8. Charges were framed against the five accused under Sections 147, 341 and 302 IPC.   The charge under Section 341   IPC   was   held   not   to   have   been   proved   against   the accused.  The Sessions Judge acquitted accused nos. 3 and 5 based on the evidence of P.W.1 and P.W.5 giving them the benefit   of   doubt   with   regard   to   their   presence   and participation.  Since the number of accused persons now fell below five, conviction of the appellants followed under Section 302/34 IPC.  The acquittal of the two co­accused in the facts of the case, despite the deposition of the eye witnesses, can be of no avail to the appellants in view of the consistent nature   of   the   evidence   available   against   them.     Minor inconsistencies and contradictions in the evidence of the eye witnesses are considered inconsequential.  Their evidence on all material aspects are consistent lending credibility to their eye witness account. We find no infirmity in the conviction of the appellants with the aid of Section 34.  In Karnail Singh vs. State of Punjab, 1954 SCR 904, it was held as follows:­

“8. …But if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34, then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section   149   must   be   held   to   be   a   formal matter…..”

12. We therefore find no reason to doubt the presence and assault on the two deceased by appellant nos.2 & 3 to grant them acquittal on any benefit of doubt or parity with the acquitted   accused, merely because no appeal has been preferred.

13. That leaves for our consideration the submission of Shri Agrawal that appellant no.1 is entitled to acquittal as he cannot be said to have shared any common intention with appellants nos.2 and 3 and who are liable for their individual acts.  Common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established.  There can hardly be any direct evidence of common intention.  It is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants.   The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared the common intention.   The presence of the mental element   or   the   intention   to   commit   the   act   if   cogently established   is   sufficient   for   conviction,   without   actual participation in the assault.  It is therefore not necessary that before   a   person   is   convicted   on   the   ground   of   common intention, he must be actively involved in the physical activity of assault.  If the nature of evidence displays a pre­arranged plan and acting in concert pursuant to the plan, common intention can be inferred.  A common intention to bring about a particular result may also develop on the spot as between a number   of   persons   deducible   from   the   facts   and circumstances of a particular case. The coming together of the accused to the place of occurrence, some or all of whom may be armed, the manner of assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences.

18. Coming to the facts of the present case, the appellant no.1 lay in wait along with the other two appellants who were armed.  Appellant no.1 stopped the two deceased who were returning from the market.  The assault commenced after the deceased had halted.    That there was some dispute with regard   to   money   is   apparent   from   the   evidence   of   the witnesses.   Abdul Barek died on the spot as a result of the brutal assault.   Abdul Motin was injured in the first assault upon him by appellant no.3, after which he tried to flee. Appellant no 1 along with the other accused chased him, caught hold of him near the house of Mamud Ali where he was brutally assaulted.  Abdul Motin was then dragged by the accused   persons   to   the   place   where   Abdul   Barek   lay motionless.  To our mind no further evidence is required with regard to existence of common intention in appellant no.1 to commit the offence in question.  We, therefore, find no reason to grant any benefit to appellant no.1 on the plea that there is no   role   or   act   of   assault   attributed   to   him,   denying   the existence of any common intention for that reason.

19. Resultantly,   we   find   no   reason   to   interfere   with   the conviction and sentence of the appellants. The appeal is dismissed.