JUDGMENT 1. - This appeal is preferred on behalf of Junjiya, Baga, Harji and Surta, who stand convicted and sentenced as under by the judgment dated 14-4-1976 of the Additional Sessions Judge, Jalore:- Junjiya : U/s 307 I.P.C. R. I. for three years and fine of Rs. 1000/- in default further R. I. for 6 months. U/s 447 I.P.C. R.I. for two months and fine of Rs. 200/- in default further R. I. for one month. Baga Harji Surta U/s 307/34. I. P. C. U/s 447 I.P.C. R.I. for three years and a fine of Rs. 1000/-, in default further R. I. for 6 months. R.I. for 2 months and a fine of Rs. 200/- in default further R. I. for one month. Harji U/s 323 IPC. R, I. for 6 months and a fine of Rs 300/- in default further R.I. for one month. 2. Breifiy stated the facts as alleged by the prosecution were these. The Held of Chatar Singh is situated on the western side of village Narta known as Bholiawala bera. His brother Bhopalsingh and servant Mukhiya lived in this field. On 23-6-197 5 `jawar'and other crops were standing in about 15 bighas of this field. At about 5 a. m. some 4 or 5 she camels entered this field and damaged the crop, Bhopal Singh and Mukhiya tried to catch them but they could catch only one she camel which was tied near the well. Chatar Singh also reached the field in the morning. Gajerki, the mother and Hariya the sister of appellant Junjiya came to (he field and requested for the release of the she camel. Chatar Singh replied that he would return the camel after showing the damage to `Kamdar' and other prominent persons of the village. While returning, Chatar Singh near his machine house heard some cries of his servant Mukhiya. He turned back and saw that Baga gave a lathi blow on the back of Bhopal Singh, who fell down on the ground. Thereafter Jonjiva caused 3-4 blows by an axe on the head of Bhopal Singh. Surta also gave a lathi blow to Bhopal Singh. While Chatar Singh was coming to the rescue of his brother, Surta gave a lathi blow to his temporal region. Harji caused another lathi blow on his right hand. Thereafter Jonjiva caused 3-4 blows by an axe on the head of Bhopal Singh. Surta also gave a lathi blow to Bhopal Singh. While Chatar Singh was coming to the rescue of his brother, Surta gave a lathi blow to his temporal region. Harji caused another lathi blow on his right hand. Mukhiya, Bhanwar Singh and Bhoopsingh intervene and the appellants returned taking away the she camel along with them. Bhopal Singh was taken to and admitted, in the hospital at Bhinmal. Chatar Singh then on the same day lodged a verbal complaint of the incident in police station Bhinmal. A case was registered and usual investigation including the medical examination of the injured was begun and completed. After completing the investigation the appellants were challaned under sections 307, 306, 325 etc. in the court of Judicial Magistrate, Bhinmal The I case was duly committed, The trial court believed the evidence of Chutar Singh P.W. 1, Bhopal Singh P. W. 2 and Mukhiya P. W. 5 and convicted and sentenced the I appellants in the manner indicated above. 3. I have heard the learned counsel for the parties. It is argued by the learned counsel for the appellants that the appellants had the right of private defence of properly. Bhopal Singh and Chatar Singh could not hare detained the she B camel. At the best, they could take it to the cattle pond. I have considered the argument carefully. In my opinion, this argument has no force. Section 10 of the Cattle Trespass Act reads as under :~ "10, Cattle damaging land. - The cultivator or occupier of any land, or any person who has advanced cash for the cultivation of the crop or produce on any land, or the vendee or mortgagee of such crop or produce any part thereof, may seize or cause to be seized any cattle trespassing on such land, and do in' damage thereto or to any crop or produce thereon, and send them or cur them to be sent within twenty four hours to the pond established for the village in which the land is situate." Front its perusal it appears that the cultivator or the occupier of the land could detain a cattle upto 24 hours, for the purpose of taking it to the cattle pond. In this view the argument already stated is devoid of any force. In this view the argument already stated is devoid of any force. I have gone through the statement of all the three witnesses and the doctor who examined the injured. From the statement of P. W. 3 Dr. Purushotamdas Purohi.t, the following injuries arc established (j have been caused to Bhopal Singh and Chatar Singh :Bhopal Singh. 1. Incised wound 3/4'x 1/4" below right eye-simple sharp. 2. Incised wound 1,1/2" x 1/4" upto bone frontal scalp middle side - simple sharp. 3. Incised wound 2" x 1/4" upto bone-scalp right temporal 3" above right ear-grievious. Sharp (advised X-ray) Injury No. 3 consile with suspected fracture occipital temporal bone 4. Lacerated wound 1/2" x 1/4''left temporal side-simple blunt. 5. Bruise 3" x 1" left middle thigh simple blunt. Chatar Singh. 1. Incised wound 1" x 1, 1/4" upto bone over left temporal bone. 2. Bruise 2" x 1" right arm posterially. In the opinion of the doctor, the two injuries caused to Chatar Singh were simple while injuries No. 2 and 3 caused to Bhopal singh were dangerous to life. From the stale rent of the doctor, it further appears that there as intern 1 hue.mo rhage in the head as the blood was coming out from the mouth and nose. In the circumstances, I find no reason to disbelieve the statement of the doctor. It further appears from the statement of Dr. R. K. Gehlot P. W. 7 that there was a fracture of left frontal bone of Bhopal Singh. I have not the least doubt that whoever caused these two injuries Bhopal Singh is guilty of an offence under section 307 I. P. C. he could be saddled with the knowledge that by his act of giving two blows on the head of Bhopal Singh by a sharp weapon, in all probability his (Bhopal Singh) death would be caused. 4. The learned counsel for the appellants did not challenge the credibility of the three eye witnesses. All the three witnesses have deposed that Junjiya had an axe and the other accused were armed with lathis. It is stated by Bhopal Singh that the appellants came near him. Junjiya and Surta came from one side and Baga and Harji from another side. When he fell down by the lathi blow of Baga, Junjiya gave a few blows on his head with axe. It is stated by Bhopal Singh that the appellants came near him. Junjiya and Surta came from one side and Baga and Harji from another side. When he fell down by the lathi blow of Baga, Junjiya gave a few blows on his head with axe. P. W. 1 Chatarsingh and P. W. 5 Mukhiva deposed similarly. It is, therefore, further established beyond reasonable doubt that Junjiya caused injuries dangerous to life by his axe to Bhopal Singh. Junjiya is therefore, rightly held guilty of offence under section 307 I. P. C. The causing of various other injuries is also established by the statement of all these three witnesses and no arguments were advanced to challenge the manner in which the incident happened or the injuries were caused. It is however, vehemently contended before me that the other accused could not be convicted under section .307 read with 34 I. P. C. as there is no proof that they had formed a common intention to murder Bhopal Singh. As a matter of fact according to the learned counsel for the appellants, the appellants had not found any common intention to commit an offence. The wife and sister of appellant Junjiya came there in the first instance to entreat the release of their she camel. The appellants also had gone there for the same purpose. They could not anticipate that she camel would not be released on their request. Therefore it could not be said that any criminal act was done by the appellants in furtherance of their criminal intention. At the best, at the spur of the moment, the appellants lost control of their tempers and caused the beating. The appellants could have no common intention to murder Bhopal Singh or to do any act with such intention and knowledge, and under such circumstances that, if that act caused death he would be guilty of murder. I have considered the argument carefully. The learned Additional Sessions Judge has relied upon the following factors to arrive at the inference of common intention of the appellants (1) All the appellants caused injuries to Bhopal Singh. (2) When Chatar Singh intervened Surta and Harji gave him lathi blows. (3) If the appellants have not formed the common intention to cause death of Bhopal Singh, they would not have gone to his field armed with lathis and axe. (2) When Chatar Singh intervened Surta and Harji gave him lathi blows. (3) If the appellants have not formed the common intention to cause death of Bhopal Singh, they would not have gone to his field armed with lathis and axe. (4) The appellants mounted the attack on Bhopal Singh. 5. I have considered these circumstances carefully. Of course it is conceded by the learned Public Prosecutor that there is no direct evidence regarding the common intention of the appellants. The fact that the appellants came to the field armed with lathis and an axe is of little relevance as the villagers usually moved with such arms. They had primarily come to the field to get the release of their she camel. If they had really intended to commit any offence or a criminal act they would not have sent their women too in advance. Moreover, it is the case of the prosecution that two of the appellants came from one side and the other two from the other side. P. W. 2 I Bhopal Singh stated that Baga gave a lathi blew in his back. He fell down. Then two or three injuries were caused to him by Junjiya with an axe. Bhopal Singh received only five injuries as is evident from the statement of P. W. 3 Dr. P. D. Purohit. It therefore, appears that only these two appellants caused him the injuries. No doubt Chatar Singh stated that Surta and Harji also caused lathi injuries to Bhopal Singh but this is falsified by the medical evidence because Bhopal Singh received only five injuries in all, out of which only two were by blunt weapon. He further stated that the Surta gave him a lathi blow on his head and Harji on his right hand, Thus Surta and Harji have wielded their lathi only once and they did not cause an injury to Bhopal Singh. The number of injuries received by Bhopal Singh and Chatar Singh are in my opinion inconsistent with any prearranged plan to commit any criminal act. The greater probability is that they had come to the field to secure the release of their she camel by making a request to Chatar Singh and Bhopal Singh. I When the she camel was not released, they became angry and mounted the attack. The greater probability is that they had come to the field to secure the release of their she camel by making a request to Chatar Singh and Bhopal Singh. I When the she camel was not released, they became angry and mounted the attack. It cannot be ruled out that each of the appellant entertained a similar intention to secure the release of their she camel by the use of force, and the intention was formed on the spur of the moment when Chatar Singh refused to release the she camel. In any case in this view the benefit of doubt should go to the appellants. I, therefore, held that none of the appellants could be held guilty for any offence with the help of section 34 I. P. C. in the absence of the clear proof of their common intention to do the criminal act. It is well settled that the prior concert or the meeting of the minds is necessary for the formation of common intention, it is not possible to deduce so in this case either by direct evidence which is totally lacking or by the I circumstantial evidence. The appellants Baga, Harji and Surta are entitled to be acquitted of the offence under section 307/34 I.P.C. 6. The learned Additional Sessions Judge was inclined to take a lenient view of the offence and rightly so because the quarrel arose over a trifle incident of detaining a she camel. Once the common intention to commit a criminal act is negatived, all the more a lenient view has to be taken. In this view I propose to set aside the sentence of fine awarded to appellants Baga, Harji and Surta for the offence committed under section 447 I. P. C. The sentence of fine awarded to Harji with regard to offence under section 323 I. P. C. is also set aside. I also propose to reduce the 1 substantive sentence awarded to them on these counts to a period already undergone by them. It may be mentioned that these appellants have already undergone rigorous imprisonment for about 45 days. 7. I have considered the case of appellant Junjiya as well. To me he appears to be a rash man. He had no reason to wield his axe on the head of Bhopal Singh. In all probability by his act Bhopal Singh would have died. 7. I have considered the case of appellant Junjiya as well. To me he appears to be a rash man. He had no reason to wield his axe on the head of Bhopal Singh. In all probability by his act Bhopal Singh would have died. In these circumstances, I am not inclined to reduce his sentence. 8. In the result, the appeal of Junjiya is dismissed. He is on bail and he should surrender to his bail bonds to serve out the sentence awarded to him. 9. The substantive sentence awarded to Baga and Surta under section 44 I. P. C. is reduced to the period already undergone and their sentence of fine for this offence is also set aside. Their appeal is partly accepted in the manner indicated above. The substantive sentence of Harji for the offence under sections 323 and 447 I. P. C. is reduced to the period already undergone by him and the sentence of line awarded to him on these counts is also set aside. Sd/- S.N. Deedwania, J.Appeal Partly Allowed Sentence Reduced. *******