JUDGMENT : S.L. Talati, J. These two appeals are directed against the judgment of the learned Sessions Judge, Bharuch rendered on 29-12-1982 while deciding Sessions Case No. 65 of 1982. The learned Sessions Judge convicted accused Nos. 1 and 2 under Section 326 read with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default to suffer R.I. for six months. Accused Nos. 3 and 4 also were convicted for an offence punishable under Section 326 read with Section 34 I.P.C. However, as they were young they were sentenced to suffer R.I. for two years and to pay a fine of Rs. 250/- each in default to suffer. R.I. for six months. The conviction of accused is challenged by filing Criminal Appeal No. 722 of 1983 while the State filed Criminal Appeal No. 322 of 1.983 challenging the conviction under Section 326 read with Section 34 IPC and praying that the conviction should have been for the offence punishable under Section 302 of the IPC read with Section 34 IPC. 2. The prosecution case may be briefly stated as under: 3. Accused Nos. 1 and 2 are brothers, accused No. 3 is the son of accused No. 2 and accused No. 4 is the son of accused No. 1. This particular incident occurred on 2-7-1982 at about 3.00 p.m. in the sim of village Rund in Jhagadia Taluka, District Bharuch. One Dolatsinh Umedsinh Rathod died in this incident. The prosecution case is that on 25-5-1982 there was an incident of quarrel resulting in hurt for which cross-complaints came to be filed between the parties. Thereafter on 2-7-1982 this incident occurred. According to the prosecution Dolatsinh Umedsinh Rathod, the deceased was residing in village Brankad and he started from his house to go to a bus stand. In fact at that place there is no bus stand but a place where the bus stops. According to the prosecution the deceased wanted to go to Netrang and he told his brother Bharatsinh that he was going to Netrang and would return the next day. So saying he started from his house. Soon after Bharatsinh saw that four accused persons followed the deceased. According to the prosecution the deceased wanted to go to Netrang and he told his brother Bharatsinh that he was going to Netrang and would return the next day. So saying he started from his house. Soon after Bharatsinh saw that four accused persons followed the deceased. Accused No. 1 was armed with gun, accused No. 2 had a dharia with him, accused No. 3 had a stick and accused No. 4 had an axe or farsi. Bharatsinh suspected a foul play and he told this to Police Patel Khumansinh who is residing in the same street and who has got the house which is third house from his house. He told him that four accused were following Dolatsinh and that he Was going after the accused and Police Patel also should follow. Bharatsinh total about this to his wife Ratanben (P.W. 6). Dolatsinh ultimately reached the bus-stop. The accused Were following Dolatsinh and were at a distance of about 200 ft. Bharatsinh was following the accused and he was also at a distance of about 200 ft. from the accused. Dolatsinh looked back and he noticed that four accused persons were following him. Therefore, he started running towards Bhalod and ultimately ran in the fields. The accused also ran after him. Seeing Dolatsinh and the accused running Bharatsinh also started running. Ultimately four accused could reach Dolatsinh. At that time Bharatsinh was at a distance of about 30 or 35 ft. from that place arid he stood there perhaps because by that time four accused had surrounded Dolatsinh and started giving him blows with the weapons which they possessed. The result was an instantaneous death. Four accused ran away. Bharatsinh thereafter went, to the place where his brother was lying dead and he decided to go to Bhalod Police Station for filing the complaint. The result was an instantaneous death. Four accused ran away. Bharatsinh thereafter went, to the place where his brother was lying dead and he decided to go to Bhalod Police Station for filing the complaint. Fearing that it would be dangerous to go by a normal route he Went through the fields and ultimately reached Bhalod Police Station and filed a complaint Exhibit 21 at 4-45 p.m. Now the prosecution case is that Dolatsinh had left his house at about 3-00 p.m. and he was killed round about 3-15 p.m. Bharatsinh reached the spot, waited there for about ten minutes and, therefore, he started by 3.30 p.m. for going to Bhalod Police Station and ultimately filed the complaint at 4.45 p.m. which was recorded, entry was made in the Police Station diary Exhibit 35 and the offence was registered by P.S.O. Ramdas Shankerdas P.W. (1.0) Exhibit 34. The investigation was handed over to P.S.I. Ganesh Solanki (P.W. 12) Exhibit 37. He went to the place of scene of offence immediately on 2-7-82 and prepared the panchnama of the place of scene of offence. Immediately thereafter he recorded the statements of Chandrasinh, Ratanben, Khumansing, Mansing, Dalpat Naliya, Ghiman. Dalpat, Jesang Naran and others. Further statement of the complainant was also recorded. On that very night accused Nos. 1, 3 and 4 were arrested by 1-00 a.m. They were found in the house of accused No. 1. Gun, stick and farsi were attached. Bush-shirt of accused No. 4 was attached. Baniyan produced by accused No. 3 was also attached. Panchnama was prepared which is at Exhibit 32. Accused No. 2 surrendered himself on the next day morning at the police station with a dharia which was also attached and another panchnama was prepared which is at Exhibit 33. On 14-7-1982 blood stained clothes and weapons etc. were sent to Forensic Laboratory. Ultimately after completing the investigation charge-sheet was submitted against the accused persons on 21-8-1982. In due course the accused came to be committed to the Court of Sessions. 4. At the trial 12 witnesses were examined. The accused denied the guilt. They, have not led any defence. On appreciation of the evidence the learned Sessions Judge came to the conclusion that four accused with the weapons as alleged by the prosecution had followed. In due course the accused came to be committed to the Court of Sessions. 4. At the trial 12 witnesses were examined. The accused denied the guilt. They, have not led any defence. On appreciation of the evidence the learned Sessions Judge came to the conclusion that four accused with the weapons as alleged by the prosecution had followed. Dolatsinh and given him blows in the field in the Sim of village Rund as a result Dolatsinh died. However, the learned Sessions Judge came to the conclusion that though there was a common intention amongst all the four accused persons, intention was not to commit murder but the intention was to voluntarily cause grievous hurt and, therefore, the learned Sessions Judge held them guilty for the offence punishable under Section 326 read with Section 34 IPC and sentenced them as above as a result these two appeals came to be filed. 5. The learned advocate Shri Vyas took us through the entire evidence and he submitted that there was enmity between the parties and the story which is narrated by the prosecution witness is not at all natural and it is such which is required to be rejected on the face of it. In any case the learned advocate Shri Vyas submitted that the story is improbable and it cannot be said that it is free from doubt. The evidence of the complainant was criticised as not being natural as he did not inform any relative and he did not follow the accused persons with any weapon though he had seen that four accused were following his brother with different weapons. Ultimately it was suggested that the medical evidence also does not corroborate the oral evidence on record and in any case it is a case where the theory of the prosecution was not required to be accepted. We will examine these arguments with reference to the evidence which is on record. 6. to 7. xxx xxx xxx 8. But before we go to that evidence we would like to say that we find that the evidence of these two witnesses Bharatsinh and Bai. Ratan coupled with the medical evidence is sufficient to come to the conclusion that the accused were the assailants. The reason is obvious. It was day time. There was no difficulty in identification, Dolatsinh had left for going to the bus stop. Ratan coupled with the medical evidence is sufficient to come to the conclusion that the accused were the assailants. The reason is obvious. It was day time. There was no difficulty in identification, Dolatsinh had left for going to the bus stop. Bharatsinh actually saw four accused with different weapons following Dolatsinh. Dolatsinh was going in a usual manner and the accused also were not running after him because that might arouse suspicion and they would like to maintain a safe distance. It is only that they decided to attack, that they would run, catch him. Ultimately Dolatsinh reached the bus stop and he saw that four accused persons were following him with weapons. At that moment he ran towards Bhalod and ultimately in the fields. At that particular point of time the accused thought that it was safe now to run after him and catch him and in the fields if he is caught there would be none to help him, at that point of time everybody would try to run. Ultimately four persons reached Dolatsinh and so soon as they reached the place they started an attack simultaneously. It is not material as to which accused caused which injury on what part of the body. When four accused persons make simultaneous attack on a single person who is unarmed with whatever weapon they carry the injuries would fall on any part of the body which is neither contemplated by the assailants nor contemplated by the person who is receiving the injuries. The intention in the mind of a person who inflicts injuries and the persons who were armed, the persons who were following and the persons who were ultimately running and the persons who ultimately simultaneously attack an unarmed person with weapons and they continue to do so till the person dies, the intention is clear which is neither same nor similar but it is common and with that common intention they had gathered at the place, got themselves fully armed, followed Dolatsinh with the same intention, ultimately ran with the same intention and ultimately by an attack carried the intention which brought about the death of Dolatsinh. Here we may say that the learned Sessions Judge came to the same conclusion. He came to the conclusion that the four accused entertained a common intention. Here we may say that the learned Sessions Judge came to the same conclusion. He came to the conclusion that the four accused entertained a common intention. He also came to the conclusion that the four accused had started and followed Dolatsinh. He also came to the conclusion that the four accused ran after Dolatsinh. He also came to the conclusion that the four accused ultimately attacked Dolatsinh. We will deal with the aspect as to what offence because of such an assault should be held to have been committed. But before we do so we would like to discuss the other evidence on record. 9. to 10. xxx xxx xxx 11. The next question which is required to be considered is what offence is committed by the accused persons. The learned Sessions Judge came to the conclusion that the accused entertained a common intention to voluntarily cause grievous hurt to Dolatsinh and, therefore, the learned Sessions Judge held them guilty for the offence punishable under Section 326 read with Section 34 IPC. The learned Sessions Judge gave his reasons in paragraph 12 of the judgment. We have gone through that paragraph. According to the learned Sessions Judge the complainant had seen that only one blow was given by dharia and the evidence disclosed that accused No. 2 had given that blow with dharia. Thereafter the learned Sessions Judge stated that if the intention was to kill accused No. 1 would have fired with the gun which he had. Immediately thereafter the learned Sessions Judge states as under: "But that would have attracted many persons because of the sound created by firing a gun-shot". Thereafter the learned Sessions Judge discussed the two internal injuries which according to the Medical opinion were possible even by fall. He, therefore, discarded those injuries as if fall was natural and had nothing to do with the attack or the other injuries which were caused on the person of Dolatsinh. Immediately thereafter a grave error is committed and the learned Sessions Judge in that paragraph stated as under: "It would be very clear that it is the collective effect of all the external and internal injuries which were found to be sufficient in the ordinary course of nature to cause death." This is a clear misreading of the evidence of the Medical Officer. The Medical Officer never stated collective effect of all external and internal injuries was sufficient in the ordinary course of nature to cause death. When he stated that the injuries were found to be sufficient in the ordinary course of nature to cause death he only referred to external injuries and not internal injuries. Now that, therefore, the learned Sessions Judge thought that if two internal injuries were not there perhaps the man would not have died as the internal injuries were because of a fall for which the accused were not responsible. This is how he fell into error. He should have seen that the Medical Officer had given a clear opinion that the external injuries were sufficient in the ordinary course of nature to cause death and when the collective effect of all external injuries was sufficient in the ordinary nature to cause death all those injuries were inflicted by none else but by the accused persons. Immediately thereafter the learned Sessions Judge came to the conclusion that there was grievous hurt because arms were cut. This is how the error is committed. If Section 34 was properly read which is required to be done in every case where the applicability or otherwise of Section 34 IPC is required to be considered, the result could never be erroneous. Section 34 IPC reads as under: "34. When a criminal act is done by several persons in furtherance of ti 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." What is required to be done is a criminal act. It must be done by several persons. That must be done in furtherance of common intention of all. If these conditions are satisfied each of such persons is liable for that act in the same manner as if it were done by him. Now, therefore, what was required to be seen was whether to attack a person with weapons is a criminal act or not? The answer, would be yes. If it was done by four persons it was done by several persons. Now whether it was done in furtherance of common intention of all? This could be gathered from the circumstances. They all followed Dolatsinh. They ultimately ran after him. They ultimately simultaneously attacked him. They ultimately left the place after Dolatsinh died. The answer, would be yes. If it was done by four persons it was done by several persons. Now whether it was done in furtherance of common intention of all? This could be gathered from the circumstances. They all followed Dolatsinh. They ultimately ran after him. They ultimately simultaneously attacked him. They ultimately left the place after Dolatsinh died. All these acts form a chain which would show the circumstances that several persons, four of them were acting because of a common concert and they had a common intention and in furtherance of that common intention they had gathered. They had picked up arms. They had started moving. Thereafter they started running. Thereafter they had attacked and ultimately left the place only after the act was accomplished. Nothing more is required to be established. 12. Now what was the common intention of these four persons? One was carrying dharia, another was carrying farsi, one man was carrying an iron-ring stick and one man was armed with gun, is it necessary that all weapons should be used? Any weapon may be used by any one of them and if the common intention is completed and if that weapon is used in furtherance of common intention of all persons every person would be liable in the same manner as if it were done by him alone meaning thereby that if one of them finishes Dolatsinh the other three each one would be liable as if he had used the weapon and he had finished Dolatsinh provided the person who inflicted the blow had clone so in furtherance of common intention of all. This aspect was clearly forgotten. Section 34 IPC was clearly applicable in this case. The learned Sessions Judge applied the same but came to the conclusion that the intention was to voluntarily cause grievous hurt merely because dharia blow was given. He clearly forgot that ultimately what was intended and what was brought about was not grievous hurt but death only. 13. The learned Advocate Shri Vyas drew our attention to a case of Hammu and Others v. State of Madhya Pradesh reported in AIR 1979 Supreme Court at page 1755. That was a case where the accused were held guilty for the offence under Section 326 read with Section 34 IPC. We have gone through the entire case and the facts of that particular case. That was a case where the accused were held guilty for the offence under Section 326 read with Section 34 IPC. We have gone through the entire case and the facts of that particular case. The prosecution case briefly is stated in that judgment in paragraph 2. Thereafter the evidence is discussed in paragraphs 3 to 8. Ultimately in paragraph 10 the learned Judges observed as under: "The incident appears to be the consequence of some exchange of abuse between a few young men. The evidence shows that though two of the appellants were stated to be aimed with knives, the others were either unarmed or had sticks with them. The evidence also shows that the principal target was P.W. 1 and not the the deceased. It is also seen from the evidence that when the deceased was alleged to be stabbed by A-l and A-2, the other accused were at some distance." Now in this particular case the target was none else but Dolatsinh. In the case before the Supreme Court the target was prosecution witness No. 1 and on evidence the learned Judges came to the conclusion that the evidence led was such that it was not even possible to find out as to whether accused No. 1 gave a stab injury or accused No. 2 gave stab injury. On evidence it was found that there were different versions in regard to the attack. Here there, is only one version. We have, already stated that version. The target was Dolatsinh and none else. We may here refer to a case of Lalai & Dindoo and Another v. State of U.P. reported in 1975 (3) Supreme Court Cases 273, The Supreme Court in paragraph 7 in that case observed as under: "To infer common intention the time and place of the murder, the weapon carried by the accused, their relationship inter se and their concerted action in the wake, of the murder are all relevant." "So where the deceased was sought in his own habitation and murdered and the co-accused, brother of the accused, carried a spear to overcome outside interference and the accused ran away together after the murder, the fact that the co-accused did not participate in the murderous assault is immaterial and the inference of common intention was rightly inferred. His conviction under Section 302 read with Section 34 was therefore not improper." Now to revert again to the facts of this particular case if we look at the time and place of the murder the time is round about 3.15 p.m. where the four accused, armed had followed Dolatsinh. The other aspect is of weapons carried by the accused, viz. gun, fersi, ironing stick and a dharia. These weapons are such from which intention of a person could be gathered. The third factor is their relationship inter se. Accused Nos. 1 and 2 are brothers, accused No. 3 is the son of accused No. 2 and accused No. 4 is the son of accused No. 1. Their concerted action in the wake of murder if considered they started together with weapons, walked together, ran together, reached together, attacked together and ran-a-way together. Therefore, the purpose of inferring common intention, the time and place of the murder, weapon carried by the accused, their relationship inter se and their concerted action in the wake of murder are all relevant according to the Supreme Court and in this particular case everything tallies. In that particular case the person who carried the spear never used it, yet lie was field guilty for the offence under Section 302 read with Section 34. Here accused No. 1 did not use gun in the sense that he did not fire it, carried it to overpower any person who interfered. On all fours the case would be applicable. The result would be that the accused are required to be held guilty for the offence punishable under Section 302 read with Section 34 IPG. The appeal of the State being Criminal Appeal No. 322 of 1.983 is allowed and the appeal filed by the accused which is Criminal Appeal No. 722 of 1983 is dismissed. 14. to 15. xxx xxx xxx Order accordingly.