JUDGMENT 1. - By his judgment dated 8.12.1993 in sessions case No. 15/90, the learned Special Judge (SC/ST), Udaipur has convicted and sentenced the appellants as hereunder : Accused Offence u/s. Sentenced awarded Singha s/o Pema 302 IPC Imprisonment for life with a fine of Rs. 200/ -, in default of payment to further undergo rigorous imprisonment for six months. 307/34 IPC 5 years' rigorous imprisonment with a fine of Rs. 200/-, in default of payment of fine six months' rigorous imprisonment Achla 302/34 IPC Imprisonment for life with a fine of Rs. 200/ in default of payment of fine to further undergo rigorous imprisonment for six months. 307 IPC 5 years' rigorous imprisonment with a fine of Rs. 200/- in default of payment of fine to further undergo rigorous imprisonment for six months. Pema 302/34 1PC Imprisonment for life with a fine of Rs. 200/-, in default of payment of fine to further undergo rigorous imprisonment for six months. 307/34 IPC 5 years' rigorous imprisonment with a fine of Rs. 200/-, in default of payment of fine six months' rigorous imprisonment Substantive sentences were ordered to run concurrently. The accused-appellants have come up in appeal to challenge the above conviction and sentence. 2. Briefly stated the prosecution case is that Lachhma (PW 9), Nopa (PW 1) and Moti (PW 5) went in search of work to Bhanwaria Dam on 3.1.1987 in the morning. They did not get any work. In the afternoon they were returning to the village. When they passed in-front of the house of Maria, they saw Ladura, Bita, Panna and Rupa sitting there. Bita called them to enjoy bidi. These three persons went to the house of Mana where Ladura and others were sitting. The accused Singna, Achla and Pema also came there each armed with an axe. Singa immediately after arriving there dealt an axe blow on the neck of Rupa with violent force. After sustaining the above injury Rupa fell down and died instantaneously. Moti rushed to help Rupa but his attempt was frustrated by Achla who administered an axe blow on his head and he fell down. Pema dealt an axe blow on his abdomen from its blunt side. After administering the above beating, all the three accused fled away. Sankla, Bhura and Padma brought Moti to Sirohi for treatment in the Govt. Hospital, Sirohi. Pema dealt an axe blow on his abdomen from its blunt side. After administering the above beating, all the three accused fled away. Sankla, Bhura and Padma brought Moti to Sirohi for treatment in the Govt. Hospital, Sirohi. The FIR of this occurrence was lodged by Lachhma at Police Station, Becaria on the same day at 7.30 p.m. The police registered a case under sections 302 & 307/34 IPC and investigation commenced. Sohanlal (PW 17), Incharge, Police Station, Becaria, reached the place of occurrence and prepared the inquest report Ex. P/2. He sent the body of Rupa for postmortem to Dr. Surendra Singh Jhala (PW 7) who conducted the postmortem on 4.1.1987. Dr. Jhala found an incised wound 4" x 13/4" x 21/2" on the right side of neck obliquely pressed on the upper part and back. The wound extended down towards up to the middle and back of neck. He also found clotted blood on the wound. On dissection, it was found that muscles of neck had been cut and the fourth cervical vertebra was completely severed. Cervical chord was also cut. The wound was ante-mortem in nature and caused by heavy cutting weapon. The postmortem is Ex. P/12. 3. The injury of Moti injured was examined by Dr. C. Ram (PW 15). According to injury report Ex. P/20, Moti was found to have sustained an incised wound 10 cm. x 2 cm. bone deep on the superior aspect of the skull. The injury was caused by a sharp edged weapon and according to X-ray report Ex. P/19 there was evidence of fracture of left parietal bone. The Investigating Officer also seized the blood stained and controlled soil from the place of occurrence. The blood stained clothes were also seized. The accused were arrested. It is also alleged that in pursuance of the information furnished under section 27 of the Evidence Act by each accused, an axe was recovered from each of the accused. The same were seized and sealed and sent for chemical examination to the Forensic Science Laboratory, Jaipur by the Distt. Police Superintendent vide letter Ex. P/20. It appears that the report has not been received from the Forensic Science Laboratory so far. 4. The Investigating Officer also examined the material witnesses and after investigation filed a charge-sheet against the accused- appellants. Police Superintendent vide letter Ex. P/20. It appears that the report has not been received from the Forensic Science Laboratory so far. 4. The Investigating Officer also examined the material witnesses and after investigation filed a charge-sheet against the accused- appellants. The learned Munsif & Judicial Magistrate, Gogunda by his order dated 30.1.1987 committed the accused to the Court of Sessions for standing trial for offences under sections 302 & 307 IPC. The learned Sessions Judge framed charges under sections 302/34 &307 against the accused Achla and Singha and charges under section 302 & 307/34 against the accused Pema. The accused denied their indictment and claimed trial. In order to prove the above charges against the accused, the prosecution examined as many as 17 witnesses. The statements of the accused under section 313 Cr.P.C. were recorded. The accused denied the prosecution allegations and alleged that they have been falsely implicated on account of enmity. No defence evidence was led. 5. The learned Sessions Judge, on appreciation of prosecution evidence, found that Rupa died as a result of injury caused to his neck and his death was, therefore, homicidal in nature. Similarly he also found proved that Moti sustained injury as prescribed in F.A. P/20. He further found that the injury to Rupa was caused by Singha and it was sufficient in the ordinary course of nature to cause death. The injury to Moti was caused by Achla and that Pema shared the common intention with the other accused to cause the death of Rupa as also attempting murder of Moti. He, therefore, convicted and sentenced the accused as stated above. 6. We have heard learned Shri Suresh Kumbhat learned counsel for the accused-appellants and the learned Public Prosecutor. 7. Shri Khumbhat has not disputed that the death of Rupa was homicidal in nature. He has also not disputed that Moti sustained a grievous injury as described in Ex. P/20 and the X-ray report Ex. P/19. He, however, seriously disputed that the offence under section 302 IPC was made out. He also attacked the prosecution witnesses on ground of contradictions and inconsistencies found in their statements. 8. Learned counsel has also contended that there Was no previous enmity between the parties. The occurrence appears to have taken place all of sudden. There was, therefore no common intention between the parties. He also attacked the prosecution witnesses on ground of contradictions and inconsistencies found in their statements. 8. Learned counsel has also contended that there Was no previous enmity between the parties. The occurrence appears to have taken place all of sudden. There was, therefore no common intention between the parties. It is necessary for the prosecution to prove an offence under section 34 by proving the essential ingredients of Section 34. There must be prior meeting of minds and it requires a prearranged plan. It is further necessary that the common intention shared by the accused was to commit the murder of Rupa and attempted murder of Moti. It is clear from the evidence itself that first Singha dealt a blow on the neck of Rupa. At that time both the accused did not participate in the beating. When Moti, rushed to intervene, Achla assaulted him 'on the head but he did not repeat the blow with his axe. Although Pema is also being credited with a blow on the back or abdomen of Moti the medical evidence is negative about this fact. Hence, participation by Pema is totally ruled out. From the sequence of the events, the preconcert or prearranged plan is totally negatived. The learned Sessions Judge, therefore, erroneously invoked Section 34 while determining the criminal liability of the accused. Shri Kumbhat has also pointed out certain contradictions in the statements of material witnesses. 9. It was also strenuously argued by Shri Kumbhat that even if for the sake of arguments, it is assumed that Singha caused the above injury to Rupa, no offence under section 302 IPC is made out. The accused is alleged to have dealt only one blow and the medical evidence is not to this effect that the above injury was sufficient in the ordinary course of nature to cause death. In the postmortem report also, the Medical Officer has not given any such opinion. In the Court testimony also the Medical Officer has no so opined. Hence, the offence that can be said to have been made out against Singha is under section 304(2) IPC and not u /s. 302 IPC. Learned counsel has cited several cases in support of his arguments. In the Court testimony also the Medical Officer has no so opined. Hence, the offence that can be said to have been made out against Singha is under section 304(2) IPC and not u /s. 302 IPC. Learned counsel has cited several cases in support of his arguments. He referred to the following cases:- Darshan Singh v. State of Rajasthan, 1984 Cr.L.R. (Raj.) 379 , Tolarani v. State of Rajasthan, 1984 Cr.L.R. (Raj.) 397 , Chandar Ram v. State of Rajasthan, 1993 RCC 208 , Durgaram v. State of Rajasthan,1994 RCC 177 , Uttarakhand v. State of J&K, 1989 (2) Crimes 626 , Cokul Parasram v. State of Maharashtra, 1981 SCC (Cr.) 731 , Bhaironlal v. State of Rajasthan, 1989 Cr.L.R. (Raj.) 121 , Mahendra Pal Jolly v. State of Punjab, 1979 Cr.L.R. (SC) 105 , Moolaram & Ors. v. State of Rajasthan, 1987 Cr.L.R. (Raj.) 791 , Adiya v. State of Rajasthan,1985 Cr.L.R. (Raj.) 602 and Dhoola Singh v. State of Rajasthan, 1996 (2) RCD 249 . 10. Learned Public Prosecutor, on the other hand, fully supported the judgment of the learned Sessions Judge and submitted that all the three accused came to the house of Mana each armed with an axe. This fact underlines the intention of the accused to indulge in violence. Singha immediately administered a deadly blow on the vital part (neck) of Rupa which resulted in his instantaneous death. The other accused Achla belaboured Moti and dealt a blow on his head with his axe. The injury was on a very vital part of the body and was grievous in nature. It was providence that saved Moti. Pema is also alleged to have inflicted an axe blow on the abdomen of Moti from its blunt side. There was enmity between the parties. It is alleged that Rupa stole the goats of Singha and a criminal case was also lodged. 11. We have given our thoughtful consideration to the arguments advanced at the Bar and we have also gone through the entire prosecution evidence on record. At the very outset we may state that it has not been disputed before us that Rupa died on account of the neck injury sustained by him. His death was instantaneous. Hence, we hold that Rupa's death was homicidal in nature. Similarly, it has also not been disputed or challenged that Moti also received head injury as mentioned in Ex. At the very outset we may state that it has not been disputed before us that Rupa died on account of the neck injury sustained by him. His death was instantaneous. Hence, we hold that Rupa's death was homicidal in nature. Similarly, it has also not been disputed or challenged that Moti also received head injury as mentioned in Ex. P/19 and Ex. P/20. The injury was grievous in nature caused by a sharp edged weapon. The whole prosecution case is founded on the testimony of Vita (PW 3), Panna (PW 4), Moti (PW 5) and Laxman (PW 9). We have gone through the statement of these witnesses and find that their statements cannot be assailed on any ground. Their presence at the place of occurrence has been duly proved. Their statement is consistent that it was Singha who dealt the deadly blow on the neck of Rupa by his axe. Similarly there is a consistent testimony of these witnesses that the head injury of Moti was caused by Achla by his axe. However, their testimony as regards Pema is not corroborated by the medical evidence inasmuch as according to Ex. P/20 no injury except the head injury was found on the person of Moti as per injury report Ex. P/20. We, therefore, fee) no difficulty in holding that Pema did not participate in the beating and he did not cause any injury to Moll. The learned Sessions Judge has dealt with the testimony of these witnesses in detail and Shri Kumbhat could not point out any material contradictions or inconsistencies in their statements. We, therefore, hold that the above witnesses are truthful and their testimony is trust-worthy. 12. The next important question that falls for determination is what offence is made out against Singha Shri Kumbhat has cited the above decided cases. It may stated that each case has got distinct facts and the law laid down is based on the facts and circumstances of that case. However, the facts of the case of Dhula Singh v. State of Rajasthan are somewhat identical with the fact in the present case. In that case, the deceased Amar Singh was found to have sustained an incised wound 9 cm. x 3 cm. x 2.5 cm. transversely placed on the left side of neck. The Thyroid cartilage was cut. However, the facts of the case of Dhula Singh v. State of Rajasthan are somewhat identical with the fact in the present case. In that case, the deceased Amar Singh was found to have sustained an incised wound 9 cm. x 3 cm. x 2.5 cm. transversely placed on the left side of neck. The Thyroid cartilage was cut. Jugular and other veins and carotrid artery were also found to have been cut. The D.B. of this Court held that the accused inflicted only one injury which was suggestive of his intention not to cause death but only to cause an injury with a sharp edged weapon. it was, therefore, held that the offence under section 304 (2) IPC was made out. The conviction of the accused was, therefore, altered from Section 302 to Section 304(2) IPC. 13. While ascertaining the intention of the offender, the following facts are taken into consideration: 1. The anatomy selected by the assailant to inflict the injury in question. 2. The weapon selected and used by the accused to inflict the above injury. 3. The number of blows dealt to the victim and, 4. The circumstance in which the assault was made. It is also a settled law that the nature of the injury, considered objectively, can determine whether the accused possessed intention to cause death. The phrase "bodily injury" intended to be inflicted occurring in Cl. (3) of Section 300 IPC is purely objective and inferential. It has got nothing to do with the intention of the offender. It was held in Virsa Singh v. State of Punjab, AIR 1958 SC 465 . "The prosecution must prove the following facts before it can bring a case under section 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigation. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended." "Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under section 300 "thirdly". It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death." Where a severe blow is given on a vital part intention to kill can be attributed to the accused and proof of ill will or motive is not necessary. Looking to description of the injury was recorded by the Medical Officer and the bet that the victim Rupa died instantaneously, we entertain no doubt that the intention of the accused was to cause death as the injury caused by him was certainly sufficient in the ordinary course of nature to cause death. The injury noticed in Dhula Singh's case was not severe as in the present case. We do not find any substance in the contention of Shri Kumbhat that since the Medical officer did not indicate in the port-mortem report that the injury was sufficient in the ordinary course of nature to cause death, it must be presumed that no offence under section 302 IPC is made out. He further submitted that in the statement also the Medical Officer has not given any such opinion. It may be stated that the postmortem report is prepared in the prescribed proforma and it does not contain any column for rendering such opinion. The most important point to be borne in mind in this respect is that sometimes the injury caused so eloquently suggests the intention of the accused that no difference will be made even if the Medical Officer omitted to state that the injury was sufficient in the ordinary course of nature to cause death. In the instant case, the weapon used was a dangerous one. The part of body targeted by the accused was very vital part of the body and the effect of the injury was very telltale inasmuch as it completely cut the muscles of the neck and the jugular vein. In the instant case, the weapon used was a dangerous one. The part of body targeted by the accused was very vital part of the body and the effect of the injury was very telltale inasmuch as it completely cut the muscles of the neck and the jugular vein. It also severed the four cervical vertebra. The victim, as a result of the above injury, died instantaneously. 14. We, therefore, hold that an offence under section 302 IPC is proved beyond reasonable doubt against accused Singha. 15. As regards the other accused Achla, he is guilty of causing a grievous injury to Moti by a sharp edged weapon (axe). We have noticed the injury caused to Moti as detailed in Ex. P/20. Now, the question is whether an offence under section 307 IPC is made out against Achla. The gist of the offence under section 307 IPC is the question of intention or knowledge. It is manifest that the liability of the accused must be extended to the act which he has in fact caused. For ascertaining the above intention, the Court has to look to various facts, like the nature of the injury caused, severity of the blow and the circumstances in which it is caused. The accused used a very dangerous weapon i.e. axe and the part chosen for inflicting the blow was the most vital part of the body. The measurement of the injury is suggestive to the fact that the accused intended to commit murder of Moti. It was the proper medical aid provided at the proper time that the life of Moti could be saved. Hence, an offence under section 307 IPC is made out against Achla. Regarding the charge under section 34 IPC it may be stated that the necessary conditions for the application of Section 34 are common intention to commit an offence and participation by all the accused in doing act or.acts in furtherance of that common intention. Common intention presupposes prior concert. It requires a prearranged plan and prior meeting , of minds because 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 that all. It is the common intention which animate the offenders to the doing of a criminal act in pursuance of the common intention. It is the common intention which animate the offenders to the doing of a criminal act in pursuance of the common intention. If we scan the facts and circumstances of the present case, we find that no inference can be drawn regarding the existence of a common intention existing between the accused. Though all the three accused came there each armed with an axe, only Singha dealt the deadly blow to Rupa. At that time, the other accused did not participate in any violence. The movement of Moti activated Achla and the latter dealt the axe blow on the head of Moti when he tried to rescue Rupa. However, he did not repeat the blow. He would have administered more blows to Rupa. Perna did not participate in the beating at all. From the above it cannot be said that all the three accused shared common intention to commit the murder of Rupa. Similarly, for the offence under section 307 IPC also the other two accused cannot be held vicariously liable for the offence. No offence is, however, made out against Pema inasmuch as no injury was caused to Moti by Pema as is proved by the injury report Ex. P/20. 16. For the above reasons, we allow the appeal in part. The conviction and sentence of the accused Singha under section 302 and Achla u /s. 307 IPC is maintained. Accused-appellant Singha and Achla are acquitted of the offence under section 307/34 IPC and the offence under section 302/34 IPC respectively. Accused Pema is acquitted of the offence under section 302/34 Sr 307/34 IPC. The accused-appellant Pema shall be released forthwith if not required in any other case.Appeal partly allowed. *******