V. GOPALASWAMY, J. ( 1 ) THE petitioner Mohan Tripathy has preferred Criminal Revision No. 649 of 1986 and the petitioners Banshidhar Tripathy and Pramod Chandra Tripathy have preferred Criminal Revision No. 650 of 1986 against the judgment of the learned First Additional Sessions Judge, Ganjam, dated 26-11-1986 in Criminal Appeal No. 61 of 1986 confirming the order passed by the trial Court convicting the said three petitioners under Section 324/34, I. P. C. and sentencing each of them thereunder to undergo rigorous imprisonment for six months. ( 2 ) THE gist of the prosecution case is that on the morning of 9-6-1979 at village Krupasindhupur (within Patapur P. S. in Ganjam district), as one Gopala Behera and Somanath Behera started cutting a Tarata tree at the instance of the petitioners, Banambar Tripathy, who claimed to be the owner of the tree objected to the cutting of the tree, when the petitioners Mohan Tripathy and Bansidhar Tripathy assaulted him with lathis and as his sons Raghaba and Ramachandra came to the rescue of their father, the petitioner's assaulted them also and during the course of such assault Ramachandra received a Kati blow at the hands of the petitioner Bansidhar and thereby all the petitioners rendered themselves liable under Section 324/34, I. P. C. ( 3 ) THE plea of the petitioners was one of denial. ( 4 ) THE prosecution has examined eight witnesses to prove its case. P. W. 1 is the informant and P. Ws. 2 and 5 are his sons. P. Ws. 3 and 6 were examined as independent witnesses to the occurrence. P. W. 4 is a seizure witness. P. W. 7 is the doctor who examined the injured persons. P. W. 8 is the Investigating Officer. ( 5 ) FROM Ext. A and the other evidence on record it is clear that accused Mohan Tripathy purchased the disputed Tarats tree in the auction held by the Tahsildar. The certified copy of the judgment and decree in Title Suit No. 31 of 1979 filed by the informant would show that the civil Court found that the encroachment proceedings initiated against the informant in respect of the disputed land is valid and legal and further that the Tahsildar was competent to auction the disputed Tarata tree, vide Ext. The certified copy of the judgment and decree in Title Suit No. 31 of 1979 filed by the informant would show that the civil Court found that the encroachment proceedings initiated against the informant in respect of the disputed land is valid and legal and further that the Tahsildar was competent to auction the disputed Tarata tree, vide Ext. B. So by the relevant date accused Mohan Tripathy claimed to be the owner of the disputed Tarata tree in view of his having purchased it in the auction. The other two accused persons are the nephews of accused Mohan Tripathy. Hence it is seen that on the relevant morning when accused Mohan Tripathy engaged labourers to cut the disputed tree he did so in bona fide exercise of his civil right. There is evidence to show that the other two accused persons who are nephews of accused Mohan were also with him at the relevant time. This back-ground has; to be kept in view while appreciating the evidence on record. ( 6 ) THE evidence of the informant shows that on the relevant morning as the disputed Tarata tree was being cut at the instance of accused Mohan Tripathy, he went to the spot and protested when accused Mohan assaulted him by means of a lathi and as he raised an alarm, his sons P. Ws. 2 and 5 arrived at the spot and they too were assaulted by the accused persons. The evidence of P. W. 2 shows that he was assaulted by the accused persons by lathis and by hand. The evidence of P. W. 2 Raghaba and P. W. 5 Ramachandra shows that as accused Bansidhar attempted a blow with a Kati on Raghaba, as Ramachandra intervened, the Kati blow fell on P. W. 5's hand causing a bleeding injury. P. Ws. 1, 2 and 5 are the best witnesses to speak about the assault on them. The evidence of the victim of assault is the best evidence regarding the nature of the assault on him. P. Ws. 1, 2 and 5 are the best witnesses to speak about the assault on them. The evidence of the victim of assault is the best evidence regarding the nature of the assault on him. When their evidence regarding the assault is accepted as true, what follows is, according to P. W. 1, he was assaulted by accused Mohan by means of a lathi and according to P. W. 2, he was assaulted by the accused persons by means of lathis and by hand and according to P. W. 5, the Kati blow given by Bansidhar fell on his hand as he tried to rescue his brother. ( 7 ) FROM the evidence of P. Ws. 1, 2 and 5 it is clear that all the accused persons were guilty of the offence under Section 323, I. P. C. for voluntarily causing hurt to P. Ws. 1 and 2 by means of lathis and by hand. Accused Bansidhar is guilty under Section 324, I. P. C. as well for voluntarily causing hurt to P. W. 5 by means of a kati. But then, both the Courts below have convicted all the accused persons under Section 324/34, I. P. C. and so it is obvious that accused Mohan Tripathy and Pramod Tripathy were also held vicariously liable for the offence committed by Bansidhar by invoking the provision under Section 34, I. P. C. On a perusal of the judgments of the Courts below it is seen that they have not properly discussed as to how accused Mohan Tripathy and Pramod Tripathy can be held vicariously liable for the offence committed by accused Bansidhar. Under Section 34 before the other two accused persons can be vicariously convicted for the criminal act of Bansidhar, the act must have been done in furtherance of the common intention of all of them. The inference of common intention should never be reached until it is a necessary inference deducible from the circumstances of the case. In the present case from the evidence it is seen that the sons of the informant, P. Ws. 2 and 5, went to the spot of occurrence 10 to 1 5 minutes after their father was at the spot and only after bearing the alarm raised by their father. In the present case from the evidence it is seen that the sons of the informant, P. Ws. 2 and 5, went to the spot of occurrence 10 to 1 5 minutes after their father was at the spot and only after bearing the alarm raised by their father. It is in the evidence of P. W. 2 that he was assaulted by the three accused persons by lathis and hand. There is nothing in the evidence to show as to wherefrom accused Bansidhar secured a Kati. When Mohan Tripathi assaulted the informant, there is nothing in the evidence to suggest that the accused persons had anticipated the arrival of P. W. 5 also at the spot. From the evidence of P. W. 5 in chief-examination it is seen that he received the Kati blow given by accused Bansidhar and he does not state anything about the other accused persons assaulting him. Even according to P. W. 5 accused Bansidhar did not intentionally give the Kati blow on his hand, but as he attempted to give a blow to Raghab and as he (P. W. 5) intervened, be received the Kati blow. It is well settled that common intention presupposes prior concert. But considering the circumstances under which P. W. 5 Ramachandra received the Kati blow, it cannot be said that there was pre-concert or a meeting of the minds between accused Bansidhar and the other two accused persons regarding the assault P. W. 5. So the other two accused persons cannot be vicariously held liable for the acts of accused Bansidhar. So the prosecution has failed to prove the charge under S. 324/341. P. C. against accused Mohan Tripathy and Pramod Tripathy and they are entitled to an acquittal thereunder. How ever accused Bansidhar Tripathy is found guilty under Section 321, I. P. C. So far as the other two accused persons are concerned, they are found guilty under Section 323, I. P. C. ( 8 ) THE learned counsel for the petitioners submitted that all the three accused persons should be released on probation under Section 350, Cr. P. C. Both the courts below, on a consideration of the facts and circumstances of the case, found that none of the accused persons was entitled to be released on probation and I see no reason to differ with the said finding on the courts below. P. C. Both the courts below, on a consideration of the facts and circumstances of the case, found that none of the accused persons was entitled to be released on probation and I see no reason to differ with the said finding on the courts below. However, accused Mohan Tripathy and Pramod Tripathy are acquitted of the charge under Section 324/ 34, I. P. C. and are presently convicted only under Section 323, I. P. C. Considering the facts and circumstances of the case, sentencing each of the said two accused persons to pay a fine of Rs. 1,000/- for the offence under Section 323, I. P. C. would sufficiently meet the ends of justice. So far as accused Bansidhar Tripathy is concerned, I find that the sentence of six months' rigorous imprisonment imposed on him under Section 324, I. P. C. is justified and so the orders of conviction and sentence passed against him under Section 324, I. P. C. are hereby confirmed. ( 9 ) IN the result, the orders of conviction and sentence passed by the Courts below under Section 324 /34, I. P. C. against accused Mohan Tripathy and Pramod Chandra Tripathy are hereby set aside. However, the said two accused persons are hereby convicted under Section 323, I. P. C. and each of them is sentenced thereunder to pay a fine of Rs. 1,000/- (rupees one thousand), in default to undergo simple imprisonment for a period of three months. It was submitted at the Bar that the informant died in the meantime. Out of the fine amount of Rs. 2,000/-, if realised, a sum, of Rs. 1,500/- should be equally distributed between the two injured persons Raghab (P. W. 2) and Ramachandra (P. W. 5) (the two sons of the informant), so that each of them would be getting Rs. 750/ -. Accordingly the revision preferred on their behalf is allowed to the extent indicated above. But so far as the revision preferred on behalf of petitioner Bansidhar Tripathy is concerned, the same is found to be devoid of merit and therefore, dismissed. Order accordingly.