G. P. MATHUR, J. Balbir Singh, Mahipal Singh and Jai Pal Singh have preferred this appeal against the judgment and order dated 30-11-1981 of Additional Sessions Judge, Hamirpur in S. T No. 6 of 1981 by which appellant Balbir Singh was convicted under Section 302 I. P. C. and the appellants Mahipal Singh and Jai Pal Singh were convicted under Section 302 read with Section 34, I. P. C. and they were all sentenced to imprisonment for life. The appellants were further convicted under Section 323 read with Section34 I. P. C. and were sentenced to one year R. I. 2. The appellant No. 1 Balbir Singh according to the report of C. J. M. Hamir pur has died. His appeal was accordingly abated by the order dated 26-3-2001. Now we are only concerned with the remaining two appellants. 3. The case of the prosecution, as set-forth in the F. I. R. and as unfolded by the evidence, in brief, is that at about 5. 00 p. m. on 26-5-1980, the deceased Narain Das was playing cards along with Dharam Singh and appellants Balbir Singh and Mahipal Singh on the chabutra of Lal Deewan in village Veera. While so playing exchange of hot words took place between the deceased Narain Das and the appel lant Balbir Singh in which the latter gave abuses to the former and used some filthy words. The deceased also gave abuses to Balbir Singh. In a fit of rage Balbir Singh went to his house and brought a gun while his brothers Mahipal Singh and Jai Pal Singh brought lathis and challenged Narain Das. He then ran towards eastern side raising an alarm on which his brother, the first informant, Sri Krishan, his father Mullu and another brother Ram Adhar and some others came to the spot. They challenged Balbir Singh and his brothers. However, Balbir Singh fired from his gun upon Narain Das, who fell down and died. Mahipal Singh and Jai Pal Singh assaulted Shri Krishan and Mullu with lathis. There after, all the accused ran away. Shri Krishan then lodged a F. I. R. of the occurrence at 7. 45 p. m. on 26-5-1980 at P. S. Jaria, which is 3 kms. from the place of occurrence. 4. Mahipal Singh and Jai Pal Singh assaulted Shri Krishan and Mullu with lathis. There after, all the accused ran away. Shri Krishan then lodged a F. I. R. of the occurrence at 7. 45 p. m. on 26-5-1980 at P. S. Jaria, which is 3 kms. from the place of occurrence. 4. P. W. 8 Udai Pratap Singh, clerk constable of P. S. Jaria prepared chick F. I. R and also registered a case in the General Diary at 7. 45 p. m. The F. I. R. was lodged in the presence of Lai Bahadur Verma, S. O. of P. S. Jaria. He immediately commenced investigation of the case and proceeded for the spot. He held inquest on the body of the deceased Narain Das, prepared photo lash, challan lash and prepared other necessary documents. The body was sealed and was sent for post-mortem examina tion. He collected plain and blood stained chaff from the place where the body of the deceased was lying and their recovery memo was prepared. After his transfer Mahabir Singh Chaudhary took over in vestigation of the case and recorded state ment of the remaining witnesses under Section 161 Cr. PC. Thereafter, he sub mitted charge sheet against all the ac cused. 5. The learned C. J. M. Hamirpur took cognizance of the offence and committed the case to the Court of Sessions. The learned Additional Sessions Judge by his order dated 24-2-1981 framed charge under Section 302 I. P. C. against Balbir Singh accused and under Sections 302/34 I. P. C. against Mahipal Singh and Jai Pal Singh accused. All the accused were fur ther charged under Section 323/34 I. P. C. The charges were explained to the accused who pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 9 witnesses including 4 eye witnesses. The accused in their statement under Section 323 Cr. PC. denied the prosecution case and alleged their false implication on account of enmity. They however, did not lead any evidence in their defence. The learned Sessions Judge believed the case of the prosecution and convicted and sentenced the appellants as stated earlier. 6. We have heard Sri Vinay Saran for the appellants, Sri R. K. Singh, learned A. G. A. for the State and have perused the record. 7. They however, did not lead any evidence in their defence. The learned Sessions Judge believed the case of the prosecution and convicted and sentenced the appellants as stated earlier. 6. We have heard Sri Vinay Saran for the appellants, Sri R. K. Singh, learned A. G. A. for the State and have perused the record. 7. The post-mortem examination on the body of the deceased Narain Das was conducted by P. W. 7 Dr. A. K. Srivastava, Medical Officer Incharge, Rath Hospital at 3. 00 p. m. on 27-5-1980. The following ante- mortem injury was found on the body of the deceased: " (1) Thirty five (35) Gun shot entry wounds each. 2 cm x. 2 cm. skin to cavity deep on both side of chest in area 16 cm x 16 cm extend ing from Rt. clavicle to Rt. nipple and Left clavicle to Left nipple. Clots present. " 8. The internal examination showed that pleura, right lung, left lung pericar dium and heart were lacerated. In all 20 pellets were found in the chest. In the opinion of the doctor, cause of death was shock and haemorrhage and the injuries were sufficient in the ordinary course of nature to cause death. The doctor further opined that the injuries could have been caused at 5. 00 p. m. on 26-5-1980. The post mortem report is Exhibit Ka-5 on the record. 9. P. W. 7 Dr. A. K. Srivastava also ex amined Shri Krishan at 12. 30 p. m. on 27-5. 1980 and found the following injuries on his person: " (1) Lacerated wound 6 cm x 3 cm on top of head. Scalp deep, 10 cm above occipital protuberance. (2) Contused swelling 8 cm x 5 cm on dorsum of left hand ulanar side. Under observa tion. Adviced X- ray. (3) Contused swelling 7 cm x 4 cm on outer and back of Rt. Arm, 4 cm above elbow joint. " 10. In the opinion of the doctor, the injuries had been caused by blunt object. The injury report is Exhibit Ka-3 on the record. 11. The same doctor examined Mullu at 1. 00 p. m. on 27-5-1980 and found the following injuries on his person: " (1) Lacerated wound 5 cm x. 5 cm x scalp on top of head, 9 cm from root of nose. The injury report is Exhibit Ka-3 on the record. 11. The same doctor examined Mullu at 1. 00 p. m. on 27-5-1980 and found the following injuries on his person: " (1) Lacerated wound 5 cm x. 5 cm x scalp on top of head, 9 cm from root of nose. (2) Lacerated wound 2 cm x 2 cm dorsum aspect of left hand on root of index finger with contused swelling on index, middle on dorsum of left hand 9 cm x 4 cm in size. Under observa tion. Advised X-ray. (3) Abrasion 15 cm x 1 cm on inner aspect of Rt. Fore-arm, just above wrist joint. (4) Lacerated wound 3 cm x 2 cm on palmer aspect of Rt. hand just below wrist joint. " 12. In the opinion of the doctor, in juries were caused by blunt object. The injury report is Exhibit Ka-4 on the record. 13. In order to establish its case, the prosecution examined 4 eye-witnesses of the incident. P. W. 1 Shri Krishan and P. W. 4 Ram Adhar are brothers qf the deceased Narain Das while P. W. 2 Mullu is his father. P. W. 3 Dharam Singh was present right from the beginning as he was playing cards along with the deceased Narain Das and the appellants Balbir Singh and Mahipal Singh. All the eye-witnesses have stated that exchange of abuses took place be tween Narain Das and Balbir Singh ac cused while they were playing cards and Balbir Singh used some filthy language on which Narain Das also retorted by giving abuses. Thereafter, all the accused went to their house and then Balbir Singh carrying a gun and Mahipal Singh and Jai Pal Singh carrying lathis came there and challenged Narain Das who ran towards eastern side but the accused followed him. Narain Das tried to enter the cattle shed of Hindu Path but as it was bolted and chained, he turned and at that very moment Balbir Singh fired upon him, who after receiving gun shot, fell down and died. When Shri Krishan and Mullu challenged the accused, Mahipal Singh and Jai Pal Singh assaulted them with lathis. 14. P. W. 8 Udai Pratap Singh, clerk constable of P. S. Jaria has proved the chick F. I. R. prepared by him and has also stated that he registered the case in General Diary at 7. When Shri Krishan and Mullu challenged the accused, Mahipal Singh and Jai Pal Singh assaulted them with lathis. 14. P. W. 8 Udai Pratap Singh, clerk constable of P. S. Jaria has proved the chick F. I. R. prepared by him and has also stated that he registered the case in General Diary at 7. 45 p. m. P. W. 9 Lal Bahadur Verma, S. O. of P. S. Jaria, commenced in vestigation of the case immediately after the F. I. R. had been lodged as he was present in the police station. He went to the spot, held inquest on the body of the deceased and did all other formalities in connection with post-mortem examina tion. He also recovered plain and blood stained chaff from the place where the body was lying. PW 5 Mahabir Singh Chaudhary took over investigation from P. W. 9 after he had been transferred. He has stated that after completing investigation he submitted charge sheet against the ac cused persons. P. W. 6 Jawahar Lal, con stable, carried the body of Narain Das to Rath for the purpose of post-mortem ex amination. 15. The testimony of the 4 eye-wit nesses shows that the deceased was playing cards with P. W. 3 Dharam Singh and appel lants Balbir Singh and Mahipal Singh at about 5. 00 p. m. on 26-5-1980 on the chabutra of Lai Deewan. During the game exchange of words took place and Balbir Singh started abusing Narain Das and also used some filthy language which was retorted by the deceased and he also gave abuses. It was thereafter, that Balbir Singh and Mahipal Singh went to their house and returned soon thereafter. At that time Bal bir Singh was armed with gun and Mahipal Singh and Jai Pal Singh were armed with lathis and they challenged the deceased. The deceased tried to save himself by run ning towards the eastern direction and wanted to go inside the cattle shed of Hindu Path but as it was bolted and chained he turned and at that very moment Balbir Singh fired upon him. After receiv ing injuries, he fell down dead on the spot. P. W. 1 Shri Krishan and P. W. 2 Mullu, brother and father respectively of the deceased challenged the accused but they were assaulted by lathis by Mahipal Singh and Jai Pal Singh. After receiv ing injuries, he fell down dead on the spot. P. W. 1 Shri Krishan and P. W. 2 Mullu, brother and father respectively of the deceased challenged the accused but they were assaulted by lathis by Mahipal Singh and Jai Pal Singh. P. W. 3 Dharam Singh was one of the participants in the game of cards and naturally he saw the entire incident right from the beginning. P. W. 1 Shri Krishan and P. W. 2 Mullu received injuries by lathis and they were medically ex amined next day when P. W. 7 Dr. A. K. Srivastava found blunt weapon injuries on their person. Thus, their presence on the spot is also established by the fact that they received injuries in the incident in ques tion. P. W. 4 Ram Adhar is also brother of the deceased and is resident of the same place. He has also been named in the F. I. R. which was very promptly lodged at 7. 45 p. m. on the same day at the police station. The incident took place on 27th of May when sunset takes place after 6. 30 p. m. and there is good light even after 7. 00 p. m. The incident having taken place at 5. 00 p. m. which was broad day light, there was no occasion for any mistake in identifying the assailants. The post-mortem report of the deceased shows that he received gun shot injuries on his chest, which again cor roborates the testimony of the eye-wit nesses. There is no enmity of any kind between the accused and the eye- wit nesses. The witnesses had no motive at all to falsely implicate the accused. Thus, the case of the prosecution that Balbir Singh fired upon Narain Das and Mahipal Singh and Jai Pal Singh accused assaulted Shri Krishan and Mullu with lathis at about 5. 00 p. m. on 26-5-1980 is established beyond any shadow of doubt. 16. The role of shooting and causing death of Narain Das has been assigned to Balbir Singh. He has, however, died during the pendency of the appeal and, conse quently, his appeal has abated. 17. The question which requires con sideration is what is the nature of the of fence which has been corr mined by ac cused Mahipal Singh and Jai Pal Singh. He has, however, died during the pendency of the appeal and, conse quently, his appeal has abated. 17. The question which requires con sideration is what is the nature of the of fence which has been corr mined by ac cused Mahipal Singh and Jai Pal Singh. According to the case of prosecution, they were armed with lathis and they did not cause any injury to the deceased Narain Das. It is noteworthy that the deceased was playing cards with Balbir Singh and Mahipal Singh. Obviously, they must be having good relations inter se as nobody plays cards with his enemies. The incident took place all of a sudden when some exchange of words took place between Bal bir Singh and the deceased Narain Das during the game which was followed by exchange of abuses. It is mentioned towards the end of the F. I. R. that the first informant had not enmity with Balbir Singh and the murder had been committed only on account of the dispute which took place during the game of cards being played by them. The evidence on record does not show that after Balbir Singh and Mahipal Singh entered their house and came out with gun and lathi respectively, there was any time gap. It appears that they went to the house, picked up the weapons and immediately came out and then they challenged Narain Das. When Mahipal Singh and Jai Pal Singh chased Narain Das their intention may have been to give him few lathi blows on account of the fact that the latter had given abuses to Balbir Singh. There was absolutely no motive on their part to commit his murder. Unfortunate ly, Balbir opened fire from his gun which hit Narain Das on his chest. Mahipal Singh and Jai Pal Singh did not cause any injury to Narain Das after he had fallen though it was very easy to do. They only gave few blows to Shri Krishan and Mullu who had challenged these persons. It is important to note that Shri Krishan sus tained one lacerated wound on scalp, one contused swelling on left hand and one contused swelling on elbow joint. Similar ly, Mullu sustained two lacerated wounds on left and right hand and one abrasion. All the injuries sustained by them were simple in nature. The accused did not cause any serious or grievous injury to them. Similar ly, Mullu sustained two lacerated wounds on left and right hand and one abrasion. All the injuries sustained by them were simple in nature. The accused did not cause any serious or grievous injury to them. This shows that Mahipal Singh and Jai Pal Singh had no intention of causing any serious injury. The learned Sessions Judge has convicted then under Section 302 read with Section 34 I. P. C. The scope and ambit of Section 34, I. P. C. was explained in the celebrated judgment of the Privy Council in Mehbub Shah v. Emperor, A. I. R. 1945 P. C. 118, and it was held as under: "common intention within the meaning of Section 34 implies a pre- arranged plan. To convict the accused of an offence applying Sec tion 34 it should be proved that the criminal act was done in concert pursuant to the pre-ar ranged plan. It is no doubt difficult if not impos sible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant cir cumstances of the case. Care must be taken not to confuse same or similar intention with com mon intention; the partition which divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if over looked will result in miscarriage of justice. 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. " 18. In Dukh Mochan Pandey v. State of Bihar, A. I. R. 1998 S. C. 40, it was held that the existence of a common intention be tween the participants in a crime is an essential element for attracting Section 34 of I. P. C. and such intention could be formed previously or on the spot, during the progress of the crime. Usually, it im plies a pre-arranged plan, which in turn pre-supposes a prior meeting of mind. Usually, it im plies a pre-arranged plan, which in turn pre-supposes a prior meeting of mind. But in a given case such common intention may develop at the spur of the moment in course of the commission of offence, but such common intention, which developed at the spur of moment is different from similar intention which actuated a number of persons at the same time, and, therefore, the said distinction must be borne in mind, which would be relevant in deciding whether Section 34,i. P. C. can be applied to all those, who might have made some over-attack on the spur of moment. 19. On the facts and circumstances of the case and applying the principle stated above, we are of the opinion that Mahipal Singh and Jai Pal Singh had no common intention to commit the murder of Narain Das. There was absolutely no motive to commit the murder. It was not a pre-ar range attack but the incident took place all of a sudden on account of exchange of words during the game of cards. Obviously, the accused Balbir Singh and Mahipal Singh and the deceased Narain Das were friends. When Mahipal Singh and Jai Pal Singh accused chased Narain Das, their intention might have been to cause him simple injuries in the same manner as they did while causing injuries to P. W. 1 Shri Krishan and P. W. 2 Mullu. The evidence on the record and the circumstances of the case do not show that they had any pre-ar ranged plan with Balbir Singh to cause fatal injuries to Narain Das. We are, there fore, of the opinion that the appellants Mahipal Singh and the Jai Pal Singh did not share any common intention with ac cused Balbir Singh to commit the murder of Narain Das. Therefore, the conviction of these two accused under Section 302/34 I. P. C. cannot be sustained and must be set-aside. 20. The bail granted to the appellants Mahipal Singh and Jai Pal Singh was can celled on 10-1-2001 and they were produced in Court on 26-3-2001 and thus, they have undergone nearly 5 months in jail. They have remained in jail for some time during the pendency of the trial and then again after their conviction by the learned Sessions Judge. The bail granted to the appellants Mahipal Singh and Jai Pal Singh was can celled on 10-1-2001 and they were produced in Court on 26-3-2001 and thus, they have undergone nearly 5 months in jail. They have remained in jail for some time during the pendency of the trial and then again after their conviction by the learned Sessions Judge. We are of the opinion that for the offence under Section 323/34 I. P. C, the period already under gone by them in jail would meet the ends of justice. 21. In the result, the appeal is partly allowed. The conviction of the appellants Mahipal Singh and Jai Pal Singh under Section 302/34 I. P. C. and the sentence of imprisonment for life imposed there under is set- aside. The conviction of the appel lants under Section 323/34 I. P. C. is, how ever, affirmed and they are sentenced to the period already undergone. The appel lants are in custody, they shall be released forthwith unless wanted in some other case. Appeal partly allowed. .