JUDGMENT : 1. On the afternoon of November 7, 1976, a quarrel ensued between two neighbours resulting in the death of one Bholidas and injuries to PW 8 Gandabhai. The prosecution case is that on the previous day there was a quarrel between the members of the prosecution party and the accused party in regard to the alleged ill-treatment meted out to Savitaben by her husband PW 8 Gandabhai. This quarrel had resulted in an exchange of blows in which PW 5 Dashrath, son of the deceased, was injured. The elders of the village intervened and pacified the two feuding parties. They were separated. On the next day when the deceased and his son PW 8 Gandabhai were returning from the field, accused Nos. 1 to 4, who were waiting at their residence attacked them with deadly weapons causing serious injuries to the deceased as well as PW 8 Gandabhai. The deceased succumbed to the injuries on the same day but the injured survived to give evidence. The First Information Report in regard to the incident was lodged by PW 5 Dashrath, who was accompanied by one Chandubhai. It is alleged that he had lost the election against accused No. 1 and was, therefore, on inimical terms. The prosecution placed reliance on the eye- witness account of PW 5 Dashrath, PW 8 Gandabhai (injured) PW 12 Babiben, daughter of the deceased, PW 13 Joitiben, sister of the deceased, PW 21 Keshavlal and PW 22 Purshottam Jividas. The clothes of PW 21 were stained with blood, presumably because he had assisted the injured while they were being taken to the Hospital. In addition to the ocular evidence of the aforesaid eye-witnesses, there was the evidence of Dr. Kantibhai Somabhai Solanki, who had examined the injured PW 8 and performed the autopsy on the dead body of the deceased. 2. The trial Court acquitted all the accused persons of the charges levelled against them mainly for three reasons, namely, (i) the absence of motive, in that the quarrel had been settled on the previous day, (ii) there was no need for the accused to wait for the return of the deceased and the injured because they could have been attacked in the field itself, and (iii) failure to attribute specific overt act to each accused in the First Information Report Exh. 57 lodged by PW 5. 57 lodged by PW 5. The High Court dealt with each of these grounds separately and rightly demolished them for reasons stated in the judgment. The High Court, however, came to the conclusion that the evidence in regard to the involvement of accused No. 1 is discrepant and it is not safe to convict him on that evidence. However, in regard to accused Nos. 2, 3 and 4 the High Court observed as under : "This is a case where, in a broad daylight, near the very house of the victims, both the victims were murderously assaulted, and on the very day in question, the father of the injured succumbed to his injuries." Proceeding further, the High Court next observed as under : "In view of the aforesaid voluminous evidence, which, to our mind, is consistent, cogent and clear against accused Nos. 2, 3 and 4, we are convinced beyond any doubt, that the said three accused persons did commit the crime in question." It is clear from the aforesaid findings recorded by the High Court that the High Court on re-assessment of the evidence of the prosecution witnesses, PWs 5, 8, 12, 13, 21 and 22, came to the conclusion that the murderous assault was launched on the deceased and PW 8 by accused Nos. 2, 3 and 4. The High Court also came to the conclusion that assault was a 'pre-arranged plan' having a requisite mensrea. Yet the High Court came to the conclusion that the evidence did not disclose that they had a common intention to kill the deceased. On the basis of that conclusion recorded by the High Court, the High Court convicted accused Nos. 2, 3 and 4 under Section 326, Indian Penal Code, and awarded a sentence of rigorous imprisonment for five years to accused Nos. 2 and having regard to the tender age of accused Nos. 3 and 4 it awarded a sentence of rigorous imprisonment for four years. 3. The State feeling aggrieved by the order of acquittal recorded against all the four accused for the offence punishable under Section 302, Indian Penal Code, preferred Criminal Appeal No. 337 of 1981. The three convicted accused feeling aggrieved by the order of conviction and sentence passed against them have preferred Criminal Appeal No. 410 of 1981. 3. The State feeling aggrieved by the order of acquittal recorded against all the four accused for the offence punishable under Section 302, Indian Penal Code, preferred Criminal Appeal No. 337 of 1981. The three convicted accused feeling aggrieved by the order of conviction and sentence passed against them have preferred Criminal Appeal No. 410 of 1981. As both the appeals relate to the very same incident of November 7, 1976, we proceed to dispose them of by this common judgment. 4. The learned Counsel appearing for the defence took us through the relevant part of the evidence of the prosecution witnesses. There is no doubt that the incident occurred near the house of the victims where a pool of blood was found. There is also no doubt that in the said incident PW 8 sustained as many as seven injuries,. one stab wound, three incised wounds, two abrasions and a septic wound. There is also no doubt that the deceased Bholidas sustained as many as six injuries, three incised wounds and three stab wounds. All the three stab wounds were found to be collectively as well as individually sufficient in the ordinary course of nature to cause death. The medical evidence was also to the effect that these three injuries were more probable by a dagger than by a knife, but were not possible by the muddamal knife, article 13. Be that as it may, the fact remains that the three fatal injuries were stab wounds which could be caused by a knife, be that article 13 or any other weapon. The fact also is that the eye-witness account discloses that one of the accused persons had a knife another had a Dharia, which is also sharp cutting instrument and the third had a stick. The abrasions could be possible by the stick. The incised wounds would be possible by any sharp cutting instrument. The evidence of PW 5, however, shows that he came out of the house after hearing the hubbub and therefore, he cannot be said to be an eye-witness to the entire incident. When he went to give the First Information Report, he was accompanied by Chandubhai who had lost the election to accused No. 1. The evidence of PW 5, however, shows that he came out of the house after hearing the hubbub and therefore, he cannot be said to be an eye-witness to the entire incident. When he went to give the First Information Report, he was accompanied by Chandubhai who had lost the election to accused No. 1. The defence version was that the relations between accused No. 1 and Chandubhai were strained and, therefore, the possibility of Chandubhai having influenced PW 5 in naming accused No. 1 could not be ruled out. The fact is that the injured witness PW 8 Gandabhai, does not depose to accused No. 1 having participated in the assault. The presence of PW 8 cannot be doubted as he had received serious injuries in the course of the incident. If he does not state that accused No. 1 participated in the commission of the crime then the possibility of PW 5 having been influenced by Chandubhai cannot be ruled out. In any case a serious doubt arises as to his participation and if both the courts below have on account of this factor thought it unwise to convict accused No. 1, we do not think that we would be justified in disturbing his acquittal in an appeal by special leave. We, therefore, affirm the order of acquittal passed by both courts below insofar as accused No. 1 is concerned. 5. We are in agreement with the High Court that accused Nos. 2, 3 and 4 had participated in the murderous assault on the deceased and PW 8. The evidence in that behalf is quite convincing as emerging from the testimony of PWs 5, 8, 12, 13, 21 and 22. The High Court has for good reason accepted their testimony as cogent, convincing and reliable and we do not see any reason to take a different view. We have, as stated earlier, been taken through the relevant part of their evidence and we find no infirmity therein. We, therefore, agree with the High Court that the evidence is convincing insofar as the role played by accused Nos. 2, 3 and 4 in the assault is concerned. 6. The High Court, however, took the view that the evidence was in two sets. This was on account of the fact that PW 5 Dashrath, implicated accused No. 1 whereas PW 8 Gandabhai, did not do so. 2, 3 and 4 in the assault is concerned. 6. The High Court, however, took the view that the evidence was in two sets. This was on account of the fact that PW 5 Dashrath, implicated accused No. 1 whereas PW 8 Gandabhai, did not do so. When the High Court states that the prosecution had laid two sets of evidence on record the High Court only had this disparity in mind for otherwise the evidence is consistent. In regard to the motive also, the High Court rightly points out that the relations between the two parties were strained presumably on account of the treatment meted out to Savita by her husband PW 8 and an altercation that had taken place on the previous day. That dispute was settled by the intervention of the elders, but that does not mean that there was a complete reconciliation between the feuding parties. The anger was simmering and it manifested itself in the ugly incidence of November 7, 1976. It is, therefore, difficult to say that there was no motive as was sought to be urged before us by the learned Counsel for the convicted accused. We also do not subscribe to his view that the prosecution witnesses have suppressed the genesis of the crime. Nor does the medical evidence run counter to the evidence of the eye-witnesses. The fact that the accused persons lay in wait for the deceased and PW 8 to return from the field confirms the High Court's finding that it was a pre-planned assault. In the backdrop of these findings, we find it difficult to agree with the High Court that the prosecution had failed to establish common intention. What else it was than a meeting of minds prior to the commission of the crime if the three accused lay in wait to execute a pre-planned assault? Since the assault was with dangerous weapons, there can be no doubt about the fact that the common intention was to cause the death of the victims. The High Court supports its conclusion in this behalf as under : "In the case before us, on a day prior to the actual occurrence, there was a settlement between the parties, as stated by us in the earlier part of our judgment. The High Court supports its conclusion in this behalf as under : "In the case before us, on a day prior to the actual occurrence, there was a settlement between the parties, as stated by us in the earlier part of our judgment. Medical evidence does not clearly disclose, that the muddamal knife, and the muddamal knife alone could have caused the three fatal injuries on the deceased. In this behalf, medical evidence is, that the three fatal injuries on the deceased, being injuries Nos. 3, 5 and 6, could have been caused more by a dagger than by a knife. Medical evidence is also further clear to show that the fatal injury could not have been caused by the muddamal knife, article 13. Under the circumstances, we are not inclined to take the view, that the three accused persons had the common intention to cause the death of the deceased. It may significantly be noticed at this stage, that not a single fatal injury was noticed on the deceased, which could have been caused by a Dharia or by a stick. If accused Nos. 2, 3 and 4 had a pre-arranged plan or the requisite mens rea, for causing the homicidal death of the deceased by entertaining the common intention, then some fatal injury could have been caused by a Dharia or a stick. How is it, that there is not a single fatal injury on the deceased which could have been caused by a Dharia? How is it, that there is not a single fatal injury on the deceased which could have been caused by a stick? How is it, that the doctor says that the fatal injury could have been caused by a dagger and the dagger alone, and not a knife ? The answers to the questions create a doubt in our minds, that the three accused persons did entertain the common intention to cause grievous hurt to the two victims." We find it difficult to persuade ourselves to this line of reasoning. There is cogent evidence that the accused persons were waiting for the deceased with dangerous weapons. The answers to the questions create a doubt in our minds, that the three accused persons did entertain the common intention to cause grievous hurt to the two victims." We find it difficult to persuade ourselves to this line of reasoning. There is cogent evidence that the accused persons were waiting for the deceased with dangerous weapons. As soon as the deceased and PW 8 arrived they were assaulted with those weapons and merely because there was no fatal blow caused by Dharia or stick, it cannot be said that the common intention was not to murder when in fact three fatal stab wounds were indisputably inflicted on the deceased. The medical evidence that the fatal injuries could not have been caused by the muddamal knife, article 13, is mainly on account of the Doctor's notion regarding the shape of the weapons. The doctor was of the view that while a dagger, gupti and kirpan are double edged weapons with a straight blade, a knife has a curved blade. It is for this reason that he deposed that injuries Nos. 3, 4, 5 and 6 are possible by the tip of a Dharia, though not by a single edged weapon. But then the assailants were armed with Dharia as well as a knife. Be that as it may, even if, it is assumed that muddamal knife, article 13, was not the weapon used in the commission of the crime that does not make any difference for the reason that the ocular evidence of the eye- witnesses is clear and cogent that the accused persons were armed with a knife and a Dharia. It may be that in the course of investigation that weapon may not have been traced and another weapon may have been taken to be the one which was used in the commission of the crime by the Investigating Officer, but that should not make any difference for the reason that there were admittedly three fatal stab wounds on the deceased. Besides the medical evidence is not in conflict with the ocular evidence of the eye-witnesses. In this view of the matter, we are of the opinion that the High Court was wrong in the view it took in regard to the common intention of the assailants. We have no manner of doubt that the common intention was to cause the death of the victims. 7. In this view of the matter, we are of the opinion that the High Court was wrong in the view it took in regard to the common intention of the assailants. We have no manner of doubt that the common intention was to cause the death of the victims. 7. In the result, the State's appeal is partly allowed. It is dismissed insofar as accused No, 1 is concerned, but it is allowed insofar as accused Nos. 2, 3 and 4 are concerned. The acquittal of accused Nos. 2, 3 and 4 under Sections 302, Indian Penal Code is set aside and they are convicted under Section 302/34 and are hereby sentenced to suffer rigorous imprisonment for life. In view of the same, their conviction under Section 326, Indian Penal Code, will not survive. The appeal filed by the convicted accused is dismissed. The accused will surrender to their bail forthwith. Order accordingly.