JUDGMENT 1. - Accused Sheo Narain, Kanhaiya Lal, Mst. Bhanwari, Mst. Ganga and Yedh Kori were tried by learned Sessions Judge, Jhunjhunu, in connection with an occurrence dated 24.7.74, which took place in the precincts of Village Chirawa in Khasra No. 408. During the course of that occurrence Om Prakash (since deceased), Lachhman P. W. 3, Mangtu P. W. 2 sustained injuries. The injury reports of Mangtu and Lachhman are Ex. P. 13 and Ex. 14 respectively. Om Prakash sustained as many as 7 injuries during the course of the same event. 2. First Information Report Ex. P. 15 was lodged at the police station Chirawa, by P. W. 7 Atma Ram on the same day at 9.45 a. m., i. e. within 46 minutes of the occurrence. Om Prakash (since deceased) was first taken to the hospital at Chirawa. He was clinically examined by Dr. Bharat Singh P. W. 5. The injury report is Ex. P. 11. Injured Om Prakash was found to be unconscious and in the stage of coma, and as such, he was advised to be taken to Pilani hospital, where he succumbed to his injuries on the same day. The autopsy on the dead body of Om Prakash was performed at 3.50 P. M. The post-mortem report is Ex. P. 12. The police after usual investigation submitted challan against all the five accused under sections 302, 302/149; 447, 323 and 148 I. P. C. All of them were committed to the court of Session for trial. 3. All the accused pleaded not guilty to the charges and the prosecution examined 7 witnesses in support of their case. P. W. Moti Lal, P. W. 2 Mangtu, P. W. Lachhman and P. W. 6 Atma Ram were examined as eye-witnesses of the occurrence. P. W. 5 Dr. Bharat Singh, is the person who clinically examined all the three injured and performed autopsy on the dead body of Om Prakash. Learned Sessions Judge placing reliance on the statements of the eye-witnesses corroborated by the F. I. R. as well as the Medical evidence came to the conclusion that both the accused-appellants Sheo Narain and Kanhaiya Lal were guilty of the offence punishable under section 302 I. P. C. and sentenced each of them to undergo rigorous imprisonment for life. Learned Sessions Judge placing reliance on the statements of the eye-witnesses corroborated by the F. I. R. as well as the Medical evidence came to the conclusion that both the accused-appellants Sheo Narain and Kanhaiya Lal were guilty of the offence punishable under section 302 I. P. C. and sentenced each of them to undergo rigorous imprisonment for life. Accused Sheo Narain was also convicted under section 323 I. P. C. and was sentenced to two months rigorous imprisonment. Both the substantive sentences were ordered to run concurrently. Besides the two appellants, Mst. Bhanwari was convicted under section 323 I. P. C. and was given benefit of section 4 of the Probation of Offenders Act. As she has not come up in appeal, we are not concerned with her case. The rest of the accused were acquitted of all the charges and the appellants were also acquitted of other charges. 4. Keeping in view the preponderance of evidence on record and consistent story given by the eye-witnesses, learned counsel for the accused has rightly conceded on the point that there are no sufficient grounds to challenge the fact that both the accused appellants participated in the assault, as a result of which Om Prakash died. However, we have also gone through the relevant portion of the evidence and are satisfied that guilt has been brought home to the accused beyond reasonable doubt. 5. The only question very seriously pressed before us is that the learned Sessions Judge committed error of law in convicting accused Kanhaiya Lal and Sheo Narain under section 302 IPC. Learned counsel urged, Kanhaiya Lal, at the most could be convicted under section 394 I. P. C, and Sheo Narain could be convicted under section-304 IPC. We find considerable merit in this contention. 6. Essence of liability under section 34 I. P. C. is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. In order to invoke the section, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all. In order to invoke the section, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all. "Common intention" within the meaning of the section implies a pre-arranged plan and to convict the accused applying section 34 I. P. C., it should be proved that the criminal act was done in the concert pursuant to the pre-arranged plan, care must be taken not into confuse the same or similar intentions with common intention. The distinction, though very thin, is a real and substantial one. P.W. 6 Atma Ram stated during the course of cross-examination that Kanhaiya Lal inflicted only one blow on the head of Om Prakash and thereafter, he withdrew from the assault. Kanhaiya Lal is stated to have been armed with an axe, and the injury assigned to him has been described as simple one in injury report Ex. P. 11. In the absence of sufficient evidence on record that Kanhaiya Lal had the common intention to commit the murder of Om Prakash, he cannot be held guilty for the offence punishable under section 302 I. P. C., simply because, he stood by the side of the other accused and inflicted one blow. The very fact that he withdrew from the assault after causing one blow to the deceased, is sufficient to hold that he did not intend to commit the murder of deceased and share the common intention with the other accused. He can be held liable only for his individual act, i. e. causing of one simple injury by sharp edged weapon. His Conviction is altered from sec. 302 I. P. C. to Sec. 324 I. P. C. and is sentenced to 2 years R. I. 7. Now remains the case of Sheo Narain. The statement of Atma Ram cannot be given more credence than the statements of the two injured witnesses, namely P. W. 2 Mangtu and P. W. 3 Lachhman, who have categorically stated that accused Sheo Narain inflicted one jelly blow on the head of the deceased. P. W. 5 Dr. Bharat Singh has stated that rupture of all the three membranes of the left parietal bone alongwith the small brain matter leading to internal cerebral haemorrahage were sufficient to cause death or not in the ordinary course of nature. P. W. 5 Dr. Bharat Singh has stated that rupture of all the three membranes of the left parietal bone alongwith the small brain matter leading to internal cerebral haemorrahage were sufficient to cause death or not in the ordinary course of nature. He only described the cumulative effect of all the injuries but, failed to state whether each of the head injury considered individually was sufficient to cause death or not in the ordinary course of nature. In the absence of this positive evidence it cannot be said with certainty that the injury caused by Sheo Narain does not exclude the application of clause 3rdly of clause 3rdly of section 300 IPC and his convict ion under section 302 I. P. C. cannot be maintained. 8. No doubt, the accused was armed with a formidable weapon and the part of the body on which the injury was caused is vital one, but, the prosecution has failed to bring the case of the accused under any of the four clauses of section 300 I. P. C., namely, 1stly to 4thly. Thus, the charge under section 302 I. P. C. does not stand made out and case proved can be said to be one of culpable homicide lot amounting to murder as described under section 299 I. P. C. We, therefore, set aside the conviction and sentence awarded to the accused Sheo Narain under section 302 I. P. C. but alter his conviction under section 304 Part-I. I P. C. and sentence him to suffer 7 years rigorous imprisonment.The appeal is partly allowed as indicated above. 9. It is further made clear that the accused appellants shall be entitled to the benefit of section 428 Cr. P. C. and the period of detention during the trial, investigation and inquiry undergone by them shall be set off against the terms of imprisonment awarded by this Court. As accused-appellant Kanhaiya Lal has already suffered the sentence awarded by this Court, he shall be released forthwith is not required in any other case.Appeal partly allowed. *******