JUDGMENT Misra and Madeley, JJ. - In this case Gajraj Singh, Sheo Baran Singh and Kunwar Bahadur Sinsh, who are brothers living in Pare Bakatawar, and Pratab Singh and Sukhai Chamar, who come from Pitambarpur, which is two miles from Pure Bakhtawar, have been convicted under Sections 147, 302/149 and 323 and 325/149, Indian Penal Code. Each of them has been sentenced to transportation for life u/s 302, to two years' rigorous imprisonment u/s 325, to six months' rigorous imprisonment u/s 323 and to two years' rigorous imprisonment u/s 147, Indian Penal Code. The incident took place at about noon on the 29th May 1945 by a weal near the house of Gajraj Singh in Purs Bakhtawar 2. The following facts will show how there came to be ill-will between the parties. Mst. Sukhrani was the real "mausi" of Gajraj Singh and the real anai of Bijai Bahadur, the deceased. Her daughter was married to Pratab Singh. Sukhrani died leaving some tenancy land and groves. Gajraj Singh and his minor relations got 2/3rd share of the property left by Sukhrani and l/3rd went to Bijai Bahadur Singh and his brothers. This division was made by a Court decree. Bijai Bahadur Singh had appealed and the appeal was still pending in the Court of the Commissioner of Lucknow when this incident took place. 3. The prosecution case is that Gajraj Singh was taking a bath at the well when Bijai Bahadur Singh, accompanied by Sanwale Singh his "sala", went to the well for a bath. After bathing, when Bijai Bahadur Singh and Sanwale Singh were going to their houses, it is said that Gajraj Singh caught hold of Bijai Bahadur Singh from behind and grappled with him. Then the two brothers of Gajraj Singh, Sheo Baran Singh and Kunwar Bahadur Singh, Pratab Singh, Sukhrani's daughter's husband, and Sukhai Chamar, who were all sitting at the door of Gajraj Singh, came aimed with lathes and attacked Bijai Bahadur Singh. Gajraj Singh also ran to his house and fetched a lathi and all five of them be laboured Bijai Bahadur Singh even after he had fallen down. Sanwale Singh who had left the well just before Bijii Bahadur Singh, turned and remonstrated. Ha was beaten as were also Debi Singh, cousin of Bijai Bahadur Singh, and Rup Gadariya, who tried to intervene, one after the other. Sanwale Singh who had left the well just before Bijii Bahadur Singh, turned and remonstrated. Ha was beaten as were also Debi Singh, cousin of Bijai Bahadur Singh, and Rup Gadariya, who tried to intervene, one after the other. Bijai Bahadur Singh died the same day at about 8 p.m. while he was being taken to the police station where at 10 p.m. the first information report was lodged. 4. The defaceersion of the incident is that Gajraj Singh was at the well before Bijai Bahadur Singh. Bijai Bahadur Singh want there atoua and there was alteration between the two and they grappled with each other. While they were grappling Debi Singh Sanwale Singh and Rup Gadariya rushed at Gajraj Singh with lathis. Thsn Kunwar Bahadur Singh, accompanied by Sheoraj, Lal Bahadur and another Theater of Tokay, ran to the rescan of Gajraj Smgh and there was an exchange of lathe blows between the rival groups. Bijai Bahadur, although unarmed, joined to this marmite and got his injuries. 5. As has been said only two of the Appellants, viz., Gajraj Singh and Kunwar Bahadur Singh admitted their presence on the spec. Tae case set up by them in defence is incredible in view of the severe injuries inflicted on Bijai Bahadur (17 in number) as well as on Sanwale Singh and Debt Singh, and of the fact that no injuries at all were caused to a any person on the other side. 6. The prosecution eye-witnesses of the occurrence are (1) Sanwale. who was certainly there as he was severely injured (2) Mst. Chabinatha who came out when her husband Bijai Bahadur, was being beaten, (3) Debi Singh, first cousin of Bijai Bahadur, who came out of his house and went to the rescue. He was assaulted with lathis and fell down. (4) Rup, an independent witness, who seems to have been won over by the defense as in Sessions he supports the defenssiory to some extent though it is utterly impossible to believe that story. (5) 1st. Sukhrani Chariman, who supports the prosecution case, is a laborer who mostly worked for Bijai Bahadur Singh. (6) Mst. Kailesh Thakura in who came out of her house on hearing the alarm and saw the assault by the Appellants. (7) Gbarib, who was watering his goats at the pond near the well and who saw the occurrence from beginning to end. 7. (6) Mst. Kailesh Thakura in who came out of her house on hearing the alarm and saw the assault by the Appellants. (7) Gbarib, who was watering his goats at the pond near the well and who saw the occurrence from beginning to end. 7. Out of these witnesses, the lower Court has relied on Sanwale, Dabi Singh, and Ex. 14, the statement of Rup Gadariya before the Magistrate. The learned Sessions Judge seems to have rejected all the witnesses not mentioned in the thirst information report, a criterion with which we cannot altogether agree. Even if we accept only those witnesses upon whom he has relied, however, there is still sufficient evidence to prove the case beyond doubt. The defense version which is supported by one witness only, Darsban Singh is obviously incredible. 8. The learned Judge's summing up of the case is The entresol of the above discussion is that it is satisfactorily proved that after Bijai Bahadur Singh and Gajraj Singh had grappled, Sheo Baran Singh, Kunwar Bahdur Singh, Partab Singh and Sukhai accused ran in and assaulted Bijai Bahadm with lathis; that Sanwale Singh, Deoi Singh and Hap Gadariya ran to the rescue of Bijai Bahadur individually but were assaulted. The point for determination now is as to what offence or offices have been committed by the accused, if any. It is urged that since Gajraj Singh did not use a lathi, there was no unlawful assembly as the persons using lathis were only four in number, lam unable to accept this contention Even' Though Gajraj singh may not have brought a lami, there is no doubt mat he remained present and also took part in the "merit" using his hand and feet whenever possible, His presence and his joining the remaining from accused makes him a member of the unravel assembly, the common object of which was to assault Bijai Bahadur with lathis. Next it is contended that the accused cannot be guilty u/s 203 Indian Penal Code. as they did not intend to mind or Bijai Bahadur. Whenever persons use lathis on the head and whenever there is a common intern on that to use latins, it must be presumed that every member knows that it is likely that death may resin. Consequently the accused are guilty u/s 302/149, Indian Penal Code. 9. as they did not intend to mind or Bijai Bahadur. Whenever persons use lathis on the head and whenever there is a common intern on that to use latins, it must be presumed that every member knows that it is likely that death may resin. Consequently the accused are guilty u/s 302/149, Indian Penal Code. 9. The first question to be decided is whether the learned lower Court is correct in holding that Gajraj Singh remained present beating with his hands and feet when he got an opportunity. All the witnesses relied upon by the Judge and nearly all the others are quota clear that Gajraj Singh as well as the other four accused were striking with lathis. Not one of the witnesses says anything about his striking with his hands or kicking Bijai Bahadur. This being so it appears to us to be by no means clear that Gajraj Singh either remained on the spot while the other four were assaulting with lathis or used his hands and feet upon Bijai Bahadur. Sanwale Singh states Gajraj Singh accused ran home and brought a lathi and joined the assault on Bijai Bahadur. Bijai Bahadur fell down, but the five assailants continued their assault. 10. Debi Singh states that when he came Sanwale Singh had already fallen down and all the five accused armed with lathis were assaulting Bijai Bahadur who was lying on the ground. In Exh. 14 Rup Gadariya stated that when he got to the scene all the five accused were beating Bijai Batiadur and Debi Singh with lathis. Wheo he tried to save them he was hit on the leg and fled. He does not say that Bijai Bahadur had fallen down. In the Sessions Court his statement is different and makes u clear that Bijai Bahadur and Debi Singh had not fallen down. Chhabinatha says that when she came out she found all the five accused attacking her husband Bijai Bahadur with lathis as he lay on the ground. Mst. Sukhrani, who is not relied upon by the lower Court, states that while the other tour accused were assaulting with lathis, Gajraj Singh was holding Bijai Bahadur down by the waist. When Bijai Bahadur fell down then Gajraj Singh accused went home and brought his lathi, and then all the rive accused again assaulted Bijai Bahadur With lathis. Mst. Sukhrani, who is not relied upon by the lower Court, states that while the other tour accused were assaulting with lathis, Gajraj Singh was holding Bijai Bahadur down by the waist. When Bijai Bahadur fell down then Gajraj Singh accused went home and brought his lathi, and then all the rive accused again assaulted Bijai Bahadur With lathis. This seems a very improbable story and is not corroborated by any other witness. Mst. Kailasha states that when she came out of the house she saw all the then accused assaulting Bijai Bahadur and Sanwale, who were lying on the ground, with lathis. Gharib states that Gajraj Singh joined in the assault after the arrival of the other four and says nothing about Gajraj's being armed with or going to get a lathi. This witness, who professes to have seen the whole affair from the very beginning, gives an account which is inconsistent with that of the other witnesses. The Judge has rightly placed no reliance on his evidence. 11. There is no mention in the first information report of Gajraj's having gone to his house and fetch d a lathi and the lower Court has rightly rejected this story. It has however, substituted for the assail with a lathi an assault with lists and feet for which there is no evidence at all. We do not think that there is in the evidence any ground for believing that Gajraj Singh took any part in the assault after the arrival of the other four Appellants. 12. The question is, therefore, whether Gajraj Singh is guilty by virtue of Section 142, Indian Penal Code. Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, 0r continues in it, is said to be a member of an unlawful assembly. 13. The major part of the prosecution evidence is that Gajraj Singh went home and brought back a latui. It has been held not to be true that he came back with a lathi. It seems very possible that tie did not remain there at all. Section 141, Indian Penal Code. provides that an assembly of rive or more persons is designated an "unlawful assembly", if tire commodious object of the persons composing coat assembly is etc. The common object, with which the accusable are charged in this case, is beating With lathis. It seems very possible that tie did not remain there at all. Section 141, Indian Penal Code. provides that an assembly of rive or more persons is designated an "unlawful assembly", if tire commodious object of the persons composing coat assembly is etc. The common object, with which the accusable are charged in this case, is beating With lathis. Barring the untruthful prosecution evidence about his actions, there is nothing to show that Gajraj Singh shirred in that common object. Since there Were only four persons a part from him, it does not appear to us that he could become guilty u/s 142, Indian Penal Code, by merely remaining in an unlawful assembly, because it he is left out there could be no unlawful assembly. In other words we think that there must be more than four persons having the common object before the constructive guilt u/s 142, Indian Penal Code. can arise. Even if he was present therefore, but did no-thing to show that he shared the common object of the others, Gajraj Singh would not be guilty of an offence u/s 147, Indian Penal Code. It is not proved, however, by satisfactory evidence that he remained present there after the other Appellants came on the scene. It is not proved that be caused hurt but he certainly committed assault and is guilty u/s 352 Indian Penal Code. 14. Between them, the other four Appellants killed Bijai Bahadur and inflicted injuries on sanwale Singh and Debi Singh. It is not certain who struck the fatal blow and unless the Appellants had a pre-arranged plan to kill Bijai Bahadur, they cannot be convicted of murder. In AIR 1945 118 (Privy Council) . was held, Common intention within the meaning of Section 34 implies a pre-arranged plan. To convict the accused of an offence applying Section 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the party lion which divides 'their bounds' is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. Care must be taken not to confuse same or similar intention with common intention; the party lion which divides 'their bounds' is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in Section 34 should never be reached unless it in a necessary inference deducible from the circumstances of the case. 15. The decisions of this Court cited before us are Zahid Khan v. King-Emperor 1939 O.A. 157 : A.W.R. (C.C.) 27 : O.W.N. 7, Sunder Singh v. King-Emperor 1939 O.A. 492: O.W.N. 576 and Bhagwati v. Emperor 1939 O.A. 674 : A.W.R. (C.C.) 96 O.W.N. 662. 15. In Zahid Khan the headnote is, Where I several persons attack another and his death is caused by a single blow with a lathi, but the other injuries found on his body do not indicate a determination to beat him to death, it is not possible t0 hold that death was caused by doing an act with the intention of causing death or with the intensity of causing such bodily injury as is likely to cause death, but it may be held that death was caused by the doing of an act with the knowledge that by such act the person who did it was likely to cause death, and the case falls within the knowledge clause of Section 299, Indian Penal Code. In such a case, it is not known which of the persons concerned actually struck the total blow, it is not possible by the application of Section 34, to convict any of the persons taking part of air offence under the second part of Section 304, Indian Penal Code and the appropriate section in view of the wording of Section 34 is Section.325, Indian Penal Code. 16. In Sunder Singh v. King-Emparor 1939 O.A. 492: O.W.N. 576 it was held, When a number of assailants inflict lathi blows on one person some of which are fatal and some of which are not, the first thing to do is to see whether the assailant who has inflicted the fatal blow in guilty of murder or not. A common intention u/s 84, Indian Penal Code, is an intention shared by the person who has caused death and by the other assailants who did not themselves cause death. A common intention u/s 84, Indian Penal Code, is an intention shared by the person who has caused death and by the other assailants who did not themselves cause death. If the act which caused death is neither murder nor culpable homicide because the person who dealt that blow did not have such intention as is specified u/s 299 or 300, Indian Penal Code, but only the knowledge which is specified in either of these sections, there is no intention which can be shared by all the assailants who did not strike the fatal blow and, therefore Section 34 cannot apply. The knowledge referred to in Sections 299 and 300 is personal knowledge of the person who struck the blow and it is difficult to see how it can be shared by his co-assailants, but in any case, Section 34 is restricted to common intention and does not embrace any knowledge. 17. In Bhagwati v. Emperor 1939 O.A. 674 : A.W.R. (C.C.) 96 O.W.N. 662 it was held, Where the common intention of the accused was merely to give the deceased a sound beating and he was struck only twice on a vital part while the other ten injuries were inflicted on non-vital parts of the body and all these injuries were of a simple nature and it cannot be said that the accused know that death was likely to be committed in the prosecution of their common object, the offence committed falls u/s 35, read with Section 34, Indian Penal Code, and not u/s 302 read with Section 149. 18. The question is whether the above cited decision of their Lordships of the Privy Council has made any difference in the interpretation of the law. We think not. There must be a prearranged plan but that plan may be made shortly or immediately before the commission of the crime. A long standing conspiracy is not required for the application of the section. "Same or similar intention" is not to be confused with "common intention". It seems clear that persons who have a common intention must have the same intention. "Same intention" must to make it "common intention" be indicated in some way by word or acts between the persons who share it. Such indication may be inferred from circumstances. "Same or similar intention" is not to be confused with "common intention". It seems clear that persons who have a common intention must have the same intention. "Same intention" must to make it "common intention" be indicated in some way by word or acts between the persons who share it. Such indication may be inferred from circumstances. As their Lordships say at page 58 column 1 As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. On careful consideration it appears to their Lordships that in the present case there was no evidence and there were no circumstances iron which it might be inferred that the Appellant must have been acting in concert with Wali Shah in pursuance of a concerted plan when he along with him rushed to the rescue of Ghulam Quasim. 19. What are the circumstances in the present case? There was no question of rushing to the rescue of Gajraj Singh who had assaulted Bijai Bahadur by seizing him round the waist. Gajraj Singh was not getting the worst of the encounter and needed no protection. Yet all the other four Appellants rushed simultaneously armed with lathis from the door of Gajraj Singh and began to beat Bijai Bahadur unmercifully. They all continued to beat him after he had fallen down. This fact is proved beyond any doubt. We think that the circumstances lead to an irresistible inference that they had the same intention and that that intention was shared by all in the sense that it had been communicated by them to each other before they rushed from their door. We do not think that that intention was necessarily to kill Bijai Bahadur but by a necessary inference from the circumstances it must have been to break him up in such a way as legally amounts to grievous hurt. Taking this view of the case, we consider that the three decisions of this Court above cited apply to this case and that Sheo Baran Singh, Kunwar Bahadur Singh. Pratab Singh and Sukhai Cbamar are guilty u/s 325/34, Indian Penal Code. 20. Taking this view of the case, we consider that the three decisions of this Court above cited apply to this case and that Sheo Baran Singh, Kunwar Bahadur Singh. Pratab Singh and Sukhai Cbamar are guilty u/s 325/34, Indian Penal Code. 20. We therefore set aside the convictions and sentences passed upon Gajraj Singh and in their stead convict him u/s 352, Indian Penal Code. and sentence him to three months' rigorous imprisonment. As he has already served this sentence he will now be released. 21. We set aside the convictions and sentences passed on the other four Appellants under Sections 147 and 302/149, Indian Penal Code We convict them u/s 325/34, Indian Penal Code, and sentence each of them to five years' rigorous imprison most. The convictions and sentences passed upon them for the injuries caused to Sanwale Singh and Debi Singh are also set aside as there is no evidence which of them inflicted these injuries and no inference can be drawn that they had a common intention to inflict these injuries. The circumstances in fact seem to negative such common intention. 22. To this extent the appeal is allowed and in other respects it is dismissed.