1. These appellants have been charged before the Additional Sessions Judge, Mehsana for the offences under S.302 and 324 read with S.34 IPC. The learned Additional Sessions Judge acquitted all the accused. Aggrieved by the same, the State preferred the appeal and the Division Bench of the High Court of Gujarat reversed the finding of the Sessions Judge and found all the three accused guilty of offence punishable under S.302 read with S.34 IPC and they were sentenced to undergo imprisonment for life and also a fine of Rs 1000 was imposed and in default, to undergo rigorous imprisonment for a period of one month. They were also found guilty of offence punishable under S.324 read with S.34. The three accused preferred the present appeal challenging their conviction and sentence. After the filing of the appeal, the second appellant Sardarji Shankerji Thakor passed away and his appeal is thus abated.

2. We have heard the counsel for the appellants and also counsel for the State.

3. The incident occurred on 1-7-1983 at about 1.30 p.m. in Village Kharivavadi in Patan taluka in Mehsana district. The deceased Ranaji Navalsinh and Lakshmanji Jethaji were proceeding through the village street in a tractor to the house of the deceased for lunch and when they reached in front of the house of Accused 2 Sardarji Shankerji Thakor, all the three accused who were in their house on seeing the deceased Ranaji and Lakshmanji they started abusing. According to the prosecution, the son of Manaji was killed by some assailants previously and the complainants were suspected to have some involvement in that matter. It is alleged that the appellants had assaulted Ranaji. According to the prosecution, Accused 1 started hurling abusive words and the second accused Shankerji Thakor gave a blow with dharia on the head of Ranaji. Thereafter Accused 1 Manaji also gave a blow on the right side of head of Ranaji. Accused 3 had given a blow on the left hand wrist of Ranaji and he also gave a blow on the back with dharia. Thereafter injured Ranaji became unconscious and fell on the ground. Some others intervened and therefore, the appellants had fled from that place. Ranaji was taken to the Government Hospital at Patan and he died.

4. The Sessions Judge acquitted the accused on the ground that the witnesses cannot be relied on as they were interested witnesses. The Sessions Judge took note of the fact that the incident could not have happened as alleged by the prosecution as there was medical evidence to the effect that there was undigested food material in the stomach of the deceased Ranaji and that the witnesses deposed that the incident had happened at a time when they were going to lunch. In view of the preconceived fact, the Sessions Judge declined to accept the prosecution case. The High Court did not accept this plea and rightly reversed the finding of the Sessions Judge.

5. From the prosecution evidence it is clear that the incident happened all of a sudden and the appellants attacked Ranaji and Lakshmanji when they had seen them going through the street. There is no prosecution case that they were waiting for the injured Ranaji and Lakshmanji to attack them. Possibly the appellants must have used the weapons that were available in the house. In the circumstances, it is difficult to hold that there was common intention on the part of the present appellant for causing the death of Ranaji. There is clear evidence to the effect that Ranaji sustained fatal injuries at the hands of the second accused. The first accused Manaji Kaluji Thakor had given a blow on the head of the deceased Ranaji and the doctor deposed that it was only a simple injury. The third accused Shankerji Thakor gave a blow and the deceased sustained injury on the right side of his head. This injury also was simple in nature. In the absence of common intention, we hold that these appellants were not responsible for the offence of murder under S.302 read with S.34. They were liable for the acts committed by them. They were found guilty under S.324 read with S.34.

6. In the result, we allow the appeal filed by these accused appellants and set aside their conviction under S.302 read with S.34 IPC. However, their conviction under S.324 read with S.34 to undergo rigorous imprisonment for a period of one year and in default to undergo rigorous imprisonment for a period of one month shall remain. The appellants are on bail and they are directed to surrender their bail bonds and they are entitled to set off for the period already undergone by them.