JUDGMENT H.P. Asthana, J. - Kallu and Phula are brothers and sons of one Sujan. Reoti is the uncle of Kallu and Phula. They were all charged under Sections 304/34 and Sections 323/34 I.P.C. for causing the death of one Liladhar by beating him with lathis and simple hurt to his father Ramjit in furtherance of their common intention on the 10th July, 1950 at about 2 or 3 P.M. in village Suchawali, P.S. Akrabad, District Aligarh. The learned Sessions Judge found Kallu and Phula guilty u/s 304/34 I.P.C. for causing the death of Liladhar and convicted them of it and sentenced Kallu to 5 years' rigorous imprisonment and Phula to 3 years' rigorous imprisonment. They were acquitted of the charges u/s 323/34 I.P.C. for causing simple hurt to Ramjit. Reoti and Sujan were acquitted of both the charges. The present appeal has been filed by Kallu and Phula against their conviction and sentences. 2. On the 12th July, 1950 Ramjit filed a complaint in the court of Shri Randhir Singh, Magistrate 1st class of Aligarh, against Kallu, Phula, Sujan and Reoti under Sections 307/323/506 I.P.C. He alleged in this complaint that there was a piece of land near his house which had been in his possession since the time of his ancestors and his laraoni stood on it and his cattle used to be tethered there; that the accused wanted to take possession of it by force and with this object in view they demolished the said laraoni on the 10th July, 1950 at about midday; that while they were demolishing the laraoni his son Liladhar prevented them from doing so; that thereupon they all started beating Liladhar with lathis; and that Liladhar fell down on receiving the lathi blows. It was further stated in the complaint that he intervened in the matter and tried to save his son and he too was beaten with lathis. Liladhar died in the hospital on the 17th July, 1950. After his death Ramjit made a report at Police Station Akrabad, which is at a distance of ten miles from village Suchawali, on the 19th July, 1950 at 9.30 a.m. against the four accused u/s 304 I.P.C. The dead body of Liladhar was sent to Aligarh for post mortem examination. 3. After his death Ramjit made a report at Police Station Akrabad, which is at a distance of ten miles from village Suchawali, on the 19th July, 1950 at 9.30 a.m. against the four accused u/s 304 I.P.C. The dead body of Liladhar was sent to Aligarh for post mortem examination. 3. Another report of the same occurrence had been made by the accused Reoti at Police Station Akrabad on the 10th July, 1950 at 8 p.m. against Ramjit, Lila, Mula and Naththa u/s 323 I.P.C. It was alleged in this report that the complainant had built a laraoni in front of his house with the permission of his zamindar; that Ramjit was his uncle's brother and had his house close by; that he cherished grudge against him and prohibited him from building the laraoni; and that at about 4 p.m. he demolished the laraoni of the complainant and when the complainant and his nephew prevented him from doing so all the accused mentioned above beat him and his nephew with lathis on account of which they had received injuries. It was also mentioned in this report that a complaint would be filed in respect of the occurrence later on. It, however, does not appear from the record that any complaint was subsequently filed by Reoti against Ramjit and the other three persons. 4. After the report Sri Shanti Chand Mittal, Station Officer, Akrabad, went to the scene of the occurrence. He reached there on the 24th July, 1950. His explanation for the delay is that he was out of the police station when the report was made and came to know of it only when he returned there. He prepared the site plan (Ex. P-8) wherein he has shown the laraoni which was demolished and which led to the incident. He arrested the accused and after the necessary investigation submitted the charge sheet against them. 5. The accused Kallu in his statement said that Ramjit and Liladhar were beating his uncle Reoti and when he went to save him they beat him also and then he too plied his lathi in self-defence. He denied that he along with the other accused had gone to the laraoni of Ramjit and Liladhar and started to demolish it and when Liladhar objected to it they beat him with lathis. He denied that he along with the other accused had gone to the laraoni of Ramjit and Liladhar and started to demolish it and when Liladhar objected to it they beat him with lathis. The other three accused denied that they had taken any part in the beating of Liladhar or Ramjit. Phula accused stated that he had been named on account of enmity. Reoti accused stated that he too was named on account of enmity and that Ramjit, Lila, Naththa and Kacheru beat him and he made a report about it. The accused Sujan stated that he was being suspected in the case without any reason. 6. Liladhar was examined by Dr. S.L. Vidhyarthi, Medical Officer Sikandra rao Hospital, on 10th July, 1950 at 6-30 p.m. in the evening. He had the following injuries on his person: 1. Swelling 2 1/2" x 1 1/2" x left side of forehead. 2. Swelling of eyelid of right eye. 3. Contusion 1 1/2" x 1" on the left side of skull 3 1/2" above the left ear. 7. It appears from the evidence of Dr. Vidhyarthi that Liladhar was unconscious at the time of his examination and that the injury No. 1 was dangerous and the rest were simple and had been caused with some blunt weapon like lathi. It also appears from his evidence that Liladhar died on the 17th July, 1950 and the report (Ex. P-6) was sent by him to the police station for information. 8. The post mortem examination on the dead body of Liladhar was performed on the 18th July, 1950 at 9-20 a.m. in the morning. It appears from the post mortem report that there was extensive haemorrhage in and under the scalp over top of head and generally on the left side including the left temporal region; that the front left parietal bone and left temporal bone were fractured and there was a large clot of blood under the skull covering almost the entire left half of cranium; and that the death was due to the head injury which had been inflicted with some blunt weapon causing fracture of skull and much internal haemorrhage producing paralysis of vital brain centres from pressure. 9. 9. Ramjit, who according to the complaint and the report had been beaten with lathis, was not medically examined nor his injury report is on the record to show that he had any injuries on his person. 10. The accused Reoti, Sujan and Kallu got themselves medically examined on the 26th July, 1950 after the death of Liladhar and after the report had already been made by Ramjit against them u/s 304 I.P.C. The injury reports show that Reoti had a swelling of the lower 2/3 of the left middle finger with contusion 1/4" x 1/6" under its nail; that Sujan had a contusion 2 1/2" X 1/2" on the upper part of the left side of the back and another contusion 2" x 3/4" on the middle of the left side of the back; and that Kallu had a contused wound 1/2" 1/4" x skin (the wound was healing) on the front of left side of head. It further appears from the injury reports, as well as from the evidence of Dr. M.D. Bhardwaj who examined them and who was examined as a defence witness in this case, that the injuries of all these persons were simple and were about 15 days old and had been caused by some blunt weapon like lathi. In his cross-examination Dr. Bhardwaj stated that the injury on Reoti's finger could be caused by being Dressed with a door leaf and the injury of Kallu could result from a fall on some brick or from being hit with a brick. 11. The prosecution examined Ramjit, Man Singh, Natheha and Dhandu in support of the occurrence. Ramjit is the father of the deceased Liladhar and filed the complaint and after the death of Liladha made the report on the 19th July, 1950. His evidence is that the accused Reoti had a spade and the other there accused had lathis with them; that they all came to his laraoni and began to demolish it; that his son Liladhar prohibited them from doing so and thereupon the accused Reoti gave the order that Liladhar and Ramjit shoud be killed then and there; and that thereupon Kallu and Phula dealt two or three lathi blows on the head of Liladhar and Liladhar fell down. He further stated that the accused Reoti and Sujan began to beat him with kicks and shoes and that he was saved by Naththa, Man Singh, Dhandu and Dauji, and then the accused ran away. In his cross-examination he was confronted with the statement which he had made in the court of the committing magistrate. He stated there that the accused were fixing pegs forcibly on his land and that he objected to it and thereupon they began to beat both him and his son. He admitted having made this statement. He did not mention in the court of the committing magistrate that the accused were demolishing the laraoni and when it was objected to by Liladhar they were both beaten. His explanation for not making this statement in the court of the committing Magistrate was that on account of the death of his son he was very much in grief and, therefore, he forgot to make it. His statement in the lower court that he was beaten with kicks and fists is somewhat inconsistent with his statement in the first information report made on the 19th July, 1950 and also in the complaint made on the 12th July, 1950 wherein he had stated that he was also beaten with lathis. 12. Man Singh (P.W. 3) has got his house in front of the place of occurrence. There is only a lane in between. He supported the statement of Ramjit. He stated that Kallu and Phula beat Liladhar with lathis and Reoti and Sujan beat Ramjit with kicks and fists. According to his statement both Ramjit and Liladhar were empty-handed and the accused Reoti had a spade and the other accused had lathis. In his statement before the committing magistrate he did not state that Reoti had a spade with him. 13. Naththa (P.W. 4) has got his house at a distance of 10 or 12 paces from the place of occurrence. It appears from his statement that the accused had neither; any cultivatory holding nor any house near the place of occurrence and that the laraoni which they were demolishing was of Ramjit and Liladhar. It also appears from his statement that the accused were also fixing pegs and saying that the land belonged to them, while Ramjit and Liladhar were saying that it belonged to them and that led to a quarrel between them. It also appears from his statement that the accused were also fixing pegs and saying that the land belonged to them, while Ramjit and Liladhar were saying that it belonged to them and that led to a quarrel between them. He did not state that Ramjit or Liladhar had any lathi with them or that they inflicted any injury on any of the accused. 14. Dhandu (P.W. 5) has got his house at a distance of about 10 or 12 paces from the place of occurrence. He supported the statements of the other prosecution witnesses. According to his statement also Liladhar and Ramjit had nothing in their hands at the time of marpit. He did not state anything about the fixing of the pegs before the Magistrate and the explanation given by him about it was that he was not questioned about it. He stated that he did not see any injuries on any of the accused persons; that there were also no injuries on the body of Ramjit; and that Ramjit was lying on the ground with his face downwards and the accused were beating him with fists and kicks. 15. The accused examined two witnesses, namely, Dr. M.D. Bharadwaj and Ram Gopal. Dr. Bharadwaj was examined to prove the injuries on Reoti, Sujan and Kallu. His evidence has already been referred to above. Ram Gopal was examined to prove that the houses of the accused and Ramjit are near each other; that there is a waste land near their house in Suchawali which was given by the master to Rewa and Sujan under ijazatnama Ex. D-5; and that the accused had their laraoni there and also fixed their pegs there. It is, however, not clear from his evidence that the laraoni which was being demolished on the 10th July, 1950 was the same laraoni which had been built by the accused on the land said to have been given to him by the master. 16. The learned Sessions Judge was not satisfied that Ramjit was beaten with lathis probably because there was nothing on the record to show that Ramjit had any injury on his person. He was also not satisfied that the accused Kallu and Phula had acted under the orders of Reoti accused or that Reoti was present at the scene of the occurrence. He was also not satisfied that the accused Kallu and Phula had acted under the orders of Reoti accused or that Reoti was present at the scene of the occurrence. As according to the prosecution evidence itself Liladhar was assaulted by the accused Kallu and Phula he believed that part of the prosecution case and convicted these two accused u/s 304/34 I.P.C. The other two accused were acquitted. 17. It is an admitted fact that on the 10th July, 1950 in the afternoon the laraoni near the house of the complainant Ramjit was demolished. It is also not disputed that this led to the beating. The question, however, for consideration is whether the laraoni which was demolished belonged to Ramjit and Liladhar or to the accused. It appears from the site plan prepared by the Sub-inspector that the laraoni which was demolished adjoined the house of Ramjit. In the circumstances the probability is that the laraoni belonged to Ramjit and Liladhar and was in their possession. The prosecution witnesses have all deposed that this laraoni was of Ramjit and Liladhar and was in their possession and that the accused were demolishing it. No satisfactory reason has been given on behalf of the Appellants as to why the evidence of the prosecution witnesses who are neighbours should be discarded. The only argument which was advanced on behalf of the Appellants was that the three witnesses Man Singh, Naththa and Dhandu were not independent as they had joined with Ramjit in making an application for the cancellation of the bail of the accused. This fact is admitted that an application for the cancellation of bail was made. It was stated by them that the application was made because the accused had asked them not to give evidence for the prosecution and in case they did not comply with their wishes they would be beaten by them. I do not think that merely because an application for the cancellation of bail was made by some of the prosecution witnesses their evidence should be discarded on this ground alone. It has not been alleged on behalf of the accused or has been brought out in the cross-examination of the prosecution witnesses that there was any enmity between the witnesses and the accused persons. It has not been alleged on behalf of the accused or has been brought out in the cross-examination of the prosecution witnesses that there was any enmity between the witnesses and the accused persons. Another reason which was advanced on behalf of the Appellants against the prosecution witnesses was that from their evidence it appeared that both Ramjit and Liladhar were empty-handed and in the circumstances there was no explanation for the injuries which were received by three of the accused persons. The accused Reoti, Sujan and Kallu got themselves medically examined 16 days after the occurrence after Liladhar had already died and a report had been made by Ramjit to the police. No satisfactory explanation was given on behalf of the accused as to why they did not get themselves medically examined immediately after they had made the report on the 10th July, 1950. In view of the great delay in the medical examination it is somewhat doubtful if the injuries which were received by Reoti, Sujan and Kallu were actually received by them in the occurrence. Even if for the sake of argument it is accepted that these three persons received certain minor injuries that does not necessarily prove that Ramjit and Liladhar were the aggressors in the marpit. It was also contended that the prosecution witnesses had not made a correct statement when they stated that Ramjit was beaten with kicks and shoes as this statement was inconsistent with the complaint and the report made by Ramjit. It may be that Ramjit was not beaten with lathis and he made some exaggeration when he mentioned in the complaint and in the first information report that he too was beaten with lathis when he intervened to save his son Liladhar. I am, however, not inclined to disbelieve the entire prosecution evidence merely oh-the ground that Ramjit made some exaggeration in the complaint and in the first information report regarding the beating. 18. The accused who are also residents of the same locality did not produce any evidence in support of their version. They could have examined witnesses in order to prove that the laraoni which vas being demolished was actually theirs and that they were first attacked by Ramjit and Liladhar and that it was only in self defence that they inflicted the injuries on Liladhar. 19. They could have examined witnesses in order to prove that the laraoni which vas being demolished was actually theirs and that they were first attacked by Ramjit and Liladhar and that it was only in self defence that they inflicted the injuries on Liladhar. 19. Considering the entire evidence on the record I am inclined to believe the prosecution evidence that the laraoni which was demolished belonged to Ramjit and Liladhar; that the accused had gone to the laraoni armed with lathis and spade in order to demolish it, and in case any resistance was offered in their wrongful act, to beat the persons who offered resistance. It has been argued on behalf of the Appellants that there was no evidence on the record in proof of the fact that there was common intention between the different accused to beat Liladhar and in absence of any evidence of such common intention neither Kallu nor Phula could be convicted u/s 304/34 I.P.C. There is no doubt that common intention pre-supposes prior concert and prior meeting of minds to form a pre-arranged plan. It is not at all necessary that this prior concert or prior meeting of minds should have been made long before the actual act is committed. It can be made just at the moment or shortly before it. It is not possible to get any direct evidence about this prior concert between the different accused to do a particular act because intention is a question of state of mind and it can only be judged from the surrounding circumstances and any overt acts which are committed by the accused in pursuance of this intention. The evidence in this case is that the accused had gone armed with lathis. In the circumstances, there can be no doubt that their object was not merely to demolish the laraoni but to beat any one who offered them resistance in this act. In the circumstances I am of opinion that there was a common intention between the accused to beat Liladhar who offered the resistance. I am, therefore, of opinion that the Appellants have been rightly convicted u/s 304 read with Section 34 I.P.C. 20. It was argued that the sentence was rather severe. In the circumstances I am of opinion that there was a common intention between the accused to beat Liladhar who offered the resistance. I am, therefore, of opinion that the Appellants have been rightly convicted u/s 304 read with Section 34 I.P.C. 20. It was argued that the sentence was rather severe. I have not been able to find from the judgment of the learned Sessions Judge as to why Phula was sentenced to 3 years' rigorous imprisonment whereas Kallu was sentenced to 5 years' rigorous imprisonment. According to the prosecution evidence they both beat Liladhar with lathis. In the circumstances I am of opinion that the sentence of Kallu also should be reduced to 3 years' rigorous imprisonment. 21. The result is that this appeal is dismissed with this modification that the sentence of Kallu u/s 304/34 I.P.C. is reduced from 5 years rigorous imprisonment to 3 years' rigorous imprisonment. As the Appellants are on bail they shall surrender to it and serve out their sentences. Leave to appeal to the Supreme Court is refused.