JUDGMENT : V. Gopalaswamy, J. - This appeal is preferred against the judgment dated 12.4.1982 passed by the learned Sessions Judge, Kalahandi, Bhawanipatna in S.C. No. 33K/32 of 1981, convicting the Appellants u/s 304/34, I.P.C. and sentencing each of them thereunder to undergo R.I. for four years. 2. The prosecution case, may be briefly stated, thus: Deceased Sada Majhi and the two accused persons, who are brothers, are residence of Nagapada within the Jaipatna Police Station in Kalahandi district On 17.5.1981 at 4 P.M. accused Gajanana, as the Gramarakhi of the village accompanied the constable to the house of P.W. 1, the son of the deceased, with a warrant to arrest P.W. 1. Oil the accusation that be was selling illicit liquor and at the heme of P.W. 1, there was an altercation between P.W. 1 and accused Gajanana when the latter had assaulted P.W. 1 with a lathi and ranaway. Shortly thereafter, the deceased, on coming to know about the assault on P.W. 1, from him, went to the house of accused Gajanana and questioned him as to why he had assaulted his son (P.W. 1) when accused Gajanana dealt lathi blow on the head of the deceased and accused Rupa Naik dealt a of blow on the back side of the deceased with a crow-bar, when the deceased fell down. P.Ws. 2 and 3, sons of the deceased, who accompanied their father to the house of the accused witnessed the occurrence. On being called by P.W. 3 other villagers gathered at the spot. The deceased was initially admitted at the Jaipatna P.H.C. for treatment and as his condition became serious, her was shifted to Headquarters hospital at Bhawanipatna where he expired on 20.5.1981 at 8.40 P.M. 3. The defence plea is one of denial. No witness was examined on behalf of the defence. 4. The prosecution examined in all 12 P.Ws. to prove its case P.Ws.1, 2 and 3 are the sons of the deceased, of whom P.Ws. 2 and 3 claim to be the eye witnesses to the occurrence. P.W. 5 is a post-occurrence witness examined to corroborate P.Ws. 2 and 3. P.W. 7 is the Medical Officer, Jaipatna P.H.C. P.Ws. 12 is the doctor, who conducted the post-mortem examination of the deceased. P.W. 11 is the I.O., who investigated into the case. P.Ws. 2 and 3 claim to be the eye witnesses to the occurrence. P.W. 5 is a post-occurrence witness examined to corroborate P.Ws. 2 and 3. P.W. 7 is the Medical Officer, Jaipatna P.H.C. P.Ws. 12 is the doctor, who conducted the post-mortem examination of the deceased. P.W. 11 is the I.O., who investigated into the case. P.Ws. 4 and 8 are the witnesses to the seizure of the bed-head-ticket of the deceased. P.W. 6 is the constable, who accompanied the dead body of the deceased for its post-mortem examination. P.W. 9 is the A.S.I., who held the inquest over the dead body of the deceased. P.W. 10 is a witness to the seizure of the stick M.O. I. So, it is seen that P.Ws. 4, 6, 8, 9 and 10 are not material witnesses. 5. According to the prosecution, P.Ws. 2 and 3 are the only eye-witnesses to the occurrence and, therefore, at the out set their evidence merits careful scrutiny. P.Ws. 2 and 3 are the son of the deceased. Their evidence shows that at the relevant time they were collecting date-palms near their house and that on seeing their father going towards the house of accused Gajanana they followed him. It is in the evidence of P.W.2, that when his father asked accused Gajanana as to why he had assaulted P.W. 1, accused Gajanana dealt a lathi blow on his father's head and there after accused Rupa Naik gave a blow on the back side of his father with a crow-bar when his father fell down. P.W. 3 the younger brother of P.W. 2, also deposed about accused Gajanana giving a blow with a lathi on the head of his father and about accused Rupa giving a blow on the back side of his father with a crow-bar. P.Ws. 2 and 3 stated that due to the assault on their father, he fell down with a bleeding injury on his head. Nothing substantial was elicited in the cross-examination of P.Ws. 2 and 3 to create any doubt in their testimony regarding the assault on their father by accused Gajanana with a lathi and by accused Rupa with a crow-bar. 6. P.W. 5 is a resident of the village of Occurrence. He is neither related to the deceased nor inimically disposed towards the accused persons and thus, be is an independent witness. 6. P.W. 5 is a resident of the village of Occurrence. He is neither related to the deceased nor inimically disposed towards the accused persons and thus, be is an independent witness. So, there is no reason to disbelieve P.Ws. 5, when he deposed, that on being informed by P.Ws. 2 and 3 that their father fell down in the court yard of the accused persons due to the assaults on him by accused Rupa and Gajanana, he (P.W. 5) along with others went to the spot and found the deceased with an injury on his head and then they carried him to his house. Hence, its seen that the above evidence of P.W. 5 corroborates the version of P.Ws. 2 and 3 about their father being assaulted by the accused persons. 7. P.W. 1 is the son of the deceased. The evidence of P.W. shows that on the date of occurrence at about 4 P. M. accused Gajana the Gramarakhi of his village, along with a constable, approach him for arresting him, when there was an altercation between him and accused Gajanana, during the course of which accused Gajanana dealt lathi blow on his back and ran away. It is in the evidence of P.W. 1. the soonafter his father (the deceased) enquired from him as to what ha happened and on coming to know about the assault on him, proceeded to the house of accused Gajanana to question him as to why he had assaulted P.W. 1. The evidence of P.W. 1 on the aspect that the deceased went to the house of accused Gajanana to question him about the assault on P.W. 1 was not shaken in the cross-examination. So, the versional P.W. 2, that his father went to the house of accused Gajanana and questioned him as to why he had assaulted P.W. 1, is corroborated by the above evidence of P.W. 1. 8. On 17.5.1981, P.W. 7 was the Medical Officer, Jaipatna P.H.C. Soon after the occurrence the deceased was admitted at the Jaipatna P.H.C as an indoorpatient. 8. On 17.5.1981, P.W. 7 was the Medical Officer, Jaipatna P.H.C. Soon after the occurrence the deceased was admitted at the Jaipatna P.H.C as an indoorpatient. On 17-5-1981 the doctor P.W. 7 examined the deceased at about 9 P.M. and found (i) a swelling injury above the fore head and (ii) a swelling injury on his back, The doctor opined that injury No. 1 was possible by a lathi and injury No. 2 was possible by a crow-bar and that the age of the injuries was within 12 hours. The defence suggestion that the injuries found on the deceased were possible by a fall was denied by the doctor (P.W.7). There is nothing in the evidence of the doctor (P.W.7) which creates any doubt regarding the correctness of his above opinion. Hence, it is seen that the medical evidence in the case also lends corroboration to the evidence of P.Ws. 2 and 3 regarding the assault on the deceased. 9. The evidence of P.W. 1 shows that when the deceased was carried home in an injured condition, he was in an unconscious state. There is nothing in the evidence of P.Ws. 1, 2, 3, 5 and 7 to suggest that the deceased was in a position to talk after the occurrence of assault on him. The defence suggestion to the I.O. that injured Sada Majhi was not a position to speak when he was brought to the police station appears to be true. P.W. 11, the O.I.C. of Jaipatna P.S., stated that he drew up the F.I.R. Ext. 9 on his own information and registered P.S. Case No. 41 dated 17.5.81 u/s 325/34 I.P.C. So, not much of significance can be attached to any of the omissions in the F.I.R. in view of the fact that the gist of the prosecution story, that accused Gajanana dealt a blow on the head of the deceased and accused Rupa dealt a blow with a crow-bar on his back, was stated therein. 10. Hence, relying on the evidence of P.Ws. 10. Hence, relying on the evidence of P.Ws. 1, 2, 3, 5 and 7, it can be safely held that accused Gajanana dealt a blow with a lathi on the head of the deceased and accused Rupa gave a blow with a crow-bar on the back of the deceased as a result of which the deceased sustained the injuries which were found by the Medical Officer (P.W. 7) as per the injury report Ext. 5, given by him. So, it remains to be seen, as to what offences the accused persons had committed when they assaulted the deceased, in the manner they did. 11. Section 304, I.P.C. does not create any offence. It provided the punishment for culpable homicide not amounting to murder. This sections consists of two parts depending upon the gravity of the offence. So in a case where the accused is convicted u/s 304, I.P.C. it is absolutely necessary to give a finding whether the conviction is under Section304 Part. I, I.P.C. or 304 Part. II, I.P.C., clearly stating the reasons for such a finding. Hence, the order of the learned Sessions Judge convicting and sentencing the Appellants u/s 304/34 I.P.C. without indicating whether it is u/s 304 Part. I/34, I.P.C. or u/s 304 Part. II/34 I.P.C. is prima facie defective and it reveals non-application of mind regarding the nature of the offence committed by the Appellants. 12. Section 34, I.P.C. lays down a principle of joint liability in the doing of a criminal act. A person my be constructively liable for an offence which he did not actually commit by reason of the common intention of all to commit such an offence. The learned Sessions Judge convicted both the Appellants u/s 304/34, I.P.C. without entering in to any discussions as to how the charge u/s 304/34, I.P.C. is brought home to them. The following observations of the Supreme Court in Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, indicate the circumstances under which the provisions of Section 34, I.P.C. can be invoked. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention or them all: AIR 1945 118 (Privy Council) at pp. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention or them all: AIR 1945 118 (Privy Council) at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill and each can individually inflict a separate blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: AIR 1923 PC 1 at pp. 5 & 6 (A) and AIR 1945 118 (Privy Council) . As their Lordships say in the latter case, the partition which devides their bounds is often very think, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The plan need not be elaborate, nor is a long interval of time I required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him & join him in the assault. Their is then the necessary meeting of the minds. There is pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and if necessary, to kill those who oppose." 13. Para-16 of the judgment of the trial court shows that the learned Sessions Judge found that the assault on the deceased by the Appellants was not a pre-planned one and the deceased was assaulted in a sudden heat of passion on the spur of the moment and I agree with the said findings of the trial Court. Para-16 of the judgment of the trial court shows that the learned Sessions Judge found that the assault on the deceased by the Appellants was not a pre-planned one and the deceased was assaulted in a sudden heat of passion on the spur of the moment and I agree with the said findings of the trial Court. There is nothing in the evidence of prosecution to suggest that there was a prior meeting of the minds of the Appellants. Nothing is brought out from the evidence of P.Ws. 2 and 3, the eye witnesses to the occurrence, about what the Appellants said or did before they assaulted the deceased. So there is no material, from which the inference of common intention could have been drawn. As observed by the Supreme Court in Sheoram Singh and Another Vs. The State of U.P. it is undeniable that common intention can develop during the course of an occurrence, but there has to be cogent material on the basis of which the Court can arrive at that finding and hold an accused vicariously liable for the act of the other accused by invoking the provisions of Section 34 of Indian Penal Code. In the present case there is absolutely in evidence to justify the invoking of the provisions of Section 34 of the Indian Penal Code. So, it necessarily follows that in the present case each of the Appellants would be individually liable for whatever injury he caused to the deceased but neither of them could be vicariously convicted for the act the other. In view of this position of law, the order of conviction passed by the trial Court u/s 304/34, I.P.C. is liable to be set aside. 14. According to the prosecution, Appellant No. 1 Gajanana dealt a lathi blow on the head of the deceased. The evidence of P.W. 1 is that when his father (the deceased) was brought home he found an injury on his fore-head and evidently the said injury was due to the assault by Gajanana. The doctor (P.W.7) on his examination of the deceased found thus: One swelling injury of sixe 22' diametre above the fore head, on which there is a lacerated injury of sixe 1" x 2/8". P.W. 7 opined the said injury to be simple in nature and the said opinion can be safely relied on. The doctor (P.W.7) on his examination of the deceased found thus: One swelling injury of sixe 22' diametre above the fore head, on which there is a lacerated injury of sixe 1" x 2/8". P.W. 7 opined the said injury to be simple in nature and the said opinion can be safely relied on. So, from the evidence available, it is seen that what all the prosecution could prove against Appellant Gajanana is that he voluntarily caused hurt to the deceased and thereby render himself liable u/s 323, I.P.C. 15. It is the case of the prosecution that the other Appellant Rupa gave a blow with a crow-bar on the back of the deceased. The doctor (P.W.7) on examination of the deceased found thus: Swelling injury extending from the right back to the left back of the chest. He reserved his opinion regarding it pending X-Ray examination. The doctor (P.W. 12), who conducted the post- mortem examination of the deceased found on dissection as follows: (1) Fracture and anterior dislocation of the second cervical vertibra. (2) Dura around the spinal cord is congested. (3) A subdural haematoma (ante mortem clot) from T-1 spinal level extending up to medulla oblougata and pons. (4) The spina cord in brain stem was compressed by the subdural haematoma. He opined that the death of the deceased was due to the injury on the cervical vertebra which was found on dissection and his said opinion can be safely accepted as correct. So, on a consideration of the evidence P.Ws. 2, 3, 5 and 7, in the light of due evidence of the doctor P.W.12 it can be safely held that the deceased ultimately died on account of blow given by Appellant Rupa on his back with a crow-bar. The evidence of P.W.3 reveals that there was no quarrel between Rupa and the deceased on any day prior to the date of occurrence. There is nothing in the evidence to suggest that Appellant Rupa had, while assaulting the deceased intended to cause any injury which was likely to cause the death of deceased. But then, when he had assaulted deceased Sada Majhi, in manner he did, with a crow-bar, it may be safely held that he had the knowledge that such assault was likely to cause his death. Hence, I find that the offence u/s 304 Part-II, I.P.C. is brought home to him. 16. But then, when he had assaulted deceased Sada Majhi, in manner he did, with a crow-bar, it may be safely held that he had the knowledge that such assault was likely to cause his death. Hence, I find that the offence u/s 304 Part-II, I.P.C. is brought home to him. 16. In the result, the trial court's order convicting and sentencing the Appellants u/s 304/34, I.P.C. is hereby set aside. However, Appellant No. 1 is found guilty u/s 323, I.P.C. Appellant No. 2 Gajanana Naik is, therefore, convicted u/s 323, I.P.C. and sentenced there under to undergo R.I, for three months and accordingly the appeal preferred on his behalf is partly allowed. Appellant No. 2 is found guilty u/s 304 Part-II, I.P.C. Appellant No. 2 Rupa Naik is, therefore, convicted u/s 304 Part. II, I.P.C., and sentenced there under to undergo R.I. for three years and accordingly, with the said reduction in his sentence, from four years to three years of imprisonment, the appeal preferred on his behalf is dismissed. Final Result : Dismissed