JUDGMENT Roy, J. - These are two connected appeals, the one by Nanday and Sohanpal and the other by Vijai arising out of the same trial. All the three have been convicted u/s 379 IPC and each given eighteen months' rigorous imprisonment. Nandey and Sohanpal have further been convicted u/s 302, IPG read with S. 34, IPG (although the learned Sessions Judge inadvertently failed to mention S. 34 in the operative portion of the judgment) and each sentenced to life imprisonment under that section. 2. The charge against them as amended by the learned sessions Judge was that on the night between the 22nd and 23rd of October, 1953, at about midnight they committed theft of Bajra crop of Badeo Prasad and Itwari by cutting the same from their field in village arra(sic) and at the same time and place in furtherance of the common intention of all they committed the murder of Baldeo Prasad by intentionally causing his death. The accused persons pleaded not guilty to the charge and they contended that they had been falsely implicated by the complainant and by the prosecution witnesses on account of enmity. It appears that in this village the accused persons who are Ahirs by caste have been troubling the Jatavs who are the complainants and who reside in the same village, by committing the theft of their crop and by causing damage to the same. 3. On 24-9-1952, that is about thirteen months before the present occurrence a complaint was lodged by Itwari PW 3 against Nandey Appellant and certain others before the panchayati adalat under Ss. 379 & 323, IPG. Ext. P13 is a copy of that complaint, wherein it was alleged that the accused of that case committed the theft of certain crop standing over the field of Itwari and they beat him when they were reprimanded for that act. The complaint resulted in a conviction of these persons by a judgment Ext. P14 given by the members of the panchayati adalat on 20-11-1952, of which Baldeo deceased happened to be a Panch. 4. So far as the present matter is concerned the crop in question was jointly grown by Itwari PW 3 and by Baldeo deceased who were co-tenants of that plot. P14 given by the members of the panchayati adalat on 20-11-1952, of which Baldeo deceased happened to be a Panch. 4. So far as the present matter is concerned the crop in question was jointly grown by Itwari PW 3 and by Baldeo deceased who were co-tenants of that plot. It was alleged that the night in question was full-moon night and Baldeo Prasad deceased and Itwari P W 3 had gone on a round to their field in order to keep watch over their crop. When they were near their bajra field they saw eight persons cutting the crop. They rebuked them. Five of them took to their heels. The three Appellants remained there. Baldeo Prasad aimed his lathi against Nandey with a view to catch him. Nandey raised shouts whereupon, it is said, Sohanpal and Vijai gave lathi hits to Baldeo, and Nandey also joined them. Itwari shouted for help and attracted Pemi PW 4 Govind PW 6 and Jhamman PW 7, who were in neighbour ring fields and had gone there to see whether or not their crop was being damaged by anyone. When they came and rebuked the accused they escaped towards the villages Baldeo Prasad had become unconsoious(sic) Itwari's brother Misri came to the field with a cot, and other persons also came. Baldeo was removed to his house on the cot. A scythe Ext I was found in the field. That scythe and the harvested bajra crop from over an area of seven or eight biswas were taken to police station Alapur by Itwari and his brother and cousin where a report was lodged by Itwari on 23-10-1953, at 6.30, A.M. Baldeo Prasad was sent to Budaun hospital for medical examination. He was medically examined on 23-10-1953, at 5-45 P.M. and six injuries were founds on him, of which four appeared to be due to lathi hits and the other two were swellings on account of the injuries aforesaid. Two of these injuries were on the head. Baldeo Prasad was completely unconscious at the time of the examination. His condition did not improve in the hospital and he expired on 26-10-1953. Information of his death was conveyed to the police. Two of these injuries were on the head. Baldeo Prasad was completely unconscious at the time of the examination. His condition did not improve in the hospital and he expired on 26-10-1953. Information of his death was conveyed to the police. The police, after preparing the inquest report, sent the dead body to the mortuary where the post-mortem examination was conducted by the Civil Surgeon on 26-10-1953, at 5 p.m. The post-mortem examination revealed the following external injuries on him: 1. Contused wound 3/4"X 1/4"X scalp on top of head a lightly to the right side. 2. Contused wound l"X 1/2"X bone on the right side front of head 2" down in jury No. 1. There was swelling on the right side of head and face and the right temple roundabout this injury. 3. Lacerated wound 3/4"X 1/4"X whole thickness of right ear up till outer margin of pinna of the right ear. 4. Contused abrasion 11/2"X 1/2" on the back of left forearm in middle third. 5. The scalp was deeply congested and was full of blood on the right side. The ftonto parietal suture on the right side was open and from the right end of this suture there was a linear fracture 3" long extending below over the right temporal bone. The membrances of the brain were found deeply congested and covered with blood clots. In the opinion of the Civil Surgeon death was due to fracture of the skull resulting in coma. The Civil Surgeon was further of the opinion that the head injuries which were caused by lathi were ordinarily sufficient to cause death. 6. The prosecution examined four witneses namely, Itwari, Pemi Govind and Jhamman as eye witnesses of the occurrence. It wari P.W. 3 stated that Baldeo deceased bad been his co-tenant and that since the residents of the village found that their crop used to be cut away by some people from time to time, they occasionally visited their fields at night. He further stated that in the night in question, at about midnight, he had gone along with Baldeo to his bajra field and he found that eight persons were cutting the crop. He and Baldeo rebuked them. Five of them took to their heels towards the village. The other three stayed there. Baldeo wielded his lathi against Nandey accused with a view to catch him. He and Baldeo rebuked them. Five of them took to their heels towards the village. The other three stayed there. Baldeo wielded his lathi against Nandey accused with a view to catch him. Nandey raised shouts, whereupon Vijai and Sohanpal came to his rescue. He further stated that all the three beat Baldeo felling him down to the ground and rendering him unconscious. To the same effect was the evidence of Pemi PW 4 who has his field at a short distance from the field of Itwari. So also was the statement of Govind PW 6 who happens to be a nephew of Baldeo deceased, and the statement of Jhamman PW 7 whose field was also close by. It was quite clear from their evidence that these three accused were found in the act of cutting away the bajra crop from the field of the complainant and committing theft thereof. It was also quite clear from their evidence that when Itwari and Baldeo had been to their field and when they accosted the thieves, the three Appellants remained there and the other five ran away, and when Baldeo aimed his lathi on Nandey in order to catch him, Nandey raised shouts and the other two Appellants came to his rescue. So far as the part played by Vijai in the actual beating of Baldeo was concerned, the learned Sessions Judge relying upon the testimoney of the prosecution witnesses given in the Court of the Committing Magistrate held that Vijai took no actual part in the beating and he was only standing there and consequently an offence u/s 302 IPC was not made out against Vijai; but he also held that the prosecution evidence was quite clear and consistent in regard to the part actually played by Nandey and Sohanpal in the beating of Baldeo deceased. The evidence was to the effect that both of them hit Baldeo over the head and they further beat him after he had fallen down to the ground. In circumstances such as these common intention may be presumed. Having regard to the medical evidence in the case it cannot for a moment be contended that the offence fell not u/s 302 IPC but either u/s 304 or u/s 325, IPC. The de. In circumstances such as these common intention may be presumed. Having regard to the medical evidence in the case it cannot for a moment be contended that the offence fell not u/s 302 IPC but either u/s 304 or u/s 325, IPC. The de. ceased was undoubtedly given smashing blow over the head, and the blows were given with the intention of causing bodily injury to him, and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. At any rate the persons committing the act knew that it was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death, and they committed the act without any excuse whatsoever. The case therefore fell within Cls. 3 and 4 of S. 300, IPC. 7. It has been contended on behalf of Nandey and Sohanpal that S. 34 has been wrongly applied, and the argument is that common intention presupposes prior concert, and in this particular case there was no evidence of preconcert or pre arranged plan. It has further been argued that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary in a case of this nature is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference; or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. Cases where two or more persons attack another are of common occurrence. These cases, if there is want of evidence as to any declaration of intention by the assailants just before the act, may be broadly divided into two categories. In the first category come cases where the assailants do not have an opportunity at all of having a pre-arranged plan. This may, arise, for example, if the assailants come separately from different directions though they took part in the same incident or if they arrive at different times though they join in beating the same persons, or if the attack arises suddenly provided no word is exchanged between them to establish a concert at the moment of the attack. This may, arise, for example, if the assailants come separately from different directions though they took part in the same incident or if they arrive at different times though they join in beating the same persons, or if the attack arises suddenly provided no word is exchanged between them to establish a concert at the moment of the attack. In such a case there may be simililar intention in the minds of the assailants, but there will not be common intention and S. 34 will not apply. In the second category come those cases where there is opportunity for the assailants to have pre-concert. In such cases the section would generally apply; and common intention would be presumed provided the conduct of the assailants is such as to give rise to an inference of pre-concert. It may however, be possible in a case to show that their conduct at the time of the incident was such that through they might have had opportunity of pre-concert, there could not actually be any pre-concert between them. A pre-concert in the sense of a distinct previous plan is however 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. Whether in a proved situation all the individuals concerned there in have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have developed and thereby intended by all of them, is a question which has to be determined on the facts of the case. In the present case, having regard to the facts and circumstances stated above, the conclusion is irresistible that a common intention developed at the spur of the moment as between Nandey and Sohanpal Appellants when both of them hit the deceased over the head with their lathis and when they further carried on the attack over the deceased after his fall. The common intention to bring about a particular result developed on the spot with reference to the facts of this case and the peculiar circumstances of the situation. We are therefore of opinion that S. 34 of the IPC was rightly applied. The common intention to bring about a particular result developed on the spot with reference to the facts of this case and the peculiar circumstances of the situation. We are therefore of opinion that S. 34 of the IPC was rightly applied. The accused persons gave no evidence in support of their defence beyond producing a copy of a statement Ext. D-5 made by one Bhim on 30-3-1950 in Suit No. 167 of 1949 in the Court of the Munsif of Bisauli and copy of a decree Ext. D-o in Suit No. 128 of 1948 in the Court of the Munsif of Budaun in which the three accused were the Plaintiffs and Loki and Lareti Lal the brother of prosecution witness Jugul Kishore were Defendants. Jugal Kishore was produced on behalf of the prosecution in order to prove the copy of the complaint dated 24-9-1952, made by Itwari PW 3 against Nandey and others aad also to prove the copy of the judgment that was passed by the panchayati adalat in that case. The two documents filed on behalf of the accused in their defence did not all dislodge the clear and cogent evidence adduced on behalf of the prosecution in order to sustain the charges against the Appellants. 8. In our opinion the Appellants have been rightly convicted and the sentence awarded is not any way severe. The appeals arc therefore dismissed. Vijai Appellant is on bail. He must surrender to his bail to serve out the sentence.