Judgment :- 1. The appellants are accused Nos.1 to 7 in Sessions Case No. 39 of 1976 on the tile of the Court of Session, Kozhikode. They were all convicted for various offences including murder and sentenced to imprisonment for life. There were three more accused persons in the case. They were acquitted. 2. In connection with the murder of one Chandrasekhara Kurup, who was son of pw. 11 and brother of Viswanatha Kurup and pw. 2, accused Nos.1 to 3 were convicted under S.302 of the Indian Penal Code. For the same offence accused Nos. 4 to 7 were convicted under that section read with S.149 of the IPC. For attempt to murder Viswanatha Kurup accused Nos. 3 and 6 were convicted under S.307 and accused Nos. 1, 2, 5 and 7 under S.307 read with S.149 of the IPC. Accused Nos.1 to 7 were convicted under S.143,148, 323 and 324 read with S 149 of the IPC. The convictions under S.323 and 324 were for causing hurt to pws 1 to 3. The prosecution case was that murder of Chandrasekhara Kurup, attempt to murder Viswanatha Kurup and causing of hurt to pws.1 to 3 were all in furtherance of the common object of an unlawful assembly of which the accused persons were members. As accused Nos.1 to 7 were sentenced to imprisonment for life for the conviction for murder no separate sentence was awarded to them for the other convictions. 3. The incident took place at or about 6.30 p. m. on April 20, last year at Nechooli bazaar within the jurisdiction of the Kunnamangalam Police Station. 4. Accused Nos.1 and 2 are brothers. Accused Nos. 3 and 4 are also brothers. The fifth accused is the fourth accused's son. Accused Nos. 6 and 7 are said to be friends and associates of the remaining accused persons. 5. The relationship between pw. 11 on the one side and the accused persons on the other was strained for some time past. Besides there being civil litigations there were proceedings before criminal courts also between them On the date when the occurrence took place a suit filed by pw. 11 against accused Nos. 3 4 and a criminal complaint filed by the ninth accused against pw. 11 and bis sons were pending. 6. The road where the incident took place lies east to west. 11 against accused Nos. 3 4 and a criminal complaint filed by the ninth accused against pw. 11 and bis sons were pending. 6. The road where the incident took place lies east to west. Just before the occurrence when Chandrasekhara Kurup was going west along the road with pw.1 behind him and they reached a place near the shop of pw. 7 on the southern side of the road accused Nos.1 and 2, who were standing there, came near them. The first accused gave Chandrasekhara Kurup a slap on the face. The second accused took out a knife and with it stabbed Chandrasekhara Kurup on his back. Chandrasekhara Kurup cried and ran west. When he reached a place near the shop of pw. 2 accused Nos. 3,4,5,6 and 7, who were on the northern side of the road, rushed towards him. After declaring that Chandrasekhara Kurup would be killed the third accused stabbed him with knife on back. Then accused Nos.1 and 2 came near Chandrasekhara Kurup. The first accused grappled with Chandrasekhara Kurup. They both fell down. After the fall the first accused sat on Chandrasekhara Kurup's abdomen and with knife stabbed Chandrasekhara Kurup successively on chest. When the first accused stood up after that Chandrasekhara Kurup turn d and lay with face down. Then the third accused stabbed Chandrasekhara Kurup on back. Viswanatha Kuiupand pw. 2 rushed to the scene and implored the third accused not to kill Chandrasekhara Kurup. At (hat time the sixth accused beat Viswanatha Kurup with the cadjan, M. 0.4. Viswanatha Kurup fell down. Then accused No. 3 stabbed Viswanatha Kurup and accused No. 2 stabbed pws 1 and 2 with knives, and accused no. 4, 5 and 7 beat pw. 2 with bands. When pw. 3 came to the place the first accused stabbed him with knife and the sixth accused beat him with cadjan. After the incident the accused persons left the scene. Chandrasekhara Kurup died at the spot. The remaining injured persons were removed by the persons who gathered there to the Medical College Hospital at Calicut. 7. The Sub Inspector of Police Kunnamangalam, pw. 2, on getting vague information that an incident had taken place at the scene and that the injured persons had been removed to the hospital went to the Medical College Hospital and recorded at 10 p.m. the same day the first information, Ext. 7. The Sub Inspector of Police Kunnamangalam, pw. 2, on getting vague information that an incident had taken place at the scene and that the injured persons had been removed to the hospital went to the Medical College Hospital and recorded at 10 p.m. the same day the first information, Ext. P1, given by pw. 1. It was on the basis of it that the case was taken up. The accused persons were arrested, accused Nos.1 to 5 and 7 on June 30, accused Nos. 8, 9 and 10 on July 9 and accused No. 6 on September 20,1976. 8. In his statement before court the details regarding the incident were mentioned by the second accused. The remaining accused persons supported his version. The second accused said that when he and the third accused were in the bazaar he was attacked by pws.1 and 2, Chandrasekhara Kurup and Viswanatha Kurup. When they attacked him be wrested from Chandrasekhara Kurup the knife which was in his hands. Thereafter with that knife be attacked them. At that time the fourth accused came and tried to intervene to bring peace. But he did not succeed. Accused No. 2 saw blood at the scene at the time. Getting frightened at that he ran away. When be was going away he saw the first accused coming to the place. The first accused also ran away at the time. 9. It is not disputed that Chandrasekhara Kurup died as a result of the injuries sustained by him and that hurt was caused to Viswanatha Kurup and pws. 1, 2 and 3 at the time of the occurrence. The post-mortem certificate and inquest report are respectively Exts. P 7 and P 34. The wound certificates issued to Viswanatha Kurup and pws. 1, 2 and 3 are respectively Exts. P 9, P 10, P 8 and P1118 injuries are noted in Ext. P 7. Out of them four were only abrasions and three, although incised, were only either skin-deep or bone-deep. Out of the remaining 11 injuries Nos.1 to 10 and 17 noted in Ext. P 7, two were on the left and one on the right chest. They were injuries 1 to 3 in Ext. P 7. Injuries Nos. 5, 6, 8, 9 and 10 were on the back. Injury No.1 cut the fourth rib and right lung. Out of the remaining 11 injuries Nos.1 to 10 and 17 noted in Ext. P 7, two were on the left and one on the right chest. They were injuries 1 to 3 in Ext. P 7. Injuries Nos. 5, 6, 8, 9 and 10 were on the back. Injury No.1 cut the fourth rib and right lung. Injury No. 2 pierced ventricle of heart and injury No 5 cut lung Injuries 1,2 and 5 each by itself was necessarily fatal. It is clear that the intention of the persons who caused those injuries on Chandrasekhara Kurup was to cause his death. 10. Viswanatha Kurup sustained five injuries. X-ray revealed that there was fracture of the frontal and left parietal bones. That corresponded to external injury No 5 noted in Ext. P 9. The opinion of the Doctor who examined Viswanatha Kurup was that it could be caused by beating with M. 0.4. Except the fifth injury, which was lacerated, all the other injuries noted in Ext. P9 were incised. 11. The occurrence witnesses are pws.1 to 8. All of them spoke to accused Nos. 1, 2 and 3 being the persons who inflicted the injuries found on Chandrasekhara Kurup. All of them, except pw. 7, spoke to the third accused having stabbed Viswanatha Kurup with knife and the sixth accused having beat him with cadjan. About the causing of hurt to pw.1 by the second accused and the causing of hurt to pw. 2 by accused Nos. 2,4,5 and 7 all the occurrence witnesses, except pw. 7, spoke to having seen the same. About the causing of hurt to pw 3 by accused Nos. I and 6 all the occurence witnesses, except pws. 6 and 7, spoke to having seen it. According to pws. I to 8 it was in the circumstances and in the manner stated by the prosecution that Chandrasekhara Kurup, Viswanatha Kurup and pws 1 to 3 sustained injuries. 12. The second accused in his statement before court admitted the presence of Chandrasekhara Kurup, Viswanatha Kurup and pws.1 to 3 at the scene. Admittedly pws 1 to 3 sustained injuries at the time of the occurrence. The first information statement was given within a short time after the occurrence. Therein the names of pws.1 to 4 and 8 were mentioned. pws. 5,6 and 7 were questioned even on the next day after the occurrence. Admittedly pws 1 to 3 sustained injuries at the time of the occurrence. The first information statement was given within a short time after the occurrence. Therein the names of pws.1 to 4 and 8 were mentioned. pws. 5,6 and 7 were questioned even on the next day after the occurrence. On the day after that pws. 1, 3 and 8 were also questioned. pw. 2 was questioned two days after that. 13. The occurrence took place before dusk at the bazaar studded with shops on either side of the road. pw.1 was at the time of occurence coming behind Chandrasekhara Kurup. pw. 2 runs a shop in the bazaar. pw. 3 is a person who came to the bazaar to return some empty gunny bags to a shop-owner there. pw. 4 came to the place to take tea. At the time of occurence he was sitting on the verandah of the shop of one Koyasen. pw. 5 runs a barber shop in the bazaar. pw. 6 runs a tea-shop and pw. 7 a bunk-shop in the bazaar. pw. 8 is a director of the Kunnamangalam Service Co-operative Bank. Although his house is 11/2 furlongs south of the bazaar be happened to be in the bazaar at the time of occurrence. The incident was witnessed by all these witnesses at close quarters. 14. As regards that part of the incident in which Chandrasekhara Kurup sustained injuries it can be divided into four stages. The first stage was when second accused stabbed him on his back, the second when the third accused stabbed him on bis back, the third when the first accused stabbed him on bis chest and the last when the third accused stabbed him on his back. As regards these four stages, while pws.1 and 4 saw all these stages of the incident, pws. 2, 5 and 8 did not see the first two stages, pw. 3 the first stage, pw. 6 the first and fourth stages and pw. 7 the second, third and fourth stages. As regards the details of those parts of the incident which these witnesses saw, their evidence on all material particulars is clear, consistent and convincing. Nothing was brought out in their cross-examination to disbelieve them so far as these matters were concerned. 6 the first and fourth stages and pw. 7 the second, third and fourth stages. As regards the details of those parts of the incident which these witnesses saw, their evidence on all material particulars is clear, consistent and convincing. Nothing was brought out in their cross-examination to disbelieve them so far as these matters were concerned. None of them was even to the slightest degree economical of that frankness and truth to which the court is entitled. Their evidence shows that it was accused Nos.1 to 3 who caused the injuries found on Chandrasekhara Kurup, 15. The evidence of pws.1 to 6 and 8 shows that the incised injuries on Viswanatha Kurup were caused by the third accused and the lacerated injury was caused by the sixth accused. Viswanatha Kurup was unconscious when he was admitted in the Medical College Hospital. During the trial of the case his condition was such that he could not understand the proceedings in court There is no doubt that the injuries on him were caused by accused Nos. 3 and 6 with such knowledge and under such circumstances that if by those acts they bad caused his death they would have been guilty of murder. 16. The injuries sustained by pws.1 to 3 were all simple It is true that pw.1 sustained only a lacerated injury and that it could not be caused by coming into contact with the sharp edge of a knife But from that it cannot be inferred that the statement of the occurrence witnesses in court that it was as a result of coming into contact with knife that it was caused was not true because it may as well be that it was the blunt portion of the knife that came into contact with that portion of pw. 1's body. 17. Certain statements in the wound certificates, Exts. P8, P10 and P11, as to how pws. 1, 2 and 3 sustained injuries were relied upon as prior statements made by them to contradict their evidence before court regarding the identity of the assailants and the nature of the weapons used. But the Doctor who issued those certificates did not say that the statements regarding those matters contained in Exts. P8, P10 and P11 were made by pws. 1, 2 and 3. But the Doctor who issued those certificates did not say that the statements regarding those matters contained in Exts. P8, P10 and P11 were made by pws. 1, 2 and 3. So it is not right to rely upon those statements for the purpose of contradicting the evidence of pws.1 to 3 before court. 18. The statement in Ext. P1 that pw.1 did not know when he gave the statement, Ext. P 1, as to who attacked pw. 3 was relied upon to discredit pw. 3. That is not a prior statement of pw. 3 which can be relied upon for the purpose of contradicting him. 19. As regards some of the occurrence witnesses questions were asked in cross-examination as to whether they were not in one way or other connected with one Chandu, said to be the manager of pw. 11. From the mere fact that there was some connection between these witnesses and Chandu it cannot be taken that they would not have spoken truth regarding what they had witnessed. 20. The evidence of pws.1 to 6 and 8 shows that the second accused stabbed pws.1 and 2 with knife, the first accused stabbed pw. 3 with knife, accused Nos. 4, 5 and 7 beat pw. 2 with bands and the sixth accused beat pw. 3 with cadjan. Corresponding injuries were also found on pws. 1, 2 and 3. 21. The prosecution evidence regarding the persons who inflicted injuries on Chandrasekhara Kurup, Viswanatha Kurup and pws. 1, 2 and 3 at the time of occurrence and the circumstances and manner in which those injuries were caused is reliable It is clear from the evidence that accused No.1 caused injuries 1 and 2 noted in Ext. P 7 and that both those injuries were necessarily fatal. Among the remaining injuries noted in Ext P 7 injury No. 5 alone was fatal. Both accused Nos. 2 and 3 inflicted injuries on the back. It is not possible to say from the evidence as to who as between them caused injury No. 5 In such circumstances it appears to be not right to convict either of them under S.302 of the IPC 22. That sends us at once to S.149 of the IPC. To prove that there was a motive for the occurrence certain previous litigations were relied upon. That sends us at once to S.149 of the IPC. To prove that there was a motive for the occurrence certain previous litigations were relied upon. It is true that there was a previous suit for trespass against accused Nos.1 and 2, but that was instituted not by pw. 11 but by his brother. It was a suit instituted 10 years before. Further that suit was compromised also. There was do reason to suspect that even after the compromise the relationship between the parties to that suit was strained. It is true that in 1976 a suit was filed by Pw.11. But that was regarding obstruction caused to use of a common pathway to a temple and filed only against accused Nos. 3 and 4 and not against accused Nos.1 and 2 pw. 11's house is just behind the house of the ninth accused. After pw 11 purchased a car he wanted to use the property of the ninth accused for taking the car from the road to his property. Regarding that there was a dispute between pw. 11 and the ninth accused. But it has come in evidence that the car purchased by pw. II had been sold by him before the incident in the present case. Further that was only a dispute between accused No. 9 and pw. 11 and accused No. 9 was acquitted by the trial court. It is not right to assume from these facts that there was a motive for accused Nos.1 to 7 to commit murder. 23. Even according to the prosecution at the time of occurrence accused Nos. 4 to 7 did not even touch the body of Chandrasekhara Kurup. There is nothing to show that they were even aware that accused Nos.1 to 3 were armed with weapons. The only weapon in the hands of the sixth accused was a cadjan and it was one picked up by him from the scene. Accused Nos. 1, 2, 4.5 and 7 did not even touch Viswanatha Kurup. In these circumstances the application of S.149 of the IPC. was unjustified. 24. During arguments the learned Public Prosecutor, Mr. M. B. Kurup, tried, alternatively, to get substituted the vicarious liability under S.34 for that under S 149 of the IPC. to maintain the convictions and sentences of accused Nos. 1, 2 and 3 under S.302 of the IPC. In these circumstances the application of S.149 of the IPC. was unjustified. 24. During arguments the learned Public Prosecutor, Mr. M. B. Kurup, tried, alternatively, to get substituted the vicarious liability under S.34 for that under S 149 of the IPC. to maintain the convictions and sentences of accused Nos. 1, 2 and 3 under S.302 of the IPC. Learned Advocate for the accused, Mr M. Ratna Singh, submitted that in the absence of a charge under S. 34 of the IPC. adoption of the course suggested by Mr. M. B. Kurup would cause prejudice to the accused. Much of the argument revolved round the words "common intention" occurring in S.34 and "common object" in S.149 of the IPC. The decisions cited were Krishnan Balakrishnan and others v State of Kerala, AIR. 1958 Kerala 94, Abdulsalam v State, 1973 KLT. 977, Karnail Singh and another v. The State of Punjab, 1954 SCR. 904. Rawalpenta Venkalu and another v. The State of Hyderabad, AIR. 1956 17], Chikkarange Gowda and others v. State of Mysore, AIR, 1956 SC. 731, B. N. Srikantiah v. Mysore State, AIR. 1958 SC. 672, Mohan Singh and another v. State of Punjab AIR. 1963 SC. 174 and Gajjan Singh v. State of Punjab AIR. 1976 SC. 2069. We have carefully considered the law laid down in them. 25. Both S.149 and 34 of the IPC. deal with constructive criminality. S.149 besides containing a declaratory provision creates, unlike S.34, a distinct offence also. That is because the substantive offence under S.141 of the IPC., of unlawful assembly, is also involved in S.149 But S.34 contains only a rule of law. So while specific charge is necessary for S.149 that is not necessary in the case of S.34. Consequently the omission to frame charge under S.4 would not be an illegality. But as the proper procedure in all trials is to put the accused in notice of the exact ground on which he is sought to be made liable omission to frame charge under S.34 is certainly an irregularity. Hence conviction can be entered in such a case only if on account of the omission to frame charge no prejudice would be caused to the accused 26. There is a clear distinction between common object and common intention. Whereas prior meeting of minds is not necessary for common object that is necessary for common intention which presupposes prior concert. Hence conviction can be entered in such a case only if on account of the omission to frame charge no prejudice would be caused to the accused 26. There is a clear distinction between common object and common intention. Whereas prior meeting of minds is not necessary for common object that is necessary for common intention which presupposes prior concert. 27. Sometimes common object and common intention overlap. In such cases as common intention is involved in common object, if there is a charge under S.149 omission to frame charge under S.34 would not in any way prejudice the accused and so would not matter. On the other hand if they do not overlap conviction under S.34 without notice to the accused of constructive criminality under S.34 would clearly be wrong if it would cause prejudice to the accused. 28. In the present case in the charge against accused Nos. 1,2 and 3 it is mentioned that each had the intention to cause the death of Chandrasekhara Kurup. From that Mr. M B. Kurup submitted they could not complain of omission of charge regarding common intention to murder Chandrasekhara Kurup Here comes the rub The intention referred to in the charge in the case of each of these accused persons, 1,2 and 3, is his individual intention to constitute the offence murder. It only shows that each of them had the same intention. But for that to constitute common intention something more is necessary. There should be a prearranged plan on their part A man may do an act with a number of intentions. The same act, for example, placing a time bomb which explodes on a city road and kills many, may be done by accused No. 1 with intentions A, B and C, accused No. 2 with intentions C, D and E and accused No. 3 with intentions C, F and G. As each of them had intention C and it was common to them all, that intention should, if Mr. M. B. Kurup's argument is accepted, be called their common intention so as to attract S.34. But that is not the sense in which the words 'common intention' are used in S.34. 'Common intention' as used there is not synonymous with'same intention'. The distinction between the two expressions is fine but real. To constitute 'common intention' there should be a union of minds. But that is not the sense in which the words 'common intention' are used in S.34. 'Common intention' as used there is not synonymous with'same intention'. The distinction between the two expressions is fine but real. To constitute 'common intention' there should be a union of minds. Besides each of accused Nos. 1.2 and 3 having separate and similar intention to do the same thing there should be a meeting of their minds also to constitute their separate and similar intention, their common intention. Common intention contemplated by S 34 presupposes a prearranged plan. It is possible to think of accused Nos. 1, 2 and 3 each separately having the same intention and yet they together not having acted in concert pursuant to a prearranged plan and so not having the common intention contemplated by S.34. That being the real position charge in the present case cannot be taken as containing even by implication S.34 of the IPC. 29. Mr. M. Ratna Singh submitted that if the accused persons had even the slightest suspicion that they would be made liable under S.34 of the IPC. they would have adduced evidence to show that really each of them came to the bazaar separately for innocent purposes and that their meeting in the bazaar at that time was accidental. Hence he argued that omission to frame charge under S.34 has prejudiced the accused. There is force in that argument. It does not appear to be right in such circumstances to substitute S.34 for S.149 of the IPC, as requested, to maintain the convictions for substantive offences. Each accused is liable, therefore, only for his individual acts. In the result this appeal is disposed of as follows: The conviction and sentence of the first accused under S.302 and the conviction of accused Nos. 3 and 6 under S 307 of the IPC. are confirmed. For the conviction under S.307 of the IPC. accused Nos. 3 and 6 are sentenced, each to rigorous imprisonment for five years The convictions and sentences of accused Nos. 2 and 3 under S.302 of the IPC. of accused Nos. 4 to 7 under that section read with S.149 of the IPC., of accused Nos. 1. 2, 5 and 7 under S.307 read with S.149 of the IPC., of accused Nos.1 to 7 under S.143 and 148, of accused Nos. 2 and 3 under S.302 of the IPC. of accused Nos. 4 to 7 under that section read with S.149 of the IPC., of accused Nos. 1. 2, 5 and 7 under S.307 read with S.149 of the IPC., of accused Nos.1 to 7 under S.143 and 148, of accused Nos. 3, 4, 5 and 7 under S.324 read with S.149 and of accused Nos. 1,2,3 and 6 under S.323 read with S.149 of the IPC. are set aside. As regards infliction of injuries on Chandrasekhara Kurup accused Nos. 2 and 3 are convicted under S.326 of the IPC. and sentenced, each to rigorous imprisonment for five years. For causing hurt to pws.1 and 2 the second accused and for causing hurt to pw. 3 the first and sixth accused are convicted under S.324 of the IPC. For each of the convictions under S.324 of the IPC. the second accused is sentenced to undergo rigorous imprisonment for one year. For the conviction under S.324 of the IPC. for causing hurt to pw 3 accused Nos. I and 6 are each sentenced to rigorous imprisonment for one year The sentences imposed upon accused Nos. 1,2,3 and 6 shall run concurrently Accused Nos. 4, 5 and 7 are convicted under S.323 of the IPC. There is no previous conviction proved against them. Invoking the provisions of S.360(3) of the Criminal Procedure Code instead of sentencing accused Nos 4,5 and 7 to any punishment they are released after due admonition.