JUDGMENT S. N. PHUKAN, J. — Sixteen persons were booked for trial under Secs. 302/149, 302/34, 341/149, 449, 451/34, 427/34 and 323, Indian Penal Code for causing death of deceased Bhagirathi Panda. The Sessions Judge, Koraput in Sessions Case No. 134 of 1985 by judgment dated 2.4.1986 after appreciation of the evidence of 16 witnesses of defence came to the finding that the deceased met with homicidal death and accordingly convicted accused Dillip Kumar Chand under Sec. 302, IPC, accused Kishanlal Kamini, Manmo¬han Das alias Manu Bangali, Prafulla Kumar Pradhan and Arjun Das Agrawal under Secs. 302/149, IPC. The trial Court also found accused Radheshyam Agrawala, Uttam Kumar Behera, Devi Misra, Babuli alias Sudhansu Sekhar Das guilty and convicted them under Secs. 451 and 427, IPC. Other accused persons were found not guilty and were acquitted. 2. Accused Dillip Kumar Chand was sentenced to death. Ac¬cused Kishanlal Kamini, Prafulla Kumar Pradhan, Manmohan Das alias Manu Bangali and Arjun Das were sentenced to undergo im¬prisonment for life. The trial Court, however, sentenced Radhesh¬yam Agrawala, Uttam Kumar Behra, Devi Misra, Babuli alias Sud¬hansu Sekhar Das to rigorous imprisonment for one year. 3. The Division Bench of the High Court in Death Reference No. 1 of 1986 and Criminal Appeals Nos. 72 to 74, 81, 82 and 88 of 1986 by judgment dated 27.1.1987 allowed the appeals of Arjun Das Agrawal and Manmohan Das and they were acquitted. The death reference and appeal of Dillip Kumar Chand were partly allowed and he was convicted under Secs. 302/34, IPC and his death sen¬tence was converted to rigorous imprisonment for life. The ap¬peals filed by Prafulla Kumar Pradhan, Kishanlal Kamini, Radhesh¬yam Agrawala, Devi Prasad Misra, Sudhansu Sekhar Das alias Babuli and Babuli and Uttam Kumar Behra were dismissed. 4. The State of Orissa has filed the present appeal in respect of acquittal of Manmohan Das and Arjun Das Agrawal. 5. The occurrence took place in the night of 17.7.1982 at about 10.00 p.m. The deceased was running a hotel at his resi¬dence at Village Narala Road and at the time of occurrence he had closed his business and was taking the accounts from the hotel boys. 5. The occurrence took place in the night of 17.7.1982 at about 10.00 p.m. The deceased was running a hotel at his resi¬dence at Village Narala Road and at the time of occurrence he had closed his business and was taking the accounts from the hotel boys. At about 10.00 p.m. in the night of the occurrence some persons knocked at the door of the hotel and asked for meals but deceased told them that chapati would not be available and they could be served with rice. As soon as the hotel boy opened the door accused Devi Misra, Babuli alias Sud¬hansu Das, Uttam Behra and Radheshyam Agrawala went inside the hotel and immediately picked up quarrels with the deceased. Radhamani Panda w/o deceased rushed in and tried to arrange for the food for the above persons. She took her husband into the adjoining room. Though food was served in two plates, the above persons broke the chairs, tables, plates and tore out the elec¬tric wirings as at that time there was no supply of electricity. At that time the wife of the deceased heard the cry of pain from the adjacent room and she rushed inside the room. She saw that her husband had been stabbed on his belly. Accused Dillip Chand was holding a knife and along with Kishanlal Kamini was trying to drag the deceased from out of the room. Accused Prafulla Kumar Pradhan also was manhandling the deceased and when she tried to rescue her husband, accused Manmohan Das pushed her back. All the four accused dragged the deceased out of the room to the verandah and the accused Dillip Chand gave 3/4 blows. Accused Arjun Das Agrawal standing on the road was instigating the assailants to finish the victim soon. Other accused persons namely Rambilash Agrawala, Motilal Agrawala, Madan Lal Agrawala, Santosh Kumar Kamini, Santosh Mishra, Puspak Biswal and Hajarilal Lal Agrawala surrounded the deceased while he was being assaulted by accused Dillip Chand and his associates. The wife of the deceased and other persons rescued the deceased and carried him back into the house. 6. Radhamani carried her deceased husband to Narla Hospital and she also sent information to Narla Police Station. The As¬sistant Sub-Inspector of the said police station reached the hospital and took the first information report. The wife of the deceased and other persons rescued the deceased and carried him back into the house. 6. Radhamani carried her deceased husband to Narla Hospital and she also sent information to Narla Police Station. The As¬sistant Sub-Inspector of the said police station reached the hospital and took the first information report. The doctor attending the injured advised that he should be immediately removed to the hospital at Bhawanipatna and in the same truck he was carried to Bhawanipatna Hospital and on reach¬ing the hospital he was declared dead. 7. In this appeal filed by the State we have to examine whether the orders of acquittal passed by the Division Bench of the High Court in respect of two accused-respondents namely Manmohan Das alias Manu Bangali and Arjun Das Agrawal were based on proper appreciation of evidence on record or not. Both the above accused-respondents along with others were charged under Secs. 302/149 and 302/34, IPC. 8. The case of the prosecution rests mainly on the evidence of Radhamani Panda, PW 1 wife of the deceased, Kailash Chandra Panda, PW 2 who was having a tea stall on the verandah of the hotel of the deceased, Baikuntha Panda, PW 3 brother of PW 2 who had got a betel nut shop on the verandah of the hotel of the deceased and Bhaskar Panda, PW 4 who was the cook in the hotel of the de¬ceased. 9. Both the Courts below believed the above eye-witnesses. In fact the High Court has recorded after carefully going through the evidence of the above eye-witnesses that they were natural, competent, trustworthy and reliable witnesses. According to the High Court, their evidence finds substantial corroboration from the medical evidence and, therefore, the trial Court rightly placed reliance on their evidence. 10. We have also been taken through the evidence of the above witnesses by the learned counsel for the appellant, Mr. Mehta and we entirely agree with the findings of the trial Court as well as the High Court. Though Mr. T.N.Singh, Amicus Curiae appearing for accused-respondent Manmohan Das alias Manu Bangali has drawn our attention to some of the contradictions, we are of the opinion, as recorded by the High Court that these were minor in nature and cannot demolish the case of the prosecution. 11. Radhamani Panda, PW 1 wife of the deceased was the informant. Though Mr. T.N.Singh, Amicus Curiae appearing for accused-respondent Manmohan Das alias Manu Bangali has drawn our attention to some of the contradictions, we are of the opinion, as recorded by the High Court that these were minor in nature and cannot demolish the case of the prosecution. 11. Radhamani Panda, PW 1 wife of the deceased was the informant. She had completely supported the prosecution case. According to her the occurrence took place on 17.7.1982 at about 10.00 p.m. when the hotel was closed and her deceased husband was taking accounts from the employees. Two accused persons namely Radha and Babuli asked for meal by shouting and her deceased husband replied that only rice would be available. At the request of the above accused persons the door of the hotel was opened and four accused persons entered inside and two of them caught hold of the beard of her deceased husband and thereafter they broke chairs, tables and pulled down the electric wires. It had been mentioned that at the time there was no supply of electricity and lamps were burning. PW 1 requested the accused persons to cool down and took her husband to the adjacent room. She came out and asked the hotel cook namely Bhaskar Panda (PW 4) to serve meals; while he was doing so in china plates, two other accused persons entered and all the accused persons crashed the plates. At the same time she heard her husband shouting that he was being killed and, therefore, she rushed inside the room and saw a knife injury on the left side of the belly of her husband. She (PW 1) saw accused Kishan was holding the beard of the husband and accused Dillip Chand was dragging. She had further stated that the as¬sailants had found their way inside through another door. She had made a specific statement that while she was going to intervene accused-respondent Manmohan Das alias Manu Bangali pushed her back and she fell down. According to her, accused Arjun Agrawal was instigating to beat her husband. She along with others res¬cued her husband and brought him inside the hotel and all the accused persons dispersed. She took her husband in a truck along with others to Narla Hospital and on the way she dropped Baikun¬tha Panda, PW 3 to inform the police. According to her, accused Arjun Agrawal was instigating to beat her husband. She along with others res¬cued her husband and brought him inside the hotel and all the accused persons dispersed. She took her husband in a truck along with others to Narla Hospital and on the way she dropped Baikun¬tha Panda, PW 3 to inform the police. On the advice of the local doctor after preliminary treatment the deceased was removed to Bhawanipatna Hospital in the same truck where he was declared dead. While at Narla Hospital a police officer went there before whom this witness narrated the incident which was treated as the FIR. She made a categorical statement that she was not mentally fit at the time due to the condition of her husband. 12. PW 2 Kailash Chandra Panda had a betel nut shop by the side of the hotel of the deceased. He had stated that he started running a tea stall on the verandah of the hotel of the deceased and gave a betel nut shop to his brother Baikuntha Panda, PW 3. He had supported the evidence of PW 1 in all the above points. He categorically stated that as there was no electric supply, a petromax light was burning in the hotel of the deceased and lamps at his tea stall. He went inside the hotel and saw accused Dillip Chand give a knife-blow on the left side of the belly of the deceased. According to him accused Kishan Kamini caught hold of the beard of the deceased and accused-respondent Manmohan Das alias Manu Bangali and Prafulla caught hold of the tuft of beard of the deceased. He supported the evidence of PW 1 inasmuch as according to this witness when PW 1 came to the room accused-respondent Manmohan Das alias Manu Bangali pushed her back, thereafter the assailants dragged the deceased to the verandah where 3-4 more blows by knife were given by accused Dillip Chand. Regarding the accused-respondent Arjuna Agrawal he had stated that this accused came out from the house and instigated the accused persons to kill the deceased. He along with PW 1 and others rescued the deceased and carried him back. 13. Baikuntha Panda, PW 3 brother of PW 2 had disposed that at that time he was at the betel nut shop in front of the hotel of the deceased. He along with PW 1 and others rescued the deceased and carried him back. 13. Baikuntha Panda, PW 3 brother of PW 2 had disposed that at that time he was at the betel nut shop in front of the hotel of the deceased. This witness identified accused-respondent Manmohan Das alias Manu Bangali and further stated that he knew Dilip Chand, Arjun Agrawal, Prafulla and Kishan Kamini. This witness did not see the entire incident as he went to attend the call of nature at the back side of the hotel. When he heard the cries of the deceased he went inside the room. Though this wit¬ness had not specifically stated the part played by accused-respondent Manmohan Das alias Manu Bangali but he categorically stated the presence of this accused-respondent at the place of occurrence. Regarding accused-respondent Arjun Agrawal this witness had also stated that the accused directed the others “to finish the deceased as soon as possible”. He also along with others accompanied PW 1 in the truck. 14. Bhaskar Panda, PW 4 was working as a cook in the hotel of the deceased and he has supported fully the evidence of other witnesses. It is true that he had not stated the part played by accused-respondent Manmohan alias Manu Bangali but regarding accused-respondent Arjun Agrawal he had stated that this accused asked others “to finish him (deceased) soon”. 15. From the evidence of the above witnesses the prosecution has been able to prove that accused-respondent Manmohan alias Manu Bangali was present at the place of occurrence and he took active part by holding the beard of the deceased and also resist¬ing PW 1, wife of the deceased from going to rescue her husband. Regarding accused-respondent Arjun Agrawal the only evidence is that after coming out from his house he instigated the accused persons to kill the deceased but there is no evidence on record to show that as a result of instigation more blows were given by accused Dillip Chand or any other action was taken by any other accused person. 16. Regarding acquittal of accused-respondent Manmohan Das alias Manu Bangali the High Court had not recorded any acceptable reason. Regarding accused-respondent Arjun Das Agrawal the High Court specifically recorded that there was no evidence that this accused entered into the place of occurrence. 16. Regarding acquittal of accused-respondent Manmohan Das alias Manu Bangali the High Court had not recorded any acceptable reason. Regarding accused-respondent Arjun Das Agrawal the High Court specifically recorded that there was no evidence that this accused entered into the place of occurrence. The High Court noted that the allegation was that he was standing outside and incited the other accused persons to finish the deceased. Though, according to the prosecution in pursuance of the aforesaid act the deceased was assaulted by lathi but it was not corroborated by the medical evidence, therefore, the High Court held that conviction of accused-respondent Arjun Das Agrawal under Secs. 302/149, IPC is unsustainable. 17. Though, the Sessions Judge convicted Dilip Chand under Sec. 302, IPC and accused Kishanlal Kamini, Manmohan Das alias Manu Bangali, Prafulla Kumar Pradhan and Arjun Das Agrawal under Secs. 302/149, IPC the Division Bench of the High Court convicted Dilip Chand under Secs. 302/149, IPC and the appeals of Prafulla Kumar Pradhan, Kishanlal Kamini, Radheshyam Agrawala, Devi Prasad Misra, Sudhansu Sekhar Das alias Babuli and Uttam Kumar Behera were dismissed. 18. As stated earlier the trial Court framed charges against the accused persons under Secs. 302/34, IPC and under Secs. 302/149, IPC. A question may arise as to whether if an accused is charged under Secs. 302/149, IPC can he be convicted under Secs. 302/34, IPC. 19. This Court in Mahabir Gope v. State of Bihar : AIR 1963 SC 118 : (1963) 3 SCR 331 considered the question of conviction under Secs. 302/34, IPC and 302/149, IPC. In that case the appel¬lant and 11 other persons were charged under Secs. 147 and 302/149, IPC. According to the prosecution the appellant and other accused persons formed themselves into an unlawful assembly at Bhagalpur Special Central Jail and in prosecution of the common object of the said assembly, the Chief Head Warder and the Night Watchmen were assaulted. They were also charged under Secs. 302/34, IPC for assaulting the chief Head Warder in furtherance of the common object with a view to cause his death. While upholding the conviction under Secs. 302/34, IPC this Court held that the position would not be any different if the appellant had been convicted under Secs. They were also charged under Secs. 302/34, IPC for assaulting the chief Head Warder in furtherance of the common object with a view to cause his death. While upholding the conviction under Secs. 302/34, IPC this Court held that the position would not be any different if the appellant had been convicted under Secs. 302/149, IPC as section 149, provides that if an of¬fence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence. 20. In Jagir Singh v. State of Punjab : AIR 1968 SC 43 : (1967) 3 SCR 256 this Court also considered the same question. This Court referred to an earlier decision in Bharwad Mepa Dana v. State of Bombay : AIR 1960 SC 289 : (1960) 2 SCR 172 in which 14 persons were charged with offences under Sec. 302 read with Sections 149 and 34, IPC. Out of 14 accused persons 7 were acquitted. On appeal the High Court acquitted one of the five convicted persons. This Court upheld the conviction and held that there was no difficulty in the application of Section 34, IPC as the number of the convicted persons was four and there was a clear finding that they shared the common intention with the other accused persons whose identity was not established. The above ratio laid down in Bharwad Mepa Dana (supra) was approved in this case namely Jagir Singh (supra). 21. The trial Court convicted accused Dilip Kumar Chand under Sec. 302, IPC and accused Kishanlal Kamini, Manmohan Das alias Manu Bangali, Prafulla Kumar Pradhan and Arjun Das Agrawal under Secs. 302/149, IPC. The High Court convicted accused Dilip Kumar Chand under Secs. 302/149 and allowed the appeal of accused persons Manmohan Das alias Manu Bangali and Arjun Das Agrawal. In view of the ratio laid down by this Court in Mahabir Gope (supra) and Jagir Singh (supra) this Court in this appeal has to consider whether accused Manmohan Das alias Manu Bangali and Arjun Das Agrawal can be convicted under Secs. 302/149, IPC. 22. In view of the ratio laid down by this Court in Mahabir Gope (supra) and Jagir Singh (supra) this Court in this appeal has to consider whether accused Manmohan Das alias Manu Bangali and Arjun Das Agrawal can be convicted under Secs. 302/149, IPC. 22. It is a settled position of law that Section 34, IPC does not create a distinct offence and it is the participation of the accused that the intention of committing crime is established and Section 34, IPC is attracted. To rope in a person with the aid of Section 34, IPC, the prosecution has to prove that the criminal act was done by actual participation of more than one person and that the said act was done in furtherance of the common intention of all engaged at a prior concert. 23. Coming to the facts of this present case we find from the evidence on record as extracted above that accused Manmohan Das alias Manu Bangali went to the house of the deceased along with other accused persons where accused Dillip Chand gave knife-blows to the deceased. We also find that the accused-respondent Manmohan Das also prevented Radhamani Panda, PW 1 wife of the deceased from rescuing her husband as she was pushed by accused-respondent Manmohan Das and she fell down. From the evidence of Kailash Chandra Panda, PW 2 we find that the accused-respondent Manmohan Das alias Manu Bangali caught hold of the tuft of beard of the deceased. 24. The above evidence on record is sufficient for us to come to the finding that in the criminal act namely giving fatal blows to the deceased accused-respondent Manmohan Das alias Manu Bangali actively participated in the said criminal act in fur¬therance of the common object namely to cause death of the de¬ceased. The accused-respondent Manmohan Das alias Manu Bangali not only went with others to the place of occurrence but he also took actice part while accused Dillip Chand gave the blows to the deceased. 25. For the above reasons we are of the opinion that the High Court erred in allowing the appeal of accused Manmohan Das alias Manu Bangali. We, therefore, convict accused Manmohan Das alias Manu Bangali under Secs. 302/34, IPC. 26. 25. For the above reasons we are of the opinion that the High Court erred in allowing the appeal of accused Manmohan Das alias Manu Bangali. We, therefore, convict accused Manmohan Das alias Manu Bangali under Secs. 302/34, IPC. 26. Regarding accused-respondent Arjun Das Agrawal we find from the evidence on record that this accused neither went inside the house of the deceased nor took any part in the commission of the murder. He only instigated by shouting at the other accused persons. There is nothing in evidence to show that due to his instigation more blows were given by the accused persons. Therefore, no inference can be drawn that this accused-respondent had the common intention of causing death of the deceased or that he actually participated in the criminal act. Therefore, the High Court acquitted this accused. 27. For the reasons stated above the appeal filed by the State is partly allowed. The appeal against the order of acquit¬tal of Arjun Das Agrawal is dismissed and appeal against the order of acquittal of Manmohan Das alias Manu Bangali is allowed and the said order is set aside. He is convicted under Secs. 302/34, IPC and sentenced to undergo rigorous imprisonment for life. He shall be taken in custody forthwith to undergo the remaining part of the sentence. Appeal by State allowed in part, one dismissed another allowed.