Ranawat, J.—This appeal has been filed on behalf of the accused Sakhat Singh, Harnath Singh, Prahlad Singh and Umrao Singh against the judgment of the Sessions Judge, Alwar, dated the 20th March, 1950 by which all the four accused appellants were convicted of an offence under sec. 325 read with sec. 34 I.P.C. and sentenced to seven years rigorous imprisonment each.

2. It was alleged on behalf of the prosecution that on the 29th of September, 1949 at about 10 P.M. while both the parties were drinking wine on the eve of Dasehra in village Chenpura a quarrel arose between Imrat Singh and Gobind Singh. Imrat Singhs mare ran away and he cried that he was helpless and if the mare trespassed into the fields belonging to any one he might take care of it. Gobind Singh who was also present there took objection to this and told Imrat Singh that he had intentionally let loose the mare and was then raising a false cry. Both of them exchanged abuses and then began fighting with each other. In the mean time having heard the shout of Gobind Singh 10 persons Sakhat Singh, Harnath Singh, Umrao Singh and others came on the spot armed with lathis, pharsis, jelis etc., and they began beating Imrat Singh and his party. Kishan Singh also came there and he tried to stop the fight but the accused persons and their companions took no notice of his request and began to belabour him with lathis. He received two injuries, one on his head and the other on his wrist. As a result of the head injury, he died on the spot. First information report was lodged at the Police Station, Naraina. The next morning at about 10 A.M. by one Ramchandra Singh. The police after completing investigation challaned 11 persons, all of whom were committed to the court of Sessions by the Magistrate.

3. The accused have pleaded that they know nothing of this occurrence and in defence they have produced certain witnesses to prove alibi.

4. The trial court has put reliance on the statements of two witnesses Sardar Singh and Gahar Singh, who are said to be independent witnesses. The other four witnesses who were also injured in this incident have not been believed in entirety on the ground that they were interested persons. In view of the injury that was received by Kishan Singh and in view of the fact that there was no evidence as regards the accused who inflicted the fatal injury, the trial court came to the conclusion that all the four accused appellants should be convicted of an offence under sec. 325 read with sec. 34 I.P.C.

5. The learned counsel of the accused appellants has contended that there was no material on the record of this case to justify a finding of the trial court against the accused that there was common intention, in pursuance of which the accused gave a beating to Imrat Singh or Kishan Singh or to his other companions. He has in support of his plea in this behalf cited Mahbub Shah vs. Emperor (A.I.R. 1945 P.C. 118) and Mukhsur Kahman and another vs. The King (A.I.R. 1950 Assam 98).

6. It may be observed that even though Ramchandra Singh and Imrat Singh give a different version as regards the occurrence the other witnesses have all stated that the party of the accused came out instantaneously when they heard the shout of Gobind Singh. Taking this to be correct, there was hardly any opportunity for the accused persons to confer among themselves and to plan an attack against the party of Imrat Singh. What appears to have happened is that as soon as the accused persons heard the shout they ran to the spot and took with them such weapons as they could lay their hands on at that time. The accused persons may have been inspired by similar motives to help the person who was shouting for help but this cannot be taken to mean that they were inspired by a common intention. Common intention always presupposes some plan or some design to commit an act, which has not been proved in the present case. The statements of Ramchandra Singh and Imrat Singh are to the effect that some boy

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