JUDGMENT B.R. James, J. - The Appellants before me are four in number, viz., Suraj Din and his brother Basdeo, and Indra Pal and his brother Sripal, all residents of a hamlet of village Sarkandi, district Fatehpur. The Sessions Judge has held that on 20-8-1952 at dawn these four in furtherance of a common intention committed an attempt to commit culpable homicide not amounting to murder of one Nathu Kewat and has sentenced them each to 21/2 years' rigorous imprisonment u/s 308 read with Section 34, IPC. In addition he has found that at the same time Basdeo and Sripal in furtherance of a common intention caused simple hurt to Sheonandan and has awarded them three months' rigorous imprisonment each u/s 323 read with Section 34, IPC. The appeal is directed against these convictions. 2. It is common ground that at the time and date aforesaid Nathu Kewat sustained two lathi injuries, one a bone-deep contused wound 1" X 1/2" on the right side of the head fracturing the skull-bone underneath, and the other an abrasion l"1/2" on the left knee-joint. The former injury was a very serious one, and but for prompt medical attention at the hospital at Fatehpur he might not have survived. Sheonandan had a scalp-deep contused wound l"x1/2"on the head, and three 1" long linear abrasions below the left knee. The doctor of Fatehpur has given the opinion that all these injuries were by lathis, but I am not inclined to accept his view in toto; Sheonandan's head injury was no doubt due to a lathi, but the linear abrasions indicate rubbing against a sharp edge, e.g., falling on a thorny bush. 3. The prosecution case against the Appellants embraces both the motive for the attack and the mode of its execution, and may be outlined as follows. The four Appellants, who are on friendly terms with each other, are hostile to an elderly Brahmin widow named Indrani who lives in another hamlet of their village Sarkandi. The first cause for this hostility is that for three years this woman had let out some fields to the Appellants Suraj Din and Basdeo but had dispossessed them three months prior to the occurrence. Secondly, about three years previously her son had appeared as a witness against the Appellants Indra Pal and Sripal in a criminal case in which they secured an acquittal. Secondly, about three years previously her son had appeared as a witness against the Appellants Indra Pal and Sripal in a criminal case in which they secured an acquittal. Third, the injured man Nathu Kewat is her faithful servant while the Appellants have been trying to induce him to leave her, but he has consistently refused to do so. Now, 20-8-1952 was an important bathing-day, and with the object of taking her ceremonial bath in the Ganga Sm. Indrani left her village on the morning of the 19th August for Bhitauraghat. She was accompanied by her servant Nathu and another villager named Sheonandan. They were on foot. Near Fatehpur they were joined by one Nathu Pradhan. The distance to the ghat being considerable the party spent the night in village Jamalpur. From there they started off at dawn. They had proceeded for about three furlongs when they found the four Appellants sitting under a tree by the road-side, each holding a lathi. Since they too appeared to be bound for the bathing festival Nathu Kewat invited them to join the party, and this they did. They had gone for about 100 yards when the Appellants suddenly launched an attack on Nathu Kewat from behind; on receiving a severe blow on the head he fell down on the ground. On seeing the attack Sheonandan came up to intervene, but the Appellants Basdeo and Sripal struck him also, knocking him down. The hue and cry attracted a number of other wayfarers, at whose approach the miscreants bolted. 4. Nathu Kewat was unconscious and appeared to be in a serious condition. As soon as an ekka could be procured Indrani and the Pradhan brought the two injured men to the hospital at Fatehpur, about three miles distant. The necessary medical examination and treatment took place there. Indrani and the Pradhan then proceeded to the police station of Husainganj, within which circle the place of occurrence lies, and on reaching there at 3-30 p.m. Indrari made a verbal report, Ex. p. 1. In this report she charged the four Appellants with the assault, and also mentioned its motive. Sub-Inspector Sohanpal Singh registered a case u/s 308, IPC against the four Appellants and commenced his investigation. The Appellants were found to have absconded, and proceedings u/s Section 87 and 88, Code of Criminal Procedure had to be taken against them. p. 1. In this report she charged the four Appellants with the assault, and also mentioned its motive. Sub-Inspector Sohanpal Singh registered a case u/s 308, IPC against the four Appellants and commenced his investigation. The Appellants were found to have absconded, and proceedings u/s Section 87 and 88, Code of Criminal Procedure had to be taken against them. Suraj Din, Basdeo and Sripal surrendered in Court on the 10th September, and Indra Pal on the 24th September. 5. The Appellants totally deny the allegations made against them and disclaim all responsibility for the injuries suffered by Nathu Kewat or Sheonandan. The plea they have set up is that some unidentified badmashes attacked Indrani's party during the hours of darkness and that because their identity could not be ascertained interested persons induced the woman to incriminate them falsely. 6. The prosecution have examined Sm. Indrani, Nathu Kewat, Sheonandan and Natthu Pradhan as eye-witnesses of the crime. They unanimously corroborate the story narrated above. Indrani and her servant Nathu are no doubt interested witnesses, and on this ground their testimony may be held to be suspect. But after a careful examination of the depositions of Sheonandan and the Pradhan I have been unable to discover any reason for casting doubt on their veracity. Neither of them has the slightest motive for implicating the Appellants falsely, nor have they any reason to side with the woman or her servant through ulterior motives. Nor can there be any doubt regarding their presence on the scene, for Sheonandan sustained injuries while the Pradhan accompanied the woman first to the hospital and next to the police station. The report Ex. P-1 was made at the earliest opportunity. Nor, in view of the long distance of Sarkandi from the place, was there any chance for consulting interested persons. Moreover the attack was made shortly after dawn, so that there was sufficient light in which to recognise the assailants, more especially since they were well-known. There is therefore no cause for viewing the prosecution case with an eye of suspicion. 7. The Appellants have examined Desraj, Atbal Singh and Ram Sanehi in an attempt to show that they met Indrani's party shortly after the occurrence and were informed by them that the attack had been by unidentified badmashes. None of these witnesses inspires any confidence. Desraj admits being a childhood associate of the Appellants. 7. The Appellants have examined Desraj, Atbal Singh and Ram Sanehi in an attempt to show that they met Indrani's party shortly after the occurrence and were informed by them that the attack had been by unidentified badmashes. None of these witnesses inspires any confidence. Desraj admits being a childhood associate of the Appellants. He declares that a month later he told the Appellants of what he had seen, an assertion which must be false since they were absconding. Atbal's credit is grievously shaken by his admission that he cannot say if Sm. Indrani was there. Besides, although on his own showing he was not pressed for time he did not lift a finger to help his wounded fellow-villagers. Ram Sanehi admits that he saw Indrani's party coming from the opposite direction on an ekka which never stopped, yet he asks us to believe that he had a conversation with them. The learned Sess. Judge has made a more detailed examination of the testimony of these defence witnesses and has held them unreliable. His conclusion is undoubtedly correct. 8. I therefore accept the prosecution story as true. The quest on is what offence or offences this story establishes. The question is of frequent occurrence before the criminal Courts and experience shows that even many subordinate courts are wanting in a clear conception of the factors on which the answer has to be based. Accordingly I propose to deal with the matter at some length. 9. In deciding the question the assaults on Nathu Kewat and Sheonandan have to be considered separately. I agree that so far as Nathu is concerned the position and nature of the injury on his head makes out an offence punishable u/s 308 IPC. But it cannot be disputed that the four Appellants can be found guilty of that offence only if Section 34, IPC is found to apply, i.e., the evidence discloses that in inflicting it the four Appellants acted in furtherance of a common intention, an intention which pre-supposes prior concert or a pre-arrange plan. The Supreme Court in the case of Pandurang v. State of Hyderabad 1955 AWR (Supp.) 34 have observed as follows: ... in the case of Section 34 we think it is well-established that a common intention presupposes prior concert. The Supreme Court in the case of Pandurang v. State of Hyderabad 1955 AWR (Supp.) 34 have observed as follows: ... in the case of Section 34 we think it is well-established that a common intention presupposes prior concert. It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all.... Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case. 10. And further on: It is not enough to have the same intention independently of each other.... 11. It would be erroneous to think that for cases governed by Section 34 the Court must have proof of a well-laid plan or that an appreciable interval of time must elapse between the formation of the plan and its execution as pointed out in Kripal and Others Vs. State of Uttar Pradesh, AIR 1954 SC 706 "A pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation." In Pandurang v. State of Hyderabad (Supra) 1955 AWR (Supp.) 34 too their Lordships have stated: "The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on by-standers to help him kill a given individual and they, either by their words or by their acts, indicate their assent to him and join him in the assault. It could arise and be formed suddenly, as for example when one man calls on by-standers to help him kill a given individual and they, either by their words or by their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premediate concert." 12. Courts should be careful in keeping these observations in mind when dealing with cases u/s 34, IPC. Before the Court can convict person vicariously for the act of another it must satisfy itself of the existence of a prior concert between them or a prearranged plan. Such a plan need neither be elaborate nor take an appreciable period of time before it is formulated; it can even be formed suddenly or on the spot. Above all care should be taken to distinguish between a common intention and a similar intention separately entertained. No hard and fast rules can be laid down, and each case has to be decided on its own merits; but it is essential for the Court to arrive at a definite finding on whether or not the accused before it have acted in furtherance of a common intention and it is a part of the Court's duty while examining witnesses to ensure that appropriate questions are put to them in order to elicit from them the necessary evidence in this behalf. In Kirpal v. State of Uttar Pradesh (Supra) the Supreme Court have laid down: Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous concensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. 13. Now, what are the facts of the case before me? There was hostility between Sm. Indrani and the Appellants, and they were also displeased with Nathu Kewat for not falling in with their wishes to relinquish her service. Yet no one suggests that on any occasion they had threatened her or him with violence, still less to use actual violence. Indeed he admits that he used to go about the village without fear. Indrani and the Appellants, and they were also displeased with Nathu Kewat for not falling in with their wishes to relinquish her service. Yet no one suggests that on any occasion they had threatened her or him with violence, still less to use actual violence. Indeed he admits that he used to go about the village without fear. Then, when Indrani's party met the Appellants on the road-side they were merely sitting there, probably taking rest after their long walk towards the river. There was nothing about their manner or attitude to inspire fear. On the contrary, Nathu Kewat himself invited them to join his party, and they accepted his offer. They walked together for 100 yards without any untoward happening. No one says that during that walk there was anything about the Appellants which could have given rise to an apprehension of violence from their side. Before the actual attack there was neither any consultation between them, nor the utterance of any word which might indicate prior concert. Even words of incitement to each other are found to be conspicuous by their absence Nor can the fact of holding lathis be given a sinister interpretation, because these are invariably carried by villagers, more so when they embark on a journey. These circumstances preclude prior concert: or the formation of a pre-arranged plan, and all that can be said is that the Appellants merely developed independent though simultaneous intentions to assault Nathu. A common intention being thus eliminated Section 34, IPC cannot apply and each Appellant would be individually liable for whatever injury he actually caused. 14. If follows that only that Appellant can be convicted u/s 308, IPC who inflicted the head injury on Nathu. But the prosecution admit that they cannot tell us who he was. The learned Assistant Government Advocate concedes that in the circumstances no one can be convicted u/s 308 or even u/s 325, IPC, but relying on the Division Bench decision in Dipa v. K.E. 1955 AWR (Supp.) 34 he urges that each Appellant is liable u/s 323, IPC. But the prosecution admit that they cannot tell us who he was. The learned Assistant Government Advocate concedes that in the circumstances no one can be convicted u/s 308 or even u/s 325, IPC, but relying on the Division Bench decision in Dipa v. K.E. 1955 AWR (Supp.) 34 he urges that each Appellant is liable u/s 323, IPC. I find myself unable to agree with this view because my reading of the decision in question shows that it is based on the assumption that each of the accused there had struck lathi blows on the victim, and on this assumption it is not possible to deny that the striking of such a blow would result in simple hurt. In the instant case on the other hand it is not possible to hold that the blow of each Appellant hit Nathu, for he had only two lathi injuries whereas the blows must have been at least four; hence on my finding that there was no common intention a conviction even u/s 323 IPC is not possible. Each Appellant must therefore be acquitted of the offence u/s 308 IPC. Nevertheless I cannot ignore the evidence, believed by me, that each did aim a lathi blow at Nathu, an act which girrespective of whether the blow hit the mark, renders the wielder guilty of assault as defined u/s 351 IPC. Consequently, with regard to Nathu Kewat each Appellant must be convicted under Section, 352 IPC. 15. Turning now to the attack on Sheonandan, for which the Appellants Basdeo and Sripal have been found guilty u/s 323 read with Section 34 IPC, I find a difference apparent. The evidence shows that when the attack on Nathu Kewat was launched Sheonandan came forward to intervene, and it was men that he was struck lathi blows by Basdeo and Sripal, though he sustained only one injury with that weapon. The object of these two Appellants was to prevent him from rescuing Nathu, and they attempted to achieve it by simultaneously a iming lathi blows at him. They are thus found to conform to the pattern contemplated in Pandurang's case mentioned above, i.e., their common plan was formed hastily and suddenly, thereby implying the necessary meeting of the minds of these two. They are thus found to conform to the pattern contemplated in Pandurang's case mentioned above, i.e., their common plan was formed hastily and suddenly, thereby implying the necessary meeting of the minds of these two. Section 34 therefore applies to them in respect of Sheonandan's injury, so that they must be held to have been rightly convicted u/s 323 read with Section 34 IPC. 16. There remains the question of sentence. No exception can be taken to the sentence which the learned Judge has passed on Basdeo and Sripal for causing hurt to Sheonandan. Wih regard to the offence u/s 352 IPC, of which I am convicting all the four Appellants, a fine of Rs. 100 each would be sufficient to serve the cause of justice. Six weeks' rigorous imprisonment shall have to be undergone in default of payment. 17. In the result the appeal is allowed to this extent that the conviction u/s 308 IPC is set aside and instead each Appellant convicted u/s 352 IPC and sentenced to a fine of Rs. 100 with six weeks' rigorous imprisonment in default. The conviction and sentences of Basdeo and Sripal u/s 323 read with 34 IPC are upheld. These two Appellants shall surrender forthwith and serve out their imprisonment.