Umamaheswaram, J.- This is an appeal preferred by the State of Andhra Pradesh against the Judgment of the Additional Sessions Judge of Guntur in Sessions Case No. 30 of 1960. Accused 1 to 5 were charged under sections 147 and 302 read with sections 34 and 149, Indian Penal Code. The fifth accused was also charged under section 323, Indian Penal Code, for causing hurt to P.W. 2. The learned Additional Sessions Judge acquitted the third accused. He held that accused 1, 2, 4, and 5 were guilty under section 304, Part (2) read with section 34, Indian Penal Code. He also found that the fifth accused was guilty under section 323, Indian Penal Code. While sentencing the first accused to undergo rigorous imprisonment for four years, he sentenced accused 2, 4, and 5 each to two years’ rigorous imprisonment. So far as the fifth accused was concerned, having convicted him under section 323, Indian Penal Code, also, he sentenced him to six months’ rigorous imprisonment, the sentences on him to run concurrently. The appeal is filed by the State of Andhra Pradesh contending that all the accused are punishable under section 302 read with sections 34 and 149, Indian Penal Code. In order to appreciate the contention of the learned Public Prosecutor, it is necessary to set out a few relevant facts. Kotaiah, the deceased, was the watchman working in the field of P. W. 9 He was a resident of Rokatigantivaripalem. The lands of P.W. 9, of which he was a watchman, were situate in Grandhisiri. The fodder stored in the fields was stolen long before the occurrence. Ten days Prior to the occurrence, the first accused questioned the deceased as to whether he stated that all Grandhisiri people were thieves and the deceased repeated that statement. On 14th February, 1960, the deceased and his nephews went to Voravakallu to attend a fair. According to the case for the prosecution, accused 1 to 5 came to Voravakallu with sticks in their hands and attacked the deceased. When P. W. 2 wanted to lift the deceased who had fallen down, the fifth accused beat P. W. 2 with the stick in his hand. He therefore ran away from the place of occurrence to Rokatigantivaripalem and brought people to remove Kotaiah. Meanwhile, the son of Kotaiah came on the scene and he was also beaten by accused 2. When P. W. 2 wanted to lift the deceased who had fallen down, the fifth accused beat P. W. 2 with the stick in his hand. He therefore ran away from the place of occurrence to Rokatigantivaripalem and brought people to remove Kotaiah. Meanwhile, the son of Kotaiah came on the scene and he was also beaten by accused 2. He also ran away from the scene of offence. He met a few people on the tank-bund and along with them he returned to the place where his father had fallen down. They removed Kotaiah to the house of a Vodde, who was examined as P. W. 5. It is alleged that Kotaiah mentioned the names of the accused as having beaten him. P. W. 2 returned with people from his village Rokatigantivaripalem and Kotaiah was removed to their village. It is the case of the prosecution that even in that village, he mentioned the names of the persons who attacked him. During the night he was complaining of great pain and so he was taken therefrom to the hospital at Atchampet. On the way he died. Both P. W. 2 and P. W. 1 proceeded with the dead body to the police-station and P. W. 2 made a complaint on 15th February, 1960 at 5 a.m., to P. W. 15. The First Information Report was marked as Exhibit P-1. As to the manner of attack and the offence committed by the first accused, there is the oral evidence of the nephew examined as P. W. 2 and of another witness P. W. 3. So far as the son examined as P. W. 1 is concerned, he wasnot present at the time of the attack. According to him, when he came to the scene of offence, he found all the five accused present. The oral declarations made by Kotaiah in the house of P. W. 5 as also in his house after he was taken to Rokatigantivaripalem are relied on to implicate all the five accused. The question that arises for consideration in the appeal is as to whether the prosecution has proved that all the five accused had proceeded to Grandhisiri with the common intention of committing the offence or whether the offence was committed in prosecution of the common object of the unlawful assembly as provided in section 149, Indian Penal Code. The question that arises for consideration in the appeal is as to whether the prosecution has proved that all the five accused had proceeded to Grandhisiri with the common intention of committing the offence or whether the offence was committed in prosecution of the common object of the unlawful assembly as provided in section 149, Indian Penal Code. Having carefully perused the evidence, we are inclined to take the view that neither the common intention under section 34, Indian Penal Code, nor the common object specified in section 149, Indian Penal Code, is proved. Before proceeding with the discussion of the evidence, it is necessary to refer to the First Information Report that was given on the morning of 15th February, 1960 at 5 a.m. and marked as Exhibit P-1. It is stated therein that the first accused, his two nephews, and the fourth and fifth accused, along with others, came from the opposite direction and that the first accused challenged Kotaiah as to what he stated the other day. The fourth accused then said: “What have you uttered and whether your end had approached”. As regards the attack, the following statements were made: “At once Budda Veeraiah (first accused) with the stick in his hand beat my junior paternal uncle on his back. Bollepalli Kotaiah (fifth accused) beat me (P.W. a) on my back with a stick........................Budda Veeraiah (first accused), Budda Veeraiah’s two nephews, Kilari Appaiah (fourth accused) beat my junior paternal uncle. Then I ran away..................” When the nephew was examined as P.W. 2, he made several statements not mentioned in the First Information Report. He added that the second and third accused stated: “Why do you still look on?” So far as the part attributed to the first accused was concerned, he gave a different version. He deposed that first accused beat the deceased with a stick on the left side of his trunk as also on his chest with the same stick. So far as the second accused was concerned, he deposed that the second accused beat his uncle on the left palm and that the third and fourth accused kicked his uncle on the buttocks. As to what injuries were received by the deceased, the doctor was examined as P.W. 14. The external injuries that he found on the body of the deceased are as follows: “1. As to what injuries were received by the deceased, the doctor was examined as P.W. 14. The external injuries that he found on the body of the deceased are as follows: “1. One irregular injury in the palmar side of the left hand near the base of the index finder of a pea-sized and skin deep. 2. A number of irregular scratches on both the knees. 3. One irregular injury on the the left side chest 2inches internal to the nipple and at the level of the nipple (1/4) quarter of an anna and skin deep. 4. One swelling with abrasion on the left side flank of a tennis ball size.” According to him, it was injury No. 3 that caused the death of the deceased. He found on dissection, extravasation of blood in the tissues under injury No. 3, that is the chest injury, and that mediastinum contained about 20 ounces of fluid blood and that some blood vessesls in the mediastinum were ruptured. So far as injury No. 4 was concerned, he found extravasation of blood thereunder. In the examination-in-chief, he stated that injury No. 3 was sufficient in the ordinary course to cause death and he referred to Exhibit P-4 as the certificate given by him. In the cross-examination, it was elicited that injuries Nos. 3 and 4, could have been caused by a violent impact with a stone either by a hit or fall. Lower down he had to admit that injuries Nos. 3 and 4 could not have been caused by striking with a stick but only by poking with a stick-end. He also stated in unequivocal terms mat on the back of the deceased or on the buttocks or on the thighs of the deceased there were no injuries. In the re-examination, the following statement was elicited: “If the end of the stick was round, injuries 1, 3 and 4 could not be caused by striking, but if it was rough, they could have been caused by striking.” The learned Sessions Judge took the view that all the five accused were present at the scene of occurrence. In the re-examination, the following statement was elicited: “If the end of the stick was round, injuries 1, 3 and 4 could not be caused by striking, but if it was rough, they could have been caused by striking.” The learned Sessions Judge took the view that all the five accused were present at the scene of occurrence. In paragraph 12 of the judgment, he stated: “That the participants only intended to teach a lesson to G. Kotaiah by beating him for his assertion that Grandhisiri people were thieves feeling that thereby their honour was attacked and did not intend or have an object to murder G. Kotaiah.” In paragraph 13 of the judgment, he expressed a contrary view that as accused 1, 2 4 and 5 had a common intention to beat a single unprotected unarmed person with sticks, and have in fact beaten him, it can safely be inferred that all of them knew that the probable consequences of such an attack would be death. Having carefully perused the evidence, we are inclined to agree with the view stated in paragraph 12 and not paragraph 13 of the judgment. As regards the person who attacked and beat Kotaiah, in the earliest report, it is clearly stated that only the first accused, his two nephews and the fourth accused beat Kotaiah. What is now alleged on behalf of the prosecution is that the two nephews who beat Kotaiah are accused 2 and 3. In the evidence of P. W. 2, he was questioned as to how many sisters and sisters’ children first accused had. P. W. 2 stated that he did not know. The prosecution has not proved beyond doubt whether second accused and third accused were the only nephews that the first accused had and whether those two nephews had accompanied Kotaiah to the Tirunallu or the fair. There was no identification parade to identify A-2 and A-3. Even the wife, examined as P.W. 6, mentioned in the chief-examination that the two nephews of the first accused were mentioned by her husband as having beaten him. The learned Sessions Judge acquitted the third accused on the ground that no overt act on his part was proved. There was no identification parade to identify A-2 and A-3. Even the wife, examined as P.W. 6, mentioned in the chief-examination that the two nephews of the first accused were mentioned by her husband as having beaten him. The learned Sessions Judge acquitted the third accused on the ground that no overt act on his part was proved. As P.W. 2 did not state in Exhibit P-1 but only in his evidence that the third accused stated: “Why do you still look on?” and that he kicked on the buttocks of Kotaiah, he rejected his evidence so far as the part of the third accused was concerned. Even the doctor, who was examined, did not speak to any external injuries on the buttocks. We wish to confirm the acquittal of accused No. 3 not only for the reasons stated by the learned Sessions Judge but also on the ground that it is not clearly proved that accused 2 and 3 had accompanied their uncle Kotaiah. As regards the second accused, P. W. 2 developed the story in the course of the evidence that the second accused beat the deceased on the left palm and that he also beat P. W. 1. Both these statements are not to be found in Exhibit P-1. The further statement that second accused also stated “Why do you still look on?” is not mentioned in Exhibit P-1. Apart from the interested testimony of P.W. 2, there is no reliable evidence to implicate the second accused. As already stated, in discussing the part played by third accused, there is no reference to the name of the second accused in the First Information Report. It is not clear as to whether the second accused was one of the nephews that had accompanied Kotaiah. We are therefore inclined to take the view that it is not proved beyond doubt by the prosecution that accused 2 and 3 were the nephews that were present at the time of the incident. So far as accused 1, 4 and 5 are concerned, what is stated in Exhibit P-1 is clearly proved by the evidence of P.W. 2. The evidence of the other eye witness that was cited on behalf of the prosecution (P.W. 3) was rightly rejected by the Sessions Judge. He is only a cobbler and a cooly. So far as accused 1, 4 and 5 are concerned, what is stated in Exhibit P-1 is clearly proved by the evidence of P.W. 2. The evidence of the other eye witness that was cited on behalf of the prosecution (P.W. 3) was rightly rejected by the Sessions Judge. He is only a cobbler and a cooly. If really he was present at the time of the occurrence, his name would have been mentioned in Exhibit P-1. In the committal Court, he stated that he did not notice the beating of P.W. 2. According to him, he did not mention the occurrence to anyone else or cry out at the time. Having carefully read his evidence, we are inclined to share the view of the learned Sessions Judge that his evidence is not entitled to any weight. The evidence of the prosecution witnesses clearly shows that there was ample motive for the first accused to have beaten Kotaiah on 14th evening. Ten days prior to the date of the occurrence, there was a heated talk between Kotaiah and the first accused. The first accused was enraged at the watchman calling all the villagers of Grandhisiri as thieves. It is likely that when he, accompanied by accused 4, 5 and two of his nephews, met Kotaiah at the fair, he beat him with the stick to warn him and teach him a lesson that the respectable villagers of Grandhisiri ought not to be characterised as thieves. No evidence that he beat Kotaiah in pursuance of any common intention is adduced in the case. When accused 1, 4 and 5, accompanied by others, went to Voravakallu, they only went there with the intention of enjoying the Tirunallu or the fair. As pointed out by Bose, J., in Pandurang v. State of Hyderabad1, it is well-established that the common intention referred to in section 34, Indian Penal Code, presupposes prior concert. According to the learned Judge, in requires a prearranged plan and a prior meeting of minds. We are clearly of the opinion that when accused 1, his two nephews and accused 4 and 5 went to the Tirunallu, there was no common intention to beat Kotaiah or to commit any offence. The learned Sessions Judge erred in holding in paragraph 14 of the judgment that a common intention could be presumed. We are clearly of the opinion that when accused 1, his two nephews and accused 4 and 5 went to the Tirunallu, there was no common intention to beat Kotaiah or to commit any offence. The learned Sessions Judge erred in holding in paragraph 14 of the judgment that a common intention could be presumed. We are also not inclined to agree with the learned Public Prosecutor that the terms of section 149, Indian Penal Code, are attracted. No common object on the part of the first accused and his two nephews and accused 4 and 5 to commit any offence is proved. The scope and effect of section 149, Indian Penal Code, has been discussed by Kapur, J., in Mizaji v. State of U.P.2. The learned Judge observed as follows at page 576: “The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression ‘know’ does not mean a merepossibility, such as might not happen.” On the facts of the case, we are inclined to think that the attack by the first accused on the deceased Kotaiah was on the spur of the moment, and that the other accused cannot be imputed to have shared his object. The distinction between the common intention referred to in section 34, Indian Penal Code, and the common object referred to in section 149, Indian Penal Code,. is well pointed out by the Supreme Court in Sukha v. State of Rajasthan1. The distinction between the common intention referred to in section 34, Indian Penal Code, and the common object referred to in section 149, Indian Penal Code,. is well pointed out by the Supreme Court in Sukha v. State of Rajasthan1. At page 518 are the relevant observations: “But a common object is different from a common intention in that it does not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the people get there.” There are no circumstances in the case to indicate that the common object developed after the first accused beat Kotaiah suddenly. As pointed out by Bose, J., at page 222 in Pandurang v. State of Hyderabad2, accused 4 and 5 did not “either by their words or their acts, indicate their assent” to the first accused and join him in the assault. The fifth accused did not beat the deceased at all. What is alleged is that he beat P.W. 2 with a stick and prevented him from lifting his uncle and taking him away from the scene of occurrence. So far as the evidence of P.W. 2 that fourth accused beat Kotaiah on the buttocks is concerned, it is not borne out by the doctor’s evidence. We are therefore clearly of the opinion that the terms of section 149. Indian Penal Code, are not attracted. We are however inclined to agree with the learned Sessions Judge that as the names of accused 4 and 5 are referred to in Exhibit P-1, they were present at the time of the offence. The last question that falls to be decided is as to the nature of the offence committed by the first accused in beating Kotaiah and causing his death. What is stated in Exhibit P-1 is that the first accused beat Kotaiah with the stick on his back. In the course of the evidence, P.W. 2 improved upon what he stated in Exhibit P-1. He deposed as follows: “A-1 then beat my uncle Kotaiah with a stick on his left side on his trunk. My uncle Kotaiah fell down on the ground. Again A-1 beat my uncle on his chest with the same stick.” We are inclined to think that the fourth injury referred to by P.W. 14 was one that was caused by the first accused. My uncle Kotaiah fell down on the ground. Again A-1 beat my uncle on his chest with the same stick.” We are inclined to think that the fourth injury referred to by P.W. 14 was one that was caused by the first accused. The fourth injury is on the left side flank. That is what is apparently referred to in Exhibit P-1 as the injury caused on the back by the first accused. As already pointed out, P.W. 14, in the course of the cross-examination, stated that injury No. 3 could not have been caused by striking with a stick but only by poking with a stick-end. There is no evidence that the injury was caused by poking the deceased with a stick end. We are inclined to think that injuries Nos. 1 to 3 might have been caused by the violent impact with a stone when Kotaiah fell down as a result of his being beaten by the stick of first accused on the back or the left flank. We are not inclined to agree with the contention of the learned Public Prosecutor that the injury on the chest was caused by the beating by first accused with the stick in his hand. The terms of section 300, Thirdly, Indian Penal Code, are consequently not attracted. If the third injury was caused on the chest by first accused beating Kotaiah with a stick, the terms of section 300, Thirdly, Indian Penal Code, might be attracted. In Virsa Singh v. State of Punjab3, Bose, J. discussed succinctly and forcibly the scope and effect of section 300, Thirdly, Indian Penal Code. The learned Judge summed up at page 467 the various ingredients to be proved to attract section 300, Thirdly, Indian Penal Code. As pointed out by the learned Judge, “No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional”. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional”. Sri Balaiah, the learned Advocate for the accused, invited our attention to the decision in Mahanandi Reddi, In re.4 The observations of Manohar Pershad, J., relied on, are at page 317, and are in the following terms: “Section 300 would only apply if it were possible to go a step further and say that the offender intended the injury to be sufficient in the ordinary course of nature to cause death, or knew that in the special circumstances of the case not death merely but the death of the particular person to whom the injury was caused was likely. If he knew that, he had knowledge from which the intention to cause the death of such a person could be inferred.” The observations of the Learned Judge were rightly commented upon and dissented from by a Division Bench of this Court in Criminal Appeal Nos. 654, 689, 694 of 1959 and 12 of 1960, dated 19th December, 1960. The learned Judges pointed out that the observations run counter to the observations of Bose, J., in Virsa Singh v. State of Punjab1. We agree with what those learned Judges say. As stated supra, we are inclined to take the view that injury No. 3 was not inflicted by the first accused but must only have been caused as a result of the deceased Kotaiah falling down suddenly and by coming into impact with a stone violently. So, the learned Sessions Judge was justified in holding that the first accused was not guilty of murder. The appeal against accused 1, 3 , 4 and 5 by the State of Andhra Pradesh is dismissed. So far as the second accused is concerned, we are inclined to exercise our powers under section 439 of the Code of Criminal Procedure and set aside his conviction and sentence. We acquit him and direct him to be set at liberty. A.S.R. ----- State appeal dismissed; Second accused acquitted.