JUDGMENT : VIJAY KUMAR SHUKLA, J. 1. In the present appeal challenge is made to the order of conviction and sentence passed by the learned II Additional Judge to the Court of First Additional Session Judge, Sidhi in S.T. No. 02/2004 [State vs. Mohd. Faizan and others] on 16-11-2004 whereby the accused-appellants have been sentenced under section 302/34, Indian Penal Code to undergo imprisonment for life and fine of Rs. 10000/- each, in default of payment of fine amount, to suffer further rigorous imprisonment for six months each. They have also been convicted under section 323/34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 1 year each with the stipulation that both the sentences would run concurrently. 2. A criminal case was set in motion by the report lodged by PW-2, Sushil Kumar Sharma on 7-12-2003 at about 03:30 AM in the Police Station, Kotwali, District Sidhi at 01:45 AM alleging that when he was sleeping in the house, he heard the noise of the neighbours as they were shouting catching hold to miscreants. He came out from the house and found that his neighbours Rakesh Pandey, Anil Soni, Ashok Soni, Kamal Shrivastava and Jitendra Chaturvedi were present over there. At that time one boy was injured and blood was oozing from his head. He informed that he has been beaten by Mohd. Kalam, Meenu and Faizan. He stated his name as Shameem alias Dadu. Many persons of the crowd rushed to catch hold of the assailants. One of them had hit on his shoulder and the other persons caused injuries to him by means of sharp-edged weapon – ‘Katar’ which had inflicted injuries into his veins and the thumb of the right leg. At that time the deceased – Rakesh Pandey tried to save the injured Shameem alias Dadu as the assailants were returned and again beating him. When the deceased was trying to save the injured, one of the assailants had given him a blow on his face with ‘katar’ and another had struck ‘lathi’ on his head. The other had caused grievous injuries on the chest of the deceased with full force. He was taken to the hospital and he was declared brought dead. 3. Shameem alias Dadu who was injured, disclosed the names of the assailants and accordingly the police report was lodged. The other had caused grievous injuries on the chest of the deceased with full force. He was taken to the hospital and he was declared brought dead. 3. Shameem alias Dadu who was injured, disclosed the names of the assailants and accordingly the police report was lodged. The dead-body ‘panchnama’ was prepared and the injured Sushil Kumar Sharma and Shameem were sent for medical examination. The ‘marg’ intimation regarding death of Rakesh Pandey was got registered and the offence punishable under sections 307, 302 and 323/34 were instituted. The blood stained soil was seized and statements of prosecution witnesses were recorded. The investigating officer has also effected the seizure and memorandums were executed. After investigation the charge-sheet was filed to the competent Court of jurisdiction which in turn, committed the matter for trial. 4. Charges were framed under sections 307, 323/34 and 302/34 of the Indian Penal Code by the trial Court and statements of prosecution witnesses were recorded under section 313 of Criminal Procedure Code. 5. The charge framed against the accused persons was that they had formed an unlawful assembly in order to cause death of Mohd. Shameem. They shared common intention to cause death of Mohd. Shameem @ Dadu and in furtherance thereto injuries were inflicted to him with the help of a ‘katar’ by Mohd. Kalam and Mohd. Meenu, who caused injuries with the help of an iron rod and the accused - Mohd. Faizan had used a ‘lathi’. They were further charged that in furtherance of their common intention to cause death of Shameem alias Dadu, they caused injuries to the deceased – Shushil Kumar Sharma, who strived to save the injured Shameem alias Dadu. The charge was also framed against the accused-appellants that while executing their common intention in order to cause death of Shameem alias Dadu, they caused murder of the injured Rakesh Pandey by inflicting grievous injuries to him by means of deadly weapons viz. ‘katar’, iron rod and ‘lathi’. The charge was also framed against the accused-appellants that while executing their common intention in order to cause death of Shameem alias Dadu, they caused murder of the injured Rakesh Pandey by inflicting grievous injuries to him by means of deadly weapons viz. ‘katar’, iron rod and ‘lathi’. The counsel for the appellants submitted that the conviction of the appellants under section 302/34 of Indian Penal Code is bad in law that they had shared common intention to cause death of Rakesh Pandey, but according to the case of the prosecution they had intention to cause death of Shameem alias Dadu and not of the deceased - Sushil Kumar Sharma especially when they have been acquitted of the charge under section 307/34 of Indian Penal Code and convicted only for inflicting simple injury to Shameem. 6. Per contra, counsel for the State submitted that there is no illegality in the impugned judgment of conviction and order of sentence. It is submitted by him that the accused persons were armed with deadly weapons and had common intention to cause murder of Shameem alias Dadu and while causing injury to him they caused death of the deceased - Rakesh Pandey, who attempted to rescue the injured – Shameem alias Dadu. It is further submitted by him that since the common intention itself was to commit offence of murder, therefore, there is no illegality in the impugned order of conviction and sentence passed by the learned trial Judge. 7. The prosecution case is based on the testimony of injured PW-15, Mohd. Shameed and also PW-2, Sushil Kumar Sharma. The other prosecution witnesses, namely, Jitendra Chaturvedi (PW-5), Siddhnath Chaturvedi (PW-7), Jai Prakash Tiwari (PW-11) have also supported the case of the prosecution. 8. Firstly, we would like to proceed to examine the testimony of Shameem alias Dadu (PW-15) who is an injured witness. He deposed that after closing the shop at about 08:00 PM, he was watching movie from 09:00 to 12:00 O’clock and when he was coming back after watching the moovie, he was stopped by the accused persons – Mohd. Meenu, Mohd. Kalam and Mohd. Faizan. They had snatched his money ans attempted to take his wrist watch. Thereafter the accused persons fled away from the spot as one or two bikes passed through the spot. After some time, the accused persons came back and the accused Mohd. Meenu, Mohd. Kalam and Mohd. Faizan. They had snatched his money ans attempted to take his wrist watch. Thereafter the accused persons fled away from the spot as one or two bikes passed through the spot. After some time, the accused persons came back and the accused Mohd. Meena had inflicted a blow on his head. Though some persons arrived at the spot but despite their alarm the accused persons remained continue to beat him. In para 2 of his deposition he says that all the three accused persons went to some distance but again returned and when the deceased - Rakesh Pandey was endeavouring to save him, he was hit on the head by some of the assailants, but since he was already injured and there was blood in his eyes, therefore, he could not identify that who had hit on the head of the deceased. 9. Another witness PW-2, Sushil Kumar Sharma, who has stated that when he was sleeping in the night, he heard the noise and came out and found that there was an injured person over there and three persons were running from the spot. He further stated that initially they had run away from the spot thereafter they again came back and one of them had given a ‘lathi’ blow on his head and he also received an iron rod blow on his right forehead. One of them had also caused injuries with the help of sharp-edged weapon, ‘Katar’. Thereafter, the three accused persons again started beating the injured Shameem @ Dadu and at that time, Rakesh Pandey attempted to save him, however, the accused appellants by means of deadly weapons viz. ‘katar’, ‘sabbal’ and ‘lathi’ caused injuries to them. There was sufficient street-light and he had seen faces of the three accused persons. The names of the assailants were informed by the injured Shameem alias Dadu. Thereafter, they had gone to the Police Station immediately from the spot and a prompt FIR was lodged at the Police Station, vide Ex.P/3. Testimony of these two witnesses get further support with the evidence of PW-5, Jitendra Chaturvedi, who had also witnessed the incident and had seen that the appellants were causing injuries to Shameem @ Dadu and thereafter, they had also attacked on Sushil Kumar Sharma, PW-2 and when Rakesh Pandey strived to save the deceased, they also assaulted him. Testimony of these two witnesses get further support with the evidence of PW-5, Jitendra Chaturvedi, who had also witnessed the incident and had seen that the appellants were causing injuries to Shameem @ Dadu and thereafter, they had also attacked on Sushil Kumar Sharma, PW-2 and when Rakesh Pandey strived to save the deceased, they also assaulted him. He deposed that the appellant – Mohd. Kalam was having a sharp-edged weapon like ‘katar’ and Mohd. Faizan was armed with a ‘lathi’ and the accused Mohd. Meena was carrying a sharp-edged weapon like ‘sabal’. He had hit with the said weapon on the head of the deceased Rakesh Kumar Pandey. 10. PW-11, Jai Prakash Tiwari has also narrated the same incident with minor changes and has stated that Shameem was attacked by the accused persons and they had also caused injuries to Sushil Kumar Sharma, PW-2 and thereafter they had attacked on the deceased – Rakesh Pandey, who was endeavouring to save the injured – Shameem alias. He has made a specific statement that Mohd. Kalam had caused injuries with the help of a ‘katar’ and the appellant – Mohd. Meena was also having some iron-like weapon and the accused Mohd. Faizan was armed with a ‘lathi’. In para 2 of his deposition he has also stated that there was adequate light at the place of the occurrence as there was a tube-light which was on and even otherwise it was a moonlight and, therefore, he had identified all the accused persons. He also supported the seizure of the weapons which were recovered from the accused persons upon their disclosure statements. 11. The prosecution has examined Dr. S. B. Khare as PW-10, who had medically examined PW-2, Sushil Kumar Sharma and observed injuries on his head near temporal region and there was a lacerated wound at his left hand. He has also examined Mohd. Shameem @ Dadu and found five injuries on his person. Two injuries were on the head. One was near chin and the injury Nos.(iv) and (v) were on the left leg and on the back side. According to him the injury on the eye was simple in nature and as regards other injuries he advised for X-ray. All the injuries were found to be caused by hard and blunt objects. 12. Dr. K. L. Nigam has been examined by the prosecution, who conducted autopsy of the deceased. According to him the injury on the eye was simple in nature and as regards other injuries he advised for X-ray. All the injuries were found to be caused by hard and blunt objects. 12. Dr. K. L. Nigam has been examined by the prosecution, who conducted autopsy of the deceased. He found that that there was lacerated wound on the scalp of the deceased the right parietal region having the size of 2” x ½” x 3/4” and there was fracture of bones and blood clots were also found. Other injuries were found on the right eye brow which was a transverse wound with the size of 1 ½” x ½” x ½”. There was also an injury on the left knee of the size ½” x 1”. According to his opinion the injuries No. (i) and (ii) were caused by means of a blunt and hard object and the injury No. (ii) was inflicted by some sharp-edged weapon. The Injury No. (i) was sufficient to cause death in the ordinary course of nature. The autopsy report is Ex.P/15. The cause of death was coma because of injuries received at head of the deceased. 13. On the evaluation of the entire evidence of the present case, it is found that the accused appellants had common intention to kill Shameem alias Dadu (PW-15) and in furtherance thereto they caused various injuries to Sushil Kumar Sharma (PW-2). Initially they fled away from the spot and came back and then they caused multiple injuries to the deceased - Rakesh Pandey. After running away from the spot their conduct to come back again and to inflict multiple injuries by means of deadly weapons viz. ‘katar’, iron rod/’sabal’ and ‘lathi’ vividly demonstrate common intention of the accused persons to cause murder. Even if the argument of the counsel for the appellants is accepted that the accused persons had only intention to kill Shameem @ Dadu and not Rakesh Pandey, the same cannot be accepted, in view of the provision of section 301 of the Indian Penal Code, which is reproduced hereunder : “301. Culpable homicide by causing death of person other than person whose death was intended. Culpable homicide by causing death of person other than person whose death was intended. — If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.” 14. In the case of Jaspal Singh and others vs. State of Punjab, AIR 1991 SC 982 the Apex Court held that if the accused persons were aiming at one person but killed other person, would be punishable for commission of the offence of murder under the doctrine of transfer of malice, as contemplated under section 301 of the Indian Penal Code. In view of the aforesaid, the argument advanced on behalf of the accused appellants does not deserve acceptance. 15. In the present case testimony of injured witnesses Ramesh Kumar Sharma (PW-2) and Mohd. Shameem (PW-15) are well corroborated with the deposition of other prosecution witnesses Jitendra Chaturvedi (PW-5) and Jai Prakash Tiwari (PW-11). The ocular evidence is supported by medical evidence adduced by Dr. K. S. Nigam (PW-9) and Dr. S. B. Khare (PW-10). In addition to this, seizure of weapons utilised viz. iron rod, ‘katar’ and ‘lathi’ from the exclusive possession of the accused appellants, per se, sufficient to prove their common intention to cause murder of Mohd. Shameem @ Dadu. Once the prosecution has established their common intention to kill Mohd. Shameem and while causing injuries to him they have lynched Rakesh Pandey, we do not find any illegality in the judgment of conviction and order of sentence by the learned trial Judge, in view of the doctrine of transfer of malice under section 301 of the Indian Penal Code. 16. In view of the preceding analysis, we do not find any illegality in the impugned judgment of conviction and sentence passed by the learned trial Judge against the appellants warranting any interference of this Court. Accordingly, the appeal is sans merit and is dismissed. 17. Before parting with the case, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. Accordingly, the appeal is sans merit and is dismissed. 17. Before parting with the case, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High Court Legal Services Committee shall remit fees of Rs. 4000/- (Rs. four thousand only) to the learned counsel who have assisted this Court.