JUDGMENT : (Shree Chandrashekhar, J.) Rafique Ansari and Safique Ansari were put on trial on the charge under sections 323/34, 341/34 and 302/34 of the Indian Penal Code for committing murder of Makbool Mian, for wrongful confinement and causing hurt to Nizam Ansari, Aamina Bibi and Momin Ansari. They were held guilty in ST Case No. 80 of 2012 and accordingly convicted and sentenced to RI for life and a fine of Rs.5000/-each with a default stipulation to undergo RI for further six months under section 302/34 of the Indian Penal Code; RI for six months and a fine of Rs. 500/-with a default stipulation to undergo RI for 15 days each under section 323/34 of the Indian Penal Code, and; RI for one month and a fine of Rs. 500/-with a default stipulation to undergo RI for 7 days each under section 341/34 of the Indian Penal Code. 2. Nawadih PS Case No. 89 of 2011 was lodged on 28.10.2011 against Safique Ansari, Rafique Ansari and their father Sakul Mian. In his fardbeyan which was recorded by Subodh Ekka, SI of Nawadih police station on 28.10.2011 at 08:15 AM at Primary Health Centre, Nawadih, Nizam Ansari stated that in the morning at about 07:00 AM Safique Ansari and Rafique Ansari objected to dumping soil in the passage near his house and started abusing him. When he objected the accused became agitated and warned him not to dump soil inside his boundary and went home. But soon thereafter Safique Ansari and Rafique Ansari came back armed with iron rod and lathi and started marpit. On raising hulla, his father Makbool Mian and brother Momin Ansari rushed there and when they tried to intervene Safique Ansari assaulted his father on his head with iron rod and Rafique Ansari hit his brother Momin Ansari with iron rod. His father suffered head fracture and blood started oozing from his injury – Momin Ansari was also bleeding. In the meantime, his wife and other family members also arrived there and intervened whereafter the accused went back home. The informant has further stated that his father became unconscious and he was brought on a tempo at Primary Health Centre, Nawadih. The doctor advised to take him to another hospital for better treatment but on the way to Bokaro, near Nawadih market, his father succumbed to the injuries. The informant has further stated that his father became unconscious and he was brought on a tempo at Primary Health Centre, Nawadih. The doctor advised to take him to another hospital for better treatment but on the way to Bokaro, near Nawadih market, his father succumbed to the injuries. After the investigation a charge sheet was laid against Rafique Ansari and Safique Ansari while investigation in respect of Sakul Mian was kept pending. 3. The accused faced the trial on the charge under sections 302/34, 323/34 and 341/34 of the Indian Penal Code and, as noticed above, convicted and sentenced for committing the aforesaid offences. 4. The informant, Nizam Ansari, was examined in the trial as PW5. He is an injured witness. He has deposed in the Court that his father was assaulted by Safique Ansari with an iron rod on his head and Rafique Ansari caused head injury to his brother Momin Ansari. PW4 Momin Ansari is another injured witness who has made specific allegations of assault on the head of his father Makbool Mian by Safique Ansari. He has further stated that when he tried to intervene Rafique Ansari assaulted him also. PW4 and PW5 are the injured eyewitnesses who are believed by the learned trial Judge. An injured witness is accorded a distinct place in the criminal trial because he lends assurance to the Court that he was present at the place of occurrence and has seen the occurrence with his own eyes. 5. In “State of Maharashtra v. Tulshiram Bhanudas Kamble” (2007) 14 SCC 627 the Hon’ble Supreme Court has observed as under: “29. …. The witnesses examined on behalf of the prosecution, apart from being eyewitnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidence. Although in accepting the same, some amount of caution is required to be maintained.” 6. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidence. Although in accepting the same, some amount of caution is required to be maintained.” 6. The defence has tested credibility of PW4 and PW5 with reference to their statements made before the police under section 161 of the Code of Criminal Procedure and the Investigating Officer has admitted in his cross-examination that these witnesses did not state before him that Rafique Ansari, Safique Ansari, Sakul Mian, Sehroon Bibi and Nasima Khatoon started abusing the informant and his wife, and that they assaulted their father with iron rod, lathi and stone due to which he suffered head fracture. In course of investigation the police did not find any material on complicity of the female folks and though investigation against Sakul Mian was kept pending, in his cross-examination the Investigation Officer has admitted that he could not find any incriminating material against him also. 7. The learned trial Judge has held that the improvements made by the prosecution witnesses would not affect the prosecution case insofar as complicity of Safique Ansari and Rafique Ansari is concerned. We are also of the same view and hold that testimony of PW4 and PW5 notwithstanding exaggerations in their testimony in the Court cannot be discarded in toto. 8. PW1 Imtiyaz Ansari is grandson of the deceased; PW2 Jubeda Khatoon and PW3 Sehroon Bibi are daughters-in-law of Makbool Mian. They have also claimed in the Court that they saw the accused assaulting Makbool Mian, Momin Ansari and Nizam Ansari. 9. Mr. Kripa Shankar Nanda, the learned counsel for the appellants would contend that all material prosecution witnesses are related witnesses and in view of the admitted land dispute between the parties chances of false implication of the appellants cannot be ruled out. 10. The testimony of a witness cannot be discarded for the reason that he is related to the victim. This is, however, well accepted that a related witness may be interested in prosecution of the accused and therefore his testimony needs to be scrutinized with a little care. 11. In “State of H.P. v. Mast Ram” (2004) 8 SCC 660 the Hon'ble Supreme Court has observed as under: “11. ………. This is, however, well accepted that a related witness may be interested in prosecution of the accused and therefore his testimony needs to be scrutinized with a little care. 11. In “State of H.P. v. Mast Ram” (2004) 8 SCC 660 the Hon'ble Supreme Court has observed as under: “11. ………. The law on the point is well settled that the testimony of relative witnesses cannot be disbelieved on the ground of relationship. The only requirement is to examine their testimony with caution….” 12. In “Kuriya v. State of Rajasthan” (2012) 10 SCC 433 the Hon'ble Supreme Court has observed as under: “34. The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar, Brathi v. State of Punjab and Alagupandi v. State of T.N.” 13. Mr. Kripa Shankar Nanda, the learned counsel for the appellants has next contended that the medical evidence does not corroborate the prosecution case and, in fact, suggests that the prosecution has suppressed the real cause and the manner of occurrence. 14. PW8, Dr. A.K. Singh who was posted at Sub-Divisional Hospital, Chas has conducted the postmortem over the dead body of Makbool Mian and found one stitched wound over mid parietal region about 3½'' long. There was one abrasion on left knee over ½'' x 1/3''. 15. The doctor has rendered an opinion that the time elapsed since death was within 24 hours of the postmortem examination. He has stated in his cross-examination that rigor mortis would appear after one hour and depending on the weather conditions may not be found after 24-36 hours. 16. There was one abrasion on left knee over ½'' x 1/3''. 15. The doctor has rendered an opinion that the time elapsed since death was within 24 hours of the postmortem examination. He has stated in his cross-examination that rigor mortis would appear after one hour and depending on the weather conditions may not be found after 24-36 hours. 16. In “Kapildeo Mandal v. State of Bihar” (2008) 16 SCC 99 the Hon’ble Supreme Court has held that whenever a plea of discrepancy between the ocular evidence and the medical evidence is taken the oral evidence of the eyewitnesses shall get primacy if the medical evidence is not totally consistent with the oral evidence. After all evidence of a medical man is really of an advisory character. 17. In “Madan Gopal Kakkad v. Naval Dubey” (1992) 3 SCC 204 the Hon’ble Supreme Court has observed as under: “34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but of the Court.” 18. We have carefully examined the prosecution evidence and do not find any variance between the ocular evidence and the medical evidence. 19. The appellants are related to the deceased and it is quite apparent from the prosecution evidence that they were residing in the close vicinity or just adjacent to the house of the deceased. The presence of Makbool Mian in the village in the morning of 28.10.2011 was not challenged by the defence. According to the prosecution a marpit started around 07:00 AM and fardbeyan of Nizam Ansari was recorded at 08:15 hours at Primary Health Centre, Nawadih. We find from the records that an information about the incident was given to the police station at 07:45 AM. According to the prosecution a marpit started around 07:00 AM and fardbeyan of Nizam Ansari was recorded at 08:15 hours at Primary Health Centre, Nawadih. We find from the records that an information about the incident was given to the police station at 07:45 AM. There is material on record which suggests land dispute between the parties but we are of the opinion that for that reason the informant would not falsely implicate the accused for committing murder of his father and shield the real culprit. The time gap between the incident, information to the police station and recording of the fardbeyan is so short as to eliminate any possibility of implication of the accused after due deliberations. 20. In our opinion, the prosecution has firmly established participation of Safique Ansari and Rafique Ansari in the occurrence but their conviction with the aid of section 34 of the Indian Penal Code is not proper. 21. Mr. Vineet Kumar Vashistha, the learned APP has also referred to and relied upon the judgments of the Hon'ble Supreme Court in “State of Gujarat v. Naginbhai Dhulabhai Patel” 1983 SCC (Cri) 590; “Maqsoodan and others v. State of Uttar Pradesh” 1983 SCC (Cri) 176 and; “Tehal Singh v. State of Punjab” 1979 SCC (Cri) 722 to press hard that both the appellants are guilty for murder. 22. Section 34 of the Indian Penal Code is a rule of evidence and by itself does not create a substantive offence. It embodies the principle of joint criminal liability in doing a criminal act with common intention. A common intention which necessarily implies a pre-arranged concert needs to be distinguished from same or similar intention. Merely because it is shown that all the accused persons carried the same intention, but independently of each other, it is not enough to attract the application of section 34 IPC. 23. In “Girija Shankar v. State of U.P.” (2004) 3 SCC 793 the Hon'ble Supreme Court has observed as under: “9. Merely because it is shown that all the accused persons carried the same intention, but independently of each other, it is not enough to attract the application of section 34 IPC. 23. In “Girija Shankar v. State of U.P.” (2004) 3 SCC 793 the Hon'ble Supreme Court has observed as under: “9. …… In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. ….” 24. PW6, Dr. Rajiv Ranjan who clinically examined Momin Ansari and Nizam Ansari on 28.10.2011 has found one lacerated cut injury of the size of “1'' x ½'' x ½'' ” on the head of Momin Ansari. One injury of the size of “½'' x ¼'' x ¼''” on the skull and abrasion extending to “½'' x ¼'' x ¼''” were detected by the doctor over the head of Nizam Ansari. 25. The learned Additional Session Judge-I, Bermo at Tenughat, Bokaro has held that Safique Ansari assaulted Makbool Mian with iron rod on his head. He has assaulted and caused two injuries, may be simple in nature, to others. The learned trial Judge has further held that it is proved from the evidence of the eyewitnesses that Rafique Ansari assaulted Momin Ansari with iron rod causing cut injury on his head. There is general allegation of assault upon Makbool Mian by both the accused after he fell on the ground but the medical evidence does not support this part of the prosecution evidence. We would, therefore, agree with the learned trial Judge that Rafique Ansari has assaulted Momin Ansari only. 26. The learned trial Judge has held as under : “12. Thus, from the combined reading of the testimonies of the PW1 to PW-5 it is established that the accused Safique Ansari hit the deceased with iron-rods on head and thereby as per Exh. 4 inflicted an 'severe head injury' on the skull where fractures were also found and the cause of death is also severe head injury. Thus, from the combined reading of the testimonies of the PW1 to PW-5 it is established that the accused Safique Ansari hit the deceased with iron-rods on head and thereby as per Exh. 4 inflicted an 'severe head injury' on the skull where fractures were also found and the cause of death is also severe head injury. From the testimonies of the PW-1 to PW-5 it is also established that the accused Safique Ansari hit the informant on his head with iron-rod thus inflicting the injury no. (1) of Exh. 2 being the cut injury over the skull size 1/2"x1/2"x1/4". An abrasion being the injury no. (II) of Exh. 2 is also found over the skull of the informant of size 1/2"x1/4"x1/4". It is further established that the co-accused Rafique Ansari hit the PW-4 Momin Mian the brother of the informant also with iron-rod on his head inflicting the injury lacerate cut injury over skull on right side of size 1"x1/2"x1/2" vide Exh. 2/1. It is also in evidence that even after the deceased fell down the accused persons continued with assaulting him which shows reflects and very high intensity of assault. PW-5 has specifically deposed that the accused no. 1 Safique Ansari after hurling abuses went to his house and came back with the accused no. 2 Rafique Ansari both armed with iron-rod and their father armed with lathi and as such it appears from the manner of the arrival of the accused persons with specific weapons of assault that there was a prior meeting of mind or concert between them to teach the informant party a lesson in which the deceased has lost life and as such a presence of 'common intention' and that the occurrence was committed in furtherance of the common intention of all the accused is established. It is established that the nature of injury inflicted by the accused Safique Ansari was on the vital part of the body and the angle of the injury was straight hit causing severe skull injury of an enormous size 3 1/2" with two fractures thereon and as such the nature of weapon used coupled with the nature of injury inflicted by the accused Safique Ansari, with the co-accused still assaulting the deceased after he fell down, showed that they intended to kill the deceased and was such that the act of assault was committed by them was with an intention of causing bodily injury to the deceased which was intended to be sufficient in the ordinary course to cause death and that they knew that the act they were doing was so imminently dangerous that it must in all probability cause death or bodily injury as is likely to cause death and still committed such act without any excuse of incurring the risk of causing death or such injury as aforesaid. As such the charge u/s. 302/34 IPC is clearly established against both the accused. It is also established that both the accused have voluntarily caused hurt to the informant and his brother Momin Mian PW-5 and PW-4 who were also wrongfully restrained and as such the charges u/s. 323, 341/34 IPC are also established.” 27. The above being the factual scenario, it is not possible to hold that Rafique Ansari shared common intention with Safique Ansari to cause death of Makbool Mian and accordingly conviction of Rafique Ansari under section 302/34 of the Indian Penal Code is set-aside. 28. However, there is ample material to affirm conviction of Rafique Ansari under sections 323 and 341 of the Indian Penal Code and, accordingly, while affirming the sentences awarded to him for the aforesaid offences his conviction under sections 323/34 and 341/34 of the Indian Penal Code is modified under sections 323 and 341 of the Indian Penal Code. 29. The prosecution evidence against Safique Ansari is consistent and does not admit any doubt that he is responsible for committing murder of Makbool Mian. He is said to have caused one wound over mid parietal region which was found stitched and about 3½'' long; and abrasion of left knee of the size of 1/2'' x 1/3'' to him. 29. The prosecution evidence against Safique Ansari is consistent and does not admit any doubt that he is responsible for committing murder of Makbool Mian. He is said to have caused one wound over mid parietal region which was found stitched and about 3½'' long; and abrasion of left knee of the size of 1/2'' x 1/3'' to him. The doctor has observed sub parietal haemotoma with fracture of right parietal bone at two places and fracture of frontal bone of Makbool Mian. He has rendered an opinion that the death was caused due to head injury which was caused within 24 hours from the postmortem. 30. Mr. Kripa Shankar Nanda, the learned counsel for the appellants contends that there was land dispute between the parties and on a trivial issue a quarrel took place which unfortunately aggravated and the iron rod blow given by Safique Ansari proved fatal but intention to cause death on his part cannot be attributed to him. 31. Mr. Kripa Shankar Nanda, the learned counsel for the appellants has referred to and relied upon the judgments of the Hon'ble Supreme Court in “Surain Singh v. State of Punjab” (2017) 5 SCC 796 ; and “Surendra Chauhan v. State of M.P.” (2000) 4 SCC 110 . 32. In “State of Rajasthan v. Leela Ram” (2019) 13 SCC 131 the deceased was inflicted single blow with axe on his skull resulting in his death. After discussing a catena of decisions on the effect of a single blow, whether the case falls under section 302 or section 304 Part I or section 304 Part II, the Hon'ble Supreme Court convicted the accused for the offence under section 302 IPC observing as under: “18. …The death was attributable to the assault by the respondent on the deceased, during the course of the incident. Having regard to the above facts and circumstances of the case, it is evident that the injury which was caused to the deceased was [within the meaning of Section 300 Fourthly] of a nature that the person committing the act knew that it was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.” 33. In view of the severe head injury caused to Makbool Mian, which resulted in his death, we are not inclined to accept the submission that Safique Ansari can at best be convicted and sentenced for culpable homicide not amounting to murder. He must be imputed with requisite knowledge as envisaged under clause Fourthly to section 300 of the Indian Penal Code. He has caused death of Makbool Mian and, therefore, he is liable to be convicted under section 302 of the Indian Penal Code. 34. Accordingly, conviction of Safique Ansari under section 302/34 of the Indian Penal Code is modified and he is convicted under section 302 of the Indian Penal Code. 35. Cr. Appeal (DB) No. 668 of 2018 is dismissed. 36. Mr. Vineet Kumar Vashistha, the learned APP submits that Rafique Ansari who is on bail has remained in custody for five years nine months sixteen days. 37. Accordingly, Rafique Ansari who is the appellant in Cr. Appeal (DB) No. 614 of 2018 is discharged of liability of the bail bonds furnished by him. 38. Cr. Appeal (DB) No. 614 of 2018 is partly allowed, in the above terms. 39. Let lower Court records be transmitted to the Court concerned, forthwith. 40. Let a copy of the Judgment be transmitted to the Court concerned through FAX.