Judgment : SMT. V.K. TAHILRAMANI, J. Bhaskar Chandar Londhe - original accused No. 1 has tiled Cri. Appeal No. 66 of 2011 and Mahadeo Bhiku Chopade - original accused No. 2 has filed Cri. Appeal No. 289 of 2011. Both the appeals are directed against the judgment and order dated 09.07.2010 passed by the Additional Sessions Judge-1, Karad, Dist. Satara in Sessions Case No. 15 of 2008. By the said judgment and order, the learned Session Judge convicted and sentenced both the appellants as under:- Convicted u/S. Sentenced to 302, IPC r/w 34, IPC Life Imprisonment and Fine of Rs.2000/- each, In Default further RI for 3 Months. 326, IPC r/w 34, IPC Rigorous Imprisonment for 5 Years and Fine of Rs.2000/- each, In Default further RI for 3 Months. 324, IPC r/w 34. Rigorous Imprisonment for 2 Years and Fine of Rs.2000/- IPC each. In Default further RI for 3 Months. 452, IPC r/w 34, IPC Rigorous Imprisonment for 2 Years and Fine of Rs.2000/- each, In Default further RI for 3 Months. The learned Sessions Judge directed that all the substantive sentences of imprisonment shall run concurrently. As both the appeals are directed against the very same judgment and order, they are disposed of by this common judgment. 2. The prosecution case briefly stated, is as under: (a) Deceased Sanjay was the husband of PW 3 Vandana. Vandana was residing along with her husband and children in the house of her mother PW 7 Vithabai at Salshirambe, Taluka Karad, Dist. Satara. PW 13 Pralhad also resided near the house of PW 7 Vithabai. Bhaskar Accused No. 1 was the uncle of Vandana. He also resided near the house of Vandana. Bhaskar was unmarried. Bhaskar always used to be in the company of accused No. 2 Mahadeo who is a eunuch. About 15 days prior to the incident, deceased Sanjay had told accused No. 1 not to be in the company of accused No. 2 who is a eunuch. Sanjay told Bhaskar to get married. Sanjay further told Bhaskar that Sanjay would keep Mahadeo with him and as to whether thereafter. Bhaskar would get married. At that time both the accused i.e. Bhaskar & Mahadeo had beaten Sanjay. About 4-5 days prior to the incident, Sanjay had demanded money from accused No.1 Bhaskar because Sanjay had constructed a wall of the house of accused No.1 Bhaskar. Bhaskar would get married. At that time both the accused i.e. Bhaskar & Mahadeo had beaten Sanjay. About 4-5 days prior to the incident, Sanjay had demanded money from accused No.1 Bhaskar because Sanjay had constructed a wall of the house of accused No.1 Bhaskar. At that time, dispute had taken place between Sanjay and Bhaskar. (b) The incident took place on 04.03.2007. At about 12 noon, Sanjay had his food and he was sleeping in the middle room of the house. At about 02.00 p.m. in the afternoon, accused No.1 Bhaskar came with a sickle to the house of Vandana. At that time accused No. 2 Mahadeo was with him. When Bhaskar and Mahadeo came to the house of Vandana, Vandana, her mother PW 7 Vithabai, sister of Vandana PW 5 Reshma and Vandana's neighbour PW 6 Tanubai were sitting in the house of Vandana. Bhaskar asked, "Where is Sanjay? Where is Sanjay? Bhaskar also said that Sanjay was defaming him and who is Sanjay to tell him to get married. Bhaskar then said that he will not leave Sanjay alive. Bhaskar rushed towards Sanjay. PW 7 Vithabai went to rescue Sanjay and to stop the accused. At that time, Bhaskar gave a blow with sickle on Vithabai. Therefore, Vandana went to rescue Vithabai. Then accused No.1 Bhaskar gave blow with sickle on the left hand of Vandana. Then accused No. 2 Mahadeo gave Vandana and Vithabai hand blows and kick blows. Bhaskar also gave blow with sickle on the finger and hand of Tanubai. Due to this Tanubai's left finger was completely cut. At that time, PW 13 Pralhad who resided near the house of Vandana came to rescue them. Both the accused persons then entered into the second room where Sanjay was sleeping. Bhaskar then gave blow with sickle on the stomach of Sanjay. Sanjay died on the spot. PW 3 Vandana then lodged FIR. Thereafter, investigation commenced. (c) Both the accused were arrested on the very same day. During the course of investigation, blood stained sickle (Article 22) came to be recovered at the instance of accused No.1 Bhaskar. In the meanwhile the dead body of Sanjay was sent for postmortem. PW 14 Dr. Pawar conducted the postmortem on the dead body of Sanjay. In the opinion of Dr. Pawar, the cause of death was hypo volumic shock due to fatal cardiac and lung injuries. In the meanwhile the dead body of Sanjay was sent for postmortem. PW 14 Dr. Pawar conducted the postmortem on the dead body of Sanjay. In the opinion of Dr. Pawar, the cause of death was hypo volumic shock due to fatal cardiac and lung injuries. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellants under Section 302 r/w 34, IPC for causing death of Sanjay, under Section 326 r/w 34 and 324 r/w 34. IPC for causing injuries to Vandana, Tanubai, Vithabai and Pralhad, under Section 452 r/w 34, IPC for entering into the house of Vandana, having made preparation to cause hurt and under Section 506 r/w 34, IPC for giving threats to the witnesses and the deceased. Both the accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants as stated in paragraph 1 above, hence, this appeal. 4. We have heard the learned Advocates for the appellants and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties the judgment delivered by the learned Sessions Judge and the evidence on record for the reasons stated below we are of the opinion that the appellants have committed house trespass by entering the house of Vandana in order to assault Sanjay assaulted Sanjay and during the assault they caused injuries to the witnesses. 5. The conviction is mainly based on the evidence of five eye witnesses. They are PW 3 Vandana, PW 5 Reshma, PW 6 Tanubai, PW 7 Vithabai and PW 13 Pralhad. PW 3 Vandana was the wife of deceased Sanjay. PW 5 Reshma was the sister of Vandana. PW 7 Vithabai was the mother of Vandana, PW 6 Tanubai and PW 13 Pralhad were residing in the neighbourhood of Vandana. At the time of the incident, Vandana, Reshma, Tanubai and Vithabai were all sitting in the house of Vandana. They were sitting in the outer room and Sanjay was sleeping in the inner room after having his meals. 6. At the time of the incident, Vandana, Reshma, Tanubai and Vithabai were all sitting in the house of Vandana. They were sitting in the outer room and Sanjay was sleeping in the inner room after having his meals. 6. PW 3 Vandana has stated that on 04.03.2007 at about 12 noon, Sanjay had his food and he was sleeping in the middle room of the house. At about 02.00 p.m. in the afternoon, accused No. 1 Bhaskar came with a sickle to her house. At that time, accused No. 2 Mahadeo was with him. When Bhaskar and Mahadeo came to the house of Vandana, Vandana, her mother PW 7 Vithabai, PW 5 Reshma sister of Vandana and Vandana's neighbour PW 6 Tanubai were sitting in the house of Vandana. Bhaskar asked, "Where is Sanjay? Where is Sanjay? Bhaskar also said that Sanjay was defaming him and who is Sanjay to tell him to get married. Bhaskar then said that he will not leave Sanjay alive. Bhaskar rushed towards Sanjay. PW 7 Vithabai went to rescue Sanjay and to stop the accused. At that time, Bhaskar gave a blow with sickle on Vithabai. Therefore, Vandana went to rescue Vithabai. Then accused No. 1 Bhaskar gave blow with sickle on the left hand of Vandana. At that time, accused No. 2 Mahadeo gave Vandana and Vithabai hand blows and kick blows. Bhaskar also gave blow with sickle on the finger and hand of Tanubai. Due to this, Tanubai's left finger was completely cut off. At that time, PW 13 Pralhad who resided near the house of Vandana came to rescue them. Both the accused persons then entered into the second room where Sanjay was sleeping. Bhaskar then gave blow with sickle on the stomach of Sanjay. Sanjay died on the spot. PW 3 Vandana then lodged FIR. 7. PW 6 Tanubai was the neighbour of Vandana. She has stated that on the day of the incident, she was sitting in the house of Vithabai i.e. the house where Vandana resided with her family. Tanubai has stated that she, PW 5 Reshma. PW 7 Vithabai and PW 3 Vandana were sitting in the house. Both the accused came to the house of Vithabai. Accused No. 1 Bhaskar beat Vithabai with a sickle. Vandana came to her rescue. At that time, accused No. 1 Bhaskar beat Vandana with a sickle. Tanubai has stated that she, PW 5 Reshma. PW 7 Vithabai and PW 3 Vandana were sitting in the house. Both the accused came to the house of Vithabai. Accused No. 1 Bhaskar beat Vithabai with a sickle. Vandana came to her rescue. At that time, accused No. 1 Bhaskar beat Vandana with a sickle. Tanubai went to rescue Vandana. At that time, accused No. 1 Bhaskar assaulted her on her hand and back with sickle. Because of the blow given by accused No.1 Bhaskar, one finger of her left hand was totally cut. Tanubai has further stated that the accused asked where Sanjay is and entered inside the house and accused No. 1 Bhaskar then gave blow with sickle on the stomach of Sanjay. 8. PW 5 Reshma was the sister-in-law of the deceased and the sister of complainant Vandana. Reshma has stated that the incident took place on 04.03.2007. She her mother Vithabai, her sister Vandana and neighbour Tanubai were chit chatting in the front room of the house. Sanjay was sleeping in the second room which was behind the first room. Accused No. 1 Bhaskar came to their house. He was carrying a sickle in his hand. Accused No. 2 Mahadeo was with accused No. 1 Bhaskar. Bhaskar was asking where is Sanjay. Bhaskar also stated that he would not leave Sanjay alive. Vithabai went to stop Bhaskar whereupon Bhaskar gave blows with sickle to Vithabai. Accused Bhaskar then gave blow with the sickle on the hand of Vandana. Tanubai went to obstruct the accused whereupon accused No. 1 Bhaskar gave blow with sickle on the hand of Tanubai. Due to the blow of sickle, Tanubai's finger was cut off. Accused Bhaskar and Mahadeo then went in the room where Sanjay was sleeping. Accused No. 1 Bhaskar gave blow with the sickle to Sanjay. Sanjay died on the spot. 9. PW 7 Vithabai has stated that PW 6 Tanubai was residing near her house. She has further stated that accused No. 1 Bhaskar is her relative. On the day of the incident, she, Vandana, Reshma and Tanubai were sitting in the outer room of her house. At that time, both the accused came to her house asking whereabouts of Sanjay. Accused No. 1 Bhaskar stated that he would not keep Sanjay alive. At that time, accused No. 1 Bhaskar had a sickle in his hand. On the day of the incident, she, Vandana, Reshma and Tanubai were sitting in the outer room of her house. At that time, both the accused came to her house asking whereabouts of Sanjay. Accused No. 1 Bhaskar stated that he would not keep Sanjay alive. At that time, accused No. 1 Bhaskar had a sickle in his hand. Accused No. 1 Bhaskar gave blow with sickle to Vithabai. He then gave blow with sickle to Vandana. Thereafter, accused No. 1 Bhaskar gave blow with sickle on Tanubai's finger. Sanjay was sleeping in inside room. Bhaskar then gave blow with sickle on the stomach of Sanjay. Sanjay died on the spot. Thereafter, both the accused ran away from the spot. 10. PW 13 Pralhad was the neighbour of Vithabai. Pralhad has stated that the incident took place on 04.03.2007 at about 02.00 p.m. At that time, he had taken lunch and was sitting near the door of his house. He saw both the appellants came running from the house of accused No. 1 Bhaskar. Accused No. 1 Bhaskar was having a sickle in his hand. Bhaskar was shouting, "Where is Sanjay? He will not keep him alive today." Pralhad tried to catch both the accused. At that time, accused Bhaskar gave blow with sickle on his right hand. Pralhad sustained injury. Both the accused went to the house of Vithabai. Pralhad heard shouts of Vithabai, Vandana and Tanubai. Tanubai came out of the room and she was shouting. Pralhad saw that Tanubai's one finger was cut off. Pralhad then went to the house of Vithabai. He saw accused No. 1 Bhaskar beat Vithabai and Vandana with sickle. Thereafter both the accused went in the room where Sanjay was there. Accused No. 1 Bhaskar gave blows with sickle to Sanjay. Thereafter, both the accused ran away from the spot. 11. It is the prosecution case that sickle was used by accused No. 1 Bhaskar to assault Sanjay. This fact is borne out by medical evidence. PW 14 Dr. Pawar conducted the postmortem on the dead body of Sanjay. On external examination, he noticed following injuries:- 1. There was incised wound over sternum just below the nipple. Size of injury was 10 x 4 x 10 cm - cutting ribs on both sides with sternum - cutting deep both lungs with heart perforation right acrium and ventrical; 2. Pawar conducted the postmortem on the dead body of Sanjay. On external examination, he noticed following injuries:- 1. There was incised wound over sternum just below the nipple. Size of injury was 10 x 4 x 10 cm - cutting ribs on both sides with sternum - cutting deep both lungs with heart perforation right acrium and ventrical; 2. There was contused lacerated wound in right axilla transverse of size 6 x 3 cm; 3. Contused lacerated wound on right arm inner aspect in axilla of size 5 cm x 2 cm x 3 cm deep - cutting the axillary vessals. The internal injuries noticed are as under:- 1. Heart was perforated, both lungs were cut and there was blood in thorasic cavity. Large vessals were empty. Injuries mentioned in postmortem notes are ante mortem injuries. In the opinion of Dr. Pawar, the cause of death of the deceased was hypo volumic shock due to fatal cardiac and lung injuries. According to Dr. Pawar, the injuries are possible by a sickle. 12. It is further the prosecution case that during the course of the incident, both the accused persons assaulted the witnesses. PW 10 Dr. Joshi examined PW 3 Vandana, PW 6 Tanubai and PW 7 Vithabai. Dr. Joshi examined PW 3 Vandana and found following injuries on her person:- 1. There was crush injury with bleeding and contamination. The injury was on left forearm near left wrist, dorsally and it was muscle and bone deep. The injury is possible by hard and sharp object. The age of the injury was within six hours. Nature of the injury was grievous. Dr. Joshi also examined PW 6 Tanubai and found following injuries on her person:- 1. There was contused lacerated wound on dorsal aspect of left arm of size of 4 x 1 cm. The injury is possible by hard and sharp object. Age of injury was within six hours and it was a simple injury; 2. There was contused lacerated wound on dorsal aspect of left forearm of size of 2 x 1 cm. The injury is possible by hard and blunt object. Age of the injury was within six hours. It was simple injury; 3. There was contused lacerated wound on left scapular region of size of 6 x 1 cm. The injury is possible by hard and sharp object. The injury is possible by hard and blunt object. Age of the injury was within six hours. It was simple injury; 3. There was contused lacerated wound on left scapular region of size of 6 x 1 cm. The injury is possible by hard and sharp object. Age of the injury was within six hours and it was simple injury; 4. There was contused lacerated wound on right forearm of the patient of size of 1 x 1 cm. The injury is possible by hard and sharp object. Age of the injury was within six hours. It was a simple injury; 5. There was total amputation of left ring finger at proximal intra phalengeal joint that level with contused lacerated wound extending from through third web space up to mid palm. The injury is possible by hard and sharp object. The age of the injury was within six hours and nature of the injury was grievous. As far as PW 7 Vithabai is concerned, Dr. Joshi noticed the following injuries on her person:- 1. There was incised wound on right cheek having length of 8 cm. The injury is possible by hard and sharp object. Age of the injury was within six hours and it was simple injury; 2. There was contused lacerated wound on right supra clavicular region having length of 3 cm. The injury is possible by hard and sharp object. Age of injury was within six hours and it was simple injury. According to Dr. Joshi, all the injuries caused to PW 3 Vandana. PW 6 Tanubai and PW 7 Vithabai were possible by sickle which according to the prosecution, was the weapon used by accused No. 1 Bhaskar. 13. Motive for both the appellants to commit the crime is brought on record through the evidence of PW 3 Vandana, PW 5 Reshma and PW 7 Vithabai. PW 3 Vandana has stated that accused No. 1 Bhaskar was her uncle. He resided near her house. Bhaskar was unmarried. Bhaskar used to be constantly in the company of accused No. 2 Mahadeo. Accused No. 2 Mahadeo is a eunuch. About 15 days prior to the incident, deceased Sanjay had told accused No. 1 not to be in the company of accused No. 2 who is a eunuch Sanjay told Bhaskar to get married. Bhaskar was unmarried. Bhaskar used to be constantly in the company of accused No. 2 Mahadeo. Accused No. 2 Mahadeo is a eunuch. About 15 days prior to the incident, deceased Sanjay had told accused No. 1 not to be in the company of accused No. 2 who is a eunuch Sanjay told Bhaskar to get married. Sanjay further told Bhaskar that Sanjay would keep Mahadeo with him and as to whether thereafter, Bhaskar would get married. At that time, both the accused i.e. Bhaskar & Mahadeo had beat Sanjay. The evidence of PW 5 Reshma and PW 7 Vithabai is on similar lines as that of PW 3 Vandana. 14. Additional motive which has been brought on record is that deceased Sanjay had constrected a wall in the house of accused No. 1 Bhaskar and 4-5 days prior to the incident, Sanjay had demanded money from accused No. 1 Bhaskar. At that time, dispute had taken place between Bhaskar and Sanjay. PW 7 Vithabai has also stated about this dispute relating to money arising out of the construction of wall in the house of accused No. 1 Bhaskar by Sanjay. Though according to the prosecution, this is one of the motive for the accused persons to commit the offence, the main motive appears to be the incident which took place about 15 days prior to the incident wherein Sanjay had told Bhaskar not to be in the company of accused No. 2 Mahadeo and had told Bhaskar to get married. Sanjay had also told Bhaskar that he would keep Mahadeo with him and as to whether thereafter, Bhaskar would get married. On account of Sanjay saying so, both the accused persons were enraged and they assaulted Sanjay. The fact that this incident enraged the accused persons is further seen from the fact that at the time of the incident, Bhaskar came to the house where Sanjay was residing and he was asking "where is Sanjay". Bhaskar further told that Sanjay is defaming him and who is Sanjay to tell him to get married. Thus, the main cause for grudge of accused No. 1 Bhaskar appears to be that Sanjay was telling him to leave the company of accused No. 2 Mahadeo and Sanjay was telling Bhaskar to get married. Bhaskar further told that Sanjay is defaming him and who is Sanjay to tell him to get married. Thus, the main cause for grudge of accused No. 1 Bhaskar appears to be that Sanjay was telling him to leave the company of accused No. 2 Mahadeo and Sanjay was telling Bhaskar to get married. The fact that accused No. 2 Mahadeo also had a grudge against Sanjay on account of Sanjay telling Bhaskar to leave the company of Mahadeo and to get married is seen from the fact that 15 days prior to the incident when Sanjay has stated so to Bhaskar, both the accused had assaulted Sanjay. 15. Dr. Yug Mohit Chaudhary, learned counsel for accused No. 2 Mahadeo submitted that accused No. 2 Mahadeo has been roped in with the help of Section 34, IPC. He pointed out that at the time of incident, Mahadeo was not armed with a weapon. He further pointed out that there is no evidence to show that Mahadeo assaulted Sanjay. He submitted that in such case, it cannot be stated that accused No. 2 shared the common intention with accused No. 1 Bhaskar to murder Sanjay and to caw, injuries to the eye witnesses. In order to support this contention, he placed reliance on the three decisions of the Supreme Court. The first decision is in the case of Pandurang and Others Vs. State of Hyderabad, AIR 1955 S.C. 216 . The second decision is in the case of Dajya Moshya Bhil & Ors Vs. State of Maharashtra, 1984 (Supp) Supreme Court Cases 373 and the third decision is in the case of Virendra Singh Vs. State of Madhya Pradesh, (2010) 8 Supreme Court Cases 407: [2010 ALL MR (Cri) 3955 (S.C.)]. In the case of Pandurang (supra), it was observed as under:- "Now in the case of section 34, we think it is well established that a common intention presupposes prior concert. It requires a per-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King-Emperor, AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. It requires a per-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King-Emperor, AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case." Dr. Chaudhary further placed reliance on the observations in the said decision wherein it was observed as under:- "the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case". But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis" On perusal of the said decision and observations reproduced above, it is seen that the Supreme Court has observed that it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan. It requires a pre-arranged plan. In the case of Pandurang (supra), the Supreme Court was of the opinion that the case was not covered by Section 34, IPC as it was not known what the accused persons said or did before the attack-not even immediately before. In the present case, the evidence on record especially that of PW13 Pralhad shows that he was sitting near the door of his house. At that time, he saw both the accused persons came running from the house of Bhaskar. At that time, accused No. 1 Bhaskar was having a sickle in his hand and Bhaskar was shouting where is Sanjay and he will not leave him alive today. Thereafter, both the accused persons ran into the house where Sanjay was residing. The words uttered by accused No. 1 Bhaskar were that he would not leave Sanjay alive. Accused No. 1 Bhaskar was armed with a sickle at that time and accused No. 2 Mahadeo accompanied him. Both came running out from the house of accused No. 1 Bhaskar. This clearly shows prior concert and pre-arranged plan between the accused persons. In the case of Pandurang (supra), what all the accused persons said or did before the act was not known, however, in the present case, it is known and when accused No. 1 Bhaskar uttered the words that he would not leave Sanjay live and at that time, he was armed with a sickle, yet accused No. 2 Mahadeo accompanied him, shows that he shared the common intention of Bhaskar to finish Sanjay as per the intention expressed by Bhaskar. In the present case, the inference of common intention is clearly deducible from the circumstances of the case. Moreover, the evidence of Vandana, Reshma and Vithabai shows that when Bhaskar came into the house of Vandana, he first expressed his intention that he would not keep Sanjay alive. Bhaskar was armed with a sickle at that time, thereafter, he entered into the inner room and assaulted Sanjay with a knife. Thus, though Bhaskar clearly expressed his intention to kill Sanjay, Mahadeo did not disassociate himself or turn back, on the contrary, he accompanied Bhaskar into the inner room where Sanjay was sleeping. The medical evidence shows that Bhaskar inflicted three blows on Sanjay. Thus, though Bhaskar clearly expressed his intention to kill Sanjay, Mahadeo did not disassociate himself or turn back, on the contrary, he accompanied Bhaskar into the inner room where Sanjay was sleeping. The medical evidence shows that Bhaskar inflicted three blows on Sanjay. At no point of time, Mahadeo tried to stop Bhaskar from inflicting any further blows, this shows that he shared the common intention with Bhaskar. 16. Dr. Chaudhary pointed in the case of Dajya Moshya Bhil (supra) that (i) the three accused came together; (ii) that all the three accused had a common motive to avenge the incident what occurred at 'Indal' festival; and (iii) that when the victim of assault tried to escape, all the three of them chased him. Only one of them was armed with a weapon at that time. It was held that the accused did not share the common intention. In the present case, it is seen that though only accused No. 1 Bhaskar was armed with a weapon, he had declared his intention that he would kill Sanjay that day. Despite this fact, accused No. 2 Mahadeo accompanied accused No. 1 even after accused No. 1 had declared his intention clearly. The fact that he accompanied accused No. 1 who was armed with a deadly open and entered into the house of the deceased and thereafter, also assaulted the wife of the deceased when she tried to obstruct him shows that he shared the common intention of accused No. 1 Bhaskar to murder Sanjay. PW 3 Vandana has clearly stated that accused No. 2 Mahadeo gave her hand blows and kick blows. This overact on the part of accused No. 2 Mahadeo also shows that he shared the common intention of accused No. 1 Bhaskar to commit the murder of Sanjay. 17. Dr. Chaudhary then placed reliance on the decision in the case of Virendra Singh [2010 ALL MR (Cri) 3955 (S.C.)] (supra) and submitted that some active participation was necessary by an accused to attract Section 34, IPC. He placed reliance on the following observations in the said case :- i. Section 34 does not by itself create any specific offence, whereas Section 149 does so; ii. He placed reliance on the following observations in the said case :- i. Section 34 does not by itself create any specific offence, whereas Section 149 does so; ii. Some active participation, especially in crime involving physical violence, is necessary under Section 34, but Section 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime; iii. Section 34 speaks of common intention, but Section 149 contemplates common object which is undoubtedly wider in its scope and amplitude than intention; and iv. Section 34 does not fix a minimum number of persons who must share the common intention, whereas Section 149 requires that there must be at least five persons who must have the same common object. In the present case, accused No. 1 Bhaskar had openly declared his intention that he would finish Sanjay that day, which is clearly stated by the witnesses including PW 3 Vandana. Accused No. 1 Bhaskar at that time was armed with a weapon, yet accused No. 2 Mahadeo accompanied accused No. 1. When they went to the house of Sanjay, Vandana the wife of Sanjay tried to obstruct accused No. 1 Bhaskar, at that time, accused No. 2 Mahadeo assaulted her with fist blows and kick blows. This clearly shows the active participation on the part of accused No. 2 Mahadeo and it shows that this act of assaulting Vandana was clearly in furtherance of common intention to murder Sanjay. If accused No. 2 Mahadeo did not share the common intention with accused No. 1 Sanjay, there was no need for him to stop Vandana from saving her husband by assaulting her. 18. Thus, from the facts of this case, it is seen that both the accused came running to the spot together. At that time, accused No. 1 Bhaskar was armed with a deadly weapon. He was clearly voicing his intention that he would kill Sanjay that day, yet accused No. 2 Mahadeo accompanied him. Both of them came running together from the house of accused No. 1. Accused No. 2 Mahadeo entered the house of Sanjay along with accused No. 1 Bhaskar which is stated by PW 3 Vandana. PW 5 Reshma and PW 7 Vithabai. Both of them came running together from the house of accused No. 1. Accused No. 2 Mahadeo entered the house of Sanjay along with accused No. 1 Bhaskar which is stated by PW 3 Vandana. PW 5 Reshma and PW 7 Vithabai. At that time, Bhaskar voiced his intention that he would kill Sanjay that day. Thereafter, when Vandana tried to obstruct accused No. 1 Bhaskar, accused No. 2 Mahadeo assaulted Vandana with fist blows and kick blows. After accused No. 1 Bhaskar assaulted Sanjay with the sickle and caused his death, both the accused persons ran away from the spot together. All these facts show the prior concert and pre-arranged plan on the part of the accused persons. Their conduct before, during and after the incident shows that accused No. 2 Mahadeo shared the common intention of accused No. 1 Bhaskar in causing the death of Sanjay and causing injuries to the witnesses. Thus, we find no merit in the submission that accused No. 2 Mahadeo did not share the common intention with accused No. 1 Bhaskar to kill Sanjay and injure the witnesses. 19. Dr. Chaudhary submitted that as far as accused No. 2 Mahadeo is concerned, the role attributed to him is that he assaulted PW 3 Vandana with fist blows and kick blows, however, no such injuries caused by the fist blows and kick blows were seen on the person of Vandana and only one crush injury was found on her arm. He submitted that this shows that accused No. 2 Mahadeo has been falsely implicated in this case. As far as this aspect is concerned, it is to be noted that not every fist blow and kick blow will leave a visible injury on the person who has been assaulted. Thus, non finding of any injury which corresponds to fist blows and kick blows would not mean that accused No. 2 Mahadeo has not assaulted Vandana. Thus, we find no merit in this submission. 20. On going through the record, we find that there is sufficient evidence to prove that the appellants have committed house trespass by entering the house of Vandana in order to assault Sanjay, assaulted Sanjay and during the assault, they caused injuries to the witnesses. Thus, we do not find any merit in these appeals. The appeals are dismissed. 21. 20. On going through the record, we find that there is sufficient evidence to prove that the appellants have committed house trespass by entering the house of Vandana in order to assault Sanjay, assaulted Sanjay and during the assault, they caused injuries to the witnesses. Thus, we do not find any merit in these appeals. The appeals are dismissed. 21. Office to communicate this order to the concerned prison Authorities and to the appellants who are in jail. 22. At this stage, we must record our appreciation for Dr. Yug Mohit Chaudhary, learned counsel for accused No. 2 Mahadeo. We also record our appreciation for Advocate Mrs. Indrayani Koparkar who was appointed to represent accused No. 1 Bhaskar. We found that she had meticulously prepared the matter and she has very ably argued the appeal. As Mrs. Indrayani Koparkar is an appointed Advocate, we quantify total legal fees to be paid to her in Criminal Appeal No. 66 of 2011 by the High Court Legal Services Committee at Rs.3000/-. Appeals dismissed.