JUDGMENT 1. 1. Appellant Balkhandi, Subhan and Mukarab were tried for the offences under sections 302, 302/149. 307, 307/149, 324/149, 325 rid 323 read with s. 149 WC along with Sahab Khan, Mst. Gafoondi, Mst. Saeedan and Mst. Mohamdi. The appellants were also tried for the offence under s. 148 IPC by the Additional Sessions Judge, Alwar, who by his Judgment dated 26-2-1974 acquitted Sahab Khan, Mst. Gafoondi, Mst. Saeedan and Mst. Mohamdi of all the offences for which they were charged with. He, however, convicted the appellants Balkhandi and Mukarab of the offence under s. 302 IPC simpliciter. Both the accused persons were also convicted under s. 326 IPC. Accused Subhan was convicted for the offence under s. 324 IPC. Accused persons Balkandi and Mukarab were sentenced to imprisonment for life under s. 302 IPC and under s. 326 IPC each of them were sentenced to undergo 4 years' rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo rigorous imprisonment for 3 months. The sentences were ordered to run concurrently. The appellant Subhan was sentenced to undergo one year's rigorous imprisonment under s. 324 TPC. 2. We may state few relevant facts of the prosecution case. There was a dispute between the parties over the agricultural land bearing Khasra No. 39 situated in village Palkheda. The land was sold by Mst. Mohtabi widown of Fateh Khan to Dallu. The accused-persons Balkhandi, Mukarab arid Subhan are the brothers of Fateh Khan, They claimed share in the agriculture land. Revenue litigation was pending between Dallu and the accused-persons. A revenue suit was instituted by Dallu against Balkhandi for permanent injunction, in which, temporary injunction was issued in his favour but the same was vacated by the Assistant Collector on 24-9-1965 vide Ex. D 20. An appeal was preferred by the plaintiff Dallu before the Revenue Appellate Authority, which was allowed on 3.9-1971 vide Ex. P 22. Balkhandi had filed a revision petition against the order of the Revenue Appellate Authority, in which, operation of the order dated 3-9-1971 was stayed vide Ex. D 21. D 20. An appeal was preferred by the plaintiff Dallu before the Revenue Appellate Authority, which was allowed on 3.9-1971 vide Ex. P 22. Balkhandi had filed a revision petition against the order of the Revenue Appellate Authority, in which, operation of the order dated 3-9-1971 was stayed vide Ex. D 21. The occurrence in this case took place on 9-11-1972 at 7.30 A.M. it is alleged that the appellants armed with Pharsis and the other co-accused persons armed with other weapons came to the house of Nannoo, which adjoins their house and opened an attack on Nannoo and other members of his family. In the incident, Nannoo, Badle, Ramjilal, Somoti, Mst. Batool and Mst. Phooli were injured. Ramjilal went to the police station, Govindgarh and lodged the report at 9 A.M. The police station was at a distance of 2 miles from the place of occurrence. A case under s. 326/34 IPC was registered by the S.H.O. Jagdish Pd. (PW 16). All the injured persons were brought to the Govindgarh Hospital, where injuries were medically examined by Dr. Surendra. The victim Badle succumbed to the injuries at the Hospital. Autopsy on the dead body was conducted and the case was converted into s. 302 IPC. 3. Usual investigation was done and, thereafter, the accused-persons were sent for trial. They were challaned in the court of Munisf Magistrate. Laxmangarh and the case was ultimately committed to the court of Sessions Judge, Alwar who transferred the case to the court of Addl. Sessions Judge, Alwar. The accused-persons were charged for the various offences. They however, pleaded not guilty to the charges and claimed to be tried. 4. The prosecution in all examined 17 witnesses. The accused persons denied the case in its entirety and no evidence was led in defence. The learned Addl. Sessions Judge acquitted the accused Sahab Khan on the ground that his name did not appear in the FIR. The lady accused persons viz., Mst. Gafoondi, Mst. Saeedan and Mst. Mohamdi were acquitted in view of the improvements made by the witnesses implicating them, as their names did not appear in the version given by the witnesses to the police under s 164 Cr. PC. As the number of accused persons fell below five, the charge under sections 148 and 149 IPC also failed. The learned Addl. Saeedan and Mst. Mohamdi were acquitted in view of the improvements made by the witnesses implicating them, as their names did not appear in the version given by the witnesses to the police under s 164 Cr. PC. As the number of accused persons fell below five, the charge under sections 148 and 149 IPC also failed. The learned Addl. Sessions Judge relying on the testimony of five injured witnesses and four non-injured eye-witnesses found the accused Balkhandi and Mukarab guilty of the offence under s. 302 IPC. So far as the appellant Subhan is concerned, the learned Addl. Sessions Judge observed that the injury attributed to Subhan by the eye witnesses is on the neck, whereas, the medical evidence does not corroborate it. According to the learned Addl. Sessions Judge, there was no neck injury and so, accused Subhan was held guilty only of the offence under s. 324 IPC. The two accused persons Balkhandi and Mukarab were also found guilty of the offence under s. 326 IPC in view of the fact that at the hands of both these accused persons, the injured Nannoo sustained grevious injury. Nannoo's right hand was completely cut and amputated by pharsi blow caused by Balkhandi and there was a grevious injury received by Nannoo at the hands of Mukarab by pharsi blow at his ankle resulting into fracture and so, both of them were convicted of the offence under s. 326 IPC. Dissatisfied with their conviction, this appeal has been filed by the aforesaid three accused persons. 5. We have heard Shri M.L. Garg, learned counsel for the appellants and Shri L.S. Ifdawat, learned Publice Prosecutor for the State. 6. At the outset, it may be stated that the learned counsel for the appellants has not contested the conviction of the appellants for the offences under sections 326 and 324 IPC. The whole thrust of the arguments of the learned counsel for the appellants is that the learned Addl. Sessions Judge seriously erred in convicting accused Balkhandi and Mukarab of the offence under s. 302 IPC. We shall be considering the contentions advanced on behalf of the appellants by Shri M.L. Garg in connection with conviction of accused Balkhandi and Mukarab of the offence under S. 302 IPC. Before that, we may take note of the injuries, which have been sustained by the victims in the incident. We shall be considering the contentions advanced on behalf of the appellants by Shri M.L. Garg in connection with conviction of accused Balkhandi and Mukarab of the offence under S. 302 IPC. Before that, we may take note of the injuries, which have been sustained by the victims in the incident. A perusal of the injuries would show as to how and in what manner the occurrence had taken place. Dr. Surendra had examined the injuries of the injured persons. He found the following injuries on the person of Nannoo : "(1) Complete amputation of tight hand at the level of wrist. (2) Incised wound 5'' x 1" x 1/4" at the antero-medial surface of right ankle alongwith fracture of underlying bones. (3) Lacerated wound 1" x 1/2" x 1/4" at the anterior surface of left leg 6" below the knee alongwith fracture of underlying tibia bone. (4) Incised wound 5" x 1/2" x 1/2" at the right side of back lateral of to scapula. (5) Abrasion 2" x 1/2 " at the right side of back 2" below injury No. 4. (6) Lacerated wound 1/2 " x 1/4" x ⅙ " at the right lobula of nose." Injuries No. I and 2 were grevious caused by sharp object and injury No. 3 was also grevious caused by blunt object. Rest of the injuries on his person were simple. 7. Injured Badle aged 25 years had the following injuries : "(1) Incised wound 5" x 1/4" x 1/4" at the - occipito temporal region of the scalp alongwith the fracture of the underlying bone. (2) Incised wound 5" x 1" x 1/4" at the left perieto frontal region of the scalp alongwith doubtful depressed fracture of the underlying bone. (2) Incised wound 11/2" x 1/2" x 1/2" at the left parietal region 1" away from injury No. 2. (4) Linear abrasion 6" long at the back extending from back bone to left scapula. (5) Incised wound 2" x 1/2" x ⅓" at the lateral surface of right little finger". Injury No. I was grevious caused by sharp object. While injury No. 2 was doubtfully grevious caused by sharp object. Injuries No. 3 and 5 caused by sharp object were simple. Injury No. 4 was simple caused by blunt object. 8. (5) Incised wound 2" x 1/2" x ⅓" at the lateral surface of right little finger". Injury No. I was grevious caused by sharp object. While injury No. 2 was doubtfully grevious caused by sharp object. Injuries No. 3 and 5 caused by sharp object were simple. Injury No. 4 was simple caused by blunt object. 8. The examination of Somoti revealed the following injuries on her persons : "(1) Incised wound 31/2" x 1/2" ⅓" at the mid scalp region. (2) Abrasion and swelling 2" x 1" at the superior surface of right shoulder. (3) Abrasion l" x 1" at the over part of back at its middle. (4) Contusion 2" x 1" at the dorsal surface of left forearm 2" above wrists. (5) Abrasion and swelling 1" x 1" at the base of left middle finger dorsally." All the injuries were simple on her person.Mst. Batool had the following injuries : "(1) Incised wound 1" x 1/4" x ⅙" in between index finger and thumb of left hand. (2) Lacerated wound 21/2" x 1/2" x ⅓" at the occipital region of scalp." and Mst. Phooli had the following injuries "(1) Swelling 2" x 1" at the mid dorsum of left hand. (2) Lacerated wound 1/2" x ⅓" x 1/4" at the right frontal region of scalp." Injuries on their person were simple. The informant Ramjilal aged 18 years had the following injuries : "(1) Lacerated wound 1 cm x 1 cm. at the distal phalenx of left little finger with following away of nail. (2) Abrasion 2" x 1/4" at the tip of left shoulder." 9. A perusal of the injuries on the person of injured Nanoo reveal that he had three grevious injuries in all, two by sharp weapon and one by blunt weapon. 10. Dr. P.L. Agrawal conducted the post mortem examination on the dead body of Badle on 11-11-1972 at 9 A.M. Badle died in the hospital on 10-11-1972 at 3 P.M. He found the following internal injuries on his person : "1. Stitched wound 12 c.m. length on left Pronto perital of region scalp. Brain matter was coming out of the wound. 2. Stitched wound 12 cm. in length on occipital legions, more on left side, and brain matter was coming out of the wound. 3. Stitched wound 3 cm. in length 2 cm. prosterior to injury No. 1. 4. Abrasion 4 cm. Brain matter was coming out of the wound. 2. Stitched wound 12 cm. in length on occipital legions, more on left side, and brain matter was coming out of the wound. 3. Stitched wound 3 cm. in length 2 cm. prosterior to injury No. 1. 4. Abrasion 4 cm. x 1 cm. on left shoulder blade. 5. Incised wound 21/2 cm. x 1/2 cm. x muscle deep on right little finger polmer surface. 6. Abrasion 10 cm. x linear on the back left side just below scapulle. and on opening the dead body, he found the following internal injuries : 1. Sub-scalp thick blood clot over whole of skull. A. Fracture skull 12 cm. x linear with bone cut 6 cm x linear under internal injury No.1 on left perital bone,and brain matter was coming out of it. B. Fracture skull 12 cm. x 2 cm. and brain matter was coming out of it, on occipittal bone under internal injury No. 2. 2. Sub-maninge of blood-clot with laceration of maninges. 3. Brain was lacerated and was coming out of injuriee as mentioned above. According to Dr. P.L. Agrawal, the cause of death was due to head injuries. fractures skull and laceration of brain ante-mortem in nature. He further opined that in the ordinary course of nature, all these injuries cumulatively were sufficient to cause to death. For each individual injuries on the head which is grevious, no separate opinion has been expressed by Dr. P.L. Agrawal as to whether they were individually sufficient in the ordinary course of nature of cause death. However, at the time of conducting the post-mortem examination, he found that the brain matter, which was coming out at the time of examination was deposited on the wounds. He further stated that depositing of the brain matter was present in the wounds. As regards oozing out of the. brain matter, he stated that by the movement of the body of the patient as well as the changing of the position by the patient can cause the oozing out of the brain even after stitching the wounds. He categorically stated that if injury had reached to the brain matter,even if there is no oozing out or the brain matter at the time of stitching the wounds,still after stitching the wounds, the brain matter may come out of the wounds. He categorically stated that if injury had reached to the brain matter,even if there is no oozing out or the brain matter at the time of stitching the wounds,still after stitching the wounds, the brain matter may come out of the wounds. He has stated that fracture of occipital bone and of parietal bone can cause the death even in case meninges and brain are not lacerated. When there is no compression or no pressure over the brain, nor is there any laceration of brain of meninges then only fractures of parietal bone or of occipital bone may not cause the death. It is not correct to say that in this case of Ex. P I I, the death was the result of purely the laceration of brain, unconcerned with other injuries. According to Dr. P.L. Agrawal, in the case of Badle meninges were lacerated and brain matter was oozing out. When such is the position of injuries over the head, according to him, the death was the result of laceration of brain. 11. Mr. M.L. Garg, learned counsel for the appellants submitted that there are three injuries on the head of Badle, out of which, injury No. 3 is a simple injury. Whereas, other two injuries are grevious injuries. The authors of these injuries individually are not proved by the evidence on record. The witnesses have simply stated that Balkhandi and Mukarab inflicted injuries on the head of the deceased and accused Subhan had inflicted the injury on the neck of the deceased. The occipital injury, which is injury no. 1 in the report of Dr. Surendra and injury no. 2 in the report of Dr. P.L. Agrawal, should be taken to be the injury caused by Subhan as the witnesses have specifically stated that an injury was caused by Subhan on the neck of Badle. If this injury is excluded from consideration as Subhan has not been found guilty of the offence under s. 302 IPC on the basis that it does not get support from the medical evidence. then there remain only two injuries on the person of Badle on his head. Who is the author of the each of the remaining two injuries on the head is not proved by the prosecution, so both Balkhandi and Mukarab cannot be held guilty of the offence under s. 302 111C simpliciter. Mr. M.L. Garg submitted that Dr. then there remain only two injuries on the person of Badle on his head. Who is the author of the each of the remaining two injuries on the head is not proved by the prosecution, so both Balkhandi and Mukarab cannot be held guilty of the offence under s. 302 111C simpliciter. Mr. M.L. Garg submitted that Dr. P.L. Agrawal and Dr. Surendra have not stated that each individual grevious injury on the head of Badle was sufficient in the ordinary course of nature to cause the death. On that basis as well, none of the accused persons can be held guilty of the offence under s. 302 IPC. According to Dr. P.L. Agrawal, the cumulative effect of the injuries on the persons of Badle was sufficient to cause death in the ordinary course of nature.No questions have been put to Dr.P.L Agrawal with regard to individual nature of the grevious injuries on the person of Badle. We shall be considering above submissions advanced by Mr. M.L. Garg. Mr. M L.Garg however, tried to faintly argue that the accused-persons acted in exercise of right of private defence & that the prosecution has failed to prove the motive of immediate cause for the incident. Mr. M L. Garg also tried to make a submission that the occurrence did not take place at the house of Nannoo. It may be stated that happening of the incident cannot be denied. A suggestion was clearly made to Nannoo regarding happening of the incident as thought that the accused-persons completely denied the incident in their statements. It was suggested to Nannoo in cross-examination that Balkhondi, Mukarab and Subhan were bringing Gwar from the field in dispute and at that time Badle inflicted injury on the persons of Muk:rab and that led to this quarrel. It appears to be a bare suggestion. No case of exercise of right of private defence, in our opinion, is made out. The incident, in our opinion,occurred at the Poll of Nannoo. All the three injured persons viz , Nannoo, Badle and Somoti fell down there. The right hand of Nannoo in an amputated condition was found lying there. The site plan shows that there were blood stains on the entrance of both the sides of the Poll. The incident, in our opinion,occurred at the Poll of Nannoo. All the three injured persons viz , Nannoo, Badle and Somoti fell down there. The right hand of Nannoo in an amputated condition was found lying there. The site plan shows that there were blood stains on the entrance of both the sides of the Poll. In our opinion, only an unfounded attempt has been made for making out a case of exercise of right of private defence of person. 12. As regards the motive, our attention was invited to the statement of PW 3 Mst. Somoti. She has stated that the incident took place as the crop was cut and brought by Balkhandi and others in a cart, and belabouring took place on bringing the Gwar. Mr. Garg submitted that there was no occasion for the accused-persons to have indulged in belabouring (Marpit). We would like to refer to the statement of Nannoo. Nannoo (PW 2) in his statement has stated that they had cut Gwar and Gwar was brought to their house. He denied the suggestion that Gwar crop was cut by the accused persons and they (accused) took away the Gwar. After making so much statement, he changed and stated that it is wrong that Gwar was cut and brought by them (complainant party). However, he stated that Gwar was sown by complainant party and was cut and removed by accused party. He emphatically stated that members of the complainant party were beaten at their house. The eye witnesses account given by the injured and non-injured witnesses with regard to the place of occurrence gets corroboration from the site plan and it appears that the immediate cause of incident was that the Gwar crop must have been cut and brought by the complainant party. It appears that the stay order passed by the Board of Revenue was in force. Nannoo and other members of his family with a view to avoid the consequences of disobedience of the court's order appeared to shift the responsibility of cutting and removing the crop to the members of the accused party. Cutting and removal of the crop enraged the accused-party which, in our opinion, culminated into the present incident. Thui, the necessary motive was there with the accused party as would appear from the statement of Nannoo. Cutting and removal of the crop enraged the accused-party which, in our opinion, culminated into the present incident. Thui, the necessary motive was there with the accused party as would appear from the statement of Nannoo. The accused party were so enraged that they came armed with Pharsis and opened an attack on the members of the complainant party injuring as many as six and opening a may murderous assault on Badle by inflicting forceful Pharsi blows repeatedly over his head. We have dealt with these submissions as they were advanced before us although faintly. 13. We now proceed to consider the most important aspect of the case as to whether the appellants Balkhandi and Mukarab can be held guilty of the offence under s. 302 IPC. In order to hold any accused guilty of the offence simpliciter, the individual act which has resulted in commission of that offence has to be proved by the prosecution. The prosecution in the present case, in our opinion, has failed to prove as to which head injury was caused by which of the two accused persons. The learned Addl. Sessions Judge has not categorically found that two grevious injuries were caused by Balkhandi and Mukarab. The occipital injury cannot be attributed to the accused Makarab. It appears that the learned Addl. Sessions Judge did not properly comprehend the occular evidence and the medical evidence, so far as the author of the occipital injury is concerned. The statements of the witnesses relating to neck injury can be related to occipital injury as found by the medical evidence. The witnesses appeared to. have not given the statement with meticulous care and an explanation should have been sought by the court and even by the Public Prosecutor with respect to the occipital injury. Be that as it may, Subhan stands acquitted in respect of the alleged injury caused by him. It is unfortunate and regrettable that the State has not preferred any appeal against the acquittal of Subhan. What we are now required to examine is the case of Balkandi and Mukarb? When the prosecution has failed to prove the individual injury by Balkhandi and Mukarab, and one of the injury on the head by sharp weapon is simple, then the two accused persons Balkhandi and Mukarab, in our opinion, cannot be held guilty of the offence under section 302 IPC simpliciter. When the prosecution has failed to prove the individual injury by Balkhandi and Mukarab, and one of the injury on the head by sharp weapon is simple, then the two accused persons Balkhandi and Mukarab, in our opinion, cannot be held guilty of the offence under section 302 IPC simpliciter. It is note worthy that the three accused persons armed with Pharsis availed as many as six victims and when availed one of the victims on the most vulnerable part of the body i e. head with weapons like Pharsis, the learned Addl. Sessions Judge ought to have considered the applicability of section 34 IPC in the present case. It appears that this aspect of the case was not argued before him and from the judgment, it appears that when there did not remain any unlawful assembly, the learned Addl. Sessions Judge proceeded to consider the offence on the part of each individual accused, without taking into consideration the constructive provision of s. 34 IPC. It is true that so far as the accused Subhan is concerned, his case is out of question, for consideration of applicability of s. 34 IPC. But so far as the remaining two accused persons are concerned, their case can certainly be considered for the applicability of s. 34 IPC as both of them have been convicted of the offence under s. 302 IPC. As a matter of law, it cannot be contended that in the absence of charge under s. 34 IPC the conviction of these two accused-persons cannot be recorded with the aid of s. 34 IPC. It may be stated that both these accused-persons were charged alongwith others for the constructive liability of murder though that was under s. 149 IPC but the circumstances of the case may warrant that instead of applying s. 149 IPC., s. 34 IPC may be made applicable. It is a question of fact as to whether s. 34 IPC can be made applicable to the facts and circumstances of the present case. If it is made applicable, it cannot be said that application of s. 34 IPC would in any way prejudice the two accused persons viz., Balkhandi and Mukarab. 14. For the applicability of s. 34 IPC., what is required is prior meeting of minds, pre-arranged plan and prior concert. The attack should be a concerted attack with an intention to cause the murder. 14. For the applicability of s. 34 IPC., what is required is prior meeting of minds, pre-arranged plan and prior concert. The attack should be a concerted attack with an intention to cause the murder. The participants should share a common intention. We are alive that same and similar intention is different from the common intention. The common intention, of course, may arise during the course of occurrence at the spot. From the conduct of the accused-persons at the spot, such a common intention can be inferred. As stated above at least, three accused-persons viz, Balkhandi, Mukarab and Subhan came in a group armed with deadly weapons like Pharsis at the house of Nannoo in the morning when the members of the family of Nannoo were in the Polly and they opened an attack first on Nannoo and thereafter on Badle and then on other members of the family. The assailants caused grevious injuries on the person of Nannoo with sharp weapons, i.e. Pharasis and then, they opened an attack on Badle. The assailants availed the most vulnerable part of the body causing fractures of the nature as described in injuries No. I and 2 by Dr. Surendra and Dr. P.L. Agrawal damaging the brain matter and meninges as there was laceration. It was nothing short of a murder by the assailants. Even if it is taken that initially, the assailants had a common intention to cause grevious injuries on the person of Nannoo, still the moment they started availing the head of Badle, in our considered opinion, they developed a common intention at the spot to cause murder of Badle. As many as three blows were inflicted. The assailants in a group resorted to violence over the head of Badle. Inference regarding the common intention is irresistible. The inference of common intention has to be taken into consideration in the light of the whole occurrence in its totally and viewed in that light as well, it can safely be said that the assailants had a common intention to cause the murder of Badle, one of the victims, as he was made target of attack by causing Pharsi blows on his head. Thus, the time and place of occurrence, the motive of occurrence, the weapons which were used in the occurrence, the vital part of the body of Badle which was availed in the occurrence and the nature of injuries caused on the head of Badle, coming of the appellants and further going of the appellants in the group form at the scene of occurrence all these factors, in our opinion, clearly go to establish that the common intention on the part of the assailants was to cause the murder of Badle. 15. Mr. M.L.Garg, learned counsel for the appellants referred to a decision of this Court in Sheo Narain & Another v. State of Rajasthan, 1979 Raj. Criminal Cases 363 . In the case, Sheo Narain and Kanhaiyalal were found guilty of the offence under section 302 IPC by the Sessions Judge. There were three injured persons and one of the injured persons Om Prakash died. The question of applicability of s. 34 IPC was considered and from the evidence, it was found that Kanhaiyalal inflicted one blow on the head of Om Prakash and thereafter, he withdrew himself from the assault. His injury was described as a simple injury. So, s. 34 IPC was not made applicable. It was observed that the very fact that he withdrew from the assault after causing one blow to the deceased, is sufficient to hold that he did not intend to commit the murder of deceased and did not share the common intention with the other accused. As regards the other accused Sheo Narain, there was no evidence that his individual injury was sufficient in the ordinary course of nature to cause the death. The medical evidence was to the effect that cumulative effect of all the injuries was sufficient to cause the death in the ordinary course of nature but he failed to state that each of the head injuries, considered individually, was sufficient to cause the death. In the absence of this evidence his conviction under s. 302 IPC was not maintained and he was convicted under s. 304 Part I, IPC. On facts, this case is distinguishable. 16. In Chilambkur Nagireddy v. State of A.P., 1977 SCC (Cr.) 562 , there were three external injuries and corresponding internal injuries. In the absence of this evidence his conviction under s. 302 IPC was not maintained and he was convicted under s. 304 Part I, IPC. On facts, this case is distinguishable. 16. In Chilambkur Nagireddy v. State of A.P., 1977 SCC (Cr.) 562 , there were three external injuries and corresponding internal injuries. The Doctor opined as to the cumulative effect of all the injuries, he did not say separately the nature and effect of each injury caused by the individual accused Nos. 1, 9 and 6. But in regard to external injury No. 3, said to have been caused by accused No. 6, their Lordships said that in the absence of the specific and definite opinion of the Doctor in that regard, we did not consider it safe to form our own opinion as it was difficult to say that the external or the internal injuries caused by accused 6 with a spear were such that one could say with certainly that they were also fatal by themselves. The Doctor had opined with regard to external injuries No I and 2 that their internal effect with each of them was sufficient in the ordinary course of nature to cause death. So, conviction of accused No. I and 9 was held justified for the offence under s. 302 IPC simpliciter. It may be mentioned that applicability of s. 34 IPC did not come up for consideration in this case. So, this authority is not of much help to the appellants. 17. In Baul v. State of U.P., AIR 1968 SC 728 , cited by Mr. M.L Garg, there were two accused convicted under section 302 read with section 34 IPC and one of the accused was acquitted by the High Court in appeal on the ground of benefit of doubt. The exact nature of injuries caused by each accused was not proved. In these circumstances, it was held that the other accused cannot be convicted under s 302 simpliciter. The other accused can be convicted under s. 325 IPC and not under s. 302 IPC. It was observed in this case that where common intention is not proved the prosecution must establish the exact nature of injuries caused by each accused and more so when one of the accused has got the benefit of doubt. 18. The other accused can be convicted under s. 325 IPC and not under s. 302 IPC. It was observed in this case that where common intention is not proved the prosecution must establish the exact nature of injuries caused by each accused and more so when one of the accused has got the benefit of doubt. 18. In Sohanlal v. State of U.P., 1971 SCC (Cr.) 206 , there were three accused persons. Two were acquitted by the High Court under s. 302 read with s 34 IPC. The conviction of the appellant was converted into one under s. 302 simpliciter. On evidence, it was held that the evidence does not show that the accused had inflicted the lathi blow on the head of the deceased, therefore, conviction under s 302 simpliciter was not justified. It is significant that there remained only one accused in that case. But so far as the present case is concerned, there are two accused persons who have been found guilty of the offence under s. 302 IPC and even the third one whose participation is proved in the occurrence is convicted of the offence under s. 324 IPC. So, there is a plurality of accused persons in the present case for attracting s 34 IPC. 19. In Ramlal v. Delhi Administration, AIR 1972 SC 2462 , four accused persons were tried. After trial, one was acquitted and three were convicted for the offence under s. 302 read with s. 34 IPC. In appeal to the High Court, the appellant Ramlal alone was convicted for the offence under s. 302 IPC and other two were convicted under s. 325 read with s. 34 IPC. From the facts, it appears that the case seems to have proceeded on the assumption that one blow was given on the head and that was given by appellant Ramlal. The High Court assumed that one lathi blow was given on the head of the deceased which proved fatal. This assumption was incorrect. In that case, it was observed that no attempt was made to identify the internal injury with either or both the external injuries found on the head. On these facts, it was observed as under : "It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. On these facts, it was observed as under : "It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly disclosed that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the vital blow or he may have given the blow which did not prove fatal. In these circumstances, the appellant's conviction under s. 302 IPC was plainty incorrect. He and his companions had the common intention to cause grevious hurt and hence he can be convicted under s. 325 r/w s. 34." It is not necessary to multiply the cases which have been cited by the learned counsel for the appellants as each case would depend upon its own facts and the inferences should he drawn on the proved facts and circumstances of that case and it would be a question of fact depending on the facts and circumstances of each case. 20. We may profitably refer to some of the cases which have been cited by the learned Public Prosecutor for the State. 21. In Harshedsingh v. State of Gujarat, AIR 1977 SC 710 , out of four accused persons who were tried by the Sessions Court Baroda, there was only a single survivor as appellant before the Supreme Court. The accused persons were charged of the offence under s. 302/34 IPC. Accused No. 3 and 4 secured acquittal before the Sessions Court and accused No. 2 won his appeal before the High Court. A contention was advanced that since three out of the four accused persons have secured acquittal, the invocation of s. 34 IPC is impermissible. It was observed as under : "The flew in this submission is obvious. The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attacks. The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attacks. The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants. Therefore, it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision." Another contention was also advanced in that case that there was no specific evidence of the appellant having inflicted the fatal stab on the chest he was entitled to share the acquittal with the rest even if there was abundant proof of several persons including him having set upon the deceased and killed him using lethal weapons. Krishna [yer, J. while dealing with this contention observed as under : "In the present case, more than one knife was used, more than one man was in the attacking party and more than one incised wound was inflicted. While we can make short work of the submission by holding, as we do, that there is clear testimony that the chest stab which was fatal in the ordinary course was the handiwork of the appellant, we make the legal position clear that when a murderous assault by many hands with many knives has ended fatally, it is legally impressible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstance that one man's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. S. 34 IPC fixing constructing liability conclusively silences such a refined plea of extrication. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. S. 34 IPC fixing constructing liability conclusively silences such a refined plea of extrication. (See: Amir Hussain v. State of U.P., AIR 1975 SC 2211 ; Maina Singh v. State of Rajasthan, AIR 1976 SC 1084 ) Lord Sumner's classic legal shorthand for constructive criminal liability expressed in the Miltonic verse They also serve who only stand and wait' a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality. Some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer justice niceties can be pressed into service to nullity or jattison the plain punitive purpose of the Penal Code." In Lalai Dindoo & Anr. v. State of U.P., 1974 Cr. LR (SC) 649 , a contention was advanced that Ram Ajore was a silent spectator, took no part in the assault and cannot, therefore, be held guilty of having entertained a common intention with Lalal to commit the murder of Paras Nath. Their Lordships of the Supreme Court observed as follows : "On this aspect, the time at which Paras Nath was murdered, the place of murder, the weapons carried by the appellants, their relationship and finally their concerted conduct in the wake of murder are all relevant. The offence took place at about 10.30 p.m. and unless the appellants had sought their victim, he was not likely to have crossed their path. Paras Nath was murdered in his own habitation and there can be no doubt that the appellants sought him purposefully. Ram Ajore did not participate in the assault on Paras Nath but he played his part truly by his brother by carrying a spear so as to overcome any outside inference with the attainment of their object. Lastly, immediately after Paras Nath was murdered, the appellants ran away together. Ram Ajore did not participate in the assault on Paras Nath but he played his part truly by his brother by carrying a spear so as to overcome any outside inference with the attainment of their object. Lastly, immediately after Paras Nath was murdered, the appellants ran away together. These facts have a sufficient bearing on the existence of common intention in the commissions of Paras Nath's murder." Reference may also be made to Bhoor Singh v. State of Punjab, AIR 1974 SC 1256 , where in, it was held that even if charges are under sections 148 and 392 read with s. 149 IPC., the conviction can be recorded under s. 302/34 IPC when the accused were made aware of this circumstance showing concert and participation in joint criminal action. We hare considered this aspect of the case. The accused persons were aware of the circumstance of applicability of s. 34 IPC and there does not appear any prejudice to have been caused to the accused persons. 22. Mr. M.L. Garg, learned counsel for the appellants submitted that the injured witnesses have tried to improve their statements by making statements to the effect that Balkhandi and Mokarab inflicted Pharsi blows on the head of Badle and Subhan inflicted Pharsi blow on his neck. In their police version, they simply stated that three accused persons gave severe beating. This statement would not in any way prejudice the case of the appellants. Oral versions as well as trial versions would I gave rise to the applicability of s. 34 IPC. It is as a result of the assault by the three assailants that injuried Badle died. We are, therefore, clearly and firmly of the opinion that the appellants Balkhandi and Mukarab are guilty of the offence under s. 302/34 IPC. Their conviction for the offence under s. 302 IPC simipliciter, however, is not established, and they deserve to be acquitted from the simpliciter charge, we hold them guilty with the aid of constructive provision of s. 34 IPC. 23. We accordingly, set aside the conviction of the appellants Balkhandi and Mukarab of the offence under s. 302 IPC. We however, hold them guilty of the offence under s..302/i4 IPC and sentence each of them to imprisonment for life. We maintain their conviction and sentence under s. 326 IPC. The conviction and sentence of the appellant Subhan are maintained. 23. We accordingly, set aside the conviction of the appellants Balkhandi and Mukarab of the offence under s. 302 IPC. We however, hold them guilty of the offence under s..302/i4 IPC and sentence each of them to imprisonment for life. We maintain their conviction and sentence under s. 326 IPC. The conviction and sentence of the appellant Subhan are maintained. The accused persons shall immediately surrender and the Additional Sessions Judge, Akar is also directed to effect their arrest to serve out the reainging sentence.Order accordingly. *******