JUDGMENT : Narasimham, J. - The seventeen Petitioners and eight other persons were tried in the Court of the Assistant Sessions Judge, Puri, for offences u/s 304/34 and 201 of the Indian Penal Code in connection with an occurrence which took place early in the morning of the 21st October, 1948 in village Dimirisena, P.S. Brahmagiri in which one Daitari Palai was killed. The learned Assistant Sessions Judge acquitted two persons who were charged u/s 201 I.P.C. and six of the twenty-three persons charged u/s 304/34 I.P.C. and convicted the Petitioners u/s 326/34 I.P.C. and sentenced them to various terms of imprisonment. On appeal, the learned Sessions Judge of Puri maintained the convictions and sentence passed on the Petitioners. 2. It appears that in village Dimirisena, P.S. Brahmagiri there are two factions, one led by one Chandra Sekhar Patnaik and the other by the deceased Daitari Palai. Some cases were also fought out between the parties on previous occasions. All the Petitioners are said to belong to the party of Chandra Sekhar Patnaik. The prosecution case was that on account of this enmity Chandra Sekhar Patnaik instigated the Petitioners and other persons to waylay and severely belabour Daitari Palai with lathis and tent as early in the morning of the 21st October, 1948 while the said Daitari was proceeding towards his field. Daitari fell down unconscious and died soon afterwards. It was further alleged that two persons of the accused party removed the blood-stains with a view to conceal all traces of the crime. But this portion of the case was not believed by the trial court. There were several eye-witnesses on the side of the prosecution to prove the actual assault. Both the Courts however held that one group of eye-witnesses who were co-villagers were inimically disposed towards the Petitioners and that their evidence regarding the participation of the Petitioners in the assault should not be believed in the absence of adequate corroboration. But the courts held that four other eye-witnesses, namely P.Ws. 10, 11, 18 and 14 were disinterested witnesses and inasmuch as they have also spoken about the occurrence and the participation of some or all of the Petitioners in the assault there was adequate corroboration of the testimony of the interested villagers. But the courts held that four other eye-witnesses, namely P.Ws. 10, 11, 18 and 14 were disinterested witnesses and inasmuch as they have also spoken about the occurrence and the participation of some or all of the Petitioners in the assault there was adequate corroboration of the testimony of the interested villagers. The Petitioners put forward the story that the deceased fell down from a coccanut tree and sustained multiple injuries in consequence of which he subsequently died. This story was disbelieved by both the courts both on the ground of inherent improbability and also in view of the positive testimony of the eye-witnesses which has been accepted. 3. Mr. Das in a somewhat lengthy argument commented on several unsatisfactory features in the prosecution case and urged that the Petitioners ought to have been given the benefit of doubt at least. He first submitted that the real F.I.R. of the case was Ext. A as Proved by P.W. 25 and that it was subsequently torn and replaced by another F.I.R. chiefly with a view to implicate Chandrasekhar Patnaik. He further urged that many of the Petitioners have not been named in the F.I.R. & that some of the eye-witnesses also have not been named in the F.I.R. He again reiterated the defence version about the death the deceased having been caused by a fall from the coccanut tree and urged that in view of the medical evidence this story should have been behaved. He also emphasised the fact that Chandra Sekhar Patnaik who was said to be the main instigator in the commission of the crime was actually found in the police station on the same pay some hours later and that the entire prosecution case should have been discredited in view of the attempt made to implicate him on a false char. 4. His Lordship discusses the argument on facts. 5. The only substantial point of law that Mr. Das could make out is as regards the applicability of Section 34 I.P.C. to a case of this type. He relied on AIR 1945 118 (Privy Council) & urged that in the absence of any evidence to show that there was a preconcerted design the convictions of the Petitioners by the application of Section 34 I.P.C. were not correct. Das could make out is as regards the applicability of Section 34 I.P.C. to a case of this type. He relied on AIR 1945 118 (Privy Council) & urged that in the absence of any evidence to show that there was a preconcerted design the convictions of the Petitioners by the application of Section 34 I.P.C. were not correct. But in the present case-if the prosecution witnesses are to be believed there seems to be no doubt that the assault on Daitari Patnaik, (Palai) was made by the Petitioner in furtherance of their common intention to give him a sound thrashing. Almost all the witnesses have spoken about the party faction in the village and the enmity between the accused's party led by Chandra Sekhar Patnaik on the one hand and Daitari Palai's party on the other. III fact, the witnesses have gone further and stated that while the assault on Daitari was going on Chandra Sekhar was actually instigating the assailants and encouraging them. The assault was made all on a sudden and all the Petitioners are said to have taken part in the giving of blows. They all ran away as soon as other villagers arrived on the scene. This shows that just before they fell upon Daitari they had the common intention of soundly thrashing him. Mr. Das urged that the finding of the lower appellate Court to the effect that there was no preconcerted conspiracy was itself sufficient to show that Section 34 I.P.C. could not apply to the facts of the case. But mere fact that there was no previous conspiracy is not sufficient to show that just before the commission of the crime the participants did not share the common intention. It is true that there is So fine distinction between common intention on the one hand and similar or same, intention on the other. But as pointed out in the aforesaid Privy Council decision which Mr. Das relied the common intention itself can be inferred from the acts of the accused persona, their conduct immediately before and after the occurrence and other relevant circumstances of the case. In the present case in view of he admitted enmity, the way in which the Petitioners picked up a quarrel with Daitari and suddenly fell upon him and mercilessly belaboured him with their weapons justify inferring their common intention. In the present case in view of he admitted enmity, the way in which the Petitioners picked up a quarrel with Daitari and suddenly fell upon him and mercilessly belaboured him with their weapons justify inferring their common intention. The Court might have convicted the Petitioners u/s 304/34 I.P.C. but they have reduced the offence to one u/s 326/34 I.P.C. and imposed fairly severe sentences on these Petitioners who look a prominent part in causing servere injuries. We see no reason to interfere either with the conviction or the sentences. 6. The revision petition is therefore dismissed. Ray, C.J. 7. I agree. Final Result : Dismissed