A. PASAYAT, J. ( 1 ) PETITIONERS assail conviction and sentence awarded by learned Asst. Sessions Judge, Sonepur, and confirmed in appeal by learned Sessions Judge, Bolangir. ( 2 ) BACKGROUND facts as presented by prosecution, are that on 28. 8. 1986 Magiram Sahu (P. W. 5) found petitioner Dhoba cutting the ridge of his field, and diverting water to his field. On his raising protest the said accused Dhoba slapped him. On returning from field, Magiram went to village Bhimatikra, informed the incident to his uncle Shiba Sahu (since deceased) and cousin Shyama (P. W. 1) and thereafter, the three of them came to village Meghala which is village of petitioners, to make grievance about the incident. The petitioners surrounded them, and petitioner Babaji caught hold of the legs of Shyama (P. W. 1), petitioner Bhubana forcibly caught hold of both his hands and made him lie down on the ground. Thereafter petitioner Dhoba sat on his chest, and at this time Krushna cut his right ear by a knife. As a result, the ear was severed from the body. Petitioners also assaulted Shiba, and Magiram. FJ. R. was lodged, injured persons were examined by Medical Officer, Binka P. H. C. , investigation was taken up and on completion thereof charge-sheet was submitted indicating allegation of commission of offences under sections 307/342/323 read with 34 of the Indian Penal Code, 1860 (in short the IPC ). Petitioners took plea of false implication due to previous animosity. ( 3 ) SIX witnesses were examined to further case of prosecution. Trial court disbelieved assault on Magiram and Shiba. It also found that injury due to cutting of Shyamas ear did not attract section 307, IPC. It however, held that petitioners were guilty of offence under section 326/34, IPC and sentenced each one of them to rigorous imprisonment for two years. In appeal, conviction and sentence were maintained. ( 4 ) IT is relevant here that trial court accepted evidence of two eye witnesses namely, P. Ws. 2 and 3 and evidence of injured persons, P. Ws. 1 and 5, and evidence of Doctor, P. W. 4. Section 34 was applied by it, because according to it, accused persons Babaji, Bhuyan and Dhoba held Shyama. when accused Krushna cut his ear. ( 5 ) IT is the stand of the petitioners in this revision application that the eye witnesses P. Ws. 1 and 5, and evidence of Doctor, P. W. 4. Section 34 was applied by it, because according to it, accused persons Babaji, Bhuyan and Dhoba held Shyama. when accused Krushna cut his ear. ( 5 ) IT is the stand of the petitioners in this revision application that the eye witnesses P. Ws. 2 and 3 did not state as to which of the accused persons cut the ear of Shyama. On the other hand, they have stated, in the quarrel that ensued due to altercation of words, ear was cut. Evidence of P. Ws. 1 and 5 cannot be relied upon, because they were highly interested for prosecution. Severed ear having not been produced, medical evidence cannot be relied upon. Trial court having disbelieved assault on Magiram and Shyama, should not have upheld conviction for cutting of ear of Shyama on the said evidence. Section 34 has no application, because there was no material to show common intention. Learned counsel for State however, submits that on appreciation of evidence courts below have come to the right conclusion about guilt of petitioners. ( 6 ) ON consideration of evidence, it is clearly established that each of the petitioners had played role as ascribed to them by prosecution. Evidence does not suffer from lack of credibility, and is not deficient to establish guilt of petitioners, who except making a bald assertion about discrepancy in the evidence, have not highlighted anything specific. Therefore, conclusions of courts below about roles played by each of the petitioners cannot be faulted. ( 7 ) COMING to question whether conviction under section 326/34, IPC can be maintained, it is to be seen how far prosecution has established a common intention which is a sine qua non for application of section 34, Section 34 embodies principles of joint liability in doing of a criminal act, essence of which is existence of a common intention. Participation in the commission of offence in furtherance of common intention invites its application. Though the section does not create distinct offence, it only lays down principles of constructive liability. Two ingredients are to be established before such liability can be fastened. They are, (1) common intention to commit an offence, and (2) participation by all accused persons in doing act or acts in furtherance of common intention. Though the section does not create distinct offence, it only lays down principles of constructive liability. Two ingredients are to be established before such liability can be fastened. They are, (1) common intention to commit an offence, and (2) participation by all accused persons in doing act or acts in furtherance of common intention. The section does not create a substantive offence, but is merely a rule of evidence. It is nothing but an explanatory provision and embodies in the Penal Code, the common sense. Principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. To invoke the aid of this section successfully, it has to be shown that the act complained of was done by one of the accused persons in furtherance of common intention of all. To attract culpability, there must be participation in action with common intention, though different accused might have played different parts. A meeting of minds to commit offence and participation in the commission of offence in furtherance of that common intention our acts application of this section. Question was whether a common intention and the act complained of was done in furtherance of common intention is a question of fact dependant on the circumstances of each case. ( 8 ) FROM the evidence of P. Ws. 2 and 3 who are acceptably independent witnesses, it is clear that there ensued sudden quarrel between parties. Existence of common intention is not established by the evidence on record. That being the position, it would be unsafe to convict petitioners under section 326/34, IPC. Evidence clearly established that petitioner Krushna had cut the right ear of Shyama with a knife. His conviction is altered to one under section 326. IPC. So far as other petitioners are concerned though as observed above there is nothing to show that they shared common intention to cut the ear of Shyama. Yet, the acts complained against them and established by evidence on record, clearly warrants conclusion of offence under section 323, IPC. Their convictions under section 326/34, IPC are set aside and are modified to be under section 323, IPC. ( 9 ) THE residual question is sentence. Yet, the acts complained against them and established by evidence on record, clearly warrants conclusion of offence under section 323, IPC. Their convictions under section 326/34, IPC are set aside and are modified to be under section 323, IPC. ( 9 ) THE residual question is sentence. Considering the background in which the incident took place, I feel interest of justice would be best served if the custodial sentence is restricted to the period already undergone. but a fine of Rs. 600/- is imposed in respect of petitioner Krushna, and Rs. 300/- each in respect of petitioners Babaji, Bhuban and Dhoba. In case fine amount is not paid the default sentence shall be three months in respect of Krushna and six weeks in respect of each of the others. Fifty per cent of the fine amount if any, realised shall be paid to injured Shyama Kumar Sahu. The Revision application is accordingly disposed of. Revision disposed of accordingly.