JUDGMENT : NALIN KUMAR SRIVASTAVA, J. 1. This criminal appeal has been preferred by the appellants Tahar Singh and Bal Krishna against the judgment and order dated 14.9.1988 passed by IInd Additional District and Sessions Judge, Kanpur Dehat in Sessions Trial No. 179 of 1986 (State vs. Tahar Singh and Others) convicting the appellants for the offence punishable under Sections 302/34 IPC and 307/34 IPC and sentencing them to undergo life imprisonment and to undergo five years rigorous imprisonment, respectively. All the sentences were directed to run concurrently. 2. At the outset, it is to be noted that against the impugned judgment and order, accused Sughar Singh and Munshi Lal had preferred Criminal Appeal No. 2103 of 1988. Since these accused have expired, appeal preferred by them has been abated vide order dated 1.11.2022 passed by this Court. 3. Brief facts of the case, as unfolded by the informant Ramesh Chandra Yadav son of Gajodhar Singh in the First Information Report (in short F.I.R.) are that the informant was married with the daughter of late Sovran Singh, resident of village Rasoolpur, police station Kakwan in the year 1971. He was having a brother-in-law, who expired. His mother-in-law (Smt. Kitab Shri) had no other issue except the wife of the informant i.e. Smt. Chhidani Devi. Informant had gone to village Rasoolpur to attend the marriage ceremony of daughter of Dharam Singh, cousin brother-in-law of the informant (chachera sala). On 25.6.1986, informant was about to return home alongwith his wife and mother-in-law by the bullock-cart of Dharam Singh. At about 9.00 a.m. when Dharam Singh entered the house just to get them parking the bullock carts outside the village and said aunt get ready soon, it is getting late, close family members Tahar Singh son of Sughar Singh armed with sword, Balkarishna armed with axe and Sughar Singh son of Lal Singh Yadav armed with lathi entered into the house. Sughar Singh asked to the mother-in-law of the informant that he will not let her go and if she goes, she will transfer the whole land to her son-in-law. To this, she said that she will definitely go. Hearing her words, Munshi Lal exhorted to kill her. On this, accused Tahar Singh and Bal Krishna surrounded her and started assaulting with their respective weapons. To this, she said that she will definitely go. Hearing her words, Munshi Lal exhorted to kill her. On this, accused Tahar Singh and Bal Krishna surrounded her and started assaulting with their respective weapons. On call of the informant and Dharam Singh, Arvind Kumar son of Manfool, Nahar Singh son of Ram Ram Autar, Ram Bhajan son of Dissa, Ram Narayan son of Kuber Yadav and several other people reached there and made alarm. At this moment, Tahar Singh, Bal Kishan and Sughar Singh surrounded Dharam Singh and made lethal assault upon him. Mother-in-law of the informant died on the spot on account of the injuries inflicted by them and Dharam Singh was seriously injured. 4. On the basis of the written report (Ext. Ka-1), chik F.I.R. (Ext. Ka-4) was registered at Police Station concerned on 25.6.1986 at 1.15 p.m. mentioning all the details as described in Ext. Ka-1. G.D. entry was also made at the same time, which is Ext. Ka-5. 5. Investigation of the case proceeded. The Investigating Officer recorded the statement of Dharam Singh at the police station itself. He further recorded the statement of other witnesses also and recovered the murder weapons. He inspected the spot and prepared site plan. He also prepared the inquest report of the deceased and papers relating to post mortem. The Investigating Officer also took the specimen of plain soil and bloodstained soil from the place of occurrence and prepared the memo Ext. Ka-13. Post mortem of the dead-body of the deceased was performed. 6. Autopsy report (Ext. Ka-3) was prepared by Dr. O.P. Sharma (PW-5) after performing the post mortem of the deceased on 26.6.1986 at 1.00 p.m. On examination of the dead-body of the deceased, following ante-mortem injuries were found: “(i) Incised wound 9 c.m. x 2.5 c.m. bone cut 8.5 c.m. backward from right lower ear. (ii) Incised wound size 7 c.m. x 2.5 c.m. bone cut started from lower right ear towards mouth obliquely. (iii) Incised wound size 6 c.m. x 2 c.m. it is one c.m. below injury no. 2. Lower jaw broken. (iv) Incised wound 16 c.m. x 2.5 cm, bone cut started from upper lip towards frontal bone. Nose also cut. (v) Incised wound 5.2 c.m. x 2.5 c.m. right side neck and backward, it is 7 c.m. below right lower ear. 2. Lower jaw broken. (iv) Incised wound 16 c.m. x 2.5 cm, bone cut started from upper lip towards frontal bone. Nose also cut. (v) Incised wound 5.2 c.m. x 2.5 c.m. right side neck and backward, it is 7 c.m. below right lower ear. (vi) Incised wound size 3 c.m. x 1 c.m. it is 4 c.m. upward from wrist, posterior on the forearm.” 7. In the opinion of the doctor, death was caused by reason of shock and haemorrhage due to injuries sustained. 8. Injured Dharam Singh was examined on 25.6.1986 at 5.30 p.m. and during his examination, following injuries were found: “(1) Incised wound on Rt. upper arm 10 c.m. below acromodavicular joint directed obliquely size 4½ c.m. x 1 c.m. muscle deep, clotted blood present on wrist. (2) Linear abrasion on back 4 c.m. below last cervical vertebra directed obliquely size 7 c.m. x 0.1 cm. (3) Contusion on fore head 2 c.m. above left eye brow size 3 c.m. x 2 cm.” 9. In the opinion of the doctor, all the injuries were simple. Injuries no. 1 and 2 were caused by sharp edged weapon, while no. 3 by blunt object. Injury report Ext. Ka-2 was prepared. 10. After completing the investigation, charge-sheet (Ext. Ka-17) against all the four accused persons was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by sessions court, was committed to the Court of sessions. 11. Accused persons appeared before the trial court and charges under Section 302 IPC read with Section 34 IPC and Section 307 IPC read with Section 34 were framed against them. They denied the charges and claimed their trial. 12. Trial proceeded and to bring home the charges against the accused persons, prosecution has examined in all seven witnesses, who are as follows: 1. Ramesh Chandra PW-1 (informant/eye-witness) 2. Dharam Singh PW-2 (injured) 3. Meghraj Singh PW-3 (carrier of body of deceased for post mortem) 4. Dr. Tej Bahadur Singh PW-4 (witness of injury report) 5. Dr. O.P. Sharma PW-5 (witness of autopsy) 6. H.C.P. Jag Mohan PW-6 (scribe of F.I.R.) 7. S.O. Anshuman Singh PW-7 (Investigating Officer) 13. In support of oral version, following documents were filed and proved on behalf of the prosecution: 1. Written report Ext. A-1 2. Injury Report Ext. A-2 3. Post mortem report Ext. A-3 4. Chik F.I.R. Ext. A-4 5. G.D. entry Ext. A-5 6. H.C.P. Jag Mohan PW-6 (scribe of F.I.R.) 7. S.O. Anshuman Singh PW-7 (Investigating Officer) 13. In support of oral version, following documents were filed and proved on behalf of the prosecution: 1. Written report Ext. A-1 2. Injury Report Ext. A-2 3. Post mortem report Ext. A-3 4. Chik F.I.R. Ext. A-4 5. G.D. entry Ext. A-5 6. Inquest Report Ext. A-6 7. Photo lash, challan lash, letter to R.I. letter to C.M.O. and specimen seal Ext. A-7 to Ext. A-11 8. Site plan Ext. A-12 9. Memo of plain and blood stained soil Ext. A-13 10. Memo of cloth of deceased Ext. A-14 11. Seizure memo of murder weapons Ext. A-15 12. Site plan of place of recovery Ext. A-16 13. Charge-sheet Ext. A-17 14. After conclusion of evidence, statements of accused persons were recorded under Section 313 of Cr.P.C. in which they pleaded their false implication. However, no defence evidence has been adduced. 15. PW-1 and PW-2 are the witnesses of fact. 16. PW-1, namely, Ramesh Chandra, in his oral testimony, has stated that deceased was his mother in law. She had some property in the village concerned. At the time of occurrence, she had only one daughter, who was the wife of PW-1. He further stated that since accused persons wanted to inherit the property of the deceased, due to that reason, they committed her murder. He has proved the written report Ext. A-1. He has explained the whole occurrence and the role of all the accused persons in the commission of crime in his testimony. 17. PW-2 Dharam Singh is the injured witness. He has also corroborated the F.I.R. version and supported the testimony of PW-1. Both the aforesaid witnesses have, in clear terms, disclosed the role of the present appellants in commission of crime and have stated that Tahar Singh and Bal Krishna inflicted the injuries upon the deceased with sword and axe respectively, which resulted into her spontaneous death. They have also proved this fact that the present appellants also made assault upon the injured - PW-2 with their above mentioned arms and accused Sughar Singh also inflicted injuries upon the injured by lathi. They have also specifically mentioned the role of other accused Munshi Lal, who was exhorting other co-accused persons to do away with the deceased. 18. PW-3 to PW-7 are the formal witnesses. 19. They have also specifically mentioned the role of other accused Munshi Lal, who was exhorting other co-accused persons to do away with the deceased. 18. PW-3 to PW-7 are the formal witnesses. 19. PW-3 Constable Meghraj Singh, in his deposition has proved this fact that after the inquest proceeding of the deceased performed by the S.O. Anshuman Singh, he alongwith Constable Ram Bhajan had taken away the dead-body of the deceased for post mortem to Kanpur. 20. PW-4 Dr. Tej Bahadur Singh has medically examined the injured Dharam Singh and has proved the injury report Ext. Ka-2. 21. PW-5 Dr. O.P. Singh has performed the autopsy of the deceased and prepared the Autopsy Report Ext. Ka-3. He has also opined that the death was possibly caused on 25.6.1986 at 8.30 a.m. 22. PW-6 is the scribe of F.I.R. who has proved chik F.I.R. Ext. Ka-4 and registration G.D. Ext. Ka-5. 23. PW-7 S.O. Anshuman Singh is the Investigating Officer of the case, who has proved the proceeding of investigation in his testimony and also identified material exhibit-1 bloodstained baniyan of the deceased and material exhibit-2 the murder weapon lathi. He has also clarified this fact that the plain and bloodstained soil alongwith murder weapons ‘sword’ and ‘axe’ were sent to F.S.L. Agra for examination. 24. On the basis of aforesaid oral and documentary evidence, learned trial court recorded the conviction of all the four accused persons and sentenced them, as mentioned above. 25. Since the appeal of accused Sughar Singh and Munshi Lal has already been abated, present appeal is operative against convicts/appellants Tahar Singh and Bal Krishna only. 26. The impugned judgment and order of the trial court has been assailed by the learned counsel for the appellants on various grounds. It has been argued that the prosecution story rests upon the testimonies of two witnesses of fact, who are the interested witnesses. No other witness of the same vicinity has been produced, whereas in the F.I.R. itself names of independent witnesses have been mentioned. It is further submitted that due to some property dispute, appellants have been falsely implicated in this case but the learned trial court has completely ignored this fact. It has also been submitted that the medical evidence does not corroborate the prosecution version. It is further submitted that due to some property dispute, appellants have been falsely implicated in this case but the learned trial court has completely ignored this fact. It has also been submitted that the medical evidence does not corroborate the prosecution version. Moreover, all the murder weapons have not been produced before the Court at the time of evidence and no F.S.L. report was made part of the record, which makes the prosecution story highly doubtful. The investigation is faulty. The trial court, in fact, without considering the evidence on record in proper manner and without appreciating the factual scenario of the matter passed the conviction order in an arbitrary manner which is not liable to be sustained. It has been further submitted that from a perusal of the injury report Ext. Ka-2 and on the basis of evidence of PW-4, it is evident that no case under Section 307 IPC is made out against the present appellants. 27. Per contra, learned AGA has contended that the prosecution case is fully supported by the medical evidence and injured witness and also the informant/eye-witness have fully supported the prosecution case. There is no material fault in the investigation of the case and the trial court has committed no legal or factual error in passing the impugned judgment and order. The appeal has no merits and is liable to be dismissed. 28. Heard Shri Vinod Kumar Srivastava, learned counsel for the appellants and Shri Amit Sinha, learned AGA for the State. 29. From a perusal of the written report it appears that there was some property dispute between the parties. From the statement of PW-1, it appears that the deceased intended to give her property to her daughter and son-in-law and accused persons were not ready for that and in order to prevent her to do so, they committed her murder. It also comes out from a perusal of the statement of PW-1 that he had come to the house of his mother-in-law alongwith his family to attend the marriage ceremony of the daughter of Dharam Singh, who was his cousin brother-in-law and at the time of occurrence they were preparing to go back to their home after attending the marriage. In that way, the presence of PW-1 at the place of occurrence is quite natural and probable. In that way, the presence of PW-1 at the place of occurrence is quite natural and probable. The date, time and place, the manner of assault, the arms used in crime and the names of the participant accused persons, all these facts have been clearly stated in the testimony of PW-1, which finds support from the deposition of PW-2 also. PW-1 has been cross-examined at length on various points by the defence, but nothing adverse comes out. Likewise, PW-2 is the injured witness and as an injured witness his deposition stands on a different footing. All the material particulars finds support from the testimony of PW-2. He has specifically mentioned the names of the accused persons, who inflicted injuries upon him and also who made fatal blows upon the deceased on the exhortation of accused Munshi Lal. 30. In State of Haryana vs. Krishan, AIR 2017 SC 3125 it has been so held that the deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of contradictions and discrepancies for the reason that his presence on the scene has been established in the case and it is proved that he suffered injuries during the incident. 31. In fact the presence of injured witness at the time and place of occurrence cannot be doubted, as he has received injuries during the course of incident and he should normally be not disbelieved. 32. It is desirable to have a glance upon the injury report Ext. Ka-2 of the injured PW-2. As per the prosecution version and as also affirmed by PW-2, he was hit by sword, axe and lathi. PW-4, the doctor, who had medically examined the injured PW-2, has found three injuries on the body of injured. He has specifically opined that injury nos. 1 and 2 might be caused by sword and axe. It is pertinent to mention here that injury no. 1 found on the body of injured is an incised wound. Injury no. 3 is a contusion, which, according to PW-4, might be caused by lathi. The injury report was prepared on 25.6.1986 at about 5.30 p.m. and PW-4 has opined that the injuries might be inflicted at 9.30 a.m. same day. 33. Non-production of independent witnesses has been made another point for contention by the appellants. 34. Injury no. 3 is a contusion, which, according to PW-4, might be caused by lathi. The injury report was prepared on 25.6.1986 at about 5.30 p.m. and PW-4 has opined that the injuries might be inflicted at 9.30 a.m. same day. 33. Non-production of independent witnesses has been made another point for contention by the appellants. 34. Learned counsel for the appellants has vehemently argued that the prosecution has failed to explain as to why the independent witness of the same locality was not produced as witness in this case. In the F.I.R. itself many witnesses have been named but none was examined before the Court. 35. The learned AGA has contended that this is the discretion of the prosecution to produce as many as witnesses before the Court and the defence has nothing to do with that. 36. Under Section 134 of the Indian Evidence Act, it has been provided that “No particular number of witnesses shall in any case be required for the proof of any fact.” In fact, this is the quality of evidence of witness to prove a fact and not the number of the witnesses, which is important. If wholly reliable, testimony of a solitary witness may be sufficient to record conviction of an accused. This view has been reiterated in Amar Singh vs. State (NCT of Delhi), (2020) 19 SCC 165 , wherein it has been held as follows: “........As a general rule the Court can and may act on the testimony of single eye-witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise [See Sunil Kumar vs. State (NCT of Delhi), (2003) 11 SCC 367].” 37. In fact, it is not the number of witnesses, but material evidence which has to be taken note of by the Courts to ascertain truth of allegations made by the prosecution. In fact, it is not the number of witnesses, but material evidence which has to be taken note of by the Courts to ascertain truth of allegations made by the prosecution. It is never necessary that all the persons, who were present on the spot, even in a murder case, must be examined. 38. If we translate the aforesaid legal principles into the facts of this case, we find that the testimonies of PW-1 and PW-2 have a ring of truth and are cogent, credible and trustworthy and corroborate each other and there was no necessity for the prosecution to search for any further corroboration of their evidence. Reference can be made on the Hon’ble Apex Court decision in Raj Narain Singh vs. State of U.P. 2010 AIR SCW 521, wherein it has been held that it is not necessary that all those persons, who were present at spot, must be examined. It is quality of evidence which is required to be taken note of by Courts. 39. It is true that PW-1 is the son-in-law of the deceased and deceased was Mausi (aunt) of PW-2. Hence, they were relatives of the deceased. The learned counsel for the appellants has contended that the evidence of related witnesses cannot be taken as gospel truth because they are interested witnesses. We have carefully gone through the depositions of PW-1 and PW-2 and find that a natural flow of occurrence has been deposed by them in their respective testimonies. Their evidence is not such as may be discarded on the ground of their being related to each other or related to the deceased. The evidence of PW-2, his being an injured witness, stands on a different and strong footing. It is to be remembered that the occurrence happened at the house of the deceased. The presence of PW-1 alongwith his family members was quite natural at the house of his mother-in-law and likewise, the presence of PW-2 was also not unnatural because he had gone to the house of his Mausi (aunt) to take away the informant and his family members, who had come to attend the marriage ceremony of his own daughter. He happened to be the cousin of the informant’s wife. In these circumstances, the evidence of PW-1 and PW-2 cannot be discarded on the ground that they are the witnesses related to the deceased. 40. He happened to be the cousin of the informant’s wife. In these circumstances, the evidence of PW-1 and PW-2 cannot be discarded on the ground that they are the witnesses related to the deceased. 40. In the present context, the Hon'ble Apex Court in Bhagwan Jagannath Markad vs. State of Maharastra, (2016) 10 SCC 537 has held that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case Court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of the testimony of such related witness. 41. Reliance has been placed on Surinder Kumar vs. State of Punjab, (2020) 2 SCC 563 by the learned A.G.A. wherein it has been reiterated that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. 42. The Autopsy Report Ext. Ka-3 is an important piece of evidence. According to the evidence of PW-1 and PW-2 deceased was assaulted by sword and axe, as appellants Tahar Singh and Bal Krishna carried the aforesaid arms respectively. PW-5, who performed the post mortem of the deceased, has found in total six injuries on the dead-body of the deceased and it is pertinent to mention here that all the injuries are incised wound which, according to PW-5, could probably be caused by use of sword and axe on 25.6.1986 at 8.30 a.m. These injuries were inflicted over the sensitive parts of the body. Hence, the Autopsy Report also supports the prosecution case and it is proved that the injuries were inflicted by use of sword and axe on the body of deceased, as witnesses of fact also deposed. 43. Learned counsel for the appellants has also made it a point that the murder weapons have not been produced before the Court and no F.S.L. report is also on record. It has also been submitted that this is a big omission on the part of the Investigating Officer of the case and as such faulty investigation also diminishes the entire prosecution story. It has also been submitted that this is a big omission on the part of the Investigating Officer of the case and as such faulty investigation also diminishes the entire prosecution story. Learned AGA, on the other hand, submitted that if the prosecution case is proved on the basis of other reliable evidence, non-production of murder weapon before the Court or non-availability of F.S.L. report on record may be no ground to discard the prosecution case. It has also been submitted that any fault or omission found into investigation is no ground to reject or disbelieve the otherwise reliable prosecution case. 44. The aforesaid pleas taken by the learned counsel for the appellants take us to go through the deposition of PW-7, the Investigating Officer. 45. PW-7, in his deposition, has stated that when co-accused Sughar Singh was arrested by the police, murder weapon bloodstained sword, bloodstained axe and lathi were recovered on his pointing out from his house. A memo of recovery was also prepared before the witnesses which has been proved as Ext. Ka-15 by PW-7. A site pan of the place of aforesaid recovery has also been prepared by the Investigating Officer and proved as Ext. Ka-16. It is pertinent to mention here that the bloodstained baniyan of the deceased and murder weapon lathi were produced before the Court and proved as material Ext.-1 and material Ext.2 by the Investigating Officer - PW-7, who has also stated that bloodstained soil and bloodstained sword and axe were sent to F.S.L. Agra for examination. Hence, this is an admitted fact that the murder weapon sword and axe were not produced and proved before the Court, as same were sent to F.S.L. Agra but murder weapon lathi has been proved by the PW-7. It is true that this was the duty of the Investigating Officer to collect back the murder weapons sent for chemical examination and to produce it before the Court but he omitted to do so, however, at the same time, it is to be seen whether this omission of the Investigating Officer affects the prosecution case adversely in any way. 46. 46. In this reference, emphasis may be laid down upon Gopal Singh vs. State of Uttrakhand, (2013) 7 SCC 545 (Para 12 and 13) wherein the Hon'ble Apex Court found that the “katta” and “knife” used in causing the injuries to the victim were not recovered by the Investigating Officer but the doctor’s evidence was available to prove that the victim had sustained gun shot and knife injuries, it was held that non-recovery of the said weapon was not fatal to the prosecution case as the injuries sustained by the victim proved the nature of the weapon used. 47. It is submitted by the learned AGA that even if the murder weapon is not produced before the Court or is not sent for chemical/technical examination or even if it is not recovered by the Investigating Officer, same is not fatal for the prosecution case, if it is proved sufficiently by the ocular evidence. Reliance has been placed upon Maqbool vs. State of Andhra Pradesh, AIR 2011 SC 184 , wherein it has been held that not sending the weapons of assault, cartridge, pellets to ballistic expert for examination, would not be fatal to the case of prosecution if the ocular testimony is found credible and cogent. 48. In Nankaunu vs. State of U.P. (2016) 3 SCC 317 , it has been held that when there is ample unimpeachable ocular evidence corroborated by medical evidence, mere non-recovery of weapon from the accused does not affect the prosecution case relating to murder. 49. No other material negligence or omission on the part of the Investigating Officer has been pointed-out by the learned counsel for the appellants. From a perusal of the evidence on record, particularly, the deposition of the Investigating Officer of the case, we also find no material negligence or omission on the part of the Investigating Officer. Moreover, since the prosecution case is well established and proved by the ocular evidence supported with the medical evidence, negligence or omission, if any, on the part of the Investigating Officer does not adversely affect the prosecution version at all. 50. In Hema vs. State, (2013) 81 ACC 1 (SC), it has been held by the Hon'ble Apex Court that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case on prosecution when it is otherwise proved. The only requirement is to use of extra caution. 50. In Hema vs. State, (2013) 81 ACC 1 (SC), it has been held by the Hon'ble Apex Court that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case on prosecution when it is otherwise proved. The only requirement is to use of extra caution. The defective investigation cannot be fatal to prosecution when ocular testimony is found credible and cogent. It may be reiterated at the cost of repetition that investigation, in the present case, does not suffer with any material irregularity. 51. One more material point has been raised by the learned counsel for the appellants, which is in respect of conviction of appellants under Section 307/34 IPC. It has been submitted that the injuries caused to the injured Dharam Singh are simple in nature. There is no X-Ray report of the injured on record. Injuries caused to the injured fall only to the extent of offence under Section 324 IPC and offence under Section 307 IPC in no way is made out. 52. Learned AGA has contended that for the offence under Section 307 IPC, it is the intention which is important and not the injury inflicted upon the person. It is submitted that the injury was caused to the injured with intention to kill him and, therefore, the appellants were rightly convicted under Section 307 IPC. 53. The law settled in the context of Section 307 IPC is that it is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract the provisions of Section 307 is the intention or knowledge with which the all was done, irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the results. In fact the important thing to bear in mind for determining the question whether the offence under Section 307 IPC is made out is the intention and not the injury, even if it may be simple or minor. Question of intention to kill or knowledge of death is always a question of fact and not of law. The Hon’ble Supreme Court in Hari Kishan and State of Haryana vs. Sukhbir Singh, AIR 1988 SC 2127 has held that the intention or knowledge of the accused must be such as is necessary to constitute murder. Question of intention to kill or knowledge of death is always a question of fact and not of law. The Hon’ble Supreme Court in Hari Kishan and State of Haryana vs. Sukhbir Singh, AIR 1988 SC 2127 has held that the intention or knowledge of the accused must be such as is necessary to constitute murder. In State of Madhya Pradesh vs. Harjeet Singh and Another, AIR 2019 SC 1120 , it was reiterated that Section 307 IPC does not require that injury should be on vital part of the body. Merely causing hurt with intention or knowledge of causing death is sufficient to attract Section 307 IPC. 54. The aforesaid legal principle, if examined in the context of the facts and circumstances of the present case, we find that offence under Section 307 IPC is not made out against the accused-appellants. The accused persons who, in continuation of the offence of murder of the deceased Kitab Shree, also attacked the injured Dharam Singh, were clearly in a position to kill him but only simple injuries have been caused to him. In the F.I.R. it has been mentioned that when the injured was trying to hold the accused persons, he was assaulted by them. PW-1 also stated that when Dharam Singh tried to catch hold the accused persons they assaulted him with sword, axe and lathi. He has also deposed that co-accused Munshi Lal exhorted the other accused persons to do away with the deceased but that was not so in the case of injured. PW-2 injured himself, in his deposition, has stated that when they were trying to catch hold the accused persons by surrounding them, he was attacked by accused Tahar Singh, Bal Krishna and Sughar Snigh and then they fled away. No-where, in the statements of PW-1 and PW-2 it is found that the accused persons had any intention to kill the injured. 55. In his cross-examination, PW-2 has also stated that after receiving three injuries when he fell down, no assault was made over him. Had the accused persons any intention to kill the injured, they could easily do away with him when he fell down on the earth, has been vehemently argued by the learned counsel for the appellants. 56. 55. In his cross-examination, PW-2 has also stated that after receiving three injuries when he fell down, no assault was made over him. Had the accused persons any intention to kill the injured, they could easily do away with him when he fell down on the earth, has been vehemently argued by the learned counsel for the appellants. 56. In the facts and circumstances of the case, we find that the offence committed by the appellants in respect of injured PW-2 falls in the category of offence under Section 324 IPC and not in the category of Section 307 IPC. 57. From the discussions made above, in the totality of the facts and circumstances of the case, it is evident that the prosecution has proved each and every circumstance leading to the homicidal death of the deceased by cogent and trustworthy evidence. Both ocular and medical evidence corroborate each other. The depositions made by PW-1 and PW-2 injured are wholly reliable and their ocular version finds support from medical evidence. They have deposed without any material contradiction about the whole occurrence right from the beginning till the death of the deceased who succumbed to her injuries. The learned trial court has examined the matter meticulously and well appreciated the evidence on record. No infirmity, therefore, is found in the judgment of the trial court. The appellants alongwith other co-accused with pre-arranged plan armed with deadly weapons reached the house of the deceased to do her away and as such they acted in furtherance of common intention of all. Hence, they could be safely convicted with the aid of Section 34 IPC. 58. In Indrapal Singh vs. State of U.P. (2022) 4 SCC 631 , the Hon’ble Apex Court held as under: “............to attract the applicability of Section 34 IPC the prosecution is under an obligation to establish that there existed a common intention which requires a prearranged plan. That before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all. In the absence of a prearranged plan and thus a common intention, even if several persons simultaneously attack the man, each one of them would be individually liable for whatever injury he caused and none could be vicariously convicted for the act of any or the other. In the absence of a prearranged plan and thus a common intention, even if several persons simultaneously attack the man, each one of them would be individually liable for whatever injury he caused and none could be vicariously convicted for the act of any or the other. Thus, it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis.” 59. We have no hesitation to hold that the principle enumerated in the aforesaid case law is clearly applicable to the present case and no error was committed by the learned trial court to convict the appellants with the aid of Section 34 IPC. 60. The evidence of PW-1 and PW-2 is wholly reliable and cogent and they fall into the category of wholly reliable witness. The date, time and place of occurrence, the manner of assault, the names of assailants all these factors have been fully proved by the ocular evidence which finds support from the medical evidence. F.I.R. of the case is also prompt. We are, therefore, of the considered opinion that the prosecution has proved the charge under Section 302/34 IPC beyond reasonable doubt against both accused, namely, Tahar Singh and Bal Krishna but charge under Sections 307/34 IPC has not been proved on the basis of evidence on record, instead, charge under Section 324/34 IPC is proved against the present appellants beyond reasonable doubt. 61. Resultantly, appeal is partly allowed in the aforesaid terms. The conviction and sentence under Section 302/34 is hereby confirmed and the conviction and sentence under Section 307/34 I.P.C. is converted into Section 324/34 IPC and the appellants are sentenced to undergo imprisonment for a period of three years for the offence punishable under Sections 324/34 of IPC. Both the sentences are to run concurrently. 62. Appellants Tahar Singh and Bal Krishna are on bail, their bail bonds are cancelled and sureties are discharged. The concerned Court is directed to take the appellants Tahar Singh and Bal Krishna into custody forthwith and send them to jail to serve-out the remaining sentence. 63. Let the lower Court record be transmitted back along with the certified copy of this judgment for information and necessary compliance. 64. The concerned Court is directed to take the appellants Tahar Singh and Bal Krishna into custody forthwith and send them to jail to serve-out the remaining sentence. 63. Let the lower Court record be transmitted back along with the certified copy of this judgment for information and necessary compliance. 64. This Court is thankful to learned Advocates for ably assisting the Court.