Judgment S. H. S. Abidi, N. S. Rao, JJ. 1. Appellant Dilip Singh has been convicted under Sec.302, I. P. C. and has been sentenced to rigorous imprisonment for life against which the appellant has filed this appeal. 2. The case of the prosecution was that on the 28th of October, 1977 at about 7 a. m. Sone Lal Yadav, the deceased in this case was getting ready his paddy crops harvested by his men. At that time Uttar Singh (absconder) and his wife Smt. Rugro Devi, Dilip Singh (appellant); Laxmi alias Lakhimani Devi, rajobala Devi (both acquitted) armed with gun, tabal, tangi and latsa reached there. Uttar Singh fired from his gun causing injury to Sone Lal Yadav on account of which he fell down. Then the appellant Dilip Singh cut his left leg with tabal. The accused also assaulted Smt. Ghasni Devi, wife of the deceased and Smt. Budhni Devi, mother-in-law of the deceased with deadly weapons. The accused removed the paddy crops. Thereafter F. I. R. was registered on the basis of the statement of one Sakal Mahto (since deceased)the same day at about 10 a. m. After investigation charge-sheet was submitted. 3. The accused in defence denied the prosecution case and alleged their false implication in the case. D W.1 Chara Munda has been examined against the prosecution who has proved rent receipts (Ext. A series) and a deed (Ext. B), 4. The prosecution in support of its case produced eight witnesses. P. W.1 is Suresh Pandey who is an eye-witness. P. W.2 is Choghwa Mahto has been tendered. P. W.3 is Atwa Gowala, who is not an eye-witness. He had said that he had got a batai land. P. W.4 is Sonamani Devi, who is the wife of sakal Mahto, the informant. P. W.5 is Budhni Devi who is the mother-in-law of the deceased Sone Lal Yadav. She is also an eye-witness P. W.6 is R. Dr. R. S. Prasad who has conducted the postmortem examination over the body of the deceased on 29-10-1977 at about 10.30 a. m. and has submitted his report (Ext.1)P. W.7 is Ghasni Devi, wife of the deceased, she is also an eye-witness. P. W.8 is Somari wife of Mangal Matho. The trial court after considering the entire materials on the record has convicted and sentenced the appellant as said above. 5. P. W.8 is Somari wife of Mangal Matho. The trial court after considering the entire materials on the record has convicted and sentenced the appellant as said above. 5. The learned Counsel for the appellant has challenged the order of conviction and sentence of the appellant on the grounds that the order of conviction is bad in law inasmuch as the firing has been done by Uttar Singh killing the deceased and thereafter the appellant is said to have cut the leg of the deceased which does not bring the appellant (Dilip Singh) within the clutches of Sec.302, i. P. C. and that the witnesses of the prosecution are not to be relied on. 6. In this case death of Sone Lal Yadav has been well established by the evidence of P. Ws.1, 4, 5, 7 and 8 besides the postmortem report submitted by p. W.6 and the same having been supported in the court by prosecution witnesses, and that too has not been disputed by any of the accused. The informant in this case was Sakal Mahto for whom it has been said by P. W.1 that he is dead now. The injuries are said to have been caused to Smt. Budhni and Smt. Ghasni (P. Ws.5 and 7 respectively ). Medical report in respect of their injuries has not been filed that is why the court below has acquitted the two women accused namely Smt. Laxman alias Lakhmani Devi and Smt. Rajobala Devi. No Government appeal appears to have been filed against their acquittal. 7. As regards the case of the appellant, there is eye-witness account of p. Ws.1,4,5,7 and 8. Because the informant is dead so the evidence of these eye-witnesses will have to be considered and scrutinised carefully. P. W.1 suresh Pandey says that on 28-10-1977 at about 7 a. m. he was on his field and at that time the accused came in the field of Ghasni Devi (P. W.7 ). Uttar Singh was armed with a gun and this appellant had a tabal. Smt. Laxam Devi had also a tabal and Smt. Rajobala was armed with lathi. At that time Ghasni along with the deceased Sone Lal, Sonamani (P. W.4), Phoolmani and Somari (P. W.8), were harvesting paddy in their field. Uttar Singh was armed with a gun and this appellant had a tabal. Smt. Laxam Devi had also a tabal and Smt. Rajobala was armed with lathi. At that time Ghasni along with the deceased Sone Lal, Sonamani (P. W.4), Phoolmani and Somari (P. W.8), were harvesting paddy in their field. There was altercation between the accused and the victim upon which Uttar Singh fired from his gun causing injury to Sone Lal Yadav who immediately fell down. The appellant Dilip singh thereafter cut his left leg and completely severed it from the body. The victim was standing on a ridge but he was dragged to the paddy field. The appellant is also said to have assaulted Ghasni and Budhni with tabal. These women were also assaulted by the women accused. After that the accused ran away with paddy crops which was harvested by Sone Lal. This witness has also said that the informant is dead. He has also further said that the plot in dispute was recorded in the name of one Dhondhe Gwala. This witness is named in the F. I. R. and the defence has not been able to establish any enmity with him. So this witness appears to be quite independent. 8. Then comes the statement of Sonamani (P. W.4 ). She is wife of the informant Sukal Mahto. She has fully corroborated the prosecution version about the accused persons coming to the spot and assaulting the injured from the side of the prosecution. She has explained her presence on the spot as she was harvesting the paddy. She has also deposed that blood had fallen on the ground which was taken poossession of by the police and seizure memo thereof was prepared, P. W.5 is Budhni Devi, the mother-in-law of the deceased. She has said that she also received injury. She has corroborated the prosecution evidence fully. She has said that the appellant had fasla and Uttar had fired from five degs (steps) and that the appellant had cut the left leg of the deceased. She also said that she was inflicted 10 lathi blows and she become unconscious. She was taken to the hospital. She says that she was injured. Simply because the medical examination report in respect of her injury has not been filed will not belie her statement. 9. She also said that she was inflicted 10 lathi blows and she become unconscious. She was taken to the hospital. She says that she was injured. Simply because the medical examination report in respect of her injury has not been filed will not belie her statement. 9. P. W.7 (Ghasni Devi) another injured and wife of the deceased has said that she was cutting dhan of her field and the deceased was standing on the aal, the accused came and then altercation ensued as to why the dhan was being cut. Then firing was done by Uttar Singh and the appellant Dilip singh cut the leg of the deceased. She says that she asked the appellant as to why he was cutting the leg of a dead man. She says that sakal Mahto had come on the spot and he had lodged the first information report. She says that Sakal Mahto was her mama. She also says that the deceased was a railway employee and he had one more wife. She says that she was also injured but she has not been examined. P. W.8 is Somari wife of Mangal mahto. She is named in the F. I. R. and she says that she was also on the spot and harvesting the paddy crops. These witnesses have been subjected to severe cross-examination but they have withstood it and even if P. Ws 4, 5 and 7 are related, they cannot be said to be unreliable as after scrutiny there is nothing to show that their evidence does not inspire confidence. P. W.1 is an independent witness as found above, thus the entire evidence led by the prosecution is trustworthy and can be relied on. 10. The oral evidence of the witnesses is fully corroborated by the medical evidence of Dr. R. S. Prasad (P W.6) who has conducted the postmortem examination on 29-10-1977 at 10 30 a. m. and has submitted his report in which he has found the injuries of gun and the other injuries on the left leg being injury Nos.2 to 7. He has opined that except injury Nos.2 to 7 all the wounds were antemortem while the injury Nos.2 to 7 were postmortem and all the injuries were caused by gun as well sharp cutting weapons such as tabal. He has opined that except injury Nos.2 to 7 all the wounds were antemortem while the injury Nos.2 to 7 were postmortem and all the injuries were caused by gun as well sharp cutting weapons such as tabal. The death has been caused by the gue shot injury which was sufficient in the ordinary course of nature to cause death. The Doctor has categorically given out that injury Nos.2 to 7 have been caused after the beating of the heart has ceased, and that the gun shot injuries were caused earlier than the injuries of the sharp cutting weapons. 11. Thus from this evidence it is well established that the death has been caused by the gun shot injuries caused by Uttar Singh and after death the appellant had cut the left leg of the deceased causing injury Nos.2 to 7. 12. Learned counsel for the appllant has contended that according to the prosecution case the appellant has only cut the left leg of the deceased, so he is not liable to be convicted under Sec.302, I. P. C. and further there is no charge that he has caused death. As to this contention it appears that the trial court has framed the charges against the appellant as follows : "that you along with Uttar Singh Ganjhu (absconder) on or about the 28th October, 1977 at village Pancha, P. S. Bundu, District Ranchi committed murder by intentionally causing the death of Sonelal yadav and thereby committed an offence punishable under section 302 of the Indian Penal Code. . . . . . . . . . . " further there is a charge anainst the appellant along with the two acquitted ladies for assaulting two women for which the women accused have been acquitted, so the charge has been framed against the appellant. 13. In the case of Garib Singh V/s. State of Punjab, 1972 Cr LJ 1286, where the Supreme Court observed at page 1291, para 16 about the charge under section 34,1. 13. In the case of Garib Singh V/s. State of Punjab, 1972 Cr LJ 1286, where the Supreme Court observed at page 1291, para 16 about the charge under section 34,1. P. C. as follows : "it would have been possible to apply it even though no charge was framed for it if the evidence establishing it had been clear and free from doubt," a division Bench of Rajasthan High Court in the case of State V/s. Babulal ana bherumal, 1956 Cr LJ 550 : AIR 1956 Raj 67 , observed at page 558 (para 34): "but where by oversight or otherwise specific mention of Sec.34 is not made in the charge, that defect by itself would not be fatal, if otherwise the Court can come to the conclusion that the accused had notice that they would be liable under Sec.34 also, for after all Sec.34 is merely an explanatory provision in the Code, and does not create any specific offence itself. " Thus even if the charges would not have been framed, it would have been of any effect if the evidence would not have been clear or it would not have been free from doubt. 14 As regards Sec.34, I. P. C. it has been observed by the Supreme court in the case of Parichat V/s. State of Madhya Pradesh, AIR 1972 SC 535 : 1972 Cr LJ 322, that Sec.34, I. P. C. will not be attracted unless first it is established that the criminal act was done by several persons and secondly that there was a common intention and pre-arranged plan to commit an offence in furtherence of that common intention. The Supreme Court later considered in the case of Rishidev Singh V/s. State of U. P. , AIR 1955 SC 331 , and Anda V/s. State of Rajasthan, AIR 1966 SC 148 , that common intention is a question of fact which is to be determined on the facts of each case. But direct evidence of common intention is difficult to get and such intention is to be inferred from the circumstances including the acts of parties. In the case of State of U. P. V/s. Ifrikhar Ali Khan, AIR 1973 SC 863 , the Supreme Court also observed that it is true that for invoking Sec.34, I. P. C against an accused, prior concert or a pre-arranged plan has to be established. In the case of State of U. P. V/s. Ifrikhar Ali Khan, AIR 1973 SC 863 , the Supreme Court also observed that it is true that for invoking Sec.34, I. P. C against an accused, prior concert or a pre-arranged plan has to be established. But it is difficult to prove the intention of an individual and it has to be inferred from his acts and other relevant circumstances. In the case of Maksudan V/s. State of U. P. , AIR 1983 sc 126 , again the Supreme Court observed : "common intention is a question of fact. It is subjective, but it can be inferred from the facts and circumstances. In this case appellants were related. All of them were armed with deadly weapons. They were together. There was an order by some one to kill when all of them simultaneously attacked the deceased and they were later arrested from the same place. The High Court, therefore, rightly held that the appellants caused injuries with the common intention and was justified in convicting the appellants under Sections 302/34, i. P. C. " 15. Thus from all this it is clear that when the evidence is clear and free from doubt then this common intention which is a question of fact is to be determined on the basis of the facts. Direct evidence of common intention, is difficult to get and it is to be inferred from the circumstances and the acts of the parties and other relevant circumstances like their coming together armed with deadly weapons, participating in the offence and thereafer going back together and such other facts which are clear to establish their common intention and prior concert of pre-arranged plan. Even the common intention can develop at the spur of the moment, but there should be evidence of this sharing of this common intention. As said by the Supreme Court in the case of Jagrup Singh v. State of Haryana, AIR 1981 SC 1552 , followed ia Randhir Singh V/s. State of punjab, AIR 1982 SC 53 and Kulwant Rai V/s. State of Punjab, AIR 1982 SC 126 , the nature of intention must be gathered from the kind of weapons, parts of the bod) hit, the amount of force implied and the circumstances attended upon the death. 16. 16. In the instant case as we have seen earlier the victim was first shot at by Uttar Singh and then the appellant cut the leg of the deceased causing wound nos.2 to 7. Althogh P. W.7 had told the appellant that as to why he was cutting the leg of a dead person. This shows that the appellant was not satisfied with the firing done by Uttar Singh which has actually caused death. The appellant wanted to be doubly sure about the death and so he cut the leg and caused six injuries to a person who had fallen due to the gun shot injury in his chest which resulted into his death. It shows the intention of the appellant to cause death so even if the charge of Sections 302/34, I. P. C. is not there, yet he can be convicted under Sections 302/34, I. P. C, Sec.34, I. P. C. sa said by the Supreme Court in the case of Nanak Chand V/s. State of Punjab, air 1955 SC 274 , does not create any specific offence. It is merely explanatory and Sec.34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime have been done by him alone. Thus as Sec.34, I. P. C. is not an offence, it cannot be a basis of separate charge, and so omission of mentioning Sec.34, I. P. C. is not fatal. Further the non-mentioning of the same specifically is by oversight. 17. For the reasons stated above the appellant Dilip Singh is liable to be convicted under Sections 302/34, I. P. C. on the basis of the evidence of the prosecution and so he is convicted under Sections 302/34, I. P C. and sentenced to rigorous imprisonment for life as awarded by the trial court. 18. In the result this appeal is dismissed. The appellant Dilip Singh is on bail, his bail bond is cancelled and he is ordered to be taken into custody to serve out the sentence. Appeal dismissed.