Judgment P.K.Deb, J. 1. This appeal has been preferred against the judgment and order dated 4.3.1989 passed by the, Ist Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 241 of 1987 whereby the accused-appellant was convicted under Sections 304/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 2. A fardbeyan Ext-2 was recorded by Sukhari Pandit, the father of the deceased, Devendra Pandit to the effect that on 10.5.1987 Sheoshanker Pandit and his father Jhararu Pandit assaulted the Informant Sukhari Pandit with sandals for which a Panchayati was held on 14.5.1987 at Darua Chauk and both the assailants Jhagaru and his son Sheoshanker Pandit were made to apologise for their action. Subsequently, on the same date i.e. on 14.5.1987 while Devendra Pandit, the deceased was going to Sukki village at about 2 p.m. he was confronted by accused-Jhagaru Pandit armed with iron rod and his son Sheoshankar Pandit thrust a chhura blow on the back of the deceased as a result of which he succumbed to injury. When the informant came to the place of occurrence, he was intimated by his villagers, namely, Jugeshwar Singh, Sonelal Paswan, Jugeshwar Ram, Ramchandra Pandit, Machhu Pandit, Lakha Pandit and others about the alleged occurrence. According to those persons, they had seen the alleged assault on Devendra Pandit. The Police after investigation submitted charge-sheet against both the accusedpersons, namely, Sheoshankar Pandit and Jhagaru Pandit for an offence under Section 302/34, IPC but by a subsequent order dated 7.5.1988, the trial of Sheo Shanker Pandit was separated as he was found to be under 16 years of age and, as such his case was being inquired and tried by the Juvenile Court. On being committed to the Sessions, the charge was framed against the accused-appellant Jhagaru Pandit under Section 302/34, IPC and when the same was read over and explained to the accused-appellant, he denied the same. The defence case is that he has been implicated falsely due to enmity. 3. For and on behalf of the prosecution, in total 11 witnesses had been examined out of them PW11 is the Investigating Officer of the case. PW 10 is Machhu Pandit and he happens to be the brother of the Informant. The defence case is that he has been implicated falsely due to enmity. 3. For and on behalf of the prosecution, in total 11 witnesses had been examined out of them PW11 is the Investigating Officer of the case. PW 10 is Machhu Pandit and he happens to be the brother of the Informant. PW 9 Ram Chandra Pandit did not support the prosecution case and he was declared hostile and his statement before the I.O. had been confronted to him. PW 8 is the doctor who held post-mortem examination on the deceased. PWs 3, 4 and 5 are the eye-witnesses who happen to pass through the way when the alleged occurrence took place. PW 6 is the Informant Sukhar Pandit himself. Other witnesses, namely PW 1, PW 2 and PW 7 are just formal witnesses. PWs 3, 4 and 5 had supported the prosecution story in one voice. PW 10 Machhu Pandit although attempted to be an eye-witness to the occurrence but during the corss-exami-nation, he had to admit that when the reached the place of occurrence on hearing hulla, he saw Jhagaru Pandit and Sheoshanker Pandit fleeing away from the place of occurrence. PW 6 is not the eye-witness of the occurrence. Thus, the whole prosecution case hinges on the tes-timonry of the eye-witnesses, PWs 3, 4 and 5. They are not related to Informant also and nothing could be alleged that they had in any way being interested in implicating the accused-appellant. On relying on the evidence of PWs 3, 4 and 5 the learned Sessions Judge came to the finding that the accused-appellant is guilty for an offence under Sections 304/34 of the Indian Penal Code holding that the order co-accused who was not being tried with the accused-appellant had inflicted a single blow that too, on the back side of the deceased and thus, punished the accused-appellant for seven years rigorous imprisonment. The prosecution story as is revealed is that the accused-appellant waylaid the deceased Devendra Pandit while he was returning to his village and that the accused-appellant was armed with an iron rod when the deceased was waylaid then the other accused Sheo Shanker Pandit, i.e., the son of the Jhagaru Pandit came from the opposite direction and gave a chhura blow on the back of Devendra Pandit as a result of which he died at the spot. That the death was due to injury caused has been proved beyond all reasonable doubt by the doctor who held post-mortem over the dead body. The only question remains in the case that although the accused-appellant did not use his iron rod for the purpose of causing injury on the person of Devendra Pandit and when accused-appellant and his son Sheo Shankar Pandit were not together to assault Devendra Pandit and when there is no evidence of prior meeting of the mind or previous concert whether the accused-appellant can be convicted in the circumstances even if the evidence of prosecution witness are taken as it is by roping Section 34 of the Indian Penal Code. The evidence of the eye-witness although they were chance-witnesses remained unaltered to the effect that it was the accused-appellant who had waylaid the deceased being armed with an iron rod and then the other accused came and assaulted the deceased from the back. Even regarding waylaid of the deceased by the present accused-appellant being armed with weapon has not been cross examined from the side of the defence, so that part of the evidence of the prosecution witnesses remained unchallenged. As soon as the deceased was waylaid being armed with weapon by the accused-appellant other accused who happens to be the son of the accused-appellant came and gave a chhura blow. Common intention cannot be proved by giving substantive piece of evidence rather the same should be gathered from the circumstances of each particular case. In the present case, the mens rea or the intention/motive behind the murder had been specifically averred in the First Information Report and the same has also been adduced in evidence. On the very date of occurrence, both the accused-appellant and his son SheoPandit had been meant to apologise in the Panchyat for doing mischief to the deceaseds father, i.e., the informant and, as such, they were feeling insulted. This part of the motive should be considered and has rightly been considered by the learned Sessions Judge while coming to the decision regarding roping of the accused-appellant under Section 34 of the Indian Penal Code. 4. This part of the motive should be considered and has rightly been considered by the learned Sessions Judge while coming to the decision regarding roping of the accused-appellant under Section 34 of the Indian Penal Code. 4. It may be mentioned here that the other accused Sheoshanker Pandit who happens to be the son of the present accused-appellant had also been convicted for the same offence before the Juvenile Court and on appeal also, the same has been confirmed by the Sessions Judge and it has been stated in bar that against such conviction being confirmed by the appellate Court, a revision petition has been filed before this Court which is now pending. Learned Counsel appearing for and on behalf of the accused-appellant has strenuously argued that even if the whole evidence is taken as it is without deviation in any way then also, there is no scope to convict the accused-appellant by roping under Section 34, IPC. According to him, when the accused-appellant was armed with iron rod and the intention was to kill Devendra Pandit then he ought not to have debarred himself in using his arms to assault the deceased rather allows the other accused to kill him by means of chhura. His further contention is that as per the evidence of some of the witnesses when was waylaying by the deceased by the accused-appellant there started abusing between the two then the other accused came up to assault the deceased. One of the witnesses has stated that it was for about ten minutes, the abusing continued. That portion of the evidence of one of the eye-witnesses had been discussed elaborately by the learned Sessions Judge in the impugned judgment. The witnesses are village rustic witnesses. They have no must idea about the passage of time and, as such, this ten minutes have been stated and, as such sort of mentioning of time of abusing had been discarded rightly by the learned Sessions Judge. On behalf of the Informant and also on behalf of the State by refuting the argument, of the learned Counsel for the appellant it has been submitted that it was the accused-appellant who had made the ball to run in motion as he had waylaid the deceased for facilitating his son to inflict the chhura blow. On behalf of the Informant and also on behalf of the State by refuting the argument, of the learned Counsel for the appellant it has been submitted that it was the accused-appellant who had made the ball to run in motion as he had waylaid the deceased for facilitating his son to inflict the chhura blow. There was no question of his using the iron rod in his arms as his son had already done the offence by which the deceased died at the spot, so non-using of the arms to assault the deceased has no vitality. According to them, having arms in his hands, the accused-appellant had terrorised the deceased and, as such waylaid and facilitated the other accused to deal with the chhura blow. 5. For and on behalf of the learned Counsel for the appellant as referred to various rulings of the Apex Court in support of his contention 1982 (2) SCC 400 (Ghanshyam and others V/s. State of U.P.) dealt with Section 34 of the Indian Penal Code. In that case, along with other family members, a boy of 15 years was present at the time of occurrence but he did not commit any overt act and it was held by the Apex Court that without participating in the occurrence when the boy was simply present at the scene of occurrence, it cannot indicate of his sharing common intention of his family members. That ruling in my humble opinion has got no bearing with the present case. In the present case, as already discussed above, this accused-appellant has directly participated in the occurrence, he was the person who had first role, (the ball in motion by waylaying the deceased being armed with weapon and to facilitate his son to give the blow and he might not have used the iron rod but his participation cannot be ruled out and considering the motive behind the occurrence, I find that the accused-appellant has rightly been bound down under Section 34 of the Indian Penal Code. Then, the judgment of the Apex Court as reported in 1982 (3) SCC 221 (Jarnail Singh V/s. State of Punjab) has been referred to. Then, the judgment of the Apex Court as reported in 1982 (3) SCC 221 (Jarnail Singh V/s. State of Punjab) has been referred to. In a short order, it was held by the Apex Court that in absence of any pre-concert and meeting of minds between the accused-appellant and his colleague who inflicted the fatal blow, a conviction cannot be made roping under Section 34 of the Indian Penal Code. The broad facts of the case or in detail had not been stated. Only the principle has been enunciated by the Apex Court. It is very difficult to say under what circumstances, the decision had been arrived at by the Apex Court. In the present case, there appears to be a pre-concert of mind when father waylaid the deceased and then son gave the blow. The circumstances show that there must have been a pre-concert of mind. In 1992 Cr LJ page 1 (Ram Lal Singh V/s. State of Haryana), the Apex Court considered the common intention. In that case, the deceased was dragged out of the compartment due to long animosity and deep-rooted land dispute by all the accused-persons but only one had dealt the blow. Against others there was no evidence of being armed with any weapon, assaulting deceased or exhorting accused causing injury to attack deceased and fisting or kicking deceased, in that circumstance, it was held, sharing of common intention could not be proved for the purpose of causing murder. The facts are totally different from the present case. Here, there is actual participation of the accused-appellant in the crime as has already been stated above. In 1992 Crl LJ 105 (Harbans Nonia V/s. State of Bihar), there was conviction under Section 302 read with Section 34 of the Indian Penal Code but from the evidence, it could be found that there was absence of evidence regarding preconcert of mind by accused to commit murder and, as such, the conviction under Section 302/34, IPC had been altered to Section 326/34, IPC. This judgment does not in any way support the appellants case. This judgment does not in any way support the appellants case. On the other hand, the Informants Counsel has referred to a Supreme Court Judgment as reported in AIR 1958 SC 465 (Virsa Singh V/s. State of Punjab) how the common intention could be gathered from the circumstances has been considered in that case and what are the required essentials for the purpose to be proved from the side of the prosecution, even intention can be gathered from the seriousness or otherwise of the injury itself. I have already discussed the evidence proved in the case against the accused-appellant. From the circumstances of the case, it could be well gathered that there was definitely a pre-concert of mind itself. The accused-appellant who had waylaid the deceased being armed with weapon had facilitated his son to give the blow. The common intention can be gathered from each particular case in its form and evidence recorded. There cannot be any hard and fast rule or essential of ingredients to find out common intention. It can be found from the circumstances of each case. In the present case, in my opinion, the learned Sessions Judge has rightly found that the accused-appellant is guilty of the offence by roping under Section 34 of the Indian Penal Code. It may be mentioned here that the death was instantaneous at the spot itself and from the injury caused although from the back side shows that it was intentional to murder which ought to have been a conviction under Section 302/34, IPC but it appears that as no blow was repeated, the learned Sessions Judge has minimised the Section from Section 302 to 304, IPC. I do not agree with the reasonings given for minimising but as no notice had been given earlier at the time of admission of the appellant and when about more than a decade has been passed after the incident had occurred. There is no scope to linger it more by giving further notice for enhancement of the charge and punishment. On a petty matter, the incident had occurred. The participation of the accused-appellant in the offence makes me to take a lenient view regarding the sentence imposed on him. There is no scope to linger it more by giving further notice for enhancement of the charge and punishment. On a petty matter, the incident had occurred. The participation of the accused-appellant in the offence makes me to take a lenient view regarding the sentence imposed on him. It has been stated at the bar that already accused-appellant has remained in custody for more than six months but this much of sentence, in my opinion, is not sufficient for the gravity of the offence. Hence considering the circumstances of the case, gravity of the offence and participation of the accused-appellant. I hereby minimise the sentence by unhold-ing the conviction of one years rigorous imprisonment with a fine of Rs. 2,000/-(two thousand) and in default to undergo six months imprisonment more. This minimising of sentence in no way should be a consideration while taking up the case of actual assailant Sheoshankar Pandit when it has been stated that his revision is pending before this Court. 6. In the result, the appeal is dismissed with the modification of sentence as mentioned above.