N. S. Singh, J. — The accused-appellants namely (1) Shri Jitendra Chandra Shib, (2) Shri Indra Mohan Shib, (3) Shri Nilmohan Shib, (4) Gopal Chandra Shib, (5) Shri Chitta Ranjan Shib, (.6) Shri Narayan Chandra Shib, (7) Shri Biswamber Bhowmik, (8) Shri Bhuban Chandra Shib, (9) Shri Prafulla Shib, (10) Shri Sachindra Chandra Shib and (11) Shri Manindra Chandra Shib have filed this appeal against the judgment and order dated 20th July, 1983 passed by the learned Sessions Judge, South-Tripura, Udaipur in Session Trial No. 13 (ST/ . U) of 1982 convicting the accused-appellant Nos. 1 and 2, Shri Jitendra Chandra Shib and Shri Indra Mohan Shib under section 302 read with section 34IPC and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each, in default of which they have to undergo rigorous imprisonment for a period of six months; convicting all the appellants under section 148 and 323 read with section 149 IPC and sentencing them to undergo rigorous imprisonment for a period of 2 years for the offence under section 148 IPC excepting accused-appellant Nos.3 and 8 who have been sentenced to undergo rigorous imprisonment for a period of one month; and sentencing all the accused-appellants for a rigorous imprisonment for a period of six months for the offence under section 323 and 149 IPC, except the accused-appellant Nos.3 and 8 who have been sentenced to undergo for one months rigorous imprisonment for the said offences. 2. The prosecution case is as follows : About 13/14 years back from the date of occurrence, the informant Shri Dhirendra Chandra Das and his family members came from Bangladesh to Maharani in India and since then they have been residing in the house of the informant's grand father. They have no landed property and as such their source of earning for their livelihood was by doing cultivation over the land of others and selling fishes. His grand father Banamali came to Maharani, a place within the South Tripura District, after exchanging his properties with Muslim of those days. Banamali got possession without exchanging of land excepting thirteen gandas of land which could not be traced out for long time. These thirteen gandas of land was previously possessed by Manmohan Siva. During the survey operation, this thirteen gandas of land could. be traced out. Banamali got possession without exchanging of land excepting thirteen gandas of land which could not be traced out for long time. These thirteen gandas of land was previously possessed by Manmohan Siva. During the survey operation, this thirteen gandas of land could. be traced out. The informant and their family members came to know that these thirteen gandas of land belonged to his grand father Banamali. Then the Settlement Officer prepared the relevant papers such as parcha, revenue of tax for the land etc. in the name of Banamali Das, Jamini Das and late Harimohan Das On 18.9.1979 the informant and his family members transplanted seedling on a portion of the said land and they had been continuing such transplantation of seedling on the said land. On 20.9.1979 informant's father Shri Harendra Das went to said land to transplant seedling thereon in the very early morning. On that day at about 6 AM Monmohan Shib (now deceased), Gopal Shib, Nilmohan Shib, Jitendra Shib, Manindra Chandra Shib, Indra Mohan Shib and Chitta Ranjan Shib, Prafulla Chandra Shib, Narayan Chandra Shib, Sachindra Shib and Bhuban Chandra Shib, (the present appellants-accuseds) along with 3/4 others went to the place where Harendra Das was transplanting seedlings with Ballams and pointed bamboos. The accused persons had with them two pair bullocks, yolk and plougth. They told Shri Harendra Das to leave the said paddy field. In reply, Harendra Das told them that a case has been filed by them regarding the dispute over the said land; and they would get the land in case they win in the case. In spite of this, the accused persons had been threatening the informant's father to leave the said land. At the relevant time Shri Jamini Das also arrived there. Shri Jamini Das requested both the sides not to quarrel. But Indra Mohan Siva dealt a blow on the head of Jamini with a Ballam. The other accused persons also began to assault Jamini simultaneously and Jamini fell down on the ground. The father of the informant, Harendra Das rushed to save Jamini Das. At that point of time the accused Jitendra Shib gave a piercing blow on the chest of Harendra Das by a Ballam. Almost at the same time or simultaneously the other accused persons began to assault the informant's father Harendra Das and the maternal grand father Jamini indiscriminately. The father of the informant, Harendra Das rushed to save Jamini Das. At that point of time the accused Jitendra Shib gave a piercing blow on the chest of Harendra Das by a Ballam. Almost at the same time or simultaneously the other accused persons began to assault the informant's father Harendra Das and the maternal grand father Jamini indiscriminately. When Shri Harendra Das tried to go awayirom the place and turned back in order to run, the accused Jitendra Shib again gave ' piercing blow on the head of Harendra Das with the Ballam and thereafter Harendra Das fell down and then and there Harendra Das expired. Informant, Shri Dhirendra Chandra Das went to the place of occurrence at the time of occurrence in order to save his father and grand father, Jamini and while doing so he was also assaulted by the accused persons causing injuries upon him. His aunties namely Minatibala, Sandhyabala and Laxmibala, the daughters of Jamini also came at the place of occurrence in order to save their father Jamini and they laid themselves over the person of Jamini in order to save him. The accused persons also assaulted them and as a result of which they also sustained bleeding injuries. When the villagers began to come to the place of occurrence then accused persons fled away by leaving behind their bullocks, plough and yolks. Shri Jamini has been taken to hospital at Maharani with severe injuries. Informant Shri Dhirendra Chandra Das lodged ejahar on 20.9.1979 which has been marked as Ext.Pl. The Investigating Officer, Shri Mahendra Kishore (PW 22) took up the investigation of the case. He prepared inquest report of the dead body of the deceased Harendra Das. He visited the place of occurrence, prepared hand sketch map with index and also seized some blood stained earth and grass by preparing a seizure list. He also recorded statement of some witnesses and seized some pointed bamboos from near the place of occurrence. A case being No. 13 (9)/ 1979 RK Pur PS under section 148/149/325/326/302 IPC has been registered against as many as 12 accused persons. He could not complete investigation on 20.9.80 when he handed over the case diary to his successor on transfer. The investigation was finally completed by Shri Gopal Krishna Nath, the Investigating Officer, who was examined as PW 23 in the trial Court. He could not complete investigation on 20.9.80 when he handed over the case diary to his successor on transfer. The investigation was finally completed by Shri Gopal Krishna Nath, the Investigating Officer, who was examined as PW 23 in the trial Court. On completion of the investigation, the Investigating Officer laid charge-sheets against 12 accused persons including the present accused appellants, of them Monmohan Shib died later. 3. The learned Sessions Judge framed charges under section 302 read with section 34IPC and other sections namely 148,149,323 and 326IPC, against all accused persons. The accused-appellants pleaded not guilty. The prosecution examined 23 witnesses. Accused-appellants when questioned by the learned Sessions Judge denied the truth of the prosecution evidence. After hearing the parites, the learned Sessions Judge held that the accused persons are liable for offences committed by them and convicted and sentenced them for those offences as stated in first paragraph of this judgment. PW17, Dr. PR Choudhury held post mortem examination on the dead body of deceased Harendra Das and he found stab wounds and incised injuries on the . dead body, and he deposed that the death was due to shock and haemorrhage due to the said injuries which is homicidal in nature. 4. There are many eye witnesses who adduced evidences in support of the prosecution case. 5. The evidence of PW 1 and the evidence of other important PWs can be summarised as follows: On the date of the occurrence at about 6.00 AM his father went to their land to transplant paddy seedlings. At that time, he found from his house, accuseds Jitendra Chandra Shib, Narayan Chandra Shib, Monmohan Shib, Gopal Shib, Chitta Ranjan Shib, Nilmohan Shib, Manindra Shib, Indra Mohan Shib, Prafulla Shib Sachindra Shib, Bhuban Shib, Biswambar Shib, proceeding towards the land where his father was transplanting seedling. The accuseds had Ballam, lathi, pointed bamboo, two pairs of bullock, yolk and plough with them at the relevant time. It was visible by him the land where his father was transplanting seedling. On seeing them, he and his grand father Jamini Das also proceeded towards the land where his father was transplanting seedling. At the spot accused Jitendra Shib told his father to vacate the land. His father replied that he (Jitendra Shib) instituted a case. If Jitendra Shib win the case, he will get the land. On seeing them, he and his grand father Jamini Das also proceeded towards the land where his father was transplanting seedling. At the spot accused Jitendra Shib told his father to vacate the land. His father replied that he (Jitendra Shib) instituted a case. If Jitendra Shib win the case, he will get the land. In the meantime Jamini Das requested accused persons with folded hands not to make 'golmal' or quarrel there. The accused persons did not hear to what his father and grand father said. The accused appellant Indra Mohan Shib struck on the head of his grand father Jamini with Ballam and as a result of which Jamini stustained slight bleeding injury and sat down on the 'ail' of the land. On seeing it, his father Harendra Das ran to save Jamini. But the accused appellant Jitendra Shib gave piercing strike by a Ballam on the chest of Harendra Das and immediately thereafter, the accused appellant Indra Mohan Shib also struck a piercing blow on the chest of Harendra Das with Ballam and as a result of which Harendra Das sustained injuries. Thereafter accused-appellant Manindra Shib began to assault his father with lathi when Harendra Das tried to go away from the place. Accused-appellant Jitendra Shib again struck piercing blow on his head with a Ballam. His father Harendra Das ran for a short distance and after reaching the land of Abhoy, he fell down and collapsed. Thereafter, accused persons, appellants namely Chitta Ranjan Shib, Nilmohan Shib, Narayan Chandra Shib, Bhutan Shib, Biswambar Shib, Sachindra Shib and Monmohan Shib began ' to assault his grand father with lathi and the blunt side of the pointed bamboo. Alarm raised by him attracted his aunts namely Sandhya, Minati and Laxmi who then came to the place of occurrence. While his said aunts were trying to save his grand father, they sustained injuries as a result of strike by lathi and bamboo by the accuseds. Thereafter, all the accused persons ran away from the place of occurrence. One Dilip Paul and Monoranjan Das and 4/5 other persons came at the place of occurrence, and they took his father, grand father, all of them to Maharani Hospital and admitted there for treatment. At about noon he found Darogababu in the hospital and he narrated about the occurrence to him. One Dilip Paul and Monoranjan Das and 4/5 other persons came at the place of occurrence, and they took his father, grand father, all of them to Maharani Hospital and admitted there for treatment. At about noon he found Darogababu in the hospital and he narrated about the occurrence to him. Darogababu recorded his ejahar and after writing the same it read over to him and thereafter, he signed. 6. PW 2 Shri Nityananda Das is one of the eye witnesses who found accused appellant No.4 Gopal Shib striking Jamini with lathi and all the accused persons assaulting Harendra Das with lathi as per his statement. He also saw accused appellant No. 1 Jitendra Chandra Shib giving a piercing blow with a Ballam on the chest of Harendra. He also saw the injuries sustained by the said daughters of Jamini at the time of occurrence. 7. PWs 3,4,6,7 and 13 who saw the attack and assault made by the accused persons to Harendra Das with the help of Ballam and lathis. This are the witnesses who know about the factum of the death of Harendra Das because of the said assault of the accused persons. PWs 3, 6, 7 and 13 are also the victims who sustained injuries because of the assault of the accused appellants at the time of the occurrence as per their statement made in the trial Court. PWs 3,6,7 and 13 deposed that the accused appellant No.2 Indra Mohan Shib struck on the head of Harendra Das with a Ballam by its blunt side. On seeing it, Harendra ran to his rescue, but the accused appellant No. 1 Jitendra Chandra Shib struck Harendra on his chest by a Ballam and it was piercing blow. Simultaneously the accused appellant Indra Mohan Shib also gave a piercing blow on the chest of Harendra Das by a Ballam. After the strike Harendra ran for a short distance and fell down on the land of Abhoy where he died. Thereafter all the accused persons began to assault Jamini with lathi and bamboo and seeing it, Sandhya, Laxmi and Minati Bala (PWs 7,6 and 3) fell over their father Jamini in order to save him. Then the accused persons began to assault them indiscriminately and as a result of which they sustained injuries. All the injured were taken to hospital where they have been treated medically. 8. Then the accused persons began to assault them indiscriminately and as a result of which they sustained injuries. All the injured were taken to hospital where they have been treated medically. 8. PW 5 Shri Brajendra Das only adduced that he saw Jamini to raise crop on the land where the occurrence took place. 9. PW 8 Shri Sunil Debbarma is a police constable who escorted the dead body of Harendra Das to the morgue at Udaipur Hospital. 10. PW 9 Smti Mallika Sarkar has deposed that on the day of the occurrence at about 6.30 AM, she found accused Nil Mohan Shib and his son Indra Mohan Shib running towards South. Nilmohan Shib had a lathi in his hand and Indra Mohan Shib had a 'Bhar' in his hand, when asked, they replied that they had killed two persons. Subsequently, at about 10/10.30 AM she learnt that Harendra Das had been killed and the condition of Jamini was also very much critical. 11. PW10 Md. AH Asgar deposed that he found accused Jitendra Shib, Narayan Shib, Manindra Shib, Prafulla Shib proceeding towards South by the bank of his tank. He found pointed bamboo in the hand of Narayan Shib and Manindra Shib. He also found blood on the face of Jitendra Shib likewise. PW 11 Shri Hari Charan Mallik deposed that while he was proceeding towards the place of occurrence he found injured being taken to the hospital and the dead body of Harendra being carried to the hospital. 12. PW 12 Shri Dilip Paul also adduced his evidence that on the date of the occurrence he found Chitta Ranjan Shib (accused-appellant No.5) going towards his house in a running condition by the bank of his tank. And after proceeding a little distance he also found Monmohan Shib (accused, now deceased) going : towards his .house in the funning condition. Monmohan Shib (now deceased) had a lathi in his hand and Chitta Ranjan Shib had a 'Bhar' in his hand. 13. PW 14 Smti Kalpana Chakraborty also deposed that at the relevant time, she herself, Malika Sarkar and others numbering about 8/10 found the accused appellant No.2 Indra Mohan Shib and his father Nilmohan Shib running towards South by the side of 'Lai Cherra'. Nilmohan had a pointed bamboo and Indramohan had a 'Bhar' in hand. 13. PW 14 Smti Kalpana Chakraborty also deposed that at the relevant time, she herself, Malika Sarkar and others numbering about 8/10 found the accused appellant No.2 Indra Mohan Shib and his father Nilmohan Shib running towards South by the side of 'Lai Cherra'. Nilmohan had a pointed bamboo and Indramohan had a 'Bhar' in hand. When they enquired to men as to what had happened they replied that they had killed two persons. Subsequently, she found the dead body of Harendra Das at Maharani Hospital. 14. PW15 Shri Ramesh Chandra Das also deposed that he found accused-appellants Narayan Chandra Shib, Manindra Shib, Jitendra Chandra Shib and Prafulla Shib going towards South very hurriedly and she also saw blood stain on the body of Jitendra. She further stated that Jamini and his brother got jote land under Dag No.312 by way of exchange. 15. PW16 Shri Harish Chandra Das is also one of the eye witnesses who saw accused-appellants Jitendra Shib, Narayan Shib, Man Mohan Shib, Chitta Ranjan Shib, Gopal Shib, Indra Shib, Manindra Shib, Nil Mohan Shib, Prafulla Shib, Bhuban Shib and Biswambar Shib assaulting Jamini. During the cross examination! he made a statement that he requested the accused persons with folding hands to stop assaulting Jamini and he also raised alarm. He also stated Harendra Das came running towards northern plot of the disputed land and fell there. 16. PW 18 Shri Hemanta Kumar Bhowmik is a seizure witness in respect of recovery and seizure of one 'Chal' one 'Bhar' and 3/4 pointed bamboos from the pond of Nihnohan Shib. 17. PW 19 Shri Jagdish Karmakar is tendered from the side of the prosecution. 18. PW 20 Dr. Shankar Prasad Majumder is a witness who adduced evidence relating to the examination of injuries sustained by Dhirendra Chandra Das, Sandhya Rani Das, Laxmi Rani Das, Minati Bala Das, Jamini Das. The said injuries report were exhibited as Ext.P9 to 14. 19. PW 21 Shri Monobancha Das also adduced that he found Harendra Das lying dead on the plot of land situated at a distance of about 5 gandas to the North of the land where he was transplanting seedling. He also found injuries on the persons of Jamini and three daughters. 20. 19. PW 21 Shri Monobancha Das also adduced that he found Harendra Das lying dead on the plot of land situated at a distance of about 5 gandas to the North of the land where he was transplanting seedling. He also found injuries on the persons of Jamini and three daughters. 20. PW 22 Shri Mahendra Kishore Paul is the Police Inspector, CID and posted at Udaipur and the Investigating Officer of the case who recorded ejahar of Dhirendra Chandra Das and also who prepared the inquest report of the deceased Harendra Das in hospital in present of the witnesses. He also recorded statement under section 161 CrPC in respect of Laxmi Bala Das, Sandhya Bala Das, Subhasini Das, Monobancha Das, Md. Ali Asgar. He also examined and recorded the statement of Kalpana Chakraborty and the Mallika Sarkar and also Jamini Das. On 28.1.80 he collected PM report of deceased Harendra Das and on 20.9.80 he handed-over the case diary to his successor on transfer. . 21. PW 23 is also the Sub-Inspector, Police/Investigating Officer who took up investigation of the case on 6.12.80. After Shri MK Paul, on 24.7.81 he submitted the SR to the Superintendent of Police and thereafter, on getting permission he submitted charge sheet as against the accused persons/appellants on 28.8.81 to face the trial under sections 148/149/326/447/325/302IPC. 22. Question which arises for consideration is as to whether the above evidence and the other evidences on record is acceptable, would be acted upon and, if so, the conviction of the appellants is justified. 23. Shri B Das, learned senior counsel for the appellants except appellant ' No. 10 Shri Sachindra Chandra Shib, submits that the findings of the learned trial Court are erroneous both on points of law as well as facts and these findings are unwarranted by the facts and circumstances transpired in the record. It is also contended that the FIR is hit by section 162 CrPC. 24. Shri Das further submits that there is ample evidence on record that the appellant No.3, Nil Mohan Shib and the, accused Monmohan Shib (since dead) possessed the said land-.for about 6/7 years prior to the occurrence and that accused Monmohan (now deceased) was previously in possession of 13 gandas of land where occurrence took place and that Banamali got this land by way of exchange from a Muslim. He further submits that it appears from the cross-examination of PW 1 that his grand father was the owner of the land where , occurrence took place and he did not know whether parcha or khatian etc. were issued in the name of his grand father from the Settlement Office and mat mere are three plots in the dispute land where occurrence took place and that the northern plot thereof was possessed by the appellant Nilmohan Shib (appellant No.3) and other two plots were in possession of the accused Monmohan Shib (now deceased) and mat the informant (PW 1) did not give boundary and Dag ; No. of the disputed land. 25. Shri Das also contended that the P W1 was unable to say that the land i.e.the place of occurrence appertained to Dag No.312 or 313 and, moreover, he could not say as to who cultivated the land and transplanted Aman paddy seedling and who harvested the same from the said land in question prior to the occurrence. And that he also failed to say as to who ploughed and levelled the land prior to ' transplantation of paddy seedling in the month when occurrence took place, Shri Das submits. 26. It is also contended by Shri B. Das that the statements of PWs 5, 6, 11, 13,15 and 16 are contradictory and as such, it would be evident from the findings of the trial Court that the learned trial Court is completely silent in respect of the relevant entries in Khatian in respect of land under Dag No.311,312 and 313 which goes to the root of the entire prosecution case. 27. Shri Das further submits that the place of occurrence is vague and not known. He also submits that the learned trial Court failed to appreciate the fact that the dispute land was outside the Dag No.312 and that it was part of Dag No.313 and that the informant's grand father had no possession over the land under Dag No.313. Shri Das also submits that the prosecution has utterly failed to prove the case beyond reasonable doubt and as such the conviction and sentence for the said offences as imposed on his clients/appellants by the trial Court deserves to be set aside. 28. Shri Das also submits that the prosecution has utterly failed to prove the case beyond reasonable doubt and as such the conviction and sentence for the said offences as imposed on his clients/appellants by the trial Court deserves to be set aside. 28. From the impugned judgment we found that the learned trial Court made an exhaustive finding that the land where the occurrence took place appertained to Dag No.312. This finding finds its place in paragraph No. 10 to 27 particularly in paragraph No.26 of the judgment and, therefore, the contention of Shri B. Das has no substance. 29. Shri S. Deb, learned senior counsel appearing on behalf of the accused appellant No. 10 Sachindra Chandra Shib submits that there is no evidence on record in order to prove the charges levelled against the said accused appellant No. 10. Shri S. Deb drew our attention to the FIR as well as to the evidence of the PWs 1,3, 6, 7, 13 in order to establish the innocence of the said accused-appellant No. 10. 30. The trial Court also held that Jamini and Harendra Das were in possession of the land at the time of occurrence and the accused persons having sufficient time did not wait for the result of the suit and took the law in their hands. The plea of right of private defence has advocated by learned defence counsel is thus not available to them. It may be stated that the land falls within Dag No.312. There are other reliable evidence to fix the scene of occurrence and therefore, contention of Shri B. Das has no legal force. The other contention of Shri B. Das is that the FIR 'Ext P!/(!)' is hit by section 162 CrPC. But the questioin is even though Ext Pl(l) ejahar is hit by section 162 of CrPC will that be of any help; PW 1 who lodged the FIR is eye witness to the occurrence and one of the injured person/victim. 31. We have discussed other evidences in details and we are of the view that the defence could not elicit any material during the course of examination to discard his (PW 1) version except the defence of accused appellants No. 8 Bhuban Ch ;dra Shib and No. 10 Shri Sachindra Chandra Shib. 31. We have discussed other evidences in details and we are of the view that the defence could not elicit any material during the course of examination to discard his (PW 1) version except the defence of accused appellants No. 8 Bhuban Ch ;dra Shib and No. 10 Shri Sachindra Chandra Shib. That apart this ocular evidence is well supported by the evidence of PWs 3,4, 6, 7 and 13 and also other prosecution witnesses. The contention of Shri Deb is that ejahar Ext PI/(I) cannot be taken into consideration for the simple reason that it has been hit by 162 CrPC. Even though Ext Pl/(l) is hit by 162 CrPC, from the evidence of the Investigation Officer Shri Mahendra Kishore Paul, PW 22, we found that on 29.9.79 he (Shri Mahendra Kishore Paul) was the Sub Inspector of Police attached with RK Pur Police Station. At that time Shri Mukunda Lai Sen was the O/C of the said Police Station. On 20.9.79 at about 9.30 AM he received a telephonic message from Maharani informing that there was serious breach of peace in Maharani area at a Village Chargaria. The caller did not disclose his name. He (Mahendra Kishore Paul) entered this information in CD of the Police Station under SI. No.760 of the date and thereafter he with his staff proceeded Maharani. There he got informatioin that one dead body and some injured were at Maharani PHC. Thereafter he started for Maharani PHC and reached there at 11.35 AM and contacted Medical Officer who informed him that one dead body and five injured persons had been brought to the PHC of them, the condition of one person was serious and he was unconscious. And accordingly he had been admitted in the PHC and medical aid have been given to the injureds. It was also informed that the son of the deceased was also in the PHC in the injured condition. At 12.00 noon he recorded the ejahar of Dhirendra Chandra Das in the hospital. Even if the ejahar (Ext. Pl/(l) is hit by section 162 CrPC the contains of the said GD entry under Sl.No.760 of the date can even be treated as FIR. The existence of the GD Entry under Sl.No.760 is not disputed by the accused-appellants. At 12.00 noon he recorded the ejahar of Dhirendra Chandra Das in the hospital. Even if the ejahar (Ext. Pl/(l) is hit by section 162 CrPC the contains of the said GD entry under Sl.No.760 of the date can even be treated as FIR. The existence of the GD Entry under Sl.No.760 is not disputed by the accused-appellants. We have indicated that before the concerned Police Officer recorded information given by PW 1, the Police Officer received information about the breach of peace in the area concerned through telephonic message and that he entered the said information in the GD entry No.760 dated 20.9.1979. In Arpen Joseph vs. The State of Kerala, 1973 CLJ185: ( AIR 1973 SC 1 ) Supreme Court held (at page 189 of Crl LJ): "...first information report is a report relating to the commission of an offence given to the police and recorded by it under section 154, CrPC.... the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in Court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time or opportunity to embellish or before the informant's memory fades. Undue or unreasonable delay in lodging the FIR, therefore, enevitably gives rise to suspicion which puts the Court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version." In view of the above position in the present case, we take Ext. PI/(I) is the information relating to the commission of cognizable offence given orally by PW 1 to a police officer who already set in motion of a criminal investigatioin of the case and also who had adduced the writing by him about the said information and also read over the contents to the informant and thereafter, the same has been signed by the PW 1 and the substance thereof had already entered into the diary by the officer. Therefore, there is no irregularity in treating the said Ext. P 1/(1) as First Information Report. As discussed above, we are of the view that there is no illegality or infirmity in the investigation of the case as well as the decision arrived on it particularly on this legal aspect by the learned trial Court with regard to the existence of FIR. 32. It is the setteled law that in order to attract the application of section 34 IPC it must be esstablished beyond any shadow of doubt that the criminail act was done by several person in furtherance of the common intention. In other words, the prosecution must prove facts to justify an inference that all the participants of the act had shared a common intention to commit the criminal act was finally committed by one or more of the participants. Section 38 contemplates that "where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of the different offences by means of their act." 33. In Afrahim Sheik vs. State of West Bengal (1964) 6 SCR 172 ; ( AIR 1964 SC 1263 ), the Apex Court made the following observation : "That is to say, even though several persons may do a single criminal act, the responsbiliry may vary according to the degree of their participation. The illustration which is given clearly brings out that point. Lastly section 38 provides that the responsibility for the completed criminal -. act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge." This decision also followed in cases between Bhaba Nanda Sarma & others vs. State of Assam reported in AIR 1977 SC 2252 . 34. We will now analyse the evidence again with specific references to each appellant/accused. 35. PW 1 mentioned names of the accused-appellants in the First Information Statement Ext Pl/(l) and adduced his evidence that the accused-appellant Jitendra Chandra Shib gave a piercing strike by a Ballam on the chest of his (PW 1) father and immediately thereafter accused-appellant Indra Mohan Shib also struck a piercing blow. Thereafter accused-appellants Manindra Chandra Shib, Gopal Chandra Shib and Prafulla Shib begal to assault his father with lathi. Thereafter accused-appellants Manindra Chandra Shib, Gopal Chandra Shib and Prafulla Shib begal to assault his father with lathi. But he made a general statement that all the accused persons including the present appellants assaulted his grand father with lathi and blunt side of pointed bamboos, but he could not say who particularly assaulted him or his aunts. 36. PW 2 Sri Nityananda Das also deposed that he only saw the accused-appellants Jitendra Shib Gopal Shib, Mojimohan Shib (now dead) Indramohan Shib, Manindra Shib, Prafulla ShibrChitta Ranjan Shib and Biswambar Shib and he found accused-appellant Shri Gopal Shib striking Jamini with lathi and the said accused persons began to assault Harendra Das with lathi and he also saw that accused appellant Jitendra Shib giving a piercing blow with a Ballam on the chest of Harendra Das and immediately thereafter Indra Mohan Shib struck a piercing blow with a Ballam on Harendra Das. PW 2 did not mention thenamesoftheac^gsed-appellantsNo.Sand IfJsriamely, Bhuban Chandra Shib and Sachindra ChanHa Shib and that he did not specifically refer to overt acts of the 8th and 10th appellants: but made a general statement. 37. PW 3 Smti Minati Bala Das who is one of the victims of the occurrence deposed that the accused appellants Indra Mohan Shib struck on the head of Jamini with a Ballam by its blunt side and the accused Jitendra struck Harendra Das on his chest by a Ballam and that it was a piercing blow. She also stated that accused Indra Mohan Shib also gave a piercing blow on the chest of Harendra Das by a Ballam. Then accused appellant Jitendra also struck Harendra on his chest by a Ballam. She made a general statement that all the accused persons began to assault her father Jamini with a lathi and bamboo. It is found from her evidence that she specifically stated only the names of accused Jitendra and Indra Mohan Shib in her 161 statements. But she did not state names of other accused persons. 38. PW 4 also deposed that two strikes by Ballam were given on the chest and head of Harendra, but the witness could not say who gave him the first strike by Ballam. She saw accused appellant Jitendra Shib giving Harendra Das last strike by Ballam. 39. But she did not state names of other accused persons. 38. PW 4 also deposed that two strikes by Ballam were given on the chest and head of Harendra, but the witness could not say who gave him the first strike by Ballam. She saw accused appellant Jitendra Shib giving Harendra Das last strike by Ballam. 39. PW 6 Smti Laxmi Rani, one of the victims of the occurrence also stated that she found the accused appellants Jitendra Shib, Manindra Shib, Indra Mohan Shib, Gopal Shib, Biswambar Shib, Narayan Shib, Manmohan Shib and others numbering 12/14 assaulted Jamini but she did not mention the names of the accused appellants Sachindra Shib, Bhuban Chandra Shib, Chitta Ranjan Shib and Nilmohan Shib. She gave the similar version/statement as deposed by PW 3 Minati Bala Das. 40. P W 7 Smti Sandhya Rani Das also gave almost similar version/statement as that of PW 3 and 6. However, PW 7 did not mention the names of all the accused appellants except the accused appellant Jitendra Shib, Indra Mohan Shib and Manindra Shib. She stated that accused Manindra Shib struck her witha lathi on her head. 41. PW 13 Shri Jamini Das who is also one of the victims of the occurrence also deposed that the accused appellant Indramohan Shib struck him on his head with the handle of Ballam. Accused appellant Jitendra Shib gave a piercing blow by a Ballam on the chest of Harendra Das. Thereafter accused appellant Jitendra Shib also struck on the head of Harendra Das with a Ballam and the accused appellant Manindra Shib struck on the back of Harendra Das witha lathi simultaneously just before the assault made by Jitendra Shib. PW 13 went on to state that he begged his life to accused-appellants Gopal Shib, Biswambar Shib, Nilmohan Shib and Manmohan Shib (now dead). They did not hear his words. Thereafter accused-appellants Prafulla Shib and Narayan Shib struck him with pointed bamboos. PW 13 went on to state that he begged his life to accused-appellants Gopal Shib, Biswambar Shib, Nilmohan Shib and Manmohan Shib (now dead). They did not hear his words. Thereafter accused-appellants Prafulla Shib and Narayan Shib struck him with pointed bamboos. From the evidence on record, the eye witnesses did not specifically refer to over acts of the accused appellants No. 8 Bhuban Chandra Shib and No. 10 Shri Sachindra Chandra Shib except the general statement of PW 1 Shri Dhirendra Chandra Das that all the accused persons assaulted his grand father Jamini with lathi and blunt side of pointed bamboos and, that the accused appellant Jitendra Shib and Indra Mohan Shib struck a piercing blow by Ballam on the chest of his father Harendra Chandra Das and also stated that the accused appellants Manindra Chandra Shib, Gopal Chandra Shib and Prafulla Chandra Shib began to assault his father Harendra Das. 42. It has also been elucidated from PWs 3,6,7 and 19 that such a statement of over-acts of 8th and 1 Oth accused appellants was not mady by them to the police or before the trial Court. In the circumstanc.es, there is serious and genuine doubt regarding the participation of the 8th and 10th accused-appellants in the occurrence and they are entirely entitled to benefit of doubt. 43. Section 34IPC does not create a distinct offence; it only lays down the principle of joint criminal liability. The necessary condition for application of section 34 IPC are common intention of several persons and doing a criminal act by them in furtherance of common intention. If these two conditions are satisfied, all those persons would be liable by the said act. In a case between Gaurdatta Mai vs. State of UP reported in AIR 1965 SC 257 , Supreme Court held that the essence of section 34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention. Common intention presupposes meeting of minds or preconcert. Common intention may also be conceived immediately before or at the time of the assault. The acts must be shown to have been done in furtherance of the common intention entertained by all. Common intention to commit an offence coupled with participation in action in furtherance of the common intention will attract section 34. Common intention may also be conceived immediately before or at the time of the assault. The acts must be shown to have been done in furtherance of the common intention entertained by all. Common intention to commit an offence coupled with participation in action in furtherance of the common intention will attract section 34. Each of the participants need not necessarily have struck the fatal blow or any blow. It is sufficient if he participates in joint action in some manner. When an offence is committed in pursuance of the common intention each and every one of the accused is responsible for the acts of every other in furtherance of the common intention, 44. There is a reliable evidence on record and that this evidence proved the facts necessarily led to the inference with the accused appellants excepting the accused appellant Nos. 8 and 10 namely Shri Bhuban Chandra Shib and Shri Sachindra Chandra Shib had committed the offences as held by the learned trial Court. In the result the conviction of and sentence entered as against the accused appellant Nos.8 and 10 namely Bhuban Chandra Shib and Sachindra Chandra Shib are set aside and acquitted of all the charges. The conviction of and sentence entered against other accused appellant Nos. 1, 2, 3, 4, 5, 6, 7, 9 and 11 namely Shri Jitendra Chandra Shib, Shri Indra Mohan Shib, Shri Nilmohan Shib, Shri Gopal Chandra Shib, Shri Chitta Ranjan Shib, Shri Narayan Chandra Shib, Shri Biswambar Bhowmik, Shri Prafulla Shib and Shri Manindra Chandra Shib are affirmed. 45. with the above observation, the appeal is partly allowed. The accused apppellantNos.8 and 10 are on bail. So bail bond furnished by them shall stand cancelled and the surety are discharged. 46. The accused appellant Nos.l, 2, 3, 4, 5, 6, 7, 9 and 11 are on bail and hence, they must surrender at once to serve out the sentence. The period of detention, if any, undergone by the said appellants during the investigation, enquiry or trial of the case, be set-off against the terms of imprisonment.