JUDGMENT - S.M. DAUD, J.:---These appeals by the appellants, who shall hereinafter be referred to as accused Nos. 1 and 2 take exception to the conviction and sentence recorded against them for the commission of the offence of murder in furtherance of a common intention punishable under sections 302 r/w. 34 of the Indian Penal Code. 2. Accused are the sons of Ghudubhai Fulari a cultivator of village Badole Budruk, Taluka Akkalkot District Solapur. Deceased Dashrat Laxman Gaikwad was a cultivator owning land adjacent to that owned by Ghudubhai. Ghudubhai on the one hand and Dashrat on the other were involved in a long drawn out litigation over the boundary between the pieces of land owned by them. Ghudus suit against Dashrat and his sons registered as R.C.S. No. 66 of 1982 was dismissed by the learned civil Judge, Junior Division of Akkalkot and the appeal preferred by him to the District Court at Solapur registered as civil Appeal No. 299 of 1984, yielded no better result. This left behind a trail of bitterness harboured by not only Ghudubhai, but also his sons, the accused. 3. On 15-5-1988 which was a Sunday, Dashrat left his house for working in the field at about 10.00 A.M. He had left word that he would be returning early for lunch and as this had not happened, his wife P.W. 2 Kallawwa started for the field to find out for herself as to what had delayed her husband. Just at that time Jyoti Kamble was working in a nearby field owned by Shrimanth Gaikwad. Jyoti then being in the employ of the said Shrimanth. P.W. 4 Chidanand Swami who owns another field adjacent to that of Dashrat had finished grazing his cow and was going with the animal towards the Gaothan. Suddenly Jyoti and Chidanand heard an uproar and this led them to take steps for ascertaining as to what had caused the noise. They saw Dashrat being beaten by the accused-accused No. 1 using an axe for that purpose and accused No. 2 a stick. Dashrat fell to the ground and the horror-stricken Jyoti went running in the direction of the Gaothan. On the way he met Kallawwa and she was informed by that person of all what that person had seen. They saw Dashrat being beaten by the accused-accused No. 1 using an axe for that purpose and accused No. 2 a stick. Dashrat fell to the ground and the horror-stricken Jyoti went running in the direction of the Gaothan. On the way he met Kallawwa and she was informed by that person of all what that person had seen. Jyoti also spoke to one Uttam Gaikwad who in turn passed on the information to P.W. 5 Sidramappa, Police Patil of the village. Sidramappa went to the scene of offence and there saw the corpse of Dashrat lying in a pool of blood. The village Kotwal was directed to stay at the spot and Sidramappa went to Sangvi which is within walking distance of Badole Budruk. The visit to Sangvi was with a view to take advantage of the facitility of a telephone to ring up the Akkalkot North Police Station. Sidramappa managed to connect with the said Police Station but could not give the complete report because of a disconnection. He therefore started to walk down the distance to Akkalkot. On the way he came across a Police jeep with P.W. 9 P.S.I. Jadhav therein. Jadhav had been alerted by Head Constable Rajmane who had taken the phone call put in by Sidramppa. Sidramappa got into the jeep of Jadhav and both of them went to the scene of offence. Kallawwas statement was recorded by Jadhav and the said statement is at Exh. 18. Jadhav drew up a scene of offence panchanama which is at Exh. 24. The corpse of Dashrat was sent to the Medical Officer Akkalkot. Here P.W. 1 Dr. Gaikwad performed a postmortem examination and the notes of the said examination are at Exh. 14. Column 17 of the said notes points to the existence of four external injuries on the corpse, two being incised wounds. The third was a depressed fracture of the left maxilla bone and the nasal bone. The fourth injury was a bite mark. The first three injuries were ante-mortem and the 4th a post -mortem injury Death according to Dr. Gaikwad was due to shock following excessive bleeding. In his evidence Dr. Gaikwad opined that the first three injuries taken together and the first injury by itself, were sufficient in the ordinary course of nature to cause death. P.S.I. Jadhav arrested the accused persons. While in custody accused Nos. Gaikwad was due to shock following excessive bleeding. In his evidence Dr. Gaikwad opined that the first three injuries taken together and the first injury by itself, were sufficient in the ordinary course of nature to cause death. P.S.I. Jadhav arrested the accused persons. While in custody accused Nos. 1 and 2 gave some information which was reduced to writing vis-a vis Exhibits 28 and 29. In pursuance of these statements, an axe and a stick were recovered from the remnants of wheat crop stalks at the farm-house of the accused near a well. Clothes found on the persons of the accused were attached as these were blood-stained, attachment being effected under Exhibit 26. The attached articles were sent in due course to the Forensic Science Laboratory and the certificate received therefrom is at Exh. 36. The investigation over a charge-sheet was filed against the accused. After completion of the usual enquiry they were committed to stand trial in the Court of the Sessions Judge at Solapur. Accused pleaded not guilty, their defence being that Ghudubhai had accepted in good grace the adverse verdict of the civil Courts in the boundary dispute between him and Dashrat. Once the matter had been decided against Ghudubhai, that person as also the accused, forgot the whole affair. Dashrat had other enemies and they may have killed him. They had been implicated because of a baseless suspicion harboured by Kallawwa. In so doing Kallawwa had received assistance from Chidanand and the Police Patil whose relations with the accused were not what they should have been. 4. To establish the charge, the prosecution examined a number of witnesses including Kallawwa, Jyoti, Chidanand, Sidramappa, Dr. Gaikwad, panchas Gajanan and Parameshwar etc. After the evidence of these witnesses over, the learned Sessions Judge questioned the accused under section 313 of the Criminal Procedure Code, 1973. Accused denied each and every circumstance put to them and ended up with what has been summarised above, viz., that they were the victims of suspicion and spite. Their protestations of innocence carried no conviction with the learned Sessions Judge, who found both of them guilty under section 302 r/w. 34 of the I.P.C. The sentence imposed on them was imprisonment for life. 5. Learned Counsel representing the accused person, viz. Miss Gupta and Mr. Their protestations of innocence carried no conviction with the learned Sessions Judge, who found both of them guilty under section 302 r/w. 34 of the I.P.C. The sentence imposed on them was imprisonment for life. 5. Learned Counsel representing the accused person, viz. Miss Gupta and Mr. Mane, contend that Jyoti Kamble and Chidanand cannot be relied upon, that the other witnesses examined at the trial did not carry the position any further and that the conviction recorded by the learned Sessions Judge has to be set aside. On behalf of the second accused Mr. Mane advanced the additional contention that even if the prosecution evidence be accepted in its entirety, his client would be guilty of nothing more than an offence punishable under section 325 I.P.C. to the doings of the second accused. 6. The attack upon the depositions of Jyoti and Chidanand is based on the alleged impossibility of the two witnesses having seen the crime being committed. In relation to Jyoti it is said that he was far away from the spot and irrespective of whether or not he heard the hue and cry raised by the commotion of the crime, he certainly could not have seen accused actually engaged in the assault on the person of Dashrat. The scene of offence panchanama at Exh. 24 has been proved by panch Malhari-this witness having been examined as P.W. 6. It shows that the site where the murder was committed is not fully blocked. There is a mud boundary running east-west and on this boundary there are a number of trees and shrubs. But the trees and shrubs are not so dense as to totally block the view of the persons standing on the other side of the field of Dashrat. This apart, Jyoti clarifies that he had come upto the peak i.e. the cart track of Shrimans field. From that place, the place of occurrence was clearly visible. The crime was committed near the bandh of Dashrats land. Even though the distance of that spot was as much as 1500 feet from Shrimants field, it does not follow that the place could not be seen. The occurrence took place at about 3.00 p.m. and in the month of May, 1988. The crime was committed near the bandh of Dashrats land. Even though the distance of that spot was as much as 1500 feet from Shrimants field, it does not follow that the place could not be seen. The occurrence took place at about 3.00 p.m. and in the month of May, 1988. The sun is at its brightest in the month of May and we seen no reason to disbelieve Jyotis claim that he could see the occurrence clearly and also make out the persons involved in the offence. The veracity of what Joyti has to say is borne out by the depositions of Kallawwa and Sidramappa. P.W. 2 Kallawwa says that Jyoti was the first to inform her of her husband having been done to death by the accused. Jyoti says that he had spoken about the event to Uttam Gaikwad and it was this Uttam Gaikwad who informed Sidramappa of having learnt of the murder from Joyti. Exh. 18 which has been treated as the F.I.R. makes a reference to Kallawwa having learnt of the crime from Joyti and a gist of the information Kallawwa received from Joyti is incorporated in Exh. 18. Even on the showing of the accused themselves, Jyoti has no reason to testify falsely against them. P.W. 4 Chidanand has been accused of being ill-disposed towards the accused. Yet no suggestion incorporating this has been put to him when he was cross-examined. Sidramappa is also accused of harbouring grudge against the accused. No suggestion has been put to him in cross-examination about such a grudge inspiring his testimony. Belated allegations made in the comfort of the dock cannot be given any credence. The matter does not rest upon the testimony of the four witnesses discussed above. 7. Blood was found on the garments of the accused and the explanation given is anything but credible. So far as the recovery of the axe and stick are concerned, we must say that the prosecuting Counsel did not take the pains to bring out with clarity the incriminating portion of the statement made by accused Nos. 1 and 2. What was required to be brought out was the accused saying that they had concealed the weapons. Such recitals find a place in Exhs. 28 and 29. 1 and 2. What was required to be brought out was the accused saying that they had concealed the weapons. Such recitals find a place in Exhs. 28 and 29. No effort was made by the prosecuting Counsel to bring out this aspect in the depositions of P.S.I. Jadhav and also the panch examined on the subject. A significant clue pointing to the guilt of the accused has thus been weakened. Be that as it may, the occular evidence more than compensates for the infirmity noticed above. 8. This brings us to the consideration of the offence said to have been established against the accused. So far as accused No. 1 is concerned, Dr. Gaikwads testimony concludes the matter. He says that injury No. 1 which is an incised wound by itself was sufficient in the ordinary course of nature to result in death. Dr. Gaikwad has also gone on to say that injury Nos. 1 to 3 taken together could have also brought about the demise of Dashrat. A close look at the post-mortem report shows that the first injury could have by itself led to the death or excessive bleeding which brought about the termination of Dashrats life. The third injury was that caused by accused No. 2 and he had used a stick to inflict the said injury. A description of the stick is to be found in Exh. 29/1. The stick is made of bor wood measuring 61" in length. Its diameter is 1½" or so. Use of such a stick even with great force as was done in the instant case which has resulted in the up-rooting of two teeth of Dashrat and causing a fracture, would not indicate an intent to kill. The learned Public Prosecutor argues that both the accused had set out on an errand to kill Dashrat and the fact that one of them was armed with a mere stick would not be enough to exclude the applicability of section 34 I.P.C. to accused No. 2. This contention is disputed by Mr. Mane. Section 34 of the I.P.C. reads as follows : "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone". This contention is disputed by Mr. Mane. Section 34 of the I.P.C. reads as follows : "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone". The principle underlying this section given out in the latest commentary by Ratanlal Dhirajlal 23rd edition is thus :-- "This section embodies the common-sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually." Decided cases furnish some light on the subject and we cannot do better than refer to the three authorities discussed below : The first is to be found in 51 Criminal Law Journal (1950) at page 993. The Judges constituting the Division Bench, viz. Raghubar Dayal and Agarwala, JJ. differed on the applicability of section 34 I.P.C. to the proved facts. These were that seven persons including the two appellants before the High Court were charged for murder. The allegation was that the seven persons armed with a spear, kirpan and lathis attacked the deceased. The incised wounds received by the deceased were the primary cause of his death. Persons alleged to have used sharpedged weapons were given the benefit of doubt and acquitted. According to the prosecution, the appellants before the High Court were those who were armed only with lathis and had used these lathis to inflict injuries on the deceased. These two persons were convicted under section 302 r/w. 34 I.P.C. Dayal, J., sustained the conviction and a contrary view was taken by Agarwala, J. The reference to the third Judge came up before Wanchoo. J. This Judge agreeing with Agarwala, J., held :-- "(i) that the part, if any said to have been played by those acquitted cannot be taken into account in determining the guilt of the remaining persons who have been convicted. (ii) that in view of the evidence that the appellants were armed only with lathis, they could only be convicted for causing injuries with lathis. (ii) that in view of the evidence that the appellants were armed only with lathis, they could only be convicted for causing injuries with lathis. As it was not known for certain that lathi injuries were responsible for the death of the deceased, the appellants could only be convicted under section 323, Penal Code." The scope and application of section 34 has been dealt with in great detail by a Division Bench of the Mysore High Court in the case titled (In re Basappa)1, reported in 51, Criminal Law Journal, (1950) page 1603 Say the Judge at para 8 of the judgment:-- "Section 34 deals with the liability of persons who had a common intention when an illegal act is committed in furtherance of that common intention. Knowledge that an offence is likely to be committed is not what is contemplated in section 34. ............In effect, the common object with which section 149 deals may be one which is lawful, while the common intention contemplated by section 34 is with reference to the committing of a criminal act. Section 34 does not deal with the liability of person for an offence likely to be committed in the course of what was intended by them, deals with only the liabilities of the persons who intended to commit a criminal act, when that act is committed. Even in a case where an offence is committed by one person, another person, person who was with him at the time the offence was committed cannot be punished, though he had a similar intention, that is because, the section deals with the liability of persons for criminal act done in furtherance of a common intention." The Supreme Court had occasion to deal with section 34 and in (Ramaswami Ayyangar v. State of Tamil Nadu)2, A.I.R. 1976 S.C. 2027, it observed - "The essence of section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring such a particular result." The learned Public Prosecutor argues that in the instant case accused No. 2 accompained accused No. 1, so that both of them were armed although with weapons of different potential; they had the intention to thrash Dashrat and did inflict a beating on that person; that the act of one was more dangerous than that of another was not enough to render the wrong-doers liable for different offences. It is not possible to agree with the submission. The point we have been emphasising and which is brought out with great clarity in Basappas case (supra) is that section 34 has to be differentiated from common object punishable by use of section 149 I.P.C. and criminal conspiracy punishable under section 120 B I.P.C. for as has been said elsewhere - "Care must be taken not to confuse 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." Read in this light, it appears to us that though the two accused may be said to have possessed the same or similar intention viz. to inflict a thrashing on Dashrat, they were not actuated by a common intention. The intention of accused No. 1 to kill Dashrat is evident from his using a lethal weapon and wielding this weapon to inflict a forceful blow on a vital part of the body of Dashrat. The same intention cannot be ascribed to accused No. 2. He i.e. accused No. 2, was armed with a stick ad struck Dashrat on the mouth. The blow was a forceful one and resulted in a fracture. In other words, accused No. 2, did not harbour the intent to kill Dashrat. Having regard to the act done by accused No. 2, we will have to hold him guilty of voluntarily causing grievous hurt punishable under section 325 I.P.C. We therefore, reverse the conviction of accused No. 2, to that falling under section 325 I.P.C. As to the sentence, a peaceful person has died leaving behind a widow with children to take care of, and, all because the guilty ones could not bear the sight of Dashrat enjoying his victory at law. Accused No. 2 is in custody continuously since 2-12-1988. The substantial imprisonment should not exceed the period of detention undergone by accused No. 2. However, this is an appropriate case where accused No. 2 should be made to pay compensation to Kallawwa, and, in the event of that lady being dead, to the orphaned children of the couple. A fine of Rs. 5000/- will meet the ends of justice and in the event of fine not being paid, accused No. 2 shall undergone R.I. for 2 years. A fine of Rs. 5000/- will meet the ends of justice and in the event of fine not being paid, accused No. 2 shall undergone R.I. for 2 years. The entire sum of fine, if recovered, shall be made over as compensation to Kallawwa and in the event of that lady having expired, to the children of Kallawwa by Dashrat. Criminal Appeal No. 150 of 1989 is dismissed and the conviction and sentence recorded against accused No. 1 confirmed. Criminal Appeal No. 69 of 1989 is partly allowed. Conviction recorded against accused No. 2 is converted from that falling under section 302 r/w. 34 of the I.P.C. to that under section 325 I.P.C. The sentence of accused No. 2 is reduced to the period undergone coupled with a fine of Rs. 5000/-. In the event of the fine not being paid, accused No. 2 shall undergo an additional R.I. for 2 years. Fine amount, if paid or recovered, be made over in its entirety by way of compensation to Kallawwa, and, in the event of her dealth, to the children left by her from Dashrath. Order accordingly.