K. BHATNAGAR, J.—This appeal is directed against the judgment passed by the Additional Sessions Judge, Sirohi, dated 25.11.1975 by which appellant Lakhma, Kala, Kusia and Husia were convicted for the offences under section 302/34 and 452 I. P. C. and sentenced to imprisonment for life on the first count and rigorous imprisonment for two years and a line of Rs. 500/- and in default of payment of fine to undergo rigorous imprisonment for two months on the second count. Appellants Kala and Lakhma were also convicted for the offence under section 324 I.P.C. and each of them was sentenced to undergo rigorous imprisonment for six months and a fine of Rs. 200/- and in default of payment of five to undergo rigorous imprisonment for one month. Appellants Husia and Kusia were also convicted under sec. 323 I. P. C. and sentenced to rigorous imprisonment for three months and a fine of Rs. 100/- and in default to undergo rigorous imprisonment for one month. 2. Briefly stated the facts of the case giving rise to this appeal are as under:- Four or five years prior to the occurrence, there was a quarrel between appellant Lakhma alias Luchma and Uda, son of deceased Gema and brother of complainant Kishna. Lakhma is said to have fractured the hand of Uda, in that quarrel. 3. About 20-25 days prior to the date of the present incident, there was again a quarrel between the accused Lakhma and Uda. It is alleged that the accused party wanted to wreck vengeance from Uda. In the after-noon of 24.7.75, when Smt. Jaggi (PW. 1), wife of Uda, was at her house, the four appellants went there and inquired about her husband. On her reply that he had gone to Bali, they said that if he had gone away, let she be killed. At that time Kalia was armed with a naked sword, Lakhma with a Dharia, Kusia with an axe and Husia with a Lathi. Kalia inflicted sword blow to Smt. Jaggi. She raised her left hand to ward of the attack and sustained injury on the palm on her hand. Kusia caused axe injury on her right shoulder. Lakhma inflicted dharia blow on her back and thigh. Gema, father of Uda was grazing buffa-llows in the field at a little distance. Kalia inflicted sword blow to Smt. Jaggi. She raised her left hand to ward of the attack and sustained injury on the palm on her hand. Kusia caused axe injury on her right shoulder. Lakhma inflicted dharia blow on her back and thigh. Gema, father of Uda was grazing buffa-llows in the field at a little distance. On hearing the cries of Smt. Jaggi and her children Gema raised an alarm as to what was happening On his doing so, the four assailants ran towards him and fell him down. They gave a beating to him with Dharia, sword and axe. When Gema was being given the beating, Smt. Jaggi, out of fear, went to the field of Kala and concealed herself there. From there she went to the house of Natha. Nobody was available at the house of Natha After some time Kishna brother of Uda went to the house of Natha and Smt. Jaggi narrated the incident to him. She also informed Kishna about Motiya seeing the occurrence from the hillock. Kishna (P. W. 2) went to the field where his father was lying dead with injuries on his body. Kishna, alongwith Bhoora, left the village to lodge the report at police station Nana situated at a distance of 8 miles from the village. Night having fallen, Kishna and Bhoora passed the night in jungle and went to the police station in the morning at about 8.15 A. N. on 25.5.75. Kishna lodged an oral report which was reduced into writing in the Roznamcha-aam by L. C. Bhopal Singh (P.W. 9) and is Ex. P. 1. As he had no power of investigation he sent for H. C. Mangilal (P. W. 8), in-charge of Police Out Post Beda, who registered the case and proceeded to the site for investigation. At the instance of Kishna, Mangilal inspected the site and prepared the site-inspection Memo Ex. P. 2 and site plan Ex. P. 3. He took blood soaked earth from the site and the blood smeared clothes of deceased Gema and conducted other necessary investigation at the site. The dead body was sent for post-mortem examination to Primary Health Centre, Beda. Smt. Jaggi was also sent there for medical examination. On 26.7.75 Dr. Noor Mohammed (PW. 10) Medical Officer, Primary Health Centre examined Mst. Jaggi and noted following injuries on her person:— "1. The dead body was sent for post-mortem examination to Primary Health Centre, Beda. Smt. Jaggi was also sent there for medical examination. On 26.7.75 Dr. Noor Mohammed (PW. 10) Medical Officer, Primary Health Centre examined Mst. Jaggi and noted following injuries on her person:— "1. Incised wound 2" 3" x l/2" x l/2" on the back part of left palm. 2. Incised wound 1-1/2" x 1/4" x 1/4" on right parietal region of scalp. 3. Bruise 3" x2" on right shoulder. 4. Sharp cut 1/2" x l/8" x l/8" on outer part of left of eye. 5. Bruise 2" x 2" on left scapular region. 6. Bruise 3" x l" on back part of right thigh. 7. Bruise 2" x l" on upper third part of left leg." Injuries No. 1, 2 and 4 were simple in nature and caused by sharp weapon. Rest of the injuries were simple and caused by blunt object. In the Injury Report Ex. 15, duration of injuries was mentioned as 3 to 4 days at the time of examination. The Doctor advised X-ray of left palm for opinion about the fracture. 4. On the same date, at 5.30 P.M., Dr. Noor Mohammed conducted the autopsy over the dead body of Gema and observed as under:— "External appearance,- Condition of subject. The body was moderate and highly decomposed full of maggots. Mouth, nose and eyes were bitten by maggots. Rigor Mortis passed off from all the limbs. Wounds:—1. Incised wound 3" x 1/2" x2-1/2" on right occipito parietal region resulted in protusion of brain matter. 2. Incised wound 3" 1/2" x 1/2" on right side of neck. 3. Incised wound 2" x 1/2" x 1/2" on right shoulder. 4. Multiple sharp cuts on back part of fingers of both hands. 5. Incised wound 2" x 1/4" x 1/4" on left thigh. 6. Incised wound 2" x 1/4" x 1/4" on right leg. Scalp full, skull and vertabral:—Incised wound of scalp of right fron to parietal region resulted in compound fracture of frontal and parietal bones of right side. Membranes were torn. Brain:—Laceration on brain on right fron to parietal region. Both lungs were pale and heart was empty. Large vessels were also empty. Liver, Spleen and Kidneys were pale. Bladder was empty." 5. In the opinion of the doctor,cause of death was coma due to injury to vital organ (brain) and other multiple injuries. Membranes were torn. Brain:—Laceration on brain on right fron to parietal region. Both lungs were pale and heart was empty. Large vessels were also empty. Liver, Spleen and Kidneys were pale. Bladder was empty." 5. In the opinion of the doctor,cause of death was coma due to injury to vital organ (brain) and other multiple injuries. Duration of death was about 2-3 days at the time of post-mortem examination. Post mortem examination report is Ex.P. 16. According to the doctor, injury No. 1 was sufficient in the ordinary course of nature to cause death. 6. On 27-7-75, Ganpat Singh (P.W. 7) S.H.O. Police Station Nana took charge of the investigation. On 28-7-75 he arrested appellants Lakhma and Kalia. On 2-8-75 appellant Lakhma furnished information for getting recovered Dharia and axe. The information was reduced into writing as Ex. P. 6. In pursuance of that information Lakhma got recovered dharia Ex. 4 and axe Ex. 5 on 6-8-75, which was taken into possession vide Memo Ex. P. 7. On 2.8.75 Kalia furnished information to the S.H.O. that the sword was with Kusia. The said information was reduced in writing as Ex. P. 8. On 3-8-75 Kusia was arrested vide memo Ex. P.9. He was having sword Ex.6 with him at that time, which was taken into possession vide Memo Ex.P. 10. On 10.8.75 appellant Husia was arrested vide Memo Ex. P. 11. At the time of arrest, lathi Ex. 7 was recovered from his possession. The S.H.O. then entrusted the investigation to Hari Singh. On 29. 7. 75 investigation was again entrusted to Mangilal and he, at the instance of S.H.O Ganpat Singh, went to Beda hospital and took in possession the blood stained clothes of Smt. Jaggi. 7. The articles recovered during the course of investigation were sent for chemical examination. The report of Chemical Examiner is Ex. P. 17 and that of the Serologist is Ex. P. 18. 8. Upon completion of the necessary investigation the charge-sheet against the appellants was filed in the Court of Judicial Magistrate, Bali. The learned Magistrate finding it to be a case exclusively triable by the Court of Sessions committed the appellants to stand their trial in the Court of Additional Sessions Judge, Sirohi. P. 18. 8. Upon completion of the necessary investigation the charge-sheet against the appellants was filed in the Court of Judicial Magistrate, Bali. The learned Magistrate finding it to be a case exclusively triable by the Court of Sessions committed the appellants to stand their trial in the Court of Additional Sessions Judge, Sirohi. The learned Judge charge sheeted ail the appellants for the offences under sections 302 and 452 I.P.C. Appellant Kala was also charge-sheeted for the offence under section 426 I.P.C, appellant Lakhma for the offence under section 326 I.P.C. and appellants Husia and Kusia for the offence under section 323 I.P.C. On their plea being recorded all them denied the indictments and claimed to be tried. Prosecution examined 10 witnesses, in all, to substantiate its Case All the appellants, in their statements under sec. 313, Cr.P.C., denied the allegations levelled against them. Appellant Lakhma admitted his quarrel with Uda and Udas hand being fractured and then 10-15 days prior to the occurrence Uda causing injuries to him and his having remained admitted in the hospital and on being discharged therefrom being in search of an occasion for taking revenge. Lakhma also stated that he had enmity with Moti because she - buffallows of Moti had entered his field and when he was taking them to the Panchayat, Moti obstructed the way with lathi and ran away after him and had threatened to implicate him. Lakhma also stated that because of his quarrel with Uda, his family members were annoyed with him. No defence witness was examined. The learned trial Judge placed reliance on the prosecution evidence and passed the judgment under appeal. Being aggrieved by their conviction and sentences, the appellants have preferred this appeal through the Supdt. Central Jail, Jodhpur. Subsequently Mr. K. C. Gaur, Advocate, put in appearance on behalf of the appellants. 9. We heard Mr. K. C. Gaur, learned counsel for the appellants and Mr. H. N. Calla, learned Public Prosecutor for the State and gave our anxious consideration to the record of the case. 10. The prosecution has led direct as well as circumstantial evidence to connect the appellants with the commission of the crime. The direct evidence is of Smt. Jaggi, the injured, and Moti. H. N. Calla, learned Public Prosecutor for the State and gave our anxious consideration to the record of the case. 10. The prosecution has led direct as well as circumstantial evidence to connect the appellants with the commission of the crime. The direct evidence is of Smt. Jaggi, the injured, and Moti. The circumstantial evidence relates to motive, recovery of the alleged weapons of offence in pursuance of the informations furnished by the appellants and Smt. Rami seeing the appellants going towards the house of Uda in the after noon of the occurrence with weapons in their hands. 11. As the very out-set it may be observed that the recovery of the alleged weapons of offence is of no help to the prosecution because no blood was found on them. The learned trial judge has also not placed reliance on this circumstance. 12. The learned counsel for the appellants has strongly criticised the evidence of the eye-witnesses on the ground that both of them were inimical to the appellants and for that reason have falsely deposed against them or at least have given an exaggerated version of what might have happened. The learned counsel strenuously contended that, the delay in filing the F.I.R. throws doubt on the truth of the prosecution case and that during this period, after consultation, Moti might have been implanted as an eye-witness. 13. The occurrence had taken place in the after noon of 24-7-75. The first information report was lodged by Kishna at police station Nana at 8-15 A.M. on 25.7.75. The importance of prompt information to the police need not be over-emphasised. The reason is that a prompt information will provide a check for any improvement or embellishment in the prosecution story. First Information Report is a very valuable piece of evidence and the accused can take the advantage of the same as it can be used to controvert or contradict the maker of it. 14. The police station was at a distance of 8 miles from village Aradwa, where the incident had taken place. There was of course sufficient time to reach the police station on the same night if a person would have rushed immediately after the incident. But it was not possible in the present case. Kishna was not present at the time of the occurrence. There was of course sufficient time to reach the police station on the same night if a person would have rushed immediately after the incident. But it was not possible in the present case. Kishna was not present at the time of the occurrence. The exact time of his return to his house after grazing the cattle has not come on record. However, Smt Rami has stated that her husband returned home when the after noon had passed. After being informed by Smt. Rami, Kishna had proceeded to the house of Uda and then to the field where the dead body of his father Gema was lying. He tried to contact the people of the vicinity but most of them were not available at that time. He then returned to his house and informed his wife about the murder of his father. According to Smt. Rami, her husband returned after 2 hours and informed her about the death of his father. It was after that, that Kishna along with Bhoora, had proceeded to lodge the report at the police station. Taking into account all this period, it was but natural that night might have fallen on the way. Hence, the explanation of Kishna that because of night falling on the way, they had to stay on the way, appears to be believable. This is not, therefore, a case in which defence may take advantage of the information being lodged late so as to raise suspicion about its disclosing the true facts. 15. Criticising the evidence of Smt. Jaggi the learned counsel for the appellants stressed that her husband Uda had long standing enmity with Lakhma and therefore her evidence, without independent corroboration, should not be believed. Although, prosecution has examined Moti to corroborate the testimony of Smt. Jaggi to some extent but he too, according to learned counsel for the appellants, was inimical to Lakhma appellant and as such cannot be called an independent witness. 16. So far as the incident inside the house resulting in injuries to Smt. Jaggi is concerned, Smt. Jaggi is the only witness. She has narrated, in detail, how the appellants entered her house, inquired of her husband and then caused injuries to her. The statement of Smt. Rami that she had seen the four appellants armed with weapons going towards the house of Uda corroborates to some extent the statement of Smt. Jaggi. She has narrated, in detail, how the appellants entered her house, inquired of her husband and then caused injuries to her. The statement of Smt. Rami that she had seen the four appellants armed with weapons going towards the house of Uda corroborates to some extent the statement of Smt. Jaggi. Smt. Jaggi was examined for her injuries by Dr. Noor Mohammed, who had noted 7 injuries on her person as narrated earlier. We find no reason to dis-believe the version given by the injured lady, so far as the first part of the incident is concerned. 17. Regarding the assault to Gema, there is the evidence of Smt. Jaggi and Moti. Smt Jiggi has stated about her father-in-law Gema raising an alarm on hearing the cries of herself and her children when the assailants caused injuries to her and then the miscreants going towards the field where Gema was present. Smt. Jaggi stated that they chased her father in law, gave a beating to him and fell him down. According to her, they inflicted blows with sword, dharia and axe to Gema The witness further stated that it was by concealing herself in the field of Kala that she had reached the house of Natha to save herself. There was none present in the house of Natha. The witness admitted that Gema was not visible to her when she was sitting near the bearth inside her house nor when she had concealed herself in the field of Kala. According to the witness after inflicting blows to Gema the miscreants again entered her house and caused damage inside. Even if the argument of Mr. Gaur that she could not actually see the beating given to Gema is accepted still this much is proved from her evidence that she had seen the four appellants going towards the field where Gema was present. 18. The witness to the actual assault on Gema is Moti. The criticism to his testimony is that he was inimical to Lakhma. Moti has admitted that three years prior to the occurrence he had a quarrel with appellant Lakhma for which a report was lodged in Mewar. The witness has admitted that Lakhma was his collateral. 19. 18. The witness to the actual assault on Gema is Moti. The criticism to his testimony is that he was inimical to Lakhma. Moti has admitted that three years prior to the occurrence he had a quarrel with appellant Lakhma for which a report was lodged in Mewar. The witness has admitted that Lakhma was his collateral. 19. The evidence of a witness having inimical relations with the accused need not be dis-carded in toto, rather it should be scrutinized carefully to ascertain whether in view of the checks available on the record any credence may be given to his version. We have carefully examined the version given by Moti and have found him consistent through out. He has stated about his being there near about the field for grazing cattle, climbing the hillock on hearing the cry, seeing the accused party surrounding Gema and causing injuries to him. Much has been said about the conduct of the witness in keeping quiet till the arrival of the police. Reference has been made to the case of State of Orissa v. Brahmananda Nanda (1) wherein failure on the part of the sole eyewitness to disclose the name of the murderer for one and a half day after the occurrence was held to have seriously effected his credibility. In that case the only witness claiming to be an eye-witness of that murder, kept quiet despite there being occasion for her to disclose the facts when the police party had arrived at the scene and was stationed in the club house which was just opposite to the house of the witness and one A.S.I., her nephew, had visited her house. In such circumstances the conduct of the witness in keeping quiet was taken seriously. In the case on hand, there was another eye-witness to the occurrence, namely, Smt. Jaggi who was injured in the same incident and had seen the assailants going towards Gema and chaing him. Moti has stated that he had seen the assailants going towards Gema and chasing him. Moti has stated that he had seen Smt. Jaggi coming out of her house and going towards the house of Natha. Moti has stated that he had seen the assailants going towards Gema and chasing him. Moti has stated that he had seen Smt. Jaggi coming out of her house and going towards the house of Natha. If in such circumstances the witness, out of fear, as he states, did not tell the facts to any body till the police arrived, his conduct cannot be said to be so abnormal as to give occasion for disbelieving him altogether. There is force in the arguments of the learned public prosecutor that Moti might have thought that Smt. Jaggi, being an eye-witness, would tell the facts and he should refrain to incur wrath of the assailants by informating any person because he had previously been the victim at the hands of the appellant Lakhma three years prior to the incident. 20. The learned Public Prosecutor has tried to meet the arguments of the learned counsel for the appellants that Moti was an implanted witness by stressing the importance of the name of the witness being there in the First Information Report While discussing the arguments regarding the delay in lodging the First Information Report so as to give an occasion for introducing the name of Moti in it we have hold that there was no inordinate delay in lodging the First Information Report as Kishna had left the village in the night itself. We have believed the explanation given by Kishna for not reaching the Police Station in the night. In this view of the matter, the name of Moti being in the First Information Report as being an eye-witness to the incident strengthens the prosecution case that Moti was there at the site and had an occasion to see the beating given to Gema. Smt. Jaggi has stated about her informing Kishna when he met her for the first time after the occurrence that Moti was there on the hillock and had seen the occurrence. We are, therefore, inclined to believe the prosecution case that Moti was there at the site and has been rightly believed by the learned trial Judge. 21. The learned counsel for the appellants could not point out any infirmity in the statement of Smt. Rami to the effect that she had seen the four appellants going towards the house of Uda some time before the incident on that day. 21. The learned counsel for the appellants could not point out any infirmity in the statement of Smt. Rami to the effect that she had seen the four appellants going towards the house of Uda some time before the incident on that day. She has also stated that Lakhma had dharia, Kalia a naked sword, Kusia an axe and Husia a lathi at that time. Her statement stands corroborated by the statement of her husband Kishna who has stated about his wife informing him about the accused party going towards the house of his brother Uda. Kishna on receiving that information had gone to the house of Uda and then to that of Natha and they knew about the incident from Smt. Jaggi. Thus, the knowledge of Smt. Rami and information given by her to her husband are loops connecting the chain of prosecution story. Smt. Jaggi has stated about the miscreants entering her house with weapons and asking the where-abouts of her husband. She has also stated about the enmity between her husband and appellant Lakhma for a number of years, and Lakhma having fractured the hand of Uda and that no case was instituted for it but Panchayat had settled the matter. The witness also stated about Uda giving the beating to Lakhma about 20 days prior to the present incident. Uda (P.W. 4) has stated similarly. Uda has also stated that when Lakhma, after his return from the hospital after treatment for in inquiring sustained on account of the witness giving him a beating, had expressed the intention to kill him(Uda). No question to shatter this part of the prosecution case has been put to any of these two witnesses. Lakhma had also not denied the fact of enmity between him and Uda. 22. The argument advanced by the learned counsel for the appellants is that even in case there was any enmity between Lakhma and Uda, there could not have been any reason for the appellants to cause any injury to Smt. Jaggi and all the more so to Gema who never had any quarrel with any of the accused. The learned Public Prosecutor on the other hand has argued that Smt. Jaggi, being wife of Uda, and Gema, being his father, the assailants were bent upon taking revenge of Uda from any of his family members. 23. The learned Public Prosecutor on the other hand has argued that Smt. Jaggi, being wife of Uda, and Gema, being his father, the assailants were bent upon taking revenge of Uda from any of his family members. 23. The prosecution case has started with the story that the assailants has enquired of Uda and as he was not available Smt Jaggi was given a beating. There is no evidence to suggest that the assailants had gone with a desire to cause injuries to Gema. In what circumstances Gema was given a beating has been discussed above. All that can be said with certainty is that there was motive behind the appellants going to the house of Uda to take revenge. When the accused went to Smt. Jaggi, she was sitting near the beerth. 24. Controverting these contentions, the learned Public Prosecutor submitted that all the four appellants having gone together towards Gema and some of them causing fatal injuries to him, their conviction for the offence of murder with the aid of section 34 I.P.C. is justified. 25. The learned counsel for the appellants has emphatically argued that even if the prosecution case is entirely believed still the conviction of the appellants for the offence under s. 302/34 I.P.C. is not sustainable because the circumstance and the manner in which Gema is said to have been given the beating do not indicate that the assailants had shared the common intention to commit his murder. About Husia the arguments of the learned counsel are that he is said to have a lathi with him and the medical evidence does not speak of any injury by blunt object to the deceased. Learned counsel urged that whatever be the common intention of the three other appellants, Husia cannot be said to have shared the same because of there being no overt-act by him. Specific motive has to judged by the acts and the surrounding circumstances of a given case. 26. Prosecution has established by the convincing evidence of Smt. Jaggi, that she was given a beating by the appellants with the weapons, they had with them. Her statement, as observed above, stands supported by the circumstantial evidence of Smt. Rami who had seen the four appellants going towards the house of Uda on that day. Smt. Jaggis statement regarding her injuries stands corroborated by the medical evidence. Her statement, as observed above, stands supported by the circumstantial evidence of Smt. Rami who had seen the four appellants going towards the house of Uda on that day. Smt. Jaggis statement regarding her injuries stands corroborated by the medical evidence. The learned trial Judge has held her injuries to be simple in nature in view of the medical evidence. Having considered the nature of the injuries caused by the various accused the learned trial judge has rightly convicted Lakhma and Kala for the offence under sec. 324 I. P. C. The appellants had, with an intention to commit a crime, be it with intention of beating Uda, entered the house and had caused injuries to Smt. Jaggi. Hence there is justification for conviction under section 452 I.P.C. 27. In order to properly appreciate the principle of vicarious liability envisaged by section 34 I.P.C. and its application in the present case, it would be profitable to discuss the principles enunciated in the various authorities cited from both the sides. 28. The basic authority on the point is Mahbub Shah vs. Emperor (2), wherein their Lordships were pleased to discuss the ingredients of the term common intention and it was observed that to convict the accused of an offence by applying section 34 I.P.C., it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. Their Lordships were pleased to observe that direct evidence to prove the intention of individual is difficult to be found and therefore inference is to be drawn from his act or conduct or other relevant circumstances of the case. Their Lordships have been pleased to draw a distinction between the term same intention or similar intention and common intention and emphasised that the two should not be confused. The principle enunciated in the case was that, the inference of the common intention, within the meaning of section 34 I.P.C., should never be reached unless it is a necessary inference deducible from the circumstances of the case. 29. The question about the applicability and scope of section 34 I.P.C. came for consideration before their Lordships of Supreme Court in the case of A.I.R. 1955 S. C. and the principle referred to in the P. C. decision was emphasised. 30. 29. The question about the applicability and scope of section 34 I.P.C. came for consideration before their Lordships of Supreme Court in the case of A.I.R. 1955 S. C. and the principle referred to in the P. C. decision was emphasised. 30. In the case of A.I.R. 1972 S.C. page 254 their Lordships were pleased to propound that before a Court can convict a person under section 302/34 I.P.C. it should come to a definite conclusion that the said person had a prior concert with one or more persons, named or un-named for committing the offence. 31. In the case of Kundan Singh v. Delhi Administration (3), there being no clear evidence as to the author of the vital injury or the intention of the accused to cause death the conviction under sec. 302/34 I.P.C. was altered to that under section 304-11, I.P.C. 32. In the case of Ninaji Raoji v. State of Maharashtra (4) there was no reliable evidence on the record to prove whether the fatal blow on the head of the deceased was caused by the particular accused. The common intention to cause the death was not proved. For that reason conviction of the accused under section 302/34 I.P.C. was altered to one under section 325/34 I.P.C. 33. In the case of Md. Isak vs. State of Maharashtra (5) the occurrence arose out of hot exchange of abuses leading to assault with sticks and there was no evidence to show who struck the fatal blow. The offence was held to fall under section 325/34 I.P.C. and not under section 302 I.P.C. 34. In the case of Hammu vs. State of Madhya Pradesh (6) the attack by several accused resulted in fatal injuries and the victim died. There was no definite finding as to which of the several accused was responsible for the fatal injuries, though it was proved that they acted in union and shared common intention of causing grievous hurt to the deceased. In such circumstances their Lordships were pleased to opine that the accused can be convicted for the offence under section 326/34 I.P.C. and not under section 302/34 I.P.C. 35. In such circumstances their Lordships were pleased to opine that the accused can be convicted for the offence under section 326/34 I.P.C. and not under section 302/34 I.P.C. 35. The pertinent point for consideration in the present case is, whether the common intention to commit a particular crime can be attributed to utterance of Gema, rushed towards him, surrounded him and gave a beating, the inference of common intention to commit the murder of Gema has rightly been drawn. To substantiate his arguments, the learned Public Prosecutor placed reliance on the principle enunciated in the case of Karamat Ali vs. State of Assam (7), wherein because of the four accused attacking the deceased with common intention to kill, the conviction for the offence under section 302/34 I.P.C. was held to be proper. The fact that no overt-act could be attributed to one of the accused was held immaterial for the reason that prosecution was successful in establishing the common intention of all the four accused to kill the victim. 36. In the case of State of Maharashtra vs. Kalu Shivram Jagtap (8) the fact of the two accused armed with sticks having came together and gone together, and participating equally in actual assault on the deceased, was considered sufficient to establish that the common intention of both the accused was to kill the deceased. 37. The learned Public Prosecutor submitted that for applying section 34 I.P.C. it is immaterial as to which particular accused caused which injury. 38. Smt. Jaggi had seen the accused going towards the field where her father-in-law was. She has stated about the assailants giving a beating to her father-in-law. She has not given the details of actual beating. She has deposed that she had concealed herself in the field of Kala out of fear. She has admitted that Gema was not visible from there. 39. The witness of the actual beating is Moti. It is noteworthy that Moti also could not say who exactly caused injuries to the deceased. All that he could say was that the assailants surrounded the deceased and give him a beating. The learned counsel for the appellants has raised the argument that Gema was already in the field and had the assailants any intention to commit his murder, they, instead of going to the house of Uda, would have gone straight to him. All that he could say was that the assailants surrounded the deceased and give him a beating. The learned counsel for the appellants has raised the argument that Gema was already in the field and had the assailants any intention to commit his murder, they, instead of going to the house of Uda, would have gone straight to him. The circumstances of the case lend support to this argument. But for Gema raising an alarm, there was no certainty that the assaiants would have given a beating to him. From the totality of the circumstances all that can be inferred is that the intention of the assailants was to commit murder of Uda and so far as Gema is concerned the intention could only be to give a beating to him. Moti was at some distance from the place where Geme was given the beating. He could not even say who started the beating first. He only could say that the assailants had surrounded Gema. Out of the six wounds found on the person of Gema only one was on the vital part of the body i.e. parietal region resulting in the protrusion of the brain matter. Who caused that injury is not known. The doctor had stated that the incised wounds mentioned in the post mortem examination report could be caused by sharp weapons like dharia, sword and axe. Learned trial Judge, therefore, rightly held the three accused appellants viz. Lakhma, Kala and Kusia responsible for the various incised wounds. Husia was having a lathi at the time. There is no injury by any blunt object*. For this reason, the learned counsel for the appellants submitted that Husia should not be vicariously held guilty for the injuries caused to Gema. 40. It is a settled position of law that overt-act of the co-accused is not always necessary in applying section 34 I.P.C. If prosecution succeeds in establishing that the accused shared the intention with the other for the acts committed by him. However, if the defence succeeds in raising a reasonable doubt that the person not committing any overt-act had not shared the intention of the other he should not be vicariously held liable and convicted with the help of sec. 34 I.P.C. Had Husia shared the common intention of the rest for causing the injuries to Gema he also could have used the stick, he had with him. 34 I.P.C. Had Husia shared the common intention of the rest for causing the injuries to Gema he also could have used the stick, he had with him. It is also not evident whether he was actually near the deceased or not. In this view of the matter, his being together with the other appellants alone would not be sufficient to saddle him with the liability with the help of section 34. 41. In the present case there being specific evidence of the common intention of the accused to give beating to or kill Uda, it cannot be said that the subsequent acts were also done by the accused in furtherance of that common intention. We are therefore, inclined to hold that prosecution has succeeded only in establishing common intention to cause grievous injuries to Gema and that too by those appellants only who were armed with sharp weapons. The case of Husia, for the reason stated above, is distinguishable from the rest three appellants. 42. In view of the above discussions, we are in agreement with the findings of the learned trial Judge so far as the conviction of all the appellants for the offence under Section 452 I.P.C. and appellants Lakhma and Kalia for the offence u/s. 324 I.P.C. and Husia and Kusia for the offence u/s. 323 I.P.C. is concerned. The sentences awarded to them for those offences are also proper. As observed above no offence is made out against Husia regarding the death of Gema. In view of our conclusion that the common intention of three appellants, armed with sharp weapons was only to cause grievous injuries to Gema by those weepons and not to commit his murder, the three appellants Lakhma, Kala and Kusia are, held guilty u/s. 326/34 I.P.C. and not under section 302/34 I.P.C. 43. Appellants Lakhma and Kalia were arrested on 27.7.1975 and Kusia on 3.8.75. Since then they are in custody. The ends of justice would meet if for the offence u/s. 326/34, they are sentenced to the "period they had remained in custody and the sentences on all the counts are ordered to run concurrently. 44. Consequently, the appeal is partly allowed. Appellants Lakhma and Kalia were arrested on 27.7.1975 and Kusia on 3.8.75. Since then they are in custody. The ends of justice would meet if for the offence u/s. 326/34, they are sentenced to the "period they had remained in custody and the sentences on all the counts are ordered to run concurrently. 44. Consequently, the appeal is partly allowed. Conviction of the appellants Lakhma and Kala for the offence u/s. 324 of Husia and Kusia for 323 I.P.C. and all of them for the offence u/s. 452 I.P.C. and the sentences awarded to them on these counts are maintained. Husia is acquitted of the charge for the offence u/s. 302/34 I.P.C. for the murder of Gema. Appellants Lakhma, Kala and Kusia are acquitted of the charge u/s. 302/34 I.P.C. and are, instead of convicted for the offence under section 326/34 I.P.C. and sentenced to the period they had remained in custody so far. Appellant Husia had remained in custody from 10.8.75 to 3.10.78 when he was released on bail. He had thus already suffered sentences awarded to him for the offences under sections 452 and 323 I.P.C. Hence he need not surrender. His bail bonds stand discharged. Appellants Lakhna, Kala and Kusia shall be set forth to liberty atonce if not required in any other case.