JUDGMENT 1. - These four appeals are preferred by appellants Vaney Singh, Bhoorsingh and Bherusingh against the judgment of the learned Sessions Judge, Udaipur, dated 21-3-1978 convicting the appellant Vaney Singh under section 304 Part II and 323 I. P. C. and the other two appellants under section 304 Part II read with 34 and 323 I. P. C. 2. Briefly stated the facts according to the prosecution were these. On 8-7-1977 at about 8.30 p. m. deceased Kalu Singh PW. 3 Devi Singh and PW. 4 Madho Singh were sitting on a chabutra outside the house of Man Singh. Kalu Singh then left for his house and he had a lantern in his hand. 10 or 12 steps away from the chabutra, the three appellants were exchanging abuses amongst themselves presumably under the influence of some drinks. Kalu Singh asked them not to shoot vulgar abuses Vaney Singh then gave a lathi blow on the head of Kalu Singh and thereafter appellants Bhursingh and Bheru Singh also gave him a few lathi blows. Madho Singh and Devi Singh tried to intervene but they were also caused injuries by the appellants. Mohan Singh son of deceased Kalu Singh was at his house. He heard the noise and came to the scene of incident, Mohan Singh went to police station Devgarh and lodged written report Ex. P. 11, Police registered a case against the appellants and conducted the usual investigation including the post-mortem examination of the deceased, Appellant Vaney Singh was charged under sections 302 and 323 IPC. and the two other appellants under sections 302/34 and 323 IPC. The learned Sessions Judge however, acquitted the appellants from the offence of murder and convicted them in the aforesaid manner. 3. I have heard the learned counsel for the appellants and the learned Public Prosecutor. 4. It was not disputed before me that appellant Vaney Singh gave a lathi blow on the head of Kalu Singh which ultimately proved fatal. It was also not disputed before me that the other two appellants and Vaney Singh caused a few simple injuries to the eye witnesses. However, it was vehemently contended that there was not an iota of evidence direct or circumstantial, to prove that Kalu Singh was attacked and belaboured in pursuant to a pre-arranged plan or that there was any prior meeting of the minds to commit the offence. However, it was vehemently contended that there was not an iota of evidence direct or circumstantial, to prove that Kalu Singh was attacked and belaboured in pursuant to a pre-arranged plan or that there was any prior meeting of the minds to commit the offence. The learned Public Prosecutor on the other hand contended that the offence was committed in pursuant to a pre-arranged plan. I have considered the rival contentions. I have considered the statement of PW. 3 Devi Singh and PW. 4 Madho Singh. PW. 3 Devi Singh stated that Kalu Singh left for his house. The appellants were exchanging abuses. Kalu Singh asked them not to do so and then the appellants gave him a beating. Vaney Singh gave a lathi blow on the head of Kalu Singh. PW. 4 Madho Singh has deposed similarly. From their statements of course it is proved that Vaney Singh caused a lathi blow on the head of Kalu Singh and the two witnesses were also given a few injuries. To this extent there are no reasons to disbelieve these witnesses. However, from their testimony it is not possible to deduce an inference of pre-arranged plan or prior concert. It appear that some how the appellants were annoyed and they attacked the deceased. The law is well settled, as will be evident from the following authorities, that common intention within the meaning of section 34 I. P .C. implies a pre-arranged plan. It should be proved that the criminal act was done in pursuance to a pre-arranged plan. 1. Mahbub Shah v. Emperor (AIR 1945 P. C. 118) : "Care must be taken not to confuse same or similar intention with common intention, the partition which divides "is often very thin never the less, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. In their Lordships view, the inference of common intention within the meaning of the term in S. 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case." 2. Pandurang and others v. State of Hyderabad (AIR 1955 S. C. page 216) ; "In the case of Sec. 34 it is well established that a common intention presupposes prior concert. Pandurang and others v. State of Hyderabad (AIR 1955 S. C. page 216) ; "In the case of Sec. 34 it is well established that a common intention presupposes prior concert. It requires a pre-arranged 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." 3. Juglal v. State of Rajasthan (1974 RLW. 194) ; "According to this section the act must be done in furtherance of the common intention. Common intention necessarily implies the pre-arranged plan. In other words there must be a prior meeting of the minds of the criminals, and a plea formed among them to perpetrate a particular crime. It is, however, not necessary that there may be any long gap of time, in fact, any gap of time between the formation of common intention and actual execution thereof. Common intention may develop suddenly and on the spot. Thus the existence of common intention between the participants of the crime is essential element of this section and in the absence of such common intention this section will not apply. The question of common intention under this section is one of the fact to be determined in the circumstances of each case. Normally direct proof of common intention is not possible and it is rather difficult to get and such intention can only be inferred from the surrounding circumstances including the act and the subsequent conduct of the accused. But the common intention must be the necessary inference from the circumstances proved in the case." 5. In my opinion there is no direct evidence about the common intention of the appellants and from the conduct of the appellants and the surrounding circumstances it is not possible to infer that Kalu Singh was attacked by the appellants in pursuant to some pre-arranged plan or common intention. 6. In this view of the matter appellants Bhursingh and Bherusingh deserve acquittal under section 304 part II read with section 34 I. P. C. 7. As regards their sentence of one year under section 323 I. P. C. It was contended that they had been in judicial custody for about six months. 6. In this view of the matter appellants Bhursingh and Bherusingh deserve acquittal under section 304 part II read with section 34 I. P. C. 7. As regards their sentence of one year under section 323 I. P. C. It was contended that they had been in judicial custody for about six months. They are young persons and therefore, the interest of justice would be met if the substantive sentence is reduced to a period already undergone. Looking to the nature of the crime and the age of the appellants, I am inclined to agree with this submission. As regards appellant Vaney Singh who had been convicted under section 304 part II r/w 34 IPC and sentenced to rigorous imprisonment for six years it submitted that the sentence awarded is excessive. Appellant Vaney Singh is also a young man and he caused only one lathi blow to Kalu Singh and that too without any adequate motive and on some sudden quarrel. Various authorities were brought to my notice wherein the sentence varied from the giving of probation to five years. The question of sentence in each case will depend on its own facts and circumstances. In the circumstances of this case I am of the view that the substantive sentence be reduced to a period of three years. 8. In the result the appeal of Vaney Singh is dismissed but the substantive sentence under section 304 part II IPC is reduced to three years rigorous imprisonment from six years rigorous imprisonment. The appeal of Bhoorsingh is partly accepted and he is acquitted of the offence under section 304 Part II I. P. C. and his substantive sentence under section 323 I. P. C. is reduced to a period already undergone by him. Similarly the appeal of Bherusingh is partly accepted and he is acquitted of the offence under section 304 Part III P. C. and his substantive sentence under section 323 I. P. C. is reduced to a period already undergone by him. Vaney Singh is in jail and he shall serve out the remaining portion of his sentence. Appellants Bherusingh and Bhoorsingh are on bail and need not surrender to their bail bonds which are hereby discharged.Order accordingly. *******