JUDGMENT Kuldip Chand Sobd, J. :- This appeal is directed against the judgment of conviction recorded by the learned Sessions Judge, Kinnaur Sessions division at Rampur vide his judgment dated February 24, 1997 wliereby Ram Singh and Smt. Roshni Devi, appellants, hereinafter referred to as"AI" and "A2", respectively were convicted for an offence punishable under Section 304 Part-II read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and also to pay fine of rupees 1000/- each. In case of default in the payment of fine, each of the accused was to suffer further simple imprisonment for six months. 2. Ram Singh(Al) is husband of Roshani Devi (A2). They are residents of village Darkali in Tehsil Rampur of District Shimla. Dassi Devi, deceased was married to Bhagat Singh but was living separately in her parental house. 3. The prosecution case was: On October 17, 1994, Dassi Devi while returning back from her field with grass in her kilta, was accosted by Roshani Devi (A2) near the Luxmi Narayan Temple in the village. "A2" Roshni Devi accused Dassi Devi of defaming her by spreading that "A2" was illicit relations with her husband Bhagat Singh. Both of them exchanged hot words. Dassi Devi challenged her to take oath that she had no relations with Bhagat Singh. In the meanwhile. Ram Singh (Al) came from his house and gave two danda blows. One of the blows hit her back and other on her head. Several persons, including her estranged husband Bhagat Singh, reached the spot. The incident was seen by Basant Lai (PW2), Ranjna Devi (PW5), Puran Sukh (PW6), Charan Dass (PW7) and Jai Singh (PW8). Ranjna Devi (PW5) took Dassi Devi to her house. She was then take for treatment to Rampur. On way they spent the night in the house of one Smt. Sampati. Next morning, Bhagat Singh, Charan Dass (PW7) and Mohan Lal (PW9) took her to hospital where she expired. It is the further case of the prosecution that Dassi Devi had lodged a report with Police Station Rampur (Ext.PW15/A) alleging that on October 17, 1994, when she was returning back home after cutting "Koda" from her field, Al and A2 met her, stopped her and started abusing her. When she enquired reason for abuse, Ram Singh (A 1) gave a blow a danda which he was carruing in his hand. When she enquired reason for abuse, Ram Singh (A 1) gave a blow a danda which he was carruing in his hand. Blood oozed out from her head and she fell on the spot. She was also given beatings with kicks and fists and had received injuries all over the bodies. She was rescused by villagers Ranjna Devi, Bhagat Ram, thouchu Puna and Sattan Dass Mehta etc. A formal F.I.R. Exhibit PW15/A, was recorded on this statement. Dassi Devi expired in the hospital at Rampur on October 18, 1994 at about 11.30 in the night. 4. Both the accused were charged and tried for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code for having caused murder of Dassi Devi. 5. Learned trial Judge concluded that there was a quarrel between the deceased Dassi Devi and Roshni Devi (A2) when Ram Singh (Al) suddenly appeared on the spot and inflicted two blows with a danda one on the back and the other on the head. According to the learned Sessions Judge, though there was no intention to cause death of Dassi Devi but as the injury was inflicted on the vital part of the body which resulted in the death of the injured, therefore, the accused were liable to be convicted under Section 304 Part-II of the Indian Penal Code. 6. Aggrieved, both the accused are in appeal against their conviction and sentence. 7. I have heard Mr. M.S. Chandel, learned counsel for the appellants and Mr. M.S. Bisht, learned Assistant Advocate General, for the State and have perused the record with their assistance. 8. So far inflicting of injury by Ram Singh (Al) is concerned, there is overwhelming evidence on record which shows that he gave danda blows on the person of Dassi Devi. One of the blows fell on the head of Dassi Devi and the other on her back. It is the evidence of Basant Ram (PW2) that Dassi Devi was from his village and on the fateful day, he saw Dassi Devi returning from her field with a grass in a kilta on her back. When she reached near the Temple, Roshni Devi (A2) had a quarrel with her. It is the evidence of Basant Ram (PW2) that Dassi Devi was from his village and on the fateful day, he saw Dassi Devi returning from her field with a grass in a kilta on her back. When she reached near the Temple, Roshni Devi (A2) had a quarrel with her. Ram Singh (Al) came out of his house with a danda and gave two blows, one on the back and other on the head of Dassi Devi as a result whereof, she fell down and blood started oozing from the injury on the head. In cross-examinaiton, he did state that his house, from the place of occurrence, is about 100 mtrs. Ranjan Devi appearing as PW5 stated that on the fateful day, she was in the shop of Charan Dass (PW7) where Jai Singh CPW8 and Bhaaat Singh were also present. She saw the quarrel between Dassi Devi and Roshni (Al) near Bouri. In the meanwhile, Ram Singh came with his son on the spot and gave a lathi blow on the leg of Dassi Devi. Another blow was also given by him which fell on her head. To similar effect is the evidence of Puran Sukh (PW6). According to him, at about 9.00 a.m. on the fateful day, he saw A2 Roshni Devi and deceased Dassi Devi quarreling near the temple. After some, time, Ram Singh (Al) appeared with a Danda in his hand. He gave a danda blow on the head of the deceased who fell down. In cross-exaination, he stated that he was standing at a distance of about 15 mtrs from the temple. But lateron, he admitted that he was in his house and he came to the place of occurrence when he heard noise and saw the incident. Charan Dass (PW7) is the star witness of the prosecuiton. It is his evidence that he has a shop in the Temple of "Luxmi Narayam" in village Darkali. On the fateful day, PWs Ranjna Devi, Jai Singh alongwith Bhagat Singh and had eight children out of this wedlock. At the relevant time, Dassi Devi was living in her parental house. The house of the deceased from the temple is approximately 100 yards. It is his further evidence that at about 9.30 a.m., on that day, he saw Dassi Devi was returning back home from her fields with a gress and kilta. At the relevant time, Dassi Devi was living in her parental house. The house of the deceased from the temple is approximately 100 yards. It is his further evidence that at about 9.30 a.m., on that day, he saw Dassi Devi was returning back home from her fields with a gress and kilta. When she reached near the temple, roshni Devi (A2) who was coming from Bouri side, met her. Both of them exchanged hot words. Ram Singh (Al) asked Dass Devi as to why she was falsely defaming her (Roshni Devi) of illicit relations with her (Dassi Devi) husband Bhagat Singh. Dassi Devi asked A2 Roshni Devi to take oath by picking soil from the temple. However, oath was not taken by Roshni Devi (A2). In the meanwhile, Ram Singh appeared from his house with a danda and gave two danda blows one on the back of Dassi Devi and other on her head. The blood started oozing out from the injury and she fell down. To a similar effect is the evidence of Jai Singh (PW8). According to this witness, on the fateful day, he had gone to the Pose Office near the Temple where Bhagat Singh, Charan Dass and Ranjna Devi were present. It is his evidence: "Dassi Devi was coming from her field and she was having grass in the kilta. when Dassi Devi reached near Laxmi Narayan temple at about 9.00 a.m. Roshni Devi met her and both of them started quarrelling with each other. Accused Roshni Devi was saying that she is not having illicit relations with your (Dassi Devi) husband and because of that reason both started quarrelling. In the mean time accused Ram Singh came at the spot from his house with a danda in his hand who hit Dassi Devi on her head and the blood started oozing...." 9. This apart, Liaq Ram (PW1) who took Dassi Devi to hospital at Rampur stated that on the fateful day, he met Dassi Devi who was weeping and she informed him that she was given beatings by Ram Singh (Al). He also saw blood oozing from her head. 10. There is nothing in the cross-examinaion of any of the witnesses which may dent the credibility of the witnesses. He also saw blood oozing from her head. 10. There is nothing in the cross-examinaion of any of the witnesses which may dent the credibility of the witnesses. In view of the overwhelming ocular evidence, it is proved that Ram Singh (Al) caused a injury on the head of deceased Dassi Devi tcrwhich she sccumbed on the next day at Rampur Hospital. . 11. It is the evidence of Dr. N.K. Verma, Senior Medical Officer, Referral Hospital, Rampur (PW11) that on October 18, 1994, he medically examined Dassi Devi and noticed the following injuries: (1) Lacerated wound on left parietal region, 10 cm above left pinna measuring 5 cm 1.5 cm. With clotted blood inside the matted hairs with blood. Reddish edges. Swelling around the wound ofsize 4 cm about the edges. Inside cavity formed of same size, having clotted blood. Bone pcriosteun exposed at wound side. (2) Bruise left calf region middle size 3 cm x 3 cm bluish violet discoloration. » . (3) Bruise left leg mid front 3 cm x 3 cm bluish violet discoloration. 12. According to Dr. Verma, no fracture of the skull was found. The injuries, though simple in nature, were caused with a blunt and .hard object which could be sufficient to cause death of a person. In cross-examination, he stated that head injury, that is, injury No.l was not sufficient to cause death though he later on clarified that if this injury had resulted in internal head injury, it could cause death. Dr. Ranjan Bisht, (PW12), who was then posted as Medical officer in the Referral Hospital at Rampur, conducted post mortem on the body of Dassi Devi on October 19, 1994. According to Dr. Ranjan Bishl, there was a lacerated wound on the left parietal region of the scalp measuring 5 cm x one and half cm. The wound was stitched; the edges of the wound were irregular with clotted reddish brown blood. On dissection, reddish brown b|ood was found underneath in the contused area. According reddish brown blood was found underneath in the contused area. According to him, there was no fracture in the scalp. The meanings were clear. On dissectio and removal of the meninges, the arteries allover the cerebral hemisphere werefonw thick and torturous. There was abnormally large collection veins all over the brain matter. According reddish brown blood was found underneath in the contused area. According to him, there was no fracture in the scalp. The meanings were clear. On dissectio and removal of the meninges, the arteries allover the cerebral hemisphere werefonw thick and torturous. There was abnormally large collection veins all over the brain matter. He found collection of blood in a area of 1.5 cmx I cm x 1 cm on the right parietal region of the cerebral hemisphere due to leakage from the surrounding arteries. The arteries were fodnd to be larger than normal. According to the opinion of Dr. Bisht, deceased died due to cerebral hemorrhage. In cross examination, this witness admitted that there was no injury on the right side of the scalp. However, he clarified that cerebral hemorrhage could be caused to the opposite side of the brain where external injury was caused. He denied the suggestion that in case of cerebral hemorrhage, death is instant. He, however, admitted that cerebral hemorrhage can also be caused by hypertension and trauma. 13. The medical evidence, discussed above, shows that deceased died due to the injury caused on her head by "Al". 14. Mr. M.S. Chandel, learned counsel for the appellants contended that no case is made out against roshni Devi (A2) and her conviction with the aid of Section 34 of the Indian Penal Code is illegal and not sustainable in law. 15. According to Mr. Chandel, there is no evidence of any overt or covert act on the part of Roshni Devi (A2) from which it may be inferred that she had a common intention with Ram Singh (Al) to cause any injury on the person of Dassi Devi. He urged that two danda blows were admittedly given by Ram Singh (Al) and there is nothing against Roshni Devi. She did not participate in the beatings given to deceased Dassi Devi in any manner. She did not exchange even a word with her husband. There is not a word against her so far so far infliction of injury is concerned and, therefore, Section 34 of the Indian Penal Code is not invocable in this case. Mr. Chandel also contended that there was hot exchange of words between Roshni Devi (A2) and decased Dassi Devi she (A) was being falsely defamed by Dassi Devi. There is not a word against her so far so far infliction of injury is concerned and, therefore, Section 34 of the Indian Penal Code is not invocable in this case. Mr. Chandel also contended that there was hot exchange of words between Roshni Devi (A2) and decased Dassi Devi she (A) was being falsely defamed by Dassi Devi. Ram Singh who had a house nearby, suddenly came there and gave a danda blow. In view of this evidence, urged Mr. Chandel, Roshni Devi (A2) cannot even be connected with the infliction of the injuries by her husband on the person of Dassi Devi even by implication. 16. Now Section 34 of the Indian Penal Code does not create any substantive offence. It is only a rule of evidence. This in a sense means that if two or more persons intentionally do a thing jointly, then it would be construed as if each of them has done it individually. Section 34 of the Code reads: "34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in persons is liable for that act in the same manner as if it were done by him alone. 17. It is now well settled that "common intention" requires a prior consent or pre-plan. The common intention has to be anterior in point of time to the commission of the crime though it may also develop even when the crime is committed. It is true that it is difficult to get direct evidence of common intention. However, the Court may infer it from the act and conduct of the accused and the other attending circumstances. Thus, there will be no liability of accused by reason of Seciton 34 except in a case where common intention to commit a particular offence is inferable from evidence on the record. In Mehbub Shah v. emperor, AIR 1945 Priya Council 118, the Privy Council ruled that essence of liability was to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke Seciton 34, the prosecution must show that the criminal act was done by one of the accused persons in furtherance of a common intention of all. To invoke Seciton 34, the prosecution must show that the criminal act was done by one of the accused persons in furtherance of a common intention of all. It was observed: "..This being the principle, it is clear to their Lordhsips that common intention within the meaning of the section implies a pre- arranged plan, and to convict the accused of an offence applying the seciton it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it had to be inferrd from his act or conduct or other relevant circumstances of the case". 18. The Apex Court in Mohan Singh & anr. v. Sttti of Punjab, AIR 1963 Supreme Court 174, interpreting the provisions of Section 34, held: "The essential constituent of the vicarious criminal liability prescribed by S.34 is the existence of common intention. If the common intension in question animates the accused persons and if said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the , criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Seciton 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis-of S.34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action in-concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. Cases to which S. 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. (Emphasis supplied) 19. Their Lordships further observed: "The common intention should never be reached unless it is necessary inference deducibie from the circumstances of the case." 20. The acts may be different; may vary in their character, but they are all actuated by the same common intention. (Emphasis supplied) 19. Their Lordships further observed: "The common intention should never be reached unless it is necessary inference deducibie from the circumstances of the case." 20. In Krishna Govind Patil v. State of Maharashtra, AIR 1963 Sc 1413, the Supreme Court once again reminded that a court, before convicting a person with the help of Section 34 of the I.P.C. should come to a definite conclusion that such a person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. 21. In Joginder Singh v. State o Haryana AIR 1994 Supreme Court 461, the Apex Court observed that common intention has to be anterior in time to the commission of the crime and that intention of the invidual has to be interfered from the overt act or conduct or from the relevant circumstances and totality of the circumstances has to be considered in order to arrive at a conclusion that whether the accused had a common intention Jo commit the offence under which he could be convicted. We may now examine the evidence on the touch stone discussed above, to see if Roshni Devi (A2) can be convicted for the offence with the aid of Seciton 34 of the Indian Penal Code. It is the admitted position that Roshni Devi (A2) and deceased Dassi. Devi met near the temple incidentally without any design or pre arranged plan. As Roshni Devi had a grouse that Dassi Devi deceased was defaming her by falsely spreading that she had illicit relations with her husband. It was fortuitous that they met near the temple and Roshni Devi (A2) asked Dassi Devi as to why she was defaming her with these false allegations. It is also not in dispute that Ram Singh (Al) suddenly appeared from his house with a danda and gave two blows with that weapon one on the head of Dassi Devi and other on her back. Now it is the evidence of Liaq Ram (PW1) that Dassi - Devi told her that she was beaten by Ram Singh. It is his evidence "the injured had said nothing against accused Roshni Devi to him". Similarly, Basant Lal (PW2) is categorical th# Dassi Devi told her that she was beaten by Ram Singh accused. Now it is the evidence of Liaq Ram (PW1) that Dassi - Devi told her that she was beaten by Ram Singh. It is his evidence "the injured had said nothing against accused Roshni Devi to him". Similarly, Basant Lal (PW2) is categorical th# Dassi Devi told her that she was beaten by Ram Singh accused. Puran Sukh (PW6) states that Dassi Devi and Roshni Devi were quarreling near the temple. "Ram Singh accused came later on who was having a danda in his hand. Accused gave blow of danda on the head of the deceased who fell down". Charan Dass (PW7) also does not ascribe any role to Roshni Devi. According to him, Ram Singh came from his house and gave two danda blows to Dassi Devi. To a similar effect is the evidence of Jai Singh (PW8). None of the prosecution witnesses, it may be noticed, ascribe any overt or covert act to Roshni Devi. According to him, Ram Singh came from his house and gave two danda blows to Dassi Devi. To a similar effect is the evidence of Jai Singh (PW8). None of the prosecution witnesses, it may be noticed, ascribe any overt or covert act to Roshni Devi in the infliction of the injury. The evidence shows that not a word was exchanged between Ram Singh (A 1) and Roshni Devi (A2). There was no extortion on the part of Roshni Devi. It is not even the prosecution,case the Roshni Devi was instrumental overtly or covertly in any manner in the infliction of injuries on the person of Dassi Devi. It was without any pre-arranged plan or concert that "Al" Ram Singh appeared on the spot. A2 Roshni Devi had not even called Ram Singh. 22. Apparent as it is, there was no occasion for the meeting of mind or any common intention anterior or at the time of occurrence between Ram" Singh (Al) and Roshni Devi (A2) to cause any injury to the deceased. The circumstances shows that Ram Singh appeared at the=place of-occurrence, from his house after hearing hot exchanges between his wife and Dassi Devi, and inflicted the blows with lathi at the spur of the moment having incensed by the allegations made by the deceased against his wife. The circumstances shows that Ram Singh appeared at the=place of-occurrence, from his house after hearing hot exchanges between his wife and Dassi Devi, and inflicted the blows with lathi at the spur of the moment having incensed by the allegations made by the deceased against his wife. It, is evident that Danda blows given by accused Ram Singh were not in furtherance of the common intention of Ram Singh and his wife. Mere presence, at the place of occurrence without active participation or doing of any covert or overt act would not make Roshni Devi liable for the commission of the offence committed by Ram Singh with the aid of Section 34 of the Penal Code. 23. In my view, Roshni Devi could not have been, in the facts and circumstances of this case, convicted with the aid of Section 34 of the Penal Code. 24. Mr. Chandel, learned counsel for the accused lastly urged that Ram Singh (Al) has suffered agony of trial for the last more than seven years. It was on a grave and sudden provocation that lathi blow was given by Ram Singh on the head of deceased Dassi Devi and, therefore, lenient view may be taken in the matter of sentence. 25. Taking into consideration the entirety of the circumstances, the medical evidence which shows that lathi blow .was not given with force inasmuch as the wound was skin deep, the skill was not fractured and the further fact that there was no pre-meditation in causing the injury and there was abnormally large collection of veins indicating some kind of disease, the ends of justice would be met if sentence of imprisonment is reduced from five years to three years. 26. In result, appeal is partly accepted. Accused Roshni Devi (A2) is acquitted. Her bail bonds are discharged. Conviction of Al Ram Singh is maintained under Section 304 Part-II of the Indian Penal Code. However, sentence imposed is modified. He is sentenced to suffer rigorous imprisonment for three years and to pay fine of rupees 1000/-. In case of default in the payment of fine, he shall suffer imprisonment for six months. Her bail bonds are discharged. Conviction of Al Ram Singh is maintained under Section 304 Part-II of the Indian Penal Code. However, sentence imposed is modified. He is sentenced to suffer rigorous imprisonment for three years and to pay fine of rupees 1000/-. In case of default in the payment of fine, he shall suffer imprisonment for six months. Needless to say that the period of detention if any undergone by accused Ram Singh during the investigation, inquiry or trial of the case and after his conviction by the learned trial Court, shall be set off against the terms of imprisonment imposed upon him under Section 428 of the Code of Criminal Procedure. Al Ram Singh shall immediately surrender to his bail bounds to undergo the sentence imposed. The bail bonds of A2 Roshni Devi are discharged. The fine paid by her if any shall be refunded to her forthwith. 27. The case property shall be dealt in accordance with the orders of, learned trial Judge.