JUDGMENT : D.K. Singh, J. 1. Appeals 1.1 The instant criminal appeals under Section 374 (2) CrPC have been preferred by the three accused-appellants, namely Daya Ram, Jay Singh and Mahendra alias Madan against the impugned judgment and order dated 20/21.09.2007 passed by the Additional Sessions Judge/F.T.C.-VIII, Lucknow in Sessions Trial No.0193 of 2003, arising out of Crime No.0149 of 2002 under Sections 307, 302, 504 and 506 IPC lodged at Police Station Bakshi-Ka-Talab, District Lucknow. The trial Court did not find charge under Section 504 and 506 IPC read with Section 34 IPC proved against all the appellants beyond reasonable doubt and, therefore, acquitted them from the charges under the said sections. However, the appellants have been convicted under Section 302 IPC read with Section 34 IPC and, sentenced for life with fine of Rs.1,000/- each and, in the event of non-payment of fine, one month’s additional simple imprisonment. 2. Prosecution Case 2.1 On the basis of written complaint, Exhibit Ka-1, from Murli Prasad, complainant, PW-2, FIR, Exhibit Ka-12, at Case Crime No.0149 of 2002 came to be registered on the same day i.e. 22.07.2002 at 10 a.m. under Sections 307, 504 and 506 IPC at Police Station Bakshi-Ka-Talab, District Lucknow. 2.2 As per the FIR, on 22.07.2020, at 6 a.m., the appellants, Daya Ram and, his two sons Mahendra alias Madan and Jay Singh, with an intention to forcibly take possession of land of Rakesh Kumar, were hammering a wooden stake (Khoota) on the land; when Rakesh Kumar objected then all the three appellants attacked Rakesh Kumar with lathis; appellant Mahendra hit lathi blow on the head of Rakesh, as a result thereof, he sustained serious injury and, fell down; he started vomiting and became unconscious; on raising alarm by Amar Singh, brother of Rakesh, sister Manorama and many villagers came running to the place of incident, then the accused-appellants fled away from the scene of occurrence, extending threat; the accused blocked the road and, therefore, the complainant could reach to the police station with Rakesh Kumar after he found the path clear; injured Rakesh Kumar was sent to the Primary Health Center from-where he was sent to Balrampur Hospital, Lucknow where he died on the same day at 3.50 p.m.; after his death, the offence under section 307 IPC was converted under Section 302 IPC. 2.3 After inquest proceedings, the postmortem of the cadaver of the deceased was conducted on 23.07.2020 at 2 p.m.; as per the postmortem report, Exhibit Ka-4; the following ante-mortem injuries were found on the body of the deceased:- i. Abraded contusion 3 cm x 1 cm on the right side forehead, 2 cm above right eyebrow: ii. Contusion 12 cm x 8 cm on the right side head just above right ear; iii. Abraded contusion 3 cm x 1 cm on the front of right shoulder; iv. Contusion 7 cm x 5 cm on the front of right knee; v. Abraded contusion 1 cm x 1 cm on the back of left elbow; vi. Abraded contusion 5 cm x 2.4 cm on the front and mid of left leg; The cause of death was coma due to antemortem head injury. 3. Charges 3.1 The trial Court vide order dated 03.04.2003 framed charges against all three accused-appellants under Sections 302, 504 and 506 read with Section 34 IPC which the accused-appellants denied and claimed trial. 4. Prosecution Evidence 4.1 The prosecution, to prove its case, examined Amar Singh as PW-1, Murli Prasad as PW-2, Jaswant Singh as PW-3, Ram Shanker as PW-4, Dr. H.N. Tripathi as PW-5, S.I. Shyam Bhadur Singh as PW-6, S.I. Suresh Chandra as PW-7, Jeeut Ram as PW-8, Vijay Narain Pandey as PW-9, Dr. Jamshed Nazim as PW-10 and Constable Priy Kumar Tripathi as PW-11. 4.2 Besides oral testimony, documentary evidence i.e. written report as Exhibit Ka-1, inquest report as Exhibit Ka-2, recovery memo of lathi as Exhibit Ka-3, postmortem report as Exhibit Ka-4, challan lash as Exhibit Ka-5, photo lash as Exhibit Ka-6, sample sealed as Exhibit Ka-7, site-plan as Exhibit Ka-8, recovery memo of plan and blood stained earth as Exhibit Ka-9, charge-sheet as Exhibit Ka-9, forensic report/injury report as Exhibit Ka-11, F.I.R as Exhibit Ka-12 and general diary as Exhibit Ka-13 were submitted. 4.3 PW-1, Amar Singh stated that he along with his wife and sister, Manorama were inside the house at the time of incident; the accused were hammering the wooden stake on land belonging to his family to forcibly occupy it and, when his brother, Rakesh Kumar objected, all the three accused started assaulting him by lathis; hearing the commotion/noise, he with his sister came at the place of incident and, when the witnesses and his sister tried to save the deceased, the accused threatened them also. In his cross-examination, he said that he reached at the place of incident after hearing the noise/commotion; crowd had already got collected; when he reached at the place of incident, the deceased told him about the injuries caused to him but he could not see any injury from his eyes; he also said that Jaswant, PW3, another brother of the deceased, had reached before him. 4.4 Thus, PW-1 was not present at the time when deceased received injuries allegedly by the accused; he said that he, deceased Rakesh, Jaswant and sister Manorama were unarmed and, they did not assault anyone; he denied the suggestion that they had assaulted Shanti, Neetu and Jay Singh by lathi and danda and Murli was also involved in assault; he said that Murli Prasad came at the place of incident at 8.a.m; Rakesh and Jaswant were taken home; the deceased could not be taken to any Doctor immediately as the accused had encircled the house of the deceased; after the incident, Murli Prasad came on a motorcycle with Subedar Singh. 4.5 This witness had denied the suggestion that the deceased wanted to take possession of the land of Daya Ram and when Jay Singh, Shanti and Neetu objected, the deceased, this witness and his brother, Jaswant and Murli Prasad assaulted Shanti, Neetu and Jay Singh; and deceased Rakesh received injuries in self-defense. He also denied the suggestion that any case was registered against him and other family members. 4.6 PW-2, Murli Prasad is brother-in-law of the deceased. He said that on the date and time of the incident, he was present at his shop at Rampur Behda Crossing and, his wife was at his in-laws’ place; he received information at quarter to 8 that a fight had taken place between Daya Ram, Amar Singh, Rakesh and Jaswant and, he was called for. He said that on the date and time of the incident, he was present at his shop at Rampur Behda Crossing and, his wife was at his in-laws’ place; he received information at quarter to 8 that a fight had taken place between Daya Ram, Amar Singh, Rakesh and Jaswant and, he was called for. He reached at the place of incident and, found the condition of Rakesh deteriorating; Rakesh told him that he had received serious injuries on his head and, he was having severe unbearable pain. He further said that Rakesh told him that Daya Ram, Jaswant and Mahendra had assaulted him. This witness is not an eyewitness, however, he said that when he took Rakesh to the police station, Rakesh was in senses. He proved the complaint and, his signatures on the inquest. He also said that lathi was recovered in his presence on pointing out of accused Mahendra. He said that the investigating officer prepared recovery memo, Exhibit Ka-3. He denied the suggestion that he, Rakesh, Amar Singh, and Jaswant had assaulted Daya Ram’s wife, Shanti, his daughter Neetu and son Jay Singh and, after assaulting them, he came to his village. 4.7 PW-3, Jaswant, in his statement, stated that he was present at the time of incident along with his brother Rakesh Kumar; the accused were hammering the wooden stake on land belonging to them and, when they objected, the accused assaulted the deceased by lathi; when he tried to save his brother, he was also assaulted; when the deceased and he raised alarm, then his brother Amar Singh, sister Manorama came running and many villagers also got collected; the accused fled away from the scene of occurrence, extending threat. This witness accepted that he was admitted on bail by the Court in the case registered by Daya Ram etc against them; he along with his brother Amar Singh and Murli Prasad were admitted on bail in N.C.R. No. 099 of 2002. However, he denied the suggestion that he and others named in the said case had assaulted Shanti Devi, Neetu and Jay Singh and, that he did not receive any injury and, his medical examination was not conducted. 4.8 PW-5, Ram Shanker, villager is said to be an independent witness. However, he denied the suggestion that he and others named in the said case had assaulted Shanti Devi, Neetu and Jay Singh and, that he did not receive any injury and, his medical examination was not conducted. 4.8 PW-5, Ram Shanker, villager is said to be an independent witness. He said that he witnessed deceased Rakesh, Madan and Daya Ram quarrelling and abusing each other; he said that Rakesh was hammering wooden stake and for this reason quarrel was taking place. Daya Ram was objecting, but Rakesh was not stopping then Daya Ram, Mahendra and Jay Singh assaulted Rakesh by lathis. Mahendra gave lathi blow on the head of Rakesh; Rakesh fell down, started vomiting and became unconscious; at that time, many villagers came; Amar Singh and his sister Manorama also came; the accused hit Amar Singh and threatened to hit Manorama as well; when this witness tried to save Rakesh, he was also threatened, when Jagdev etc. came then only all the accused fled away from the scene of occurrence. This witness, however, said that when he reached to the shop of Vinod, he heard noise/commotion; he purchased ‘Bidi’ from the shop, but the noise increased, and many people started running towards the house of Daya Ram. It was 6 a.m., he also reached running; all the family members of Daya Ram were present so as the family members of deceased Rakesh; when he reached, both the sides were spinning lathis and, he could not see whose lathi hit whom; when he reached, he could notice that Rakesh had received injuries; he did not see Shanti, Neetu and Jay Singh in injured condition; he did not see Amar, Rakesh, Jaswant and Murli hitting Jay Singh. 4.9 PW-5, Dr. H.N. Tiwari, who conducted the postmortem on the cadaver of the deceased; he proved the postmortem report and, said that ecchymosis was present under all the injuries; there was a linear fracture of right temporal and occipital bone on right extradural hematoma was present underneath fracture and subdural hematoma was present in all over mind. 4.10 PW-6, S.I., Shyam Bahard Singh prepared the inquest report. 4.11 PW-7, Suresh Chandra had recovered lathi used by Mahendra on his pointing out. 4.12 PW-8, Jeetut Ram was investigating officer of the offence initially, who prepared the site-plan, Exhibit Ka-8 and, prepared the report of taking sample of plain and blood-stained earth, Exhibit Ka-9. 4.10 PW-6, S.I., Shyam Bahard Singh prepared the inquest report. 4.11 PW-7, Suresh Chandra had recovered lathi used by Mahendra on his pointing out. 4.12 PW-8, Jeetut Ram was investigating officer of the offence initially, who prepared the site-plan, Exhibit Ka-8 and, prepared the report of taking sample of plain and blood-stained earth, Exhibit Ka-9. He said that on 22.07.2002, an N.C.R. No.099 of 2002 came to be registered at police station on the complaint of wife of Daya Ram and, he conducted the investigation of the said N.C.R. as well. The charge-sheet in the said offence was submitted against Amber Lal, Tanna alias Jaswant and Murli after permission from the Court. This was a cross case of the case against accused. This witness said that he prepared the site-plan on pointing out of the witness, but he did not mention the name of the witness. In his report, he also said that he did not find any wooden stake fixed on the earth at the place of incident. He only prepared one Parcha of the case diary. He said that the accused Madan alias Mahendra was employed as home-guard. Shanti, wife of Daya Ram, his daughter Neetu, son Jay Singh had received injuries in the incident. 4.13 PW-9, Vijay Narain Pandey said that initially the investigation of the offence registered at Case Crime No.0149 of 2020 was given to S.I., Jeeut Ram, however, after death of Rakesh, he took over the investigation and submitted the charge-sheet. After looking at Paper No.7/2 in Sessions Trial No.635 of 2004, this witness said that this report was registered on 22.07.2002 at 8.10 a.m. at the police station and, the referral letter for examining the injured in the case was prepared at the police station, which was filed in Sessions Trial No.635 of 2004. 4.14 PW-10, Dr. Jamshed Nazim examined Jaswant Singh. He said that the injured was brought to him by home-guard, Hanuman Prasad on 24.07.2002 at Community Health Center, Bakshi-Ka-Talab and following injuries were found on his body:- i. 1.5 cm x 0.5 cm abrasion on forehead 3.0cm above left eyebrow clot present; ii. Abrasion 2.5 cm x 1.0 cm in size on left side of face, 4.0 cm from ingress of left ear clot present; iii. Abraded contusion 9 cm x 4 cm on right side of back, 3.0 cm medial to left shoulder joint clot present; Injury nos. Abrasion 2.5 cm x 1.0 cm in size on left side of face, 4.0 cm from ingress of left ear clot present; iii. Abraded contusion 9 cm x 4 cm on right side of back, 3.0 cm medial to left shoulder joint clot present; Injury nos. 1, 2 and 3 could have been caused by blunt and hard object. No x-ray of Jaswant was received and, therefore, supplementary report was not prepared by him. 4.15 PW-11, Constable Priy Kumar Tripathi said that on 22.07.2020 he was posted as Constable (Mohrir) and, he made the entry of the report given by complainant, Murli. 5. Defense Case 5.1 The appellants, in their statements recorded under Section 313 CrPC, denied the incident. Appellant, Mahendra said that he did not hit Rakesh Kumar and, a false case was registered against him and other accused; he also denied the recovery of lathi on his pointing out and, said that he was on home-guard duty in Traffic Police Line, Sadar, Lucknow on 22.07.2002; he said that he was on duty since 4.30 a.m.; when he was coming back after performing his duty, the police of Bakshi-Ka-Talab arrested him. 5.2 Appellant, Daya Ram, in his statement under Section 313 CrPC, said that he was not present at the place of incident, he had been falsely implicated; on 21.07.2020, he went to Manshapurwa, District Barabanki as his grand-son was ill and, after receiving the information regarding the incident, he came back on the next day i.e. 22.07.2002. 5.3 Appellant, Jay Singh had denied the incident and, said that on their land, Murli, Amber, Jaswant and Rakesh were collecting earth; when he objected, these persons attacked him; he squabbled with Rakesh; Murli hit a lathi blow, aiming at him, but he could get aside and, this lathi hit Rakesh; thereafter, he went to police station to lodge an FIR; he also said that his mother and sister had also received injuries. 6. Evidence of the Defense 6.1 The appellants, in their defense examined Ram Naresh as DW-1. He said that on the date of incident, he witnessed that Jay Singh, his sister and mother had received injures; hearing noise/commotion, he reached at the place of incident; Daya Ram's wife told him that Daya Ram had gone to Manshapurwa and, requested him to inform about the incident. He said that on the date of incident, he witnessed that Jay Singh, his sister and mother had received injures; hearing noise/commotion, he reached at the place of incident; Daya Ram's wife told him that Daya Ram had gone to Manshapurwa and, requested him to inform about the incident. He said that Manshapurwa is 30-32 kilometers where Daya Ram's daughter was married and, he went on a motorcycle to give information to him; he reached Manshapurwa at 9 p.m.; when he reached at the place of incident, he saw Jay Singh, his sister and mother in injured condition, but he did not take them to the hospital; he denied the suggestion that he was not present at the time and place of the incident. 6.2. DW-2, Gulab Singh deposed that on 22.07.2020, he was posted as general diary writer in Traffic Police Line, Sadar, Cantt., Lucknow; he filled the home-guard duty register and home-guard, Mahendra Pal was also sent for duty for traffic management by the said G.D; he verified his handwriting and signature on the G.D. He said that Mr. Ramdhiraj Singh, Platoon Commander had taken the attendance; Mahendra, home-guard was not physically present before him to mark his presence. 6.3 DW-3, Ram Dhari Singh, Company Commander stated that Mahendra Pal was working as home-guard and, on 22.07.2002, he noted his presence at Report No. 14 at 7.10 a.m. in his handwriting and signature. The relevant page was submitted, which was marked as Exhibit Kha-2. He said that Mahendra Pal was present on duty. He also said that he recognized every home-guard under him, but after allotting duty, he would not go for checking. 7. Impugned Judgment 7.1 The trial Court held that the Sessions Trial No.635 of 2004 State Vs. Amber Lal and others, under Sections 323 and 504 IPC lodged at Police Station Bakshi-Ka-Talab, Lucknow, which is a cross-case, had not been treated to be a cross-case by the prosecution. As the certified copies of the documents of the said case were not been filed in the present case, evidence of the Sessions Trial No.635 of 2004 would not be read in this case under the Evidence Act and, both the cases would be decided independently. As the certified copies of the documents of the said case were not been filed in the present case, evidence of the Sessions Trial No.635 of 2004 would not be read in this case under the Evidence Act and, both the cases would be decided independently. 7.2 The trial Court has not believed the defense case that when the deceased, Rakesh, Murli, Jaswant and Amber Lal were hitting Neetu, Shanti and Jay Singh and, Murli tried to hit Jay Singh by Lathi, but Jay Singh could ducked and the lathi blow hit Rakesh on the ground that five other injuries on the body of the deceased would prove that more than one person had assaulted the deceased, Rakesh. The trial Court has believed the presence of witness, Jaswant on the ground that the defense case was that Murli, Amber, Jaswant and Rakesh had assaulted Shanti, Neetu, Jay Singh by lathi and, therefore, it could not be said that he was not present at the place of incident. The trial Court, however, has not believed the injuries on this witness as first he went Indaura Hospital on the date of incident, but he got himself examined at the Community Health Center, Bakshi-Ka-Talab on 24.07.2020 and, it appears that the Doctor at Indaura Hospital was not ready to prepare a false medical report and, therefore, on 24.07.2002, he was examined at Community Health Center, Bakshi-Ka-Talab and, the injury report was prepared. The trial Court has also concluded that to give credence to the incident, a false medical report of witness, Jaswant got prepared, but in fact, he did not receive any injury. The trial Court in the impugned judgment has held that since the Sessions Trial No.635 of 2004 is not a cross-case, it is not to be decided that who was the aggressor. Believing in the testimony of the independent witness, Ram Shanker, who said that Rakesh was hammering a wooden stake, trial Court has held that Rakesh had tried to hammer the wooden stake, but the accused had assaulted him by lathi as a result thereof he had died. The trial Court has not believed the defense case and, has held that DW-1, Ram Naresh and DW-2 and DW-3 had given false evidence to save their colleagues. 8. Submissions 8.1 Heard Mr. I.B. Singh, learned Senior Advocate assisted by Mr. Sujeet Kumar Singh, appearing for the appellants, and Mr. The trial Court has not believed the defense case and, has held that DW-1, Ram Naresh and DW-2 and DW-3 had given false evidence to save their colleagues. 8. Submissions 8.1 Heard Mr. I.B. Singh, learned Senior Advocate assisted by Mr. Sujeet Kumar Singh, appearing for the appellants, and Mr. S.P. Singh, learned Additional Government Advocate, appearing for the respondent-State. 8.2 Mr. I.B. Singh learned Senior Advocate has argued that the trial Court had committed a gross error of law and fact in not treating the Sessions Trial No.635 of 2004 as a cross-case. He submits that from the statement of the investigating officer, Jeeut Ram, it is clear that the Sessions Trial No.635 of 2004 was a cross-case and for that reason the trial of both the cases were conducted by the same Court and, if it was not a cross-case then the Sessions Court could not have conducted the trial as the offence is triable by Magistrate. He has submitted that if the trial of both the cases were conducted together, there was no requirement of filing certified copies of evidence of one case in another case inasmuch as the whole evidence would be available before the Court. He has further submitted that when the independent prosecution witness, PW-4 in his statement had said that it was Rakesh, deceased, who was hammering wooden stake then the trial Court was required to determine that which party was aggressor, particularly, when both the parties had assaulted each other, and injuries were on both sides. He has further submitted that this has led to a miscarriage of justice, which has resulted into wrong conviction and sentence of the appellants for offence under Section 302 IPC. 8.3 On behalf of the appellants, the second limb of argument of the learned Senior Advocate is that there was only one lathi blow on the head of the deceased, which proved fatal. The role of hitting the lathi blow on the head of the deceased had been assigned only to appellant, Mahendra alias Madan. The deceased was conscious throughout. As per the prosecution case, he was taken home from the place of incident and brought to the police station from where he was referred for medical examination and, thereafter referred to the Balrampur Hospital where he died in the evening. The deceased was conscious throughout. As per the prosecution case, he was taken home from the place of incident and brought to the police station from where he was referred for medical examination and, thereafter referred to the Balrampur Hospital where he died in the evening. He has further submitted that there was no intention for causing death of deceased, Rakesh, even if the prosecution case is believed. The other injuries are on non-vital parts which are allegedly caused by two other appellants, namely, Daya Ram and Jay Singh. It was possible that if the deceased was given timely treatment, he could have been saved, but delay in taking him to the hospital, not providing medical treatment in time had resulted the death of the deceased. He has further submitted that both the sides had assaulted each other. The trial Court itself has not believed the injuries allegedly suffered by witness Jaswant, whereas on the accused side three persons had received injuries. 8.4 The learned Senior Advocate has further submitted that considering the aforesaid facts and the evidence, the trial Court ought not have convicted all the three appellants under Section 302 IPC inasmuch as per prosecution case, only appellant Mahendra had given a lathi blow on the head of the deceased. Even against appellant Mahendra the offence under Section 302 IPC is not made out and, at the maximum, it would be an offence under Section 304 Part-II IPC and against two other appellants only the offence under Section 323 IPC is proved if the prosecution case is totally believed. The trial Court has committed a gross error in convicting all the three appellants and sentencing them for life for offence under Section 302 IPC. The learned counsel has further submitted that the appellant Mahendra has already undergone more than 14 years of imprisonment as he was denied bail by this Court and he has remained in jail throughout. Considering injury and evidence, conviction of appellant Mahendera is required to be altered under Section 304 Part-II IPC. 8.5 On the other hand, Mr. S.P. Singh, learned Additional Government Advocate, has supported the impugned judgment of the trial Court and, submitted that the accused had knowledge that the injuries caused by them would result in death of the deceased as the injuries caused to the victim were sufficient in the ordinary course to cause death. 8.5 On the other hand, Mr. S.P. Singh, learned Additional Government Advocate, has supported the impugned judgment of the trial Court and, submitted that the accused had knowledge that the injuries caused by them would result in death of the deceased as the injuries caused to the victim were sufficient in the ordinary course to cause death. The injury on the head of the deceased was fatal one and, was inflicted with an intention and knowledge to cause death of the deceased. The deceased had died on the same day within a few hours and, therefore, it cannot be said that the accused did not know that the injuries caused by them would result death of the deceased. He has further submitted that this was not an accidental injury and, lathi blow, on head, was intentionally given by the accused. He has further submitted that the trial Court has rightly convicted and sentenced all the three accused for offence under Section 302 IPC inasmuch as with common intention all the three accused had assaulted the victim and injuries caused by them had resulted in death of the deceased. 9. Analysis 9.1 We have considered the evidence on record which has been extracted herein above and arguments advanced on behalf of the appellants as well as the State. 9.2 The first issue in the present appeal is whether Sessions Trial No. 635 of 2004 was a cross-case of the present case. The Supreme Court in the case of Nathi Lal Versus State of U.P., 1990 Supp SCC 145 had laid down the guidelines for trying two cases regarding the same incident as cross-cases. In the present case, the trial Court had assumed the jurisdiction in the case of Sessions Trial No.635 of 2004 only on the ground that it was a cross-case of the present case. Otherwise, offence under Sections 323 and 504 IPC is triable by Magistrate. The charge-sheet was filed in the said case after taking permission under Section 155(2) CrPC and, the prosecution treated it to be a cross-case, but the trial Court unfortunately has held that the prosecution did not consider the Sessions Trial No.635 of 2004 as a cross-case. Otherwise, offence under Sections 323 and 504 IPC is triable by Magistrate. The charge-sheet was filed in the said case after taking permission under Section 155(2) CrPC and, the prosecution treated it to be a cross-case, but the trial Court unfortunately has held that the prosecution did not consider the Sessions Trial No.635 of 2004 as a cross-case. 9.3 The Supreme Court in the case of State of M.P. Versus Mishrilal (Dead) and others (2003) 9 SCC 426 has held that the cross-cases should be tried together by the same Court irrespective of nature of offence involved to avoid conflicting judgments over the same incident. Paragraph-8 of the aforesaid judgment is extracted herein-blow:- 8. In the instant case, it is undisputed, that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just, fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathilal's case. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either one of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavor to find out the truth and to cull out the truth from the falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in grave miscarriage of justice. 9.4 It would have been an appropriate course to remand the matter back to the trial Court on this short issue, but considering the long time period and, the fact that the appellant Mahendra alias Madan has already undergone more than 14 years sentence, we are not sending the case back to the trial Court. 9.5 The second issue, which arises for our consideration, is whether the conviction of all the three appellants under Section 302 IPC read with Section 34 IPC would be justified on the facts, circumstances and evidence on record. 9.5 The second issue, which arises for our consideration, is whether the conviction of all the three appellants under Section 302 IPC read with Section 34 IPC would be justified on the facts, circumstances and evidence on record. It was a sudden incident, which took place over a trivial matter. There was no prior mediation or meeting of mind between the accused. As per the prosecution case, the fatal lathi blow on head of the deceased was given by appellant, Mahendra. Other injuries found on the body of the deceased were simple in nature. Therefore, the trial Court has erred to conclude that the accused with a common intention of committing murder had assaulted the deceased. There is nothing on record from which it can be pointed that the accused-appellants had arrived at the place of incident with common intention to kill the deceased and, therefore, the conclusion of the trial Court is wholly incorrect and unjustified. The Supreme Court in the case of Virsa Singh Versus State of Punjab, AIR 1958 SC 465 has held that for conviction under Section 302 IPC the injury must have been caused with an intention to cause death and it should be proved that the injury found is sufficient to cause death in ordinary course of nature, but in this connection, it should also be shown that such a injury was intended to be inflicted. For convicting an accused under Section 302 IPC, there should be fatal injury and intention to inflict a particular body injury. Paragraphs 12, 13, 14, 15, 16, 17, 18 and 19 of the said judgment are extracted herein below:- 12. For convicting an accused under Section 302 IPC, there should be fatal injury and intention to inflict a particular body injury. Paragraphs 12, 13, 14, 15, 16, 17, 18 and 19 of the said judgment are extracted herein below:- 12. Once that is found, the enquiry shifts to the next clause-"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining-" and the bodily injury intended to be inflicted" is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. 13. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. 13. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that "twelve good men and true" could readily appreciate and understand. 14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 200 "thirdly". 15. First, it must establish, quite objectively, that a bodily injury is present. 16. Secondly, the nature of the injury must be proved; These are purely objective investigations. 17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. 18. Once these three elements are proved to be present, the enquiry proceeds further and. 19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 10. Conclusion 10.1 Considering the aforesaid aspects, evidence on record and submissions advanced on behalf of the accused-appellants and by the learned Additional Government Advocate, we are of the view that it cannot be concluded that all the three appellants had common criminal intention to cause death of the deceased. The lathi blow on head was allegedly given by appellant, Mahendra, but it was not with an intention to cause death of the deceased. The lathi blow on head was allegedly given by appellant, Mahendra, but it was not with an intention to cause death of the deceased. When there was no common intention amongst the accused for causing injuries sustained by the deceased, all the three accused cannot be held guilty for same offence but each one be guilty for injury individually caused by him. Section 38 of the IPC reads as under:- 38. Persons concerned in criminal act may be guilty of different offences.—Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Illustration A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B, having ill-will towards Z and intending to kill him, and not having been subject to the provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z’s death, B is guilty of murder, and A is guilty only of culpable homicide. 10.2 In view of the aforesaid discussions, we set-aside the conviction of the accused-appellants, Daya Ram and Jay Singh, under Sections 302 IPC read with Section 34 IPC and, convict each of them under Section 323 IPC. They are sentenced to the sentence already undergone by them. We also set-aside the conviction of the accused-appellant, Mahendra alias Madan under Section 302 IPC read with Section 34 IPC and, convict him under Section 304 Part-II IPC. Accused-appellant, Mahendra alias Madan is sentenced to the sentence already undergone by him, which is more than 14 years, as he was denied bail by this Court vide order dated 9th April, 2008 after his conviction by the trial Court. 10.3. Thus, both the appeals are allowed partly. 10.4 Appellants Daya Ram and Jay Singh are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged. 10.5 Appellant Mahendra alias Madan, who is in jail, is directed to be set-free forthwith unless otherwise wanted in any other case. 10.6 Keeping in view the provisions of Section 437-A CrPC, accused-appellants, Daya Ram and Jay Singh are directed to furnish fresh personal bonds before the trial Court in terms of Form-45 prescribed in CrPC of a sum of Rs.25,000/- each and, two reliable sureties, each in the like amount. 10.6 Keeping in view the provisions of Section 437-A CrPC, accused-appellants, Daya Ram and Jay Singh are directed to furnish fresh personal bonds before the trial Court in terms of Form-45 prescribed in CrPC of a sum of Rs.25,000/- each and, two reliable sureties, each in the like amount. Likewise, accused-appellant, Mahendra alias Madan shall furnish a personal bond of Rs.25,000/- and two reliable sureties, each in the like amount within ten days from his release. 10.7. The personal bonds and sureties bonds filed by the accused-appellants shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment and/or for grant of leave, the aforesaid accused-appellant, on receiving notice thereof, shall appear before the Supreme Court. 10.8 Let a copy of this judgment, along with the trial Court record, be sent to the trial Court forthwith for compliance.