Judgment P.S.SAHAY and S.H.S.ABIDI JJ. 1. These two appeal and the revision arise out of the same judgment, and. therefore, all the cases have been heard together and will be disposed of by this common judgment. Sheo Shankar Prasad of Criminal Appeal No, 323/77 have been convicted under Section 302 of the Indian Penal Code (hereinafter to be referred to as the Penal Code) and has been sentenced to undergo rigorous imprisonment for life. Ashutosh Kumar Manoj. alias Chhote Lal of Criminal Appeal No. 274/77 has been convicted under Section 324 of the Penal Code and sentenced to undergo rigorous imprisonment for two years. Two more persons were put on trial namely, Munni Lal and Uma Prasad but they have been acquitted by the trial court. Informant Raj Kumar Singh has filed Criminal Rev sion No. 1161/77 challenging the acquittal of Munni Lal and Uma.Prasad and also the acquittal of Ashutosh Kumar Manoj & Chhote Lal under Section 302 read with 34 of the Penal Code. 2. The case of the prosecution was that on 12-6-76 at about 9 a. m. in mohalla Murli Pahari Tola Bigha within the police station of Kotwali in the town to Gaya there was a Puja in the house of Raj Kumar Singh (P. W. 5). in this Puja Raj Kumar Singh (P. W. 5) had invited Jivan Prasad (deceased) and his brother Ramji Prasad and Laxman Prasad (P. Ws. 2 and 4 respectively). After the Puja was over, Raj Kumar Singh along with Jivan was going to his house in mohalla Gol Bagicha . P. Ws 2 and 4 were also coming behind them. At a distance of about 40 steps from the house of Raj Kumar, Jivan and Raj Kumar were surrounded on the road by accused Ashutosh Kumar, Sheo Shankar Prasad. Munni Lal and Uma Prasad (the latter two have been acquitted). Sheo Shankar Prasad and Ashutosh Kumar had knives (chhuras) in their hands while others had belts. Raj Kumar and Jivan tried to run away but they over powered them and thereafter threw them on the ground. Sheo Shankar Prasad pierced knife in the chest of Jivan while Ashutosh Kumar gave a chhura blow on the left side of stomach of Raj Kumar. In the meantime P. Ws. Raj Kumar and Jivan tried to run away but they over powered them and thereafter threw them on the ground. Sheo Shankar Prasad pierced knife in the chest of Jivan while Ashutosh Kumar gave a chhura blow on the left side of stomach of Raj Kumar. In the meantime P. Ws. 2 and 4 and also Deepak Kumar (P. W. 3) brother of Raj Kumar arrived there and saw the occurrence After assaulting Jivan and Raj Kumar all the accused ran away towards south. Both the injured were taken to Gaya Pilgrim Hospital on a Rikshaw. But on reaching Hospital Jivan died. 3. The motive for the offence is said to be that about seven days prior to the date of occurrence there was some altercation between the accused and the deceased over purchase of Cinema tickets in Paradise Cinema Hall where film "Dus Numbrees" was being exhibited and the accused had extended threats to the deceased. 4. Raj Kumar was given medical aid in the said hospital. At about 10.30 a. m. outdoor slip was sent to the Kotwali Police Station. This outdoor slip was entered in the station diary by the junior Sub-Inspector of Police Bhagwat Prasad (P. W. 6). The Sub-Inspector (P. W. 6) reached the hospital at about 10.45 a. m He found the deadbody of Jivan in the surgical ward and also found Raj Kumar in an injured condition. He recorded the fardbeyan (Ext. 3) of Raj Kumar in the hospital at about 10.45 a. m. on the basis of which F. I. R. (Ext. 4) was registered at about 2. p. m. the same day at the Kotwali Police Station. The sub-inspector (P. W. 6) prepared injury report and referred Raj Kumar to the doctor. The sub-Inspector (P. W. 6) also prepared inquest report (Ext. 5) on the deadbody of Jivan at about 11.45 a. in. Thereafter he sent the deadbody of Jivan for postmartem through constables. P. W. 6 also went to the place of occurrence along with Raj Kumar where he examined the witnesses. He did not find blood at the place of occurrence. After completing the investigation P. W. 6 submitted chargesheet. Thereafter the accused were committed to the court of session and put on trial Uma Prasad and Munni Lal, on trial, were charged under Section 302/34 of the Penal Code for causing death of Jivan. He did not find blood at the place of occurrence. After completing the investigation P. W. 6 submitted chargesheet. Thereafter the accused were committed to the court of session and put on trial Uma Prasad and Munni Lal, on trial, were charged under Section 302/34 of the Penal Code for causing death of Jivan. Ashutosh Kumar Manoj @ Chhote Lal was further charged under Section 324 of the Penal Code for causing dagger injuries to Raj Kumar Singh (informent). Sheo Sbankar Prasad was charged under Section 302 of the Penal Code for causing death of Jivan. 5. The prosecution in support of its case examined six witnesses. Out of them P. Ws. 3 and 5 are eye-witnesses. P. W. 2 immediately came after the occurrence and learnt the names of the assailant. P. W. 4 is tendered and P. W. 6 is the investigating officer. P. W. 1 is Dr. Md. Ekbal Mallick. He stated that on 12-6-1977 at about 4.30 p. m. he conducted the postmortem examination on the dead body of Jivan aged about 19 years and found the following injuries on his person : One single injury 1 "X 1/4" incised in character in the 6th intercostal space horizontally in the line of anterior artilary fold on left side of chest leading to the chest cavity. On opening of the chest cavity, the left side of the chest cavity was found full of blood. The lower lobe of the left lung contained a punctured wound through and through connecting the wound on the 6th intercostal space. The hard surface was containing an incised wound about 1/4 "X3/4" X l/2" connecting the wound in the lower lobe of the lung and the wound on the 6th intercostal space. The pericardial cavity was containing blood and the pericardium was incised in the line of the wound. The heart chambers were empty. The stomach was empty and the urinary bladder was containing small amount of urine. The injury was ante mortem and was caused by sharp pointed weapon such as chhura. Time elapsed since death was 8. to 12 hours. In the opinion of the doctor death was caused due to shock and haemorrhage on account of the wound caused. It was sufficient in ordinary course of nature to cause death. In this case the copy of the postmortem report has not been filed by the prosecution. Time elapsed since death was 8. to 12 hours. In the opinion of the doctor death was caused due to shock and haemorrhage on account of the wound caused. It was sufficient in ordinary course of nature to cause death. In this case the copy of the postmortem report has not been filed by the prosecution. However, it has been stated by the doctor in his evidence that he conducted the postmortem examination and found the above mentioned injuries. 6. P. W. 2 is Ramji Prasad. His name is mentioned in the F. I. R. He had gone to the house of Raj Kumar for Prasad in the Puja. He was going behind Raj Kumar and Jivan and on hearing the cries Bachao-Bachao he reached the spot and found that Jivan and Raj Kumar had been surrounded by the accused persons and Jivan was unconscious. He was told by Raj Kumar that Sheo Shankar had given Chhura blow to Jivan and Ashutosh Kumar had given chhura blow to him. 7. P. W. 3, Deepak Kumar, is brother of Raj Kumar (informant). After the Puja was over Jivan and Raj Kumar having taken the Prasad went away. He heard alarm and then reaching the spot the found Jivan and Raj Kumar surrounded by the accused. They were given injuries by the accused persons and thereafter they were taken to hospital where Jivan died. 8. P. W. 5 is Raj Kumar, the informant himself, who had received injuries in his stomach. He has fully supported the prosecution case. He said that he was medically examined and he had signsd the injuries report. He has proved the motive Puja and Prasad taking and then going along with the deceased and getting the injuries and thereafter medical examination and then fardbeyan. P. W. 6 is the investigating officer, Bhagwat Prasad, of this case, who submitted chargesheet inspite of the fact that against him there was a protest petition (Ext. A). He went to the hospital on getting a copy of outdoor slip, saw the two persons as injured and prepared injury report and also the inquest report, sent thi body for postmortem. He visited the place of occurrence, did not find blood marks examined witnesses and after completing the investigation had submitted charge-sheet. 9. The learned Sessions Judge has convicted the two appellants and acquitted the rest. He visited the place of occurrence, did not find blood marks examined witnesses and after completing the investigation had submitted charge-sheet. 9. The learned Sessions Judge has convicted the two appellants and acquitted the rest. Against the findings two appeals and one revision have been filed as mentioned above. The learned Sessions Judge has held that the occurrence had been amply proved by the evidence adduced on behalf of the prosecution and the witnesses were reliable and disinterested. As regards the participation of the accused persons he held that Sheo Shankar was responsible for causing the death of Jivan. Ashutosh Kumar Manoj @ Chhote Lal had caused injuries to the informant Raj Kumar and outdoor slip (Ext. 1) issued by P. W. 1 was filed though it does not mention about the details of his injuries. But from the evidence of P. W. 5 injuries had been sustained by him. P. Ws 2 and 3 also found Raj Kumar lying injured. Moreover as stated by him the investigating officer (P. W. 6) on reaching the hospital at 10.45 a. m. he found bleeding injuries on the left side of the stomach of Raj Kumar. As such the mere non-productton of the injury report and the non-examination of the doctor will not be enough to show that Raj Kumar was not injured nor it can be a ground to discard the evidence. As regards the participation of other two accused, namely, Arvind and Ashok, it was held that merely because they were soon together it could not be said that they had shared the common intention, The learned Sessions Judge has referred to the decision of the Supreme Court in Ram Prasad and others V/s. State of Uttar Pradesh, 1976 BBCJ 1 , where out of the four accused two had given two lathi blows while kicks and fits were given by the other two, it was held that the manner of assault as deposed by the prosecution did not show that all the four accused had developed common intention at the time of the occurrence. Relying on this decision the other two accused Arbind and Ashok were acquitted. Two appeals and one revision have been filed as mentioned above. 10. The learned counsel for the appellants raised the following points : (i) Motive in. Relying on this decision the other two accused Arbind and Ashok were acquitted. Two appeals and one revision have been filed as mentioned above. 10. The learned counsel for the appellants raised the following points : (i) Motive in. this case is far fetched and it was not such that the appellants will commit the offence. (ii) Injury report of Raj Kumar has not been filed nor the doctor who had examined him has been examined and therefore no conviction could be recorded in this case. (iii) Many things have been said in court by P. Ws 2, 3 and 5 which had not been stated before the Investigating Officer and so the statements of these witnesses should not be relied upon. (iv) Witnesses examined on behalf of the prosecution do not support the prosecution case. (v) No postmortem report has been filed by the prosecution and only doctor who conducted postmortem has been examined. (vi) There is no reliable evidence that Puja was held on that date. (vii) Appellant had no intention to kill and at best the offence will be under Section 304 part II of the Penal Code and not under Section 302 of the Penal Code. 11. As to the motive, it was contended that it was a far fetched and a trivial matter and almost daily in the cinema hall people quarrel over purchase of tickets. This contention has no force in view of the evidence of P. W. 5 who has stated that there was exchange of hot words and the accused had extended threats to the victim. How a person will react in such matters will depend on the facts of each case. It may differ from person to person. The accused persons reacted sharply and they went armed with chhuras and belts and surrounded the victims and gave injuries resulting in the death of Jivan. They had taken the matter very seriously. Coming to the place of occurrence and that too seven days after the altercation and being armed with chhuras and belts shows that the accused had made up their mind for commiting the offence. Moreover in view of the direct evidence, if accepted, motive looses its importance. 12. It was next contended by the learned counsel for the appellants that no injury report of Raj Kumar has been filed in this case, and. Moreover in view of the direct evidence, if accepted, motive looses its importance. 12. It was next contended by the learned counsel for the appellants that no injury report of Raj Kumar has been filed in this case, and. therefore, it cannot be affirmatively held that he had received injuries. But there is evidence of Raj Kumar himself that he was injured by Manoj. The outdoor slip (Ext. 1) was sent to the police office and this fact has been admitted by the investigating officer (P. W. 6) and on receipt of which he reached the hospital at 10.45 a. m., and he found both Jivan and Raj Kumar in the surgical ward in an injured condition. He also prepared their injury reports, P. W. 5 has also stated that the injury report was prepared in his presence and he also signed the same. Simply because it has not been filed in court for the reasons which will be mentioned later it cannot be held that Raj Kumar had not received injuries. 13. It will be relevant to mention that a protest petition was filed against the conduct of the investigating officer (P. W. 6). In that petition it has been clearly stated that the investigating officer was not performing his duty properly and on the other and he was trying to help the accused persons. He also denied that certain statements were not made befpre him by P. Ws 2, 4 and this fact will be discussed later. These denials clearly show that he was to help the defence and the informant was compelled to file the protest petition, The doctor who had examined P. W. 5 has also not been examined. In such sit nation the evidence of P. W. 5 has to be accepted that he was actually examined by the doctor and this fact is further corroborated by the investigating officer (P, W. 6) who had received the outdoor slip. P. Ws. 2 and 3 have clearly stated that they also saw the informant in an injured condition. 14. Learned counsel for the appellants then next contended that the evidence is not at all reliable and P. Ws. P. Ws. 2 and 3 have clearly stated that they also saw the informant in an injured condition. 14. Learned counsel for the appellants then next contended that the evidence is not at all reliable and P. Ws. 2, 3, 4 and 5 have also not fully supported the prosecution case and some important statements had not been made before the investigating officer as stated above, P. W. 2 has stated that he had gone to Raj Kumars house to attend Puja along with Jivan. Raj Kumar and he had taken Prasad. On hearing the alarm of Bachao Bachao he reached there and found the victim Jivan unconscious and he came to know from Raj Kumar that Sheo Shankar had given chhura blow to Jivan and that he was given chhura blow by Ashutosh Kumar. The evidance of PW 2 has been assailed by the learned counsel for the appellants that PW 6 (I. O.) had stated in paragraph 20 that PW 2 had not stated before him under section 161 of the Code of Criminal Procedure that he had gone to the house of Raj Kumar to attend Puja and take Prasad. He had also not stated before him that Jivan was given chhura blow by Sheo Shankar and Raj Kumar was given chhura blow by Ashutosh Kumar. As mentioned above against the investigating officer there was a protest petition (Ext. 7), and so the investigating done by him does not inspire confidence. There is no reason to disbelieve the evidence of PW 2 who had been named as a witness in the first information report and had gone to the hospital. The evidence of PW 2 Ramji Prasad is reliable and must be accepted. 15. PW 3 Deepak Kumar is the brother of the informant. He has deposed that Puja was held in his house and the victims after Puja took Prasad and then went away. He heard alarm and went to the spot and he saw that Jivan and Raj Kumar had been surrounded by five/six persons and the accused persons were inflicting injuries on tne deceased and the informant. Jivan was taken to the hospital but he died in the way. His evidence has been assailed on the ground that he had not stated before the police under Section 161 of the Code of Criminal Procedure that he had seen the accused. Jivan was taken to the hospital but he died in the way. His evidence has been assailed on the ground that he had not stated before the police under Section 161 of the Code of Criminal Procedure that he had seen the accused. For that reference was made by the learned counsel for the appellants to the evidence of PW 6 (I. O.) in paragraph 22. But this witness stated in the court that he had made the statement to the police that he had seen the accused. Upon a peru al of the evidence of the witness it appears that he is a truthful witness and reliance can be placed on his testimony. He is the brother of the informant and on hearing the alarm he reached there and had seen the occurrence. 16. The evidence of PW. 4 Laxman Prasad had been tendered but he has been cross-examined. He is mentioned as a witness in the first information report. It is said that he had stated before the police that when he reached the spot he heard that somebody had given chhura blow to Jivan. This witness denies to have made such statement. His statemant has been tendered and he has been cross examined and so his evidence also supports the case of the prosecution. 17. The informant (PW 5) who is also injured has fully supported the facts mentioned in the fardbeyan and a close scruting of his evidence will show that he is a truthful witness. There is no reason to disbelieve his testimony. Thus the contention of the learned caunsel for the appellants that the evidence of the eye witnesses cannot be said to be reliable is fit to be rejected. 18. The statement recorded by the police officer in course of the investigation can never be treated as substantantive evidence. It is only to corroborate or contradict the witnesses. Thus the contention of the learned caunsel for the appellants that the evidence of the eye witnesses cannot be said to be reliable is fit to be rejected. 18. The statement recorded by the police officer in course of the investigation can never be treated as substantantive evidence. It is only to corroborate or contradict the witnesses. In case of Podda Narayana and others V/s. State of Andhra Pradesh, AIR 1975 SC 1252 : 1975 Cr LJ 1065 in para 10 it has observed as follows : "A statement recorded by the police during the investigation is not at all admissible and the proper procedure is to confront to witnesses with contradictions when they are examined and ask the investigating officer regarding these contradictions." Similar view has also been expressed in case of Naamdeo Daulatama Dhaguda and others V/s. State of Maharashtra, AIR 1977 SC 381 wherein it has been observed as follows : "The story narrated by him in his evidence before the court differs substantially from that set out in his statement before the police and having regard to the large number of contradictions in his evidence not on matters of details but on vital points we do not think it would be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of the accused Nos. 1 and 3." The contradictions pointed out are not at all vital and the witnesses have given a true version of occurrence. More over a protest petition was filed against the conduct of the investigating officer. In these circumstances it cannot be said that on account of some omission the evidence of those witnesses in court should be completely discarded when on the other hand they have fully supported the prosecution case. 19. It was next contended by the learned counsel for the appellants that there is no reliable witness that Puja was really performed on the morning of the date of occurrance and this fact is also not supported by the investigating officer and he also never visited the house where that Puja was actually held. But there is consislant evidence of PWs 2, 3, 4 and 5 that Puja was actually performed in which a number of persons had participated. It was not at all necessary to examine all those persons. 20. But there is consislant evidence of PWs 2, 3, 4 and 5 that Puja was actually performed in which a number of persons had participated. It was not at all necessary to examine all those persons. 20. It was next submitted that the place of occurrence has not been fixed as no blood had been found at the spot. This contentipn also has no force. The non-finding of blood at the spot alone cannot disprove the case of the prosecution about the place of occurrence. The nature of the injuries and the other circumstances are also to be considered besides the recovery of blood for fixing the place of occurrence. The occurrence had taken place on the road, where people were passing. There is no evidence that blood had actually fallen on the ground. Moreover if blood had fallen on the spost it must have been removed as it was a road from where public at large had been passing. 21. From the evidence it is absolutely clear that it was Sheo Shanker who had given dagger blow to Jivan which proved fatal. This has been amply supported by the eye witnesses, whose evidence has been discussed in detail earlier, and it is further corroborated by the medical evidence. In my opinion Sheo Shanker has been rightly convicted under Section 302 of the Penal Code. 22. Learned counsel lastly contended that there was only one single blow and so the case at best will be one under Section 304 part II of the Penal Code and not under Section 302 of the Penel Code. He relied on the following cases decided by the Supreme Court Kulwant Rai V/s. State of Punjab, AIR 1982 SC 126 in which on account of giving one single blow the appellant was convicted under Section 304 part II of the Penal Code. In that case there was altercation followed by assault and at the spur of the moment the accused gave one single dagger blow due to which the victim died. Reliance has also been placed in the case of Shital V/s. State of Punjab, AIR 1983 SC 654 wherein there was one single blow but there was no premediation and the age of the accused was 19 years and so the accused was convicted under Section 304 part II of the Penal Code. Reliance has also been placed in the case of Shital V/s. State of Punjab, AIR 1983 SC 654 wherein there was one single blow but there was no premediation and the age of the accused was 19 years and so the accused was convicted under Section 304 part II of the Penal Code. In case of Jawahar Lal V/s. State of Punjab, AIR 1983 SC 844 in the back ground of previous quarrel a solitary knife blow was given to the deceased in the chest and that there was no attempt to give another blow and it was held by the Supreme Court that the accused could be convicted under Section 304 Part II of the Penal Code and not under Section 302 of the Penal Code. 23. These cases are clearly distinguishable from the facts of the instant case. No doubt a single blow was given but there was altercation seven days prior to the occurrence and that there was no immediate provocation by the victim and further the accused persons had come armed with daggers and belts to the place where they met the victim and others who were returning after attending Puja and that the injury inflicted was sufficient in ordinary course of nature to cause death. 24. Learned counsel for the State relied upon Vasanta V/s. State of Maharashtra, AIR 1983 SC 361 : 1983 Cr LJ 693 where on account of some verbal altercation the deceased had caught the hands of the accused whereupon the accused assaulted the deceased with a knife. It was held that there was nothing to show that the altercation was of scch a serious nature which could cause, sudden provocation and secondly the nature of the injury was stab in the chest which resulted in the fracture of the 6th rib and injured the heart and lung which, according to the doctor, was given with great force. It was held that the case fell under Section 302 of the Penal Code and not under Section 304 Part II of the Penal Code. Thus considering the oral and medical evidence it is clear that the accused had come with the intention of causing death, so the accused cannot be convicted under Section 304 Part II of the Penal Code. Thus considering the oral and medical evidence it is clear that the accused had come with the intention of causing death, so the accused cannot be convicted under Section 304 Part II of the Penal Code. Thus the appellant Sheo Shanker Prasad has committed an offence under Section 302 of the Penal Code and he has rightly been convicted. The appeal No. 323/77 has no merit and is accordingly dismissed. 25. The informant in the revision application has challenged the acquital of Uma Prasad, Munni Lal and Ashutosh Kumar who were charged under Section 302/34 of the Penal Code. According to the learned counsel appearing on behalf of the informant Ashutosh Kumar @ Chhote Lal should also have been convicted under Section 302 read with Section 34 of the Penal Code. 26. In order to consider the contentions of the learned counsel for the informant it is necessary to re-examine the evidence of three eye-witnesses. PW 2 Ramji Prasad the brother of deceased Jivan has stated that on hearing the alarm he went towards south and saw four to five persons running away and that he saw that Raj Kumar told him that accused persons had given chhura injuries to the victims. The evidence of these witnesses shows that after the occurrence all the accused ran away inflicting the injuries to bo!h the victims. That shows that their common intention. As regards PW 3 Deepak, he is brother of the victim. He says that on hearing the alarm when he reached the spot he found that two victims were surrounded by five to six persons and Uma and Munni were catching hold of Jivan who was trying to wriggle and two other accused persons had surrounded Raj Kumar thereafter Sheo Shankar gave fatal blow to Jivan and Chhote Lal inflicted grievous injury to Raj Kumar. His evidence also shows that all the accused persons had taken part in the offence. Similarly PW 5 Raj Kumar says that he was surrounded by all the accused persons and injuries were given to him and to Jivan. From all these it is clear that all of them had come prepared to assault the deceased and all of them shared the common intention and in furtherance thereof inflicted injuries to the victims. Similarly PW 5 Raj Kumar says that he was surrounded by all the accused persons and injuries were given to him and to Jivan. From all these it is clear that all of them had come prepared to assault the deceased and all of them shared the common intention and in furtherance thereof inflicted injuries to the victims. They were waiting for the deceased and when he arrived all of them surrounded him and Sheo Shankar inflicted dagger injuries and they facilitated in the commission of the crime. 27. Common intention will have to be determined from the facts of each case as held by the Supreme Court in Rishideo Pandey V/s. State of U. P., AIR 1955 SC 331 and also in Anda and others V/s. State of Rajasthan, AIR 1966 SC 148 . Similar observations have been made in B. N. Shrikaniiah Siddiah and anothers V/s. State of Maysore, AIR 1958 SC 672 . It is difficult to get the direct proof of common intention but it can be inferred from various circumstances and part played by the accused persons. It has been said by the Supreme Court in State of U. P. V/s. Ali Khan, AIR 1973 SC 863 (Para 35) : "It is true that for invoking Section 34 of the Penal Code prior conduct or a prearranged plan has to be established. But as it is difficult to prove the intention of an individual it has to be inferred from his acts or conduct and other relevant circumstances." In Maksudan and others V/s. State of U. P., 1983 (1) SCC 218 it has been in Para 6 said by the Supreme Court. "Common intention is a question of fact it is subjective but it should be inferred from the facts and circumstances. In this case the appellants were related. All of them were armed with deadly weapons. They were together. There were an order by someone kill-kill when all of them simultaneously attacked the deceased and they were later arrested from the same place. The High Court therefore held that the appellants caused injuries with the common intention and was justified in convicting the appellants under Section 302/34 of the Penal Code. They were together. There were an order by someone kill-kill when all of them simultaneously attacked the deceased and they were later arrested from the same place. The High Court therefore held that the appellants caused injuries with the common intention and was justified in convicting the appellants under Section 302/34 of the Penal Code. We therefore affirm the conviction and sentence inflicted by the High Court." Further in the case of B. B. Kali and others V/s. Maharashtra State, 1983 (1) SCC 31 the Supreme Court has held : "Even if there was any interval of time between the various stages of the attacks in which several accused joined and participated it was a clear case when all of them must be held to have been animated by a common object. There was a point of time in which all of them took part in the assault simultaneously and they took away the dead body together. Even if they had come to the scene of occurrence separately and without any prior arrangement, on the facts of the case, clearly they had become members of an unlawful assembly when they joined together to assault the deceased. The common object could and did develop to instanti." 28. Thus from the various pronouncement of the Supreme Court it is clear that common intention is a question of fact which is to be determined on the facts of each case when accused come together or separately on the order of someone all of them simultaneously attacked the deceased or even if there was any interval of time between the various stages of the attack in which several accused joined and participated. Therefore it becomes clear that they were members of such assembly when they joined together and assaulted the deceased, they have been animated by a common intention which could and did develop in the present case. I find from the evidence of PWs 2, 3 and 5 and also from the nature of the injuries inflicted to the victims that the accused had come prepared with chhuras and belts and had surrounded the victims and two of them bad given injuries and two had caught hold the deceased who was triying to wriggle out. I find from the evidence of PWs 2, 3 and 5 and also from the nature of the injuries inflicted to the victims that the accused had come prepared with chhuras and belts and had surrounded the victims and two of them bad given injuries and two had caught hold the deceased who was triying to wriggle out. All these show that they had come with the common intention and two of the accused gave injuries in the chest and stomach and thereafter all the accused went away together. All these show that the accused had common intention of causing the murder and not causing injuries and they had shared the common intention. The learned counsel for the revisionist urged that in these circumstances the order of acquittal of all the three accused under Section 302/? 4 of the Penal Code be set aside and the case be sent back for fresh trial. 29. I have given my most anxious consideration to the submissions raised by the learned counsel for the informant and I am constrained to hold that the trial court has misread the evidence of the eye-witnesses which clearly indicates that the two acquitted accused persons, namely, Munni Lal and Uma Prasad and also Ashutosh Kumar Manoj @ Chhote Lal shared the common intention to kill the deceased. I am also conscious of the fact that the effect of allowing this revision will be retrial which will no doubt cause harasment to the accused persons and the witnesses will have to be examined afresh. But the reasons for acquiting the three above named accused persons of the charge under Section 302/34 of the Indian Penal Code is wholly perverse and this in my opinion has caused miscarriage of justice. I am emboldened in taking this steps in view of the decision of the Supreme Court in the case of Ayodhya Dubey and others V/s. Ram Sumer Singh, AIR 1981 SC 1415 where the order of aquittal was set aside in revision and the case was sent back for retrial. It will be useful to quote the observation of the Supreme Court : "In the instant case, we find that this is a case of non-a plication of mind on the part of the court blow, the probative value of the first information report (Ext. Ka-10) has been entirely ignored. It will be useful to quote the observation of the Supreme Court : "In the instant case, we find that this is a case of non-a plication of mind on the part of the court blow, the probative value of the first information report (Ext. Ka-10) has been entirely ignored. The individual testimoney of the eye-witnesses has not been discussed and their reliable testimony has been ignored, from which it follows that material evidence has not been considered and it has been over looked. The entire judgment is full of inconsistencies. The court below has misquoted the evidence at some places, for example, while dealing with the copy of statement (Ext. Ka-18). The judgment consists of faulty reasoning and lack of Judicial approach Accepted canons for appreciating evidence have been thrown to the wind. The conclusion on the question of motive are against the weight of overwhelming evidence in the case In our opinion the view expressed by the court below has resulted in grave miscarriage of justice so far as the opposite party Uma Shankar, Girja Shankar, Gauri Shankar. Ayodhya Dube and Vindhyachal are concerned. The above, in our opinion, are exceptional circuinstances which compel us to order retrial of the aforesaid opposite party." These observation fully apply to the facts and circumstances of the instant case and the learned judge has misread and misappreciated the evidence which has resulted in the wrong acquittal of three persons. 30 The revision application is accordingly allowed and the order of acauittal of Munni Lal, Uma Prasad and Ashutosh Kumar Manoj @ Chhote Lal under Section 302/34 of the Penal Code is set aside. Now Ashutosh Kumar Manoi @ Chhote Lal will have to face the trial along with Munni Lal and Uma Prasad, and, therefore the appeal filed by him, i.e. (Criminal Appeal No. 274/77) has to be allowed and the case is remanded for a fresh trial. The trial court will issue warrant of arrest for the appearance of Munni Lal, Ashutosh Kumar Manoj @ Chhote Lal and Uma Prasad and they will be retried in accordance with law expeditiously. 31. In the result, Criminal Appeal No. 323/77 is dismissed, and the conviction and sentence passed against Sheo Shankar Prasad is hereby affirmed, Criminal Appeal No. 274/77 and Criminal Revision No. 1261/77 are allowed and the case is sent back for retrial in the light of the observations made above. 31. In the result, Criminal Appeal No. 323/77 is dismissed, and the conviction and sentence passed against Sheo Shankar Prasad is hereby affirmed, Criminal Appeal No. 274/77 and Criminal Revision No. 1261/77 are allowed and the case is sent back for retrial in the light of the observations made above. 32. I agree.