JUDGMENT Agarwala, J. - Pratap aged 45 and Bhairon aged 28 have been convicted u/s 302, I.P.C. and sentenced to death. They have also been convicted u/s 24 of the Cattle Trespass Act, and sentenced to six months' rigorous imprisonment. They appeal against their convictions and sentences. There is also before us the usual reference for the confirmation of the sentence of death. 2. The prosecution story was as follows. On the 28th February 1953, at about 10 a.m. Rajdhar, brother-in-law of Desraj, and Karan Singh, cousin of Desraj had gone to the field of Karan Singh for harvesting the crop. The field of Desraj adjointed the field of Karan Singh. Rajdhar noticed that eight bullocks were grazing the gram crop in the field of his brother in-law Desraj. Rajdhar rounded up those cattle and drove them towards the cattle pound at Kachwan Kalan. He had walked about a furlong with the cattle when all of a sudden eight persons, including the two Appellants and one Kukkan alias Sheocharan, appeared on the scene. They surrounded Rajdhar. Pratap Appellant was armed with a pharsa and Bhairon Appellant was armed with an axe, and the rest were armed with lathis. They prevented Rajdhar from taking the cattle to the cattle pound. Rajdhar protested and said that the cattle had done damage to the crop to the extent of Rs. 150/- and that he would impound the cattle. This led to a quarrel, and one of the assailants, namely, Kukkan struck a lathi blow on the head of Rajdhar. Pratap Appellant then attacked Rajdhar with a pharsa and Bhairon Appellant with an axe. Rajdhar on receiving the blows fell down on the ground; and the prosecution alleged that the other accused beat Rajdhar with lathis after he had fallen down. Rajdhar became unconscious due to the injuries received by him and died two days later in the hospital. 3. The first information report of this incident was lodged by Karan Singh at the police station Jaria in the District of Hamirpur, which was seven miles from the place of occurrence at about 3:15 p.m. the same day. It is obvious that the report was lodged without any delay. 4. Rajdhar was examined in the hospital before be died, and six injuries were found on his person. It is obvious that the report was lodged without any delay. 4. Rajdhar was examined in the hospital before be died, and six injuries were found on his person. They were: (1) An incised wound 5" X 1/2" cum swelling meninges and brain with cut fracture of right parietal and frontal bones underneath, lacerated brain being visible. The injury No. 1 was a gticvous injury and a dangerous one. (2) An incised wound 21/4"X1/2"X bone cum swelling on the forehead, 1/2" above the right eye brow. (3) A punctured wound 1/2"x/10"x scalp, on the forehead, 1/2" to the left of mind line, touching the left eye brow. (4) Echymosis of both eye-lids with swelling over both temples and upper portion of cheeks. (5) An incised wound 13/4"X1/4"X scalp cum swelling on the left parietal region 3" above the left ear. (6) Contused area 4"xl3/4" on the right scapular and infra scapular regions. 5. In the opinion of the doctor injury No. 1, that is to say, the incised wound 5"X1/2", which had cut the brain and the right parietal bones, was dangerous to life But the other injuries appeared to him to be simple. 6. On Rajdhar's death a post-mortem examination of his body was done and it was performed by the same doctor, and he reported the injuries in much the same fashion as he had done before the death of Rajdhar. But now that he had opened up the body he could find what had happened inside on account of the injuries. He found that there was coagulated blow under the scalp. There was crack fracture of the right parietal temporal and frontal bones. A triangular piece of the right frontal bone was completely detached from the other bones. The membrane was cut under injuries Nos. 1 and 2. There was big clot of blood over the membrane at the site of injury No. 1. The brain tissues were lacerated on the right frontal region and there was haemorrhage. There was a fracture of the right middle fossa and both the anterior fossae were also fractured. Death, in the opinion of the doctor, was due to injury to and haemorrhage of the brain, internal haemorrhage and collapse. 7. The brain tissues were lacerated on the right frontal region and there was haemorrhage. There was a fracture of the right middle fossa and both the anterior fossae were also fractured. Death, in the opinion of the doctor, was due to injury to and haemorrhage of the brain, internal haemorrhage and collapse. 7. The doctor was examined in court and he stated that although from an external observation he found all other injuries, except injury No. 1, to be simple, yet when he performed the post-mortam examination and made an internal examination he found that injury No. 2 also was grievous, and that the triangular piece of the right froutal bone had been completely detached from the other bones as a result of injury No. 2 and not as a result of injury No. 1. 8. The defence of the Appellants, with whom we are concerned in this appeal, was that they had been falsely implicated due to enmity, and that they had nothing to do with the marpit. 9. The charge against the Appellants was on three counts. Firstly, the Appellants Pratap and Bhairon armed with a Pharsa and an axe respectively along with the other accused armed with lathis formed an unlawful assembly the common object of which was to illegally seize the eight bullocks from Rajdhar and cause such injuries with the Pharsa, the axe and the lathis to him which were likely to cause his death, and in prosecution of the common object of the said unlawful assembly, committed a riot and thereby committed an offence punishable u/s 148, I.P.C. Secondly, the Appellants, in prosecution of the common object of the said unlawful assembly, knowingly and intentionally caused such injuries on Rajdhar with the pharsa and the axe and the other members caused such injuries with lathis, on account of which Rajdhar died in hospital and which the Appellants knew were sufficient to cause the death of Rajdhar in the ordinary course of nature and thereby committed an offence punishable u/s 302 read with Section 149, I.P.C. The third charge was under the Cattle Trespass Act which it is unnecessary to mention. 10. 10. It may be observed here that the charge u/s 302, I.P.C. read with Section 149, I.P.C. read with Section 149, I.P.C. clearly mentioned the immediate intention of the Appellants, namely that the Appellants knowingly and intentionaly caused such injuries to Rajdhar with the pharsa and the axe respectively on account of which Rajdhar died in the hospital and which the Appellants knew were sufficient to cause his death in the ordinary course of nature. 11. The prosecution produced a number of witnesses in support of its case. No evidence was produced in defence. 12. The learned Sessions Judge came to the conclusion that the prosecution story was true and that Pratap Appellant had inflicted injury No. 1 with the pharsa and that Bhairon Appellant had inflicted injury No. 2 with the axe, which resulted in the death of the deceased. He held that Kukkan alias Sheo Charan had also inflicted an injury with a lathi on the head of the deceased. He, however, held that it was doubtful whether the other Appellants were present at the scene of the occurrence, and therefore, did not consider that the prosecution evidence satisfactorily established that the Appellants formed an unlawful assembly along with others. He further held that since three culprits alone had taken part in the occurrence and that no unlawful assembly was established, Section 149, I.P.C. could not be applied. He also held Section 34 also could not be applied, and that each of the culprits was responsible for his individual act. For this he relied upon the case of the Supreme Court in Daleep Singh and Ors. v. The State of Punjab AIR (1953) 364. Being of the view that death of Rajdhar was caused both by injuries 1 and 2 he held both the Appellants guilty of murder and sentenced them to death. He convicted Kukkan alias Sheo Charan u/s 323, I.P.C.; but we are not concerned with his case as he has not appealed. 13. Learned Counsel for the Appellants has not seriously contested the findings of fact recorded by the learned Sessions Judge to the effect that Pratap inflicted injury No. 1 and Bhairon inflicted injury No. 2; but he has strenuously urged that since injury No. 2 could not be said to have caused the death of the deceased, Bhairon, could not be held guilty of murder. He has also supported the view of the learned Sessions Judge that in view of the decision of the Supreme Court in Dalip Singh's case cited above, Bhairon could not be convicted u/s 302 read with Section 34, I.P.C. 14. Learned Government Advocate, on the other hand, has contended that on the medical evidence on the record the conviction of both the Appellants individually for the substantive offence u/s 302, I.P.C. was justified, and that, in any event, they could be convicted of that offence read with Section 34, I.P.C. 15. As the medical evidence was not clear as to whether death was caused as much by injury No. 2 as by injury No. l, we examined Dr. C.S.D. Misra, the Civil Surgeon of Allahabad, and he was of the opinion that injury No. 2 could have caused the death of Rajdhar but not necessarily, and that the chances were that a man might shrvive after receiving injury No. 2 alone rather than that he should die. In his opinion, the fracture of the triangular piece of bone was more probably due to injury No. 1 than to injury No. 2. In this view of the matter. It could not be said with certainty that death was due to injury No. 2, or that injury No. 2 was of such a nature that it would have caused death in the ordinary course of nature. It was not disputed that injury No. (sic) was of the aforesaid nature. 16. After having gone through the record we have no hesitation in upholding the finding of the learned Sessions Judge that the Appellants did inflict injuries Nos. 1 and 2 respectively by a pharsa and an axe. Injury No. 1, no doubt, was responsible for the death of the deceased and was certainly sufficient, in the ordinary course of nature, to cause his death. Further, we have the fact that the injury was inflicted by a sharp weapon which was very dangerous and deadly in its effect, and death indeed ensued as a result of the blow struck by Pratap, Appellant. He was, therefore, rightly convicted u/s 302, I.P.C. and learned Counsel for the Appellant Pratap has not seriously disputed this position. 17. The case of Bhairon, however, stands on a slightly different footing. He was, therefore, rightly convicted u/s 302, I.P.C. and learned Counsel for the Appellant Pratap has not seriously disputed this position. 17. The case of Bhairon, however, stands on a slightly different footing. As we have observed already, he could not be said to have inflicted an injury which was sufficient in the ordinary course of nature to cause death, and therefore, if we were to consider the substantive offence u/s 302 I.P.C. without the aid of Section 34, I.P.C. we could not convict him of murder. He could be convicted u/s 326. I.P.C. because the injury caused by him would have at least permanently disfigured the head of the deceased, even assuming that no bone was fractured. We are very doubtful whether the opinion of the learned Civil Surgeon of Allahabad is to be preferred to the opinion of the doctor who actually performed the post-mortam examination. Indeed we are inclined to the view that the opinion of the doctor who performed the post-mortem examination is more correct. But we proceed on the assumption that injury No. 2, if inflicted alone, would not be the injury which would bring the case u/s 302 I.P.C. standing by itself, unless Section 34 were called in aid. 18. The question then is whether, in the circumstance Section 34. I.P.C. can be applied and Bhairon Appellant can be convicted u/s 302, read with Section 34, I.P.C. That there was a common intention of the Appellants and of Kukkan who accompanied them, can admit of no doubt. They came to the scene of occurrence in a body and attacked the deceased with the instruments with which they were armed. They must be deemed to have had the common intention of rescuing the cattle by remonstrance, and if that failed, by force. Since the appleants Pratap and Bhairon were armed with deadly weapons, and having regard to what they actually did, that is to say, inflicted injuries with those deadly weapons on a vital part of the body of the deceased, it must be assumed that they had the common intention of killing Rajdhar if he did not release the cattle without the use of force or at least causing such bodily injuries to him as were sufficient in the ordinary course of nature, to cause his death. If this was their common intention, which we hold it was, both of them would be liable for the offence of murder, even though death was caused by the particular injury caused by Pratap and not by the particular injury caused by Bhairon. But it was argued that since Bhairon was not charged with that offence of u/s 302 I.P.C. read with Section 34, I.P.C. he could not be convicted u/s 302 read with Section 34, I.P.C. It was pointed out that he was charged u/s 302, read with Section 149 I.P.C. which offence has not been brought home to him because the unlawful assembly was not proved as the participation of five or more persons was not established. In support of this argument strong reliance has been placed on the Supreme Court decision in Dalip Singh's case already referred to by us. 19. In our opinion, Dalip Singh's case is distinguishable from the facts of the present case, and Bhairon Appellant can be convicted u/s 302 read with Section 34. 20. We have already quoted the charges which were framed against the Appellants. The charges made out that the common object of the two Appellants was to cause such injuries to Rajdhar with pharsa and axe which were sufficient to cause his death, and that in prosecution of that common object, they in fact intentionally caused such injuries to Rajdhar which they knew were sufficient to cause his death in the ordinary course of nature, and as a result of which Rajdhar died. These charges contain all the ingredients which would have been necessary if a charge u/s 302 read with Section 34 were framed. In Sheo Ram and Ors. v. Emperor 1948 A.W.R. (H.C.) 1, on similar facts it was held that a person can be convicted of an offence read with Sections 34, I.P.C., if the facts of the case justify it, and if the accused has not been misled in his defence and if there has been no failure of justice, irrespective of the fact whether the charge framed against him mentioned in Section 34, I.P.C. or not, or the charge framed against him was a charge of an offence read with Section 149, I.P.C. A large number of cases were reviewed and a reference was made to the relevant provisions of the Criminal Procedure Code, namely, to Sections 225, 232, 236, 237, 535 and 537. A reading of Sections 225, 232, 535 and 537 was held to disclose the intention of the Legislature that an error, which did not prejudice the accused in his defence, in stating either the offence or the particulars required to be stated in the charge, was not material and that no finding or sentence pronounced or passed by a court would be deemed to be invalid on such a ground. Sections 236 and 237 were referred to show that under their provisions even though an accused was charged either with the substantive offence or with the substantive offence read with Section 149, I.P.C. would justify his conviction under the substantive offence read with Section 34 I.P.C. Reference was also made to the Privy Council Case in Begu v. King Emperor ILR 6 Lah. 226 in which the question was whether an accused charged with an offence u/s 302, I.P.C. could be convicted of an offence u/s 201, I.P.C. and it was pointed out that Their Lordships held that he could be so convicted. That a person could be convicted of a substantive offence read with Section 34, I.P.C. when he was merely charged with that offence and Section 34, I.P.C. was not mentioned in the charge, is borne out by the decision of the Privy Council in Barendra Kumar Ghosh v. King Emperor ILR 52 Cal. 197. When the case was before the High Court it was pointed out by Cuming, J. (vide the report in The King Emperor Vs. Barendra Kumar Ghose, AIR 1924 Cal 257 ) that: - Section 34 and the connected Sections 35, 36, 37 and 38 create no substantive offence. They are merely declaratory of a principle of law, and in charging an accused person it is not necessary to cite them in the charge. 21. This view was not challenged before the Privy Council and the conviction of the accused u/s 302 read with Section 31 was confirmed. To the same effect are the cases Emperor v. Irshad Ullah Khan ILR 55 All. 607 Emperor v. Ranchhod Sursang ILR 49 Bom. 84, Bhondu Das v. King Emperor ILR 7 Pat. 758, Rama Boyan and Others Vs. Emperor, AIR 1934 Mad 565 , AIR 1934 227 (Lahore) , AIR 1941 214 (Lahore) , Tha Htin v. Emperor AIR 1935 Ran. 304, Mitho v. Emperor AIR 1934 Sind. 89. The case of Sheo Ram and Ors. 84, Bhondu Das v. King Emperor ILR 7 Pat. 758, Rama Boyan and Others Vs. Emperor, AIR 1934 Mad 565 , AIR 1934 227 (Lahore) , AIR 1941 214 (Lahore) , Tha Htin v. Emperor AIR 1935 Ran. 304, Mitho v. Emperor AIR 1934 Sind. 89. The case of Sheo Ram and Ors. v. Emperor 1948 A.W.R. (H.C.) 1, was followed in Kunwarpal Singh v. Emperor 1947 A.W.R. (H.C.) 401. A contrary view expressed by a single Judge of this Court in Emperor v. Bishwanath Tewari 1946 A.W.R. (H.C.) 157, was dissented from in these two cases and was overruled. The recent Supreme Court decision in Dalip Singh v. The State of Punjab AIR (1953) 364, was a case in which four persons were sentenced to death for the murder of two other persons. The Section Judge had convicted three others also and thus held them guilty u/s 302 read with S. 149, I.P.C. but the High Court had acquitted three of the seven persons and maintained the convictions of the four Appellants u/s 302 read with Section 149, I.P.C. The Supreme Court pointed out that since out of the seven accused persons, who were alleged to have formed an unlawful assembly, the High Court had acquitted three of them, the remaining four could not form an unlawful assembly and that, therefore, the conviction of the Appellants u/s 302 read with Section 149, could not stand. It was urged before the Supreme Court that the conviction of the Appellants could be maintained u/s 302 read with Section 34 I.P.C. The Supreme Court that disposed of this contention in one short sentence:- Nor is it possible in this to have recourse to Section 34 because the Appellants have not been charged with that even in the alternative, and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing. 22. Then Their Lordships examined the evidence tor themselves and came to the conclusion that the assailants were 5 or more persons and that the convictions of all the Appellants u/s 302 read with Section 149, I.P.C. was correct. 23. The whole law relating, to the contention u/s 34 I.P.C. was stated in one sentence already quoted. 22. Then Their Lordships examined the evidence tor themselves and came to the conclusion that the assailants were 5 or more persons and that the convictions of all the Appellants u/s 302 read with Section 149, I.P.C. was correct. 23. The whole law relating, to the contention u/s 34 I.P.C. was stated in one sentence already quoted. There was no discussion of the various circumstances in which a person could or could not be convicted under a substantive offence read with Section 34 when Section 34 had not been expressly mentioned in the charge. The only reason assigned for the view expressed by the Supreme Court was that the common intention requited by Section 34 and the common object required by Section 149 were far from being the same thing. It is obvious that the "common intention" mentioned in Section 34 and the "common object" mentioned in Section 149 are in fact not the same thing. There is a well known distinction between 'object' or 'motive' and 'intention. As pointed out by Salmond in his Jurisprudence, (tenth edition) at P. 382. A wrongful act is seldom intended and desired for its own sake. The wrongdoer has in view some ulterior 'object' which he desires to obtain by means of it. The levil which he does to another, he does and desires only for the sake of some resulting good which he will obtain for himself. He intends the attainment of this ulterior 'object' no less than he intends the wrongful act itself. His intent, therefore, is two fold, and is divisible into two distinct portions, which we may distinguish as his immediate and his ulterior intent. The former is that which relates to the wrongful act itself; the latter is that which passes beyond the wrongful act, and relates to the object or series of objects for the sake of which the act is done. The immediate intent of the thief is to appropriate another person's money, while his ulterior intent may be to buy food with it or to pay a debt. The ulterior intent is called the motive of the act. 24. Then the learned author goes on to observe: The ulterior intention of one wrongful act may be the commission of another. The immediate intent of the thief is to appropriate another person's money, while his ulterior intent may be to buy food with it or to pay a debt. The ulterior intent is called the motive of the act. 24. Then the learned author goes on to observe: The ulterior intention of one wrongful act may be the commission of another. I may make a die with intent to coin bad money; I may coin bad money with the intent to utter it; I may utter it with intent to defraud. Each of these acts is or may be a distinct criminal offence, and the intention of any one of them is immediate with respect to that act itself, but ulterior with respect to all that go before it in the series. 25. When, for instance, it is said that the common object of an unlawful assembly was to take possession of a piece of land and in the execution of that object a murder is committed, the commission of the murder is not the object of the assembly, but the person who actually commits it has the intention of committing that murder. In this illustration the object and the intention of the wrongful act of murder are different. The murder was committed only to facilitate the ultimate object. But it may happen that the common object of an unlawful assembly and the immediate intention with reference to a particular act may be the same. Thus in the above illustration if the ultimate object itself is the commission of the murder and the murder is committed, in that case the common object and the immediate intention are one and the same. In the present case the charge clearly stated that common object of the unlawful assembly was not only to illegally seize the bullocks from Rajdhar, but it was also to cause him such injuries as were sufficient to cause his death. In so far as the common object was to seize the bullocks from Rajdhar it was not equivalent to the immediate intention of causing injuries to Rajdhar. But in so far as the common object was stated to be the intention to cause injuries to Rajdhar, it was the same thing as the common intention to cause injuries to Rajdhar. In so far as the common object was to seize the bullocks from Rajdhar it was not equivalent to the immediate intention of causing injuries to Rajdhar. But in so far as the common object was stated to be the intention to cause injuries to Rajdhar, it was the same thing as the common intention to cause injuries to Rajdhar. Where the common object of an unlawful assembly is stated in the charge to be the same as would constitute the immediate intention with reference to the wrongful act committed by the accused then in such an event if an accused is charged for a substantive offence read with Section 149, I.P.C. no prejudice can be caused to him if he is convicted of that offence read with Section 34, I.P.C. In the case before the Supreme Court the judgment does not disclose what the charge against the Appellants was, since the Supreme Court made a distinction between 'the common object' and 'the common intention' it must be presumed that the charge in that case did not disclose the immediate intention of the wrongful act for which the Appellants were convicted. In any event, from what has weighed with Their Lordships it must be presumed that the law laid down by them refers only to that class of cases in which the common object of the unlawful assembly is different from the immediate intention of the wrongful act for which the accused are sought to be convicted and when they have not been charged with that immediate intension but only have been charged with different 'common object'. In the present case, as already pointed out the charge against the accused expressly refers to the immediate intention of the wrongful act, namely, the causing of the injuries to Rajdhar injuries which were sufficient in the ordinary course of nature to cause death. Accordingly, no prejudice can be caused to the accused if they are convicted u/s 302 read with Section 34, I.P.C., even though they were not charged with the substantive offence of Section 302 read with Section 34, I.P.C. The conviction, in our opinion, would be justified under the provisions of Sections 236 and 237, Criminal Procedure Code. 26. Accordingly, no prejudice can be caused to the accused if they are convicted u/s 302 read with Section 34, I.P.C., even though they were not charged with the substantive offence of Section 302 read with Section 34, I.P.C. The conviction, in our opinion, would be justified under the provisions of Sections 236 and 237, Criminal Procedure Code. 26. We, therefore, hold that Pratap Appellant was rightly convicted u/s 302, I.P.C. and that Bhairon Appellant should have been convicted u/s 302, I.P.C. read with Section 34, I.P.C. Where a person is convicted under a substantive offence simpliciter without reading it with Section 34, I.P.C. he may be convicted by an Appellant court for that substantive offence read with Section 34, I.P.C. for the simple reason that, as pointed out by Coming, J. Section 34, and the other sections following it are merely provisions of vicarious liability and do not create by themselves substantive offences. It is not necessity that these sections should be referred to at all in the charge. But a conviction under a substantive offence read with Section 149, I.P.C. stands on quite a different footing because Section 149 creates a substantive offence by itself though it is also based on the principle of vicarious liability. 27. As regards the sentence, we do not consider that any case has been made out for the reduction of the death sentence imposed on Pratap. But in the case of Bhairon the lessor penalty provided by law will meet the ends of justice. Even if Bhairon be held to have committed an offence u/s 326, I.P. C, we would have imposed the sentence of transportation for life under that section. We, therefore, dismiss the appeal so far as the conviction of the Appellants are concerned u/s 302. We confirm the sentence of death imposed on Pratap and direct that it should be carried out according to law. The reference is accepted to that extent. But we modify the sentence imposed on Bhairon Appellant and commute the sentence of death to transportation for life. In his case the reference is rejected. The sentence u/s 24 Cattle Trespass Act will stand. 28. As the question decided in this case is of sufficient importance, we allow leave to appeal to the Supreme Court.