J. N. HORE, J. ( 1 ) THE present appeal is directed against the judgment and order dated 20/3/1983 passed by a learned Additional Sessions Judge, 24-Parganas convicting appellants Barka Md. Sultan Sultan Ahmed Khan and Ram Deo Prasad under sections 302/34, Indian Penal Code and sentencing each of them to imprisonment for life for committing murder of Banarasi Das in furtherance of their common Intention. The other accused persons were, however, acquitted of the charge under sections 302/34 of the Indian Penal Code. ( 2 ) SHORN of details, the prosecution case is as under: Banarasi Das deceased was the General Secretary of the West Bengal Tannery Majdur Union. There was a dispute over Puja bonus between the tannery workers and the management and ultimately the dispute was settled amicably at the intervention of the Deputy Labor Commissioner, West Bengal. It was settled, inter alias, that those workers who would come within the purview of the Bonus Act, would get bonus at the rate of 8. 33 % and those who would not be governed by the said Act, would get fixed bonus at the rate of Rs. 30/- for the smallest firm and Rs. 90. 00 for a little bigger firm and Rs. 200. 00 for a reasonably big firms Mr. Ilias, President of the West Bengal Tannery Majdur Union asked Banarasi Das to convene a meeting of the workers on 7/10/1978 at 5. 30 p m in front of Dr. B R. Ambedkar School on Tiljala Road to communicate the result of the amicable settlement of the dispute over bonus to the workers. Banarasi Das deceased accordingly called a meeting on 7/10/1978 at that place at 5. 30 p. m. On 7-10-78 a few minutes before the scheduled time for holding the meeting, Banarasi Das went in front of Dr. B. R. Ambedkar Vidyalaya at Tiljala Road with 6/7 other members of the Union. The gate of the school was found locked and he asked one of his followers to bring the key. When that man left for bringing the key at about 5. 30 p. m. the two appellants along with others arrived there, being armed with knives. Appellant Barks asked him as to what he had been doing there. Immediately thereafter without waiting for the reply Barka started stabbing Banarasi with a knife. When that man left for bringing the key at about 5. 30 p. m. the two appellants along with others arrived there, being armed with knives. Appellant Barks asked him as to what he had been doing there. Immediately thereafter without waiting for the reply Barka started stabbing Banarasi with a knife. He stabbed on the abdomen of Banarasi Das and appellant Ram Deo Prasad stabbed him on his back. The other accused persons surrounded Banarasi Das with knives in hands. Informant Ram Sebak Das (P. W. 4) was present at the place of occurrence and on seeing such a horrible scene he ran to a safer distance when some persons threatened to kill him also. He looked back and saw 20 to 25 other persons standing on the slope of the bridge near the spot who were shouting for killing them all. Out of feat Ram Sebak Das ran away and went to M/s. Crescent Tannery at 82, Tiljala Road and informed one Ram Bilas Ram (P. W. 7) and others who were holding negotiation with the management of the tannery. He apprised Ram Bilas Ram and Ram Baran Probhakar (P. W. 30) of the incident. He then returned to the place of occurrence with those persons and removed Banarasi Das to Chitra Ranjan Hospital by a taxi along with Ram Bilas Ram (P. W. 7) and Rameswer Ram (P. W. 6 ). The deceased was admitted into hospital and removed to the Operation Theatre. There offer, Ram Sebak Das (P. W. 4) went to C. P. I. District Committee Office at 20 B, Bow Bazar Street and informed the party secretary and others about the occurrence. He lodged the First Information Report with the Beniapur Police Station on the basis of which a case was registered against the appellants and others and police took up investigation. Banarasi Das succumbed to his injuries at 12. 30 a. m. on 8. 10 78. After completion of investigation charge-sheet was submitted against the appellants and others which, in usual course, ended in committal of the case to the court of sessions. ( 3 ) IN defence, the appellants pleaded innocence alleging that they were falsely implicated out of grudge. ( 4 ) THAT Banarasi Das died of stab injuries sustained in front of the gate of Dr. ( 3 ) IN defence, the appellants pleaded innocence alleging that they were falsely implicated out of grudge. ( 4 ) THAT Banarasi Das died of stab injuries sustained in front of the gate of Dr. B. R. Ambedkar Vidyalaya on Tiljala Road is not disputed before us and is also proved by overwhelming evidence. It appears from the unchallenged evidence of Shri Shanti Bhusan Roy (P. W. 19), Assistant Labor Commissioner and Md. Ilias (P. W. 35), President of the West Bengal Tannery Majdur Union, that in the first week of October, 1978 a joint conference was held in the chamber of P. W. 19 over the question of Puja bonus to the work-men of the tanneries and that Md. Ilias and Banarasi Das deceased were present in the conference on behalf of the workers and that an amicable settlement of the dispute was reached between the workers and the management. It transpires from the evidence of P. W. 7 that be asked Banarasi Das, who was the General Secretary of the Union at the relevant time to convene a meeting of all the workers of the Union near the Railway Bridge No. 4 in front of Dr. B. R. Ambedkar Vidyalaya on Tiljala Road. The evidence of P. Ws. 31 and 34 shows that Banarasi Das was present at the gate of Dr. B. R. Ambedkar Vidyalaya at or about 5. 30 p. m. in connection with the holding of the said meeting when be was stabbed by assailants and he fell down in front of the gate. Even P. W. 4 who turned hostile has stated that he found Banarasi Das lying with bleeding injuries; in front of the gate of the said School. Banarasi Das was removed by P. Ws. 4, 7 and others to Chitra Ranjan Hospital by a taxi where he died at 12. 30 a. m. on 8/10/1978. Dr. Debendra Kumar Debnath (P. W. 16) who conducted autopsy on the dead body of the deceased found five incised penetrating injuries in the abdomen and chest of the deceased. According to the doctor the said injuries were ante-mortem and homicidal in nature and were sufficient in the ordinary course of nature to cause death. 30 a. m. on 8/10/1978. Dr. Debendra Kumar Debnath (P. W. 16) who conducted autopsy on the dead body of the deceased found five incised penetrating injuries in the abdomen and chest of the deceased. According to the doctor the said injuries were ante-mortem and homicidal in nature and were sufficient in the ordinary course of nature to cause death. The prosecution has therefore, proved beyond any shadow of doubt that Banarasi Das died a homicidal death, as a result of stab injuries received in front of the gate of Dr. B. R. Ambedkar Vidyalaya on Tiljala Road on 7/10/1978 at or about 5. 30 p. m. ( 5 ) THE next point for our consideration and the crucial one is whether the appellants are responsible for the death of Banarasi Das. In order to bring home the charge to the appellants the prosecution has adduced two types of evidence-direct evidence of eye-witness and the circumstantial evidence in the nature of the dying declaration of the deceased. ( 6 ) LET us first advert to the ocular evidence. Ram Udgar Ram (P. W. 31) and Kamlu Ram (P. W. 34) are the two alleged eye-witnesses to the occurrence. P. W. 31 was residing at the material time at 134, Tiljala Road and was working in a tannery. He was a member of the West Bengal Tannery Majdur Union. Banarasi Das deceased was the secretary of the said Union. The evidence of the witness is that Banarasi Das deceased had talks with the management of Chandra Tannery about Puja bonus to be given to the workers and a meeting of the workers was called in the premises of Dr. B. R. Ambedkar Vidyalaya on 7/10/1978 at 5. 30 p. m. to apprise them of the outcome of the negotiation with the management. The witness reached Dr. B. R. Ambedkar Vidyalaya at about 5. 10 p. m. and found Banarasi Das deceased and some other workers present outside the gate of the school on Tiljala Road. As the school gate was locked. Banarasi Das sent Rameswar Ram (P. W. 6) to bring the key. Within 5 minutes Ramsebak Das (P. W. 4) came to the spot. They were waiting for the key when the two appellants along with three others came to that place and surrounded Banarasi Das. Appellant Barka asked Banarasi what he had been doing there. Banarasi Das sent Rameswar Ram (P. W. 6) to bring the key. Within 5 minutes Ramsebak Das (P. W. 4) came to the spot. They were waiting for the key when the two appellants along with three others came to that place and surrounded Banarasi Das. Appellant Barka asked Banarasi what he had been doing there. Without waiting for the reply appellant Barka whipped out a knife and stabbed on the abdomen of Banarasi causing bleeding injury. Thereafter appellant Ram Deo Prasad stabbed on the backs of Banarasi Das near his shoulder causing bleeding injury. The appellant threatened the witness and other members of the Union present there. The witness out of fear ran towards north to a safer place. He saw appellants and their companions running away. There was a motor cycle standing on the bridge towards the west from the place of occurrence and these two accused persons boarded that motor cycle and fled away. After the assailants had fled away, the witness and others returned to the place of occurrence. Banarasi Das asked them to take him to hospital Ram Bilas Ram (P. W. 7) arrived at the spot and he asked Musafir to bring a taxi quickly. Musafir brought a taxi within 10 minutes. Ram Bilas Ram (P. W. 7 ). Ram Sebak (P. W. 4 ). Ram Baran Prabhakar (P. W. 30) and the witness then removed the injured to Chitra Ranjan Hospital by a taxi. Kamlu Ram (P. W. 34) is an employee of Sunita Tannery on South Tangra Road. He substantially supports the evidence of P. W. 31. According to the witness, he went near Dr. B. R. Ambedkar Vidyalaya on 7-12-78 at or about 5. 10 p. m. to attend a meeting convened by Banarasi Das. He saw Banarasi Das deceased. Ram Udgar (P. W. 31 ). Ram Sebak (P. W. 4) and others near the gate of the School. Some time after the two appellants and three others arrived there and surrounded Banarasi Das. During altercation with Banarasi appellant Barka whipped out a knife and stabbed on the abdomen of Banarasi Das causing bleeding injury. Thereafter, Appellant Ram Deo stabbed on the back of Banarasi Das. The threatened the witness and others who fled away out of fear. The witness ran away to a distance of about 20/25 cubits. During altercation with Banarasi appellant Barka whipped out a knife and stabbed on the abdomen of Banarasi Das causing bleeding injury. Thereafter, Appellant Ram Deo stabbed on the back of Banarasi Das. The threatened the witness and others who fled away out of fear. The witness ran away to a distance of about 20/25 cubits. The two accused persons fled away, on a motor cycle, when all the accused persons fled away the witness and others came back to Banarasi Das who told them to take him to hospital. In the mean time, Ram Das (P. W. 7) came to the place of occurrence. A taxi was brought and the injured was taken to the hospital by Ram Sebak, Ram Bilas, Ram Udgar and Ram Baran by the said taxi. The witness went to Chitra Ranjan Hospital subsequently at 6. 45 or 7. 00 p. m. Let us see whether these two eye-witnesses are truthful and their evidence can safely be acted upon. Both the witnesses have with stood the cross-examination well and nothing transpires from their cross-examination which may impeach their credibility. There is no discrepancy in any material particular in their account of the occurrence. They were not chance witnesses. Both the witnesses are tannery workers and members of the Union and went to the place of occurrence to attend a meeting convened by Banarasi Das deceased who was the secretary of the West Bengal Tannery Majdur Union to apprise workers about terms of the settlement reached with the management on the question of Puja bonus. Both the witnesses appear to be independent and disinterested witnesses having no animus against the appellant. There is not even any suggestion that they have any enmity with the appellants. What transpires from the evidence is that there was dispute between Banarasi Das deceased and Lachman over some lands. P. W. 7 also lodged a complaint against appellant Barka alleging that Barka along with his associates raided the Union Office at 59 A. Tiljala Road on 30. 9. 78 at 600 p. m. and looted all immovable (sic) properties and relief materials and that they forcibly occupied the Union Office and looted it from outside. It was further alleged that Barka had been threatening the members of the Union almost every day with dire consequences. Copy of the complaint is Ext. 10. Ext. 17 is a petition under section 107 Cr. It was further alleged that Barka had been threatening the members of the Union almost every day with dire consequences. Copy of the complaint is Ext. 10. Ext. 17 is a petition under section 107 Cr. P. C filed by the deceased against Lachman Das, Ram Deo Prasad and Sankar Ram alleging that these persons with their hired goondas were threatening the petitioner with dire consequences. There was at best enmity between the deceased and P. W. 7 on one hand and Lachman Das and the appellants on the other and this having cannot be a motive for these two witnesses to implicate the appellants falsely. Mr. Dastore the learned Counsel for the appellants seeks to assail the evidence of these two eye-witnesses by contending that this evidence does not tally with the medical evidence. The witnesses speak of only two assaults whereas the medical evidence discloses that there were as many as five incised penetrating wounds in the chest and abdomen of the deceased. On a careful scrutiny of the evidence of P. Ws. 31 and 34 we are of the opinion that there is no real discrepancy between their testimony and the medical evidence. It is clear from the evidence of these two witnesses that they did not see all the assaults. After seeing the first two assaults they fled away to a safer distance out of fear being threatened by the assailants. They did not therefore, see the subsequent assaults. Mr. Dastore has contended that the evidence of these two eye-witnesses. Particularly of P. W. 34 cannot be relied on in view of non disclosure of the names of the assailants to the bustee people who assembled near the place of occurrence. P. W. 34 has stated in the cross-examination that after going to a safer place he raised alarm and some people came out from the bustee and looked from a distance and that he did not narrate the occurrence to any of those bustee dwellers. Though P. W. 310 accompanied the deceased to the hospital, P. W. 34 remained at the place of occurrence for some time before he left for the hospital. The evidence of P. W. 34 shows that those bustee people saw the last part of the occurrence including the assailants. They were also unknown to P. W. 34. He shortly left for the hospital. The evidence of P. W. 34 shows that those bustee people saw the last part of the occurrence including the assailants. They were also unknown to P. W. 34. He shortly left for the hospital. In these circumstances, non-disclosure of the names of the assailants to the unknown bus tee people does not appear to be of much consequence and on that ground only the evidence of P. W. 34 which is otherwise free from any blemish cannot be discarded altogether. Mr. Dastore has urged that it was not possible for P. Ws. 31 and 34 to reach the place of occurrence at 5. 10 p. m. after finishing their duties in the factory. We are not at all impressed by this contention. P. W. 31 has stated in cross-examination that on the date of occurrence, his duty in the factory was from 8. 00 a. m. to 5. 00 p. m. The factory is situated on Tiljala Road and Dr. B. R. Ambedkar Vidyalaya is only 2/3 minutes walk from the said factory. P. W. 34 has stated on the cross- examination that on the date of occurrence he worked in the factory in the shift from 8. 00 a. m. to 5. 00 p. m. and that it takes about 6/7 minutes to reach the B. R. Ambedkar Vidyalaya on foot from the factory. He left for the place of occurrence from the factory. It is quite clear therefore that both the witnesses could reach the place of occurrence at or about 5. 10 p. m. after finishing their duties in the factory. ( 7 ) UPON a careful scrutiny, we have no hesitation in accepting the testimony of these two witnesses as truthful and reliable. ( 8 ) MR. Dastore has contended that there was considerable delay in lodging the First Information Report and there was scope for concoction. The occurrence took place at or about 5. 30 p. m. and P. W. 4 Ram Sebak has lodged the First Information Report at 8. 30 p. m. that is about 3 hours after the occurrence. The evidence of P. W. 7. 24 and 28 discloses that there was no undue delay in lodging the information. After the incident P. W. 4 went to Crescent Tannery and informed P. W. 7 who was then the Assistant Secretary of the Union about the occurrence. P. Ws. 30 p. m. that is about 3 hours after the occurrence. The evidence of P. W. 7. 24 and 28 discloses that there was no undue delay in lodging the information. After the incident P. W. 4 went to Crescent Tannery and informed P. W. 7 who was then the Assistant Secretary of the Union about the occurrence. P. Ws. 4 and 7 then came to the place of occurrence and they removed the injured to the hospital by a taxi. The evidence of P. W. 14 Dr. Pannalal Paul who was on duty in the Emergency Department in the hospital shows that the deceased was brought to hospital at 6. 00 p. m. P. W. 4 then went to the Office of the Calcutta District Council of the C. P. I. at 208, B. B. Ganguly Street and informed P. W. 24 Shri Sushil Chakraborty who was the Secretary of the Calcutta District Council of the party about the occurrence at 7. 00 p. m. The West Bengal Tannery Majdur Union was controlled by C. P. I. It was, therefore, quite natural for P. W. 4 to inform the leaders of the party about the incident. P. W. 24 then went to the hospital with P. W. 4. The incident created excitement and tension among the workers and a large number of workers gathered near the hospital. P. W. 24 advised P. W. 4 and others to lodge information with the police and thereafter P. W. 4 submitted a written complaint at the Police Station at 8. 30 p. m. There was, therefore, no undue delay in lodging the First Information Report and there is nothing to suspect that the First Information Report was a piece of concoction. ( 9 ) LET us next consider the alleged dying declaration of the deceased. According to the prosecution the deceased made two dying declarations-the first before P. W. 7 and other while he was being removed to the hospital by a taxi and the second before P. W. 14 Dr. Pannalal Paul who was in-charge of the Emergency Department which was recorded by P. W. 14 in the case history of the patient. According to the prosecution the deceased made two dying declarations-the first before P. W. 7 and other while he was being removed to the hospital by a taxi and the second before P. W. 14 Dr. Pannalal Paul who was in-charge of the Emergency Department which was recorded by P. W. 14 in the case history of the patient. Regarding the first dying declaration the only evidence is that of P. W. 7 who has stated that on his query the deceased told him that along with Ram Sebak and two mazdurs, he was standing in front of Dr. B. R. Ambedkar Vidyalaya and at that time armed with knives Barka, Ram Deo, Ali Ahmed Moktar and Lachman came and stabbed him. According to P. W. 7, the above dying declaration was made by the deceased in the taxi while he was being removed to the hospital. But none of his other companions (P. Ws. 4 and 31) supports him. There is also no mention of the alleged dying declaration in the First Information Report. We are, therefore, unable to accept this part of the prosecution case. The second dying declaration is proved by P. Ws. 14 and 15 and the police report (Ext. 12 ). P. W. 14 Dr. Pannalal Paul who was on duty in the Emergency Department in the Chitra Ranjan Hospital examined the deceased. The history of the case as given by the patient is: Assault by Sultan Ahmed Khan (Barka), Ali Ahemed Moktar, Lachman Ram, Ram Deo Prasad, Deep Narayan Akhela with knife. Mr. Dastore has tried to assail the recorded dying declaration in Ext. 12 on the grounds that it was not recorded contemporaneously and that Ext. 12 is written in two hands and not reliable. The evidence of P. Ws. 14 and 15 shows that upto the column time of this report in Ext. 12, P. W. 15 Kalipada Jana who was then the General Duty Assistant in the Emergency Department, filled up the column in his own hand with the permission of P. W. 14. The writings below that are in the hand of P. W. 14. The dying declaration was recorded by P. W. 15. It appears from his evidence that the patient was talking to the doctor and P. W. 15 recorded what the patient said as per direction of the doctor. The writings below that are in the hand of P. W. 14. The dying declaration was recorded by P. W. 15. It appears from his evidence that the patient was talking to the doctor and P. W. 15 recorded what the patient said as per direction of the doctor. P. W. 14 also states that as there was rush of patients in the emergency he asked P. W. 15 to record the statement of the patient. P. W. 14 wrote in his own hand that the patient made the statement. The evidence clearly reveals that the statement of the deceased was recorded contemporaneously and there is absolutely no reason to disbelieve that the deceased himself made the statement regarding the cause of his injuries. The next question for our consideration is whether the above dying declaration can be accepted as true and reliable. As held by the Supreme Court in Lallubhai Debchand Shall and others v. The State of Gujarat, a dying declaration must be closely scrutinised as to its truthfulness like other important piece of evidence in the light of the surrounding facts and circumstances of the case bearing in mind on the one hand, that the statement is by a person who has not been examined in court on oath and, on the other band, that dying man is normally not likely to implicate innocent persons falsely. If the court is satisfied on a close scrutiny of the dying declaration that it is truthful it is open to the court to convict the accused on that basis without any independent corroboration. Keeping in view the above principle let us see whether the dying declaration of the deceased can be accepted as truthful and reliable. The evidence of P. W. 14 and Ext. 12 shows that the deceased was conscious. It appears that the deceased was in a condition to make a coherent statement. The dying declaration is a short statement which does not contain elaborate details. It is unlikely that a dying man would falsely implicate Innocent persons. Considering the facts and circumstance of the case we are satisfied that the dying declaration of the deceased is a conscious and voluntary statement made with understanding and is reliable. Moreover, the dying declaration receives corroboration from the medical evidence and the testimony of the eyewitnesses. We have, therefore, no hesitation in accepting the dying declaration as true and reliable. Considering the facts and circumstance of the case we are satisfied that the dying declaration of the deceased is a conscious and voluntary statement made with understanding and is reliable. Moreover, the dying declaration receives corroboration from the medical evidence and the testimony of the eyewitnesses. We have, therefore, no hesitation in accepting the dying declaration as true and reliable. ( 10 ) IN view of what has been stated before it must be held that the appellants were responsible for the death of the deceased. The next question for our consideration is what offence was committed by the appellants. Mr. Dastore has strenuously urged that the incident is a sequel to sudden altercation and that the appellants had no intention to kill and that the offence is at best culpable homicide not amounting to murder punishable U/s. 304 Part-li, Indian Penal Code and not murder punishable U/s. 302, Indian Penal Code. In support of his contention he has referred to the Supreme Courts decisions. In Kulbant Rai v. State of Punjab, Hariram v. State of Haryana. Jagtar Singh v. State of Punjab and Tholan v. State of Tamilnadu. All the 4 cases referred to above are clearly distinguishable on facts. The facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. None of the decisions cited above applies to the facts of the present case. In Kulwant Rais case (Supra), the offence was committed without permeation. There was an altercation and only one blow was given with a dagger and the blow landed in the epigastria area. It was something like hit and run. In these circumstances the Supreme Court held that the accused had no intention to commit the murder of the deceased and that part-3 of Section 300 could not be attracted because it could not be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. The accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall U/s. 304, Part- II of the Penal Code. The accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall U/s. 304, Part- II of the Penal Code. In Harirams case (Supra) in the heat of altercation between the deceased on the one hand and the accused on the other, the accused seized a jelli and thrust it into the chest of the deceased and it was preceded by his remark that the deceased must be beaten to make him behave and only one blow was struck by the deceased. The Supreme Court held that the facts made out an offence under the second part of the offence u/s. 304 of the Indian Penal Code. In Jagtar Singhs case (Supra) there was sudden quarrel on spur of the moment arising out of a trivial reason on chance meeting of parties and the accused caused a single blow by knife on chest causing his death, The Supreme court held that in these circumstances the intention to cause death or causing that particular injury could n08 be imputed to the accused. That he was likely to cause injury which was likely to cause death. could however, be inferred and the offence fell u/s: 304. Part-2 and not under Part-i or 3 of Section 300. In Tholans case (Supra) the accused started demonstrations using filthy language against certain organizer of Chit Fund who had no connection with the deceased, in front of the house of the deceased and the deceased came out of his house and asked the accused to go away. The accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance. The Supreme Court held that in such a situation though the accused could not be convicted u/s. 302, he would be guilty and convicted of an offence u/s. 304. Part II of the Indian Penal Code. In the instant case, there was no altercation or quarrel and the knife blows which were as many as 5 in number were not given on the spur of moment. Only six days before PW 7 lodged a complaint with D. C. , South. Calcutta Police alleging that appellant Barka with his followers looted all immovable (sic) properties and relief materials of the Union building and locked it from outside and that appeal and Barka had been threatening their men with dire consequences (Ext. Only six days before PW 7 lodged a complaint with D. C. , South. Calcutta Police alleging that appellant Barka with his followers looted all immovable (sic) properties and relief materials of the Union building and locked it from outside and that appeal and Barka had been threatening their men with dire consequences (Ext. 10 ). The deceased filed an application u/ss. 107/117 Cr. P. C. against appellant Ram Deo Prosad and others on 14. 9. 78 alleging that the OP. members along with their hired goondas had been constantly threatening the petitioner with dire consequences. In this background, both the appellants came together armed with knives in front of Dr. B. R. Ambedkar Vidyalaya where the deceased was making preparation for holding a meeting of the workers for discussion about the issue of Puja bonus. The evidence shows that Barka asked the deceased in a challenging tone what he had been doing there. Before the deceased gave any reply, both the appellants whipped out knives and stabbed him several times on vital parts and fled away on a motor cycle which had been kept ready. The assaults were not preceded by any sudden quarrel or altercation. The circumstances of this case unmistakably suggest that it was a deliberate and preplanned murder. The appellants inflicted the injuries with the intention to kill. At any rate, in the circumstances of the case, the injuries inflicted cannot be said to be accidental. The appellants intended those very injuries which were inflicted on the person of the deceased and these injuries are according to the medical evidence sufficient in the ordinary course of nature to cause deaths. At least Clause Thirdly of Section 300 of the Indian Penal Code would clearly apply. In our opinion the offence committed. is murder punishable under section 302, Indian Penal Code, and not culpable homicide not amounting to murder punishable under section 304, Part II. ( 11 ) MR. Dastore has strongly contended that Section 34 of the Indian Penal Code has no application in the present case inasmuch as there is no proof that the criminal act was done by the appellants in concert pursuant to a pre-arranged plan. ( 11 ) MR. Dastore has strongly contended that Section 34 of the Indian Penal Code has no application in the present case inasmuch as there is no proof that the criminal act was done by the appellants in concert pursuant to a pre-arranged plan. He has referred to the decision of the Privy Council in Makbul Shah v. Emperor and the Supreme Courts decision in Pandu Rang and others v. State of Hyderabad on the scope of Section 34 of the Indian Penal Code. In Makbul Shahs case (Supra) the Privy Council has held that common intention within the meaning of Section 34 implies prearranged plan. To convict the accused of an offence applying Section 34 it should be proved that the criminal act was done in concert pursuant to a prearranged plan. It is no doubt difficult, if not impossible, to procure direct evidence to prove intention of an individual; it has to be erred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse the same or similar intention with common intention; the partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial, and if overlooked, will result in miscarriage of justice. The inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. In the case of Pandu Rang and ethers (Supra) the Supreme Court has also similarly held that common intention within the meaning of Section 34 presupposes prior concert. It requires a pre-arranged plan. Before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of their all. Accordingly, there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the Section because there was no prior meeting of minds to form a prearranged plan. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the Section because there was no prior meeting of minds to form a prearranged plan. In a case like that, each would be individually liable for whatever injury be caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case. The partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial, and if overlooked, will result in miscarriage of justice. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example, when one man calls on by-standers to help him kill a given individual and they, either by their words or their acts indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There must be a pre-arranged plan however hastily formed or rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough to have the same intention independently of each other e. g. the intention to rescue another, and, if necessary to kill those who oppose. It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for exam ole, by a systematic plan of campaign unfolding itself during the course of the act which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstance of the case. But to say this is no more than to reproduce the ordinary rule about the circumstantial evidence, for there is no special rule of evidence for this class of case. But the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstance of the case. But to say this is no more than to reproduce the ordinary rule about the circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead, to the inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. ( 12 ) BEARING the above in mind let us see if there was prior concert and meeting of minds of the appellants. As seen before it is a premeditated murder. There was background of enmity as evidenced by Exts 10 and 17 and the evidence of P. W. 7. Both the appellant came together armed with knives and without to the slightest provocation started assaulting the deceased with knives causing serious injuries and they left together after commission of the crime. Both of them boarded a motor cycle kept ready near the place of occurrence and led away. These circumstances unmistakably point to a prearranged plan and prior concert. We have not the slightest hesitation in holding that the appellants inflicted the knife injuries in furtherance of the common intention of their all to kill the deceased. In our opinion the appellants were rightly convicted under sections 302/34 of the Indian Penal Code. ( 13 ) IN the result, we dismiss the appeal and affirm the order of conviction and sentence passed by the court below. Appeal dismissed.