JUDGMENT : KRISHNAN, J. 1. These four appeals are by the four accused persons convicted in the same sessions trial separately or in batches (one of them being duplicated). They had been sent up under sections 302 and 302 read with sections 149 and 148, Indian Penal Code. However, the charge regarding unlawful assembly having failed, they were acquitted of the counts under sections 148 and 149. These four out of nine persons accused were convicted under section 302 read with section 34 and sentenced to imprisonment for life. The offence concerned was the killing of Yeshwantrao alias Balu by several persons attacking him, one using a gun, another using an axe and others using lathis, death being instantaneous. All, it was alleged, were attacking the deceased in furtherance of their common intention of causing such injuries as would necessarily cause death. 2. Criminal Revision No. 344 is an application by State for the enhancement of punishment and the awarding of death penalty in view of the seriousness of the crime. 3. The facts of the case are the following:— Some ten miles outside Indore there is a Co-operative Agricultural Society named Malwa Sahakari Samuhik Krishi Samiti with its office at village Machla where its lands are mostly situated. The over-all guidance of the society was in the hands of one Nandlal Joshi, honorary president who himself was involved in an earlier incident of assault at night time. That is only the background; but it would appear that the members of what will be called the Yadavrao faction in this case were charged with assault and acquitted. In the instant case, the murdered man is no other than the nephew of that Yadavrao and the accused persons belong to the faction opposed to the one led by Yadavrao. 4. As in most of the institutions in our country this society was also riddled with factions broadly based upon caste and also upon whether the particular factionist had joined the society in its initial stages or had come later on. The appellants as well as the other accused persons who have been acquitted are Harijans by caste and are comparatively new-comers in the society; whereas Yadavrao whose nephew was killed represented the faction of the older members and was besides of a caste considered higher than the accused persons. The appellants as well as the other accused persons who have been acquitted are Harijans by caste and are comparatively new-comers in the society; whereas Yadavrao whose nephew was killed represented the faction of the older members and was besides of a caste considered higher than the accused persons. There were the usual squabbles about the way in which lands were being allotted and the affairs of the society being managed. 5. Yadavrao had made certain complaints to the higher authorities of the co-operative department who were to hold an inquiry sometime on the 31st March 1964. On the previous day, that is, the 30th March, the members of both the factions had been busy moving about; Yadavrao for his part had been to Indore and was back at about 9-0 P. M. He lives in one of the new huts or one part of the new block of buildings put up at a short distance from the main village, while in another part of the same building, the appellant Kalu was living, he being both a member and the chowkidar of the society. In course of that day chowkidar Kalu had collected a number of his friends and relations among whom were several of the persons accused here including Hariram, Chhotelal, Pannalal and Champalal. They had been feasting and making merry probably over some liquor till about 9.30 P. M. or so. Whether it was a mere coincidence or whether they were waiting to see when Yadavrao might be returning, the latter did return while they were still at Kalu’s house. In Yadavrao’s own house now there were, besides himself, his wife who had been injured and is an important witness here, his nephew Yeshwantrao alias Balu, who has been killed, and some younger children who have been referred to but are not witnesses. 6. Sometime after the return of Yadavrao, the inmates of his house retired to rest, it being sometime after 9-0 say, about 9-30 or 10-0. Somebody pushed aside the door and peeped in, which according to the evidence, was Chhotelal. In a normal atmosphere, this would not have been very serious but already Yadavrao’s people seem to have apprehended an attack by the members of the other faction. Yashodabai shouted for help, whereupon Balu came out armed with an axe. Somebody pushed aside the door and peeped in, which according to the evidence, was Chhotelal. In a normal atmosphere, this would not have been very serious but already Yadavrao’s people seem to have apprehended an attack by the members of the other faction. Yashodabai shouted for help, whereupon Balu came out armed with an axe. The intruder was still there and, when challenged, tried to run away and was hit by Balu with the axe. He retreated a few hundred yards to a Khala where the society had stored its crop. In fact at the Khala there were a number of people apparently belonging to both the factions watching the collected crop from thieves and may be from one another. Chhotelal went to the Khala and came back with his friend Charnpalal armed with a ballam and was accompanied by Kalu also who in his turn was carrying a lathi. Some others followed but these three went to Yadavrao’s house. Now there was an altercation between these new-comers on the one side and Yadavrao’s people on the other. In this scuffle, Balu gave one or more axe blows to Champalal while Champalal and his friends hit Yadavrao and his wife with lathis and ballam. Any way, at this stage it was Champalal and Chhotelal who had got the worse of the fight. It is even stated that Champalal had fallen down on the ground outside Yadavrao’s door. The Yadarao’s man and wife, were also injured. 7. At this stage, Champalal’s friends went to the village shouting that he had been killed. It is not clear whether the shout was also that Chhotelal had been killed but it was given out that Yadavrao’s people had attacked Champalal and another. Thereupon a number of villagers came armed with,Weapons and were joined by Kalu as well who was near, Yadavrao’s house all the time. Nine persons are alleged to have taken part in the attack on Yadavrao’s people but we are concerned with the parts assigned to four of them. Hariram was armed with a muzzle-loading gun; he is not tithe licensee; but his brother is, and the prosecution case is that this gun was the one that had been licensed the name of Hariram’s brother. Hukuma was there armed with an axe or kulhadi while and Gangarain carried lathis and used them. Hariram was armed with a muzzle-loading gun; he is not tithe licensee; but his brother is, and the prosecution case is that this gun was the one that had been licensed the name of Hariram’s brother. Hukuma was there armed with an axe or kulhadi while and Gangarain carried lathis and used them. About the five others, there is a general allegation that they joined in the attack; among them are Chhotelal and Champalal who had been injured and who were no doubt near Yadavrao’s house; but it can be assumed that the violence, if any used by them, could not have been considerable. Three others—Jangli, Pannalal and Ramratan were certainly nearby either at the Khala or at the field between the Khala and Yadavrao’s house; but the trial Court had acquitted them also as it has done Chhotelal and Champalal because the parts attributed to them were far too general. The four others who are the appellants here, are said to have arrived intending to have their vengeance on Yadavrao’s party because of the attack on Champalal and Chhotelal. Actually, Yadavrao had run to the village as also his wife, after the first beating. Balu who had started towards the Khala from his house was set upon by these four. On the field between the two places, Kalu pulled him by the leg so that he fell down. Hukuma hit him on the head with an axe which broke the skull while Hariram shot right on the face whereupon he died. During this attack Gangarani hit with la lathi. Upon this the assailants dispersed having done what they had come for. 8. The case was started and the corpse was sent for post-mortem examination. The peculiarity of the post-mortem was that meanwhile the corpse had putrefied and the edges of the injuries were not clear. It was, however, clear that some heavy cutting weapon had gone deep into the head and there were four and possible five pellets entering the skull with signs of burning at the edges. The skull itself had been fractured at several places. There was a blunt weapon injury but the death was the result of the shots and the cut in the skull. 9. Two cases were started, one by, Champalal charging Yadavrao and his nephew with attacking him in. which the former was on trial. The skull itself had been fractured at several places. There was a blunt weapon injury but the death was the result of the shots and the cut in the skull. 9. Two cases were started, one by, Champalal charging Yadavrao and his nephew with attacking him in. which the former was on trial. The record would show that at the time of the disposal of the present case Champalal?s case was still pending which is unusual as it would have been better if both the cases had been tried in the same Court, and disposed of by separate judgments on the same day. The present case was, as already noted, against nine accused persons including these four, the unlawful common object being to attack and cause the death of Yadavrao and his nephew. 10. The broad picture is clear and beyond doubt. Whatever happened is divisible into two main sequences of events; the first one immediately in front of Yadavrao’s house in which Chhotelal and Champalal were injured; the second one involving the events that took place after some minutes by when the supporters of the Cliampalal group began to gather from the village. It also seems to have started not far from Yadavrao’s house; but after Yadavrao himself land his wife ran away having received some beating, the crowd began to attack Balu who started running towards the Khala. The distance between the house and the Khala has been roughly estimated as being 400 paces, that is, about 300 yards; but it is approximate. In between there is a field. It was on this field that Balu was pushed down and attacked and killed in the manner already described. As far as these four persons are concerned, the question therefore is about their presence, their possession and use of the weapons attributed to them, and their intention—whether it is the own intention of each of them, or the common intention of all of those who came there on hearing that Champalal had been killed. 11. The prosecution witnesses on the controversial part of the story are four. There is Yashodabai (P. W. 3) of course who has given the first information report but whose evidence is competent only about the earlier parts of the subject-matter of this ease. 11. The prosecution witnesses on the controversial part of the story are four. There is Yashodabai (P. W. 3) of course who has given the first information report but whose evidence is competent only about the earlier parts of the subject-matter of this ease. She was herself attacked and was certainly in a position to see the crowd come from the village; but she started off towards the main village by which time some of the new arrivals were chasing Balu; upto that point her evidence is first-hand and reliable. What happened to Balu after she lost sight of him has naturally to be second-hand and in that regard her evidence is not reliable and we have to depend on the witnesses who were at the Khala and saw the actual attack. I am noting this about Yashodabai’s evidence, because certain remarks in the judgment seem to suggest that the Sessions Judge considered her statement unreliable. Unreliable in a sense it is in so far as the actual murderous attack on her nephew is concerned. This of course is natural; but unreliable it is certainly not in regard to the earlier parts of the happening that she saw before she herself had to run to the village. The direct eye-witnesses to the killing are Atmaram (P. W. 1), Kailash (P. W. 2) and Raghunath (P. W. 6). In addition there are the circumstances, I have set out, which go a long way to show us the general situation there. 12. All these three eye-witnesses to the actual attack belong to that place, live there and were actually at the Khala on that night along with certain others including some of the accused also. Thus they were in a position to follow the course of events. They state that they first heard a man coming from the direction of Yadavrao’s house shouting that he had been hit; and this was followed by a movement towards Yadavrao’s house by the sympathisers of the injured man. The witnesses are also clear that in course of day a number of persons had collected at Kalu’s place, whether it was a sheer coincidence that the incident happened on that night, or it was the intention of those assembled in Kalu’s place to drag Yadavrao and his people into a violent quarrel. The witnesses are also clear that in course of day a number of persons had collected at Kalu’s place, whether it was a sheer coincidence that the incident happened on that night, or it was the intention of those assembled in Kalu’s place to drag Yadavrao and his people into a violent quarrel. Be that as it may, these three witnesses give a vivid picture of what happened after people went about shouting that Champalal had been killed. In fact in the instant case we are directly concerned with the course of events after Champalal was injured by Balu and his supporters went about raising a hue and cry that he had been killed and some of them came there to have their vengeance. The witnesses were in an excellent position to note the movements of those who came there and what they did while Balu was chased into a field to a place near the Khala where he fell down. 13. The picture given by these three witnesses is a consistent one and it is to the effect that these four appellants were among the pursuers. They are also certain that Hariram had a gun, Hukuma had an axe and the two others had lathis. We are of course not concerned with the weapons attributed to the other accused persons which are lathis. Balu was trying to escape till he was tripped by Kalu. It is quite conceivable: that had Balu been allowed to run ahead, he might have reached the vidyalaya in the main village as his uncle had done and got out of the whole affair with comparatively mild injuries. But once he was thrown down his fate was sealed, because his pursuers, anxious to have their vengeance for what they considered to be an attack on one of their companions, were not in a mood to spare him. The first blow it is said was given by Hukuma on Balu’s head with an axe. To be sure there is an injury numbered 2 in the list of injuries given by the medical witness which could have been caused by a heavy cutting weapon. Certainly, the edges are described as being “lacerated”, but this is not inconsistent with the weapon being an axe, because it was on a bony part of the body and again there had been some putrefaction. Certainly, the edges are described as being “lacerated”, but this is not inconsistent with the weapon being an axe, because it was on a bony part of the body and again there had been some putrefaction. The significant thing is that it went deep and the underlying bone had been fractured. It is said that at that stave Hariram asked the others to keep oil’ as he would shoot which would of course settle the matter at once. Whether or not these were the words he used, his action was clear because the gun was shot on the head and face at a very short range as indicated by the edges of the shot injuries. At least four of the pellets had got in each causing fracture of the skull. In addition there were one or two blunt weapon injuries. We are told that Gangaram hit with a lathi and there are at least some injuries to support an attack of that kind. 14. The suggestion is that these Witnesses are members of a faction opposed to that of the appellants. This is by no means certain; but it is not improbable, because the whole society seems to be faction-riddled and there may not have been even a single member who owes no loyalty to either of the groups. But that is no reason why we should disbelieve these witnesses and they give a clear description of the course of events. Their presence at the Khala is certain and has not in fact been seriously disputed. If they were at the Khala at that night, they could certainly have seen the manner in which Balu was attacked and killed. 15. Weapons had been recovered from these accused persons; but that evidence is not of very great importance. All that we know about the gun belonging to Hariram’s brother is that it had signs of use at about the time of this happening. It is not established that there were marks of human blood a on the axe. As for lathis, they are quite common. But apart from the discovery of the weapons, there is no reason why the statements of these three witnesses should be rejected while they fit in with all that has happened and is really beyond controversy. 16. It is not established that there were marks of human blood a on the axe. As for lathis, they are quite common. But apart from the discovery of the weapons, there is no reason why the statements of these three witnesses should be rejected while they fit in with all that has happened and is really beyond controversy. 16. Yadavrao’s evidence and that of his wife have, as already stated, no direct bearing upon the immediate question; but they speak fully about the introductory matter which is of some importance. Whether or not Balu was justified in hitting the persons whom he considered to be intruders into his house is a question best left open in this case. But whatever Balu’s responsibility and justification for it, that incident was complete and there was nothing more to be done when these appellants collected for a reprisal on Yadavrao’s People. If the hitting of Champalal and Chhotelal was a criminal offence that incident was over and there was no justification for their friends going in a body and to attack Balu and Yadavrao. They could start a case about it, as indeed they have now done, and let the law take its course against the Yadavrao’s. Thus there is no question of provocation or private defence and really they have not been raised as a defence. 17. Besides a general denial the defence is that the witnesses who are partisans have made omnibus statements and there are, it is alleged, some inconsistencies or contradictions. Actually the Sessions Court has eliminated all statements which give the appearance of being general ones and such as could be made without clear first-hand observation. It has only taken into account the statements given by witnesses which have been particularised with reference to this or that accused person. In fact it is the rejection of the omnibus statements that has led to the acquittal of five out of the nine because the Court seems to have felt that even if these five had been present (and at least two of them had been certainly present) no specific verifiable act had been brought home against them, and their privity to tie common intention or common object had been beyond reasonable doubt. As far contradictions, a study of the evidence of all these witnesses shows that on the whole there is agreement. As far contradictions, a study of the evidence of all these witnesses shows that on the whole there is agreement. A small difference here and a variation there about some matter of detail or estimate of distance is of little consequence. Very often it is an indication that the witnesses speak the truth spontaneously. The evidence of these three eye-witnesses is very impressive and is quite consistent with the general picture and also fits in with the statement of Yadavrao and his wife. The Sessions Court seems to feel that the latter had been exaggerating or for some reasons is not quite realiable; on the contrary, I have made a broad analysis of her evidence in the earlier part of the judgment and I find that as far as the first-hand observations are concerned, she is quite reliable. As for the killing of Balu, her evidence does not directly come in because it took place after she had managed to escape. Thus I find that the statement of the witnesses is quite acceptable. 18. Considerable argument has been made with citations of case-law as to the propriety or otherwise of the Courts having, while acquitting these persons of the charges under section M9, convicted them under the main section 302 now read with section 34, Indian Penal Code. In this regard, Hariram who shot with his gun and of Hukuma who hit on the head with an axe each causing injuries which by themselves were certain to result in death stand on a different footing from the two others, namely. Kalu who pulled down the fugitive and Gangaram who hit with lathi. The former two, would in any view of the matter, be guilty directly under section 302 itself Whether or not we invoke section 34. Further, their intention to cause such injuries as were certain to kill is so patent that discussion is unnecessary as to whether they had a common intention and whether there has been prejudice in that there has been no charge mentioning section 34. The facts alleged against them have been clearly placed in the evidence and markedly put in the question under section 34:2, Criminal Procedure Code. 19. It is in respect of the latter two that the question of common intention would at all arise. The facts alleged against them have been clearly placed in the evidence and markedly put in the question under section 34:2, Criminal Procedure Code. 19. It is in respect of the latter two that the question of common intention would at all arise. It is unnecessary to set out at length the case-law because by now a number of decisions of the Supreme Court have made the position quite clear. In particular, the rulings in Amjad Khan v. State ( AIR 1952 SC 167 ),Karnail Singh and another v. State of Punjab ( AIR 1954 SC 204 ), Nanak Chand v. State of Punjab ( AIR 1955 SC 274 ) and Chikkarange Gowda and others v. State of Mysore ( AIR 1956 SC 731 ) form as it were a complete code on this subject. In a later ruling they have explained fully the implications of section 149, Indian Penal Code, with which, however, we are not directly dealing in this case. Here we have it that these appellants and possibly a few more came from the main village Machla when a hue and cry was raised that one of their partisans Champalal had been killed. When they started from the village, we can assume that their intention (Whether it was the common intention or the same or similar intention of different persons) was to teach a lesson by way of reprisal. But when they came to the scene of the happening and began to chase Balu, the intention did become common, because there was a unity of purpose and of course unity of time and place. When more than one person jointly give a chase to a victim and are armed in a manner that enables each to know what the other is carrying, there can be no doubt about the commonness of the intention. It is not merely that each of the pursuers has got his own plans and there is a sameness or similarity of ideas, but there is a unity of purpose because they are giving pursuit together. What their common intention is, is to be deduced from the nature of the weapons carried and the gestures or words used. It is not merely that each of the pursuers has got his own plans and there is a sameness or similarity of ideas, but there is a unity of purpose because they are giving pursuit together. What their common intention is, is to be deduced from the nature of the weapons carried and the gestures or words used. Nor is it necessary that each man should be carrying a weapon which is usually considered deadly; there may be a very dangerous weapon in the hands of one of the pursuers, a less dangerous in the hand of another, and in the hand of the third something which is not popularly considered deadly. It is in a situation like this that the scope of section 34 approaches and almost overlaps that of section 149, Indian Penal Code. The common intention and the common object are co-extensive; still the two sections are distinctly ascertainable in the manner explained in Chikkarange Gowda and others v. State of Mysore ( AIR 1956 SC 731 ). When at this stage one of the pursuers pushes down the victim of the pursuit, he is facilitating the attack by others and by himself. When among others there a gun and an axe the intention beyond doubt is to kill or cause injuries that will in due course result in death; it is certainly common because each is doing overt acts in furtherance of what all of them jointly intend to bring about. The same remarks would apply to a person who hits with a lathi which is the only weapon he has got while his companions are busy with a gun and an axe. In a context like this, there is no doubt about the commonness of the intention and the identity of the nature of the intention itself. 20. It has also been urged that there has been prejudice because the common intention was not put so many words to the accused persons while they were examined under section 342, Criminal Procedure Code. There is no doubt that the ingredients of the offence should be placed before the accused while he is being examined; but there is no rule that certain words should be put. Actually, I would disapprove of bewildering an accused person by using learned and controversial words and phrases. There is no doubt that the ingredients of the offence should be placed before the accused while he is being examined; but there is no rule that certain words should be put. Actually, I would disapprove of bewildering an accused person by using learned and controversial words and phrases. To call upon, and accused person to distinguish between common intention and common object the usual language of the lawyers serves no useful purpose, and far from helping him to under-stand the case again him will only result in confusion. What has to be done is to place before him the facts alleged from which the common intention or object is derived, and the motives and purposes attributed to him. It has been done in the instant in clear terms. No doubt the words in Hindi which are understood to be a translation of the English words “common intention” have not been put. But every factual element has been put to the accused and it has been denied. 21. In this connection the remarks of the Calcutta High Court in the case reported in Nemal Adak and others v. State ( AIR 1965 Cal. 89 ) are instructive: “When several persons are charged for an offence committed in pursuance of common object under section 149, Indian Penal Code and the charge under section 147, Indian Penal Code, is not established, a conviction for an offence committed in furtherance of a common intention under section 34, Indian Penal Code, is permissible provided no prejudice results therefrom and the facts are such that the accused could have been charged alternatively under section 149 or under section 34, Indian Penal Code. Such a situation might arise only when the common intention is co-extensive with the common object and does not go behind the common object.” In the instant case the common intention on the basis of which these men have been convicted is exactly co-extensive with the common object set out in the charge. There is no prejudice. 22. The result of the discussion is that these four men were rightly convicted under section 302 read with section 34, Indian Penal Code. In fact we would convict Hariram and Hukma straightway under section 302 without invoking common intention; but that makes no material difference. 23. Government has thought fit to make an application for enhancement of sentences. 22. The result of the discussion is that these four men were rightly convicted under section 302 read with section 34, Indian Penal Code. In fact we would convict Hariram and Hukma straightway under section 302 without invoking common intention; but that makes no material difference. 23. Government has thought fit to make an application for enhancement of sentences. If the Sessions Court had awarded the death penalty to the users of the gun and the axe there may have been no serious argument urgeable against it. But now it has treated all the four alike in the matter of punishment. There is an argument against it in the nature of the weapons used by two of them. But the background is something of an extenuating circumstance, Anyway, the Sessions Court having awarded the lesser penalty it is unnecessary at this stage to enhance the sentence. 24. The convictions and sentences are maintained and all the four appeals as well as the application by the State are dismissed.