Judgment J.N. Bore, J. 1. APPELLANTS Desh Soren and Sagar Soren were convicted under Section 302/ 34, Indian Penal Code for committing murder of their uncle Dandu Soren in furtherance of the common intention of them both and sentenced to suffer imprisonment for life each and also to pay fine of Rs. 2,000/- each, in default, rigorous imprisonment for another year by the learned Sessions Judge, Malda in the Sessions Trial No. 19 of 1988/Sessions Case No. 118 of 1987. The appellants set to assail the said order of conviction and sentence. 2. THE prosecution case may briefly be stated as under: Desh Soren and Sagar Soren are residents of Goaljoi village within P.S. Bamangola. Their uncle Dandu Soren, since deceased, also lived in the same village. On 8.12.1986 between 7.30 and 8.00 a.m. Desh Sorer and Sagar Soren were cutting a Mahua tree situated on the land of Dandu Soren. When Dandu Soren protested there was quarrel between them and in course of the quarrel. Desh Soren caught hold of Dandu Soren and Sagar Soren struck him with an axe on his head. As a result Dendu Soren fell down on the ground with severe head injury. Thereafter, the victim was taken to the hospital and he succumbed to the injury on the following day, PW 1 Tarapar Murmu lodged a written First Information Report at Bamangola P.S. on 9.12.1986 at 3.30 P.M. on the basis of which police started a case under Section 302/34, Indian Penal Code against Desh Soren and Sagar Soren. PW 14 S.I. Indu Bhusan Talukdar took up investigation in the case and after completion of investigation he submitted charge-sheet against Desh Soren and Sagar Soren under Section 304/34, Indian Penal Code which in usual course ended in committal of the case of the Court of - Sessions. THE defence was denial simpliciter. In order to bring home the charge to the accused the prosecution examined 14 witnesses while the defence examined none. 3. THAT Dandu Soren died a homicidal death is not disputed before us and is amply proved by the medical evidence. P.W. 11 Dr. Debaprosad Chatterjee who held post-mortem examination on the body of the deceased found the following injuries: (i) One lacerated wound 2-1/2 x 1-1/2 xl on left forehead involving the cranium; (ii) Hacmatoma on the left side face; (iii) fracture skull frontal and occipital on the left side. P.W. 11 Dr. Debaprosad Chatterjee who held post-mortem examination on the body of the deceased found the following injuries: (i) One lacerated wound 2-1/2 x 1-1/2 xl on left forehead involving the cranium; (ii) Hacmatoma on the left side face; (iii) fracture skull frontal and occipital on the left side. According to the doctor these threeinjuries could be caused by one stroke only by an axe (Mat. Ext. 1). According to the doctor death was due to the said injuries which were ante mortem and homicidal in nature. There is, therefore, no doubt that death of Dandu Soreo was homicidal. 4. THE crucial question\is whether the appellants or any of them were responsible for the death of the deceased and whether the order of conviction as recorded by the court below can be sustained. There are six alleged eye witnesses to the occurrence P.W. 2 Nobin Tudu, P.W. 3 Lakshan Hansda, P.W. 4 Suresh Hansda, son-in-law of the deceased, P. W. 5 Malo Soren, daughter of the deceased, P.W. 6 Jogesh Soren, son of the deceased and P.W. 7 Chunda Murmu. Of them P.W. 7 appears to be really a post occurrence witness. He was working in his land in another Mouza at a considerable distance and on hearing the row he came to the place of occurrence and found Dandu Soren lying on the land. He did not see the accused persons. P.W s. 5 and 6 do not also appear to have witnessed the incident of assault It appears from the cross-examination of P.W. 6 that he was working in a field at a distance of 4 to 5 minutes walk from the place of occurrence and on hearing a row he came to the place of occurrence. He has specifically stated that the occurrence took place prior to his arrival there. P.W. 5 arrived at the place of occurrence even later. She also, therefore, did not see the actual assault. There is, however, no infirmity in the ocular testimony of P.Ws. 2, 3 and 4 who have deposed in one voice that Sagar Soren and Desh Soren were cutting a Mahua tree situated on the land of Dandu Soren and when Dandu Soren protested there was quarrel in course of which Desh Soren was holding Dandu Soren and Sagar Soren struck Dandu Soren with an axe on the head causing serious injury. Dandu Soren fell down on the ground and Sagar and Desh Soren fled away. The injured was taken to the hospital where he died on the following day. All these witnesses were working in the land, very near the place of occurrence. Nothing transpires from their cross-examination, which may impeach their credibility. Mr. Bose, learned Advocate appearing on behalf of the appellants could not also point out any serious infirmity in the testimony of these witnesses. We have, therefore, no hesitation in accepting these witnesses as true and reliable and holding that appellant Sagar Soren caused the death of the deceased with a blow of an axe on the head of the deceased. 5. THE next question for our consideration is what offence was committed by Sagar Soren. There was no premeditation and the incident of assault took place suddenly in course of a quarrel. There was altercation and quarrel between the deceased and the accused and in course of the quarrel in the heat of the moment accused Sagar Soren struck a single blow with an axe on the head of the deceased, which ultimately proved fatal. According to the medical evidence the injury was a lacerated injury which suggests that the blunt side of the axe was used. In these circumstances intention to kill cannot be attributed to accused Sagar Soren. Clause Thirdly of Section 300 cannot also be invoked inasmuch as there is no medical evidence that the injury was sufficient in the ordinary course of nature to cause death. Moreover, in the circumstances of the case it cannot be inferred with any amount of assurance that the injury was intentional i.e. that very injury which was found on the spur of the moment Sagar Soren wielded the axe and the blunt side of the axe landed on the head of the deceased causing a fatal injury. In the circumstances the legitimate inference that can be drawn is that Sagar Soren dealt the blow with knowledge that it was likely to cause an injury, which was likely to cause death. THE offence is, therefore, punishable sunder Section 304, Part II of the Indian Penal Code. In the circumstances the legitimate inference that can be drawn is that Sagar Soren dealt the blow with knowledge that it was likely to cause an injury, which was likely to cause death. THE offence is, therefore, punishable sunder Section 304, Part II of the Indian Penal Code. In support of our conclusion we may refer to the decisions of the Supreme Court in Kulwant Rai v. State of Punjab, Hariram v. State of Haryana, Jagtar Singh v. State of Punjab, Tholan v. State of Tamil Nadu and State of Orissa v. Bhagwan Bank. where facts were more or less the similar as in the instant case. In Ku/want Rat s case (supra), the offence was committed without premeditation. There was an altercation and only one blow was given with a dagger and the blow landed in the epigastria area. It was something like hit and run. In the circumstances, the Supreme Court held that the accused had no intention to commit the murder of the deceased and that part 3 of Section 300 could not be attracted because it could not be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. THE accused inflicted an injury, which he knew to be likely to cause death and the case would accordingly fall under section 304, Part II of the Penal Code. In Harirams case (supra) in the heat of altercation between the deceased on the one hand and the accused on the other, the accused seized a jelli and thrust it into the chest of the deceased and it was preceded by his remark that the deceased must be beaten to make him behave and only one blow was struck by the deceased. THE Supreme Court held that the facts made out an offence under the second part of the offence under Section 304 of the Indian Penal Code. In Jagtar Singh's case (supra) there was sudden quarrel on the spur of the moment arising out of a trivial reason on chance meeting of parties and the accused caused a single blow by knife on chest causing his death. THE Supreme Court held that in these circumstances the intention to cause death or causing that particular injury could not be imputed to the accused. THE Supreme Court held that in these circumstances the intention to cause death or causing that particular injury could not be imputed to the accused. That he was likely to cause injury which was likely to cause death, could, however, be inferred and the offence fell under Section 304, Part II and not under Part I or III of Section 300. In Tholans case (supra) the accused started remonstrations using filthy language against certain organizers of Chit Fund who had no connection with the deceased, in front of the house of the deceased and the deceased came out of his house and asked the accused to go away. THE accused on the spur of the moment gave only one blow with knife to the deceased and pushed him to some distance. THE Supreme Court held that in such situation though the accused could not be convicted under Section 302, he would be guilty and convicted of an offence under Section 304, Part II of the Indian Penal Code. In Bhagwan Banks case (supra) the accused stealthily followed the deceased and took the opportunity to settle score by dealing him with a lathi with great force on a vulnerable part of the body like the head which resulted in his death. There was a single blow. Though the incident was not a sequel to a sudden quarrel still the Supreme Court held that it could not be said from the circumstances that the accused had intention to kill the deceased and he must in the circumstances be attribute with knowledge when he struck the deceased on the head with a lathi that it was likely to cause his death. THE accused was, therefore, guilty of culpable homicide not amounting to murder under Section 304, Part II of the Indian Penal Code. Reference may also be made to a Bench decision of this Court in Anil Ruidas v. State of West Benga. In that case the accused gave a single blow with knife in the abdomen of the deceased in course of altercation on the spur of the moment. It was held that the accused committed an offence of culpable homicide not amounting to murder punishable under Section 304, Part II of the Indian Penal Code. 6. IN the instant case the accused came to the place of occurrence and started cutting a Mahua tree with an axe. It was held that the accused committed an offence of culpable homicide not amounting to murder punishable under Section 304, Part II of the Indian Penal Code. 6. IN the instant case the accused came to the place of occurrence and started cutting a Mahua tree with an axe. The deceased protested and as a result there was a quarrel and altercation for some time in course of which in the heat of the moment accused Sagar Soren struck a single blow with the blunt side of the axe on the head of the deceased. The offence committed by him is culpable homicide not amounting to murder punishable under Section 304, Part II of the Indian Penal Code. His conviction under Section 302/34, Indian Penal Code cannot, therefore, be sustained. Appellant Desh Soren cannot be convicted with the aid of Section 34, Indian Penal Code. The Privy Council in Makbul Singh's case7 and the Supreme Court in Pandu Rang Ts case 8 had given a caution that the inference of the common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. To convict the accused of an offence applying Section 34 it should be proved that the criminal act was done in concert pursuant to a prearranged plan. There must be prior meeting of the minds. There must be a pre-arranged plan however hastily formed or rudely conceived. But pre-arranged plan there must be and premeditated concert. It is not enough to have the same intention independently of each other. The only evidence against the accused Desh Soran is that he was holding the deceased. The evidence discloses that prior to the fatal blow there: was some altercation and scuffle and it is quite probable that Desh Soren was holding the deceased during the altercation and souffl independently of the act of Sagar Soren. Moreover, as already seen, Sagar Soren wielded the axe on the spur of the moment in the heat of excitement in course of altercation and he had neither the intention to kill nor intention to cause that very injury which was found on the body of the deceased. There is, therefore, no question of sharing of common intention by Desh Soren to cause homicide. The conviction of Desh Soren cannot, therefore, be sustained. There is, therefore, no question of sharing of common intention by Desh Soren to cause homicide. The conviction of Desh Soren cannot, therefore, be sustained. There is no difficulty in convicting Sagar Soren under Section 304, Part II simpliciter inasmuch as there is specific evidence that the only blow with axe which proved fatal was dealt by him. 7. IN the result, the appeal is allowed in part. The conviction and sentence of appellant Sagar Soren under Section 302/34, Indian Penal Code is set aside. He is, instead, convicted under Section 304, Part II of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 7 years. The conviction and sentence of Desh Soren is set aside and he is found not guilty of the charge. He be set at liberty forthwith. S.P. Rajkhowa, J. I agree. Appeal allowed in part.