Judgment G. L. GUPTA, J. ( 1 ) THROUGH this appeal, appellants Ganga and Khemla have challenged their conviction under Section 302 read with S. 34 IPC and sentence of imprisonment for life and a fine of Rs. 1,000/- recorded by the learned Sessions Judge, Balotra vide judgment dated 6-3-81. ( 2 ) THE case relates to an occurrence which took place in village Meethra in which Kamal Singh was assaulted and as a result of the injuries he died immediately after the occurrence. The F. I. R. Ex. P-16a was lodged by Jethmal Singh, P. W. 9, father of the deceased, on 16-4-80 at 1. 30 a. m. in which it was stated that on 15-4-80 Kamal Singh and Hem Singh had gone to fetch water and at about sun set Hem Singh came to him weeping and informed him that Ganga Singh alias Magsingh and Khemla were beating Kamal Singh and Dan Singh. On this information he collected Pursingh, Mool Singh and Chandan Singh and rushed to the spot where he found Kamal Singh lying. His head and right leg were bleeding. Kamal Singh told them that Ganga and Khemla had given beatings to him and he wanted to drink water. As he went to fetch water Kamal Singh died. It was also stated in the F. I. R. that some 7-8 months back there was a quarrel between Kamal Singh and Amba Singh father of Ganga accused. On this report, a case under Sec. 302 read with Sec. 34 IPC was registered. The police inspected the site, interrogated the witnesses and collected the post-mortem report Ex. P-12. The accused were arrested and weapons were recovered. After completion of the usual investigation the accused were charge-sheeted. ( 3 ) THE learned Sessions Judge framed charges under Sections 302 read with Sec. 34 and 323 read with Sec. 34 IPC against both the accused who pleaded not guilty. The prosecution examined as many as 13 witnesses. Out of them P. W. 9 Jethmal Singh is the first informant. He proves dying declaration also. P. W. 7 Dan Singh, P. W. 10 Hem Singh and P. W. 11 Vana are the eye-witnesses. P. W. 1 Mool Singh gives evidence regarding the dying declaration of Kamal Singh. P. W. Dr. G. C. Vadera had held autopsy on the body of Kamal Singh and prepared report Ex. P-12. He proves dying declaration also. P. W. 7 Dan Singh, P. W. 10 Hem Singh and P. W. 11 Vana are the eye-witnesses. P. W. 1 Mool Singh gives evidence regarding the dying declaration of Kamal Singh. P. W. Dr. G. C. Vadera had held autopsy on the body of Kamal Singh and prepared report Ex. P-12. He had also seen the injuries of Dan Singh and prepared the injury report Ex. P-13. P. W. 5 Amar Singh and P. W. 2 Heera Ram were associated as panch witnesses in the investigation. P. W. 12 Bhanwar Singh is the Malkhana Incharge. He had taken part in the investigation also. P. W. 3 Gumanaram had taken sealed packets to the F. S. L. Jaipur. P. W. 13 Narain Singh is the Investigating Officer. Accused in their statements under Sec. 313 Cr. P. C. denied accusation. It was however admitted that Mag Singh had lodged a report against Kamal Singh and others for giving beatings to Aam Singh, father of Ganga accused. Accused did not examine any witness in defence. The learned Sessions Judge held that Kamal Singh had met homicidal death. He further held that accused Ganga was the person who had caused multiple injuries to Kamal Singh in furtherance of common intention of both the accused. He, therefore, convicted both the appellants and under Sec. 302 read with Sec. 34 IPC and sentenced them as stated above. ( 4 ) WE have heard the arguments of the learned counsel for the appellants and the learned Public Prosecutor appearing for the State respondent and perused the record of the case. ( 5 ) MR. Purohit contended that the trial Court has erred in relying on the statements of Dan Singh and Hem Singh. He pointed out that Dan Singh had not informed Jethmal Singh that he sustained injuries while intervening in the occurrence and, urged that it should be presumed that Dan Singh had not seen the occurrence. Pointing out that the foot prints of camel were not found on the place of occurrence at the time of site inspection it was argued that the prosecution story, that Kamal Singh and Hem Singh were going along with camel, is false. He urged that both the accused were found asleep and this shows that they had not committed any crime. According to Mr. He urged that both the accused were found asleep and this shows that they had not committed any crime. According to Mr. Purohit, the person who commits crime cannot sleep in easy mood and the natural conduct of such person is to flee away. He invited our attention to the discrepancy appearing in the statements of the witnesses and towards the delay in lodging the F. I. R. His further contention was that the police did not prepare inquest report in this case and according to him this is a serious infirmity. His last submission was that as no individual injury was sufficient in the ordinary course of nature to cause death the offence did not travel beyond Sec. 304 Part-II IPC. ( 6 ) ON the other hand the learned Public Prosecutor supported the judgment of the trial Court. ( 7 ) WE have carefully considered the above arguments. Dr. Gulab Chand Vadera, P. W. 6 has deposed that he had held autopsy on the person of Kamal Singh and there were following antemortem injuries :-1. Lacerated wound 3 cm. x 1 cm. x bone deep scalp semi circular shape, transversely placed over centre of scalp. 2. Abrasion 2 cm. x 1/2 cm. Over left ear over lateral border of pinna. 3. Abrasion 2 cm. x 1/2 cm. on left side face. 4. Bruise 5 cm. x 4 cm. on left shoulder. 5. Abrasion 19 cm. x 3 cm. on left forearm posterior surface. 6. Lacerated wound 3 cm. x 1 cm. x 0. 5 cm. on lateral surface of left thumb. 7. Lacerated wound 2 cm. x 1 cm. x 0. 5 cm. on left thumb near the base of nail. 8. Swelling ante mortem 5 cm. x 3 cm. on right hand with fracture of metacarpol bones. 9. Lacerated wound 2 cm. x 1 cm. x 0. 5 cm. on right thumb. 10. Lacerated wound 2 cm. x 1 cm. x 0. 5 cm. on little finger of right hand. 11. Bruise 51 cm. x 2 cm. on left side of chest-longitudinally placed. 12. Bruise 19 cm. x 2 cm. on left side of chest, transversely placed. 13. Bruise 13 cm. x 2 cm. on left side of chest. Transverse in direction. 14. Bruise 12 cm. x 2 cm. Obliquely placed left to right side of chest. 15. Bruise 17 cm. x 2 cm. x 2 cm. on left side of chest-longitudinally placed. 12. Bruise 19 cm. x 2 cm. on left side of chest, transversely placed. 13. Bruise 13 cm. x 2 cm. on left side of chest. Transverse in direction. 14. Bruise 12 cm. x 2 cm. Obliquely placed left to right side of chest. 15. Bruise 17 cm. x 2 cm. longitudinal on right side of chest. 16. Abrasion 3 cm. x 2 cm. on back - Centrally placed on lumbar region. 17. Bruise on left gluteal region and thigh, from above downwards. 18. Bruise 7 cm. x 2 cm. on left gluteal region posterior surface transversely placed. 19. Bruise 9 cm. x 2 cm. on left thigh posterior surface. 20. Bruise 6 cm. x 2 cm. on left thigh posterior surface. 21. Bruise 8 cm. x 2 cm. on left thigh post surface. 22. Bruise 9 cm. x 2 cm. on left thigh post surface. 23. Bruise 11 cm. x 2 cm. on left thigh anterior surface. 24. Bruise 11 cm. x 2 cm. on left thigh anterior surface. 25. Bruises on right gluteal region to thigh - from above downwards. 26. Bruise 6 cm. x 2 cm. on right gluteal region, - longitudinal in direction. 27. Bruise 5 cm. x 2 cm. on right gluteal region - longitudinal in direction. 28. Bruise 20 cm. x 2 cm. on right thing, posterior surface longitudinal in direction. 29. Bruise 6 cm. x 2 cm. on right thigh, posterior surface, transversely placed. 30. Bruise 5 cm. x 2 cm. on right thigh, transversely placed. 31. Bruise 4 cm. x 2 cm. on right thigh, transverse in direction. 32. Swelling on right leg upper half with deformity, fracture of tibia and fibula found. 33. Lacerated wound 1-1/2 cm. x 1/2 cm. x bone deep on right leg in the middle. Dr. Vadera has said that all the injures were caused by blunt weapon. According to him the 8th, 9th and 10th ribs of the deceased had fractured and there were fractures of right leg and abdomen near the lever. He has opined that because of excess flow of blood, there was syncope. According to him all the injuries cumulatively were sufficient in the ordinary course of nature to cause death. ( 8 ) THERE is absolutely no reason to disbelieve Dr. Vadera. He has opined that because of excess flow of blood, there was syncope. According to him all the injuries cumulatively were sufficient in the ordinary course of nature to cause death. ( 8 ) THERE is absolutely no reason to disbelieve Dr. Vadera. Nothing has appeared in his cross-examination as to render his testimony incredible. On the basis of this medical evidence, the learned Sessions Judge has rightly found that Kamal Singh had met homicidal death. ( 9 ) THE prosecution examined P. W. 7 Dan Singh, P. W. 11 Vana and P. W. 10 Hem Singh as eye-witnesses. The learned trial Court has not believed the testimony of P. W. 11 Vana. The central evidence consists of P. W. 7 Dan Singh and P. W. 10 Hem Singh. P. W. 7 Dan Singh has deposed that he and Kamal Singh were going together and as they reached in the field of Hanuman Jat, accused Khemla, who was standing under the jal tree, accompanied them and after proceeding for about 4-5 pawndas Khemla caught hold of Kamal Singh. He did not leave him even on his request. However, Kamal Singh got himself released but at that very moment accused Ganga came out from behind the jal tree having lathi in his hand and he started inflicting blows to Kamal Singh. He tried to intervene and in that process he also suffered one lathi blow. Ganga caused various injuries to the various parts of the body of Kamal Singh. Kamal Singh fell down, but as he got up and ran away towards well, both the accused Ganga and Khemla chased him and Ganga inflicted a lathi blow to the ribs of Kamal Singh. He implored the accused not to beat him (Kamal Singh) but they did not stop and told him that if he intervened he would also be beaten. The witness had then deposed that he ran towards the dhani of Jethmal Singh to inform him. In the cross-examination of this witness there is no suggestion that this witness had animus against the accused or that he in any manner was interested in the success of the case. The witness clearly deposes that Kamal Singh was not related tohim. ( 10 ) THERE is absolutely no reason to disbelieve the statement of Dan Singh. In the cross-examination of this witness there is no suggestion that this witness had animus against the accused or that he in any manner was interested in the success of the case. The witness clearly deposes that Kamal Singh was not related tohim. ( 10 ) THERE is absolutely no reason to disbelieve the statement of Dan Singh. His evidence cannot be seen with suspicion only on the ground that in his statement it has not come that he had told Jethmal Singh that he had also sustained injuries. Dan Singh had suffered one injury of insignificant nature and, therefore, it is possible that he might not have thought it worthwhile to complain about his injury. It has come in the statement of Jethmal Singh, P. W. 9 that Dana had told him that he had tried to intervene but the accused did not leave Kamal Singh. It is thus obvious that Dan Singh had told Jethmal Singh that he had intervened in the occurrence. The fact that he did not tell Jethmal Singh about his injury is not at all material and on this basis his testimony cannot be doubted. ( 11 ) OUR attention was invited to this contradiction appearing in the statements of Dan Singh and Hem Singh, that according to Dan Singh, only accused Ganga had inflicted blows whereas Hem Singh deposes that both the accused had given beatings to Kamal Singh. In our opinion, there is no such discrepancy in the statements of two eye witnesses. Hem Singh has also given clear statement that only accused Ganga had a lathi in his hand and accused Khemla had caught hold of the deceased. If we read whole statement of Hem Singh it becomes evident that Hem Singh has also deposed that only Ganga had inflicted lathi blows to Kamal Singh and Khemla had only caught hold of him. Thus, the testimony of Hem Singh and Dan Singh cannot be discarded on the basis of the discrepancy pointed out by Mr. Purohit. ( 12 ) THE case of Shaikh Nabab Shaikh Babu Musalman v. State of Maharashtra, 1993 Cri LJ 43 : ( AIR 1993 SC 169 ) cited by Mr. Purohit does not help the appellants. In that case, the two eye-witnesses were highly interested persons and the eye-witness account did not tally with the facts. Purohit. ( 12 ) THE case of Shaikh Nabab Shaikh Babu Musalman v. State of Maharashtra, 1993 Cri LJ 43 : ( AIR 1993 SC 169 ) cited by Mr. Purohit does not help the appellants. In that case, the two eye-witnesses were highly interested persons and the eye-witness account did not tally with the facts. The version given by the witnesses was found to be artificial. In the instant case we have found that Dan Singh is independent witness and he had no reason to falsely implicate the accused in the case. ( 13 ) APART from the direct evidence, there is dying declaration of the deceased on record which has been proved by Mool Singh, P. W. 1 and Jethmal Singh, P. W. 9. These two persons rushed to the spot on hearing that Kamal Singh had sustained injuries. Both of them have stated that when they reached the field where Kamal Singh was lying in injured condition he had told them that Ganga and Khemla had given beatings to him. It is true that Mool Singh is the brother and Jethmal Singh is the father of the deceased. But this is no ground to reject their testimony. It was natural that both these witnesses would reach the place of occurrence on hearing about the injuries of Kamal Singh. The evidence of dying declaration fully corroborates the direct evidence produced in the case. ( 14 ) IT has come in the statement of Dr. Vadera, P. W. 6 that the injuries of Kamal Singh appeared to have been caused 20 hours before his death. The post-mortem was held at 3 p. m. on 16-4-80. On these facts, it was contended that death must have occurred before 12 O Clock on 15-4-80. It may be noticed that Dr. Vadera has not deposed that the injuries could not be caused within 20 hours of the death. He has only given approximate duration of the injuries. There is clear direct evidence in the statements of P. W. 7 Dan Singh and P. W. 10 Hem Singh. By their testimony it is fully established that the accused had caused injuries in the evening of 15-4-80. On the basis of the approximate duration given by the medical officer it cannot be found that Kamal Singh had not sustained injuries in the evening of 15-4-80. By their testimony it is fully established that the accused had caused injuries in the evening of 15-4-80. On the basis of the approximate duration given by the medical officer it cannot be found that Kamal Singh had not sustained injuries in the evening of 15-4-80. ( 15 ) THE prosecution case cannot be doubted on this conduct of the accused that when the police went to arrest them they were found sleeping. It is common knowledge that people behave in different manner in similar circumstances. It depends upon ones nature as to how he takes up the things. It may be that having achieved their object both the accused were satisfied. There was nothing unnatural in their conduct when they were found asleep. ( 16 ) THE prosecution case also cannot be doubted on the ground that the I. O. did not prepare the inquest report. The inquest is held when the death is caused in suspicious circumstances. However, in the F. I. R it was clearly stated that Kamal Singh had suffered injuries at the hands of the accused. In our opinion, the no-preparation of inquest report is not fatal to the prosecution case. Of course, it is the duty of the police under Section. 174 Cr. P. C. to hold inquest and prepare inquest memo in all the cases of death in suspicious circumstances, but the accused is not entitled to derive benefit out of the mistake committed by the Investigating Officer particularly when memo Ex. P/8 indicating the condition of the body of Kamal Singh was prepared. ( 17 ) THE fact that foot prints of camel were not found when the I. O. inspected the site is not at all material, more so when the occurrence had taken place in the month of April. Generally, there are furious winds in the desert areas during those days and the foot marks might have disappeared. ( 18 ) THE police station was situated some 20 kms away from the place of occurrence. The FIR was lodged at 1. 30 a. m. on 16-4-80 i. e. within 6 hours. There was thus to delay in lodging the FIR. ( 19 ) ON a consideration of entire evidence and material on record, we agree with the trial Court that accused Khemla had caught hold of Kamal Singh and Ganga Singh had inflicted lathi blows to him. 30 a. m. on 16-4-80 i. e. within 6 hours. There was thus to delay in lodging the FIR. ( 19 ) ON a consideration of entire evidence and material on record, we agree with the trial Court that accused Khemla had caught hold of Kamal Singh and Ganga Singh had inflicted lathi blows to him. ( 20 ) IT has been established on record that both the accused were there under the jal tree. Khemla first accompanied Kamal Singh and Dan Singh who were going on foot and immediately thereafter he took Kamal Singh in his grip and at that very moment accused Ganga Singh came out and gave beatings to Kamal Singh. Not only this, Kamal Singh tried to run away but both the accused chased him and caught him and he was given beatings. These circumstances clearly indicate that both the accused had shared common intention to assault Kamal Singh. It is not material that Khemla was unarmed. ( 21 ) THE leading feature of Section 34 is the element of participation in action. In the instant case participation of Khemla is amply borne out. The actual assault and involvement therein is undoubtedly of central importance, but culpable liability may arise and be indicated with certain assurance because of preceding intervention as well as subsequent conduct of the person accused of an offence and claimed to be involved therein. It may be noticed that both the accused had axe to grind against Kamal Singh. The prosecution has proved the F. I. R. Ex. P-6 which was lodged by one Mag Singh against Kamal Singh, Jethmal Singh and others for having assaulted Aam Singh, on which a case under Sec. 307 IPC was registered against Kamal Singh. This incident took place some eight months prior to the date of occurrence. Accused Ganga happens to be the son of Aam Singh. It is thus obvious that he had a motive to assault Kamal Singh. Accused Ganga has admitted these facts in his statement under Sec. 313 Cr. P. C. Wherein he states that Kamal Singh had quarreled with his father and that a case was pending in the Court of Chief Judicial Magistrate. So, also Khemla states that there was dispute between him and Jethmal Singh, father of Kamal Singh, regarding goats. It is obvious that Khemla was also not on good terms with Jethmal Singhs family. P. C. Wherein he states that Kamal Singh had quarreled with his father and that a case was pending in the Court of Chief Judicial Magistrate. So, also Khemla states that there was dispute between him and Jethmal Singh, father of Kamal Singh, regarding goats. It is obvious that Khemla was also not on good terms with Jethmal Singhs family. Thus both the accused had a motive to assault Kamal Singh. ( 22 ) IN the case of Bhagwan Bux Singh v. The State of Uttar Pradesh, AIR 1978 SC 34 : (1978 Cri LJ 153) relied on by Mr. Purohit appellant No. 2 was acquitted on the ground that main witness P. W. 4 had not deposed that he had caught hold of the hands of the deceased for the purpose of aiding appellant No. 1. In the F. I. R. also it was not stated that appellant No. 2 had caught hold of the hands of the deceased. In these circumstances the Honble Apex Court did not convict appellant No. 2 with the aid of Section 34 IPC. In the instant case we have found that there is clear evidence on record that when accused Ganga inflicted lathi blows Khemla was holding Kamal Singh. ( 23 ) SO also in the case of Babu Singh v. State of Maharashtra, AIR 1980 SC 1269 : (1980 Cri LJ 928) accused could not be convicted with the aid of Section 34 IPC for the simple reason that his name did not find place in the FIR as assailant and there was no convincing evidence to hold that he had taken part in the occurrence. The case is clearly distinguishable. ( 24 ) IN the case of Ravata v. State of Rajasthan, 1984 Cr LR (Raj) 273 relied on by Mr. Purohit, there was nothing on record to show that the other accused had prior knowledge of the visit of the deceased to the house of c. In these circumstances it was held that there was no prior meeting of mind and no common intention also developed at the spur of moment. ( 25 ) THE contention of Mr. Purohit that the offence does not travel beyond Section 304 part II IPC as no injury was caused on vital parts of the body, cannot be accepted. As many as 33 injuries were caused to Kamal Singh. ( 25 ) THE contention of Mr. Purohit that the offence does not travel beyond Section 304 part II IPC as no injury was caused on vital parts of the body, cannot be accepted. As many as 33 injuries were caused to Kamal Singh. Out of them 6 were the lacerated wounds. Not only this, three ribs and right leg had also fractured and there was grievous injury in abdomen. Thus it is a case where merciless beating was given. The act of accused Ganga in causing such injuries clearly comes under clause thirdly of Sec. 300 IPC as the injuries cumulatively were sufficient in the ordinary course of nature to cause death. ( 26 ) IN the case of Anda v. State, AIR 1966 SC 148 : (1966 Cri LJ 171) also the deceased had not suffered even one injury on vital parts yet on the basis that he had suffered about 30 injuries and there were fractures of ulna, metacarpal, tibia and fibula bones the accused was convicted for murder. It was argued before the Apex Court that the offence committed was only culpable homicide not amounting to murder. Repelling the contention their Lordships observed that where legs and hands are smashed and numerous bruises and lacerated wounds are caused it is clear that the injuries intended to be caused were sufficient to cause his death in the ordinary course of nature, even if it cannot be said that his death was intended. In that case the conviction of the accused was upheld under Sec. 302 IPC. That authority applies on all fours to the instant case. This principle was reiterated by the Apex Court in the case of State of Andhra Pradesh v. R. Punnayya, 1976 SCC (Cr) 659 : (1977 Cri LJ 1) where the deceased had suffered some 19 injuries out of them 9 were of grievous nature. ( 27 ) THE case of Karam Singh v. State of Punjab, 1993 Cri LJ 3673 (SC) : (1993 AIR SCW 2870) relied on by Mr. Purohit does not help the appellant inasmuch as only two blows were caused to the deceased. Therefore the Apex Court held that the offence proved was one punishable under Section 304 Part-II IPC. In the instant case, it has been seen that the deceased had suffered as many as 33 injuries and there were multiple fractures. Purohit does not help the appellant inasmuch as only two blows were caused to the deceased. Therefore the Apex Court held that the offence proved was one punishable under Section 304 Part-II IPC. In the instant case, it has been seen that the deceased had suffered as many as 33 injuries and there were multiple fractures. ( 28 ) SIMILARLY in the case of Muse Khan v. State of Rajasthan, 1990 (1) RLW 156 cited by Mr. Purohit, the deceased had suffered only 14 injures and only three of them were lacerated wounds. The deceased had not died instantaneously. It was also noticed that prompt medical aid could not be made available to the deceased because time was wasted by the attendants in getting the report scribed. In the instant case it has been seen that Kamal Singh who was young man of 33 years had died instantaneously having suffered the multiple injuries. This authority is thus distinguishable. ( 29 ) SO also in the case of Sabal Singh v. State of Rajasthan, 1985 RLW 290, deceased had sustained only eight injuries. Six of them were minor and insignificant. In that case, it was also noticed that the medical officer could not say as to death was caused by which of the two injuries. The other injuries were not even cumulatively sufficient in the ordinary course of nature to cause death. It is in these circumstances that this Court held that offence proved was S. 304 Part-I IPC. ( 30 ) IN the case of Brij Lal v. State of Rajasthan, 1989 Cr LR (Raj) 229, deceased had suffered 29 injuries yet the accused were convicted under Sec. 304 Part-II IPC by the trial Court. This is Single Bench case. Accused had challenged their conviction. The State had not preferred appeal to secure conviction under Sec. 302 IPC. Obviously in that matter, this question was not required to be considered by this Court that offence under Sec. 302 IPC was made out or not. ( 31 ) IN the instant case, direct casual connection between the act of the accused and the death is established. The injuries were direct cause of the death. No secondary feature had supervened. In these circumstances the offence proved against accused Ganga is the offence of murder punishable under Sec. 302 IPC. ( 31 ) IN the instant case, direct casual connection between the act of the accused and the death is established. The injuries were direct cause of the death. No secondary feature had supervened. In these circumstances the offence proved against accused Ganga is the offence of murder punishable under Sec. 302 IPC. ( 32 ) THE next question to be considered is that whether appellant Ganga can be convicted under Sec. 302 IPC though charge under See. 302 IPC was not framed against him and only a charge under Sec. 302 read with Sec. 34 IPC was framed. Here we may read the charge :-The above charge indicates that accused was specifically informed that on 15-4-80 he had voluntarily caused hurts to Kamal Singh whereby he died. In the charge it was also stated that this act was done in furtherance of the common intention of Khemla. Obviously, it was clearly mentioned in the charge informing the accused that he was required to meet the charge that he had caused injuries to Kamal Singh causing his death. Thus, it cannot be said that prejudice has been caused to be accused when he was not separately charged for the offence under Sec. 302 IPC. ( 33 ) IN the case of Willie Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 : (1956 Cri LJ 291) this matter came up before their Lordships as to whether the accused who was not charged separately under Section 302 and charged only under Sec. 302 read with Sec. 34 IPC can be convicted for the substantive offence under Sec. 302 IPC. It was held by their Lordships that having regard to the nature of the charge framed the omission to frame a separate charge under S. 302 IPC was only a curable irregularity which in the absence of prejudice could not affect the legality of conviction under S. 302 IPC. It is profitable to reproduce the observations of their Lordships in paras 77 and 93 of the judgment which are to the following effect :- (77 ). "this conflict does not arise in the case before us where the offence charged against two brothers, William and Ronnie for the murder of Donald was under Section 302, read with Section 34 of the Indian Penal Code. Ronnie was acquitted. But William was found guilty and sentenced to transportation for life. "this conflict does not arise in the case before us where the offence charged against two brothers, William and Ronnie for the murder of Donald was under Section 302, read with Section 34 of the Indian Penal Code. Ronnie was acquitted. But William was found guilty and sentenced to transportation for life. As pointed out by Lord Sumner in his classic judgment in barendra Kumar v. Emperor, AIR 1925 PC 1 (M) : (26 Cri LJ 431), there is much difference in the scope and applicability of Sections 34 and 149 though they have some resemblance and are to some extent overlapping. The two Sections are again compared and contrasted in AIR 1954 SC 204 (J) : (1954 Cri LJ 580), Section 34 does not by itself create any offence, whereas it has been held that Section 149 does. In a charge under Section 34, there is active participation in the commission of the criminal act; under Section 149, the liability arises by reason of the membership of the unlawful assembly with a common object, and there may be no active participation, at all in the perpetration or commission of the crime. The overlapping arises in those cases where two or more persons commit a murder in furtherance of the common intention, but it is not possible to say which of them was responsible for the fatal injury, or whether any one injury by itself was responsible for the death. There may also be a case where it is known that out of the assailants one in particular was responsible for the fatal injury and the others are sought to bemade liable for the result owing to the common intention involved. But whereas in this case, the appellant has been individually charged with murder and there is proof that his hand caused the injury, the fact that his brother was also sought to be made liable owing to the existence of a common intention, is neither here nor there, so far as the legality of the conviction is concerned, as there has been no prejudice by way of failure of justice. . . . (93) The appellant was charged with murder and nothing short of it, although it was stated in the charge that the offence was committed by him in furtherance of common intention. . . . (93) The appellant was charged with murder and nothing short of it, although it was stated in the charge that the offence was committed by him in furtherance of common intention. If the evidence failed to prove that the offence committed by him was in furtherance of a common intention, it would be nonetheless his offence, namely, murder, if his act in law amounted to murder. The law does not require in such a case that a separate charge for murder should be framed, because the charge of murder was already on the record. " ( 34 ) SINCE the accused knew from the very beginning that he was required to meet charge that he had given beatings to Kamal Singh causing his death, it cannot be said that his case shall be prejudiced in the absence of separate charge under Sec. 302 IPC. That being so there is no legal impediment in convicting the accused appellant Ganga under Sec. 302 IPC. ( 35 ) NOW the important question that calls for our consideration is whether the conviction of Khemla u/s. 302 IPC with the aid of Sec. 34 IPC is sustainable. ( 36 ) IT was contended by Mr. Purohit that there was petty dispute between Khemla and the deceased and he could not intend to kill Kamal Singh. According to him, the common intention of the accused was only to give thrashing and therefore, Khemla can at best be convicted under Section 325 IPC. In support of his contention, he has cited the case of Dajya Moshya Bhil v. The State of Maharashtra. 1984 Cr LR (SC) 435 : (1984 Cri LJ 1728) ( 37 ) IN the case of Dajya Moshya Bhils two accused had gone with the main accused, who was having dhariya in his hand, but they were unarmed. They had pelted stones on the deceased. They were convicted only under Sec. 326 read with Sec. 34 IPC. In that case also, these circumstances existed that all the three accused had gone together to the place of occurrence, all the three accused had common motive to avenge the incident that had occurred earlier and, that when the victim tried to escape all the three had chased him. In that case also, these circumstances existed that all the three accused had gone together to the place of occurrence, all the three accused had common motive to avenge the incident that had occurred earlier and, that when the victim tried to escape all the three had chased him. The following observations of their Lordship deserve to be reproduced at page 1729 (of Cri LJ) :"it is admitted by the prosecution that at that time appellant No. 1 was armed with a dharya but appellants 2 and 3 were unarmed. It would be contrary to common sense to hold that appellants 2 and 3 accompanied appellant No. 1 with the avowed object of committing murder of Gunjarya yet came unarmed. Their intention by this very tell tale circumstance is contra-indicated. Let it be made clear here that in order to attract Section 34 it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of Sec. 34 is that each must share the intention of the other. Appellants 2 and 3 though they were in the company of the appellant No. 1 were shown to be unarmed. The High Court has overlooked this most important circumstance. " ( 38 ) THIS ruling applies on all fours to the case against Khemla. In the circumstances of the case, the minimum common intention that can be attributed to Khemla is one of causing grievous hurt with blunt object. He can therefore be convicted under Sec. 325 read with Sec. 34 IPC and not under Sec. 302/34 IPC. ( 39 ) CONSEQUENTLY, the conviction of appellant Ganga is altered from Section 302/34 IPC to Section 302 IPC maintaining the sentence awarded by the trial Court. Therefore, there is no merit in the appeal of Ganga which is hereby dismissed. ( 40 ) APPEAL of Khemla is partly allowed. He is acquitted of the offence under Sec. 302 read with Sec. 34 IPC. Instead he is convicted under Section 325 read with Sec. 34 IPC and sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs. 200/-, in default further R. I for one month. ( 41 ) APPELLANTS are on bail. Khemla has already undergone the sentence. Instead he is convicted under Section 325 read with Sec. 34 IPC and sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs. 200/-, in default further R. I for one month. ( 41 ) APPELLANTS are on bail. Khemla has already undergone the sentence. Accused Ganga is directed to surrender before the learned Sessions Judge within one month of this judgment failing which the Sessions Judge shall take steps for his arrest for the execution of the remaining sentence. Order accordingly.