JUDGMENT : 1. "Common intention" is not same or similar intention. It presupposes a prior concert and a pre-arranged plan. It follows that there must be a prior meeting of the mind. Several persons can simultaneously attack a man. Each can have the same intention, that is, intention to kill. Each can individually cause a separate fatal blow. Yet, there may not exist a common intention if there was no prior meeting of the mind. In such a case, each would be individually liable for the injuries he causes. None can be vicariously convicted for the act caused by the other. If the prosecution fails to prove that the blow of a particular offender caused murder, he them in their statements before the police. In the circumstances, Sida's statement u/s 342, Code of Criminal Procedure that he was detained in the village school for 7 days and was assaulted severely may not be unfounded. We accordingly exclude his confessional statement (ext. 2) from our consideration. 2. Mr. Mohanty contended that the finding of the learned Sessions Judge that death was caused by the blows of Hari was not supported by the materials on record. As to the factum of murder, the evidence of p.ws.4 and 5 only is relevant. Rest of the prosecution witnesses have not seen that part of the story. Though Hari raised a Barsi to assault Dubei, p.ws.4 and 5 have not seen him giving any stroke with the Barsi. P.ws.4 and 5 did not say that the lathi strokes of Hari caused the death. In the absence of any evidence that the assault by Hari caused the death of .the deceased, he cannot be convicted u/s 302, Indian Penal Code. 3. The only substantial point, which has been seriously urged before us, is that the Appellants cannot be convicted u/s 30234, Indian Penal Code. To appreciate this contention, it is necessary to examine the medical evidence. Postmortem examination was done by Dr. M.N. Hatial as per postmortem report (ext. 5). Dr. Hatial died before the sessions trial. The post-mortem report was proved and exhibited by Dr. Maheswar Panda (p.w.6). In Hadi Krisani v. The State 31 C.L.T. 823, a Bench of this Court held that the post-mortem report was admissible in evidence when the doctor was dead. M.N. Hatial as per postmortem report (ext. 5). Dr. Hatial died before the sessions trial. The post-mortem report was proved and exhibited by Dr. Maheswar Panda (p.w.6). In Hadi Krisani v. The State 31 C.L.T. 823, a Bench of this Court held that the post-mortem report was admissible in evidence when the doctor was dead. The legal position as summarised thus - If the doctor is available for examination in Court, the injury report or the post-mortem report given by him is not substantive evidence and is inadmissible unless he is examined. It can be used for corroboration or for refreshing memory or contradiction of his evidence in Court. If, however, the doctor is dead or is not available for examination in Court, under the circumstances mentioned in Section 32 (Evidence Act), the injury report or the post-mortem report is admissible and relevant. What weight it would carry with a Court of fact is altogether a different question. Its probative value depends on the facts and circumstances of each case. On the authority of the aforesaid decision, we hold that ext. 5 is admissible and relevant. 4. Ext. 5 shows the following external and internal injuries: External injuries: (1) One bruise 3" x 2" on front and lower (torn) of, left fore-arm. (2) One bruise 4" x 3" on left chest below axilla. (3) One bruise 5" x 4" on upper part of (torn) chest (front). (4) One incised wound 21/4" x 3/4" x deep (torn) bone on left zygomatic and (torn) region. (5) One bruise 31/2' x 11/2" on rt. cheek. (6) One incised wound 2" x 1/2" x bone deep on left temporal region. (7) One incised wound 13/4" x 1/2" x bone deep on parietal region. (8) 6 incised wounds 1/2" x 1/4" x skin deep to 11/2" x 1/4" x skin deep behind the left ear. Internal injuries on dissection: Corresponding to injury Nos. 2 and 3. Left 3rd and 4th ribs were broken on anterior axillary line.- Left 5th, 6th and 7th ribs were broken at costochondral junction. left 5th to 10th on mid axillary line. Left pleura torn in front and left side, and left pleural cavity contains A.M. blood clots and blood about 8 z. Corresponding to injury No. 6: Left temporo-parietal suture is loosened and blood clot (A.M.) between bone and meninges. left 5th to 10th on mid axillary line. Left pleura torn in front and left side, and left pleural cavity contains A.M. blood clots and blood about 8 z. Corresponding to injury No. 6: Left temporo-parietal suture is loosened and blood clot (A.M.) between bone and meninges. Corresponding to injury No. 4: Left zygomatic, left maxilla and left side of frontal bone were broken to pieces. In the post-mortem report itself, the doctor was of opinion that death of the deceased was due to multiple fracture of ribs and pleura and haemorrhage and shock. An the injuries were ante-mortem and the death was instantaneous. It would thus appear that death was caused by the lathi strokes which broke the ribs and tore the left pleura. 5. The evidence of the eye-witnesses p.ws.4 and 5 as to how the deceased was assaulted by the Appellants is almost identical. The exact statement of p.w.4 may be quoted: Hari, Bada and Chandra entered inside the house and asked me and Champa to go out of the house or else they would assault us. Dubei was inside the house of p.w.1 at that time. He told to the miscreants that they should not quarrel with the female folk. Hari, Bada and Chandra said to Dubei "why are you siding with the blacksmiths?" Then Hari gave a blow with his lathi on the back of Dubei. When Dubei and myself entered inside a room, those three persons followed us and dealt lathi blows to Dubei as a result of which he fell down. Then Mora, Guda and Sida entered into that room and assaulted Dubei. Some others also entered inside the house. Out of those persons I could see Ram Basra, Laxmiram and Budhu. Then accused Hari raised a Barsi to assault Dubei. At that time, myself and Champa went out of the house when Dubei was crying "1 am dying". It was raining heavily. Myself and Champa stood in the Bari of p.w.1. Sometime after the miscreants left the place, we entered into the house and saw Dubei lying dead. 6. Then accused Hari raised a Barsi to assault Dubei. At that time, myself and Champa went out of the house when Dubei was crying "1 am dying". It was raining heavily. Myself and Champa stood in the Bari of p.w.1. Sometime after the miscreants left the place, we entered into the house and saw Dubei lying dead. 6. The evidence of the eye-witnesses to the factum of murder and the medical evidence lead to the irresistible conclusion that Hari, Bada and Chandra indiscriminately assaulted the deceased with their lathis, chased him inside the room and went on assaulting until he fen down, and thereafter Sida with other accused persons also gave lathi strokes. The various lathi strokes so given, were ultimately responsible for the death of the deceased as is established by the medical evidence that the ribs were fractured and the pleura was ruptured as a result of lathi strokes evidenced by injuries 2 and 3 on the chest causing the internal injuries resulting in breaking 3rd to 10th ribs and rupturing the pleura. This is a case in which it cannot be clearly determined as to which particular stroke caused the death. The cumulative result of the strokes given by several offenders resulted in the instantaneous death of the deceased. 7. The question for consideration is whether, in the aforesaid facts and circumstances, all the Appellants can be convicted u/s 302 read with Section 34, Indian Penal Code. Section 34, Indian Penal Code enacts that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons shall be liable for that act in the same manner as if it were done by him alone. In Section 33, the word "act" denotes as well a series of acts as a single act. The criminal act referred to the totality of the series of act reflecting the unity of the criminal behaviour which resulted in the offence for which each individual is to be punished. In this case, the assault was by the four Appellants amongst others causing the death of the" deceased. The strokes of all resulted in the offence of murder. The criminal act referred to the totality of the series of act reflecting the unity of the criminal behaviour which resulted in the offence for which each individual is to be punished. In this case, the assault was by the four Appellants amongst others causing the death of the" deceased. The strokes of all resulted in the offence of murder. If the act of each individual was done in furtherance of the common intention to commit murder, then each one of the offenders is constructively liable for the offence of murder even though his own act might not have resulted causing death. If the individual act is performed in furtherance of the common intention, the vicarious liability accrues. Section 34 deals with separate acts similar or diverse by several persons. The offence is attributable to each offender, provided it was done in furtherance of the common intention. 8. "Common intention" is not same or similar intention. It presupposes a prior concert and a pre-arranged plan. It follows that there must be a prior meeting of the mind. Several persons can simultaneously attack a man. Each can have the same intention, that is, intention to kill. Each can individually cause a separate fatal blow. Yet, there may not exist a common intention if there was no prior meeting of the mind. In such a case, each would be individually liable for the injuries he causes. None can be vicariously convicted for the act caused by the other. If the prosecution fails to prove that the blow of a particular offender caused murder, he cannot be convicted of that offence. The partition between the limits of common intention and same or similar intention is, however, thin though the distinction is real and substantial and, if overlooked, it may result in miscarriage of justice. This is, however not to say that the pre-arranged plan need necessarily be an elaborate one. Nor is it necessary that long interval of time must elapse between the meeting of the mind and the perpetration of the act. The common intention may develop and be formed suddenly. To illustrate, when a person asks others to help, him to kill the deceased and thus other persons, either by their acts or words, assault him or join with him in the assault, common intention is established. The common intention may develop and be formed suddenly. To illustrate, when a person asks others to help, him to kill the deceased and thus other persons, either by their acts or words, assault him or join with him in the assault, common intention is established. The common intention in such a case is formed on the spur of the moment. Existence of prior concert is to be determined with reference to the facts and circumstances of each case. The conduct preceding the commission of offence, the nature of injuries, the manner of causing them, the seat of the injury, the conspiracy before the offence is committed and the subsequent conduct, such as, retuning away together, are some of the important matters to be taken into consideration for deducing the existence of common intention. In other words, each case should depend upon its own facts and circumstances to judge whether there was common intention or same or similar intention. 9. In this particular case, the Appellants along with other accused persons determinedly came to the house of p.w.1 to assault him. When exception was taken by the deceased to their misbehavior towards the female folk of the house, they retorted. Each one of the Appellants came with a lathi in his hand. The single stroke given by Hari initially did not satisfy the miscreants. They pursued him when he fled away to the bed room p.w.1. There the first three Appellants indiscriminately and mercilessly assaulted him until he fell down causing fracture of the ribs and rupture of the pleura. Even thereafter the fourth Appellant was one of the persons who gave a stroke with his lathi. From all these facts and circumstances the conclusion is irresistible that the Appellants developed a common intention on the spur of the moment to kill the deceased. Though it is not possible to say as to which particular stroke resulted in the death of the deceased, the acts of the Appellants ultimately resulted in death. The individual acts having been performed in furtherance of the common intention to kill each one of them is responsible for the death of the deceased. The criminal act was offence of murder which finally resulted, though the achievement of that criminal act may be the action of several persons. The individual acts having been performed in furtherance of the common intention to kill each one of them is responsible for the death of the deceased. The criminal act was offence of murder which finally resulted, though the achievement of that criminal act may be the action of several persons. The quintessence of the doctrine is epitomised in the dictum of the Judicial Committee to the effect - They also serve who only stand and wait, All the Appellants are, therefore, liable to be convicted u/s 30234, Indian Penal Code-See Barendra Kumar Ghosh v. King Emperor, Mahabule Saha v. Emperors, Pandurang v. State of Hyderabad, Rishideo Pande v. State of Uttar Pradesh, Mohan Singh v. State of Punjab and Abrahim Sheikh v. State of West Bengal. 10. Subject to the modification that the conviction of Appellant Hari u/s 302, Indian Penal Code is altered to one u/s 30234, Indian Penal Code, the appeal is dismissed. Ahmad, C.J. 11. I agree. Appeal dismissed; Conviction modified. Final Result : Dismissed