is reflected in the fact that injuries caused to Kesar Mahto and Prabhu Mahto were simple in nature and except that right hand of Chetlal Mahto was broken in the occurrence, other two injuries on him were also simple in nature. 32. The above being the factual scenario, we are of the opinion that the prosecution has failed to establish that Darbari Mahto shared common intention with Raju Mahto and in furtherance of common intention shared by all the appellants murder of Khiro Mahto has been committed. 33. Section 38 IPC provides that where several persons are engaged or concerned in the commission of criminal act, they may be gulity of different offences by means of that act. 33. Section 38 IPC provides that where several persons are engaged or concerned in the commission of criminal act, they may be gulity of different offences by means of that act. The heading of section 38- "persons concerned in criminal act may be guilty of different offences" - which is in the group of the sections dealing with act(s) of several persons and the statutory explanation to section 38 make it abundantly clear that in commission of a crime different persons may be found liable for their individual act(s). Darbari Mahto was carrying iron rod which is a dangerous weapon and his assault on Prabhu Mahto and Keshar Mahto which has caused simple injuries to them would at best bring his case under section 324 IPC for which maximum punishment is RI. for three years or fine or both. 34. Accordingly, Darbari Mahto is convicted and sentenced to R.I. for two years under section 324 IPC. The trial Court shall prepare a modified conviction warrant against him, if he has not served the sentence. 35. In the result, Criminal Appeal (D.B.) No. 1400 of 2016 is dismissed. Criminal Appeal (DB.) 1367 of 2016 in respect of Praya Prasad Mahto is dismissed. 36. Criminal Appeal (DB). 1367 of 2016 in respect of Darbari Mahto is partly allowed, in the aforesaid terms. 37. The Court appreciates the assistance rendered by Ms. Shilpi John, the learned Amicus. 38. Let the lower Court records be transmitted to the Court concerned, forthwith. 39. Let a copy of the judgment be communicated to the trial Court and the concerned jail superintendent through 'FAX'