JUDGEMENT - VISHNU SAHAI, J. :---The appellants aggrieved by the Judgment and Order dated 30-4-1984, passed by the Extra Additional Sessions Judge, Satara, in Sessions Case No. 72 of 1983, convicting and sentencing them to undergo imprisonment for life under section 302 r/w 34 I.P.C. and one years R.I. under section 324 r/w 34 I.P.C., have come up in appeal before us. Along with them one Chima Rama Fulaware (Original accused No. 3) (father of the appellants Gotya and Shiva and father-in law of appellant-Rama) was also tried but, he has been acquitted vide the impugned Judgment. A perusal of para 49 of the impugned Judgment, would show that the trial Judge had his doubts as to whether he shared the common intention to murder Anna, his own son. The acquittal of Chima Fulaware has become final as-much-as the State of Maharashtra has not preferred an appeal challenging the same under section 378(1) Cr.P.C. 2.Briefly stated the prosecution case runs as under :- The appellants Gotya and Shiva are real brothers inter-se, and their sister is married to the appellant-Rama. Chima Fulaware, the acquitted accused, is father of Gotya and Shiva and father-in-law of Rama. The deceased Anna and Savala, P.W. 8, are the sons of Chima from his first wife. The informant Gangubai, P.W. 10 is the wife of Anna and Malan P.W. 12 is the wife of Savala. All these persons, excepting appellant Rama, belong to village Vithakur-Mandve, in Taluka Kalamb, District Osmanabad. Rama belongs to village Akagaon-Sontal Taluka Shegaon. All these persons belong to 'Mati Vadar Community' and used to earn their livelihood by manual labour. They used to work in agricultural operations also in their spare time. The evidence is that from about 10 years, prior to the incident, the said persons were residing in Nalavadewadi in Targaon taluka in Koregaon. They were living in separate huts, which were contiguous. It is in evidence that initially all of them were jointly doing the work of levelling land but, on the eve of Gudipadva 1981, one Chima Gaikwad real brother of Gangubai, P.W. 10, came with his wife and children to Nalavadewadi. He and the deceased Anna took the contract of levelling land of one Langada Laxman of Nalavadewadi. This irked the appellants and the acquitted accused Chima Fulaware. It has also come in evidence that the appellants and Chima drove away Chima Gaikwad from Nalavadewadi. He and the deceased Anna took the contract of levelling land of one Langada Laxman of Nalavadewadi. This irked the appellants and the acquitted accused Chima Fulaware. It has also come in evidence that the appellants and Chima drove away Chima Gaikwad from Nalavadewadi. It is alleged that on 25-12-1981, the deceased Anna, Savala P.W. 8 and the accused persons purchased one pig. They killed the same and portions of the pork were divided between Anna, Savala, appellants and Chima. One share was reserved for consumption of male heads of the family and the said share was given to P.W. 8 Savala. It was decided that male members would first consume their common share of pork and then have meals with their families. It is said that Anna, his wife and children took meals at about 8 p.m. and the appellants and Chima after asking their wives to prepare the pork, went to Targaon for consuming liquor. At about 11 p.m. when they returned after consuming liquor, they saw that the deceased Anna working on the thrashing floor of P.W. 5 Mugutrao Nalavade, situated near their huts. They apprehended that as observed by the trial Judge in para 16 of the impugned Judgment, that Anna wanted to disassociate with them in work and wanted to work independently. The result was that the appellant Gotya, lost all sense of proportion; started abusing Anna, saying that he will have sexual intercourse with his wife. Anna left the threshing floor which was situated near his hut. He went in front of his hut and challenged the accused persons as to how they would execute their threat. This seems to have infuriated them. They went to their huts. Appellants Gotya and Shiva with axes, appellant Rama and the acquitted accused with sticks returned. Appellant-Gotya gave an axe blow on the head of Anna, who fell down as a consequence thereof. Thereafter, appellant Rama inflicted two stick blows on the chest of Anna and the acquitted accused Chima gave one stick blow to Anna. Savala came to the rescue of Anna and asked the accused persons not to assault Anna. and in order to protect Anna, fell down on his body. Thereupon, the appellant Shiva inflicted an axe blow on Savala's forehead and Rama and Chima assaulted Savala with sticks. Then, Malan intervened and raised her hands. Savala came to the rescue of Anna and asked the accused persons not to assault Anna. and in order to protect Anna, fell down on his body. Thereupon, the appellant Shiva inflicted an axe blow on Savala's forehead and Rama and Chima assaulted Savala with sticks. Then, Malan intervened and raised her hands. She implored the accused persons not to assault her husband and her' husband's brother. She also tried to cover her husband, Savala, P.W. 8. But, appellant Shiva inflicted an axe blow on her right arm. The appellant Rama gave stick blows on her right shoulder. Shiva gave a stick blow on her back. Gangubai P.W. 10, wife of Anna intervened and made the same request but, Rama inflicted a stick blow on her chest. The evidence is at the time of the incident, Mugutrao had come with a lantern from his threshing floor and one Ramrao Nalavade who had a cattle shed near the place of the incident and his servant Bhimarao Waghamode and one Jaggu Pawar, who were sleeping in the said cattle-shed arrived at the scene of the incident with torches. In the light of lantern and torch, the appellants and Chima were recognised. The said persons asked the appellants and Chima to stop assaulting and thereafter, Gotya dragged Anna and placed him at his hut. Thereafter, all the accused persons returned back to their respective huts. 3.Next morning at about 6 a.m. Anna was found to be dead. Thereafter, Gangubai went to Police Patil Shankarrao Patil, P.W. 7 and reported the matter to him. The Police Patil came to the place of the incident, kept a kotwal near the dead body; brought all the accused persons to Targaon and detained them in the Gram panchayat. Then he took Gangubai and others to Rehimatpur Police Station and there P.S.I. Desai at about 11.15 a.m. recorded complaint of Gangubai. P.S.I. Desai forwarded Gangubai's complaint to Koregaon Police Station for registration of the offence. 4.The injuries of Savala, Gangubai and Malan were medically examined on 26-12-1981 at Primary Health Centre by Dr. (Mrs.) Subhangi Sahastrabuddhe, P.W. 11. On the person of Gangubai, the doctor found 'tenderness and swelling over left breast overlapping 4th and 5th ribs, area of tenderness 5 c.m. x 4 c.m. On the person of Malanbai Fulaware, the doctor found the following injuries :- 1. Incised wound on rt. (Mrs.) Subhangi Sahastrabuddhe, P.W. 11. On the person of Gangubai, the doctor found 'tenderness and swelling over left breast overlapping 4th and 5th ribs, area of tenderness 5 c.m. x 4 c.m. On the person of Malanbai Fulaware, the doctor found the following injuries :- 1. Incised wound on rt. forearm on lateral aspect mid-way between wrist and elbow 6 c.m. x 2 c.m. x 2 c.m. serious discharge was present. There was no fresh bleeding. 2.C.L.W. on scalp, left frontal region 2 c.m. from hair line and 2 c.m. from mid-line 3 c.m. x 1 c.m. x muscle deep. No fresh bleeding. 3. Soft tissue swelling over medial 2/3rd of left clavicle and supra clavicular region with 2 abrasions over it; first linear abrasion on medial border of swelling (4 c.m. x 1 c.m. ) and second abrasion at the junction of middle 1/3rd and lateral 1/3rd of clavicle (2 c.m. x 1 c.m. ) 4. Abrasion over left upper arm lateral aspect 6 c.m. from shoulder joint 2 c.m. x 1 c.m. 5. Abrasion over left upper arm lateral aspect lower 1/3rd portion. In the opinion of the doctor, injury No. 1 was caused by a sharp edged object and Nos. 2 to 5 were caused by a blunt object. On the person of Savala, the doctor found the following injuries :- 1. incised wound 1½ c.m. x 1½ c.m. on forehead right frontal region, 2 c.m. parallel to hair line. 2. There was no fresh bleeding, but, serious discharge was present. 3. Tenderness over left temporal region. The skin was normal 4. Tenderness over left scapular region. The skin was normal. 5. Tenderness over rt. upper arm lower 1/3 lateral aspect with ecchymosis. In the opinion of the doctor, Injury No. 1 was attributable to a sharp object like an axe, and rest to sticks. The age of the injuries given out by the doctor was 24 hours. 5.Post mortem examination on the dead body of Anna was conducted on 27-12-1981 between 8.30 a.m. to 9.30 a.m. by Dr. Laxman Mane, P.W. 11. Dr. Mane found the following injuries on the corpse :- 1. Vertical, incised wound on the top of head centrally and just right side to midline, size 3" x 1/2" bone deep. 2. Swelling and blackness of right upper eye-lid. 3. Laxman Mane, P.W. 11. Dr. Mane found the following injuries on the corpse :- 1. Vertical, incised wound on the top of head centrally and just right side to midline, size 3" x 1/2" bone deep. 2. Swelling and blackness of right upper eye-lid. 3. Transverse contusion on lower part of right scapula size 3½" x ½" (bluish colour) 4. Vertical contusion on left scapula size 2½" x ½" (blue colour). 5. Small abrasion on left side of chest lower part at mid axillary line, size 1" x 1/4". " In the opinion of the doctor, injury No. 1 was caused by a sharp and heavy substance and remaining injuries by a hard and blunt substance. On internal examination, Dr. Mane found right parietal and frontal bones to be fractured and liver to be ruptured. In Dr. Mane's opinion, injuries of the deceased were sufficient to cause death in the ordinary course of nature. 6.The investigation of the case was conducted by P.S.I. Desai, P.W. 13. On 26-12-1981, after recording the F.I.R., he prepared the inquest panchanama Exhibit 16; forwarded the dead body of Anna for autopsy; prepared the panchanama of the scene of the incident Exhibit 17; prepared the yadis for the Medical Officer for examination of Savala, Gangubai and Malanbai; and arrested the accused persons. The accused persons produced the axes and sticks which he seized under a panchanama. Thereafter, on various dates, he interrogated the witnesses. On 12-1-1982, he sent the seized articles to the Chemical Analyst, Pune. The evidence is that on 12-2-1982, P.S.I. Dabhade took over the investigation from him and submitted the charge sheet. 7.The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellants and Chima were charged on the counts mentioned in para 1 of this Judgment. To the said charges, they pleaded not guilty and claimed to be tried. During the trial, the prosecution examined as many as 13 witnesses. Three of them, namely Savala, Gangubai and Malanbai P.Ws. 8, 10 and 12 respectively were examined as eye witnesses. In defence, the acquitted accused Chima examined himself as a witness. He stated that on the date of the incident at about 9 or 10 p.m. an altercation ensued between Anna and Savala. Anna brought an axe and Savala picked up a stick. Anna with an axe assaulted Savala on his forehead. In defence, the acquitted accused Chima examined himself as a witness. He stated that on the date of the incident at about 9 or 10 p.m. an altercation ensued between Anna and Savala. Anna brought an axe and Savala picked up a stick. Anna with an axe assaulted Savala on his forehead. Savala, with a stick assaulted Anna. At that time, Savala's son Maruti arrived and inflicted a stick blow on Anna's head and gave two more stick blows to Anna. We may straight away mention, that very rightly, the trial Judge rejected the evidence of Chima. The said statement of Chima does not explain the incised wounds suffered by Anna. It neither explains the injuries sustained by Gangubai and Savala. 8.The trial Judge believed the evidence of the three injured eye witnesses and convicted and sentenced the appellants in the manner mentioned in para 1. He acquitted co-accused Chima and his acquittal has not been challenged by the State of Maharashtra. 9.We have heard Ms Shirley Mazerello for the appellants and Mr. S.R. Borulkar, Additional Public Prosecutor for the State of Maharashtra-Respondent. We have perused the depositions of the prosecution witnesses; the statement of the appellants recorded under section 313 Cr.P.C. , evidence of D.W. 1 Chima; and the impugned Judgment. After giving our anxious consideration to the matter, we are of the considered opinion that the convictions and sentences of appellants Gotya and Rama call for no interference and their appeal deserves to be dismissed. We however, feel that appeal of appellant Shiva deserves to be partly allowed. In our Judgment, the said appellant is not guilty of an offence punishable under section 302 r/w 34 I.P.C. He is guilty instead of one under section 326 r/w 34 I.P.C. 10.The first question is whether the prosecution has proved beyond all reasonable doubt the involvement of the appellants in the incident. Our answer to it is in the affirmative. In our Judgment, the appellants' participation in the incident is clinched by the evidence of the three injured witnesses. In para 2, we have set out in great detail the prosecution story and we do not wish to reproduce it verbatim. Our answer to it is in the affirmative. In our Judgment, the appellants' participation in the incident is clinched by the evidence of the three injured witnesses. In para 2, we have set out in great detail the prosecution story and we do not wish to reproduce it verbatim. In short, as it emerges from the testimony of the three injured witnesses it is that on the date and time of the incident, when the appellants and Chima returned after consuming liquor at Targaon, they found Anna talking with Mugutrao at the threshing floor situate near Anna's hut. This irked them. The appellant Gotya lost all sense of proportion and stated that he would have sexual intercourse with Anna's wife. Anna replied that he would see as to how this happens. On this, the appellants and Chima went to their huts. From there, appellants Gotya and Shiva with an axe, Rama with a stick and Chima also with a stick came. Gotya gave an axe blow on the head of Anna. He fell down as a consequence thereof. Thereafter, Rama inflicted two stick blows on his chest. Savala ran to the rescue of his brother Anna and implored the appellants and Chima not to assault Anna. He threw himself on the body of Anna. Thereupon, he was assaulted by Shiva with axe on his forehead, Rama and Chima also assaulted him with sticks. Malanbai intervened and requested the appellants and Chima not to assault her husband Savala and Anna. She tried to cover her husband but, Shiva inflicted an axe blow on her right arm; Rama and Chima also inflicted a stick blow on her. Finally, Gangubai P.W. 10 Anna's wife intervened and made the same request, whereupon appellant Rama inflicted a stick blow on her chest. This incident was seen in the light of lantern and torches. 11.We have gone through the testimony of the three eye witnesses and we find that the same inspires implicit confidence. The manner of assault as deposed to by them, is corroborated by the medical evidence. In paras 4 and 5 of our Judgment, we have reproduced extensively the injuries sustained by the three injured and those by the deceased Anna. Their perusal shows that the manner in which the three eye witnesses allege they were caused is correct. The manner of assault as deposed to by them, is corroborated by the medical evidence. In paras 4 and 5 of our Judgment, we have reproduced extensively the injuries sustained by the three injured and those by the deceased Anna. Their perusal shows that the manner in which the three eye witnesses allege they were caused is correct. The circumstance that ocular account is corroborated by the medical evidence goes miles and miles to show that it is credible. 12.In our view, unless the appellants and Chima had assaulted Anna and the injured three eye-witnesses, the latter would not have falsely implicated them. We would do well to bear in mind that Savala was the step-brother of the appellant Gotya and Shiva and the step-brother-in-law of the appellant Rama. We would also do well to bear in mind that Malan, P.W. 12 was Savals's wife and Gangubai P.W. 10 was Anna's wife; Anna being the real brother of appellants Gotya and Shiva. We find it extremely difficult to believe that in view of such a close relationship, the said eye witnesses would have falsely implicated the appellants. 13.Assurance is lent to the ocular account furnished by the three eye-witnesses by the circumstance that the Investigating Officer found blood on the place of the incident. This is evident from a perusal of the spot panchanama (Exhibit 17) which was prepared on the next day of the incident i.e. on 26-12-1981 between 4 p.m. and 5 p.m. 14.All the three eye-witnesses must have had no difficulty in recognising the appellants and Chima. We say this for two reasons :- Firstly the evidence is that while the assault was in progress, some persons came with sources of light. This has been stated by all the three eye-witnesses. Savala P.W. 8, and Malan P.W. 2 stated that Bhiku came on the place of the incident with torch. Gangubai P.W. 10 stated that Mugutrao arrived at the place of the incident with a lantern and Bhikoba with a torch. In our view, the eye witnesses would have recognised the appellants and Chima in the light of torch and lantern. We have no reason to disbelieve these witnesses when they depose about these sources of light. Actually, in a case of the present type, where the victims were very closely related to the appellants and Chima, no light was actually necessary. We have no reason to disbelieve these witnesses when they depose about these sources of light. Actually, in a case of the present type, where the victims were very closely related to the appellants and Chima, no light was actually necessary. It is well-settled that known people can be recognised by their gait, timbre of voice etc. There is no need to refer to any authority for this but, those who have a fetish for one, would find this proposition culled out in para 6 of the Judgment of the Supreme Court reported in (Kirpal Singh v. State of U.P.)1, A.I.R. 1965 S.C. 712. 15.Ms. Shirley Mazerello learned Counsel for the appellants assailed the testimony of the three eye witnesses on the ground that there are inter se major contradictions in their evidence. This submission was also canvassed before the learned trial Judge and has been repelled by him for very plausible reasons contained in para 29 to 32 of the impugned Judgment. We have also examined the contradictions pointed out by Ms Mazerello and we feel that they only relate to the fringes of the prosecution case and do not effect its core or meat. It is well-settled that contradictions which only militate against the substratum of the prosecution case are material. This is doubly the position in a case where the evidence is in the form of three injured witnesses who in our Judgment would not have gone to the extent of foisting a false accusation on a murder charge against the appellants and Chima. 16.It is true that the trial Judge entertained some doubts about motive. However, it should be borne in mind that motive relegates into background where there is cogent and unimpecheable ocular account. The same is certainly here. Hence, in our view, absence of motive would not come to the rescue of the appellants. 17.In our view, the learned trial Judge was wholly justified in finding that participation of the appellants in the incident wherein Anna was killed, Savala, Malan and Gangubai were injured, was sufficiently proved. 18.The question which survives is whether the trial Judge was justified in convicting the three appellants for an offence under section 302 r/w 34 I.P.C. Whereas, Mr. Borulkar, A.P.P. strenuously urged that he was. Ms Shirley Mazerello equally emphatically contended that he was not. 18.The question which survives is whether the trial Judge was justified in convicting the three appellants for an offence under section 302 r/w 34 I.P.C. Whereas, Mr. Borulkar, A.P.P. strenuously urged that he was. Ms Shirley Mazerello equally emphatically contended that he was not. Section 34 I.P.C. reads thus :- Section 34: "Acts done by several persons in furtherance of comon intention 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. " A perusal of the said section would show that before it can be invoked, it has to be established :- (a) that a criminal act was done by persons more than one; (b) the said act was done by them in furtherance of their common intention. If (a) and (b) co-exist, then the consequence would be that all such persons who committed that criminal Act, would be liable for it in the same manner as if the said Act was done by him alone. 19.The question of common intention or its extent is often a very delicate and thorny one. It is basically a question of fact and has to be decided on the facts of each case. 19.The question of common intention or its extent is often a very delicate and thorny one. It is basically a question of fact and has to be decided on the facts of each case. To arrive at the conclusion as to what is the common intention or the extent of common intention in a given case a variety of circumstances are taken into consideration by the courts, such as :- (i) the motive for assault; (ii) whether the deceased is the original target of assault or an intervenor; (iii) the weapons used; (iv) the number of injuries inflicted; (v) the parts of body on which the injuries are inflicted; and (vi) whether the person attacked was done to death on the spot or died later on; 19A.In a Division Bench decision of this Court to which one of us (Vishnu Sahai, J.) was a party, rendered on 26th July, 1995, in Criminal Appeal No. 699 of 1993, (Dashrath Mahadeo Borate and others v. State)2, and Criminal Appeal No. 12 of 1994 (Machindra Dada Borate and others v. State)3, this Court after setting forth the provisions contained in section 34 I.P.C. observed in paragraph 24 as follows :- "An analysis of section 34 I.P.C. would make it evident that not all the criminal acts conjointly committed by persons would fall within the ambit of this section but, only those which were committed in furtherance of the common intention of all, would come within the mischief of this section. In other words, if an act is committed, in excess of the common intention, all persons, participating in the criminal act. would not be liable. Only that accused person whose act has travelled, beyond the stipulated common intention would be liable for his individual act. We wish to emphasise that persons participating conjointly in criminal acts, may have community of intention only up to certain point and beyond that, they may differ. For instance, the community of intention may be to cause grievous hurt, and if one of the persons exceeds this intention and commits murder, then all would not be liable for murder; only the person exceeding the common intention and committing the murder, would be liable for it." 20.So far as the appellant Gotya and Rama are concerned, we have no difficulty in finding that they committed murder of Anna in furtherance of their common intention. We say this for the following reasons :- (a) During the course of the altercation between Gotya and Anna, Gotya and Rama along with Shiva and Chima went to their huts and came back with weapons; Gotya and Shiva with axes, Rama and Chima with sticks ; (b) First Gotya inflicted an axe blow on the head of Anna and thereafter when he fell down Rama inflicted two stick blows on the chest of Anna; and (c) Gotya and Rama along with Shiva and Chima ran away from the place of the incident after the assault on Anna and the three injured was over. 20A.In our Judgment, circumstances (a) to (c) unequivocally establish that common intention on the spot developed between Gotya and Rama to commit murder of Anna. 21.We however, feel that appellant Shiva did not share the common intention with respect to Anna's murder. It is true that along with Chima, Gotya and Rama, he also went to his hut, and got an axe. However, the evidence is that he did not assault the deceased with an axe. It is true that he assaulted Savala P.W. 8 who came to the rescue of the deceased and fell on the body of the deceased with the axe. It is also true that he assaulted Malan with an axe but, the evidence of Malan is that she threw herself on her husband and prevented him from being attacked. In other words the circumstance of Shiva assaulting Malan with an axe would not be a pointer to his sharing the common intention with respect to Anna's murder. So far as Gangubai is concerned, her evidence is clearly to the effect that she was only assaulted by the appellant Rama. 22.Mr. Borulkar, learned Additional Public Prosecutor strenuously urged that as Savala tried to rescue Anna from being assaulted and threw himself on Anna's body to prevent him from being assaulted and the appellant Shiva assaulted him with an axe, clearly indicates that Shiva shared the common intention along with Gotya and Rama in respect of the murder of the deceased Anna. We have given our anxious consideration to the said submission of Mr. Borulkar. We regret that we do not find any merit in it. In this context, it would be pertinent to refer to the evidence of Malanbai, P.W. 12; own wife of Savala. We have given our anxious consideration to the said submission of Mr. Borulkar. We regret that we do not find any merit in it. In this context, it would be pertinent to refer to the evidence of Malanbai, P.W. 12; own wife of Savala. Malanbai in her examination-in-chief stated that after Gotya and Rama had assaulted the deceased with an axe and stick respectively, her husband Savala came running and was saying that his brother is dead. If in such a situation, the appellant Shiva being carried away by the sentence of Savala that Anna was dead, and assaulted Savala, the said assault, in our Judgment, cannot be construed as a pointer to appellant Shiva sharing common intention with respect to the murder of the deceased. Mr. Borulkar, urged that the evidence of the other two injured witnesses showed that Anna was not dead. What he seems to have overlooked is that it is not the case of the prosecution either that these two injured witnesses were shouting that Anna was still alive. How could Shiva know that he was alive. If there is a possibility, that under a bona fide belief, that Anna was dead, appellant Shiva proceeded to assault Savala, who threw himself on Anna, it cannot be said that he shared the common intention in respect of Anna's murder. It has to be remembered that in such a situation, the benefit of doubt has to go to the appellant Shiva. In our view, the circumstance that Shiva assaulted Savala cannot be taken into consideration as an incriminating circumstance for inferring that Shiva shared the common intention in respect of Anna's murder. 23.In other words, if the circumstance that Shiva assaulted Savala when he was trying to save his brother Anna is excluded, the prosecution is left with two circumstances to show that Shiva shared the common intention in respect of Anna's murder. They are :- (a) When the altercation between Gotya and Anna was going on, Shiva along with Gotya, Rama and Chima went to his hut and brought an axe; and (b) that after the assault was over Shiva ran away along with Gotya, Rama and Chima. They are :- (a) When the altercation between Gotya and Anna was going on, Shiva along with Gotya, Rama and Chima went to his hut and brought an axe; and (b) that after the assault was over Shiva ran away along with Gotya, Rama and Chima. 23A.The Judicial Committee of the Privy Council in the well-known case of (Mahbub Shah, appellant v. Emperor)4, reported in A.I.R. 1945 Privy Council 118, has observed thus :- "the inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case." The aforesaid observations of the Privy Council were approved and relied upon by the Apex Court in para 34 of its decision reported in A.I.R. 1955 S.C. page 216 (Pandurang and ors. v. State of Hyderabad)5. In the context as to when section 34 can be invoked, in the same paragraph, Their Lordships have quoted with approval the following passage from Sarkar's Evidence, 8th Edition :- "..........The incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis." 23B.We are in respectful agreement with the said observations of the Judicial Committee and the passage quoted from Sarkar's Evidence, 8th Edition quoted with approval in A.I.R. 1955 S.C. page 216, supra. In our Judgment, on the strength of the circumstances (a) and (b) above, it cannot be said with certainty that the appellant Shiva shared the common intention with others to commit the murder of Anna. 24.Mr. Borulkar, A.P.P., placed reliance on three decisions of the Supreme Court to bring home his submission that an offence under section 302 r/w 34 I.P.C. is made out against Shiva. They are :--- (I) A.I.R. 1994 Supreme Court 461 (Joginder Singh. appellant v. State of Haryana, respondent)6. (II) A.I.R. 1993 Supreme Court, 1899 (Ch. Pulla Reddy ors. Appellants v. State of Andhra Pradesh, respondent)7. (III) A.I.R. 1976 Supreme Court 2027(Ramaswami Ayyangar ors, appellants v. State of Tamil Nadu, respondent)8. We now, propose considering the said decisions :- 25.Mr. Borulkar, cited A.I.R. 1994 Supreme Court, 461 supra, to show that if persons go together and bring weapons, this is an index of their sharing a common intention to commit murder. We have perused the said decision. We now, propose considering the said decisions :- 25.Mr. Borulkar, cited A.I.R. 1994 Supreme Court, 461 supra, to show that if persons go together and bring weapons, this is an index of their sharing a common intention to commit murder. We have perused the said decision. Its perusal shows that this was only one of the circumstance on the basis of which, the Apex Court came to the conclusion that the appellant had acted in furtherance of common intention to commit murder. The main circumstance which weighed with the Apex Court was that all the accused persons who were armed with weapons like iron pipes, lathis, kirpans, and sasuris, assaulted the deceased. In our case, there is no allegation that the appellant Shiva assaulted the deceased with an axe. Consequently, the said decision is distinguishable. 26.We now take up the decision reported in A.I.R. 1993 Supreme Court, 1899. It is true that from a perusal of para 10 of the decision, it appears that P. Reddy (accused No. 2) had not stabbed the deceased with a knife but, however the Apex Court felt that he shared the common intention to commit murder of the deceased on account of the following circumstances which are summarised in para 10 :- (a) It is the consistent case of the prosecution that accused No. 1 who had stabbed the deceased along with said Reddy (accused No. 2) had administered threats in the evening to the deceased and his wife when they had gone to reprimand them for assault on P.W. 8. Thus, there was immediate cause and provocation for the assault on the deceased in pursuance of the threats given earlier. (b) Accused No. 2 was standing towards the head of the cot where on the deceased was lying, armed with a knife and it was at that time, the accused No. 1 stabbed the deceased twice on his chest with a knife; and (c) Thereafter, accused No. 1 and accused No. 2 left. In our view, the facts of this case are also distinguishable from the facts of our case. There is no evidence that when Gotya and Rama were assaulting Anna, Shiva with an axe was standing on Ann's head. In our view, the facts of this case are also distinguishable from the facts of our case. There is no evidence that when Gotya and Rama were assaulting Anna, Shiva with an axe was standing on Ann's head. As said earlier, in our case the two incriminating circumstances are :- (a) Shiva along with Gotya, Rama and Chima had gone to his hut and all of them had brought weapons and; (b) After assaulting the victims, all ran away. 27.We now come to the third authority viz. A.I.R. 1976 Supreme Court, 2027. From the said authority, Mr. Borulkar, Additional Public Prosecutor has heavily relied on para 12. He has urged that on the basis of the observations contained in that para, an actual assault by an accused either on the deceased or witnesses is not necessary for invoking section 34 I.P.C. We are in respectful agreement with the ratio laid down by the Apex Court in the said case. 27A.However, we would like to emphasise that the question of common intention is a question of fact. Before use of section 34 I.P.C., can be invoked, in a given case, it has to be established that the criminal act committed by several persons was committed by them in furtherance of common intention of all. We have also to bear in mind the warning given by the Judicial Committee of the Privy Council in A.I.R. 1945 Privy Council, 118 supra and the passage from Sarkar's Evidence quoted with approval in A.I.R. 1955 S.C. page 216, to which we have referred earlier. In our view, solely on the two circumstances found by us, it cannot be necessarily concluded that the appellant Shiva shared the common intention with Gotya and Rama with respect to the murder of the deceased. 28.The next question which arises is as to what is the quantum of the common intention which can be attributed to the appellant Shiva in respect of the assault on the deceased. 29.In our view, on the facts emerging from the evidence in this case the common intention was to cause grievous hurt to Anna, but, when Gotya and Rama also assaulted him, the two of them developed on the spot the common intention to murder Anna. 29.In our view, on the facts emerging from the evidence in this case the common intention was to cause grievous hurt to Anna, but, when Gotya and Rama also assaulted him, the two of them developed on the spot the common intention to murder Anna. Hence, as observed by us in paragraphs 20 and 20A, the two of them would be liable for the murder of the deceased under section 302 r/w 34 I.P.C. 30.In our Judgment, it can be safely inferred that the common intention was to at least cause grievous hurt to the deceased. The facts which we have accepted are that when the altercation was going on, between appellant Gotya and Anna, Shiva along with Gotya, Rama and Chima went to the hut and all four of them came armed with weapons; Gotya and Shiva with axes, Rama and Chima with sticks. After the incident, he along with them ran away. On these facts, in our Judgment, it would be hazardous to presume that appellant Shiva shared with appellants Gotya and Rama the common intention to murder the deceased Anna. However, in our view, it would be reasonable to infer that he knew that grievous hurt would be caused to the deceased. We are reinforced by the decision of the Apex Court reported in 1975 Cr.Law Journal, page 249 (Ram Anjore and others, appellants v. The State of Uttar Pradesh, respondent)9. In para 21 of the said Judgment, Their Lordships of the Apex Court observed that :- "... When the members of the unlawful assembly were armed with lathis and spear the common object of which was to assault Ram Palat and Vishwanath the common object may not be to murder Vishwanath, the members of the assembly must have known that at least grievous hurt with a sharp cutting weapon was likely to be caused by any member of the assembly in prosecution of the common object." In our view, when appellant Shiva joined appellants Gotya and Rama, all three of them being armed, it cannot be said with certainty that he knew that Gotya and Rama would cause fatal injuries to Anna but, it would be reasonable to infer that he knew that atleast grievous hurt would be caused to Anna. Our view is also reinforced by the decision of the Apex Court reported in A.I.R. 1983 S.C. 680 (Rana Pratap and ors. Our view is also reinforced by the decision of the Apex Court reported in A.I.R. 1983 S.C. 680 (Rana Pratap and ors. v. State of Haryana)10, In that case, two of the appellants viz. Rana Pratap and Sat Pal caught hold of the deceased and one of the appellants viz. Manmohan inflicted stab wounds on the deceased. In paragraph 11 the Apex Court observed thus, : "It is one of those border line cases where one may with equal justification infer that the common intention was to commit murder or to cause grievous injury. But the benefit of any such doubt must go to the accused. In the circumstances, we conclude but not without hesitation, that the common intention of the accused has not been established, beyond reasonable doubt, to be to cause the death of the deceased. But it certainly was to cause grievous injuries to the deceased. The conviction of Rana Pratap and Sat Pal under section 302 read with section 34 and the sentence of life imprisonment are therefore, set aside and instead they are convicted under section 326 read with section 34, and sentenced to suffer rigorous imprisonment for a period of five years each. So far as Manmohan in concerned, the three stab injuries inflicted by him are sufficient in the ordinary course of nature to cause death. His conviction and sentence are confirmed." 31.Pursuant to the above discussion, we find that appellants Gotya and Rama have been rightly convicted by the trial Court for offences under sections 302 r/w 34 I.P.C. and 324 r/w 34 I.P.C. Since they have been awarded the lessor of the two sentences, viz. imprisonment for life under section 302 read with 34 I.P.C., there can be no question of even reducing their sentence on that count. We also do not find their sentence under section 324 r/w 34 I.P.C. to be excessive. We however, find that the conviction of the appellant Shiva under section 302 r/w 34 I.P.C. is unsustainable. In our view, he deserves the benefit of doubt on that count. We feel that in place of an offence under section 302 r/w 34 I.P.C., one under section 326 r/w 34 I.P.C. is made out against him. We however, feel that his conviction under section 324 r/w 34 I.P.C. has been rightly recorded and his sentence on that count does not call for our interference. We feel that in place of an offence under section 302 r/w 34 I.P.C., one under section 326 r/w 34 I.P.C. is made out against him. We however, feel that his conviction under section 324 r/w 34 I.P.C. has been rightly recorded and his sentence on that count does not call for our interference. 32.The question is as what should be the quantum of sentence which should be awarded to appellant Shiva Chima Fulware for an offence under section 326 r/w 34 I.P.C. After giving our anxious consideration to the over all circumstances, we feel that the ends of justice would be squarely satisfied if he is awarded a sentence of five years R.I. thereunder. 33.In the result, this appeal is partly allowed and partly dismissed. It is dismissed in-as-much as we confirm the convictions and sentences of the appellants Gotya alias Savala Chima Fulaware and Rama Savala Khavale., for offences under sections 302 r/w 34 I.P.C. and 324 r/w 34 I.P.C. and that of appellant Shiva for the offence under section 324 r/w 34 I.P.C. It is allowed in-as-much as we set aside the conviction and sentence of life imprisonment, awarded to the appellant Shiva for the offence under section 302 r/w 34 I.P.C. Instead we convict him for an offence under section 326 r/w 34 I.P.C. and sentence him to go undergo five years R.I. His sentences under sections 326 r/w 34 I.P.C. and 324 r/w 34 I.P.C. shall run concurrently. Appellants Gotya @ Savala Chima Fulaware. Shiva Chima Fulaware and Rama Savala Khavale are on bail. They shall be taken into custody forthwith to serve out their sentences. Before parting with this Judgment, we would like to record our unqualified appreciation for the enormous assistance rendered to us by Mr. S.R. Borulkar. Additional Public Prosecutor in the disposal of this appeal. He has cited a plethora of cases before us. In case an application for a certified copy of this Judgment is made, the same shall be issued on an expedited basis. Appeal partly allowed. *****