Judgment R.N.Sahay, J. 1. This is an appeal against the judgment and order of the Sessions Judge. Gopalganj dated 18th September. 1986 in Sessions Trial No. 49/81, whereby the appellants before us, namely, Muni Lal Kumhar, Guru Dayal Kumhar, Jhagru Kumhar and Mahesh Kumhar alongwith one Benchu Kumhar were charged and tried under Secs. 302/34, IPC for having committed murder of Suleman Hajam in furtherance of their common intention. They were also tried under Secs. 323/34. IPC for voluntarily causing hurt to Basiruddin Hajam and Chhedi Hajam. Jhagru Kumhar and Mahesh Kumhar were further charged under Sec. 325. IPC for causing voluntarily grievous hurt to Chhedi Hajam. Muni Lal Kumhar was also charged under Sec. 148. IPC for being armed with pharsa and the rest were charged under Sec. 147, IPC for committing rioting. 2. Benchu Kumhar was acquitted while these appellants were convicted and sentenced to imprisonment for life and also convicted under Secs. 323/34. IPC and sentenced to sixmonths imprisonment. Appellant Jhagru Kumhar has been further convicted under Sec. 325, IPC and sentenced to R.I. for two years. All the sentences were directed to run concurrently. 3. Appellant No.1 Muni Lal Kumhar, who was principal accused in the case died in an accident on 26-9-1995 is Bokaro Hospital. The appeal of this appellant, therefore stands abated. 4. The incident which led to the trial and conviction of the appellants happened on 10th June, 1980 at village Jagmalwa, PS. Manjhagrah (Thawe) in the district of Gopalganj. Following is the summary of evidence on the strength of which the Sessions Judge convicted the appellants. On 10-6-1980 at about 9.00 a.m. Basiruddin Mian alongwith the deceased Suleman Hajam and Chhedi Hajam were piling bricks at their door. The appellants are alleged to have protested while the bricks were piled. Muni Lal Kumharwas armed with farsa and the rest were armed with lathi. Suleman replied that he was piling the bricks over has land. Muni Lal Kumhar claimed the land to be his and asked Suleman Hajam not to pile his bricks. The acquitted accused Benchu Kumhar, who was at his door instigated the appellants to assault. Appellant Muni Lal Kumhar gave a farsa blow on Suleman who fell down. Chhedi Hajam went to his rescue. Then. Jhagru Kumhar have a lathi blow on his hand as a result of- which has hand was fractured and Chhedi Kumhar also fell down. The acquitted accused Benchu Kumhar, who was at his door instigated the appellants to assault. Appellant Muni Lal Kumhar gave a farsa blow on Suleman who fell down. Chhedi Hajam went to his rescue. Then. Jhagru Kumhar have a lathi blow on his hand as a result of- which has hand was fractured and Chhedi Kumhar also fell down. Appellant Guru Dayal assaulted him with lathi on his head whereas appellant Mahesh Kumhar assaulted him on his waist by lathi. 5. The informant Basiruddin went to the rescue of the two injured whereupon Mahesh Kumhar assaulted him. Jhagru Kumhar assaulted the deceased with lathi on his forehead and Guru Dayal Kumhar assaulted on his knee. On hulla many persons arrived there. After the three injured had fallen down, the accused persons further assaulted them With lathi and fled away. The three injured were taken to Gopalganj Hospital on a Tyre-Cart. The fardbeyan of Basiruddin was recorded by the police on the same day at 12.00 noon. The house of the informant Basiruddin was on the old Gharari, whereas the houses of his two brothers Chhedi and deceased Suleman were of the newly purchased land. Abdul Bari, the son-in-law of the deceased was living as Ghar Jamai. Suleman died the same day at 3.00 p.m. in the hospital. Basiruddins evidence is that the land where the bricks were being piled leading to the occurrence was settled with Chhedi and Abdul Bari by Bhudan Committee. The factum of settlement of land was disputed by the defence. The defence claimed the disputed land to be in their possession. It was alleged that the prosecution. It was alleged that the prosecution party was forcibly piling the bricks in order to dispossess the appellants from the said land. 6. Learned Sessions Judge on appraisal of the evidence found that the occurrence in question in which Suleman received injuries resulting in his death was admitted fact. Dr. Laxmi Chand Prasad, who held post-mortem examination on the dead-body of the deceased Suleman on 11-6-1980 and found following ante-mortem injuries on his person: (i) Incised wound 1/2" x 1/4" bone deep on left side of scalp. (ii) Diffused swelling over the middle right side, back side and front part of scalp With swelling extending to the forehead and both eye-lids. (iii) Swelling over the left knee. (ii) Diffused swelling over the middle right side, back side and front part of scalp With swelling extending to the forehead and both eye-lids. (iii) Swelling over the left knee. On opening the scalp, there was blood and blood clot in the scalp tissues. The skull bone frontal and right parietal bone were found fractured. There was blood and blood clot below the skull bone in the meninges and the brain. According to the doctor, the injury No.1 was caused by sharp-cutting weapon such as farsa and the rest injuries were caused by hard and blunt substance may be lathi. According to the opinion of the doctor, the death was due to head injury leading to fracture of skull bone and haemorrhage inside brain. 7. Chhedi Mian was examined on the day of occurrence itself. Following injuries were found on his persons: (i) Lacerated wound 1" x 1/4" x 1/4" on back of scalp. (ii) Diffused swelling with boney tenderness on right forearm. (iii) Swelling on back of right palm. (iv) Bruise With abrasion on right side of back and except injury No.2 which was subsequently found to be grievous because of fracture of shaft of ulna bone of right forearm. The rest injuries were simple caused by hard and blunt substance. 8. Basiruddin Mian was also examined on the same day and following injuries were found on his person: (i) abrasion 4" x 12" on the back of right forearm. (ii) Swelling with tenderness on right side of waist which in his opinion were simple in nature caused by hard and blunt substance within three hours of his examination. 9. Learned Sessions Judge found that the genesis of the occurrence was piling of bricks by the three brothers over the piece of land which was protested by the appellants. Learned Sessions Judge considered the evidence regarding settlement of disputed land. The land over which the bricks were piled were Gair Mazarua land which was given by Bhudan Committee to Chhedi and son-in-law of the deceased Suleman. The certificate issued by the Bhudan Yagna Committee dated 23-8-1979 was relied upon by the prosecution to show that 4 decimals of land out of plot No. 497 was given to Abdul Bari. The certificate was proved by Jainul Abdin, who was president of Bhudan Distribution Committee in the village. It is said that the land was in possession of the respective persons. The certificate was proved by Jainul Abdin, who was president of Bhudan Distribution Committee in the village. It is said that the land was in possession of the respective persons. The defence produced certified copy of khatian to show that plot No. 497 appertaining to Khata No. 112 measuring 3 Katha 15 Dhurs being Galr Mazarua land was recorded as Garha (Ext. A). Learned Sessions Judge observed that the defence has not produced any evidence regarding plot No. 497 belonging to them. The prosecution has also not produced Register of Bhudan Raiyats and the learned Sessions Judge accepted the evidence that the land was settled with Chhedi Mian and son-in-law of the deceased. Learned Sessions Judge observed: "The probability of their being in possession of the said Gair Mazarua and can also not be doubted because of location of their houses to the contiguous east of the Gair Mazarua land." 10. Learned Sessions Judge further observed: "Even if it be assumed that the I.O. had not found any sign of previous possession of the deceased or of PW lover Gair Mazarua land but the fact remains that he found bricks piled over the Gair Mazarua land which was undisputedly piled by the three brothers." Learned Sessions Judge accepted the evidence of the prosecution witnesses and right held that the presence of the witnesses at the time of occurrence could not be disputed. The witnesses had come later. Learned Sessions Judge has taken pains to critically examine the entire evidence in detail. 11 Learned Sessions Judge next considered the pertinent question whether the murder of Suleman would come within the mischief of Sec. 302, IPC or within the purview of Sec. 304, IPC. The doctor, who had conducted the Postmortem examination has not stated that the injuries found on the head of the deceased was sufficient in ordinary course of nature to cause death but as held by the Supreme Court in AIR 1956 SC 99 whether a particular injury was sufficient to cause death in ordinary course of nature was question of fact in each case. Thus, learned Sessions Judge has held that this much was established that someone gave lathi blow on the head of the deceased Suleman and he died of head injury. 12. According to the FIR, only Muni Lal Kumhar had assaulted the deceased Suleman on his head with farsa. Thus, learned Sessions Judge has held that this much was established that someone gave lathi blow on the head of the deceased Suleman and he died of head injury. 12. According to the FIR, only Muni Lal Kumhar had assaulted the deceased Suleman on his head with farsa. The evidence of Basiruddin as regards assault on the deceased is consistent with the FIR. Basiruddin further stated that Suleman was assaulted on his head by Jhagru Kumhar also. Guru Dayal Kumhar hit with lathi on the neck. This part of the evidence is contrary to the case in the FIR. There is specific allegation only against Muni Lal Kumhar so far assault on the deceased is concerned. Learned Sessions Judge, therefore, was not right in his finding that some of the accused persons had assaulted the deceased on his head. Learned Sessions Judge further has omitted to consider crucial question whether murder of Suleman was committed in furtherance of common intention of all the accused persons. 13. On analysis of the evidence, it is difficult to hold that all the accused persons were responsible for head injury caused by Muni Lal Kumhar. From the discussion of the evidence, it is clear that there was dispute regarding land on which bricks were being piled by the deceased. The appellants had gone to protest. There was altercation and the deceased was hit by Muni Lal Kumhar. It is clear from the medical evidence that the deceased was assaulted by sharpcutting weapon on the left side of his head and this injury is attributed to Muni Lal Kumhar. 14. In my opinion, only Muni Lal Kumhar can be held responsible for the death of the deceased Suleman. Since Muni Lal Kumhar is dead, he cannot be convicted. His appeal has abated. So far as remaining appellants are concerned, they cannot be held guilty under Secs. 302 with the aid of Sec. 34, IPC as the evidence is lacking that the assault was made in furtherance of common intention. The other appellants are responsible for their individual act and not for the act of Muni Lal Kumhar. The conviction of these appellants under, Sec. 302/34, IPC cannot be sustained. The conviction of these appellants, however, in other sections as found by the learned Sessions Judge is proper, finding regarding 15. The other appellants are responsible for their individual act and not for the act of Muni Lal Kumhar. The conviction of these appellants under, Sec. 302/34, IPC cannot be sustained. The conviction of these appellants, however, in other sections as found by the learned Sessions Judge is proper, finding regarding 15. In the result, this appeal has abated, so far as appellant No. 1 Muni Lal Kumhar is concerned. The conviction of remaining three appellants under Secs. 302/34, IPC is set aside. The conviction of the remaining three appellants in other sections as recorded by the learned Sessions Judge is affirmed. This appeal is partly allowed as indicated above. B.P.Sharma, J. 15 I agree.