JUDGMENT Gyanendra Kumar, J. - The two Appellants, Har Narain and Lal Bahadur, sons of Ram Tapeshwar, have been sentenced to life imprisonment for committing the murder of Sheo Shanker, a resident of their own village Chhtauni, at about 10 a.m. on 1-7-1967. 2. The long standing enmity and ill will between the deceased and his brother PW Ram Agya Singh on the one hand and the accused persons on the other is amply proved by the documentary and oral evidence on record. The main reason was that on 15-7-1957 Ram Tapeshwar (father of the accused) had sold two plots of land to Sheo Shanker (deceased) who came into their possession. Again on 21-9-1964 the said Tapeshwar sold another plot No. 270 to the deceased. The accused persons felt aggrieved by the said sales, which were said to be without legal necessity and without due consideration or benefit to the estate. The accused accordingly asked Sheo Shanker several times to leave the fields but he did not listen to their demand. Consequently on 19-10-1965 they jointly filed suit No. 199 of 1965 in the Court of the Munsif Bansgaon for cancellation of the said sale deeds and for delivery of possession over the lands, if the Plaintiffs were found to be out of possession. It is also in evidence that 3-7-1967 was the date fixed for hearing of the suit. The accused persons themselves allege in their statements that they had been falsely implicated in the crime due to their enmity with the deceased and his brother PW 1 Ram Agya Singh. Thus there was sufficient motive for the accused to commit the crime. 3. The prosecution case is that on 1-7-1967 at about 10 a.m. Sheo Shanker (deceased) was grazing his buffaloes, sitting under a mango tree, facing east, in the thinly planted grove of one Bhagelu Singh, which was situate to the immediate east of the ploughed up field of Balram Singh. At that time PW 1 Ram Agya Singh informant (brother of the deceased) was ploughing his field situate at a distance of about 140 yards, towards the south. There is a water tap at a distance of about 100 yards towards south west of the place where Sheo Shanker was sitting. At the relevant time four other eye witnesses, viz. At that time PW 1 Ram Agya Singh informant (brother of the deceased) was ploughing his field situate at a distance of about 140 yards, towards the south. There is a water tap at a distance of about 100 yards towards south west of the place where Sheo Shanker was sitting. At the relevant time four other eye witnesses, viz. PW 2 Bajpai, PW 3 Ram Chandra, PW 4 Naurang and PW 6, Balai, are said to have been sitting near the water tap chatting with one another. It is said that it was PW 3 Ram Chandra who first eyed the two accused slowly proceeding towards the deceased from the west. Har Narain Appellant was armed with a pharsa, while Lal Bahadur had a lathi. Seeing the said accused so approaching the deceased, Ram Chandra is alleged to have shouted out 'Hain, Hain'--an exclamation meant to desist the accused from carrying out their evil intention. The two accused, however, further proceeded towards the deceased and instantly, Har Narain gave a pharsa blow on his neck and Lal Bahadur caused a lathi injury to the deceased, whereafter both of them ran away towards village, Patkhausi, situate to the north-west. Sheo Shanker, being injured sprang up, staggered some steps and slumped down towards the west. All the aforesaid five eye-witnesses rushed to the spot and found that Sheo Shanker had succumbed to his injuries. PW 1 Ram Agya Singh then wrote the report (Ex. Ka-1) and lodged the same at police station Barhalganj at 12.35 p.m.--the thana being seven miles off. 4. The investigation was taken up by the Second Officer, PW 13 Akshaibar Misra, who reached the scene of occurrence at about 2 p.m. After necessary formalities, he sent the dead body for post mortem examination, collected blood stained earth from two spots shown by figures 1 and 2 in the site plan. The IO also took into his possession the clothes of the deceased and later on recovered a blood stained pharsa (Ext. 4) from the house of the accused. 5. The post mortem examination was conducted by PW 8 Dr. The IO also took into his possession the clothes of the deceased and later on recovered a blood stained pharsa (Ext. 4) from the house of the accused. 5. The post mortem examination was conducted by PW 8 Dr. S.K. Pandey, of Civil Hospital, Gorakhpur on 2-7-1967 at 3 p.m. The doctor found the following two ante mortem injuries on the corpse: (i) A clean cut wound 3" 1/2" muscle deep on the root of the right side neck; and (ii) a contusion 3" 2 1/4" on the left cheek. 6. On internal examination the doctor observed that the carotid artery and large veins of the neck had been cut at the level of injury No. 1. Stomach was full and contained about one pound of semi digested food, consisting of rice and dal. In the opinion of the doctor, death was due to shock and haemorrhage on account of the neck injury. He further opined that the neck injury could have been caused by pharsa (Ext. 4) and that the contusion could have been caused by a lathi, but it could also result from a fall on a hard object or hard surface of the ground. 7. The Chemical Examiner and the serologist found that the dhoti, angauchha and bandi of the deceased as well as the pharsa (Ex. 4) were all stained with human blood. 8. As stated at the outset, there are five eye witnesses of the occurrence. At the time of the occurrence there was broad daylight and the accused persons belonged to the same village. Therefore, there was no question of the eye witnesses making any mistake about the identity of the accused. It is true that PW 1 Ram Agya Singh is a brother of the deceased and Suit No. 199 of 1965 jointly filed by the accused against him and his brother, Sheo Shanker deceased, was still pending. It is again correct that PW 3 Ram Chandra was a party with the deceased in proceedings Under Sections 107/117 Code of Criminal Procedure (vide Ex Kha 8 dated 16-7-1965) and further in a proceeding u/s 145 Code of Criminal Procedure Sheo Shanker deceased had filed his affidavit in support of the case of this witness Likewise, PW 4 Naurang, who was Sabhapati, had appeared as a witness against another brother of the accused in a civil case. Yet it is difficult to believe that on above account these witnesses would implicate the accused persons falsely on a murder charge, leaving the real culprits. The other two eye witnesses are quite independent and there is no reason at all to doubt their sworn testimony. The clean cut wound found on the right side of the deceased absolutely fits in with the prosecution evidence that Har Narain had struck his pharsa on the right side neck of the deceased from behind. All the eye witnesses were cross examined at length but nothing material was made out to doubt their evidence, which was rightly believed by the learned Sessions Judge. Thus a case of murder has been fully established against Har Narain Appellant, who had given the fatal blow, beyond any shadolw of doubt. He has already been given the lesser sentence of life imprisonment u/s 302 IPC simpliciter. 9. However, as regards Lal Bahadur accused, it has been strenuously argued by the learned Counsel for the defence that he could not have been convicted u/s 302/34 IPC as he had not done any overt act, even if it is believed that he had accompanied his brother Har Narain on his sordid mission. It is contended that the Contusion found on the left cheek of the deceased might have well been caused by his fall on the ground, when he slumped down a few paces of towards the west, after receiving the pharsa injury on his neck. In this connection reference may be made to the testimony of Dr. Pandey, who was of the opinion the although the contusion appeared to have been caused by a lathi, yet it could also result by a contact against some hard object or fall on hard surface of the earth. The testimony of the prosecution witnesses, particularly that of the IO, shows that the fields around the mango tree, where the deceased was sitting at the time of the occurrence, had been ploughed up. But it is a matter of common knowledge that ploughing is not done right up to the trunk of a tree, firstly, because it would damage the tree and secondly, it is impossible to plough very close to a fully grown up the trees because of its sturdy roots spreading all round. But it is a matter of common knowledge that ploughing is not done right up to the trunk of a tree, firstly, because it would damage the tree and secondly, it is impossible to plough very close to a fully grown up the trees because of its sturdy roots spreading all round. Therefore, the possibility of the deceased having received the contusion on his cheek by striking against the bard surface of the ground or some root of the mango tress running on or just below the surface of the earth cannot be ruled out. 10. It has now to be determined what offence, if any, had Lal Bahadur committed, even if he had not struck a lathi blow on the deceased but had accompanied his brother Har Narain, who was armed with a pharsa and had actually struck it on the deceased. In other words whether Lal Bahadur can be saddled with any constructive criminal liability on account of his act and conduct judged in the light of the proved facts, circumstances and back ground of the case. To put it differently, can Lal Bahadur be said to have had the common intention with Har Narain to commit the murder of Sheo Shanker or cause him grievous hurt with a dangerous weapon, within the meaning of Section 34 IPC. 11. Lot of argument was advanced by Mr. S.N. Mulla on the subtle difference between 'common intention' and 'similar intention'. He pleads that Lal Bahadur, at the worst, may have had a similar intention to beat up the deceased with his lathi, but he had no common intention with Har Narain either to kill or even cause grievous hurt to the deceased with a dangerous weapon. In a case of similar intention, the criminal enterprise is not carried out in furtherance of a preconceived and prearranged plan by the accused persons. There is no prior meeting of minds....no community of purpose--no design--and no prior concert. In the words of their Lordships of the Supreme Court in Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, AIR 1955 SC 216 : 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. The State of Hyderabad, AIR 1955 SC 216 : 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 at-tack 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....the partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial and if over looked will result in miscarriage of justice..... It is true prior concert and arrangement can and indeed often must, be determined from subsequent conduct, as for example, by a systematic plan of compaign unfolding itself during the course of the action which could only be referable to prior concert and pre arrangement, or a running away together in a body or a meeting together subsequently. Likewise, in Kripal and Others Vs. State of Uttar Pradesh, AIR 1954 SC 706 it was observed in para 6: Whether in a proved situation all the individuals concerned therein 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 been developed and thereby intended by all of them, is a question that has to be determined on the facts. 12. The facts of Kripal's case are that the three Appellants, Bhopal, Kripal and Sheoraj accused were working the well that morning. When they saw Man Singh and Sher Singh going past the well they asked them where they were going. 12. The facts of Kripal's case are that the three Appellants, Bhopal, Kripal and Sheoraj accused were working the well that morning. When they saw Man Singh and Sher Singh going past the well they asked them where they were going. On being told that they were going to harvest Jiraj's sugarcane field they abused them and told them not to go there but to work for them. Man Singh and Sher Singh did not listen to them and walked on. When they had gone 30 40 paces, the three Appellants rushed at them and began to beat them with the handles of spears which were in the hands of Bhopal and Kripal and with a lathi which was in Sheoraj's hand. Jiraj arrived at the spot and asked the Appellants why they were beating them. Sheoraj hit him on the legs with his lathi and he fell down. Kripal stabbed him with his spear near the ear. Bhopal then stabbed him with his spear on the left jaw, put his legs on his chest and extracted the spear from his jaw. Just as the blade came off, Jiraj died. On the above facts their Lordships observed: We are, therefore, unable to uphold the view taken by the High Court that any common intention to kill the deceased can be attributed to the three Appellants. Therefore, the only common intention that can be attributed to all the three Appellants in so far as the assault on Jiraj is concerned is the common intention to beat Jiraj also with the weapons in their hands, which were likely to produce grievous injuries. In this view therefore, all the three would be guilty in respect of their assault on jiraj for an offence u/s 326 IPC, while Bhopal alone would guilty in respect of the offence u/s 302 IPC. It follows from that the conviction of both Kripal and Sheoraj u/s 302 IPC, must be set aside but that of Bhopal has to be maintained. 13. A typical example of similar intention would be when two common enemies of the same person suddenly happen to meet him at a public high way and each one of them, independently of the other, gives a beating to that common enemy with a view to kill him or cause grievous hurt to him by their respective weapons. 13. A typical example of similar intention would be when two common enemies of the same person suddenly happen to meet him at a public high way and each one of them, independently of the other, gives a beating to that common enemy with a view to kill him or cause grievous hurt to him by their respective weapons. In such a case there is no meeting of minds from before nor is there any pre-conceived plan. Hence there can be no vicarious liability. The instant one is not such a case. Here the following facts and circumstances clearly show that there was a meeting of minds between the two accused from before, leading to community of purpose and design to at least cause grievous hurt to the deceased with a dangerous weapon like pharsa: (a) both the accused are brothers and live together; (b) both of them had enmity with the deceased and had actually filed a joint civil suit against him for cancellation of the two sale deeds executed in his favour by their father; (c) 3rd of July (which would have fallen two days after the occurrence) was fixed for hearing of that suit; (d) both the accused quietly proceeded together towards the deceased, one armed with a pharsa and the other with a lathi; (e) there is no public way or path running by the side of the mango tree, where the deceased was sitting at the fateful hour; (f) the fields around the tree had been ploughed up wife the result that the accused persons had deliberately to walk across the furrowed fields in order to reach the deceased; (g) it was not an impulsive act, which might have been committed at the spur of the moment but was obviously a studied and calculated action planned from before; and (h) After Har Narain had inflicted the mortal blow on the neck of deceased, both the accused rah off together to wards the north-west. 14. The criminal enterprise in question was, therefore, a case of preconcert and common intention of the two accused at least to cause grievous hurt to the deceased by means of ft dangerous weapon like pharsa. Here the accused persons did not just come across the deceased by chance so as to have merely a similar intention to beat him. 14. The criminal enterprise in question was, therefore, a case of preconcert and common intention of the two accused at least to cause grievous hurt to the deceased by means of ft dangerous weapon like pharsa. Here the accused persons did not just come across the deceased by chance so as to have merely a similar intention to beat him. Yet it cannot be said that Lal Bahadur had necessarily the common intention with his brother Har Narain to kill the deceased out right. The only common intention that could be legally attributed to him, so for as the assault on Sheo Shanker (deceased) is concerned, was the common intention to cause him simple and grievous injuries, with the weapons which the two accused were carrying in their hands. There is nothing to show that Lal Bahadur knew that his brother would hit the deceased on his neck and would there by cause his death on the spot. The only common intention which can be attributed to Lal Bahadur, therefore is that he knew that his brother Har Narain was going to cause a grievous hurt to the deceased by means of his pharsa. In such a situation, Lal Bahadur Appellant would be guilty only of an offence u/s 326/34 IPC. 15. In the result, we dismiss the appeal of Har Narain and maintain his conviction and sentence u/s 302 IPC. He is in jail and shall serve out the remaining period of his sentence. However, the appeal of Lal Bahadur is allowed in part. His conviction and sentence u/s 302/34 IPC are set aside. Instead, he is convicted u/s 326/34 IPC and sentenced to seven years R.I. He is on bail and will surrender to his bail bonds forthwith, failing which he shall be taken into custody to serve out the sentence now imposed upon him.