JUDGMENT K.K. Narendran, J. 1. Accused 1 to 3 in Sessions Case No. 77 of 1981 of the Court of Session, Trichur are the appellants in this Criminal Appeal. The Court of Session convicted accused Nos. 1 and 2 under S.302 I.P.C. and under S.302 read with S.34 I.P.C. and sentenced them to undergo life imprisonment. All the accused were also convicted for the offence under S.448 I.P.C. and under S.448 read with S.34 I.P.C. Accused Nos. 1 and 2 were awarded life imprisonment for the offence under S.302 I.P.C. All the accused were awarded simple imprisonment for 3 months for the offence under S.448 I.P.C. read with S.34 I.P.C. There was also a direction that as far as accused 1 and 2 concerned the sentences awarded under S.448 I.P.C. will run concurrently with the life imprisonment. 2. The prosecution case in short is as follows: On the night of 17-3-1981 at about 9.30 p.m. the deceased Jose and PWs 1, 4, 5, 6 and 7, the other members of the household were offering prayers. They were living at a place called Pattithadam at Pazhanji. The deceased Jose was sitting on a bench on the front verandah of the house and offering prayers while the others were inside the house. While they were praying, 7 people came there and they beat Jose. Jose cried aloud. Then PW 1 Seemon, his brother, and PWs 5 and 7, his father and mother respectively came out. The accused persons beat Jose with bamboo sticks on forehead, head and arms. The other four who came along with the accused beat PWs 5 and 7 and PW 1 with bamboo sticks when they tried to resist the attack on the deceased. PW 5 sustained an injury on the right scapula while PW 7 sustained an injury on the right hand. Accused and the other persons who accompanied them then left the place. 3. The deceased and the other injured were taken in a taxi to the Kunnamkulam Government Hospital. PW 1 went to the Kunnamkulam Police Station the same night and gave Ext. P1, First Information Statement before PW 14, the Sub Inspector of Police at 11-15 p.m. Crime No. 62 of 1981 was registered against the 3 accused and 4 other persons. 4. Jose succumbed to his injuries on 18-3-1981. On the basis of Ext. PW 1 went to the Kunnamkulam Police Station the same night and gave Ext. P1, First Information Statement before PW 14, the Sub Inspector of Police at 11-15 p.m. Crime No. 62 of 1981 was registered against the 3 accused and 4 other persons. 4. Jose succumbed to his injuries on 18-3-1981. On the basis of Ext. P14 report filed by PW 14 S.302 I.P.C. also was incorporated in Crime No. 62 of 1981. Investigation was taken up by PW 15, the Circle Inspector of Police. He conducted the inquest on the dead body of Jose at the Hospital and Ext. P13 is the inquest report. PW 2 conducted the post mortem and Ext. P2 is the certificate. On completing the investigation the charge sheet was filed before the Judicial Magistrate of the First Class, Kunnamkulam who committed the case to the Court of Session, Trichur. 5. Before the Court of Session Exts. P1 to P18 were marked and PWs 1 to 15 were examined on the side of the prosecution while on the defence side Exts. D1 to D18 were marked. Exts. C1 to C4 were marked as Court Exhibits and CWs 1 and 2 were examined as court witnesses. MOs I to III are the material objects produced. Ext. P3 is the wound certificate of the deceased Jose issued by PW 2 while Exts. P4 and P5 are the wound certificates of PWs 7 and 5 respectively issued by PW 2. Ext. P9 is the mahazar for recovery of MO I while Ext. P10 is the mahazar for the recovery of M.O. II. 6. The court of session came to the conclusion that Jose died because of the injuries inflicted on him and that the cause of death was shock and haemorrhage because of the injuries caused and the injuries can be caused by beating with hard object like the bamboo sticks. P10 is the mahazar for the recovery of M.O. II. 6. The court of session came to the conclusion that Jose died because of the injuries inflicted on him and that the cause of death was shock and haemorrhage because of the injuries caused and the injuries can be caused by beating with hard object like the bamboo sticks. The court of session further came to the conclusion that accused 1 and 2 were individually and collectively responsible for causing the death of Jose and that they were hence guilty of the offence punishable under S.302 I.P.C. and under S.302 I.P.C. read with S.34 I.P.C. They were also found responsible for house trespass punishable under S.448 I.P.C. As far as accused 3 is concerned, the court came to the conclusion that since no overt act has been alleged against him in the charge sheet he cannot be held responsible for the offence under S.302 read with S.34 I.P.C. But he was found liable under S.448 I.P.C. and under S.448 read with S.34 I.P.C. Accordingly the court convicted the accused and sentenced them as mentioned earlier in this judgment. It is the above conviction and sentence that are challenged by the accused in this appeal before this Court 7. The prosecution examined 5 eye witnesses. PW 1 the younger brother of the deceased has deposed: Himself, his father, mother, and two sisters inlaw were offering prayers inside their house on 17-9-1981 at about 9.30 p.m. The deceased Jose was offering prayers sitting on a bench on the eastern verandah of the bouse. There was light on the southern side and light inside, over and above the light on the verandah. While they were offering prayers, 7 persons came rushing towards the house and they beat Jose. Then he was inside. On hearing the cry of Jose he came out. His father PW 5, and mother, PW 7, also came out. Then accused 1, 2 and 3 were beating Jose with a bamboo stick. He knew the accused for 2-3 years. 1st accused was a barber at Pazhanji, 2nd accused a rubber tapper belonging to Kattakambal. The 3rd accused was one who came to help one Ittiachan for putting up a shed in a property they purchased sometime ago. The accused beat Jose on the bead, chest and legs. Jose suffered injuries. He knew the accused for 2-3 years. 1st accused was a barber at Pazhanji, 2nd accused a rubber tapper belonging to Kattakambal. The 3rd accused was one who came to help one Ittiachan for putting up a shed in a property they purchased sometime ago. The accused beat Jose on the bead, chest and legs. Jose suffered injuries. The other 4 accused beat PWs 5 and 7 when they came to the verandah. All were armed with sticks. The accused and others who beat, ran away. He cannot give the names of the 4 others, but he can identify them. His sisters inlaw also saw the incident through the window which was lying open. He hired a taxi and took Jose and PWs 5 and 7 to the Kunnamkulam Government Hospital. On 18-3-1981 morning at 9 Jose died. On the night on 17-8-1981 at 11-15 p.m. he went to the Kunnamkulam Police Station and gave the First Information Statement, Ext. P1. In cross examination the witness has said: He saw the assailants coming through the paddy field. The others in the house also the same. The door on the eastern side of the bouse was lying open. It was bamboo sticks that the accused were having. He heard from the verandah Jose shouting He heard also the beating with sticks. It was he who came out first. All the members of his house cried aloud. Jose was lying down and there was profuse bleeding. He cannot say which of the accused beat the deceased Jose on which part of the body. It was A1 to A3 out of the 7 who came that beat Jose. 8. The next eye witness examined is PW 4, a sister inlaw of the deceased. She has corroborated the version given by PW 1 on material parti-culars. She has also said that she heard the cry of Jose. They looked out through the window. PWs 1, 5 and 7 got out of the house. It was A1 to A3 who beat Jose with bamboo sticks. She knew the accused earlier. The 1st accused was running a barber shop near the furniture mart belonging to her husband's father. The house of the 2nd accused was at Kattakambal, near her house. PWs 1, 5 and 7 got out of the house. It was A1 to A3 who beat Jose with bamboo sticks. She knew the accused earlier. The 1st accused was running a barber shop near the furniture mart belonging to her husband's father. The house of the 2nd accused was at Kattakambal, near her house. She happened to see the 3rd accused when he came to put up the shed and the fence for one Ittiachan in a property purchased by her father inlaw. The accused beat with sticks like those produced in court. On hearing the cry of Jose, herself and PW 6 peeped through the window and saw all the 7 per-sons standing near Jose. The 3rd accused beat Jose. She could not say on which part of the body that the accused beat. 9. PW 5, the father of the deceased, has also given corroboration to the version given by PW 1. But he has admitted in the box that his eye sight was very poor. He has also deposed that it was PW 1 who got out first and thereafter himself and PW 7 got out. He was beaten and he fell down with giddiness. It was Jose crying that he heard first. He was simultaneously beaten and he heard that sound also. He got out hearing the sound of beat-ing. The witness has admitted in reexamination that it was because of the pain and giddiness caused by the beating that he could not identify the persons who beat. PW 6, another sister inlaw of the deceased Jose, has also cor-roborated the evidence of PW 1 in material particulars. PW 6 has deposed: It was PW 1 who got out first and he was followed by PWs 5 and 7. She was standing near the front door. It was the accused who beat Jose. The other 4 beat PWs 5 and 7. The beating was with bamboo sticks. They ran away to the paddy field. Jose was beaten on the head and all parts of the body. He was beaten with the sticks like those produced in court. She knew the accused before the incident. A1 was conducting a barber shop near the furniture mart belonging to her father inlaw. A2 belonged to Kattakambal. She came to know of A3 after the trespass into the property purchased by her father inlaw from one Ittiachan. He was beaten with the sticks like those produced in court. She knew the accused before the incident. A1 was conducting a barber shop near the furniture mart belonging to her father inlaw. A2 belonged to Kattakambal. She came to know of A3 after the trespass into the property purchased by her father inlaw from one Ittiachan. Her house was near the school at Kattakambal. Neighbours came on hearing the commotion. But, by the time, the assailants ran away, PW 7 is the mother of the deceased. There is corroboration in her evidence also regarding certain particulars spoken to by PW 1 and other eye witnesses. She has deposed that it was 3 people who beat Jose. She got a beating on her right hand. Her husband PW 5 also was beaten. It was with bamboo sticks. She could not identify the assailants. She saw the assai-lants on the verandah. She saw them at a distance of about 5 to 8 ft. 10. All the accused denied the prosecution case when they were examined under S.313 of the Code of Criminal Procedure. The 1st accused added: He was the Karyavahak of the R. S. S., Kunnamkulam Mandalam. On 18-3-1981 at 11 O'clock a police man came and asked him to go over to the Police Station. When he went to the Police Station he was asked to wait there. A little later, another Police man came with A2, and the Police Officers there told accused 1 and 2 that a murder has taken place near Pazhanji and the offenders are suspected to be R.S.S. people. They deman-ded the accused to disclose as to who they were and threatened that they will be made accused if they did not do so. Himself and A2 told the Police that they did not know as to who the offender was. They were detained in the Police Station and later on produced before court. Accused 2 and 3 stated that they had nothing more to add. 11. The fact that Jose died is not disputed. From the evidence of PW 2, the Doctor, who conducted the post mortem and from Ext. P2, the post mortem certificate, it is clear that Jose died because of the injuries sustained by him. Accused 2 and 3 stated that they had nothing more to add. 11. The fact that Jose died is not disputed. From the evidence of PW 2, the Doctor, who conducted the post mortem and from Ext. P2, the post mortem certificate, it is clear that Jose died because of the injuries sustained by him. The evidence of PW 2 is to the effect that the fracture of the skull sustained by Jose caused injuries to the brain and that could in the ordinary course cause death. So, the conclusion of the Court of Session that Jose died as a result of the injuries sustained by him does not call for any interference. 12. The further question is whether there is evidence to connect the accused with the crime, and even if the accused are responsible for the injuries sustained by Jose, whether they can be convicted under S.302 read with S.34 I.P.C. 13. The learned counsel for the appellants contended that this is a case where motive is not proved and hence it is not safe to convict the accused on the basis of the interested testimony of his relatives without any corroboration by independent witnesses. Simply because motive is not proved, it cannot be I said that no conviction can be entered if there is convincing evidence of eyewitnesses. The absence of motive can only be a circumstance relevant in assessing the evidence adduced. In many cases, only the accused who is responsible for the crime, knows the reason for committing the same. In this connection, reliance can be placed on Rajinder Kumar v. State of Punjab ( AIR 1966 SC 1322 ) wherein the Supreme Court has held: "The motive behind a crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assessing the evidence. The circumstances which have been mentioned above as proving the guilt of the accused Rajinder are however not weakened at all by this fact that the motive has not been established. It often happens that only the culprit Himself knows what I moved him to a certain course of action." (Para 11). 14. It was then contended that all the witnesses are near relations of the deceased, there are contradictions in their evidence and without corroboration by independent evidence it is not safe to convict the accused. It often happens that only the culprit Himself knows what I moved him to a certain course of action." (Para 11). 14. It was then contended that all the witnesses are near relations of the deceased, there are contradictions in their evidence and without corroboration by independent evidence it is not safe to convict the accused. The learned counsel pointed out that though there are neighbouring houses, no neighbour was, as a matter of fact, examined in this case and this is a fact which has to be taken into account before confirming the conviction of the accused by the Court of Session. In Ram Ashrit v. State of Bihar (1981 Cri.L.J/ 484) the Supreme Court has held: "When all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and material infirmities." (Paras 12 & 8). In Machhi Singh v. State of Punjab (1983) 3 S.C.C. 470 ) one eyewitness in each of the two incidents involved was a near relation of the deceased. In one case, Nankobai examined as PW 20, was an inmate of the house where the incident took place and she sustained an injury by gunshot on her head. The Court held that her presence at the house at the relevant time was therefore natural. It cannot be disputed that she being an injured witness her evidence is entitled to great weight. In the other case, Parobai examined as PW 2, was none other than the wife of the deceased. The incident took place at 1 a.m. in the night. The Supreme Court relied on her evidence pointing out that her presence at her own house at night time was but natural and confirmed the conviction of the Court of Session, affirmed by the High Court. In this case, no doubt, the eyewitnesses, PWs 1, 4, 5, 6 and 7 are near relatives of the deceased who were residing with him. In this case, no doubt, the eyewitnesses, PWs 1, 4, 5, 6 and 7 are near relatives of the deceased who were residing with him. The incident took place at 9.30 p.m. Their presence at the house at that time cannot easily be disputed. PWs 4, 6 and 7 are women. Not only that, it took only a few minutes for the accused to inflict the injuries on the deceased and escape. The neighbours could reach the place of occurrence, which is the house of the deceased, in the normal course only within a few minutes. So, by the time the neighbours turned up, the accused could escape and that was what happened also. The investigating officer had, as a matter of fact, questioned the neighbours. But, they were not made witnesses because they told the Police that they did not see the occurrence. In such a case, the non examination of the neighbours cannot be taken as a circumstance against the prosecution. 15. Now, coming to the evidence of the eyewitnesses, PW 1 has clearly spoken to all the material aspects of the incident. Hearing the cry of the deceased, he came out of the house and saw the accused beating the deceased with bamboo sticks. PWs 5 and 7, the father and mother respectively of the deceased and PW 1, followed PW 1 to the verandah. They also saw the accused beating the deceased with sticks. The other two eyewitnesses, PWs 4 and 6, sisters inlaw of the deceased, saw the incident standing inside the room where they were offering prayers along with PWs 1, 5 and 7. They have also clearly identified the accused. The reasons given by PWs 4 and 6 for knowing the accused prior to the incident are also quite convincing. PWs 5 and 7 being old people, could not identify the accused, because, according to them, their eyesight was poor. But, they also saw the accused inflicting blows on - the deceased. In the above facts and circumstances, there is no reason to hold that simply because no independent witness was examined, the evidence of PWs 1, 4, 5, 6 and 7 cannot be acted upon. Their evidence is quite convincing. They corroborate each other on material particulars and the contradictions, if any, are only of a minor nature. In the above facts and circumstances, there is no reason to hold that simply because no independent witness was examined, the evidence of PWs 1, 4, 5, 6 and 7 cannot be acted upon. Their evidence is quite convincing. They corroborate each other on material particulars and the contradictions, if any, are only of a minor nature. For the above reasons, it cannot be said that the Court of Session was in the wrong in believing the eyewitnesses to come to the conclusion that the accused were responsible for the injuries inflicted on the deceased Jose. 16. The learned counsel then contended that in view of the fact that A3 was acquitted, A1 and A2 can be convicted only if individual overt acts are proved against them. According to the learned counsel, no witness has said as to which of the accused inflicted which injury on the deceased. Hence, the learned counsel pointed out that the conviction of A1 and A2 under S.302 read with S.34 I.P.C., acquitting A3 of the same offence, could not stand. According to the learned counsel, if at all A1 and A2 can be convicted, it can only be under S.325 I.P.C. In Baul v. State of U.P. ( AIR 1968 S.C. 728 ) the Supreme Court has held: "No doubt the original prosecution case showed that Sadhai and Randeo both bit the deceased on the head with their lathies. One is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution would not have been required to prove which of the injuries was caused by which assailant. But when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. It cannot, therefore, be postulated that Sadhai alone caused all the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the Injuries caused by Sadhai have of the character which will bring his case within S.302. It cannot, therefore, be postulated that Sadhai alone caused all the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the Injuries caused by Sadhai have of the character which will bring his case within S.302. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than the first blow had caused. These doubts prompt us to give the benefit of doubt to Sadhai. We think that his conviction can be safely rested under S.325 of the Indian Penal Code, but it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for all the injuries that were caused to the deceased. We convict him instead of S.302 for an offence under S.325, Indian Penal Code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years." In Sohan Lal v. State of U.P. ( 1971 (1) S.C.C. 498 ) the Supreme Court held: "The evidence does not show that the accused had inflicted the lathi blow on the head of the deceased, therefore, conviction under S.302 simpliciter is not justified. The State not having appealed against the acquittal of the coaccused under S.302, I.P.C., read with S.34, appellant's guilt under these sections cannot be considered. All the accused who attacked and injured with dangerous weapons with the common intention of causing grievous injury will be convicted under S.325, read with S.34." (Para 9) In Shri Kishan v. State of U.P. ( 1972 (2) S.C.C. 532 ) the Supreme Court held: "The above finding as well as the broad circumstances of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offence tinder S.325, read with S.34, Indian Penal Code." (Para 6) . In the above case, no previous enmity between the accused and the deceased was established and the occurrence was an offshoot of a trifling incident. In Ashok Kumar v. State of Punjab ( 1977 (1) S.C.C. 746 ) the Supreme Court was of the view that the conviction under S.326 read with S.34 I.P.C. entered by the Court of Session and upheld by the High Court ought to have been under S.302 read with S.34 I.P.C. The Court said: "The common intention, according to the learned Sessions Judge and the High Court, was to cause grievous hurt to the deceased and it was on this footing that the learned Sessions Judge and the High Court convicted Kewal Krishnan of the offence under S.326 read with S.34. We very much doubt whether the learned Sessions Judge and the High Court were right in taking the view that the common intention of the three assailants was merely to cause grievous hurt to the deceased. As many as four injuries were inflicted on the deceased by knives and out of them, one was on the head and three were on the chest. Having regard to the weapons used by the three assailants, the number of injuries caused by them and the Vital parts of the body on which the injuries were inflicted, it does appear that the common intention of the assailants was to cause the death of the deceased and Kewal Krishan could, therefore, have been convicted under S.302 read with S.34. But unfortunately the State has not been vigilant in enforcement of the criminal law and regrettably it has not preferred an appeal against the acquittal of Kewal Krishan under S.302 read with S.34, with the result that his conviction under S.326 read with S.34 must stand. But unfortunately the State has not been vigilant in enforcement of the criminal law and regrettably it has not preferred an appeal against the acquittal of Kewal Krishan under S.302 read with S.34, with the result that his conviction under S.326 read with S.34 must stand. And if that be so, consistency compels us to reach the conclusion that the appellant also must, on the same basis, be convicted under S.326 read with S.34 instead of S.302 read with S.34." (Para 5) But the Court did not interfere since there was no appeal by the State. In the above case, there was no evidence that the appellant inflicted the fatal injury, and going by the evidence, an unidentified assailant inflicted two of the three injuries. In the above circumstances, the Supreme Court held: "It is, therefore, not possible to say that the prosecution has established beyond reasonable doubt that injury 3 which was the fetal injury, was caused by the appellant. The possibility cannot be ruled out that it was injury 2 which was caused by him and hence the conviction of the appellant for the offence under S.302 cannot be sustained and for the individual injury caused by him, he can be convicted only under S.324." (Para 4) In Devilal v. State of Rajasthan ( AIR 1971 S.C. 1444 ) interpreting S.34 I.P.C., the Supreme Court held: ''Under S.34 when a criminal act is done by several persons in furtherance of the common .intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words 'in furtherance of the common intention of all' are a most essential part of S.34 of the Indian Penal Code. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime. Common intention means a pre arranged plan. On the other hand, S.149 of the Indian Penal Code speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. The distinction between 'common intention under S.34 and 'common object' under S.149 is of Vital importance. Common intention means a pre arranged plan. On the other hand, S.149 of the Indian Penal Code speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. The distinction between 'common intention under S.34 and 'common object' under S.149 is of Vital importance. The Sessions Court fell into the error of convicting the appellants under S.302 read with S.34 of the Indian Penal Code by holding that if a number of persons assault another with a stick mercilessly their intention can only be to murder that man or at least they should know that they are likely to cause death of the person concerned. This aspect of their being likely to cause death would be relevant under S.149 and not under S.34 of the Indian Penal Code for the obvious reason that under S.34 it has to be established that there was the common intention before the participation by the accused." (Para 14) In Ram Lal v. Delhi Administration ( 1973 (3) S.C.C. 466 ) The occurrence involved was an attack by four persons with lathies and sticks and two lathi blows on the head resulted in the death. There was no evidence as to which of the two blows proved fatal. The Court held: "No attempt was made to identify the internal injury with either or both the external injuries found on the head, It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, the appellant's conviction under S.302, I.P.C. was plainly incorrect. He and his companions had the common intention to cause griavous hurt and hence he can be convicted only under S.325, read with S.34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non vital parts. Therefore, we set aside the conviction under S.302, I.P.C. and convict the appellant under S.325, read with S.34, and sentence him to five years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal." (Para 8) In Harshadsingh v. State of Gujarat (A.I.R. 1977 S.C. 710) the Supreme Court held: "When a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstance that one man's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. When people play with knives and lives, the circumstance that one man's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. S.34 IPC fixing constructive liability conclusively silences such a refined plea of extrication." (Para 7) The Court further held: "Even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed a, criminal participants. Therefore, it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision." (Para 8) 17. In this case, the fact that A3 was not convicted under S.302 read with S.34 I.P.C. cannot be taken advantage of by A1 and A2. As per the charge filed by the Police, no overt acts were alleged against A3. Going by the charge framed by the Court of Session also, overt acts were alleged only against A1 and A2. It was under the above circumstances that A3 was not convicted under S.302 read with S.34 I.P.C. So, this cannot be a reason for not convicting A1 and A2 simply because there is no evidence that any particular injury was inflicted by any particular accused. There is evidence that the accused inflicted blows on the head of the deceased with bamboo sticks. Though these blows resulted in the death of the deceased, the question is whether there can be any conviction under S.302. The weapons used are by no means lethal, being bamboo sticks. Not only that, there is no evidence that the accused had the common intention to kill the deceased. At the most, what is revealed by the evidence in the case is that the accused had a pre arranged plan to cause grievous hurt to the deceased. The weapons used are by no means lethal, being bamboo sticks. Not only that, there is no evidence that the accused had the common intention to kill the deceased. At the most, what is revealed by the evidence in the case is that the accused had a pre arranged plan to cause grievous hurt to the deceased. For a conviction under S.302 read with S.34 I.P.C. it is not enough that a number of persons attacking another mercilessly with sticks should have known that they were likely to cause death to him. It must be brought out that there was a pre-arranged plan to kill him. In this connection, no eye witness has said as to which of the accused inflicted which blow on the head of the deceased. One or more blows on the head of the deceased might have resulted in his death, but that by itself is not enough to prove the offence under S.302 read with S.34 I.P.C. In the absence of any evidence that there was a pre-arranged plan to kill the deceased, A1 and A2 cannot be convicted under S.302 read with S.34. We find that they can be convicted only under S.325 read with S.34 I.P.C. for causing grievous hurt to the deceased though the injuries inflicted by the accused resulted in his death. 18. A3 who was convicted by the Court of Session under S.448 I.P.C. and sentenced to simple imprisonment for three months has also appealed against his conviction and sentence. He escaped a conviction under S.302 read with S.34 I.P.C. along with A1 and A2 because, going by the charge filed by the Police, no overt-act was alleged against him. But, his presence at the place of occurrence has been spoken to by the eyewitnesses and the evidence is that some at least of the eyewitnesses knew him before the occurrence. Not only that, their evidence in this regard has not been successfully challenged before the Court of Session. In the above circumstances, there is no reason why this Court should interfere with his conviction and sentence. 19. In the result, we convict A1 and A2, instead of S.302 read with S.34 I.P.C., for an offence under S.325 read with S.34 I.P.C., set aside the sentence of imprisonment for life, and sentence them to rigorous imprisonment for five years. Their conviction and sentence under S.448 I.P.C. are upheld. 19. In the result, we convict A1 and A2, instead of S.302 read with S.34 I.P.C., for an offence under S.325 read with S.34 I.P.C., set aside the sentence of imprisonment for life, and sentence them to rigorous imprisonment for five years. Their conviction and sentence under S.448 I.P.C. are upheld. Simple imprisonment for three months awarded to them will run concurrently with the other sentence. The appeal is allowed to the extent indicated above and dismissed in all other respects.