THADANI, C. J.: The appellants, Ghanakanta Kataki alias Jahua and Ghanakanta, Deodbl Phukan, were convicted by the learned Sessions Judge, U.A.D., u/s. 302, I. P. C. read with S. 34, I. P. C. at a trial held with the aid of a Jury and each sentenced to transportation of life. The appellants have appealed on the ground that the learned Sessions Judge has misdirected the jury on the question of the applicability of S. 34, I. P. C. to the facts of this case, a misdirection which has resulted in an erroneous verdict by the jury, and that if the plea of misdirection is sustained, the evidence led by the prosecution does not justify the conviction. (2) The case of the prosecution was that on 1-8-49, shortly after dark, the 2 appellants, along with others, waylaid the deceased Sahadeb when he was returning from the house of one Joyram Phukan and belaboured him; the de­ceased received severe injuries on the head re­sulting in the fracture of the cranium, as a result of which he died almost instantaneously. It was alleged that on the cries of the deceased, one Nabakanta Phukan, a brother of the deceas­ed who was living in a house some 80 yards away, and another person called Tikheswar were attracted to the scene of the offence. Short­ly afterwards one Jayrarn and Sashidhar Mohon also came to the scene. Nabakanta and Tikhes­war proceeded to the Moran Out-Post which they reached early in the morning the following day. Nabakanta, the brother of the deceased, lodged the F.I.R. On the completion of the investigation, the two appellants and some others who have been acquitted, were sent up for trial. At the trial, the learned Sessions Judge framed a charge against the appellants under S. 302, I. P. C. read with S. 34, I. P. C. (3) The learned Judge's summing up to the Jury on the question of the applicability of S. 34, I. P. C. to the facts of this case, is in these terms : "Section 34, I. P. C., placed before the Jury and explained. Section 34, I. P. C. by itself, is not a penal section, nor does it prescribe any substantive sentence by itself, but it is meant only for the purpose of apportioning the liabi­lity or fixing the liability on the individuals who perpetrate such criminal act in furtherance of the common intention of them all. If the murder is committed or injuries are inflicted only by one or more of them in pursuance of their common intention either of killing or injuring the man, then all are liable under S. 34, I. P. C. for the commission of the offence as is proved against any of them. You will have to decide whether the offence was com­mitted in furtherance of the common intention of them all, or not." It is plain from the language of S. 34, Penal Code, that the facts of a given case if it is sought to apply S. 34, I. P. C. to them are an integral part of the section and that in the ab­sence of a proper reference to the facts of the case, it is impossible for a Jury to apply or re-| fuse to apply the terms of S. 34, I. P. C. On a proper marshalling of the facts of this case - a duty which the learned Trial Judge has failed to perform - we find it difficult to apply S. 34, I. P. C. (4) Nabakanta Phukan, the brother of the deceased, has stated in his evidence that on 1-8-49 the deceased" went to the house of one Joy­ram Phukan to give him some fish, and shortly afterwards he heard his brother crying "I am struck, I am dying". According to him, he ran out and saw his brother being struck by appel­lant No. 1, Ghanakanta Kataki, whom he recog­nised, with an axe, and the appellant No. 2 and his companions, some 6 or 7 in number, whom he did not recognise, running away from the scene. In his First Information Report, How­ever, Nabakanta Phukan did not say that the appellant No. 1, Ghanakanta Kataki, had struck his brother. The evidence of Tikheswar, the other alleged eye-witness, is also to the same effect. (5) The motive for the assault on the deceas­ed, as alleged in the evidence, is this. In his First Information Report, How­ever, Nabakanta Phukan did not say that the appellant No. 1, Ghanakanta Kataki, had struck his brother. The evidence of Tikheswar, the other alleged eye-witness, is also to the same effect. (5) The motive for the assault on the deceas­ed, as alleged in the evidence, is this. The de­ceased had a 'pam' cultivation at a place called Chakalia about a mile away_ from where he lived; the land over which 'pam' cultivation ex­isted originally belonged to one Jayram Phukan a distant relation of the deceased; the patta for the land was annulled for default in payment of arrears of land revenue, and the deceased was granted a patta and put in possession; the appellants objected to the deceased's possession of the land and had been creating trouble lor some time; about the time of the occurrence some 10 bighas out of 31 bighas, the total area of the land, were under cultivation, and the re­maining area was being made ready for trans­plantation. There was yet another reason for bad blood between the deceased and the appel­lant, Ghanakanta Kataki; he had borrowed Rs. 50 from the deceased upon a mortgage of his land some 2 years ago; Ghanakanta Kataki, however, instead of redeeming the mortgage, took forcible possession of the land. (6) Now it may be conceded that the alleg­ed enmity between the deceased and the appel­lants would justify the inference that those who waylaid the deceased, had a common sinister in­tention, but the inference is considerably weaken­ed by the evidence of the brother of the deceas­ed who deposed that he saw the appellant No. 1 only striking the deceased with an axe, while the appellant No. 2 and his companions ran away from the scene of the offence. Assuming that the 1st appellant struck the fatal blow up­on the head of the deceased, it is plain from the evidence of Nabakanta Phukan that the appel­lant No. 2 and his companions did not take any part in the attack upon the deceased. No act has been assigned to the 2nd appellant or any of his companions from which it can be said that the act of the 1st appellant Ghanakanta Kataki, was done in furtherance of the common intention of all. No act has been assigned to the 2nd appellant or any of his companions from which it can be said that the act of the 1st appellant Ghanakanta Kataki, was done in furtherance of the common intention of all. It was the duty of the learned Sessions Judge to draw pointed attention to the evidence of these two witnesses in his summing up to the jury in its bearing on the question of the applicability of S. 34, I. P. C. He ought to have told the Jury that it was for them to say whether, on the evidence of these 2 witnesses, the act of the 1st appellant, Ghanakanta Kataki, was an act done in furtherance of the common intention of all. The learned Judge's omission to direct the Jury in this behalf constitutes, in our opinion, a misdirection which vitiates the verdict if it cannot be sustained on the evidence. (7) We have so far proceeded on the assump­tion that it was the first appellant who struck the fatal blow, but even this assumption is not warranted by the evidence. The learned' Government Advocate has frankly stated that the evidence of the 2 witnesses P. W. 1 and P. W 2, read with the F. I. R. cannot be re­garded as satisfactory for the purpose of hold­ing that it was the 1st appellant who inflicted the fatal blow upon the deceased. He conceded that the attack upon the deceased was so swift and sudden that it is not improbable that P. W. 1 and P. W. 2 arrived after the deceased had fallen and did not witness the attack. We think this concession of the learned Government Advocate is properly based upon the fact that, in the F. I. R. it was not stated who inflicted the fatal blow. (8) In the view we take of the summing up of the learned Judge on the question of the ap­plicability of S. 34, I. P. C. to the facts of this case, ordinarily we would have ordered a re­trial. But we agree with the learned Govern­ment Advocate that in this case there is no cre­dible evidence justifying a re-trial. (9) The result is that we allow the appeal, set aside the conviction and sentence passed on the appellants and set them at liberty. (10) RAM LABHAYA, J.: I agree. Accused acquitted.