Alok Verma, J.

This criminal appeal is directed against the conviction and sentence passed by the learned Additional Sessions Judge, Indore in Sessions Trial No.185/2006 by judgment dated 10.11.2010 whereby the learned Additional Sessions Judge convicted the accused Lakhan under section 302, IPC and accused Virendra under section 302 r/w section 34, IPC and sentenced them to life imprisonment and fine of Rs.1,000/- each with default clause.

2. According to prosecution story, marriage of younger brother of complainant Kamalsingh Nayak was to be solemnized in village Limbodi with daughter of Bhanwarlal Patel. The marriage party reached the village at about 10:00 p.m. to the place of the ceremony which was field of one Samundar Patel. On reaching there, the persons from the family of the girl invited them to have dinner first as the food was ready. At that moment, the band was playing music and the present accused who were from girls side were dancing on the tune.

3. The complainant Kamalsingh went out and asked the persons playing the band to stop playing and have food. This was objected to by the present accused persons and altercation and scuffle took place between them, and thereafter, the complainant getting himself released from them, went inside marriage pandal. The accused followed him and inside the pandal, they started using abusive language against them. On this, the deceased Mahendra alias Makhan, who was nephew of the complainant tried to stop them from using such abusive language against the complainant. Suddenly, the accused Virendra caught hold of the deceased from behind and the accused Lakhan brought out a knife from his pocket and inflicted one single injury on right portion of chest of the deceased due to which blood started oozing out. The incident was witnessed by Jagdish (P.W.8) Trilokchand (PW-1) and Kailash (PW-5). The persons present there tried to catch hold of the accused but they fled away along with knife, and thereafter, the deceased was taken to M.Y. Hospital in a Maruti Van, where he was declared brought dead. The intimation of his death was sent to Police Station Bhanwarkua, District Indore where the First Information Report was lodged by the complainant Kamalsingh (PW-11) at 11:50 p.m. The FIR was prepared by Fateh Bahadursingh (PW-12) and the matter was investigated by Station Incharge B.S. Parihar (PW-16).

4. The accused Lakhan faced trial charged under section 302, IPC and the co-accused faced trial charged under section 302 r/w section 34, IPC. After recording evidence and the accused statement, the learned Additional Sessions Judge found them guilty under the sections and sentenced them as aforesaid. As per the inferences of the learned Additional Sessions Judge, the death of the deceased was homicidal and it was inferred by him that the injury was caused by the accused persons with an intention to cause death of the deceased.

5. Aggrieved by the aforesaid conviction and sentence, this appeal is filed on following grounds, inter-alia, that :

(i) That the findings of the lower court is against the law and facts.

(ii) In the present case provisions of section 34, IPC cannot be invoked, as there are no evidence of any common intention and any overt act done in furtherance of such common intention.

(iii) The quarrel started in fit of moment. There was no pre-meeting of mind and does not prove that the accused Virendra was knowing that the co-accused was carrying a knife in his pocket which he would use to kill the person.

(iv) The incident took place without any pre-meditation and pre-meeting of mind and in heat of passion and only one injury was caused on the deceased and, therefore, this does not fall under section 302, IPC but it falls under section 304 Part II of IPC.

(v) The learned lower court also did not take into consideration that the story of the prosecution is unnatural and the deceased was not taken to the nearest police station and they did not inform in the police station while t