JUDGMENT Vishnu Sahai, J. - Through this appeal, the appellants have challenged the judgment and order dated 18-2-1995 passed by the Additional Sessions Judge. Nasik, in Sessions Case No. 155 of 1984, convicting and sentencing them in the manner stated hereinafter: (i) Under section 302 r/w 34 I.P.C. to suffer rigorous imprisonment-for life; (ii) Under section 451 r/w 34 IPC to one year R.I. and to pay a fine of Rs. 200/ - in default to undergo RI. for 4 months; and (iii) Under Section 337 r/w 34 I.P.C. to one year RI. and to pay a fine of Rs.200/ - in default to undergo 4 months RI. The substantive sentences of the appellants were ordered to run concurrently. By the same judgment, the trial Judge was pleased to acquit the co-accused Ramu Nathu Mulane and Vithal Namdeo Waghsare. Their acquittal has not been impugned by the State of Maharashtra through an appeal under Section 378(1) Cr. P.C. 2. In short, the prosecution case runs as under: The appellants and the deceased Sarubai lived in contiguous houses in village. Pimpri, police station Trimbak, District Nasik. On 17-7-1994, at about 5.30/6.00 p.m. the appellants along with the acquitted accused Ramu Muiane and Vithal Waghsare came to the house of the deceased Sarubai. At that time, she along with her son Baqu Waghsare and some others was inside the house. On entering the house they said that Sarubai was a witch and professed that they would kill her. So saying the appellants caught hold of her dragged her outside the house and hereafter along with Ramu Mulane and Vithal Waghasare started inflicting blows with kicks and fists on her. Babu Waghsare implored the appellants and others not to beat Sarubai. Thereupon, Ramu Muiane hurled a stone on his head resulting in his sustaining a bleeding injury. After that they started throwing stones at his house. Thereafter, the appellants and others locked Babu Waghasare and his family members inside the house. After sometime when they came out they found that Sarubai had fallen on the road and was unconscious. Thereafter, they brought Sarubai inside the house. According to the prosecution, Rangnath PW 1, son of Babu Waghsare had reached the place of the incident, while Sarubai was being assaulted and had seen the incident. Rangnath went and contacted his relation Ratan Ghule PW 3. Thereafter, they brought Sarubai inside the house. According to the prosecution, Rangnath PW 1, son of Babu Waghsare had reached the place of the incident, while Sarubai was being assaulted and had seen the incident. Rangnath went and contacted his relation Ratan Ghule PW 3. Rangnath along with Ratan Ghule came to his house and found that the appellants. Ramu Mulane and Vithal Waghasare were hurling stones at his house. 3. Evidence is that Rangnath along with Babu Waghasare, Ratan Ghule and others proceeded to police Station Trimbak, which they reached at about 1 a.m. on 18-7-1994. At the said police station, Rangnath lodged his F.I.R., which was recorded by ASI Madhukar Jadhav PW 7. On its basis, ASI Madhukar Jadhav registered C.R. No. 208 of 1984 under section 323/504/506 I.P.C. 4. Since Babu Waghasare was having a bleeding injury on the head, ASI Jadhav sent him for medical examination to Primary Health Centre Trimbak where his injuries were examined the same morning at 9.20 a.m. by Dr. Gulab Sonavane PW 8. Dr. Sonavane found that he had suffered a swelling on the right side of frontal region. 2 cm x 3 cm which was accompanied by tenderness, caused within 24 hours by a hard object like a stone. Evidence is that at about 5 a.m. on 18-7 -1984, Rangnath along with some others proceeded for his village. On the way from police patil, he learnt that Sarubai had succumbed to her injuries. Consequently he proceeded for police station Trimbak where he gave the said information at about 11.30 a.m. On its basis, ASI Jadhav converted the case into one under section 302 I.P.C. 5. It would be pertinent to mention that appellant Shankar Waghasare had also received injuries. Evidence of ASI Jadhav PW 7 is that on 17-7-1984, at about 10.45 p.m. he came at the police station. At that time, he had a bleeding injury on his head and was not able to talk properly. He reported that Rangnath had beaten him. Consequently, ASI Jadhav made an entry in the station diary (Entry no. 32) and sent him to Trimbak dispensary for medical examination. Injuries of appellant Shankar Waghasare were examined at Trimbak dispensary by Dr. Gulab Sonavane PW 8 same day at 10.50 p.m. Dr. Sonavane found that, he had suffered one incised wound 6" x ¼" x bone deep on left parietal region. 6. 32) and sent him to Trimbak dispensary for medical examination. Injuries of appellant Shankar Waghasare were examined at Trimbak dispensary by Dr. Gulab Sonavane PW 8 same day at 10.50 p.m. Dr. Sonavane found that, he had suffered one incised wound 6" x ¼" x bone deep on left parietal region. 6. The autopsy on the corpse of the deceased Sarubai was conducted on 19-7-1984 between 5.20 p.m. to 6.20 p.m. by Dr. Kalidas Patil PW 6. Dr. Patil found the following ante-mortem injuries on the corpse: 1. Contusion 1-1/2" x 1" over rt. shoulder area lateral aspect dark brownish in colour. 2. Contusion 2" x 1" over left side of lumbar area blue brownish in colour. 3. Abrasion 1" x ½" over left elbow joint lateral aspect. 4. Contusion 3" x ½" over left side of chest in precordial area. 5. Abrasion 1" x ¼" over left calf muscle below left knee joint. 6. Fracture of 5th, 6th and 7th rib on left side of chest. Dr. Patil also found rupture of lung on left side. In his opinion, the probable cause of death was shock and haemorrhage due to rupture of lung on account of, multiple fractures of ribs on the left side. He also opined that the ante-mortem injury no. 6 was sufficient in the ordinary course of nature to cause death of the, deceased. 7. The investigation was done in the usual manner by ASI Madhukar Jadhav PW 7 who on completing the same submitted a charge sheet against the appellants and the acquitted accused. The case, was committed to the court of Sessions in the usual manner. These charges against the appellants were framed on a number of counts, including section 302r /w 34 I.P.C. They pleaded not guilty and claimed to be tried. During trial, in all, the prosecution examined eight witnesses. In defence, five witnesses were examined in order to substantiate the defence version of the incident which was that on 17-7-1984, at about 7 p.m. Babu Waghasare PW 2 and Rangnath Waghasare PW I, the latter armed with a scythe, came to the house of the appellant Shankar. They told Shankar that they wanted back the land, which they had sold to him. On this, there was an altercation between them and thereafter, Rangnath inflicted a scythe blow on the head of Shankar. They told Shankar that they wanted back the land, which they had sold to him. On this, there was an altercation between them and thereafter, Rangnath inflicted a scythe blow on the head of Shankar. Thereafter, Babu and Shankar shouted that Sarubai should be killed so that the appellants suffer a sentence of 25 years. Thereafter, they felled down Sambai and Rangnath inflicted two stick blows on her. After assessing the evidence on record the learned trial Judge disbelieved the defence version of the incident, He also entertained doubts about the participation of the accused Ramu MuIane and Vithal Waghasare in the incident. Consequently, he acquitted them but convicted and sentenced the appellants in the manner stated in para 1. 8. We have heard Mr. R. M. Agarwal for the appellants and Mr. MIP Galieria, Additional Public Prosecutor for the State of Maharashtra-respondent. We have also perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution; the statements of the appellants recorded under section 313 Cr. P.C.; and the impugned judgment. After reflecting over the matter, we are of the judgment that this appeal deserves to be partly allowed. In our view, the trial Judge erred in convicting the appellants for offence under section 302 r/w 34 I.P.C. and instead should have convicted them for one section 325 r/w 34 I.P.C. Although we feel that convictions of the appellants and their substantive sentences for offences under section 451 r/w 34 and 337 r/w 34 IPC, are just and proper, but the sentence of fine on the said counts, deserves to be set aside. 9. The main stay of the prosecution case is that the evidence of the injured witness Babu Waghsare PW 2 and his son Rangnath PW 1, we have set out the prosecution story on the basis of the recitals contained in their statements and hence, we do not want to graphically advert to them. Evidence of Babu Waghasare is that on the date and time of the incident, the appellants along with Ramu Mulane and Vithal Waghsare came to his house; called his mother a witch; thereafter the appellants dragged his mother outside the house; and then they alongwith Ramu Mulane and Vithal Waghsare started inflicting blows with kicks and fists on her person. Evidence of Babu Waghasare is that on the date and time of the incident, the appellants along with Ramu Mulane and Vithal Waghsare came to his house; called his mother a witch; thereafter the appellants dragged his mother outside the house; and then they alongwith Ramu Mulane and Vithal Waghsare started inflicting blows with kicks and fists on her person. Evidence of Rangnath is that he reached his house at about 6 p.m. and found the appellants inflicting blows with kicks and fists on his grandmother Sarubai, and when he asked them as to why they were assaulting Sarubai, the appellant Rajaram lifted a stone and rushed to assault him. He ran and contacted Ratan Ghule PW 3; came back along with Ratan Ghule; and the two of them found that the appellants, Ramu Mulane and Vithal Waghsare were pelting stones at the house of Sarubai. 10. We have carefully gone through the statements of the two eye-witnesses and we find that they inspire confidence. The manner of assault as unfurled by them is corroborated by the nature of the injuries received by the deceased Sarubai and Babu Waghsare, which we have set out earlier. As mentioned earlier, the medical evidence is that the injuries of the said persons could be by blows with kicks and fists and hurling of stones. 11. Corroboration is also forthcoming to the ocular account by the circumstance that the F.I.R. was lodged fairly promptly. We say this because, the incident took place at about 5.30 to 6 p.m. on 17-7-1984 and the F.I.R. was lodged at 1 a.m. on 18-7-1984. The evidence of the informant PW 1 Rangnath is that he had proceeded to police station Trimbak where the F.I.R. was lodged on foot and the distance to the said police station is about 8 to 9 kms. from the place of the incident. In our view, considering the mode of his proceeding to the police station and the distance which had to be covered the F.I.R. was promptly lodged. In the said F.I.R. broad features of the prosecution case have been spelt out and the appellants have been nominated. 12. In our view the learned trial Judge was justified in finding the involvement of the appellants in the incident as proved. 13. Mr. In the said F.I.R. broad features of the prosecution case have been spelt out and the appellants have been nominated. 12. In our view the learned trial Judge was justified in finding the involvement of the appellants in the incident as proved. 13. Mr. R.M. Agarwal learned counsel for the appellants strenuously urged that there was an unexplained incised wound of the dimension of 6" x ¼" x bone deep on the head of Babu. Waghsare which was medically examined the same day at 10.50 p.m. and which has not been explained by the prosecution. He urged that failure of the prosecution witnesses to explain this injury adversely ref1ects on their veracity. He also urged that the defence version of the incident to which we have adverted earlier in para 7 above, was more probable and the trial Judge erred in rejecting it. 14. We have given our anxious consideration to both the submissions of Mr. Agarwal" and find no merit in them. We first take up the first submission of Mr. Agarwal. It is true that law enjoins that the prosecution is under an obligation to explain the injuries of accused which are not trivial. It is also true that the injury of the appellant Shankar cannot be termed as trivial. But, it should be borne in mind that the obligation on the part of the prosecution is to only explain, the injuries, which have been received during the course of the incident and in the same transaction. In this connection it would be useful to advert to the observations contained in para 2 of the decision of the Supreme Court rendered in .the case of Bhaba Nanda Sharma and others v. The State of Assam1. The relevant part of the said para reads thus: "In case of this nature before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused it must be reasonably shown that in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law." In the instant case, even according to the F.I.R. lodged by the appellant Shankar, the injuries were caused to him at 7 p.m. Since the incident according to the prosecution had taken place between 5-30 to 6 p.m., it cannot be said that the injuries to Shankar Waghsare were, received in the same transaction. That being so, in view of the ratio in AIR 1977 Supreme Court page 2252 (supra), the prosecution was under no obligation to explain the injuries suffered by Shankar Waghsare. We also do not subscribe to the submission of Mr. Agarwal that the defence version of the incident was more probable, than the prosecution version. In our view it was highly improbable. We feel that it was most unnatural for Babu PW 2 and Rangnath PW 1 to murder Sarubai who was their own mother, and grandmother respectively simply to teach a lesson to the appellants and to send them to jail. 15. The only question, which remains is as to what is the offence which would be made out against the appellants. Mr. Agarwal learned counsel for the appellants strenuously urged and rightly in our judgment that the liability of the appellants in respect of the assault on Sarubai would not travel be yond that contemplated by section 325 read with 34 I.P.C. 16. It should always be borne in mind that the inference of common intention cannot necessarily be raised by the result which has accrued. Simply because, Sarubai succumbed to her injuries, a couple of hours after the assault, and the medical evidence is that the said injuries were sufficient in the ordinary course of nature to cause death, would not ipso facto mean that the appellants shared common intention to commit her murder. Simply because, Sarubai succumbed to her injuries, a couple of hours after the assault, and the medical evidence is that the said injuries were sufficient in the ordinary course of nature to cause death, would not ipso facto mean that the appellants shared common intention to commit her murder. Common intention has either to be anterior to the commission of the offence or may develop on the spot but the crucial thing is that the criminal act committed must have been committed in its furtherance and this is borne out from the language of section 34 I.P.C., which reads thus: "34.Acts done by several persons in furtherance of common intention: When a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone". 17. So the question is whether the appellants either shared a common intention from the inception, or it had developed on the spot, to commit the murder of Sarubai or their common intention was at a lower ebbnamely that of causing grievous hurt to Sarubai. 17A. It is a trite that the question of common intention is a question of fact and not one of law. To determine the extent of common intention, circumstances like motive, weapons of assault, manner of assault, number, nature and citus of the injuries have to be borne in mind. 18. In the instant case, the motive alleged was that the appellants thought Sarubai to be a witch and therefore assaulted her. In our view, it was not grave enough to warrant an inference that on account of it, the appellants would have committed Sarubai's murder. The circumstance which demolishes the inference that common intention was to commit the murder of the deceased is that both the appellants were unarmed and only inflicted blows on Sarubai by kicks and fists. In our view, had they really shared the common intention, to commit the murder, they would have come armed with and used some weapons to assault her. Injuries on Sarubai's person also belie the inference that the appellants shared the common intention to commit her murder. It is true that the Autopsy Surgeon found 6 injuries on her person but, surprisingly enough none of them were on the head. Injuries on Sarubai's person also belie the inference that the appellants shared the common intention to commit her murder. It is true that the Autopsy Surgeon found 6 injuries on her person but, surprisingly enough none of them were on the head. 3 of them were distributed between shoulder, elbow, and knee-joint. One of them was on lumbar region and one on the chest. The latter injury resulted in the fracture of 4th, 5th and 6th ribs on the left side of the chest. The Autopsy Report shows that it was this fracture of the said ribs, which resulted in the rupture of the left lung and death of Sarubai. Had the appellants shared the common intention to commit Sarubai's murder, they would have killed her on the spot. This they did not do and Sarubai succumbed to her injuries about 8 to 10 hours later. 19. In our view, injuries of Sarubai coupled with other circumstances only betray a common intention on the part of the appellants to cause grievous hurt to her. There is no evidence to indicate as to which of the two appellants exceeded this common intention and inflicted a contusion on the left side of chest of Sarubai, which proved to be fatal. Had there been evidence to this effect the appellant who gave the fatal blow would atleast have been liable for the offence under section 304 (II) I.P.C. 20. We wish to emphasise that unlike section 149 I.P.C. which makes members of an unlawful assembly liable for an offence, which they knew was likely to be committed in prosecution of the common object of the unlawful assembly, section 34 I.P.C. would only come into play if it is established that either there was prior common intention to commit the offence committed or the common intention developed on the spot to commit the offence committed. The question of knowledge is wholly extraneous to section 34 I.P.C. 21. For the said reasons, in our view, the trial Judge erred in convicting the appellants for an offence under section 302 r/w 34 I.P.C. and instead should have convicted them for that under section 325 r/w 34 I.P.C. 22. The question of knowledge is wholly extraneous to section 34 I.P.C. 21. For the said reasons, in our view, the trial Judge erred in convicting the appellants for an offence under section 302 r/w 34 I.P.C. and instead should have convicted them for that under section 325 r/w 34 I.P.C. 22. The next question is the sentence, which should be awarded to the appellants for the offence under section 325 r/w 34 I.P.C. We find from the record and the Paper Book that both the appellants have been in jail as an under-trial and convict for a total period of nearly 2 years and 3 months. We say this because, pending trial the appellant Rajaram Waghsare was arrested on 20-7-1984 and the appellant Shankar Waghsare on 18-8-1984. The record shows that both of them were granted bail by this court on 29-11-1984. Again, on the date of Judgment, i.e. 18-2-1985, they were taken into custody. When they preferred their appeal and prayed for bail, though the appeal was admitted, bail was declined to them. It was only on 19-1-1987 that they were granted short-term bail for a period of 8 weeks and on 23-3-1987, bail during disposal of the appeal. In our view, taking into consideration the manner of assault and the circumstances that the incident took nearly 14 years ago, the ends of justice would be satisfied if their jail sentence is reduced to the period already undergone. 23. As mentioned earlier, we find no infirmity in the conviction of the appellants for offences under section 451 r/w 34 and 337 r/w 34 I.P.C. As the learned trial Judge directed the substantive sentences to run concurrently, it is obvious that they have served out their substantive sentences on the said counts for the same on each of them were only one year R.I. We however feel that the sentence of fine on the said counts is not warranted. 24. In the result, this appeal is partly allowed. We acquit the appellants for the offence under section 302 r/w 34 I.P.C. and set aside their convictions and sentences on that count. Instead we find them guilty for an offence under section 325 r/w 34 I.P.C. but reduce their sentence on that count to the period already undergone by them, which is nearly 2 years and 3 months. Although, we confirm the convictions of the appellants for offence under sec. Instead we find them guilty for an offence under section 325 r/w 34 I.P.C. but reduce their sentence on that count to the period already undergone by them, which is nearly 2 years and 3 months. Although, we confirm the convictions of the appellants for offence under sec. 451 r/w 34, I.P.C. and 337 r/w 34 I.P.C. but as the appellants have been in jail for nearly 2 years and 3 months and their substantive sentences were ordered to run concurrently, it is obvious that they must have served them out. We set aside the sentence of fine imposed on them on the said counts. The appellants are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. Appeal allowed partly. 1. A.I.R. 1977 S.C. 2252.