JUDGMENT - PATEL J.N., J.: - The appellants were charged for having committed murder of Bhagwan Shamrao Patil, in furtherance of their common intention on 10th July, 1997 at about 10 A.M., and were tried for having committed offence under section 302 read with section 34 I.P.C. By the 2nd Additional Sessions Judge, Wardha, and by the judgment and order dated 23rd February, 1999, came to be convicted for offence punishable under section 302 read with 34 of I.P.C., and sentence to suffer imprisonment for life. It is this judgment and order of conviction and sentence, which is the subject-matter of this appeal. 2. In nutshell, it is the prosecution case that on the day of the incident, the deceased Bhagwan Shamrao Patil who was the resident of Mouza Nagzari was invited by the appellants to their house about 10 O'clock. The appellants and victim's families are residing in the adjoining houses and were distantly related to the deceased. Their relations were strained over the 3 acres of agricultural land owned by Anusayabai, mother of the deceased Bhagwan, which was given for cultivation on contract initially to one Kamlabai and thereafter to one Udehban. Appellant/original accused No. 3 Gangabai actually wanted to cultivate the land of Anusayabai, but Anusayabai had refused to give the said land to her and, therefore, there was a quarrel between Kamlabai and appellant original accused No. 1 Suresh and accused No. 3 Gangabai, with the deceased Bhagwan. On the next day of the quarrel, it is alleged that the deceased Bhagwan was abusing the accused persons. On this, the accused persons called Namdeo Adkane (P.W. 3), their neighbour and told him that deceased was abusing them and he should stop the deceased. On this Namdeo assured them that he had already pacified Bhagwan at his house in the morning, but on the request of the accused person, he again visited the house of deceased Bhagwan and asked him not to quarrel and waited, there till his wife and daughter returned home. Therefore, Namdeo informed wife of the deceased about the altercation between the accused and the deceased and asked her to attend Bhagwan and the deceased Bhagwan also agreed not to quarrel with the accused. 3. Therefore, Namdeo informed wife of the deceased about the altercation between the accused and the deceased and asked her to attend Bhagwan and the deceased Bhagwan also agreed not to quarrel with the accused. 3. According to the prosecution, the accused persons thereafter invited Bhagwan to have tea with them and taking advantage of the situation, the appellants accused Bablu and Smt. Gangabai held deceased Bhagwan and Suresh struck him with an axe on his neck. After striking Bhagwan, Suresh tried to run away from the scene of occurrence, whereas accused Bablu and Gangabai followed him till Bhagwan reached his house and fell down. This incident was witnessed by Kavita daughter of Bhagwan, who came out as she saw her father coming towards the house in an injured condition followed by the accused persons. Deceased Bhagwan fell on his daughter Kavita who made him lie on the ground. In the mean time, Kavita's aunt brought water and gave it to deceased Bhagwan, after which Bhagwan died. 4. Smt. Lalitabai (P.W. 2) widow of Bhagwan Patil, who was also in house at the time of the incident, went to police patil and informed him of the incident. Police Patil of Nagzari gave a telephonic message to Pulgaon Police Station at about 11.30 a.m. that Bhagwan Patil was murdered by his relations. Said message was received by Police Head Constable Rameshwar Damodhar Amnerkar (P.W. 8) who has immediately informed about it to P.I. Shri Ingole (P.W. 9). On receiving the message, P.S.I. Ingole (P.W. 9) who was, at the relevant time, working as Police Sub-Inspector at police station, Pulgaon, made an entry in the police diary and visited the spot at about 11.45 a.m. There he saw widow of the deceased and took down her report Exh. 43 and sent the said report to Police Station, Pulgaon to register the said offence. P.S.I. Ingole then prepared spot panchnama and so also various seizure panchnamas Exhs. 61 to 69 under which he seized bed sheets stained with blood, plain earth and earth stained with blood from different places from the house of the accused persons upto the place where the victim fell down near his house. P.S.I. Ingole also seized the axe which was found lying on the road along with black sleeper. He then arrested accused Suresh Kamade and Baban and seized their clothes stained with blood. P.S.I. Ingole also seized the axe which was found lying on the road along with black sleeper. He then arrested accused Suresh Kamade and Baban and seized their clothes stained with blood. After preparing the Inquest panchnama, the dead body of the deceased was sent to Primary Health Centre, Pulgaon. In the course of investigation, P.S.I. Ingole recorded the statements of witnesses. He also collected blood samples and nail clipping of the accused and deceased vide seizure memo Exhs. 70, 71 and 72, and blood sample vide Exh. 73. He sent the muddemal to C.A. for analysis and on receiving the C.A. report and completing the investigation and after arresting the accused Gangabai on 11-7-1997, he submitted the charge-sheet against the accused persons in the Court of J.M.F.C., Pulgaon. 5. The appellants accused were charged for having committed offence under section 302 read with 34 of I.P.C. for having committed murder of deceased Bhagwan in furtherance of their common intention. They pleaded not guilty and claimed to be tried and took a defence that they have been falsely implicated in the case. The appellants accused also filed their written statement in which they took a plea that they were residing in the house of Ramraoji Patil, brother of deceased Bhagwan, and that the appellant-accused Suresh was about to purchase his house and agricultural land which had come in the share of Anusayabai, mother of Bhagwan and was being cultivated by him through his mother-in-law and that Bhagwan who was against all these things, used to quarrel with him. According to him, there were criminal cases against Bhagwan and he was a bootlegger and because of this, nobody was prepared to file any complaint against him. On the day of incident, he was under the influence of liquor since morning and was abusing members of his family and that so far as Suresh is concerned, he had gone to the field in the morning and that at about 10 or 10.15 hours when he returned home, his wife informed that Bhagwan was abusing since morning and that she had called Namdoe Adkine and asked him to convince Bhagwan. But inspite of convincing Bhagwan, he did not pay attention to it. Therefore, Suresh told his wife that he would go to the Police Station and file complaint. But inspite of convincing Bhagwan, he did not pay attention to it. Therefore, Suresh told his wife that he would go to the Police Station and file complaint. The appellant accused Suresh specifically denied that deceased, on the day of incident, had come to their house or that they have assaulted him. 6. The prosecution examined in all nine witnesses in support of their case. The learned trial Court found that the prosecution has proved that death of deceased Bhagwan Patil was homicidal and the appellant-accused, in furtherance of their common intention, did commit murder by intentionally and knowingly causing death of deceased Bhagwan Patil. 7. Mr. Daga, the learned Counsel appearing for the appellants-accused submitted that the prosecution case rests on eye-witnesses out of whom two are interested witnesses being daughter of the deceased i.e. Kavita (P.W. 1) and widow of the deceased i.e. Lalitabai (P.W. 2), one Namdoe who is a neighbour, and Vanita. It is submitted that the evidence of these eye-witnesses do not disclose the genesis of the incident and the evidence of the eye-witnesses is also not reliable on account of contradictions and omissions in their evidence and they do not corroborate each other. Secondly, Mr. Dage submitted that the spot panchnama (Exh. 61) and various seizure memos which have been relied upon by the prosecution also falsifies the prosecution case that the victim was assaulted in the open place as stated by the eye-witnesses. According to Mr. Daga, the prosecution has treated the report of Lalitabai (P.W. 2) widow of the deceased, as first information report, which cannot be held so, as Police Head Constable Rameshwar (P.W. 8), in his evidence stated that he got the information from the police Patil of the village that Bhagwan has been killed by his relatives and, therefore, this information received at the Police Station by Rameshwar, ought to have been treated as the First Information Report. Therefore, in the submission of Mr. Daga, the Police have prepared the statement of Lalitabai (P.W. 2) to suit the prosecution case and treated it as the First Information Report. According to Mr. Daga, Smt. Lalitabai (P.W. 2) is not an eye-witness as, in her evidence before the Court, she has stated that she has not seen the actual assault by the original accused No. 1 Suresh and she has only stated about the role played by the accused Nos. According to Mr. Daga, Smt. Lalitabai (P.W. 2) is not an eye-witness as, in her evidence before the Court, she has stated that she has not seen the actual assault by the original accused No. 1 Suresh and she has only stated about the role played by the accused Nos. 2 and 3 of holding the victim. It is submitted that the prosecution has not been able to establish that at what stage, she came at the scene of offence and has tried to improve the prosecution case through this witness and, therefore, it would be most unsafe to rely on Kavita (P.W. 1) and Lalitabai (P.W. 2) who do not corroborate each other and are interested witnesses. 8. Mr. Daga submitted that the other witnesses in the case namely the panchas had turned hostile and, therefore, no value can be attached to the search and seizure of various articles conducted by the police. It is submitted that even seizure of the axe is suspicious. 9. It is submitted by Mr. Daga, the learned Counsel for the appellants-accused that if one considers the prosecution case in totality, it can be seen that it was deceased Bhagwan who was abusing the accused persons and was that aggressor who tried to assault the accused persons armed with an axe which has been seized from the spot. 10. Mr. Daga further submitted that even if the prosecution case is accepted, on the background facts of the case and considering the medical evidence, this is a case of one blow being struck by the accused and, therefore, at the most, the case would fall under section 304 Part II as the appellant-accused Suresh had no intention to kill deceased whereas the deceased was terror in the locality and indulged in bootlegging and, therefore, the Court may consider the case of the appellant-accused Suresh sympathetically. 11. It is further submitted by Mr. Dage that insofar as involvement of the appellant-accused Bablu, who is only 19 years old, and the wife of the appellant-accused Suresh i.e. Sau. 11. It is further submitted by Mr. Dage that insofar as involvement of the appellant-accused Bablu, who is only 19 years old, and the wife of the appellant-accused Suresh i.e. Sau. Gangabai is concerned, they have been falsely implicated by the interested witnesses and have been convicted with the help of section 34 of I.P.C. It is submitted that in the case of (Harbans Nonia and another v. State of Bihar)1, 1993 S.C.C. (Cri.)257, the Supreme Court, while considering the application of section 34 I.P.C. has held that if there is no evidence indicating any pre-concert of mind on the part of the co-accused and if there are circumstances showing intention on their part to participate in the Act of murder, it cannot be said that the co-accused shared the common intention with the main accused to cause his murder. At the most, it can be said that they could anticipate that main accused may cause grave hurt, considering the fact that victim Bhagwan was assaulted by the appellant accused Suresh with an axe and, therefore, their conviction under section 302 I.P.C. with the help of section 34 I.P.C. will not be proper. Mr. Daga has also placed reliance on the case of (Ramashish Yadav and other v. State of Bihar)2, 2000 S.C.C.(Cri.) 9 and submitted that Supreme Court has held that merely because two persons had held the deceased while other two had given gandasa blows to the deceased, it cannot be held that the two persons who had held the deceased, shared common intention with the other two to murder the deceased. Therefore, according to Mr. Daga, it is a fit case where accused-appellants Bablu and Sau. Gangaba deserve to be acquitted of the offence under section 302 I.P.C. with the aid of section 34 of I.P.C. It is submitted that they are on bail right from the commencement of the trial and for want of any evidence to show that they shared common intention with the appellant-accused Suresh to commit murder of Bhagwan, they deserve to be acquitted as mere presence of these appellants-accused, by itself, is not sufficient to attract section 34 of I.P.C. 12. Mr. Mr. Mirza, the learned A.P.P., submitted that this is a case where the prosecution has not only established the crime committed by the accused persons by examining eye-witnesses who are non-other than the widow and daughter of the deceased, who were, admittedly, present at the scene of offence and the neighbours. It is submitted that preconcert is evident from the fact that victim Bhagwan was invited by the accused persons to their house for tea and, therefore, it was not expected of him to carry the axe as alleged by the learned Counsel for the appellants. On the other hand, the accused persons laid a trap for deceased Bhagwan and taking advantage of the situation, the co-accused Bablu and Gangabai held the victim Bhagwan to facilitate the appellant-accused Suresh to commit his murder with the help of an axe. It is submitted that the evidence of all these witnesses is cogent, consistent and reliable. The police has carried out investigation in a proper manner and the seizure of blood stained earth right from the house of the appellants accused till the house of the deceased under the panchanama, rather corroborate the prosecution case that the victim, on being given a blow with axe on his neck, stated bleeding profusely and tried to escape and go towards his house, but fell on the doorstep and died in the lap of his daughter. Mr. Mirza submitted that merely because deceased Bhagwan was a bootlegger or a notorious person, would not, in any manner, exonerate the appellants-accused from the charge of having committed murder. It is submitted that the prosecution has brought on record that the co-accused were holding the victim to facilitate the murder by the principal accused and, therefore, their case is clearly covered by section 34 of I.P.C. and they have been rightly convicted by the trial Court with the aid of section 34 of I.P.C. as they have committed murder of deceased Bhagwan in furtherance of their common intention. The learned A.P.P. has placed reliance on the case of (Lallan Rai and others v. State of Bihar)3, 2003 Cri.L.J. 465 wherein the Supreme Court has held that the requirement of the statute is sharing the common intention upon being present at the place of occurrence. The learned A.P.P. has placed reliance on the case of (Lallan Rai and others v. State of Bihar)3, 2003 Cri.L.J. 465 wherein the Supreme Court has held that the requirement of the statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused, though the same, however, depends upon the fact-situation of the matter under consideration and no rule steadfast can be laid down, therefore Mr. Mirza submitted that the Court in Lallan Rai's case has considered carious decisions of the Supreme Court and, therefore, if the fact-situation in which the offence has been committed in the present case is taken into consideration, it clearly indicates that co-accused did share the common intention with Suresh to commit murder of deceased Bhagwan. Therefore, it cannot be said that their conviction by the trial Court for having committed offence under section 302 I.P.C. with the aid of section 34 I.P.C. was unwarranted. 13. Mr. Mirza submitted that insofar as the F.I.R. is concerned, as the telephonic message received at the Police Station was cryptic, a Station Diary entry of the same was only made and P.S.I. Ingole, after visiting the spot, recorded the First Information Report of Lalitabai (P.W. 2) widow of deceased and there is nothing improper in it. 14. In reply to the contention of Mr. Daga that this is a case which will fall under section 304 Part II of I.P.C., Mr. Mirza submitted that the manner in which the offence was committed i.e. the weapon used being an axe and the blow was given on the neck with such a force that the victim succumbed to the injury on the spot, itself is sufficient to show that the appellant-accused intended to cause death of Bhagwan and, therefore, it cannot be said that the offence committed by the appellants-accused would be one under section 304 Part II of I.P.C. According to Mr. Mirza, there is no merits in the appeal and the same deserves to be dismissed. 15. The points which arise for determination are whether the death of the deceased caused by accused in furtherance of their common intention, was a consequence of the act of the accused and that they did so with the intention of causing death, and caused the injury which was sufficient, in an ordinary course of nature, to cause death? 15. The points which arise for determination are whether the death of the deceased caused by accused in furtherance of their common intention, was a consequence of the act of the accused and that they did so with the intention of causing death, and caused the injury which was sufficient, in an ordinary course of nature, to cause death? 16. Insofar as to whether Bhagwan died homicidal death is concerned, the same is not much contested. The prosecution, in order to establish that deceased Bhagwan died homicidal death, has examined Dr. Vandana Waso (P.W. 6) who performed the post-mortem of the dead body of Bhagwan between 3.45 p.m. To 5.00 p.m. On 10-7-1997, while he was working as Medical Officer, Rural Hospital, Pulgaon, On examination, she found the following external injuries on the dead body: Sharp cutting injury over right side of neck below the mandible. Anterior to sternocleidonastoid muscle deep and cutting deep in layers. Dimension 4 c.m. x 1 c.m. x 2 c.m. Direction from surface to inside. Probable age approximate 4 to 5 hours. Injury to cartid astery. External and internal jugular vein corotid artery transversely cut. On internal examination, doctor found following internal injury: Carotid artery transversally cut in neck. Injury to EJV and IJV. In the opinion of Dr. Waso, the cause of death was sharp cutting deep injury to the neck on right side, cutting the large vessel transversally, leading to profuse haemorrhage and shock immediately leading to death. In her opinion, the cause of death was haemorrhagic shock due to injury to right carotid artery, EJV and IJV by a sharp cutting object. Doctor has further given opinion that the injury caused to the victim was sufficient to cause death in the ordinary course of nature. The Doctor was shown the axe (article 5) before the Court and her opinion was sought and she stated that the injury may be caused by the weapon like the axe (article 5). Doctor has also proved the postmortem report which is placed on record at Exh. 50. 17. In the course of hearing, Mr. Daga tried to impress upon us that the measurements of the injury on the neck given in the post-mortem report could not have been caused by the blade of the axe. Doctor has also proved the postmortem report which is placed on record at Exh. 50. 17. In the course of hearing, Mr. Daga tried to impress upon us that the measurements of the injury on the neck given in the post-mortem report could not have been caused by the blade of the axe. Therefore, in order to satisfy yourself, we had called for the axe (article 5) and found that the blade of the axe is comparably small than other common axe which has large blade. Therefore, we have no hesitation to hold that the measurements of the injuries given in the postmortem report found by the doctor, could be caused by the axe (article 5). An attempt was also made to suggest that if the victim falls on the blade of the axe like article 5, whether is would sustain external injury like the injury mentioned in the post-mortem note. Doctor answered in affirmation however, expressed that weight of the victim would also be relevant factor. In this context, Doctor also opined that in addition to this injury, the victim would also sustain abrasion on the port of body coming into contact with hard surface ground. In our opinion, the suggestion has no meaning because it is nobody's case that the victim fell on the blades of the axe. On the other hand, the witnesses have seen the victim being given below on his neck by the axe and one of the witnesses stated that the axe was stuck to the injury and was taken up and thrown away. The fact remains that the injury was caused on the vital part which proved to be fatal. 18. Before we proceed to examine the evidence of the eye-witnesses, we would like to observe that two panchas who were requisitioned for preparing the spot panchnama and various seizure memos and the seizure of the axe (article 5), i.e. Kishor (P.W. 4) and Dnyaneshwar (P.W. 5), did not support the prosecution case, which is not unusual. Therefore, let us examine the evidence given by eye-witnesses. Ku. Kavita d/o Bhagwan Patil (P.W. 1) has deposed before the Court that on the day of the incident, she was preparing to go to the school at about 9- 9.30 a.m. Accused Babarao @ Bablu came to call her father for tea, so her father went with him. Therefore, let us examine the evidence given by eye-witnesses. Ku. Kavita d/o Bhagwan Patil (P.W. 1) has deposed before the Court that on the day of the incident, she was preparing to go to the school at about 9- 9.30 a.m. Accused Babarao @ Bablu came to call her father for tea, so her father went with him. She heard shout "Bapare" and saw from the partition of tin that Gangabai was holding her father from the back side and accused Babarao was holding him from the front side and accused Suresh axe in his hand. He assaulted her father on the neck. She saw that accused were dragging her father in their house so she screamed and came out of the house and saw her father returning and was pressing his hand on the neck. He came towards their house. She noticed injury on the neck of her father. She held her father. He fell on her so she laid him down. Her aunt Kanta brought water and gave it to her father. Thereafter, he died. She described the clothes worn by her father at the time of incident, which were identified by her as articles 21 to 23. She also identified the axe (article 5). Similarly, Smt. Lalitabai (P.W. 2) also stated that on the day earlier to the date of incident, there was a quarrel between her husband and husband of Kamlabai, accused Suresh and Gangabai, over giving contract of 3 acres of land belonging to her mother-in-law, and on the next day, at about 10 a. m., the incident took place. She was at home. She heard cry "Bapare" and hence she came out of the house. She was that accused Babarao and Gangabai had held her husband and her husband had injury to his neck. There was bleeding from the injury. Her husband came towards her house. All the accused followed him. Accused Suresh had axe in his hand. Accused Suresh threw the axe, then all of them ran away. Her husband had come to her house and died. She went to Police Patil and informed him. He gave telephone message to police. If the evidence of these two witnesses is taken into consideration, what one finds is that the presence of Ku. Accused Suresh threw the axe, then all of them ran away. Her husband had come to her house and died. She went to Police Patil and informed him. He gave telephone message to police. If the evidence of these two witnesses is taken into consideration, what one finds is that the presence of Ku. Kavita (P.W. 1) and Lalitabai (P.W. 2) is not disputed by the defence, nor the fact that there was a quarrel between Bhagwan and the accused persons, which is also mentioned in the written statement filed by the accused persons on the record. Insofar as the incident is concerned, the evidence of Ku. Kavita (P.W. 1) which gives genesis of the incident. She saw the accused Suresh assaulting her father with an axe and the co-accused Bablu and Gangabai assisted him by holding her father. In her cross-examination, nothing could be brought on record to show that she has falsely implicated the accused persons. In her cross-examination, it has come on record that her mother came out after she screamed and, therefore, it was argued that the Lalitabai (P.W. 2) did not see the appellant accused Suresh actually assaulting her husband with the axe, but what she saw is that he was following deceased with the axe and that he threw the axe and then all accused ran away. It is true that these two witnesses are interested witnesses being the daughter and widow of the deceased, but their presence at the scene of offence is not disputed. Mr. Daga has tried to canvass before us that their evidence is full of contradiction and omission. Well, we have examined their statements recorded under section 161 Cri.P.C., to satisfy ourself as to whether there is any improvement in the deposition of these witnesses, but we could not find any material improvement so as to discredit the witnesses, not any contradiction has been brought on record to show that their testimonies are unreliable. On the other hand, if Lalitabai wanted to implicate Suresh, there was no reason why she would not have stated that Suresh actually gave blow with axe (article 5) on the neck of her husband, but on the contrary, she has stated what she had seen. On the other hand, if Lalitabai wanted to implicate Suresh, there was no reason why she would not have stated that Suresh actually gave blow with axe (article 5) on the neck of her husband, but on the contrary, she has stated what she had seen. In our opinion, their evidence appears to be cogent, consistent and reliable as to the presence and participation of each of the accused persons in the commission of the offence. 19. Another important witness is Namdeo (P.W. 3) who was deposed in his evidence that deceased Bhagwan was abusing the accused persons and that he pacified them and was with Bhagwan till his wife returned. According to Namdeo, Bhagwan also reconciled and accepted to remain quiet. So he went to his house. Namdeo is the neighbour and his presence at the scene of offence is quite natural. It is only when he heard cry, he came out and saw Bhagwan coming from the side of house of the accused towards chowk. He had injury to his neck and the axe was in his neck. Bhagwan removed the axe from the neck and threw it near Namdeo's house. There was flow of blood on the spot. His daughter Kavita was standing at his door. Bhagwan went to her and fell on her person. His wife came to the spot. Namdeo's sister-in-law Parvatibai came there. They gave deceased water. Then he died. According to Mr. Daga, this witness has given altogether different story about the axe getting stuck in the neck of Bhagwan, which is not so stated by Kavita (P.W. 1). Well we do not find this being material discrepancy so as to disbelieve Kavita (P.W. 1). Namdeo stated about the presence of Bhagwan's daughter Kavita standing at the door when Bhagwan went towards her and fell on her person. The discrepancy is only to the extent that as to who brought the axe whether the victim or the appellant-accused, but the fact remains that Kavita (P.W. 1) did see Suresh giving a blow with the axe on her father's neck, and the other two accused held her father and were dragging him towards their house. When her father escaped and started running towards his own house, axe fell down. When her father escaped and started running towards his own house, axe fell down. Probably at the time when Kavita (P.W. 1) noticed her father, she was more concerned about her father than to observe as to who threw the axe. Whereas Namdeo had sufficient opportunity to see the incident. 20. Another important witness is Vanita (P.W. 7). She had seen deceased Bhagwan coming out from the house of the accused Suresh soaked with blood having injury to his neck. She saw that the accused came out after him, then they ran towards Gram Panchayat. Her brother-in-law Lahu and Naresh followed the accused. They accosted all the accused and brought them and tied them to electric pole. Bhagwan fell at his door and died. Ms. Vanita is a witness who has seen the incident from the stage when the assault had already taken place and the victim was returning towards his house. If the evidence of all these witnesses who were at the scene of offence and had seen the incident from different stages, are considered, the sequence of events narrated by them, stands established. 21. In all probabilities, after Bhagwan was pacified by Namdeo (P.W. 3), the appellants-accused preplanned the assault on Bhagwan and for that purpose, the appellant accused No. 2 went to Bhagwan to call him for tea at their house. It is at the invitation of the accused persons that Bhagwan went to their house. So it cannot be said that Bhagwan, armed with axe (Article 5), went to assault the appellants accused as there is no evidence to that effect but it was only suggested to the witnesses during the cross-examination on behalf of the defence. On Bhagwan reaching the house of the appellant accused, two accused namely Bablu and Smt. Gangabai caught hold of him and Suresh gave him to blow of axe on his neck. The victim shouted "Bapare" which attracted the attention of his daughter who was just getting ready to do to school and this was when Suresh was just to assault the victim. Thereafter Lalitabai (P.W. 2) noticed the incident after the blow was given by Suresh on the neck of the victim and Namdeo then appeared on the scene of occurence followed by Vanita and other neighbours. 22. Thereafter Lalitabai (P.W. 2) noticed the incident after the blow was given by Suresh on the neck of the victim and Namdeo then appeared on the scene of occurence followed by Vanita and other neighbours. 22. In order to make the provisions of section 34 I.P.C. applicable, apart from the fact that there should be two or more accused, two factors must be established, (i) common intention, (ii) participation of the accused in the commission of offence. If a common intention is proved, no overt Act is attributed to the individual accused, section 34 I.P.C. will be attracted as essentially it involves vicarious liability, but if participation of the accused in the crime is proved and common intention is absent, section 34 I.P.C. cannot be invoked. Under section 34, a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of section 34 I.P.C. is simultaneous consensus of the minds of person participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurence. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case (Surendra Chauhan v. State of M.P.)4, 2000(4) S.C.C. 110 . Now let us examine whether in the present case, these requirements are met by the prosecution on the basis of the evidence led by them. As aforesaid, Kavita (P.W. 1) has stated before the Court that Bablu @ appellant accused No. 2 had come to her father and invited him for tea at his place because of which the victim Bhagwan visited their place. As aforesaid, Kavita (P.W. 1) has stated before the Court that Bablu @ appellant accused No. 2 had come to her father and invited him for tea at his place because of which the victim Bhagwan visited their place. This is, in our opinion, sufficient proof of the fact that the appellants accused preplanned commission of the crime and for that purpose invited deceased Bhagwan to their place on the pretext of having tea and thereafter the witnesses have given evidence to the effect how the appellants-accused Nos. 2 and 3 caught hold of victim Bhagwan and the appellant accused Suresh struck him with an axe on his neck which caused his death. Therefore, we have no hesitation to hold that the prosecution has made out a case where the appellants-accused, in furtherance of their common intention, committed murder of deceased Bhagwan. 23. The evidence of these eye-witnesses stands amply corroborated by the spot panchnama Exh. 61, which was prepared by P.S.I. Ingole (P.W. 9). P.S.I. Ingole (P.W. 9), in his evidence before the Court, has given details of various seizure memos prepared by him at every stage which had trail of blood right from the house of the appellants accused till the door steps of the deceased. He was also successful in seizing the axe which was found to be stained with blood and lying on the road near the scene of occurrence. Though the two panchas have turned hostile, but P.S.I. Ingole has sufficiently established the scene of occurrence i.e. Where the assault took place and the place where the victim fell down and died. Insofar as the contention of the Counsel for the appellants-accused that report (Exh. 43) given by Lalitabai (P.W. 2) cannot be treated as F.I.R., cannot be accepted as the Police Head Constable Rameshwar (P.W. 8) has explained that why he did not treat it as F.I.R. After getting the information from the Police Patil of the village, he passed on the information to P.S.I. Ingole (P.W. 9), who, after making station diary entry, left for the spot and after recording the evidence the statement of Lalita (P.W. 2), treated the same as F.I.R. and carried out further investigation. The police was able to arrest all the accused at the scene of offence itself as they were caught and brought by relatives of Vanita (P.W. 7) and were held till the police arrived at the scene of offence. The blood sample of deceased Bhagwan Shamrao Patil was found to be that of group 'A' and of the samples collected from the spot were found to be having human blood of group 'A'. 24. Now let us examine the contention of Mr. Daga that case of the appellants accused would fall under section 304 Part II I.P.C. and not under section 302 I.P.C. Well, this contention also does not find favour with us as the Act of the appellant-accused speaks for itself. Though it is the case of solitary blow entailing death of the victim, but taking into consideration the vital part chosen by the appellant accused Suresh and the nature of the weapon i.e. axe (Article 5) used by him for striking the blow on the neck of deceased causing injury which in the ordinary course of nature, was sufficient to cause death, is enough to attract the offence of murder. The case of the appellant accused does not fall in any of the exceptions to section 300 of I.P.C. so as to bring the case within the ambit of section 304 Part II, I.P.C. 25. Therefore, on considering the evidence on record, we find that the learned trial Court was right in arriving at a finding that the appellant accused are guilty of having committed offences under section 302 read with 34 I.P.C. and has rightly convicted and sentenced them. We find no merits in the appeal. Appeal is dismissed. Appeal dismissed. -----