JUDGMENT R.V. Raveendran, J. — Leave granted. 2. The appellant (also referred to as ‘ONGC’) entrusted a construction work to the respondent under a contract dated 11.10.1983. Clause 25 of the contract provided for settlement of disputes by arbitration. Certain disputes arose between the parties in regard to the said contract and they were referred to a sole arbitrator on 31.12.1986. The claimant made several claims aggregating to Rs.82,89,000/-. ONGC made counter claims aggregating to Rs.1,24,87,000/-. The arbitrator awarded Rs.9,50,000/- under the first claim, Rs.7,80,132/- under the second claim, Rs.4,77,129/- under fifth claim and several smaller amounts under claims 3, 4, 6 to 13, 15, and 17, in all aggregating to Rs.25,26,270/-. The arbitrator also awarded 12% pendente lite interest and 6% from the date of the award/decree. The counter claims were rejected. 3. The ONGC challenged the said award by filing a petition under sections 30 and 33 of the Arbitration Act, 1940 (‘Act’ for short). The civil court (Additional District Judge, Dehradun) dismissed the said petition filed by ONGC and made the award a rule of the court. ONGC filed an appeal before the Uttarakhand High Court. By impugned judgment dated 14.6.2007, the High Court upheld the judgment of the civil court making the award the rule of the court, subject only to one change, by reducing the rate of pendente lite interest from 12% to 6% per annum. The said judgment is challenged by ONGC in this appeal by special leave. 4. It is now well settled that a court, while considering a challenge to an award under sections 30 and 33 of Arbitration Act, 1940, does not examine the award, as an appellate court. It will not reappreciate the material on record. An award is not open to challenge on the ground that the arbitrator had reached a wrong conclusion or had failed to appreciate some facts. But if there is an error apparent on the face of the award or if there is misconduct on the part of the arbitrator or legal misconduct in conducting the proceedings or in making the award, the court will interfere with the award. Keeping the said principles in view, we will consider the challenge. 5. The award has been made with reference to several claims. The appellant has not been able to make any valid ground to attack except with reference to claim No.(1). Keeping the said principles in view, we will consider the challenge. 5. The award has been made with reference to several claims. The appellant has not been able to make any valid ground to attack except with reference to claim No.(1). In fact, the learned counsel for appellant rightly concentrated upon the award on claim No.(1), which relates to the claim for compensation for loss on account of prolongation of the completion period on account of the ONGC’s failure to perform its contractual obligations. The arbitrator has held that the delay in completion was due to the fault of both the contractor and ONGC and that both are equally liable for the delay of 19 months. The arbitrator held that as both were equally liable, the contractor was entitled to compensation at the rate of Rs.1 lakh for a period of 9 = months (that is half of the period of delay of 19 months) in all Rs.950,000/-. The arbitrator has observed that there is no provision in the contract by which the contractor can be estopped from raising a dispute in regard to the said claim. But clause 5A of the contract pertains to extension of time for completion of work and specifically bars any claim for damages. The said clause is extracted below : “In the event of delay by the Engineer-in-Charge to hand over to the contractor possession of land/lands necessary for the execution of the work or to give the necessary notice to the contractor to commence work or to provide the necessary drawing or instructions or to do any act or thing which has the effect of delaying the execution of the work, then notwithstanding anything contained in the contract or alter the character thereof or entitle the contractor to any damages or compensation thereof but in all such cases the Engineer-in-Charge may grant such extension or extensions of the completion date as may be deemed fair and reasonable by the Engineer-in Charge and such decision shall be final and binding.” 6. In view of the above, in the event of the work being delayed for whatsoever reason, that is even delay which is attributable to ONGC, the contractor will only be entitled to extension of time for completion of work but will not be entitled to any compensation or damages. In view of the above, in the event of the work being delayed for whatsoever reason, that is even delay which is attributable to ONGC, the contractor will only be entitled to extension of time for completion of work but will not be entitled to any compensation or damages. The arbitrator exceeded his jurisdiction in ignoring the said express bar contained in the contract and in awarding the compensation of Rs.9.5 lakhs. This aspect is covered by several decisions of this Court. We may refer to some of them. In Associated Engineering Co. v. Government of A.P.1 1991 (4) SCC 93 , this Court observed : “24. The arbitrator cannot act arbitrarily, irrationally, capriciously or independently of the contract. His sole function is to arbitrate in terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled outside the bounds of the contract, he has acted without jurisdiction. ...” In Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises,2 1999 (9) SCC 283 , this Court held : “The rates agreed were firm, fixed and binding irrespective of any fall or rise in the cost of the work covered by the contract or for any other reason or any ground whatsoever. It is specifically agreed that the contractor will not be entitled or justified in raising any claim or dispute because of increase in cost of expenses on any ground whatsoever. By ignoring the said terms, the arbitrator has travelled beyond his jurisdiction as his existence depends upon the agreement and his function is to act within the limits of the said agreement. This deliberate departure from the contract amounts not only to manifest disregard of the authority or misconduct on his part but it may be tantamount to mala fide action. It is settled law that the arbitrator is the creature of the contract between the parties and hence if he ignores the specific terms of the contract, it would be a question of jurisdictional error which could be corrected by the court and for that limited purpose, agreement is required to be considered. .... He cannot award an amount which is ruled out or prohibited by the terms of the agreement.” In Ramnath International Construction (P) Ltd. v. Union of India,3 2007 (2) SCC 453, a similar issue was considered. .... He cannot award an amount which is ruled out or prohibited by the terms of the agreement.” In Ramnath International Construction (P) Ltd. v. Union of India,3 2007 (2) SCC 453, a similar issue was considered. This Court held that clause 11(C) of the General Conditions of Contract (similar to clause 5A under consideration in this case) was a clear bar to any claim for compensation for delays, in respect of which extensions had been sought and obtained. This Court further held that such a clause amounts to a specific consent by the contractor to accept extension of time alone in satisfaction of claims for delay and not to claim any compensation; and that in view of such a bar contained in the contract in regard to award of damages on account of delay, if an arbitrator awards compensation, he would be exceeding his jurisdiction. 7. In view of the above, the award of the arbitrator in violation of the bar contained in the contract has to be held as one beyond his jurisdiction requiring interference. Consequently, this appeal is allowed in part, as follows : (a) The judgment of the High Court and that of the civil court making the award the rule of the court is partly set aside in so far as it relates to the award of Rs.9.5 lakhs under claim No.(1) and the award of interest thereon. (b) The judgment of the civil court as affirmed by the High Court in regard to other items of the award is not disturbed. *********** S. P. SINHA, J. :-, J. ( 1 ) I. The State is before us aggrieved by and dissatisfied with a judgment of acquittal passed by a Division Bench of the High Court of Himachal Pradesh, shimla in Criminal Appeal No. 41 of 1994. ( 2 ) SARWAN Singh (since deceased), Jagtar singh (since deceased) as well as Nazar singh and Baldev Singh, respondents herein were prosecuted for commission of an offence under Section 302 read with Section 34 and Section 323 read with Section 34 of the Indian Penal Code (for short, "the Code")for causing death of one Lamber Singh and simple hurt to one Avtar Singh. ( 3 ) THE occurrence took place at about 9. 30 p. m. on 30-3-1993 in the field of the deceased-Lamber Singh. Lamber Singh had gone to tie his dog therein. ( 3 ) THE occurrence took place at about 9. 30 p. m. on 30-3-1993 in the field of the deceased-Lamber Singh. Lamber Singh had gone to tie his dog therein. P. W-1 Bakshish singh, brother of the deceased, after some time heard him shouting whereupon he ran towards the field and found that Sarwan singh armed wit gandasi and others armed with lathis had been assaulting the deceased. Sarwan Singh is said to have inflicted two injuries with a gandasi on his head whereas the others were said to have inflicted lathi blows on him. ( 4 ) AVTAR Singh alias Bittu (PW-2) also reached there. Both these witnesses attempted to save him but were attacked by them. Avatar Singh allegedly was hit by sarwan Singh with the handle of broken gandasi on his right arm. Further, the prosecution case is that all the convicts went towards cattle shed using abusive language threatening to kill them. The motive for the said incident is said to be a quarrel which had taken place 20 days prior thereto at the time of solemnization of the marriage of two nieces of PW-1. ( 5 ) LAMBER Singh was broght to a hospital in an injured condition. His medical history was recorded. He put his left thumb impression. He, however, did not name any person responsible for inflicting those injuries on him. He died at about 3. 40 a. m. ( 6 ) ALL the accused persons were arrested on 1-4-1993. They were taken into custody on 1-4-1993. They were, however, for reasons best known to the Investigating Officer shown to have been formally arrested on 2-4-1993. ( 7 ) RELYING on or on the basis of the evidence of the aforementioned Avtar Singh, who is said to be an injured witness, the learned Trial Judge opined that the accused are guilty of commission of an offence under Section 304, Part II of the Indian Penal code read with Section 34 thereof. They were sentenced to undergo seven years' rigorous imprisonment. A fine of Rs. 5000/- was also imposed on them. They were also sentenced to, undergo rigorous imprisonment for six months each under Section 323 read with section 34 of the Indian Penal Code. ( 8 ) THREE appeals were preferred there-against, viz. . They were sentenced to undergo seven years' rigorous imprisonment. A fine of Rs. 5000/- was also imposed on them. They were also sentenced to, undergo rigorous imprisonment for six months each under Section 323 read with section 34 of the Indian Penal Code. ( 8 ) THREE appeals were preferred there-against, viz. . (i) Respondents preferred Criminal Appeal No. 41 of 1994 against their conviction and sentence imposed by the Trial Court. (ii) The State preferred an appeal for enhancement of their sentence which was marked as Criminal Appeal No. 270 of 1994. (iii) The State filed another appeal being criminal Appeal No. 92 of 1995 questioning the judgment of acquittal against Sarwan singh and others under Section 302 read with Section 34 of the Indian Penal Code. ( 9 ) BY reason of the impugned judgment, the High Court has allowed the appeal preferred by the respondents and passed a judgment of acaquittal. ( 10 ) THE State did not prefer any appeal against the dismissal of its appeals in Criminal Appeal Nos. 270 of 1994 and 92 of 1995. An appeal has been preferred only against the judgment passed in Criminal Appeal No. 41 of 1994. ( 11 ) INDISPUTABLY, Sarwan Singh and jagtar Singh died on 5-2-2002 and 4-11-2000 respectively, i. e. , during pendency of the appeal. ( 12 ) MR. Naresh K. Sharma, learned counsel appearing on behalf of the State, would contend: (i) Respondents having gone to the field of the deceased variously armed must be held to have formed a common intention to cause death of the deceased, Lamber Singh. (ii) PW-2 being an injured witness, the high Court should not have disbelieved his evidence particularly when implicit reliance thereupon had been placed by the learned trial Judge. (iii) There was furthermore no reason as to why the evidence of PW-1 also could not have been relied upon. (iv) As the medical report shows that the deceased had suffered as many as 10 injuries, the High Court should have presumed participation of more than one accused. (v) Only because no incised wound was found, the same, by itself, could not have been the conclusive proof of innocence of the respondents herein particularly in view of the defence raised by them before the learned Trial Judge only to the effect that they had no common intention. ( 13 ) DR. (v) Only because no incised wound was found, the same, by itself, could not have been the conclusive proof of innocence of the respondents herein particularly in view of the defence raised by them before the learned Trial Judge only to the effect that they had no common intention. ( 13 ) DR. I. B. Gaur, learned counsel appearing on behalf of the respondents, however, would support the impugned judgment. ( 14 ) BEFORE adverting to the contentions raised by Mr. Sharma, we may notice the medical evidence. The injury report which was prepared at about 1. 40 a. m. inter alia reads, thus: "1. There was present swelling and tenderness over left elbow. The swelling was reddish bluish in colour. There was present rail track contusion just above the elbow. The consusion was horizontal and was 4 cm x 5 cm in size with reddish in center and bluish at the periphery. *** *** *** 6. There was present a wound over the left side of the scalp 2 cm lateral to midline. The wound was vertical in direction. The size of the wound was 8 cm x 1 cm x 1 cm. The hair around the wound were matted with blood and were not chopped. Clotted blood was present in the wound. The margins of the wound were irregular and ragged. 7. There was present a wound over right side of the scalp 4 cm lateral to midline. The wound was oblique in direction. The size of the wound was 6 cm x 1 cm x 1 cm. The hair around the wound were matted with blood. The hair were not chopped. The margins of the wound were irregular and ragged. " according to the doctor, Injury No. 1 was grievous and all other injuries being Injury nos. 2 to 10 were simple in nature. The doctor did not reserve his opinion for any of the injuries and any X-ray or any other test was not prescribed. Dr. R. K. Jaswal, autopsy surgeon, however, observed the following injuries on the body of the deceased : "1. Diffuse swelling and ecchymosis of the left elbow. 2. There was long bruise 15 cm x 4 x cm with healthy center on the left arm. 3. Diffuse swelling and ecchymosis on the right arm. 4. Rail road contusion on the back 12 cm x 5 cm. 5. Diffuse swelling and ecchymosis of the left elbow. 2. There was long bruise 15 cm x 4 x cm with healthy center on the left arm. 3. Diffuse swelling and ecchymosis on the right arm. 4. Rail road contusion on the back 12 cm x 5 cm. 5. There was stitched wound on left side of the scalp 2 cm lateral to the midline. The wound was vertical in direction. On removing the stitches the wound measured 8 cm x 1 cm x 1cm. 6. Bluish ecchymosis of the left ankle. 7. Oblique wound on the right side of the scalp about 1 1/2 inch lateral to the midline. Stitched 6 cm in length and had blood underneath it with fracture of the underlying skull. 8. Multiple bruises over the whole of the body. " The autopsy surgeon was of the opinion that Injury Nos. 6 and 7 and the injury on the parietal region were sufficient to cause death in the ordinary couse of nature. No incised wound was found. Sarwan singh is said to have used gandasi. He, according to PWs 1 and 2, the so-called eyewitnesses, caused injuries on the parietal region which, according to Mr. Sharma, were sufficient to cause death. ( 15 ) INDISPUTABLY, Sarwan Singh is dead. We could proceed on the assumption that he could have been found guilty for commission of an offence under Section 304, part II of the Indian Penal Code for causing death of the deceased-Lamber Singh. ( 16 ) FROM the evidence brought on record, it appears that the deceased went to his field on hearing the barking of his dog at 9. 30 p. m. It was a dark night. There is nothing to show that all the accused persons were waiting for him or had come to assault him with any common intention. According to the prosecution, a dispute arose with regard to laying down of a pipeline three months prior to the date of occurrence. It, however, appears that the matter was settled through the intervention of the panchayat. Allegedly, as noticed hereinbefore, the accused' had abused PW-1 at the time of marriage of his nieces in his village. Nothing has been brought on record to show that there existed any enmity between the deceased and the accused. We have noticed hereinbefore that cause of his injuries was disclosed by the deceased himself. Allegedly, as noticed hereinbefore, the accused' had abused PW-1 at the time of marriage of his nieces in his village. Nothing has been brought on record to show that there existed any enmity between the deceased and the accused. We have noticed hereinbefore that cause of his injuries was disclosed by the deceased himself. He put his left thumb impression. He did not name the respondents therein. As he had put his left thumb impression, it may be presumed that he was conscious at that time. ( 17 ) ACCORDING to PW-2, after assaulting lamber Singh, the accused persons Were standing at some distance and all of a sudden Sarwan Singh came and assaulted him. ( 18 ) WHY the accused who were taken to custody on 1-4-1993 but were shown to have been formally arrested on 2-4-1993 is not known. Both the prosecution witnesses stated that the handle of the gandasi had broken down. Why the broken part of the gandasi was not seized was not disclosed. ( 19 ) THE deceased, as noticed hereinbefore, died after 3 O'clock in the morning. The Investigating Officer Head Constable ram Nath (PW-10) had gone to hospital upon receipt of an information. He tried to record the statement of the deceased twice. As he was not in a position to give a statement, he recorded the statement of PW-1. It is in the aforementioned situation difficult to accept that the First Information Report was recorded at 12. 45 p. m. i. e. , on the said night itself. ( 20 ) IF Sarwan Singh and others had any intention to cause the death of Lamber singh, he could have used his gandasi from the sharp end. In the statement before the medical officer by the deceased, assault by gandasi also had not been mentioned. ( 21 ) IT is wholly unlikely that when a large number of villagers, as stated by PWs 1 and 2 had assembled, other circumstances and in particular assault by Sarwan Singh upon pw-2 would not be testified by any other independent person. In this situation, it is difficult to comprehend as to how a common intention was formed to cause murder of the deceased. Mr. Sharma would contend that they must have formed a common intention. In this situation, it is difficult to comprehend as to how a common intention was formed to cause murder of the deceased. Mr. Sharma would contend that they must have formed a common intention. Such common intention, if any, assuming there was one, was to cause simple hurt as all the ten injuries were found to be simple except injury No. 1 which was suffered by the deceased on his forearm. We would, however assume that Injury Nos. 6 and 7 were not noticed to be grievous injury by the doctor. It may be so but the nature of injuries inflicted on other parts of the body of the deceased clearly go to show that the others came with common indention to cause his death as his presence in the field was wholly unexpected. ( 22 ) IT is well settled that there exists a distinction between common intention and common object. In Mohinder Singh and Ors. v. (2006 AIR SCW 1610. Para 25)State of Punjab (JT 2006 (4) SC 96), this Court observed : "21. In Rabindra Mahto and Ors. v. State of Jharkhand, JT 2006 (1) 1sc (2006 AIR SCW 298)137, this Court has held that under Section 149, IPC, if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. There is distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime at the spot itself. There need not be prior meeting of the mind. It would be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. There need not be prior meeting of the mind. It would be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, Section 149 makes every member of the common unlawful assembly, responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object and that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case. " ( 23 ) THE State having not preferred any special leave against the dismissal of their appeals against the judgment of acquittal recorded by the Trial Court under Section 302/34 of the Indian Penal Code, they must be held to have accepted the judgment of the Trial Court under Section 304, Part II thereof. ( 24 ) THERE was in our opinion, in the facts and circumstances of the case, no intention on the part of any one of the accused to cause death. If there was such intention, it is difficult to form an opinion that they could have formed an intention to cause unintentional death. It is not a case where they had exercised their right of private defence. The matter might have been different if they were convicted under Section 302 of the Indian Penal Code. If a common intension was formed merely to cause simple hurt, only Sarwan Singh was guitly of causing an offence under Section 304, Part II of the Indian Penal Code and not others. ( 25 ) RESPONDENTS have already been convicted for commission of an offence under section 323 of the Indian Penal Code and they must have been in custody for some time. We, therefore, do not intend to interfere with the impugned judgment. The appeal is dismissed. Appeal dismissed. --- *** --- .