JUDGMENT : A. Pasayat, A.C.J. 1. In this appeal the five Appellants (hereinafter referred to as the 'accused') have questioned legality of their conviction for commission of offence punishable u/s 302 read with Section 34 of the Indian Penal Code, 1860. (in short, 'Indian Penal Code'). In all, six persons faced trial for allegedly having' committed homicidal death of Parbati Sankar Chakrabarty (hereinafter referred to as the 'deceased') on 19.1.1990. All of them stood charged for commission of offence punishable under Sections 148 and 302/149, Indian Penal Code for their respective role in commission of homicidal death of the deceased. While accused-appellant Noor Saw alias Sayed Nuruddin stood charged for commission of offence punishable u/s 302, Indian Penal Code, the others stood charged for commission of offences punishable under Sections 148/302 read with Section 149, Indian Penal Code for having been members of an unlawful assembly armed with deadly weapons and for having committed the death of the deceased in prosecution of their common object. Each of the Appellants was found guilty of offence punishable u/s 302, read with Section 34, Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. 2. Prosecution version as unfold during trial was that Giridhari Padhi (P.W. I) (hereinafter referred to as the 'informant') devoted one bull belonging to him in the name of Lord Mahadev. Hearing that some Muslims of Gujidarada - Mitrapokhari village tied it, he went its search on 19.1.1990. On the way he found the deceased going towards market and called him to accompany. Both of them went to Mitrapokhari and found the bull in question tied at the backyard of the accused Noor Saw. The bull had also been castrated. Then the informant (P.W. 1) was enquiring as to who castrated and tied the bull, the accused persons armed with lathis came there and surrounded him. The deceased raised protest for which all the accused persons attacked him and made him fall on ground and gave him slaps, first blows and kicks. The accused Noor Saw alias Sayed Nuruddin set on his chest, thrashed his head several times on the ground while accused Bhalu Saw held his hands, accused Barakes Saw alias Sayed Barak Saw pressed his scrotum and accused Emam Saw alias Sayed Immam Saw and Amin Saw alias Sayed Amin caught hold of his legs and the other accused persons assaulted him. They also uttered to do away with the life of the deceased. On hearing the cry for help made by the informant, the witnesses Pradip Kumar Mohanty (P.W. 11), Dibakar Jena and Ors. came to the spot. On seeing them the accused persons fled away. The deceased was taken to the embankment of a nearby tank where water was sprinkled on him. At that time, the deceased's brothers came there, before whom the deceased named the accused persons as his assailants and asked them to take him immediately to the hospital. Informant was given to police over telephone. On receipt of telephonic information, Manoranjan Mohanty (P.W. 16), who was officer-in-charge of Bhadrak Police Station, made station diary entry and directed Sarbeswar Pattanaik, S.I. of Police of the said Police Station (P.W. 15) to go to the spot immediately. After P.W. 15 came to the spot, the informant (P.W. 1) lodged first information report. The deceased was immediately removed to Bhadrak Sub-divisional Hospital by a rickshaw and was admitted to the hospital. He succumbed to the injuries sustained by him at about 3.30 p.m. on the same day. Investigation was undertaken and on completion thereof charge-sheet was placed. 3. Accused persons pleaded innocence. According to them, there was altercation between the informant and the deceased on one hand and the accused persons on the other in respect of the bull in question and in course of such altercation, the deceased fell down sustaining fatal injuries on his person. They pleaded that they had been falsely implicated out of previous enmity. 4. Seventeen witnesses were examined to further the prosecution version. P. Ws. 1 and 11 were eye witnesses to the entire occurrence and P. Ws. 2, 4 and 5 part thereof. On consideration of the evidence, the learned Sessions Judge found each of the Appellants guilty u/s 302, Indian Penal Code read with Section 34, Indian Penal Code and accused Sk. Gamiruddin alias Bebul Khan was found not guilty of the offences charged and was acquitted. 5. In support of the appeal learned Counsel for Appellants submitted that the evidence of the so-called eye-witnesses are discrepant. It is urged that the learned trial Judge should have discarded their evidence. Further, P.W. 8, the Doctor, who conducted the postmortem stated in his evidence that the injuries found on the dead body of the deceased could be caused by fall. It is urged that the learned trial Judge should have discarded their evidence. Further, P.W. 8, the Doctor, who conducted the postmortem stated in his evidence that the injuries found on the dead body of the deceased could be caused by fall. It is further stated that there is nothing in the evidence of concerned witnesses regarding the specific role played by the Appellants during alleged assault and therefore, Section 34, Indian Penal Code has no application. Even if the prosecution story is accepted to be correct, there being only one injury on the body of the deceased, and therefore, conviction u/s 302, Indian Penal Code is not sustainable. Learned Counsel for State supported the order stating that the conviction is in order as there is absolutely no discrepancy in the evidence of eye-witnesses as contended. Role play by each of the Appellants has been graphically described and even if there is only one injury that cannot be sufficient to rule out application of Section 302, Indian Penal Code. Further, the role played by the Appellants during assault clearly bring in application of Section 34, Indian Penal Code. 6. At this juncture it is to be noted that P. W Section 1 and 11 are stated to be eye-witnesses to entire occurrence while P. Ws. 2, 4, 5, and 14 are stated to have witnesses part of the occurrence. They have elaborately described the incident and the role played by each of the Appellants. That being the position, the learned trial Judge has rightly relied upon their evidence. 7. So far as emphasis on the evidence of P.W. 8 the Doctor is concerned, it shows that the injury was possible by fall. Same in no way helps the Appellants. Merely because that possibility has been indicated the Doctor, who conducted the post mortem, that cannot be evidentiary value of the eye-witnesses, which as indicated above has been found credible. Injury on the head was found on dissection. Though there was only one injury, it was on the vital part of the body. There was another abrasion on the right side on the back of elbow joint. The injury found on dissection was sufficient in nature to cause death. Injury on the head was found on dissection. Though there was only one injury, it was on the vital part of the body. There was another abrasion on the right side on the back of elbow joint. The injury found on dissection was sufficient in nature to cause death. Though it cannot be laid down as a rule of universal application that whenever there is only one injury Section 302, Indian Penal Code is ruled out, the surrounding circumstances, the weapon used and the background leading to the assault have to be taken note of as they are relevant factors. Considering the evidence on record, according to us, the case is covered by second limb of Section 304, Indian Penal Code. 8. The residual question is about applicability of Section 34, Indian Penal Code. Section 34, Indian Penal Code, lays down a principle of joint liability in the doing of a criminal act. The essence of the liability is to be found in the existence of common intention and making the accused leading to the doing of a criminal act in furtherance of such 'Intention. It deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done them himself; for that act and the act in the latter part of the Section must include that whole section covered by a criminal act in the first part, because they refer to it. Constructive liability u/s 34 may arise in three well defined cases. A person may be constructively liable for an offence which he did not actually commit by reason of-: (1) the common intention of all to commit such an offence (Section 34) (2) his being a member of a conspiracy to commit such an offence (Section 120-A) (3) his being a member of an unlawful assembly, the members thereof knew that an offence was likely to be committed (Section 149). Section 34 is framed to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. Section 34 is framed to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. The provision embodies the common sense principle that if two or more persons intentionally do a thing jointly it just the same as if each of them had done it individually. 9. In view of the factual aspects highlighted above, inevitable conclusion is that all the accused persons were equally liable for commission of the offence. In the conclusion, conviction of Appellants is altered to one u/s 304, Part II, Indian Penal Code read with Section 34, Indian Penal Code. Custodial sentence often years' rigorous imprisonment would meet the ends of justice. 10. The appeal is allowed to the extent indicated above. B.P. Das, J. 11. I agree. Final Result : Allowed