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[5] Out of the four accused, Depu @ Depak S/o Bherulal is on bail, the rest of the appellants have undergone more than 14 years of incarceration in the jail.

[6] Learned counsel for the appellants has argued that the learned Additional Session Judge has wrongly convicted the appellants when the prosecution has failed to establish the charges beyond reasonable doubts. There are omissions and contradictions which have been ignored by the learned Additional Session Judge. It is further submitted by the learned counsel that as per evidence that came on record, the appellants had no intention to commit the murder of Manish. The quarrel of appellants was going on with Rupesh, Manish was trying to save Rupesh and sustained injuries on his chest, and back and died, therefore, the offence will not travel more than 304 (Part-I) of I.P.C. The allegation of causing the injury by means of the knife is only against Ashok, who has undergone 14 years of incarceration. Jagdish, Deepak S/o Jagdish and Ravi have been acquitted by the trial court on the same set of evidence by disbelieving testimony of ocular witnesses. Vishal is said to have caused injury on the back of Manish, others have caused minor injuries hence, they have wrongly been convicted u/s 302 with the aid of section 34 of I.P.C that after acquitting them under section 147,148 and 148 I.P.C. It is further submitted that once all the accused persons have been acquitted for the offence punishable under Section 147, 148 and 149 of I.P.C, as it is not a case of unlawful assemble with common object to commit the murder of Manish. The appellants were not charged under section 34 of I.P.C. therefore, they have been wrongly convicted u/s 302 and 307 I.P.C. with the aid of section 34 of I.P.C.

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and anger. The learned Additional Session Judge has acquitted them under Section 147, 148 and 149 of I.P.C which means there was no common object to form unlawful assemble in the prosecution to commit an offence by these appellants. Since they caused stab injuries on the non-vital part hence at the most they are liable to be convicted u/s 324 of I.P.C. because of their overt act.

[12] Depu and Jogu assaulted the Rupesh by means of the knife on his thy which is not a vital part of the body, the treating doctor did not opine that the injuries could have been fatal. Had there been the intention to kill Rupesh they would have stabbed his vital part of the body, therefore, they have wrongly been convicted under Section 302 and 307 with the aid of section 34 of I.P.C. Rupesh was examined by Dr Anil Sinha (PW-8) who found incised wound 1 ½ / ½ on his thy and did not give opinion that these injuries are sufficient to cause death, therefore, Jogu and Depu are liable to be convicted under section 324 of I.P.C. for causing injury to Rupesh, hence, their conviction accordingly liable to modify. But they all have been convicted with the aid of 34 I.P.C. So far as section 34 of I.P.C. is concerned, there is no material that appellants shared a common intention to attack Manish (the deceased) and Rupesh (the injured). Learned Additional Session Judge has convicted them with the aid of section 34 of I.P.C. because after the acquittal of three accused the number of accused has been reduced to 4. There is no evidence led by the prosecution that all 4 appellants shared the common intention to commit this crime, therefore, all the appellants have wrongly been convicted under section 302/34 and 307/34 of I.P.C. We find support from the judgment passed by the Apex court which is reproduced below with relevant paras:-