JUDGMENT : Barman, J. - This is an appeal from an order of conviction and sentence passed by the learned Sessions Judge, Cuttack, convicting the accused-Appellant one Bhagaban Barik u/s 304, Part II, Indian Penal Code and sentencing him to undergo rigorous imprisonment for four years in S.T. No 13C of 1959. 2. Before the learned Sessions Judge, the accused-Appellant Bhagaban Barik and his father one Bidyadhar Barik were committed to stand trial u/s 302, Indian Penal Code: or intentionally beating one Kanhei Barik of their village to death on February 28, 1959 on account of alleged previous enmity. The learned Sessions Judge gave the benefit of doubt to the father Bidyadhar Barik and acquitted him of the charge u/s 302, Indian Penal Code but found the accused-Appellant Bhagaban Barik guilty u/s 304, Part II, and sentenced him as aforesaid. Hence this appeal by the said accused Appellant Bhagaban Barik. 3. The relevant facts, shortly stated, are these: The accused and the deceased are Gopals by Caste. Some years ago the Gopals of the locality formed a strong combination, called a Samiti, to fight the higher castes, particularly the Khandayets, for the purpose of securing 'certain privileges; the said combination the Gopals is alleged to have been successful in their mission and continued to function more rigidly for securing discipline in the Gopal community; for certain reasons, not relevant for the present purpose, the deceased Kanhei Barik and his brothers fell out with their Samiti and were excommunicated. It was in this background that the incident, hereinafter stated, took place resulting in the death of the said Kanhei Barik. From the evidence it appears that about three or four days immediately prior to the date of the incident some trouble was brewing which led to the attack on the deceased Kanhei Barik on February 28, 1959. It was in this background that the incident, hereinafter stated, took place resulting in the death of the said Kanhei Barik. From the evidence it appears that about three or four days immediately prior to the date of the incident some trouble was brewing which led to the attack on the deceased Kanhei Barik on February 28, 1959. The prosecution version of the case, as it appears from the first Information Report lodged by the accused's mother-in-law one Para Bewa (P.W.1) on March 1, 1959, is that on February 28, 1959 at noon her son-in-law the deceased Kanhei Barik alone went to his Dalua paddy field to drive away the cattle; while he (Kanhei) was driving out the cattle, the accused Bhagaban Barik, his father Bidyadhar Barik along with: Dija Barik and Kamni Barik and others who were hiding themselves in the Dalua paddy field with bamboo sticks in their hands, suddenly surrounded the deceased Kanhei and he (Kanhei) was hit with bamboo sticks on his chest and head; that Kanhei fell down and the accused persons continued to assault him; at that time there were nearby ten or twelve persons-some of them, mentioned in the First Information Report - came shouting and the accused persons left the place and ran away; Kanhei was senseless and all attempts to bring him to consciousness by pouring water in his mouth failed; there was profuse bleeding from his mouth and nose; ultimately Kanhei died in the dispensary when he was brought at about midnight. The defence version of the case is that the accused Appellant Bhagaban's wife champa Dei, at about noon on the date of the incident, went to take bath in the pond and that while she was bathing the deceased Kanhei came from behind and caught hold of her by both hands and tried to molest her; she shouted "Bapale Male Marigali daudiasa" whereupon her husband Bhagaban and others came to spot with Baunsa falias (split bamboos) which were used as posts for fence; thereafter the deceased Kanhei left the accused. Bhagaban's wife who hurriedly left the place; all those, including her husband Bhagaban, who thus rushed to her rescue upon hearing her shout as aforesaid hit the deceased Kanhei causing injury to him with the consequence that he ultimately died as aforesaid. The evidence of the doctor P.W. 8 is that there was only one injury on Kanhei. Bhagaban's wife who hurriedly left the place; all those, including her husband Bhagaban, who thus rushed to her rescue upon hearing her shout as aforesaid hit the deceased Kanhei causing injury to him with the consequence that he ultimately died as aforesaid. The evidence of the doctor P.W. 8 is that there was only one injury on Kanhei. The question therefore is by whose stroke the deceased-was killed. 4. Mr. P.K. Dhal, learned defence counsel, contended that in this case there was no common intention on the part of those who participated in the assault on the deceased Kanhei. In fact, there was no charge u/s 34 of the Indian Penal Code to warn the accused person of the case he is to answer. Accepting however, the prosecution contention that the omission to mention Section 34 in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof, it is also well settled law that 'common intention' is an intention to commit the crime actually committed and each accused person can be convicted of that crime only if he had - participated in that common intention. Thus the 'common intention' is not necessarily the 'same intention'. In the present case, the intention of all those, who participated in the assault, appears to be to save the woman champa Dei (Bhagaban's wife) on hearing her alarm as aforesaid; the steps that these persons, who rushed to the spot on hearing that the woman was being molested, were certainly not in furtherance of common intention to do a criminal act. The persons, who rushed to the scene in the circumstance as aforesaid, appear to have the same intention of saving Bhagaban's wife but not the common intention of killing the deceased Kanei. The persons, who rushed to the scene in the circumstance as aforesaid, appear to have the same intention of saving Bhagaban's wife but not the common intention of killing the deceased Kanei. 'Common intention' within the meaning of Section 34 implies a pre-arranged plan, to convict the accused of an offence applying Section 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan; it is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case; care must be taken not to confuse same or similar intention with common intention; the partition which divides 'their bounds' is often very thin; nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice; the inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of AIR 1945 118 (Privy Council) . 5. At the trial before the learned Sessions Judge, 13 witnesses were called for the prosecution including P.Ws. 1. 7, 9, 10 and 11 who were alleged to be the eye-witnesses to the incident. While acquitting the said Bidyadhar Barik, the learned Sessions Judge appears not to have accepted the evidence of the alleged eye-witnesses. With regard to P.W. 1, the learned Sessions Judge came to a finding that it looked as if P.W. 1 had been made an eye-witness for the reason that the investigating officer had Done else from whom he could record the First Information report, before taking up the investigation at that dispensary. Admittedly P.W. 1 could not point out the place wherefrom she is alleged to have seen the incident. The learned Sessions Judge found it difficult to believe that P.W. 1 was at the place of the incident at the right time, although she claims to be one of the eyewitnesses. With regard to the other eye-witnesses, although they appear to have been at the place of the incident, the question is whether or not they have been able to establish that the accused-Appellant Bhagaban Barik was guilty of having caused the death of the deceased Kanhei Barik. With regard to the other eye-witnesses, although they appear to have been at the place of the incident, the question is whether or not they have been able to establish that the accused-Appellant Bhagaban Barik was guilty of having caused the death of the deceased Kanhei Barik. While acquitting Bidyadhar, the learned Sessions Judge expressed the view that he had been, implicated for sheer vindictiveness. The question is how far the prosecution witnesses can be believed for convicting the other accused person namely the accused-Appellant Bhagaban. Barik-while his father Bidyadhar was acquitted on the ground of unreliability of the very same witnesses and on the ground of their vindictiveness. 6. On analysis, the prosecution evidence appears to be inconsistent with the medical evidence. With regard to the part of the body where the deceased was hit, there appears to be certain material discrepancies in the evidence of the witnesses as also in their statements u/s 164, Code of Criminal Procedure which were Dot produced by the prosecution until in course of hearing of this appeal -an aspect with which I shall deal hereafter. In the First Information Report P.W. 1 said that several persons mentioned therein hit the deceased with bamboo sticks on his chest and head. At the trial P.W. 1 however said that. Bhagaban dealt the first blow on the top of the head of the deceased. Then P.Ws. 7, 9 and 10 at the trial said that the deceased was hit from behind. In their statements u/s 164, P.Ws. 7 and 10 said that the deceased was hit on his forehead and P.W. 9 said that the deceased was assaulted on his Bama Kandmunda (in the region of the left ear). The medical evidence of the doctor P.W. 8 is that the deceased was hit over the vert of the skull in the parietal region little to the left of the middle line and the doctor does not find any injury on the forehead. With regard to the number of injuries, there also appear to be certain discrepancies in the evidence of the prosecution witnesses. According to the First Information Report lodged by P.W. 1, all the persons including the accused had Surrounded and assaulted the deceased. The subsequent case sought to be made by the prosecution appears to be a development. With regard to the number of injuries, there also appear to be certain discrepancies in the evidence of the prosecution witnesses. According to the First Information Report lodged by P.W. 1, all the persons including the accused had Surrounded and assaulted the deceased. The subsequent case sought to be made by the prosecution appears to be a development. When the F.I.R version and the case put forward before Court do not tally, it will be extremely hazardous for a Court to conjecture as to how the incident might have taken place. If the evidence of the other P.Ws 7, 9, 10 and 11 is accepted, then there should be at least more than ten blows with Thenga (stout lathis). The evidence of P.W. 11 is that all the accused persons were assaulting with sticks while the deceased was lying in the field. Thus the evidence of these witnesses is not consistent with the medical evidence. Where there is a conflict between the medical evidence and the oral testimony of witnesses the evidence can be assessed only in two ways: a court can either believe the prosecution witnesses unreservedly and explain away the conflict by holding that the witnesses have merely exaggerated the incident or rely upon the medical evidence and approach the oral testimony with caution testing it in the light of the medical evidence; the first method can be applied only in those cases where the oral evidence is above reproach and create confidence and there is no appreciable Reason for the false implication of any accused; where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method, Thakur and Others Vs. State, . In the present case, there having been a party faction in the village between the Khandayets and the Gopals as aforesaid and in view of the fact that the prosecution witnesses all appear to the same family, they are not independent witnesses because of such party faction among the two rival groups; and the said P.WS who are Khandayets were helping one particular group. The suspicion in this regard is further confirmed by the fact that the statements of the witnesses do not appear to have been recovered at the earliest opportunity. The suspicion in this regard is further confirmed by the fact that the statements of the witnesses do not appear to have been recovered at the earliest opportunity. In fact, the defence suggestion is that the prosecution witnesses were made to say something after discussion with. P.W. 10 Jaigi Naik. On this point, the evidence of P.W. 9 is that it was Jaigi Naik who fixed up the witnesses after discussion with the investigating officer. Thus in the present case, the witnesses are not of such unimpeachable character, which can outweigh the evidence of the doctor. The witnesses do not appear to be straightforward and they had clearly exaggerated, at least so far as the other accused person Bidyadhar (who was acquitted) was concerned. It is clear that the prosecution witnesses tried to suppress the defence version of the incident, at the trial. Considered from this aspect, it is clearly in evidence that the prosecution tried to suppress the fact of the accused Bhagban's wife taking her bath in the pond at the time and that the accused Bhagaban and others were attracted to the pond by the alarm raised by his wife as aforesaid. This veiled attempt on the part of the prosecution has a significant bearing which supports the defence version. It appears from the First Information Report that there is no reference to accused Bhagaban's wife taking her bath at the time in the pond. In fact it is absolutely silent on this point. It appears from the evidence of P.W. 10 that the prosecution attempted to fix the presence of Bhagaban's wife beside the Guhala (cows head) at the time of the incident in order to throw a cloud on the defence case that it was the alarm raised by Bhagaban's wife while bathing in the pond that attracted the rescuers, including the accused Bhagaban to the scene of occurrence. P.W. 10's evidence on this point is contradicted by his own statement u/s 164, Code of Criminal Procedure where he said that the wife of Bhagaban was bathing in the talk nearby. This staggering inconsistency speaks for itself. As to the actual place of the incident, nobody appears to know where the deceased was assaulted-there is no evidence of blood mark; the defence suggestion is that the deceased was actually assaulted while on water in the pond and hence there is no trace of blood. This staggering inconsistency speaks for itself. As to the actual place of the incident, nobody appears to know where the deceased was assaulted-there is no evidence of blood mark; the defence suggestion is that the deceased was actually assaulted while on water in the pond and hence there is no trace of blood. There are circumstances, which throw doubt on the truth of the prosecution case. 7. Moreover, in the melee of the attack by the several persons, including the accused Bhagaban, on the deceased Kanhei, it is difficult t to fix the actual part alleged to have been taken by the accused Bhagaban. On this point also the evidence of the witnesses shows certain clear discrepancies. It appears from the evidence of the several witnesses that both the accused Bidyadhar (who was acquitted) and his son the accused Bhagaban bad assaulted the deceased. If that was so, then there would have been found more than one injury OD the deceased. In the present case, the acquittal of Bidyadhar leads to the inference that the prosecution version of the incident is not correct; there having been other participants in the assault it is doubtful as to who actually hit that particular fatal blow on the deceased which caused his death. There are two important factors for every criminal trial that weigh heavily in favour of an accused person; one is that the accused is entitled to the benefit of every reasonable doubt and the other an off-shoot of the same principle, that when an accused person offers a reasonable explandtion of his conduct, then even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false. Furthermore in a criminal case, where different constructions can be placed on any incident consistent with the evidence in the case, it is right to put the construction which is most favourable to the accused. Aher Raja Khima Vs. The State of Saurashtra, and AIR 1931 385 (Oudh) . In the present Case the evidence is that all including the accused-Appellant went together and no one knows by whose blow the deceased died. Thus the accused Appellant Bhagaban, like his father Bidyadhar who was acquitted, is also entitled to the benefit of doubt. 8. Aher Raja Khima Vs. The State of Saurashtra, and AIR 1931 385 (Oudh) . In the present Case the evidence is that all including the accused-Appellant went together and no one knows by whose blow the deceased died. Thus the accused Appellant Bhagaban, like his father Bidyadhar who was acquitted, is also entitled to the benefit of doubt. 8. Now coming to the statements u/s 164, Code of Criminal Procedure hereinbefore mentioned, it is significant that they were not made available to the defence at the stage of the trial before the learned Sessions Judge. In fact the statements were not kept on record and they were not produced until in course of the bearing of this appeal. An accused is undoubtedly entitled to inspect statements of prosecution witnesses recorded u/s 164; such statements can be used by the prosecution for the purpose of corroborating the witness; they can likewise be used by the defence for the purpose of contradicting such witness; the Court is expected to affiant all facilities to the accused not only when he is compelled by law to do so; but also when he has a discretion ill the matter and the ends of justice require that the accused should be apprised of what certain prosecution witnesses had previously stated in the proceedings u/s 164. The same considerations are also applicable in case of statements made u/s 162, Code of Criminal Procedure. On the particular facts and circumstances in certain cases cited before me, order of remand is found to have been made for retrial on the ground that the defence had no opportunity of having such statements before them for cross-examination of the prosecution witnesses. In all such cases, where order for retrial has been made, it appears that there were certain circumstances which are absent in the present case, Ordinarily any attempt to deprive the accused of the protection and privileges of a substantial nature which the law confers on him, must result in quashing of the proceedings. On the question of remand for retrial, on this ground, it appears to me that on the facts and circumstances of the present case, the prosecution has palpably failed to establish beyond reasonable doubt that the accused-Appellant Bhagaban is guilty of having caused the death of the deceased Kanhei in the circumstances aforesaid. On the question of remand for retrial, on this ground, it appears to me that on the facts and circumstances of the present case, the prosecution has palpably failed to establish beyond reasonable doubt that the accused-Appellant Bhagaban is guilty of having caused the death of the deceased Kanhei in the circumstances aforesaid. In my opinion, the accused-Appellant is entitled to the benefit of doubt and therefore to acquittal, even without having to rely on the contradictions apparent on the face of the statements u/s 164; in the present case, the question of prejudice, by reason of non-production of the statements at the stage of trial, does not adds. I therefore see no reason why I should order retrial; the position for the prosecution is hardly likely to improve hereafter and any further use of the statements u/s 164 at this stage of retrial will not serve any purpose-see Bashiruddin and Another Vs. Emperor, ; Mafizaddi Vs. King-Emperor, ; Dinanath Sahay Vs. Emperor, ; Vibhwandth Pandurang v. Emperor AIR 1936 Nag 249. 9. Mr. D.S. Misra learned Counsel appearing for the Government Advocate, fairly placed his contentions from the prosecution point of view both on facts and in Law. I am however unable to accept his contentions for the reasons as discussed above. The learned Counsel also pressed for remand and new trial. On the facts and in the circumstances of the case as aforesaid, I am of opinion that this is not a fit case for retrial. 10. In this view of the matter, the order of conviction and sentence passed by the learned Sessions Judge cannot be maintained. The result, therefore, is that this appeal is allowed. The order of conviction and sentence is set aside and the accused Appellant Bhagaban Barik be set at liberty forthwith. Final Result : Allowed