The incident pertains to the Nagrotta Refugee Camp and the bone of contention is a woman by name Raj Kaur who it seems does not dislike the idea of having some romance, though at the expense of causing mental agony to her husband & lot of hardship to others. The story of the prosecution is that on 1st Baisakh 2007. She said gone to her mother residing in the same camp with the permission of her husband. She, it seems, left her mothers place on the same day and was later on seen in the company of the accused and his father near the check-post Nagrotta. She was on the way towards Jammu, when her husband Kala Singh was apprised of this fact and he ran post haste towards the check-post where he caught hold of his wife and brought her back to his tent. The accused Mehtab Singn did not, it seems, like that his attempt at carrying away the woman should have been frustrated so easily and next day at about 10 in the night he accompanied by his father namely Pratap Singh, his brother by name Teja Singh & another person of the name of Dayal Singh went towards that part of the camp where Kala Singh had his tent. While the accused persons were on their way to the place of occurrence, they were noticed using filthy and indecent language with respect to Kala singh and others, and when they reached near the tent of Kala Singh, they were accosted by Sher singh who is described as the monitor of that part of the camp. Sher Singh tried to dissuade them from acting in a disorderly manner and asked them to go back with the assurances that If they had any grievance against Kala Singh, that could be attended to next morning. A scuffle is said to have ensued between Sher Singh and Mehtab Singh accused appellant in which Mehtab Singh gave a deadly blow on the head of Sher Singh which caused his death a few days later. Mehtab Singh and his associates were proceeded against, in the Court of the Munsiff Magistrate Jammu who committed them to the Sessions. The other three accused by name, Pratap Singh, Teja Singh and Dayal Singh have gone into abscondance and I believe proceedings under S. 512, Criminal P. C. have been taken against them. Mehtab Singh and his associates were proceeded against, in the Court of the Munsiff Magistrate Jammu who committed them to the Sessions. The other three accused by name, Pratap Singh, Teja Singh and Dayal Singh have gone into abscondance and I believe proceedings under S. 512, Criminal P. C. have been taken against them. Mehtab Singh was found guilty under s. 304 (ii) and was sentenced to three years rigorous imprisonment and to a fine of Rs. 50/-, and in default to undergo rigorous imprisonment for a further period of three months. He was also found guilty under S. 323, R. P. C. for causing hurt to one Jawahar Singh witness and was sentenced to three months rigorous imprisonment. Mehtab Singh has now come up in first appeal to this Court. (2) The case of the prosecution is that on 2nd Baisakh 2007 the accused persons went over to that side of the camp where Kala Singh lived with a view to abduct the woman Raj Kaur. There is no evidence that the common intention of the accused persons was to carry away the woman by force or fraud on that evening. It does not stand to reason that the accused persons should have gone in a crowded part of the camp at a time when the residents are expected to be inside their tents, to abduct a woman from that place. It is just possible that Mehtab Singh, as already stated, felt frustrated the previous day and then he accompanied by his other friends and associates did go to either over-awe Kala Singh by threats and indecent abuses or even by giving him a beating. But there is ample evidence in the case that these accused persons did go to that part of the camp when they were met by Sher Singh who objected to their presence in such an unruly manner in that part of the camp. A quarrel ensued and of this quarrel we have two versions. One version we find in the F.I.R. which is to the effect that the accused persons came to the camp with the intention of abducting Raj Kaur when Sher Singh objected to their presence on which the accused persons assaulted Sher Singh with lathis and gave him a beating and left him senseless. One version we find in the F.I.R. which is to the effect that the accused persons came to the camp with the intention of abducting Raj Kaur when Sher Singh objected to their presence on which the accused persons assaulted Sher Singh with lathis and gave him a beating and left him senseless. From the version in the F.I.R. it is clear that all the four accused are described as assailants who gave a concerted beating to Sher Singh. But later on at the trial this version seems to have been altered to this extent that the actual assailant who caused the only and the fatal injury to Sher Singh is described as Mehtab Singh. No part is assigned to any accused so far as Sher Singh is concerned. The same responsibility is being fastened on them for having caused injuries to some other prosecution witnesses but none to Sher Singh. It is further stated at the trial that Mehtab Singh in addition to Sher Singh gave one; or two blows to Jawahar Singh as well. (3) The doctor who performed the post-mortem examination has found the following injuries on the person of Sher Singh: (After describing the injuries and discussing the medical evidence his Lordship proceeded:) Along with the statement of the doctor when the version given in the F.I.R. is taken into consideration, I have no hesitation in holding that Sher Singh died not as a result of only one blow, but more than one blow was inflicted on him. The prosecution is positive on the fact that it was only one and one blow given by Mehtab Singh which caused the injury in question. Taking all the circumstances together I am of the opinion that more than one blow was given to Sher Singh and that another blow or blows were given to him by Mehtab Singh or his companion. (4) (After discussing some further evidence his Lordship proceeded:) From the statements of these witnesses-even though one were to take them at their face-value-it does not become clear as to what were the exact circumstances under which Sher Singh was beaten and how many blows were as a matter of fact given to him. (4) (After discussing some further evidence his Lordship proceeded:) From the statements of these witnesses-even though one were to take them at their face-value-it does not become clear as to what were the exact circumstances under which Sher Singh was beaten and how many blows were as a matter of fact given to him. My finding in this behalf, therefore, is that Sher Singh died as a result of not only one blow by Mehtab Singh, but as a result of more than one blow which may have been given to him either by Mehtab Singh himself or by his associates. But who gave the fatal blow, we cannot know with the help of the evidence produced in this case. (5) The question under these circumstances arises as to what is the offence brought home to Mehtab Singh. All that is proved so far is that four persons went on spot. There they quarrelled with Sher Singh, may be without any reason, and this quarrel developed into a hand to hand fight in which beating was administered to Sher Singh during which he received an injury which later proved fatal. Who inflicted the fatal injury is not known. Shall under these circumstances all the accused be held responsible for the consequences of the act of a person from amongst the accused who cannot be known with any reasonable amount of certainty? Section 34, Ranbir Penal Code bears on the point. It is laid down in S. 34, R. P. C. that "when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." Now in this case we have to base our decision for fixing the responsibility on the head of the accused persons upon the interpretation of the words common intention occurring in S. 34 of the Ranbir P. C. Common intention has been held to mean as an intention to commit the crime actually committed. In this case we have seen that death has taken place as a result of injuries caused to Sher Singh. Was everyone of the accused person possessed of a common intention of causing death? This fact can be found either by evidence led or by the attendant circumstances. In this case we have seen that death has taken place as a result of injuries caused to Sher Singh. Was everyone of the accused person possessed of a common intention of causing death? This fact can be found either by evidence led or by the attendant circumstances. The prosecution has not sought to implicate Mehtab Singh on the ground of his having been actuated by a common intention of causing death along with the other accused. Therefore this question has to be decided upon a consideration of the attendant circumstances. Now what are the circumstances? The circumstances are that four persons go at a very late hour in the night to that part of the camp where Kala Singh and his wife resided. One of them (Mehtab Singh) at least, was armed with a stick. I have already held that their intention was not to abduct the woman, but their going that side at that unearthly hour and in the manner in which they did go, must have made every accused person to believe that a fight may be a necessary consequence of their going that side, in which hurt of some kind may be the result. Now the doctor is positive on the fact that this stick could not have caused, death by a single blow, but that this stick if used more than once, could cause a fracture cannot be denied. And the accused persons cannot be said to have been unaware of this fact. When they Went there with the stick in question, they must be presumed to have knowledge of the intention of causing such injury or of the likelihood of causing such injury as is going to cause grievous hurt. If it were a case of a sudden fight in which the lathi were used under the impulse of provocation or anger, possibly the incident could no have been brought under the cover of S. 34. In this case the accused persons had planned to go to that side where Kala Singh resided and one of them at least was armed with a stick of more than the ordinary thickness. I, therefore, am of the opinion that all of them must be presumes to have a common intention of causing grievous hurt to any person or persons who might have objected to their going that side in that unrully manner. I, therefore, am of the opinion that all of them must be presumes to have a common intention of causing grievous hurt to any person or persons who might have objected to their going that side in that unrully manner. (6) The learned counsel appearing on behalf of the accused appellant has drawn my attention to a Division Bench ruling of the Allahabad High Court reported as - Dipa v. Emperor, AIR 1947 All 408 (A). In this ruling it has been held that: "A person voluntarily causes hurt when he intends to cause grievous hurt or knows it likely that he would cause grievous hurt and actually causes grievous hurt. It may be presumed from the conduct of several persons striking another with lathis that each of them intended to cause grievous hurt; but such a presumption alone is not sufficient to establish the offence of causing grievous hurt against an accused unless it be further shown that that accused actually caused grievous hurt." With all respect for the learned Judges, I am afraid I cannot agree with the enunciation of law in this judgment. If this enunciation of law is followed, then S. 34, Ranbir P. C. becomes redundant and the principle of common intention loses all its meaning. (7) The learned counsel has further drawn my attention to - "Tillu Ahir v. Rex, AIR 1949 All 89 (B), in which it has been held that: "It cannot be said that any one who assaults with a lathi must be presumed to have the intention of causing grievous hurt. An assault with a lathi is not inconsistent with an intention to cause simple hurt only." Further it has been held: "Common intention does not mean similar intention of several persons. To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and be shared by them." But again I find myself unable to agree with the reasoning of the learned Judge. An assault by a weapon the nature of which is not known would certainly not lead to a presumption that the person weilding the weapon intended to cause grievous hurt. An assault by a weapon the nature of which is not known would certainly not lead to a presumption that the person weilding the weapon intended to cause grievous hurt. But if the weapon is known and is likely to cause even death if used twice, and is used at a time when the tempers had gone very high and is used not against the deceased only but against others as well who come to rescue of the victim a presumption that the party of the assailants wanted to inflict grievous hurt cannot be said to be an unreasonable one. It may be noted down here that in a later Allahabad; judgment reported as - Puttu Lal v. Rex. AIR 1949 All 88 (C), the ruling given in - AIR 1947 All 408 (A) (referred above) was held not applicable to a case in which the provisions of S. 34 could be made applicable. (8) In - Zulfikar v. Emperor, AIR 1933 Lah 927 (D), it has been held that "When two or more persons set on to another armed with hatchets and dangs it may safely be assumed that their common intention is to give him a thorough hiding, and it may also safely be assumed that all are cognizant of the fact that the hatchets will be used and that very serious injuries are likely to be inflicted. In these circumstances S. 34 rightly applies." (9) In - Jaimangal v. Emperor, AIR 1936 All 437 (E) it has been laid down that: Where it is proved that the accused had a common intention of attacking a person with lathis and the lathis carried by them were of ordinary kind and it appears that each of the assailants was determined to use his lathi as effectively as he was capable of and none of them gave the slightest indication to his companions of placing a restriction on the use of the lathis, each one of the accused must be presumed to have under-that the attack was likely to result in grievous hurt to their victim and it can be legitimately inferred from their conduct that they intened to cause grievous hurt to the person concerned." (10) It may be stated here that common intention may not be a pre-conceived notion. It might come into existence even at the time when the fight ensued. It might come into existence even at the time when the fight ensued. In - Mian Jan v. Emperor, AIR 1924 Oudh 248 (F), it has been held that: Where several persons go to the house of another and on a quarrel ensuing there, one of the party calls on his companions to beat the latter, and they do so, S. 34, Penal Code applies to impute common intention to all of them even though the party did not come with the intention of beating the men in the first instance." (11) In - Mamand v. Emperor, AIR 1946 PC 45(G) it has been held that the common intention to commit an offence can be inferred from the circumstances in which an offence has been committed, in the commission of which more than one person is concerned. (12) Taking all this into consideration, I find that the offence under S. 304(ii), R. P. C. has not been brought home to the accused. I hold the accused guilty of having caused grievous hurt to Sher Singh and convict him under S. 325, R. P. C. and sentence him to two years rigorous imprisonment Fine, with imprisonment in default thereof, is remitted. (13) On evidence I find it proved that the accused Mehtab Singh has caused simple hurt to Jawahar Singh P. W. The learned Sessions Judge has sentenced the accused to three months rigorous imprisonment under S. 323, R. P. C. I maintain his conviction and sentence under S. 323, R.P. C., but order that the sentence under S. 323 shall run concurrently with the one passed under S. 325 R. P. C.