Judgment Ahmad, J. 1. This is a reference under Sec.374, Criminal P. C. for the confirmation of sentence of death on Lala Mahto, who has been convicted under Sec.302, I. P. C. for having committed, the murder of his nephew Dhandabar Mahto. The condemned prisoner was tried along with his father Keshata Mahto and his brother Chutu Mahto. They have also been convicted under Sec.302/34, I. P. C. on the same charge on which Lala Mahto was tried and have been sentenced to transportation for life. The last two accused have furlher been convicted under Sec.324, I. P. C. for having assaulted one Nitai Mahto (P. W. 7) and have been sentenced thereunder to undergo rigorous imprisonment for a period of two years. This reference has been heard along with the appeals filed by all the three accused. 2. The occurrence resulting in the death of Dhandabar and the assault on Nitai Mahto arose out of a dispute for a piece of land known as Pain or Bulan. It lies in village Muru within the jurisdiction of police station Chandil in the district of Manbhum by the side of a river known as Sankhai. It appears to be a low land where the water of the field generally accumulates. On the east of this is admittedly the field of the deceased which is known as Hir Khet. On the south of it, as it appears from the sketch map prepared by the police, is a field belonging to the appellants. Just adjacent to it on the west is a parti high land. Further west to the high land on the north-western side is some other low land which is claimed by the accused as their field having at the relevant time some kodo crops standing on it. It is admitted that at a short distance from that field on a still north-western side is a house on a high land belonging to the appellants. 3. The occurrence is said to have taken place on 8-8-1953 at about 7 A.M. in the aforesaid field. On that day, according to the prosecution, the deceased along with his sala Nitai (P. W. 7), his nephew Bam Kristo (P. W. 16) and his bagal Kisto Mahto (P. W. 14) had gone to that field with two pairs of ploughs and four heads of bullocks and buffaloes. On that day, according to the prosecution, the deceased along with his sala Nitai (P. W. 7), his nephew Bam Kristo (P. W. 16) and his bagal Kisto Mahto (P. W. 14) had gone to that field with two pairs of ploughs and four heads of bullocks and buffaloes. On their arrival there Ram Kristo Mahto and Kisto Mahto started ploughing the north-western corner of that field while the deceased and Nitai (P. W. 7) began repairing and making ridges of the field with their spades with a view to stop the flow of water out of it. While they were thus busy with their work, the two appellants Lala and Chutu came to the place each armed with a tabla. It is said Lala had also then a bow and arrows with him. They asked the prosecution party to stop ploughing and claimed that the land was a part of their low land situated close to it on the north-western side. The deceased in reply claimed the land as his and asked Lala to produce his paper, if any, to prove that the land belonged to him. At this Lala sent his brother Chutu to call his father. On his direction Chutu left to call his father, while Lala stayed on there. In the meantime Pirangi Momin (P. W. 9) happened to arrive in the field to have a biri smoke. He stayed there for some time and Lala was all this time present there on a ridge with a tabla, a bow and arrows in his hands. While Firangi was still there, Chutu eventually arrived along with his father Keshab each with a tabla in his hand. It is said that soon on his arrival Keshab ordered Lala to assault the deceased whereupon Lala hit on the head of the deceased with the blunt side of his tabla. The deceased thereupon fell down. The matter, however, did not rest there. It is alleged that even after his fall Lala inflicted several other blows on him and this time with the sharp end of his tabla. Nitai (P. W. 7) tried to persuade him to desist from the assault. This enraged Keshab and he assaulted Nitai with his tabla and the appellant Chutu also joined his father in the assault on Nitai. Nitai (P. W. 7) tried to persuade him to desist from the assault. This enraged Keshab and he assaulted Nitai with his tabla and the appellant Chutu also joined his father in the assault on Nitai. In the course of the assault on him Nitai attempted to run away but in spite of his efforts he eventually fell down on the infliction of the last blow on him at a short distance from the place and became unconscious. Kisto Mahto in the meantime slipped away from there out of fear and Ram Kristo went running to his home to inform Manjora (P. W. 13), the wife of the deceased, about the occurrence. Firangi Momin (P. W. 9) too after the assault left the place. The accused persons, it appears, after the assault ran away from there. On the hulla raised in the village, a number of persons, including Gourinath Sonar (P. W. 1), Madhusudan Babu (P. W. 5), Atul Chandra Conar (P. W. 6), Falari Kamar Chaukidar (P. W. 19) along with others arrived at the scene. On their arrival, they found Dhandabar and Nitai lying there injured at a short distance from each other. Dhandabar it is said, was then still alive and on enquiry he told them the names of the three appellants as their assailants. Ram Kristo after some time also returned to the place with his aunt (P. W. 13) carrying some rice and milk. Some of it was given to Dhandabar by his wife, and, in the course of that, to her as well Dhandabar gave out the name of Lala as his assailant and the names of the other two appellants as the assailants of Nitai. The two injured were then carried on two different cots and the party carrying the cots proceeded towards the thana. At a distance of two bighas from the place of occurrence as soon as the party crossed the river which lay on their way Dhandabar expired and his cot was left there. The other cot whereon Nitai was lying was taken to the thana where the party reached at about sunset on the same day i.e. on 8-8-1953. It is said that Nitai was all along on the way unconscious but he regained his consciousness at the thana. The other cot whereon Nitai was lying was taken to the thana where the party reached at about sunset on the same day i.e. on 8-8-1953. It is said that Nitai was all along on the way unconscious but he regained his consciousness at the thana. On his statement the First Information Report (Exhibit 4) was recorded there by the officer-in-charge (P. W. 21) at 6 P.M. The thana is at a distance of about 18 miles from that place. The case of the prosecution is that apart from the question of distance they had to cross the river and hence the delay in lodging the First Information Report. The Sub-Inspector on examining the complainant sent him to Chandil Medical dispensary for first aid and thereafter to Purulia Sadar hospital for his medical examination. Having done all the preliminaries and having examined the witnesses who had gone along with the complainant, the Sub-Inspector himself started for the place of occurrence on the same night at about 11 P.M. He reached the village next morning on 9-8-1953 at about 7 A.M. On his arrival there he found a dead body on a cot lying at a distance of 70 steps north from the bank of the river Sankai. That dead body was identified by the villagers to be that of the deceased. On identification he prepared the inquest report and thereafter sent the dead body to Purulia hospital for post-mortem examination. He then went to the spot. There he found some blood at a point C shown in the map within plot Bulan. He scraped and seized it. In his evidence the description given by him of the place of occurrence is as follows: "The position A of my map was a Bulan, a sort of drain like thing. There was no wafer accumulation at that time. But the place was muddy and was ploughed up. A portion of that area was freshly ploughed and other ploughing was old. The whole stretch of land to the north of position A was a tanr (sic) land about 3 ft. higher in level, with Palas trees thereon. At a distance of 180 steps north-west from position C was an out-house. Immediate west of the Bulan land was a piece of a high land. There was no ploughing mark on that land. It was parti. higher in level, with Palas trees thereon. At a distance of 180 steps north-west from position C was an out-house. Immediate west of the Bulan land was a piece of a high land. There was no ploughing mark on that land. It was parti. Further west of that high land was a plot with standing Kodo crops. To the contiguous east of the land shown by A In my map was a paddy field with transplanted paddy. It is shown by B in my map." He further deposed that on the night previous to the occurrence there was rain as a result of which he could not find trace of blood at the place where Nitai was alleged to have fallen and assaulted. According to him, there was no ridge between A and B of his map nor there was any ridge between A and C. It is further said that there was no ridge on the western side of Bulan. On investigation the police submitted chargesheet giving rise to the trial of the appellants. 4. The prosecution in support of its case relied on the evidence of four eye-witnesses, namely, Nitai (P. W. 7), Firangi Momin (P. W. 9), Kista Mahto (P. W. 14) and Ram Kristo (P. W. . 16), who claimed to be present at the time of the occurrence and to have seen the same. There was another batch of witnesses like Gourinath Sonar (P. W. ), Madhusudan Babu (P. W. 5), Kamdeo Mahto (P. W. 12) and Manjora (P. W. 13), who at the trial claimed that they on their arrival at the spot found Dhandabar still alive, and on enquiry he told them that he had been assaulted by the appellant Lala and Nitai by the other two appellants, namely, Keshata and Chutu. I need not refer here to the evidence of other witnesses who were either tendered or who deposed on facts which were more or less of a formal character. The Sub-Inspector, who investigated the case, is P. W. 21. 5. Mr. S.K. Mazumdar appearing for the appellants has taken us through the evidence of all the eye witnesses and other important evidence on the record. The Sub-Inspector, who investigated the case, is P. W. 21. 5. Mr. S.K. Mazumdar appearing for the appellants has taken us through the evidence of all the eye witnesses and other important evidence on the record. We have carefully examined the evidence and we find that the prosecution story as stated in the First Information Report is consistently corroborated by all the eye witnesses who claim to have seen the occurrence and to have been present there at the time of occurrence. There is nothing in the cross-examination of these witnesses which can be a ground for holding that they either deposed lie or that they perjured themselves in stating facts. So far as P. Ws. 7, 14 and 16 are concerned, they were present there from before and were a party to the act of ploughing and preparing the ridge in the field. In the case of Nitai Mahto the fact that he was seen with in juries on his person soon after the occurrence further gives support to the conclusion that he was present at the time of assault. There is no evidence or even a suggestion that he was assaulted at any other place or in the course of some other transaction. Neither can it be said that the injuries on his person were of a self-inflicted nature. The doctor examined Nitai on 9-8-1953 at 11-15 A.M. and the following five injuries were then found on his person: " 1. Incised wound 4 1/2" x 1/2" x scalp deep on the top of head. 2. Incised wound 2" x 1/8" x scalp deep on the left side of occiput. 3. Incised wound 2" x 1/4" x 1/4" on the dorsum of the left wrist. 4. Incised wound 3 1/2" x 1/2" x 1" deep on the left lumbar region. 5. Incised wound along the whole length of the left ring finger, and a small cut In the web of the left ring and middle fingers." 6. According to the opinion of the doctor they were all caused by a sharp weapon like tabla. This act is in full conformity with the statements made by all the witnesses. A suggestion made to P. W, 14 was that he along with the deceased, Nitai, (P. W. 7), Firangi Momin (P. W. 9). According to the opinion of the doctor they were all caused by a sharp weapon like tabla. This act is in full conformity with the statements made by all the witnesses. A suggestion made to P. W, 14 was that he along with the deceased, Nitai, (P. W. 7), Firangi Momin (P. W. 9). and Ram Kristo (P. W. 16) had on the challenge made by Keshab chased him in the kodo field of the appellants and it "was in the course of that chase that Nitai fell down in that kodo field. This suggestion also on the face of it by implication mukes a concession in favour of the prosecution at least to the extent that P. Ws. 7, 9, 14 and 16 were present at the time of the occurrence. This inference is further supported by the fact that there is no suggestion against them that they were not present at the time of occurrence. The only serious criticism stressed in this Court against the eye witnesses was that they were all persons interested in and related to the family of Dhandabar. It is the admitted case of the prosecution that Nitai Malhto (P. W. 7) is the husband of Dhandubars sister and that Ram Kisto (P. W. 1G) is his brothers son. It is also not denied that Kisto Malito (P. W. 14) was the ploughman of the deceased. As for Firangi Momin, the prosecution does not admit that he was at all a person connected with them, though, according to the defence, he was one of the helpers of the prosecution party and had taken part in the occurrence. There is, however, no evidence whatsoever in support of thin suggestion by the defence against P. W. 9. To the contrary, the evidence discloses that he had no interest in the land and was interested in no party. According to him he had gone on that side to see a field wherein he was working on behalf of its owner, possibly under the understanding that he was to get it on batai, and it was only on his way back from that land that he happened to stay Hear the land in dispute in order to have a biri smoke. This statement of the witness does not appear to me to be a false one. This statement of the witness does not appear to me to be a false one. Had he, in fact, as alleged by the defence, gone there along with the members of the prosecution party to take forcible possession of the land he and his party members should have taken arms along with them to meet any exigency which might arise. There is no evidence whatsoever that any member of the prosecution party and much less this witness had any weapon with them, I therefore, think that the suggestion of the defence against this witness or their story about the occurrence is not at all correct. In my opinion, he is" an independent witness. As agninst others as well there is no ground for holding that they are not worthy of reliance. The mere fact that they happened to be relations or were interested in some other way with the deceased is not a ground and cannot be a ground to discard their evidence. Their evidence on merits appears to me to be quite sound and Worthy of reliance. These witnesses, each and all of them have deposed both on the point of possession and also on the mode and manner of the occurrence have fully stood the test of cross-examination. Their evidence gets full support from the nature of injuries on the person of Nitai and those found on the dead body of Dhandabar and also from what the Sub-Inspector saw fit the place of occurrence. I, there-fore, think that the learned Additional Sessions Judge was right in relying on the testimony of these witnesses. 7. The defence did not file any written statement but from what it suggested in cross- examination to the prosecution witnesses and also from the statements of Keshab and Chutu made by them in their examination under Sec.342 Criminal P. C. appears that their case was that the land known as Pain or Bulan belonged to them and it was a part of their low and situated in the north-western direction from it and also that the dispute in fact start- ed in the low and having kodo crop therein at that time which admitedly belonged to the abused. According to the defence it was the prosecution party which was the aggressor and it was that party that had gone there to forcibly reap their kodo crop and to plough their field. According to the defence it was the prosecution party which was the aggressor and it was that party that had gone there to forcibly reap their kodo crop and to plough their field. This led to the dispute and it was for that reason that the injured Nitai (P. W. 7) was seen lying near about that land. In my opinion, there is no substance in this allegation. The defence did not examine any witness in support of its claim of possession over the land in dispute nor did it file any document of a reliable character which could establish its case. On the other hand, theprosecution did examine a number of witnesses and they, as already stated above, have been found to be reliable. I, therefore, think that the case of possession set up by the accused is not at all true. The land in dispute is conclusively proved to be in the possession of the prosecution party. As for the place of occurrence also, there is no iota of evidence that the dispute started on the low land lying on the north-western side of the land in dispute. Mr. Mazumdar in support of this part of the defence case laid reliance on a portion of the evidence of the Sub-Inspector. That reads: "It is not (sic) down in my diary in the statements of any of the witnesses if and where Nitai was said to have fallen." Then the Sub-Inspector in his evidence further said; "It is (sic) down in the statement of Madhu-sudan Aditya Baboo that Nitai was lying a little away from Dhandabar. I inspected that place. I found no blnod there. The ground was very hard and there had been a rain in the previous night. I found no ridge on the spot between A and B of my map. There was no ridge between A and C either. There was no ridge on the western side of the Bulan. The land adjacent west to what I have shown as Bulan in the map by A is almost in the same level without there being any ridge or demarcation line to show the western limit of the Bulan, though one was slightly different from the other in feature." These statements no doubt prove that the injured body of Nitai was found near the other field away from the place where Dhandabar was lying. But, in my opinion, this small circumstance alone cannot be a ground for accepting that the dispute started in the kodo field in the neighbourhood of which Nitai was "found lying injured. According to the prosecution Nitai had tried to run away in the course of assault from the place of occurrence and hence it was quite natural that he on his fall must have been seen lying at some place away from the place of occurrence. The other contention of Mr. Mazumdar was that the fact that there was no ridge seen by the Sub-Inspector between the land known as Pain or Bulan and the other low land lying on the north-western side of it supports the case that Bulan was a part of the other land. This contention also, I think, is without substance. There may be many reasons for the absence of ridge between them. Mere continuation of one land into another without any ridge between them is no evidence of oneness in title or possession, especially in a place where soil is not all along productive as in the case of lands Where occurrence took place. The presence of blood and other circumstances found by the Sub-Inspector on the land in dispute and also the evidence of the witnesses prove beyond reasonable doubt that the occurrence took place on the land in dispute and not on any other land. I, therefore, hold that the prosecution has proved the case beyond reasonable doubt. 8. The prosecution also laid reliance in support of its case on the evidence of other four witnesses, namely, P. Ws. I, 5, 12 and 13, who deposed that certain declarations had been made to them by Dhandabar just before his death. In my opinion, must reliance cannot be placed on their evidence. So far as P. Ws. 1. 5 and 13 are concerned their claim was that Dhandabar stated to them that he was assault-ed by Keshab and his two noun Lala and Chutn. This on the face of it is wrong. It has never been the case of the prosecution at any stage that Dhandabar was assaulted by all the three. So far as P. W. 12 is concerned, he no doubt claimed thai according to the declaration made to him Dhandabar was cut by the accused Lala only. This is exactly what has been stated at the trial by the prosecution. So far as P. W. 12 is concerned, he no doubt claimed thai according to the declaration made to him Dhandabar was cut by the accused Lala only. This is exactly what has been stated at the trial by the prosecution. I, however, feel that as this statement is not consistent with the statement of the other three on this point it may be that what the witness stated was not only based on the declaration made to him by Dhandabar but also on the information he got at the place on his arrival there. In these circumstances it is not safe to rely on the evidence of these witnesses. That, however, does not affect the prosecution case, which, in my opinion, is proved to be true. 9. The only other point left for consideration is as to the offence committed by each of the accused persons. On the evidence as it stands there can be little doubt that the charge against Lala Mahto for committing on offence under Section 302. I. P. C. is fully proved. The postmortem examination on the body of the deceased was conducted by the doctor on 10-5-53 at 12-30 P.M. In the course of his post-mortem examination he found the following injuries on the person of the deceased: " 1. Lacerated wound 1" x 1/4" x bone deep on the volt of head in the right parietal region. On dissection blood clot was found under the scalp. The fractured bone was circular with a diameter of 2". The margining were torn. The brain matter was pale. 2. Incised wound 5" x 1" skin muscles and bone on the back at the level of 10th thoracic vertebra. On dissection it was found that the body of the 10th thoracic vertebra was cut and the spinal column was exposed. 3. Incised wound 4" x 1 1/2" x skin muscles and bone above the left wrist joint. The dissection showed the presence of blood clot in tissues. The radius and the ulna were cut 2" above the left wrist joint. 4. Incised wound 1" x 1/2" x bone. Dissection showed the presence of blood clot in the tissues. The left humerus was fractured 3" above left elbow joint. 5. Incised wound 2 1/2" x I" x bone. The right fibula was cut 2" above the right ankle joint which was confirmed by dissection. 6. 4. Incised wound 1" x 1/2" x bone. Dissection showed the presence of blood clot in the tissues. The left humerus was fractured 3" above left elbow joint. 5. Incised wound 2 1/2" x I" x bone. The right fibula was cut 2" above the right ankle joint which was confirmed by dissection. 6. Incised wound 3" x 2" x bone, 4" above the left ankle joint. The Tibia and fibula of left leg cut, which was confirmed by dissection," In his evidence before the committing court which was tendered at the trial he deposed that the deceased died of shock due to the above injuries and that all incised wounds could be caused by tabla." These injuries clearly indicate that the act committed by the assailant was brutal and in doing what he did he committed an offence no other than that of murder. The evidence discloses that the deceased had fallen after the very first, blow and that the first blow had been by blunt side of his tabla. Had the matter ended there, the consideration would have been based on a different footing. The matter, however, did not unfortunately end there. Even after this fall, the assailant inflicted further assault on his person and this time with the sharp edge of the tabla. That could be only consistent with the intention of finishing him to death. I, therefore, hold that he has been rightly held guilty under Sec.302, I. P. C. On the point of sentence as well, there is nothing in his case which may be taken into consideration to mitigate the offence committed by him. The other side was not armed with any weapon. There is no evidence they did any aggressive act against the accused persons or that they assaulted any of them. They were all along in the course of discussion quite reasonable but in spite of their reasonable attitude Lala Mahto without any justification committed the brutal assault on Dhandabar with the sharp weapon which resulted in his death. Ho has in the circumstances, been rightly sentenced to death under Sec.302, I. P. C. 10. Then there is the question about the offence committed by Keshab and Chutu. Ho has in the circumstances, been rightly sentenced to death under Sec.302, I. P. C. 10. Then there is the question about the offence committed by Keshab and Chutu. There is no doubt that they did assault Nitai and for that they have been rightly convicted under Sec.304, I; P. C. and each of them has been sentenced thereunder to undergo rigorous imprisonment for two years. These convictions or the sentence imposed on Keshnb under Sec.324, I. P. C., have not been challenged seriously and I think the order to that extent is fully supported by the evidence on the record. Mr. Mazumdar on this part of the story only pressed the question of sentence imposed on Chutu under Sec.324, I. P. C. He is a lad of 18 and it was not he who began the assault on Nitai and there is no evidence that he was in that assault very vindictive and, therefore, in his case I reduce the sentence under Sec.324, I. P. C. to a period of one year only. 11. What, however, was the main argument advanced in the case by Mr. Mazumdar was that there is no evidence on the record to justify their conviction for the constructive liability under Sec.302/34, I. P. C. According to his contention they had admittedly not taken any part an the assault on Dhandabar. All that Keshab, according to the prosecution, did was that he on his arrival said "Assault the rascals" whereupon Lala inflicted the blow on Dhandabar. So far as Chutu Mahto was concerned, he did not even do that much, and there is no evidence that he in any way instigated Lala either by his gesture or movement to do what Lala Mahto did. These facts, therefore, raise the question as to whether these two appellants can at all be held guilty constructively for the offence of murder committed by Lala; if the answer is in the affirmative then the other question is as to what is the offence for which they can be held constructively liable. 12. The learned Standing Counsel appearing for the State has contended that the circumstances on the record and the very fact that each one of the three accused came armed with sharp weapons clearly indicate that they had a common intention to commit assault on the prosecution party. 12. The learned Standing Counsel appearing for the State has contended that the circumstances on the record and the very fact that each one of the three accused came armed with sharp weapons clearly indicate that they had a common intention to commit assault on the prosecution party. That being so, each one of them was liable constructively for the criminal act done by the other in the course of committing the assault. The learned Additional Sessions Judge in holding these two appellants guilty for the constructive liability -under Sec.302/34, I. P. C., has said: "The next question is about the other two accused. It has been proved that they were both present, each armed with a tabla. As a matter of fact it was after an order for assault by the father that the accused Lala launched his assaults on the deceased. Accused Lala was armed with a sharp cutting instrument. He could well see the consequences of his order. It is not that accused Lala stopped after giving one or two blows, but he gave as many as five blows to the deceased. The other two accused did not try to prevent him from inflicting the injuries on the deceased. On the other hand, when Nitai (P. W. 7), made an appeal to accused Lala not to assault the deceased, the other two accused ran after him, and gave him several blows with their respective tablas. They clearly did not like the idea of Nitais protesting and this was obviously with a view to enable the assailant Lala to continue his assaults on the deceased. It seems, therefore, that they also shared the common intention of the assailant to kill the deceased. Even if the common intention was to give only a beating to the accused, and not to kill him, the other two accused would come in for their criminal knowledge, in that, the instrument of attack was a sharp edged weapon and death in such a circumstance was the most likely result of the beating. Even if the common intention was to give only a beating to the accused, and not to kill him, the other two accused would come in for their criminal knowledge, in that, the instrument of attack was a sharp edged weapon and death in such a circumstance was the most likely result of the beating. As I have said instead of making any attempt to intervene and prevent accused Lala from continuing his assaults, they both disabled a friend of the de-ceased, who wanted to come to his rescue by making an appeal to the assailant." The grounds, therefore, relied upon by the learned Additional Sessions Judge for holding in favour of constructive liability against the two appellants are firstly that it was at the order of Keshab Mahto that the assault by Lala on the deceased was inflicted by a cutting instrument; secondly, that the two appellants did not prevent the assailant from inflicting the fatal injuries on the deceased; thirdly, that the two appellants, on the other hand, disabled Nitai and prevented him from rescuing Dhandabar from the assault by Lal when he was going to save him; and lastly, that even if the minimum common intention was to commit an assault only on the prosecution party, the presence of a sharp edged weapon in the hand of Lala clearly indicated that the intention underlying the assault was to inflict such injuries as were likely to cause death. The first ground cannot apply as against Chutu Mahto as the order was given only by Keshab. The other ground though applicable as against both of them does not appear to be clearly borne oat by the evidence on the record. It is true that in the course of the assault by Lala on Dhandabar the two appellants Keshab and Chain did not, intervene in any way to save him from the assault, but this fact alone cannot lead to the conclusion firstly that they were in a position to do it but they knowingly did not do it and secondly that if they did not do it, the only intention on their part in following the line of attitude was that Dhandabar should be killed or should be inflicted blows which might result in his death. The prosecution case itself says that the first blow by Lala was with the blunt side of the tabla. The prosecution case itself says that the first blow by Lala was with the blunt side of the tabla. It cannot be said with accuracy as to when the assault on Nitai by Keshab and Chutu began. If it began at the very first blow by Lala on Dhandabar with the blunt edge of the tabla, it is difficult to hold that at that time there could be any indication to the two appellants that the assault by Lala on Dhandabar was to result in any fatal injury on him as the blow given was with the blunt edge, and if soon after the first blow they got themselves engaged with Nitai may be for any reason, there was no occasion for them to intervene in the assault on Dhandabar. Further the assault on Dhandabar could not have taken a long time. It was instantaneous. It was in any case, not like this that, Lala was assaulting Dhandabar with a sharp weapon and the other two appellants were simply witnessing it. On the contrary, the two other appellants also perhans soon after the "first blow got themselves engaged with Nitai, may be for the reason that he protested against the action of Lala Mahto. The protest, if any, must have been made, I think, at the very first blow by the blunt edge of the tabla. In these circumstances, it cannot be held with certainty that mere non-intervention on the part of these two appellants in the assault on Dhanclabar is sufficient to lead to the inference that they were a party to the intention of Lala in inflicting such blows on Dhandabar as might result in his death. The third ground is equally not very stable. The assault in" Nitai by the two appellants may be consistent either with the theory that they wanted to assault him for the reason that he should Dot be in a position to save Dhandabar from assault by Lala or that they wanted to punish Nitai merely for intervening in the matter which concerned the family of the contestant only and wherein he had no interest, being a stranger to the family. If the motive of the two appellants for ths assault on Nitai was the latter, namely, to punish him for his intervention in their family matter, that cannot then possibly lead to the inference that in doing that their intention was necessarily to prevent him from saving Dhandabar. The last ground by the trial Court is also, in my opinion, note very logical. Even if it be accepted for the sake of argument that there was originally an intention on the part of the appellants to assault the prosecution party, that intention taken along with the fact that Lala was armed with a sharp cutting instrument cannot again necessarily lead to the conclusion that the common intention was to cause such injuries as were likely to cause death. The said two facts could be consistent also with the intention to cause such injuries as were only grievous in nature though not sufficient to cause death. Therefore, on that ground the constructive liability can extend up to the extent of committing the offence under Sec.326, I. P. C. only. What, however, I am doubtful is that perhaps originally the common intention of the appellants was not either to assault or to inflict any injury but only to defend themselves in case they wore attached by the other side. It is commonly known that whenever there is a dispute for land in this part of the country, the parties, if they get an opportunity, at once get themselves armed in order to defend themselves in case the assault, if any is started by the other side. Therefore, tha mere presence of instruments in the hands of all the three accused cannot lead to the only conclusion that they had from the very beginning come there with an intention to commit assault. That is equally consistent with the intention to defend themselves from the attack, if any, by the other side. Further it should be remembered in this connection that there was no prearranged plan from before worked out between the father and his two sons. In fact the evidence is that all the three did not even come together to the field. At first the two brothers came and then one of them was sent back and thereafter he again came but this time along with his father. In fact the evidence is that all the three did not even come together to the field. At first the two brothers came and then one of them was sent back and thereafter he again came but this time along with his father. These facts show that there had been no previous thinking between them on the point before the father reached the place of occurrence. There to, therefore, no sufficient material to hold with any certainty that from the very beginning the intention in the minds of the appellants was to assault the prosecution party, All that can be said is that though there was no such intention in the beginning some such common indention did develop at the spot at least between Lala and Keshab and it was that common intention which provoked Keshab to give order to Lala for the assault on Dhandabar and for Lala to inflict blows on Dhandabar. On the record there is no evidence of any overt act committed directly by Chutu Mahto to indicate that he was also a party to the common intention which developed then at the spot excepting his nautral inaction in not raising any protest against the order of assault. Chutu Mahto is a young lad of eighteen. The failure on his part in not raising any protest is not inconsistent with the fact that he was taken by surprise as to the Ultimate result which ensued and he had then no equilibrium left in his mind to judge the matter in its proper perspective, through Subseqnently seeing Keshab fighting with Nitai he joined in it in his anxiety to help his father who rightly or wrongly got himself involved in it. I have my own doubts, therefore, that Chutu Man to ever became a party to the common intention of assault on Dhandabar. He, therefore, cannot be held guilty constructively for the assault by Lala on Dhandabar. 13. The case of Keshab, it is true, stands slightly on a different footing. It is clear that it was at his order that the assault by Lala on Dhandabar began and that with a sharp weapon These facts cannot reasonably eliminate the presence of common intention between Lala and Keshab for the assault on Dhandabar. 13. The case of Keshab, it is true, stands slightly on a different footing. It is clear that it was at his order that the assault by Lala on Dhandabar began and that with a sharp weapon These facts cannot reasonably eliminate the presence of common intention between Lala and Keshab for the assault on Dhandabar. The only question that deserves consideration in his case is as to what was the common intention between them which, as stated above, developed at the spot. The assault by a sharp weapon could cause either grievous injuries or cause such injuries as might result in death. Here again it has to be remembered that the first blow by Lala Mahto was given by the blunt side of the tabla and perhaps soon thereafter Keshab got himself engaged in the fight with Nitai. Therefore, these facts do not eliminate conclusively the probability of the fact that the common intention between Lala and Keshab was in fact only to cause grievous injury and not to cause such injuries as might result in his death. In my opinion, subsequent assault by him with the sharp edge of the tabla was most likely his individual act. This gets support from the fact that what Keshab directed his son Lala to do was to assault the rascals and not to kill the rascals. To assault does not necessarily mean either to kill or to inflict such injuries as may result in death. It is well established rule of law as laid down in the case of -- Mahbub Shah V/s. Emperor, AIR 1945 PC 118 (A), that the inference of common intention within the meaning of Sec.34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. The same principle, in my opinion, Will apply even when a conclusion has to be drawn as to what is the exact common intention entertained between the different individuals if they are found to have one or when a conclusion has to be drawn as to whether a particular criminal act done by one is in furtherance of the common intention of all. 13A. 13A. For the reasons stated above, I think it is safe to hold that the common intention of assault on Dhandabar between Kashab and his son Lala was confined to the extent of causing grievous injury only and therefore Keshab is constructively guilty for the offence committed by Lala under Sec.328/34 only and not under Sec.302/34, I. P. C. 14. It has been argued by the learned Standing Counsel that even if the common intention between Lala and Keshab was only to cause grievous injury, Lalas act of inflicting fatal blows resulting in the death of the injured was committed in the course of the execution of the original common intention and, therefore. Keshab is also constructively liable for that offence under Sec.302/34, I. P. C. In support of this contention reliance has been placed by him on the principles of law laid clown in the cases of AIR, 1945 PC 113 (A), -- Mamand V/s. Emperor. AIR 1946 PC 45 (B), -- State V/s. Hira Dubey, AIR 1932 Pat 135 (C) and -- Barendra Kumar Ghosh V/s. Emperor, AIR 1935 PC 1 (D). In my opinion, the contention is not sound. Sec.34, I. P. C., reads: "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.", The crucial test as to the applicability of constructive liability under this section is to be found in the phrase "in furtherance of the common intention of all". It is, therefore, clear that a particular criminal act done by an individual in order to constitute a constructive liability against others must be one which, is done in pursuance of a common intention as a step-in-aid to attain it or as a means to the end underlying that or must be one which is a link in the chain of acts all originating out of the common intention and culminating in its attainment. In case a particular criminal set is commited not as a means to the end cantemplated by the common intention or not as a step-in-aid to attain the common intention or in case it does not constitute a link in the chain of acts all originating out of the common intention and culminating in its attainment, it will not constitute a basis for constructive liability under Sec.34 against others who may be a party to the common intention. Once the criminal act becomes independent of the common intention though done in pursuance to an intention same or similar to that common intention or giving rise to consequences same or similar in nature as contemplated by the common intention, the rule of constructive liability as laid down under B. 34 ceases to operate and others, who are a party to the original common intention, will not be held liable constructively for that criminal act. The question whether the criminal act of a particular individual is the outcome of the common intention or that it has been committed in furtherance of the common intention of all is in each case purely a question of fact to be decided on the facts and circumstances of that case. No hard and fast rule can be laid down for judging as to when a criminal act done by an individual doer is one which is the outcome of the common intention or is the act -done in furtherance of the common intention or is one independent of it. The difficulty in this connection arises due to the fact that at the time of occurrence the mind of each individual constituting the party having a common intention gets abnormally active in the course of occurrence and as a result thereof each mind develope a tendency to act in its own way and not to keep itself confined to the line defined by the common intention. That being so, particular care has always to be taken to analyse facts carefully and to examine the inter-connection be-tween them in order to find out as to what was done in furtherance of the common intention and what was not done in furtherance of it. That being so, particular care has always to be taken to analyse facts carefully and to examine the inter-connection be-tween them in order to find out as to what was done in furtherance of the common intention and what was not done in furtherance of it. Moreover, the time generally taken by the actual occurrence is usually very short and it leaves practically little opportunity for others to express directly or by implication their disasso-ciation from the particular act which according to them is not in furtherance of the common intention. These facts, in my opinion, demand that unless the facts lead to the irresistible conclusion that the criminal act done by an individual doer is in furtherance of the common intention, the doctrine of constructive liability under Sec.34 should not be resorted to for a conviction of others for that act. And, therefore, when the circumstances give rise to a number of alternative inferences, one of which indicates that the act done by an individual may be the result of common intention while others do not lend support to that conclusion, the safer course is to hold that the act done by that individual was his personal act and not done in pursuance of the common intention. Where, however, the conclusion is irresistible that the criminal act done by the doer is nothing but in furtherance of the common intention then low will at, once come into play find it will saddle a constructive liability under Sec.34 on all others who are a party to the common intention. Sometimes the finding of fact in a particular case on the point as to whether in a particular set of circumstances the criminal act done by the doer is in furtherance of the common intention of all is wrongly taken as a rule of law laid down for judging the liability under Sec.34. I think it is wrong. It needs always be remembered that the rule of law laid down in Sec.34, I. P. C., comes into play only when as a fact it has been found that the criminal act done by an individual is in furtherance of the common intention and not without it. 15. I think it is wrong. It needs always be remembered that the rule of law laid down in Sec.34, I. P. C., comes into play only when as a fact it has been found that the criminal act done by an individual is in furtherance of the common intention and not without it. 15. Coming now to the authorities cited by the learned Standing Counsel, I think that they do not in the least give support to the view that any criminal set found to have been done by an individual in the course of the execution of the common intention becomes automatically an act done in furtherance of the common intention. 16. The case of AIR 1925 PC 1 (D) chiefly deals with the meaning and also implication of the word act used in the first part of the section and also in its latter part. The point raised there was as to whether the act done by several persons should be the same or could it be in order to constitute constructive liability similar or diverse also. Their Lordships after an elaborate discussion on the subject held that the section never contemplated that the act done by several persons in order to constitute constructive liability under the term of Sec.34 should necessarily be at all the same act and that the act could be even similar or diverse subject to the condition that it must be done in pursuance of the common intention. The language of Sec.34 was in that case held to mean that "when -a joint criminal act has been done by the acts of two persons in furtherance of a common intention each is liable for that joint criminal act, as if he had done it all by himself," and in that reading of the section their Lordships held "Sec.34 deals with the doing of separate acts similar or diverse by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself for that act and the act in the latter part of the section must include the whole action covered by a criminal act in past because they refer to it." It follows, therefore, that in the present case the mere fact that Keshab did not himself inflict any assault would not absolve him from the liability of the consequences of the beating if it be held that all the beating was done though only by Lala but in furtherance of an intention which was common between Lala and Keshab. In the present case there can be little doubt that the assault on Dhandabar was the result of the joint acts of Lala and Keshab. Keshab directed him to assault and Lala in fact assaulted him. The circumstances are clear on the point that they had a common intention of assault of Dhanda-bar. Therefore, this much is correct to say that though the acts of Lala and Keshab in doing the joint criminal act of assault were diverse, both of them are liable for that joint criminal assault in terms of Sec.34, I. P. C., but only to the extent the assault committed was in furtherance of their common intention. 17. In the case of AIR 1946 PC 45 (B), the point in controversy was as to whether the circumstances in that case did or did not disclose that there was, if at all, any common intention between the assailant and one other man who though not taking part in the actual assault was grappling with the other who could rescue the victim of the assault. On the facts of that case the finding given was that there was sufficient evidence on the record to prove that there was a common intention between them and that the fatal assault by the assailant was given in pursuance of the common intention. In the present case also, as already stated, I think the circumstances do disclose that there was a common intention between Lala and his father Keshab but the controversy in the case centres round the point as to whether the fatal blow by Lala was at all in furtherance of that common intention. 18. The above, case of Mamand, however, does not deal with the point as to what is exactly that which can be said to be the common intention in each case nor in that case their Lordships of the Privy Council had the occasion to decide as to what is that act which can be said in terms of Sec.34, I. P. C., to have been done in furtherance of a common intention. The first of these two questions indirectly came for discussion in the case of AIR 1945 PC 118 (A). At first their Lordships in that case discussed the question as to whether a common intention does in law include in itself an intention which is same or similar to the common intention and answered it in the nagative. The conclusion arrived at on this point was in the following words: "Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice." Next coming to the question as to what is a common intention their Lordships therein observed: "It is clear to their Lordships that common intention within the meaning of the section implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuance to the pre-arranged plan. 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." This case read with the case of -- Barendra Kumar Ghosh (D) makes the proposition abundantly clear that the vital point in Sec.34, I. P. C., is that of common intention. It follows from them that in order to constitute a constructive liability under that section the intention of the different confederates should not be only same or similar but should also be common between them, though the acts done by each one of them in pursuance of the common intention may be either same, similar or diverse. Therefere, so far as the act is concerned, all that is necessary for it to constitute a constructive liability under Sec.34, I. P. C., is that it should be done in pursuance of the common intention. 19. The exact question, however, as to what is that act which can be said to be the outcome of the common intention of done in furtherance of the common intention did not come for discussion in -- Mahbub Shahs case (A). Recently in a decision of the Allahabad High Court in the case of -- Nazir V/s. Emperor, AIR 1948 All 229 (E), this point was the subject of an elaborate discussion. In that case Raghubar Dayal J. has discussed practically all the important decisions of different High Courts in our country on this point and also, some of the decisions of the English Court and the opinion of the well-known American Jurist Joel Prentiss Bishop. I need not recapitulate them here. What, however, I feel is that we cannot lay much reliance for the interpretation of the statutory law laid down in Sec.34 on the decisions of the English Court or on the opinion of the jurist dealing with the point of joint liability as recognised by the common law in England. Whatever might have been the position of Sec.34 before the addition in it of the significant words in furtherance of the common intention of all but the position now on its alteration has, in my opinion, become very clear. Whatever might have been the position of Sec.34 before the addition in it of the significant words in furtherance of the common intention of all but the position now on its alteration has, in my opinion, become very clear. Though it is true that even on the alteration made in the section in the year 1870, the decisions in India on the interpretation of Sec.34, I. P. C., have not been uniform. Reading the section, as it stands, in my opinion, the act done in furtherance of the common intention of all includes in it three types of act; firstly, the act which is directly intended in between all the confederates; secondly, the act which the circumstances of the case leave no doubt to conclude that though the act was not directly intended in between them but was taken by all of them as included in the common intention and thirdly, the act which any of the confederates commits in order to avoid or remove any obstruction or resistance put up in the way of the proper execution of the common intention. In doing the third type of the act the individual doer may cause a result not intended by any other of the confederates. In this view of the matter, I, if I may say so with all respect to the learned Judge, agree with the observation made in the aforesaid case to the effect that "each of the persons joining in the commission of a criminal act is liable for any such act committed by any of the persons joining as was done in furtherance of the common intention, and that it is not necessary for the liability of all that they must have the common intention about the exact result which, was to follow from the act or about the offence which would be made out on account of the actual physical act and its result" and also with the view laid down therein to the effect that "We see no justification for others to be not liable for such acts of the other confederates as were likely to be committed in the carrying out of the common intention and which would have been normally foreseen and even contemplated by those persons." There is. however, one observation in that decision which, if I may say so with all respect to the learned Judges, does not appear to be borne by the language of Sec.34. That observation is--"Only such acts are not to be deemed to be the acts done in furtherance of the common intention as could not have taken place ordinarily in carrying out of the common intention." This negative way of defining the act done in furtherance of the common intention of all enlarges the latitude beyond that warranted by Sec.34. With the exception of this observation the law laid down in the aforesaid case about Sec.34, if I may say so, is the correct law on the point. 20. In that case discussion also arose as to how far knowledge is helpful in judging the fact that a particular act has been done in furtherance of the common intention of all. On that point it has been observed therein: "Knowledge of the likely result and the actual result may justify the determination of the intention of the actual doer, but are not the right factors to determine the common intention of others who had made a common cause with the actual doer and whose liability for the actual acts of the doer will be dependent on the question whether the actual acts done were done in furtherance of the common intention of all or not." I respectfully agree with this view also and I think that no reliance should be placed on the point of knowledge in judging as to whether an act is done in furtherance of the common intention of all the confederates. In the present case, therefore, the mere factum of knowledge on the part of Keshab that the weapon in the hand of Lala on being inflicted on Dhandabar might cause injuries likely to result in death is not relevant for determining that the act of inflicting fatal blow by Lala was an act done in furtherance of an intention common between him and his father Keshab. The circumstances do not warrant the conclusion that at the time when the order for assault was given by Keshab there was any common intention for giving not only an assault but also the fatal blow on Dhan-dabar nor there is any indication that the two had taken for granted that it was intended between them that the fatal blow should also be given on Dhandabar nor it can be said on the facts of the case that the fatal blow by Lala was inflicted on Dhandabar in order to remove or avoid the resistance put up in the way of the execution of the common intention which was only assault. In fact, the facts suggest that no resistance was put up by Dhandabar in the course of the assault on him. 21. The learned Standing Counsel has laid much reliance on a decision of this Court in the case of AIR 1952 Pat 135 (C) and specially to a particular observation made therein which is as follows: "Now even assuming for the moment that Mrs. 21. The learned Standing Counsel has laid much reliance on a decision of this Court in the case of AIR 1952 Pat 135 (C) and specially to a particular observation made therein which is as follows: "Now even assuming for the moment that Mrs. Dharamshila Lall is correct in saying that the purpose of the appellants was to cause bodily injury to Radha Pathak, and not to kill him, nevertheless, it is clear that the fatal blow was struck in furtherance of that purpose, and it is also, I think, clear that if there had been one assailant, and not two, the assailant would- have been guilty of murder." This passage, in my opinion, has to be read in the light of the facts of that case and also in the background of the observation made earlier to it, namely, "When the acts done are similar, as where a number of blows are struck with lathis, theft each of them is liable for every one of the blows struck, and if in the event of every blow having been struck by one man, that man would have been guilty of murder, each of them is guilty of murder, it being immaterial whose blow it was which was the direct and immediate cause of death." The common intention of the two assailants in that case, as it appears from the facts of that case, was to give the victim a good beating with lathi in their hands and in pursuance of that both of them inflicted a number of lathi blows on him as a result whereof the victim succumb ed. The question arose as to What was the exact common intention between the two assail ants in giving the lathi blows on the victim. Was it merely an ordinary assault of an assault of a character, which was likely to result in death? To find out that it was laid down therein that in order to determine the common intention and to determine also whether a particular act was done in furtherance or Mint common intention regard must be had not solely to the particular act but to all the acts that were done. In that case the distinguishing feature was that the acts done by both the assailants were similar and of equal gravity. In that case the distinguishing feature was that the acts done by both the assailants were similar and of equal gravity. Death might have been brought about by the blows of both or by the blow of one of them. If death was the result of the blows given by both of them then there was no escape from the conclusion that death was intended in common by both of them. If death resulted from the blow given by one of them then also there was no escape from the conclusion that death having been brought about by an act similar to the one by the other, the common intention was the same as resulted from the act of the one who gave the fatal blow. In fact, the inference of common intention in that case was much influenced by the similarity of the acts done by the two assailants. This will not be the position when the acts done by the confederates are not similar but different and especially when there is a wide difference between the gravity of acts done by each of them. In such a case, as in the present one, where the acts done by different confederates are not similar but different, the task of finding out the exact intention becomes all the more difficult. 22. The facts of the present case are, in my opinion, comparatively nearer to the facts of the case of -- State y. Ruplal Koeri, AIR 1953 Pat 394 (P). There the assailant was one armed with a chura which he inflicted several times on the deceased and the act done by his other confederate was only to keep hold on the deceased during the assault. The acts done by the two were, therefore, not similar but diverse, and on the materials on the record it could not be said in that case with certainty that the fatal blow by one with the chura was done in furtherance of the intention common to him and his other confederate who was only in the course of the assault keeping hold on the victim. It is, therefore, in my opinion, not correct to say that the act of any of the confederates can be under Sec.34, I. P. C. a basis of constructive liability against others merely on the ground that it was done in the course of the execution of a common intention. It must be proved that it was done not only in the course of the execution of the common intention but also that it was done in furtherance of the common intention. The contention raised by the learned Standing Counsel accordingly fails. 23. In the result, the reference is accepted and the appeal of Lala Mahto is dismissed. The appeal of Keshab and Chutu is, however, allowed in part to the extent that in the case of Keshab his conviction under Sec.302 read with Sec.34, I. P. C. is set aside, and it is converted into one under Section 326 read with Sec.34, I. P. C. and he is sentenced thereunder to undergo rigorous imprisonment for a period of four years only, and in the case of Chutu he is acquitted of the charge of constructive liability under Sec.302 read with Sec.34, J. P. 0. for the offence committed by Lala on Dhandabar and the only conviction that is maintained against him is one under Sec.324, I. P. C. whereunder he is sentenced to undergo rigorous imprisonment for a period of one year only. The sentences imposed on Keshab are to run concurrently. Kamla Sahai, J. 24 I agree.