ORDER : (Shree Chandrashekhar, J.) : 1. This acquittal appeal has been filed by Ram Lakhan Pandey who is the informant of Simaria PS Case No. 153 of 2015. 2. In Sessions Trial No. 184 of 2015, Mithun Pandey, Binay Pandey and Geeta Devi were charged under sections 342/34, 325/34 and 302/34 of the Indian Penal Code for causing injuries to Kiran Devi and murder of her husband Mahesh Pandey in furtherance of their common intention. 3. On the basis of the fardbeyan of Ram Lakhan Pandey recorded by SI B. K. Singh who was the Officer in-Charge of Simaria PS, the aforesaid First Information Report was lodged against Mithun Pandey, Binay Pandey, Geeta Devi and Ranjit Pandey under sections 341, 325, 307, 302/34 of the Indian Penal Code. In his fardbeyan, Ram Lakhan Pandey has stated that his wife came running to him and informed him that Mithun Pandey and Binay Pandey have assaulted Mahesh Pandey with sabal, kori and tangi and killed him – at that time he was going home after working in the field. He has further stated that when he reached the place of occurrence his sister Sunaina Devi and sister-in-law Kiran Devi informed him about the occurrence. The informant has made a specific allegation against the accused persons that they caused injuries to Kiran Devi who was taken to referral Hospital for her treatment and murdered Mahesh Pandey in furtherance of their common intention. After the investigation, a charge-sheet was laid against them and they have faced the trial on the charge under sections 342/34, 325/34 and 302/34 of the Indian Penal Code. 4. During the trial, the prosecution has produced seven witnesses to support the aforesaid charges framed against the accused – PW3 is the informant. The prosecution has also laid in evidence fardbeyan, seizure list, inquest report, postmortem report, injury report of Kiran Devi and FSL report. 5. The trial Judge has held that the chemical report does not establish that the human blood detected in the blood-stained earth was of the deceased; there is contradiction between the oral and medical evidence inasmuch as no sabal injury over the neck of Mahesh Pandey has been observed by PW5 and; injuries narrated by PW1 were not found over her body. Therefore, the Additional Sessions Judge-IV, Chatra has come to a conclusion that the prosecution has failed to establish its case beyond reasonable doubt and, accordingly, respondent nos. 2 to 4 were acquitted of the aforesaid charge framed against them. 6. The trial Judge has discussed the prosecution evidence in the following manner: “19. Before I proceed to deal with each piece of evidences it would be convenient to broadly analysis the prosecution evidence. P.W. 3, who is the informant of this case, is the hearsay witness he is not eyewitness. He has heard about the incident from Sanjoti Devi (P.W.2). She has stated, about the incident with him when he returned from the field after ploughing. Thereafter he went to see Mahesh Pandey at Tetarbadi and he was pool of blood and wife of Mahesh Kiran Devi (P.W. 1) was seriously injured and she was unconscious. At that time Sunaina Devi and Sugriv Pandey were standing there. Information was given to the police station then police came and his fardbeyan was recorded by the police. He has further stated in his cross-examination that he saw the dead body of deceased Mahesh Pandey at home. Further stated that the dead body of Mahesh Pandey was lying in the middle portion of Bari. P.W. 1 is the wife of deceased Mahesh Pandey, who has stated that when her husband was ploughing field and she was picking grass due to destroying the plant of cauliflower Mithun Pandey scuffled with her husband. On provocation of Ranjit Pandey Mithun Pandey injured her husband with pointed side of Kudal on his head, her husband fall down then Binay Pandey caused hole in the neck of Sabal and Geeta Devi also injured with lathi and Ranjeet Pandey from the back side of Tangi injured on her head and also pointed side of the Tangi on her head to which her head was cut and she became unconscious. There was 15 stitches on her head. PW2 is the wife of PW3 who has seen the occurrence with her own eyes. There was 15 stitches on her head. PW2 is the wife of PW3 who has seen the occurrence with her own eyes. At that time she was washing her cloths and due to destroying of cauliflower by the Mithun Pandey and Mithun Pandey was also used Kudal in his Bari on halla of the Mithun Pandey Geeta Devi and Binay Pandey and others came and Ranjit Pandey Mahesh Pandey injured with pointed side of Kudal on the right side of her head and there was cut injury and he fall down and Binay Pandey also injured with Sabal and Geeta Devi also caused marpit with lathi to Mahesh Pandey, P.W. 2 has not corroborated the evidence of PW3 because informant P.W3 has stated in his written report that Mithun Pandey having Sabbal in his hand and Binay Pandey has Kodi (Kudal) in his hand and Geeta Devi having Danda in her hand and other person, namely, Binay Pandey, who is not facing trial, having Tangi in his hand. PW6 is the chance as well as related witness. He has seen the occurrence with his own eyes when he was passing through. He has seen to Mithun Pandey, Binay Pandey and his wife also caused injury to Mahesh Pandey. P.W5 is the Doctor, who has conducted postmortem on the dead body of deceased and he has opined that mode of death was haemorrhage, shock, comma due to the above injuries. All the injuries caused by hard and blunt substances. In the same way PW. 7 is the doctor who has examined the injured Kiran Devi (P.W. 1) on 06.08.2015 at 3.00 p.m. at that time she was conscious. All injuries were caused to the P.W1 are simple in nature. P.W. 4 is the I.O. of this case, he has proved the place of occurrence which is within the village ploughed land of Mahesh Pandey. He has given the specific boundary of this land as North-house of accused Binay Pandey constructed by mud, South-open land of Narayan Sao, East-open land of Dablu Sao and West-land of accused Binay Pandey in which cauliflower was planted. As per seizure list from the place of occurrence blooded soil, an iron kudi in which wooden handle was installed and iron rod were seized. As per Ext. As per seizure list from the place of occurrence blooded soil, an iron kudi in which wooden handle was installed and iron rod were seized. As per Ext. 9 which is report of F.S.L. Jharkhand Ranchi No. 885 dated 18 September 2015 a parcel was sent consist of one plastic dibba enclosed with the cloth's cover which was duly sealed with impression of seal corresponding with impression forwarded. It contained one polythene packet marked A in this laboratory. Description of the article contained in the parcel: the polythene packet marked A contain some moist earth importing fowl odour. It bore reddish brown stains practically all over. Result of the examination: i. Blood has been detected in all over the Exhibits Marked A. ii. Serological report are origin and group of blood would follow. Ext. 9/1 is the serological report, F.S.L. No. 895/2015 dated 29.09.2015. On biological examination description of earth was found and nature of stains/ tissue blood and species of the origin results human, Group B. but there is no any evidence on record goes to show that this blood group B is tallying with the blood group of deceased. All the witnesses have stated that Mithun Pandey has injured to Mahesh Pandey with sharp side of Kudal on his head but it is very much clear from the evidence of P.W5 there was lacerated wound on right parietal area of scalp of the deceased Mahesh Pandey and other lacerated wound on the little finger of the deceased. All above injuries caused by hard and blunt substance and as per evidences of PW 1, 2, 3, 5 Binay Pandey has also caused injury on the neck of Mahesh Pandey but it is very much clear from the evidence of P.W. 5 there is no any injury on the neck of the deceased. There is evidence against Geeta Devi that she has caused injury to the deceased with lathi but this evidence is not corroborated by the evidence of P.W5. Now I am taking the injuries which were caused to P.W1 who is the wife of the deceased. When she went to save her husband then Ranjit Pandey has caused injury from the back portion of the tangi and also from the pointed side of Tangi on her head and she became unconscious. Now I am taking the injuries which were caused to P.W1 who is the wife of the deceased. When she went to save her husband then Ranjit Pandey has caused injury from the back portion of the tangi and also from the pointed side of Tangi on her head and she became unconscious. It is very much clear from the evidence of P.W. 7 who had examined to P.W1 on 06.08.2015 at 3.00 p.m. there is only cut wound in central parietal scalp skin 2½" x 12"x skin deep and other injuries are on the other part of the body but all the injuries are simple in nature and he has further stated in his cross-examination that if any person fell down on heavy sharp edged weapon then such type cut injury may be possible. As per evidence of P.W1 when injury was caused her she became unconscious and she regained her conscious at 10-11 p.m. at Simaria Hospital but as per evidence of P.W7 she was not unconscious at the time of her examination. In this case P.W1, P.W2, PW3 are related witnesses and prosecution has relied upon the related witnesses it would be prudent in the facts and circumstances of this case to be cautious while analysing such evidence it may be noted that other than these witnesses there are no independent witnesses are available to support the case of prosecution. As far as concerned to the P.W6 who is the chance as well as related witness. There are to a certain extent material infirmity, irregularity and contradiction in the prosecution evidences of PW1, P.W2, PW3 who are material witnesses. In this respect I may a refer to a decision of the Hon'ble Apex Court rendered in a case of [2018(2) East. Cr. C. 91(SC)]. In the facts and circumstances of the case the pronouncement of Hon'ble Court is applicable. It is material to state here that in this case some important witnesses Sunaina Devi and Sugriv Pandey were not examined on behalf of prosecution which is fatal for prosecution because they will speak the truth before the court and Rajdeo Pandey and Sabita Devi, who brought to Kiran Devi to the Hospital, were not examined which is also fatal for prosecution. It is very much clear from the evidence of P.W4 that from the place of occurrence an iron kudal and an iron rod was seized. It is very much clear from the evidence of P.W4 that from the place of occurrence an iron kudal and an iron rod was seized. Place of occurrence from which offence as alleged have been committed but all the witnesses have stated that injury was caused by the Sabal. On behalf of prosecution witnesses those, who have been examined on behalf of the prosecution, have failed to prove the motive of commission of murder of deceased. Evidence of eye witnesses not inspiring confidence and medical evidence not consistent with prosecution case. Therefore, evidences of P.W. 3 and other witnesses i.e. P.W. 1, P.W. 2 and P.W. 5. In this regard ruling of the Hon'be High Court cited on behalf of prosecution 2016(1) JBCJ 94(HC) is applicable in the facts and circumstances of this case. Further ruling cited by the prosecution 2016(1)JBCJ 218 (HC) is not applicable in the facts and circumstances of this case. There are major contradiction in the evidences of PW.1, P.W.2 and P.W.3 which fatal for the prosecution. On behalf of prosecution witnesses those, who have been examined, have not properly proved the place of occurrence, time of occurrence and manner of occurrence. The witnesses those, who have been examined on behalf of prosecution, have failed to proved its case beyond all reasonable doubts.” 7. Mr. Ashok Kumar Pandey, the learned counsel for the appellant has submitted that the eyewitness account of PW1, PW2 and PW6 has been wrongly appreciated by the trial Judge inasmuch as merely for the reason that a neck injury was not observed by PW5 over the dead body of Mahesh Pandey, their testimony has been discarded by the trial Judge. Per contra, Mr. Mahesh Kumar Sinha, the learned counsel for the respondent nos. 2 to 4 has referred to the judgment in “Guru Dutt Pathak v. State of Uttar Pradesh” (2021) 6 SCC 116 to support the judgment of acquittal recorded in Sessions Trial No. 184 of 2015. 8. On a mere glance at the manner in which the trial Judge has appreciated the evidence makes it abundantly clear that the trial Judge has applied wrong tests to disbelieve PW1, PW2 and PW6, on unsustainable grounds. 9. 8. On a mere glance at the manner in which the trial Judge has appreciated the evidence makes it abundantly clear that the trial Judge has applied wrong tests to disbelieve PW1, PW2 and PW6, on unsustainable grounds. 9. The powers of the High Court under section 378 of the Code of Criminal Procedure is very wide and acting as an appellate Court the High Court may reappreciate the evidence, record its independent findings and may come to a different conclusion. The provisions under the Code of Criminal Procedure do not put any limitation over the powers of the appellate Court in dealing with the appeal against acquittal – however, as a rule of prudence certain restrains have been prescribed. In “Harban Singh v. State of Punjab” AIR 1962 SC 439 the Hon'ble Supreme Court has observed that before interfering in an appeal with an order of acquittal the appellate Court must examine not only the questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower Court to acquit the accused. 10. According to the prosecution, PW1 Kiran Devi, PW2 Sanjoti Devi and PW6 Mithilesh Pandey are the eyewitness of the occurrence. PW1 is the wife of Mahesh Pandey and PW2 is his sister. These witnesses are intimately related to Mahesh Pandey and therefore their testimony has been challenged on the ground that they are highly interested witnesses. 11. As PW7, Dr. Vijay Shankar Yogyani who examined Kiran Devi has stated in the Court that he found the following injuries on her body: i. Cut wound in central parietal scalp skin 2 ½” x ½” x skin. ii. Cut wound in right palm 1” x skin. iii. Scratch in left side of face ½” x skin. iv. Bruise mark in left shoulder 1” length. v. Bruise mark in right arm 1” length. vi. Bruise mark in back 1” in length. 12. In a criminal trial, the testimony of an eyewitness assumes significance and lends assurance to the Court that having suffered injury in the occurrence the witness would give more accurate and truthful version of the incident. Therefore, the Court can put implicit reliance on the evidence of an injured witness even though the witness is intimately related to the deceased. In a criminal trial, the testimony of an eyewitness assumes significance and lends assurance to the Court that having suffered injury in the occurrence the witness would give more accurate and truthful version of the incident. Therefore, the Court can put implicit reliance on the evidence of an injured witness even though the witness is intimately related to the deceased. A related witness may be interested in prosecution of the accused but that by itself is not a ground to discard his testimony. A criminal Court while scrutinizing the testimony of a related witness is required to exercise care and caution so as to find out whether testimony of the related witness is laced with motive. 13. In “Masalti v. State of U.P.” AIR 1965 SC 202 the Hon'ble Supreme Court has held as under: “14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. …………… The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 14. This is also quite logical and well accepted a preposition in law that a related witness would be the last persons to falsely implicate an innocent man and, that too, for a serious offence like the murder. 15. In “Mano Dutt v. State of U.P” (2012) 4 SCC 79 the Hon’ble Supreme Court has held as under: “24. …..Firstly, there is no bar in law in examining family members, or any other person, as witnesses. 15. In “Mano Dutt v. State of U.P” (2012) 4 SCC 79 the Hon’ble Supreme Court has held as under: “24. …..Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party.” 16. PW1 has deposed in the Court that around 11:00 a.m on 6th August 2015 her husband was ploughing field at Tetarwadi and she was picking up grass there. According to PW1, Mithun Pandey started a quarrel with her husband because 2-4 cauliflowers were destroyed by her Ox. Soon thereafter, Binay Pandey, Geeta Devi and Ranjit Pandey came there and on exhortation of Ranjit Pandey her husband was attacked by Mithun Pandey with a hoe (kudal). PW1 has further deposed in the Court that Mithun Pandey had attacked her husband with the sharp side of hoe and thereafter Binay Pandey attacked with an iron rod around the neck of her husband. According to her, she was also assaulted by the accused persons who had continued to beat her husband with lathi while Ranjit Pandey was pressing his chest. 17. PW2 has also given a similar narration of the occurrence in the Court. She has made a specific allegation of assault upon her brother by Mithun Pandey with a hoe. She has also made allegation of exhortation against Ranjit Pandey; Binay Pandey causing injury over the right side of the neck of her brother and; Ranjit Pandey pressing chest of her brother. This witness has further stated that when her sister-in-law tried to intervene Ranjit Pandey assaulted her with tangi on her right hand. She has also made allegation of exhortation against Ranjit Pandey; Binay Pandey causing injury over the right side of the neck of her brother and; Ranjit Pandey pressing chest of her brother. This witness has further stated that when her sister-in-law tried to intervene Ranjit Pandey assaulted her with tangi on her right hand. She has also stated about Ramadhin Pandey, Janak Tiwari and Prahlad Pandey surrounding Mahesh Pandey and Kiran Devi. Similarly, PW6 who is a co-villager has stated in the Court that the accused caused injuries to Mahesh Pandey. He has made a specific allegation against Mithun Pandey of attacking Mahesh Pandey with hoe on his head. In their cross-examination, presumably on a question put to them by the defence, PW1 and PW2 could not give description of the field where the marpit had started. PW1 has also admitted that she became unconscious after receiving assaults from the accused. Mr. Mahesh Kumar Sinha, the learned counsel for the respondent nos. 2 to 4 has submitted that once PW1 has admitted that she became unconscious she could not have described the occurrence with minute details. 18. We have examined the evidence of PW1, PW2 and PW6 with the aforesaid rule of caution in mind and come to a definite conclusion that these witnesses are trustworthy and reliable. On mere minor omission, exaggeration and inconsistency in their testimony as regards manner of occurrence the trial Judge should not have disbelieved their evidence to record the judgment of acquittal in favour of the respondent nos. 2 to 4. Long back, in “Ugar Ahir v. State of Bihar” AIR 1965 SC 277 the Hon'ble Supreme Court has held that it is quite acceptable that the evidence of a witness shall contain some falsehood but for that reason the witness cannot be considered untruthful. We do not find any exaggeration or inconsistency in the testimony of the PW1, PW2 and PW6 but now what has been sought to be contended on behalf of the respondent nos. 2 to 4 is that there is a vital contradiction in the ocular and medical evidence. 19. PW5 Dr. Nand Kishor Prasad Jaiswal who conducted the postmortem examination of the dead body of Mahesh Pandey has found the following ante-mortem injuries: i. Lacerated wound on right parietal area of scalp 5” x 1” x bone deep. 2 to 4 is that there is a vital contradiction in the ocular and medical evidence. 19. PW5 Dr. Nand Kishor Prasad Jaiswal who conducted the postmortem examination of the dead body of Mahesh Pandey has found the following ante-mortem injuries: i. Lacerated wound on right parietal area of scalp 5” x 1” x bone deep. Red in colour underlying parietal bone fractured, cranial cavity contained huge blood. Extra dural haematoma on parietal lobe of brain. Right parietal lobe of brain confused. ii. Lacerated wound on left little finger in proximal phalanx 3/4” x 1/2” x 1/2” red in colour iii. Red bruise on right cheek 4” x 3”. 20. PW1 and PW2 are the female folks from the house of the deceased and PW6 is also a rustic villager. In a quarrel which started suddenly and several persons encircled Mahesh Pandey and Kiran Devi it would be unreasonable to expect that the witnesses would give a graphic description of the occurrence. It is well-settled that the ocular evidence is the best piece of evidence and it cannot be rejected on some inconsistency with the medical evidence. In “Kapildeo Mandal v. State of Bihar” (2008) 16 SCC 99 the Hon'ble Supreme Court has held that wherever a plea of discrepancy between the oral evidence and medical evidence is taken the oral evidence shall get primacy if medical evidence is not totally inconsistent with the oral evidence. 21. In our opinion, the contention raised on behalf of the respondent nos. 2 to 4 that no sabal injury has been found over the neck of Mahesh Pandey is not sufficient to discard the evidence of PW1, PW2 and PW6. The contradiction between ocular evidence and medical evidence may assumes significance only in cases where it is not possible to reconcile the evidence of the medical and the eyewitness account. All the witnesses have consistently spoken about hoe injury caused by Mithun Pandey over the head of Mahesh Pandey and this piece of evidence cannot be rejected only because PW5 did not find a piercing injury over his neck. 22. In “Solanki Chimanbhai Ukabhai v. State of Gujarat” (1983) 2 SCC 174 the Hon’ble Supreme Court has observed as under: “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. 22. In “Solanki Chimanbhai Ukabhai v. State of Gujarat” (1983) 2 SCC 174 the Hon’ble Supreme Court has observed as under: “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” 23. PW1 is an injured witness and she has also suffered six injuries. The defence seems to have accepted the position that she has suffered injuries in the occurrence inasmuch as a specific question was put to her in her cross-examination and an answer was elicited from her that she became unconscious after assault upon her by the accused. PW2 and PW6 have also lend sufficient corroboration to her evidence. There are other corroborative piece of evidence also which the prosecution has produced to support it's case. PW4 who is the investigating officer of this case has given description of the place of occurrence which is the land of Mahesh Pandey. He has proved fardbeyan, seizure list and inquest report. He has stated that blood-stained soil, an iron kodi and iron rod were seized from the place of occurrence and blood-stained soil was sent for the FSL report. 24. The relevant portions of the FSL report and serological report of the State Forensic Science Laboratory, Jharkhand, Ranchi are extracted below: Result of examination(s): 1. Blood has been detected all over in the exhibits as marked-A. 2. Serological report on origin & group of blood would follow. Results of the Serological Examination: Portion of stains/tissue of the exhibit(s) submitted was/were examined to determine species origin and blood group, using serological tests. A detailed description of the exhibit(s) is/are mentioned in the Main Report Form (No. I G) related to Biological Examination. Following are the results: Sl. Serological report on origin & group of blood would follow. Results of the Serological Examination: Portion of stains/tissue of the exhibit(s) submitted was/were examined to determine species origin and blood group, using serological tests. A detailed description of the exhibit(s) is/are mentioned in the Main Report Form (No. I G) related to Biological Examination. Following are the results: Sl. No. Exhibit(s) marked Nature of Stains/ tissue Origin Grouping Remarks Species of origin Results ABO Grouping Results Others (Particularly when origin/Grouping not determined) 1 A Blood Human Group-B 25. With so much of reliable and trustworthy materials on record, the trial Judge could not have recorded a judgment of acquittal against all. In our opinion, the prosecution has been able to establish that at the time of occurrence the respondent nos.2 to 4 were present at the place of occurrence and Mithun Pandey has struck a hoe blow on the head of Mahesh Pandey. 26. While so, finding serious infirmity in the judgment dated 29th June 2018 passed in Sessions Trial No. 184 of 2015, the same is set-aside. 27. Now the question is whether all the three accused are liable for murder of Mahesh Pandey and causing injury to Kiran Devi and, if so, to what extent. 28. Section 34 of the Indian Penal Code envisages vicarious liability for all the accused for act of one. However, it is well-settled that a common intention is not 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 application of section 34 of the Indian Penal Code (refer “Pandurang v. State of Hyderabad” AIR 1955 SC 216 ). In “Bharwad Mepa Dana and Anr. v. The State of Bombay” AIR 1960 SC 289 the Hon'ble Supreme Court has observed that the principle which section 34 of the Indian Penal Code embodies is participation in action with the common intention of committing a crime and once such participation is established section 34 is at once attracted. 29. In “Bharwad Mepa Dana and Anr. v. The State of Bombay” AIR 1960 SC 289 the Hon'ble Supreme Court has observed that the principle which section 34 of the Indian Penal Code embodies is participation in action with the common intention of committing a crime and once such participation is established section 34 is at once attracted. 29. In a later decision in “Girija Shankar v. State of U.P.” (2004) 3 SCC 793 the Hon'ble Supreme Court has observed, thus: “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……..” 30. Therefore to establish the charge with the aid of section 34 of the Indian Penal Code the prosecution is under a legal duty to establish that all three accused had common intention in furtherance of which one of the accused persons has caused injuries to Kiran Devi and murder of Mahesh Pandey. 31. This is the prosecution evidence that the quarrel has lasted for 2-3 minutes and the accused had no previous animosity with Mahesh Pandey. PW1 has stated in her cross-examination that soon after the quarrel between her husband and Mithun Pandey which lasted for 2-3 minutes the accused had attacked her husband. She has admitted in the Court that Binay Pandey was about 60-65 years old and the age of his wife was 50-55 years. The defence has elicited these statements from PW1 to show that Binay Pandey and his wife were not involved in the occurrence. This is also the prosecution's own case that several persons had arrived at the place of occurrence and Ramadhin Pandey, Janak Tiwari, Prahlad Pandey and Ranjit Pandey also played some role in the occurrence but none of them seems to have faced the trial. Therefore, the introduction of Binay Pandey and his wife by the witnesses in the crime scene is not free from doubt and their participation in the occurrence is not established – they are the parents of Mithun Pandey. 32. Therefore, the introduction of Binay Pandey and his wife by the witnesses in the crime scene is not free from doubt and their participation in the occurrence is not established – they are the parents of Mithun Pandey. 32. Therefore, we hold that the prosecution has failed to establish the charge against Binay Pandey and Geeta Devi with the aid of section 34 of the Indian Penal Code for causing death of Mahesh Pandey and causing injuries to Kiran Devi. 33. So, the judgment in Sessions Trial No. 184 of 2015 is affirmed to the extent Binay Pandey and Geeta Devi have been acquitted for the charge under sections 342/34, 325/34 and 302/34 of the Indian Penal Code. 34. Section 300 of the Indian Penal Code provides that under certain circumstances culpable homicide shall not be murder. Such circumstances have been enumerated under section 300 of the Indian Penal Code in the nature of Exception 1 to Exception 5. 35. Exception 4 to section 300 of the Indian Penal Code reads as under : Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. 36. In “Surinder Kumar v. Union Territory, Chandigarh” (1989) 2 SCC 217 the Supreme Court has indicated the essential ingredients for bringing a case under Exception-4 to section 300 of the Indian Penal Code, as under: 7. “To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant has not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it revelant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.......” 37. This is the case of the prosecution that the incident had started on a trivial issue. The immediate instigation was that Ox of Mahesh Pandey had destroyed 2-4 cauliflowers in the field of Binay Pandey. From the evidence of PW1, it is also quite apparent that the incident has happened at the spur of the moment. And, this is the evidence of PW5 that only one injury has been found over the parietal region of Mahesh Pandey. Therefore, it cannot be said that Mithun Pandey had acted with cruelty or taken undue advantage of the situation. 38. The aforementioned circumstances clearly demonstrate that Mithun Pandey cannot be held guilty for murder. 39. Having regard to the facts and circumstances in the case, Mithun Pandey is convicted and sentenced to RI for 5 years under section 304 Part-II of the Indian Penal Code [refer: “Bunnilal Chaudhary v. State of Bihar” (2006) 10 SCC 639 ]. 40. Mithun Pandey shall surrender before the Court concerned to serve the sentence awarded to him under section 304 Part-II of the Indian Penal Code by this Court. 41. Acquittal Appeal No. 95 of 2018 is allowed qua Mithun Pandey who is the respondent no. 2 and is dismissed qua Binay Pandey who is respondent no. 3 and Geeta Devi who is respondent no.4. 42. Let the lower Court records be transmitted to the Court concerned, forthwith. 43. Let a copy of the Judgment be transmitted to the Court concerned through FAX.