JUDGMENT : A.S. SUPEHIA, J. (1) Both these Criminal Appeals emanate from the judgment and order dated 11.02.2005 passed by Additional Sessions Judge, Fast Track Court No.4, Navsari, in Sessions Case No.42 of 2004, wherein and whereby, the trial Court has acquitted the original accused Nos.5 and 6 i.e. Mangubhai Bhisabhai (Ghodia) Patel and Kiranbhai Chhotubhai (Ghodia) Patel, respectively and convicted the original accused Nos.1 to 4 for the offence punishable under Sections 304 Part–II read with Section 34 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced imprisonment for a period of 5 years. (2) Being aggrieved by the judgment and order passed by the trial Court, the State has filed the appeal against all the six accused, whereas, the original accused Nos.1 to 4 had filed the captioned Appeal being Criminal Appeal No.465 of 2005, challenging the conviction under provisions of Section 304 Part-II read with Section 34 of the IPC. BRIEF FACTS: (3) The case of the prosecution is that the complainant – Kikubhai Gamanbhai, (PW-1), filed a complaint before Chikhali Police Station, alleging that on 03.08.2004, when he along with his wife – Babitaben had gone for agricultural work in his field, at the relevant point of time, the father of the complainant viz. Gamanbhai had also gone for grazing the cattle and at around 5 hours, in the evening, he heard cries of his father, who shouted for help and accordingly hearing such cries the complainant along with his wife – Babitaben PW-2, went there and saw all the accused – Babubhai Bheisabhai (Ghodia) Patel, Chhotubhai Bheisabhai (Ghodia) Patel, Dharmeshbhai Babubhai (Ghodia) Patel and Rakesh Chhotubhai (Ghodia) Patel, were inflicting stick blows to his father and the accused-Mangubhai Bheisabhai (Ghodia) Patel and Kiranbhai Chhotubhai (Ghodia) Patel were inflicting fist and kick blows to his father. Both of them rushed to the place of the incident and saw their father, who had received severe injuries on head and nose and immediately they have taken him to the house of one Chandubhai, where he succumbed to the injuries. Accordingly the complaint at Exh.12 was registered by the complainant on 04.08.2004. After recording the statements of the relevant witnesses, the Police thereafter filed the charge-sheet before the Judicial Magistrate, First Class. Accordingly the complaint at Exh.12 was registered by the complainant on 04.08.2004. After recording the statements of the relevant witnesses, the Police thereafter filed the charge-sheet before the Judicial Magistrate, First Class. Since the offence was exclusively triable by the Sessions Court, the same was committed to the Court of Additional Sessions Judge, Fast Track Court No.4, Navsari for trial Sessions Case No.42 of 2004. (4) Accordingly, charge at Exh.2 was framed for the offence punishable under Sections 143, 147, 148, 149, 34 and 302 of the IPC. The trial Court, after examining the ocular as well as documentary evidence, vide judgment and order dated 11.02.2005, convicted the respondent Nos.1 to 4 (original accused Nos.1 to 4) for the offence under Section 304 Part-II read with Section 34 of the IPC and ordered to suffer rigorous imprisonment for 5 years and fine of Rs.250/- and in default they have to undergo further simple imprisonment of 1 month, whereas respondent Nos.5 - 6 (original accused Nos.5- 6) have been acquitted for the offence for they have charged. (5) The State has filed appeal – Criminal Appeal No.578 of 2005, as narrated hereinabove, against all the accused for the acquittal of the offence under Section 302 of the IPC, whereas, the respondent Nos.1 to 4 (original accused Nos.1 to 4) have assailed their conviction for the offence under Section 304 Part-II of the IPC by filing Criminal Appeal No.465 of 2005. SUBMISSIONS ON BEHALF OF STATE: (6) Learned APP Mr.Ronak Raval, while assailing the judgment of the trial Court, has submitted that the trial Court fell in error in convicting the accused for the offence punishable under Section 304 Part-II of the IPC by taking aid of Section 34 of the IPC, instead of convicting them for the offence punishable under Section 302 of the IPC, for which they were charged. (7) Learned APP Mr.Ronak Raval, at the outset, has referred to the evidence of the complainant - Kikubhai Gamanbhai, who is the eye-witness (PW-1 at Exh.11) and submitted that his evidence indisputably reveals the role of each of the accused, wherein he has deposed that the original accused Nos.1 to 4 have inflicted blows of stick on the vital part of the deceased i.e. on his head, whereas original accused Nos.5 and 6 have given kick and fist blows. It is submitted that this witness, who is the complainant, was present at the scene of offence and has actually witnessed the assault on the deceased by the accused and his overall evidence appears to be of sterling quality. (8) Similarly, learned APP has referred to the evidence of PW-2, Babitaben Kikubhai, who is the wife of the complainant (at Exh.16), and was present at the scene of offence at the time of incident. Learned APP has submitted that the her evidence reconciles with the evidence of the complainant. She has also specifically narrated the role of each of the accused. Learned APP has further submitted that these witnesses have identified the accused in the court. (9) Learned APP has submitted that there is ample evidence on record, which established that the relationship between the deceased and the accused was strained due to some land dispute and all the accused have the common intention to commit murder of the deceased. (10) Learned APP has referred to the evidence of PW-7, Dr.Jiteshbhai Chhaganbhai, who has undertaken the post mortem of the deceased, and issued the post mortem report at Exh.25 and a certificate of cause of death at Exh.26 and has submitted that the injuries corroborate with the ocular evidence of the eye-witnesses. Learned APP has submitted that so far as the accused No.5 and 6, who have allegedly given kick and fist blows to the deceased the injuries which are found on the chest of the deceased i.e. two contusion marks will show that the deceased was assaulted by the accused Nos.5 and 6, by giving kick and fist blows. While referring to the findings of the trial Court, learned APP has submitted that the trial Court on flimsy ground has acquitted the accused Nos.5 and 6 by giving them benefit of doubt by observing that they were not of aggressive nature and it is observed by the trial Court that the evidence does not reveal that the accused Nos.5 and 6 have given kick and fist blows to the deceased. (11) Learned APP has also referred to the findings of the trial Court more particularly, Paragraph No.31 and has submitted that the trial Court has fell in error in recording that in case the accused had intention to murder the deceased, they would have used scythe as a weapon to ensure his death and since none of the accused was armed with scythe, and they were armed with sticks, it is presumed that their offence will fall under Section 304 of the IPC. (12) Learned APP has further submitted that the trial Court has also fell in error in acquitting the accused for the offence punishable under Section 302 of the IPC, by acquitting them under the provisions of Section 149 of the IPC. Since the evidence reveals that all the accused, in consultation with each other, have assaulted the deceased, which ultimately resulted into his death. Thus, it is urged that the appeal filed by the State may be allowed and all the accused may be convicted for the offence punishable under Section 302 of the IPC, by taking aid of Section 149 of the IPC. SUBMISSIONS ON BEHALF OF ACCUSED (13) Learned Senior Advocate Mr.Tejas Barot appearing for the original accused Nos.1 to 4 in Criminal Appeal No.465 of 2005, who have been convicted for the offence punishable under Sections 304 read with Section 34 of the IPC has submitted that the trial Court has erred in convicting and sentencing the accused Nos.1 to 4 for the offence punishable under Section 304 Part–II of the IPC. (14) It is submitted that version of two eye-witnesses, including the complainant (PW-1) and PW–2 is doubtful, since on the day of incident, there was heavy rainfall and in all probabilities there was dark and it would not have been possible to actually witness the incident from far away place, from which they were working in the field. (15) Learned Senior Advocate Mr.Barot has submitted that the trial Court has fell in error in convicting the accused by taking aid of Section 34 of the IPC, since there was no common intention on behalf of the accused for murdering him. (15) Learned Senior Advocate Mr.Barot has submitted that the trial Court has fell in error in convicting the accused by taking aid of Section 34 of the IPC, since there was no common intention on behalf of the accused for murdering him. It is submitted that even if it is assumed that the incident has occurred and accused are involved in the offence, in absence of any evidence, which would satisfy the ingredients of Section 34 of the IPC, in case the individual act of each of the accused is considered, then also the eye-witnesses have not specified the role of each of the accused and on what part they have allegedly beaten or inflicted blows on the deceased. It is thus, submitted that the evidence becomes doubtful and hence, the accused could not have been convicted for the offence punishable under Section 304 Part-II of the IPC also. (16) In support of his submissions, learned Senior Advocate Mr.Barot has placed reliance on the judgment rendered in the case of Mahbub Shah and King – Emperor, Privy Council, 1945 (72) Indian Appeals, 148, and has submitted that the law enunciated by the Privy Council has been followed till today and it is a good law. He has referred to the judgments of the Supreme Court in the case of Pandurang vs. State of Hyderabad, (1954) 2 S.C.C. 826, in the case of Arjun Pawar vs. State of Maharashtra, (2016) 16 S.C.C. 727 , in the case of Indrapal Singh and Ors. vs. State of Uttar Pradesh, (2022) 4 S.C.C. 631 . (17) By placing reliance on the aforesaid judgments, learned Senior Advocate Mr.Barot has submitted that the prosecution has miserably failed to prove the common intention of the accused in murdering the deceased, hence the trial Court has misguided itself in invoking the provisions of Section 34 of the IPC. It is submitted that the evidence is absolutely silent on prior meeting of the mind of the accused and assuming that the incident has occurred, it is occurred in the spur of moment, since the deceased had entered into the field, which was disputed by the accused without harboring any common intention of murder, they can be said to have inflicted blows, which were not serious in nature. At the most it can be said that their intention was to inflict simple injury. At the most it can be said that their intention was to inflict simple injury. It is submitted that this aspect is not considered by the trial Court, while convicting the accused and in case the provisions of Section 34 of the IPC are not satisfied, the evidence of the two eye- witnesses i.e. PW-1 and PW-2 is not sufficient enough for convicting the accused for which they were charged or for the offence for which they were convicted by the trial Court. Learned Senior Advocate Mr.Barot has also submitted that there is a delay in registering the F.I.R. as this offence was took place on 03.08.2004 at 5:00 pm, whereas the complaint was registered on 04.08.2004 and the reason stated for delay in registering the FIR is that there was heavy rain at the time of incident and after due deliberation, it was registered on the next day. It is submitted that the thus, the FIR is registered after ample deliberation and consultation in all probabilities, intention of the complainant was to falsely implicate the accused in the offence. (18) Learned Senior Advocate has further submitted that no independent witness has been examined by the prosecution and two witnesses are interested witnesses, hence their evidence is required to be discarded. He also submitted that so far as the role of the accused Nos.5 and 6 i.e. Mangubhai Bheisabhai (Ghodia) Patel and Kiranbhai Chhotubhai (Ghodia) Patel, respectively are concerned, it is admitted that there is no allegation or evidence indicating that the kick and fist blows inflicted by them on the chest of the deceased, since the eye-witnesses have not stated so. It is submitted that allegations are general and vague and are levelled against the accused Nos.5 and 6 for administrating the kick and fist blows on the deceased, since no specific body part has been named by them. (19) It is submitted by learned Senior Advocate that assuming their version of allegedly given kick and fist blows to the deceased is believed, then also, the same does not reconcile with the injuries found in the post mortem report, which were not present either on the stomach and back. Thus, it is submitted that the ocular evidence does not tally with the medical evidence. Thus, it is submitted that the ocular evidence does not tally with the medical evidence. In support of his submissions, learned Senior Advocate Mr.Barot has referred to the decision of the Supreme Court in the case of Sunil Kundu and Anr. vs. State of Jharkhand, 2013(4) S.C.C. 422 . (20) Learned Senior Advocate Mr.Barot has further contended that the accused were charged for the offence punishable under Sections 302, 149 and 34 of the IPC however, the trial Court has not taken the aid of provisions of Section 149 of the IPC. It is submitted that the State, in Criminal Appeal No.578 of 2005, has contended that the trial Court has misdirected itself by not invoking the provisions of Section 149 of the IPC for convicting the accused. In this regard, it is pointed out that in fact there is no evidence which would suggest that common object on the part of the accused and that could satisfy the provisions of Section 149 of the IPC. Finally, it is urged by the learned Senior Advocate Mr.Barot that in case this Court finds the accused guilty for the offence punishable under Section 304 Part-II of the IPC, as recorded by the trial Court, and since the accused have already undergone more than one year of incarceration, and therefore, their sentence may be reduced to the period undergone looking to the number of years which have passed. Reliance is placed on the decision of the Supreme Court in the case of Lakshmi Chand & Anr. vs. State of Uttar Pradesh, 2018 (9) S.C.C. 704 . ANALYSIS OF EVIDENCE AND FINDINGS OF THE TRIAL COURT (21) We have heard the learned advocates appearing for the respective parties at length. When the appeals are taken up for hearing today, learned APP has tendered the jail remarks of the accused and on perusal of the same it reflect that accused No.1-Babubhai Bheisabhai (Ghodia) Patel has undergone sentence for a period of 11 months and 12 days, accused No.2-Chhotubhai Bheisabhai (Ghodia) Patel has undergone sentence for a period of 11 months and 12 days of sentence. Similarly, accused No.4-Rakesh Chhotubhai (Ghodia) Patel has undergone sentence for a period of 11 months and 12 days and accused No.3-Dharmeshbhai Babubhai (Ghodia) Patel, has undergone sentence for a period of 1 year and 1 month and 3 days, and the accused No.5-Mangubhai Bheisabhai (Ghodia) Patel and the accused No.6-Kiranbhai Chhotubhai (Ghodia) Patel have undergone sentence for more than 5 months. (22) The case of the prosecution as per the charge at Exh.2 is that on 03.08.2004 at 17 hours, at Kaliyari Village, Ghodiavad in the Gauchar land, while the deceased was grazing his cattle, the accused Nos.1 to 4 inflicted various injuries with the stick on the deceased, whereas accused Nos.5 and 6 gave kick and fist blows, as a consequence of these injuries, the deceased succumbed to death. The charge was framed under the provisions of Sections 143, 147, 148, 149 and 34 read with Section 302 of the IPC. As narrated hereinabove, the trial Court has convicted the original accused Nos.1 to 4, for the offence punishable under Section 304 Part–II read with Section 34 of the IPC and sentenced to suffer rigorous imprisonment for 5 years, whereas the trial Court has acquitted the original accused Nos.5 and 6. The State in Criminal Appeal No.578 of 2005 has assailed the order passed by the trial Court in entirety, whereas accused Nos.1 and 4 have assailed their conviction and sentenced passed by the trial Court, by invoking provisions of Section 304 Part–II read with Section 34 of the IPC, by filing Criminal Appeal No.465 of 2005. (23) Before we proceed to delve into the evidence of two eye- witnesses PW–1, Kikubhai Gamanbhai, who is the complainant and PW-2, Babitaben Kikubhai, who is wife of the complainant, we would prefer examine the injuries found on the deceased on the basis of the medical evidence. PW–7 Dr.Jiteshbhai Chhaganbhai, (Exh.23), has undertaken the post mortem report of the deceased, which is produced at Exh.25 and issued death certificate at Exh.26. The cause of death assigned in the post mortem report is “due to hemorrhage shock followed by intracranial hemorrhage followed by injury to head”. PW–7 doctor has specifically stated and narrated the injuries, as mentioned in the column No.17 of the post mortem report, the same are as under.: “A conclusion on left side of fore head 4 cm from inner contusion of left eye of 5 x 6 cms size. PW–7 doctor has specifically stated and narrated the injuries, as mentioned in the column No.17 of the post mortem report, the same are as under.: “A conclusion on left side of fore head 4 cm from inner contusion of left eye of 5 x 6 cms size. A conclusion on left temporal region of 4 x 6 cms size and contusion on right temporal region 3 x 7 cms. Size. Two contusion mark vertex region 5 x 8 size 3 x 7 cms. Size. Red color hemorrhage present for head both temporal region & vertex region. Two contusion mark on chest No. (1) on Rt. Side 2 x1 cms, irregular shape No.(2) on left side 1.5 X 2 cms. Irregular shape on red color” (24) In his evidence, he has referred to the injuries, as mentioned in the post mortem report. The injuries mentioned reveal that all the injuries, which are fatal in nature, are inflicted on the head of the deceased and if closely read, there are five injuries found on the head of the deceased, whereas two contusions marks are found on the chest which of irregular shape and red in color. In column No.19 of the post mortem report, it is specified that “Hemorrhage over and within brain tissue. A contusion over (6x4 cms size) upper occidental lab” these are corresponding injuries to the brain. In his cross- examination, it is elicited that if the injuries are inflicted by the sticks, then by such infliction of blows, the injuries mentioned in the post mortem report are possible. It is further elicited that if any person gives kick and fist blows, then the injuries which are mentioned on the chest are possible. (25) It is also opined by the doctor that the injuries which are inflicted on the head of the deceased are sufficient in the ordinary course to cause death. Finally, it is elicited by him that if blows are given for 10-15 minutes by four persons on the head with full force, then injuries which are reflected in the post mortem would be numerous. He has referred that during post mortem he did not notice contusion marks of stick, which would have occurred due to force full infliction of blows with stick. He has referred that during post mortem he did not notice contusion marks of stick, which would have occurred due to force full infliction of blows with stick. (26) At this stage, we may refer to the evidence of the eye- witness, the complainant, PW–1, Kikubhai Gamanbhai, who has been examined at Exh.11. In his examination–in-chief as per his complaint on 04.08.2004, there appears to be some dispute for 16 vighas of land with his neighbors – cousin brothers i.e. accused and the case was pending before the Mamlatdar, Chikhali. He has referred to the incident occurred on 03.08.2004, in which he has stated that his father had gone for grazing the cattle in the gauchar land and at around 5:00 pm, he heard cries of his father and accordingly, he and his wife went to the scene of offence, where he saw the accused-Babubhai Bheisabhai (Ghodia) Patel, Chhotubhai Bheisabhai (Ghodia) Patel, Dharmeshbhai Babubhai (Ghodia) Patel, Rakesh Chhotubhai (Ghodia) Patel, were inflicting stick blows on his father, whereas accused - Mangubhai Bheisabhai (Ghodia) Patel and Kiranbhai Chhotubhai (Ghodia) Patel were inflicting fist and kick blows on him. He has specifically stated that on hearing the cries of his father, he and his wife rushed to the scene of offence and when they went all the accused fled away. (27) During the trial proceedings, before the trial Court, he has specifically indicated that the accused had inflicted blows on the head of his father. The motive alleged by the complainant for the incident is the land dispute between them. In the examination-in-chief this witness has been extensively examined with regard to the distance, where he was present and his father was assaulted. He has withstood the intense cross -examination and has categorically asserted that when he heard cries of his father, he immediately rushed to his father and saw the accused inflicting the blows and when he arrived at the place, all the accused fled away. He has denied the suggestion that from his gauchar till his field the distance is 1500 to 2000 feet away. He has also stated that when the incident had occurred, it was very slowly raining and on the second day also the rain remained continued. In the examination-in–chief he has deposed that his father was grazing the land adjoining to his gauchar land. He has also stated that when the incident had occurred, it was very slowly raining and on the second day also the rain remained continued. In the examination-in–chief he has deposed that his father was grazing the land adjoining to his gauchar land. In the suggestion put by the defence, he has admitted that the accused ran away when he went there and he saw the accused assaulting his father and on a suggestion put to him about the duration of the incident, he has specifically stated that the assault went on till he reached the scene of offence and it took him two minutes to reach there and when he went there he saw his father lying down. He saw him profusely bleeding from head and nose. (28) So far as the delay in registration of the FIR, in his cross- examination, it is elicited that he went to register the FIR on the next day to Chikhali Police Station, after consultation with the Sarpanch of the Village. He has specifically denied the suggestion that he has not deliberated for giving name of the accused. A close scrutiny of the evidence of this witness, brands him of “sterling quality”. There are no major contradictions or omissions or over implications found in the evidence. His evidence reveals that he actually witnessed the incident of assault on the deceased and he was present at the nearby field. We do not find any reason to disbelieve the evidence of this witness. Similarly, PW-2, who is the wife of the complainant – Babitaben, who has been examined at Exh.16, has narrated the incident, in the line of her husband– complainant. In her examination-in-chief, she has referred to the land dispute and the case with respect to such dispute was pending before the Mamalatdar. She has also referred to the role of each of the accused, as narrated by the complainant. She has stated that when they rushed to the scene of offence, all the accused had ran away. She has stated that his father–in–law, the deceased, was 15 feet away from the disputed land. She has denied the distance. as suggested by the defence from her presence as well as from the place of incident. (29) We also do not find any major infirmity in the evidence of this witness – PW-2 also. She has stated that his father–in–law, the deceased, was 15 feet away from the disputed land. She has denied the distance. as suggested by the defence from her presence as well as from the place of incident. (29) We also do not find any major infirmity in the evidence of this witness – PW-2 also. She has also stood the assault of the defence and has stuck to her version, which has been narrated in the examination-in–chief. Reading of the evidence of both the witnesses, who are eye-witnesses, i.e. PW-1 and PW-2 in juxtaposition of the medical evidence, it is established that the accused have inflicted blows of sticks on the deceased. There are five injuries found on the head and two injuries on the chest which, as per the opinion of the doctor, are possible due to kick and fist blows. Thus, the medical evidence corroborates with the ocular evidence and it can be firmly opined that the accused Nos.1 to 4 have inflicted the sticks blows on the vital part of the deceased on the head, whereas the accused Nos.5 and 6 inflicted kick and fist blows on the stomach of the deceased. (30) The trial Court has convicted the accused Nos.1 to 4 under the provisions of Section 304 Part–II of the IPC. The over all appreciation of the evidence signify that there was no premeditation of the accused for committing the murder of the deceased. The incident has occurred, when it appears that the deceased had gone with his cattle and was grazing them in the disputed land and on seeing it, all the accused went there and assaulted him with sticks and kick and fist blows. From the nature of the injuries on the head of the deceased, it can be safely presumed that they were not inflicted with such force or intensity which could have resulted in crushing the bones of the skull of the deceased. The intensity of such assault would reveal that there was no intention on the part of the accused to commit murder. However, simultaneously, it cannot be denied that they had the knowledge that if the injuries with sticks are inflicted on the vital part of the head of the person the same can result into his death. The intensity of such assault would reveal that there was no intention on the part of the accused to commit murder. However, simultaneously, it cannot be denied that they had the knowledge that if the injuries with sticks are inflicted on the vital part of the head of the person the same can result into his death. (31) We would like to refer to the decision of the Supreme Court in the case of Anbazhagan vs. The State represented by the Inspector of Police, AIR 2023 S.C. 3660 , wherein the Supreme Court, after considering the provisions of Sections 299 and 300 of the IPC has held thus: “39. Clause (b) of Section 299 of the IPC does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 of the IPC can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result; of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300 of the IPC, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299 of the IPC, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 of the IPC and clause (3) of Section 300 of the IPC is one of the degree of probability of death resulting from the intended bodily injury. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 of the IPC and clause (3) of Section 300 of the IPC is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 of the IPC conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury.....sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:- (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. (6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” (32) Provisions of Section 299 of the IPC is as under: “Sec. 299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. (33) In the present case, the offence of murder is not established, but the case would fall within the provisions of 3rd part of Section 299 of the IPC and it would attract Section 304 Part-II of the IPC. As per the decision of the Apex Court, if the act of the accused falls within Clause–I of “culpable homicide” as defined under Section 299 of the IPC, it would be punishable under Section 304 Part–I of the IPC and in case if fells within 3rd clause, it is punishable under Part-II of Section 304 of the IPC. Therefore, Part-I of Section 304 of the IPC would apply when there is “guilty intention”, whereas the Part-II of Section 304 of the IPC is applied when there is no such intention. The facts of the present case would definitely indicate that there was guilty knowledge on the part of the accused Nos.1 to 4, who had inflicted the blows of sticks on the head of the deceased. (34) It is contended by the accused that trial Court should not have been invoked the provisions of Section 34 of the IPC, while convicting the accused, whereas the learned APP has placed reliance on the judgment of the Supreme Court in the case of Ram Naresh vs. State of U.P., 2023 (0) AIJEL-SC 72788 in this regard. (35) In support of his submissions, the learned advocate for the accused has placed reliance on the aforementioned judgment. There cannot be an cavil on the proposition of law on which the accused placed reliance. However, the facts of the present case suggest that the accused Nos.1 to 4 have inflicted blows of sticks on the head of the deceased, whereas accused Nos.5 and 6 have inflicted the kick and fist blows on the deceased. The medical evidence reveals that the injuries, which are found on the head of the deceased, are 5 in number, which are sufficient in ordinary course to cause death. The medical evidence reveals that the injuries, which are found on the head of the deceased, are 5 in number, which are sufficient in ordinary course to cause death. The medical evidence also reveals that intensity of the injuries were not severe since there were no deep fractures in the skull, and it was not crushed in any manner. However, vital aspect of the matter, is whether accused Nos.1 to 4 can be convicted by taking aid of Section 34 of the IPC or not. (36) We may refer to the decision of the Supreme Court in the case of Ram Naresh (supra), wherein it is held by the Supreme Court, after considering the judgment of Krishnamurthy alias Gunodu and Ors. vs. State of Karnataka, (2022) 7 S.C.C. 521 , it is held thus: “12. Assistance has been taken of paragraph 26 of the decision of this Court in Krishnamurthy alias Gunodu and Ors. vs. State of Karnataka (Supra) which is reproduced herein below. "26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the coassailants/ perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants." 13. A plain reading of the above paragraph reveals that for applying Section 34 IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence.” (37) The Supreme court has held that for the application of Section 34 of the IPC, the common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or to hatch conspiracy for committing the offence, since the common intention is a psychologically fact and it can be formed a minute before the actual happening of the incident or even during the occurrence of the incident. (38) We may also refer to the decision of the Supreme Court in the case of Krishnamurthy alias Gunodu and Ors. (supra) wherein, after referring the various judgments and after analyzing the provisions of Sections 34, 302 and 304 of the IPC, it has been held thus: “13. In Suresh and Another v. State of Uttar Pradesh, 2 R.P. Sethi, J. in his concurring judgment (for himself and B.N. Agarwal, J.) on the question of common intention has observed: “38. Section 34 of the Penal Code, 1860 recognises the principle of vicarious liability in criminal jurisprudence. In Suresh and Another v. State of Uttar Pradesh, 2 R.P. Sethi, J. in his concurring judgment (for himself and B.N. Agarwal, J.) on the question of common intention has observed: “38. Section 34 of the Penal Code, 1860 recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. 39. The dominant feature for attracting Section 34 of the Penal Code, 1860 (hereinafter referred to as “the Code”) is the element of participation in absence resulting in the ultimate “criminal act”. The “act” referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in SatrughanPatar v. Emperor held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.” 14. Appropriate at this stage would be reference to an earlier decision of this Court in Afrahim Sheikh and Others v. State of West Bengal, which referred to with approval the following quote on the expression “act” explained by Judicial Commissioner in Barendra Kumar Ghosh v. The King-Emperor “ criminal act means that unity of criminal behaviour, which results in something, for which an individual would be punishable, if it were all done by himself alone i.e. a criminal offence” This “criminal act” under Section 34 IPC, it was held, applies where a criminal act is done by several persons in furtherance of common intention of all. The criminal offence is the final result or outcome but it may be through achievement of individual or several criminal acts. Each individual act may not constitute or result in the final offence. When a person is assaulted by a number of accused, the “ultimate criminal act” normally will constitute the offence which finally results or which may result in death, simple hurt, grievous hurt, etc. Each individual act may not constitute or result in the final offence. When a person is assaulted by a number of accused, the “ultimate criminal act” normally will constitute the offence which finally results or which may result in death, simple hurt, grievous hurt, etc. This is the final result, outcome or consequence of the criminal act, that is, action or act of several persons. Each person will be responsible for his own act as stipulated in Section 38 IPC. However, Sections 34 and 35 expand the scope and stipulate that if the criminal act is a result of common intention, every person, who has committed a part of the criminal act with the common intention, will be responsible for the offence. 15. It was accordingly held in Afrahim Sheikh and Ors. (supra) as under: “9. ...Provided there is common intention, the whole of the result perpetrated by several offenders, is attributable to each offender, notwithstanding that individually they may have done separate acts, diverse or similar. Applying this test to the present case, if all the appellants shared the common intention of severely beating Abdul Sheikh and some held him down and others beat him with their weapons, provided the common intention is accepted, they would all of them be responsible for the whole of the criminal act, that is to say, the criminal offence of culpable homicide not amounting to murder which was committed, irrespective of the part played by them. The common intention which is required by the section is not the intention which s. 299 mentions in its first part. That intention is individual to the offender unless it is shared with others by a prior concert in which case Sections 34 or 35 again come into play. Here, the common intention was to beat Abdul Sheikh, and that common intention was, as we have held above, shared by all of them. That they did diverse acts would ordinarily make their responsibility individual for their own acts, but because of the common intention, they would be responsible for the total effect that they produced if any of the three conditions in s. 299, I.P.C. applied to their case. If it were a case of the first two conditions, the matter is simple. They speak of intention and s. 34 also speaks of intention. 10. If it were a case of the first two conditions, the matter is simple. They speak of intention and s. 34 also speaks of intention. 10. The question is whether the second part of s. 304 can be made applicable. The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. Can it be said that when three or four persons start beating a man with heavy lathis, each hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was the likely result of the beating, the requirements of s. 304, Part II are not satisfied in the case of each of them? If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why s. 304, Part II cannot be read with s. 34. The common intention is with regard to the criminal act, i.e., the act of beating. If the result of the beating is the death of the victim, and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, i.e., beating, there is no reason why s. 34 or s. 35 should not be read with the second part of s. 304 to make each liable individually. 16. Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre- arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. 17. By Section 33 of IPC, a criminal act in Section 34 IPC includes omission to act. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. 17. By Section 33 of IPC, a criminal act in Section 34 IPC includes omission to act. Thus, a co-perpetrator who has done nothing but has stood outside the door, while the offence was committed, may be liable for the offence since in crimes as in other things “they also serve who only stand and wait”. Thus, common intention or crime sharing may be by an overt or covert act, by active presence or at distant location but there should be a measure of jointness in the commission of the act. Even a person not doing a particular act but only standing as a guard to prevent any prospective aid to the victim may be guilty of common intention. 18. Normally, however, in a case of offence involving physical violence, physical presence at the place of actual commission is considered to be safe for conviction but it may not be mandatory when pre-arranged plan is proved and established beyond doubt. Facilitation in execution of the common design may be possible from a distance and can tantamount to actual participation in the criminal act. The essence and proof that there was simultaneous consensus of mind of co- participants in the criminal action is however, mandatory and essential. 6 In Krishnan and Another v. State of Kerala, 7 it has been observed that an overt act is not a requirement of law for Section 34 IPC to operate but prosecution must establish that the persons concerned shared the common intention, which can be also gathered from the proved facts. 19. In Suresh’s case (supra), this Court also examined whether a passive co-perpetrator can be liable under Section 34 IPC. This case quotes with approval the following passage from the judgment of Richardson, J. in King Emperor v. Barendra Kumar Ghose: “It appears to me that Section 34 regards the act done as the united act of the immediate perpetrator and his confederates present at the time and that the language used is susceptible of that meaning. The language follows a common mode of speech. In R. v. Salmon three men had been negligently firing at a mark. The language follows a common mode of speech. In R. v. Salmon three men had been negligently firing at a mark. One of them — it was not known which — had unfortunately killed a boy in the rear of the mark. They were all held guilty of manslaughter. Lord Coleridge, C.J., said: ‘The death resulted from the action of the three and they are all liable.’ Stephen, J., said: ‘Firing a rifle’ under such circumstances ‘is a highly dangerous act, and all are responsible; for they unite to fire at the spot in question and they all omit to take any precautions whatever to prevent danger’. Moreover, Sections 34, 35 and 37 must be read together, and the use in Section 35 of the phrase ‘each of such persons who joins in the act’ and in Section 37 of the phrase, ‘doing any one of those acts, either singly or jointly with any other person’ indicates the true meaning of Section 34. So Section 38 speaks of ‘several persons engaged or concerned in a criminal act’. The different modes of expression may be puzzling but the sections must, I think, be construed as enunciating a consistent principle of liability. Otherwise the result would be chaotic. To put it differently, an act is done by several persons when all are principals in the doing of it, and it is immaterial whether they are principals in the first degree or principals in the second degree, no distinction between the two categories being recognised. This view of Section 34 gives it an intelligible content in conformity with general notions. The opposing view involves a distinction dependent on identity or similarity of act which, if admissible at all, is wholly foreign to the law, both civil and criminal, and leads nowhere. 20. At this stage, we would like to refer to an old judgment of a Division Bench of the Allahabad High Court in the case of Bashir v. State, which by giving examples explains the scope and significance of the words “in furtherance” used in Section 34 of the IPC in the following manner: “18. The use of the words “in furtherance” suggests that Section 34 is applicable also where the act actually done is not exactly the act jointly intended by the conspirators to be done, otherwise, the words would not be needed at all. The use of the words “in furtherance” suggests that Section 34 is applicable also where the act actually done is not exactly the act jointly intended by the conspirators to be done, otherwise, the words would not be needed at all. The common intention can be to do one act and another act can be done in furtherance of the common intention. It may be a preliminary act necessary to be done before achieving the common intention; or it may become necessary to do it after achieving the common intention or it may be done while achieving the common intention. Going to the spot in a motor car is an act in furtherance of the common intention to commit a crime there; but if while going there the driver runs over and kills a pedestrian, the collision is merely incidental and the running aver of the pedestrian is not in furtherance of the common intention. If, however, a conspirator who wishes to commit a crime involving violence against X is impeded by Y and throws Y aside in order to get at X, the attack upon Y is made in furtherance of the common intention; see Russell on Crime, pages 557 and 558. 21. The aforesaid quotation emphasizes that it is essential that each co-perpetrator should have necessary intent to participate or otherwise have requisite awareness or knowledge that the offence is likely to be committed in view of the common design. It also follows that in some cases merely accompanying the principal accused may not establish common intention. A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable. This test obviously is fact and circumstance specific and no straitjacket universal formula can be applied. Two examples quoted in Bashir's case (supra) are relevant and explain the widest and broad boundaries of Section 34 IPC and at the same time warn that the ambit should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged. Two examples quoted in Bashir's case (supra) are relevant and explain the widest and broad boundaries of Section 34 IPC and at the same time warn that the ambit should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged. The examples also bring out the distinction between the criminal acts and the intent of a co- perpetrator; and the actual offence committed by the principal or main perpetrator. 26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or pre-arranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants. 27. Further, the expression/term “criminal act” in Section 34 IPC refers to the physical act, which has been done by the co- perpetrators/participants as distinct from the effect, result or consequence. In other words, expression “criminal act” referred to in Section 34 IPC is different from “offence”. For example, if A and B strike Lathi at X, the criminal act is of striking lathis, whereas the offence committed may be of murder, culpable homicide or simple or grievous injuries. 28. The expression “common intention” should also not be confused with “intention” or “mens rea” as an essential ingredient of several offences under the IPC. Intention may be an ingredient of an offence and this is a personal matter. For some offences, mental intention is not a requirement but knowledge is sufficient and constitutes necessary mens rea. Section 34 IPC can be invoked for the said offence also [refer Afrahim Sheikh and Ors. (supra)]. Common intention is common design or common intent, which is akin to motive or object. It is the reason or purpose behind doing of all acts by the individual participant forming the criminal act. In some cases, intention, which is ingredient of the offence, may be identical with the common intention of the co-perpetrators, but this is not mandatory. 29. Section 34 IPC also uses the expression “act in furtherance of common intention”. Therefore, in each case when Section 34 is invoked, it is necessary to examine whether the criminal offence charged was done in furtherance of the common intention of the participator. If the criminal offence is distinctly remote and unconnected with the common intention, Section 34 would not be applicable. However, if the criminal offence done or performed was attributable or was primarily connected or was a known or reasonably possible outcome of the preconcert/contemporaneous engagement or a manifestation of the mutual consent for carrying out common purpose, it will fall within the scope and ambit of the act done in furtherance of common intention. However, if the criminal offence done or performed was attributable or was primarily connected or was a known or reasonably possible outcome of the preconcert/contemporaneous engagement or a manifestation of the mutual consent for carrying out common purpose, it will fall within the scope and ambit of the act done in furtherance of common intention. Thus, the word “furtherance” propounds a wide scope but should not be expanded beyond the intent and purpose of the statute. Russell on Crime, (10th edition page 557), while examining the word “furtherance” had stated that it refers to “the action of helping forward” and “it indicates some kind of aid or assistance producing an effect in the future” and that “any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony.” An act which is extraneous to the common intention or is done in opposition to it and is not required to be done at all for carrying out the common intention, cannot be said to be in furtherance of common intention [refer judgment of R.P. Sethi J. in Suresh (supra).]” (39) In the case of Afrahim Sheikh vs. State of W.B., AIR 1964 SC 1263 , which has been considered by the Supreme Court in the case of Krishnamurthy (supra), it has been categorically after considering the provisions of Section 304 of the IPC, and in identical situation to that of the present case, it is held that question whether Section 304 Part-II of the IPC can be made applicable as it does not refer to intention, which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. It is held that while discussing the facts of that case, wherein the accused persons, who are 3 to 4 in number, had started beating a man with heavy lathis, each hitting his blow with the common intention of severely beating him and each possessing the knowledge that death would likely result of the beating, the requirements of Part-II of Section 304 of the IPC are satisfied. Since each one have the knowledge that such an assault would result into the death, then each of the such person can be convicted under the provisions of Section 304 Part-II of the IPC read with Section 34 of the IPC. Since each one have the knowledge that such an assault would result into the death, then each of the such person can be convicted under the provisions of Section 304 Part-II of the IPC read with Section 34 of the IPC. It is specifically held that the common intention is with regard to the criminal act i.e. act of beating and if the result of the beating is the death of the victim, and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act i.e. beating, there is no reason that the Sections 34 or 35 of the IPC should not be read with Part-II Section 304 of the IPC to make each liable individually. It is also held that their ultimate act should be done in furtherance of common intention. (40) It is further held by the Supreme Court in the judgment as referred in the case of Krishanmurty (supra) and in the case of Surendra Chauhan vs. State of M.P., 2000 (4) S.C.C. 110 for the purpose of “common intention” even the participation in the commission of offence need not be proved in all cases, and such common intention can develop even during the course of an occurrence. For Section 34 of the IPC to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. It is also observed that Section 34 of the IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 of the IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury / offence. It is held that a person is liable for his own acts. Section 34 of the IPC or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants. It is held that a person is liable for his own acts. Section 34 of the IPC or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants. The facts of the case, as narrated in the case of Krishnamurthy alias Gunodu (supra) of the Supreme Court, suggest that the Supreme Court has segregated the offences from the accused, who are held guilty for the offence under Section 299 read with Section 34 of the IPC and for other accused offence under Section 323 read with Section 34 of the IPC. All the accused in that case assaulted the deceased, however, the accused who had assaulted the deceased, and his acts were responsible for the death, his conviction under section 302 of the IPC is upheld, whereas other accused who had not inflicted serious injuries and had committed simple injuries i.e. holding hands and pulling the legs to make the deceased fall down are convicted for the offence under section 323 read with section 34 of IPC. (41) In the present case also, the act of accused Nos.1 to 4 can be segregated to the accused Nos.5 and 6 as the accused Nos.5 and 6 did not have knowledge that their act of inflicting kick and fist blows on the deceased would result into his death. So far as the accused Nos.5 and 6 are concerned, they would not have accepted that due to their act of giving kick and fist blows, the deceased would have died and they were aware of the final outcome of death of the deceased due to such act. With regard to the contentions raised by the accused for discarding the evidence of eye-witnesses since they are interested witness, we do not subscribe to the same. It is no more res integra that the evidence of an interested witness cannot be simply discarded, but the same has to be examined with care and caution, and if the evidence appears to be of sterling quality bereft of any embellishments, it can be used for convicting the accused. (42) We may refer to the findings of the trial Court so far as the accused Nos.5 and 6 are concerned. While acquitting the accused Nos.5 and 6, it is recorded by the trial Court that there is no evidence which indicates that they have inflicted kick and fist blows on the deceased. (42) We may refer to the findings of the trial Court so far as the accused Nos.5 and 6 are concerned. While acquitting the accused Nos.5 and 6, it is recorded by the trial Court that there is no evidence which indicates that they have inflicted kick and fist blows on the deceased. It is recorded that they would not be aware that the other accused could have acted in such a manner. It is presumed by the trial Court that accused Nos.1 to 4 may be of aggressive nature, whereas accused Nos.5 and 6 are quiet and such accused having docile nature would not have the intention of committing the same offence to that of aggressive accused. Such observations recorded by the trial Court on presumption, appears to be inappropriate and the trial Court has fell in error in acquitting the accused Nos.5 and 6 by giving them benefit of doubt. As recorded hereinabove, the evidence of the eye-witnesses i.e. PW-1 and PW-2 are specific that they have witnessed that the accused nos.5 and 6 inflicted kick and fist blows on the deceased. In such scuffle, wherein six accused are assaulting, it is impossible for the eye-witness to remember the exact part of the body on which the accused have inflicted the blows. The medical evidence also corroborates with the version of the ocular evidence of two witnesses, since the injuries of kick and fist blows are found on the chest of the deceased. Hence, the acquittal recorded by the trial Court acquitting the original accused Nos.5 and 6 by giving them benefit of doubt does not merit acceptance. (43) We have also noticed that other accused Nos.1 to 4 are concerned, the trial Court has recorded that in case the accused had all intention to kill the deceased, they would have inflicted blows of scythe on the deceased and since they have have chosen not to do so, it can be presumed that they have no intention of murdering the deceased. We do not agree with such proposition of law as propounded by the trial Court, however, we endorse the findings of the trial Court, so far as the conviction of the accused Nos.1 to 4 under the provisions of Section 304 Part-II read with Section 34 of the IPC is concerned. We do not agree with such proposition of law as propounded by the trial Court, however, we endorse the findings of the trial Court, so far as the conviction of the accused Nos.1 to 4 under the provisions of Section 304 Part-II read with Section 34 of the IPC is concerned. On the substratum of the analysis of the evidence as a whole, we agree with the findings of the trial court so far as the conviction of accused Nos.1 to 4 for the offence punishable under Section 304 Part–II read with Section 34 of the IPC. However, looking to the number of years which have passed by now, from the date of occurrence, and the manner in which the incident has occurred, we intend to modify the sentence. CONCLUSION: (44) Accordingly, Criminal Appeal No.465 of 2005 filed by the original accused Nos.1 to 4 is dismissed and Criminal Appeal No.578 of 2005 filed by the State is PARTLY allowed. The acquittal recorded by the trial Court, so far as the original accused Nos.5 and 6 is concerned, the same is quashed and set aside and they are convicted for the offence punishable under Section 323 read with Section 34 of the IPC. The jail remarks show that the they have undergone for 5 months of sentence. Since, the sentence for the offence punishable under Section 323 is for one year and the original accused Nos.5 and 6 have undergone for more than 5 months of the incarceration, we reduce the sentence to that of period of sentence undergone. Since, the incident has occurred 20 years back, and looking to the overall facts, the sentence awarded by the trial court of 5 years is reduced to that of 3 years so far as the original accused Nos.1 to 4 are concerned. The original accused Nos.1 to 4 shall undergo the remaining sentence and surrender before the concerned trial Court within a period of 12 (twelve) weeks from the date of receipt of the judgment and order, failing which the trial court shall initiate appropriate proceedings for arresting the accused. Their bail bonds shall stand cancelled. R & P shall be returned to the trial court.