JUDGMENT N.C. Sil, J. 1. This appeal was directed against the judgment and order of conviction dated 11.1.1993 passed by Sri B.B. Chatterjee, Additional Sessions Judge, 3rd Court, Midnapore in connection with Sessions Trial Case No.4 of September, 1991 for the offence under section 302/34 read with section 307/34 of Indian Penal Code. The learned Sessions Judge was pleased to impose life imprisonment and a fine of Rs.1000/- to each of the appellants for the offence under section 302/34 but abstained from imposing any separate punishment for the offence under section 307/34 I.P.C. 2. It is stated, inter alia, that the learned Judge failed to consider the various infirmities appearing in the evidence adduced by the prosecution and the judgment of the learned Judge is based on conjectures and surmises. It is also stated that the learned Sessions Judge did not consider the materials appearing in the cross-examination of the witnesses. It is also taken on the grounds of appeal that the appellant No.4 was a minor at the time of alleged incident and as such his trial along with the other appellants is not sustainable in law. It is also pointed out that it is clear from the evidence of the P.Ws. 4 & 6 that whatever was allegedly done by the appellants it was in exercise of the right of private defence of property and person which escaped the consideration of the learned trial Judge and as such the conviction of the appellants is not warranted by law. It is again stated that the evidence of P.Ws. 4 & 6 as regards the assault on P.W.6 by the appellant Nos. 2 & 3 was falsified by the evidence of the doctor, the P.W. 16. It is again stated that the learned Judge failed to consider the evidence of the alleged eye witnesses regarding assault on Jimut Bahan by the appellant Nos. 3 & 4 which does not find any support from the evidence of the P.W.5, the autopsy surgeon. 3. The prosecution case in a nutshell runs like this. On 16.6.1990 at about 7 a.m. one Pratima, the grand-daughter of Jimut Bahan and the daughter of Dulal went to their cultivable land and found that the outlet of their land for draining out the excess water was blocked by placing clay by the accused persons who are all agnatic relations of the prosecution party. On 16.6.1990 at about 7 a.m. one Pratima, the grand-daughter of Jimut Bahan and the daughter of Dulal went to their cultivable land and found that the outlet of their land for draining out the excess water was blocked by placing clay by the accused persons who are all agnatic relations of the prosecution party. At this Jimut Bahan and his son protested and asked the accused persons to remove the blockade and thus an altercation ensued when the accused Khagen all on a sudden assaulted Dulal on his head and other parts of his body with tangi (a sharp cutting weapon fitted with a handle) causing injuries on his person. Jimut Bahan father of Dulal tried to resist the accused persons assaulting Dulal but the accused Khagen gave a tangi blow on his throat while the other two accused persons Dayal and Timir started assaulting Jimut Bahan and Dulal with lathis. Jimut Bahan subsequently succumbed to his injuries. The incident happened in presence of Pratima who reported the same to her maternal grand-father who lodged the FIR with the Police Station. There was a dispute prevailing between the parties over the landed properties and the same ultimately culminated into the incident. 4. It appears that the learned trial Judge had framed charged under section 302/34 and also under section 307/34 against all the 4 accused persons who had pleaded not guilty and claimed to be tried. As many as 16 witnesses were produced by the prosecution before the learned trial court. After conclusion of the trial the learned Judge was pleased to find all the accused persons guilty for committing offence under section 302/34 and also under section 307/34 of Indian Penal Code. During the pendency of the appeal the convict/appellant Guiram @ Putia Chetial had died. It may also be mentioned here that no ground has been taken by the appellants at the time of argument before us that the appellant No.4, Timir Chetial was a minor at the time of occurrence. On scrutiny of the records there appears nothing that any such pleas was taken before the learned trial Judge also. 5. It is argued by Mr. Dilip Dutt, the learned Senior Advocate for the appellants that only two eye witnesses namely, the P.Ws. 4 and 6 have been examined in this case. On scrutiny of the records there appears nothing that any such pleas was taken before the learned trial Judge also. 5. It is argued by Mr. Dilip Dutt, the learned Senior Advocate for the appellants that only two eye witnesses namely, the P.Ws. 4 and 6 have been examined in this case. It is also pointed out by him that the prosecution has miserably failed to substantiate the injury of the accused Guiram, although a feeble attempt was made. Mr. Dutt has emphatically argued before us that from the facts and circumstances of this case and the evidence adduced there appears no common intention of the appellants to cause death or to cause any offence under section 307 IPC and even if, for argument sake, there was any common intention of the appellants the same was in connection with the private defence of the property initially and thereafter at the time of occurrence for the person also. Mr. Dutt has referred to some case laws which we shall take up at the appropriate point of time. 6. Mr. S. Moitra, the learned Additional P.P. has argued for the respondent before us and tries to impress upon us that there is absolutely no reason to disbelieve the evidence of the surviving injured himself. From the evidence of the witnesses Mr. Moitra has tried to substantiate the elements of section 34 IPC prevailing in the instant case. According to him there are three essential ingredients for section 34 IPC and those are (1) unity of time, (2) unity of action, (3) unity of place of occurrence which all are there in the instant case. Mr. Moitra has taken us through the provisions of sections 97 and 103 of the Indian Penal Code and tries to establish that from the facts and circumstances of the case there is no case for the appellants to take shelter under the plea of private defence of property and person. Mr. Moitra has also referred to a number of case laws which we shall discuss at the appropriate point of time. 7. In reply to the submission of the learned Additional Public Prosecutor, a written argument has been placed before us on behalf of the appellants and it is stated therein that the provisions of section 97 of IPC is not attracted here in the facts and circumstances of the case. 7. In reply to the submission of the learned Additional Public Prosecutor, a written argument has been placed before us on behalf of the appellants and it is stated therein that the provisions of section 97 of IPC is not attracted here in the facts and circumstances of the case. The evidence of the P.W.16, the attending physician of the injured has been pointed out in order to substantiate the case of private defence of property and person. It is pointed out that the 4th clause of section 103 of IPC is squarely attracted in the facts and circumstances of the present case. It is also pointed out that when there is a case of private defence, the provisions of section 34 or section 149 of IPC do not come to apply. The discrepancies as regards the injuries caused to the deceased and the injured have also been pointed out. 8. Chandicharan Giri is the P.W.1. He is the father-in-law of the other injured Dulal. He arrived at the place of occurrence after the occurrence was over and found his son-in-law Dulal sitting with bleeding injuries and Jimut Bahan, the father of Dulal lying dead at the place of occurrence. The P.W.1 also found injuries in the person of Jimut Bahan. The P.W.1 also found Pratima, the daughter of Dulal at the place of occurrence. Pratima, however, narrated the incident to P.W.1, it is claimed by the P.W.1 in his evidence. Samir Kumar Chetial and Ajoy Kumar Singh, the P.Ws.2 and 3 respectively are the seizure witnesses. 9. Pratima Rani Chetial, the daughter of Dulal is the P.W.4. She claims herself to be the eye witness of the occurrence. She stated in her evidence that on the date of occurrence she accompanied her father and grand-father Jimut Bahan to their land for broadcasting seeds and preparation of ails. (demarcating lines of land). She gave the description of the incident and thus it is stated that in course of altercation between the parties the three accused persons namely Timir, Dayal, Guiram being armed one lathi with each of them and Khagen with a tangi surrounded Dulal when Khagen gave a tangi blow on the head of Dulal and Dulal sat down having sustained bleeding injury when Dayal gave him a lathi blow on his back. The P.W.4 further stated that at that time Timir gheraoed her father and thereby helped the other accused to assault him. P.W. 4 had also given the description as to how her grand-father was assaulted and subsequently succumbed to his injuries. Thus, it is stated by her that Jimut Bahan came to the rescue of his son Dulal and the accused persons started assaulting Jimut Bahan leaving Dulal. The P.W.4 was specific to state that Khagen gave a blow on the right shoulder of Jimut Bahan with the tangi and the other two accused persons namely Timir and Dayal assaulted Jimut Bahan with lathis for which he fell down on the ground and expired. The P.W.4 further stated that thereafter at the instruction of Guiram the accused Khagen made an attempt to give a second blow on the throat of Dulal with the tangi but Dulal resisted the said blow with the help of his right hand sustained bleeding injuries. The P.W.4 also stated that thereafter the accused Khagen made the third attempt to give a tangi blow on the neck of Dulal but while Dulal escaped that attempt the accused Guiram sustained injury on his left eye brow for that third blow of tangi made by Khagen. The P.W.4 appears to have stood the test of cross-examination on substantial point without being shaken. 10. P.W.5 is the doctor Satya Brata Kanjilal who made the post mortem examination of the deceased Jimut Bahan. At the time of examination he found one deep cut mark on the neck extending from the point of chin to the root of neck placed obliquely downward and outward incised looking deep wound. According to him, the death was caused due to the fatal injury on the neck of the deceased. 11. Dulal Chandra Chetial, another injured is the P.W.6. Obviously he is also an eye witness in the instant case. He supports the evidence of his daughter, the P.W.4 so far the starting of altercation is concerned. He further stated that Khagen was armed with tangi and the other three accused persons namely Guiram, Timir and Dayal were armed lathi with each of them. Obviously he is also an eye witness in the instant case. He supports the evidence of his daughter, the P.W.4 so far the starting of altercation is concerned. He further stated that Khagen was armed with tangi and the other three accused persons namely Guiram, Timir and Dayal were armed lathi with each of them. The P.W.6 then stated that in course of altercation on the issue of cutting ails the accused persons surrounded him when Khagen gave him a blow with the tangi and he sat down having sustained bleeding injuries and at that time the accused Dayal gave him a blow on his back with the lathi. The P.W.6 also stated that at that time his father Jimut Bahan came to his rescue and the accused persons leaving him surrounded his father. The P.W.6 stated that Khagen then assaulted his father on the right side of his neck with the tangi while the other two accused persons namely Dayal and Timir assaulted his father with lathi for which Jimut Bahan fell down on the ground and ultimately he succumbed to his injuries. The P.W. 6 then stated that at the instance of Guiram, Khagen gave him a blow on his neck with the tangi which he resisted with his right hand and on further attempt made by Khagen to assault him with the tangi the accused Guiram sustained injury on his right eye brow. Dr. Sunil Ganguly, the P.W.16 had examined both the injured, Dulal and Guiram on 16.6.1990. It appears from the evidence of the P.W. 16 that on examination of Dulal he found the following injuries: "1. Incised wound on the dorsum of right hand measuring 4" x l½” x l" with fracture on 2nd, 3rd, 4th metacarpals. 2. Incised wound ½" x ¼” x ¼" on the dorsum (back of the neck)." According to him, the injuries might have been caused by sharp cutting weapon. It is further in his evidence that the patient party namely Bhusan Giri disclosed to him that the patient was assaulted with tangi by Putia Chetial @ Guiram and his sons on the paddy field. On examination of Guiram the P.W.16 found the following injuries: "1. One incised wound on the left side of the forehead about 2" x ½"x bone deep. 2. On examination of Guiram the P.W.16 found the following injuries: "1. One incised wound on the left side of the forehead about 2" x ½"x bone deep. 2. Another incised wound on the left side of left eye brow ½" x ¼ x ¼"." In his cross-examination the P.W. 16 stated, "It is a fact that had there not been timely medical treatment of injury No.1, the same might have been fatal to the patient." The P.W.16 further stated in his cross-examination that the patient party stated to him that the patient was assaulted by some iron made weapon on the paddy field by some relatives of the patient. There is no other eye witnesses in the instant case. 12. After the scrutiny of the evidence of the witnesses adduced before the learned trial Judge it appears that although it is claimed by the P.Ws. 4 & 6 that the P.W.6 was not only assaulted by the accused Khagen with tangi but by others with lathi, it appears from the evidence of P.W.16 who had examined the injured Dulal, P.W.6 that he had received two incised wounds on the back of the neck caused by some sharp cutting weapon and this has dispelled the claim of P.Ws. 4 & 6 that the P.W.6 was assaulted by the other accused persons. Similarly, the P.W.5 the other doctor who had prepared the post mortem report of the deceased Jimut Bahan found only one deep cut mark on the neck extending from the point of chin to the root of the neck and no other injury. And, thus the claim of the prosecution that Jimut Bahan was not only assaulted by Khagen with tangi but also by other accused persons with lathi does not find any support from the medical evidence. 13. The prosecution has tried to explain the injury of the accused Guiram who had died during the pendency of the appeal. Although there appears the discrepancy in the evidence of the two eye witnesses namely the P.Ws. 4 & 6 as regards the location of the injury of Guiram, for it is stated by the P.W.4 that Guiram, for it is stated by the P.W.4 that Guiram sustained injury on his left eye brow the P.W.6 stated that it is on the right eye brow, such discrepancy is quite natural to occur even in the evidence of the most truthful witness. The human faculty in respect of visualization, perception and memorisation always differs. However, the evidence of the P.W.6 stands to support the P.W.4 so far the location of injury of Guiram is concerned. It further appears from the evidence of the P.W. 16 that while the patient party of the patient, Dulal stated the name of the assailant of Dulal before the P.W.16 the patient party of the patient, Guiram was conspicuously silent as regards the stating of the name of the assailant of Guiram. Besides, no witness had been examined by the defence to belie the explanation of injury caused to Guiram. Accordingly, the explanation of the injury of the Guiram given by the prosecution, at the time of the examination of the eye witnesses must be accepted and in doing so we have taken it into consideration that FIR is silent as regards such explanation, for, the same was not lodged by any eye witness of the occurrence. 14. Mr. Dilip Dutt, the learned Senior Advocate for the appellants in course of his argument claims that the appellants are entitled to the right of private defence and in order to substantiate his claim he has referred to the ratio decided in the case of Gurdatta Mal & Ors. Vs. State of U.P., AIR 1965 SC 257 : 1965 Cri.L.J. 242, in which it was, inter alia, held that where several accused commit the murder of a person by doing an act or acts in furtherance of common intention they would not be liable for the said act or acts done in furtherance of the common intention only if they are able to establish that they had the right of private defence to voluntarily cause the death of the person. It was also held in that case that it is well settled that section 34 IPC does not create a distinct offence and it only lays down the principle of joint criminal liability. The necessary conditions for the application of section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. The necessary conditions for the application of section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. It was again held in that case that if these two ingredients are established, all the accused would be liable for the said offence, that is to say, if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder. It was also held in that case that common intention, therefore, has relevance to the offence and not to the right of private defence and what would be an offence by reason of constructive liability would cease to be one if the act constituting the offence was done in exercise of the right of private defence. Once it is established that the common intention was to commit murder, the question of separate individual liability in the context of private defence would be out of place. 15. Mr. Dutt has also referred to the ratio decided in the case of Joginder Ahir vs. State of Bihar, AIR 1971 SC 1834 : 1971 Cri. L.J. 1285. In the said case 4 persons were tried for causing death by inflicting lathi blows to P who along with some others had engaged in reploughing paddy field which was in cultivating possession of the accused. No individual injury could be attributed to any individual assailant and the High Court had found that common intention of the accused was not to murder P but to defend their right to property. While defending it if one or two out of them took into his or their heads of inflict more bodily harm than was necessary and no overt act had been proved showing the others to have shared the intention all those others could not be attributed common intention of inflicting injuries which resulted in death. 16. In arriving at the decision in the case of Joginder Ahir Vs. The State of Bihar(supra), the Hon'ble Supreme Court (quorum: K.S. Hegde and A.N. Grover, JJ.) had referred to the ratio decided in the case of State of Bihar Vs. Nathu Pandey, AIR 1970 SC 27 . 16. In arriving at the decision in the case of Joginder Ahir Vs. The State of Bihar(supra), the Hon'ble Supreme Court (quorum: K.S. Hegde and A.N. Grover, JJ.) had referred to the ratio decided in the case of State of Bihar Vs. Nathu Pandey, AIR 1970 SC 27 . In that case C was in possession of a plot on which Mahua trees were standing. He went there along with the object of preventing the commission of theft of the Mahua fruit by the prosecution party. This he did in exercise of the right of private defence of property. In the altercation which followed two persons belonging to the prosecution party received bhala injuries resulting in their deaths. Some members of the accused party were armed with bhalas but it was not possible to say who was so armed and who out of them had inflicted the fatal injuries. (emphasis added). It was found that persons who had caused the deaths had exceeded the right of private defence as they had inflicted more harm than was necessary for the purpose of the defence. It was held that they could not be convicted under section 302 read with section 149 IPC or under section 302 read with section 34 of the Code. It was pointed out that the High Court had rightly found that the members of the accused party wanted to prevent the collection of Mahua fruit and that a common intention of all of them to murder the deceased was not established. In the case of Joginder vs. State of Bihar(supra) on the findings of the High Court, there was no common intention of the accused persons to murder the deceased but they were convicted for having exceeded the right of defence of property in furtherance of the common intention of all. The Supreme Court could not concur with the view expressed by the High Court that any such common intention could be attributed to the appellants on the facts and in the circumstances of that case. The Supreme Court could not concur with the view expressed by the High Court that any such common intention could be attributed to the appellants on the facts and in the circumstances of that case. It was thus observed by the Hon'ble Supreme Court that the appellants had certainly the common intention of defending the invasion of the right to property and while doing so if one or two out of them took it into his or their heads to inflict more bodily harm than was necessary, the others could not be attributed the common intention of inflicting the injuries which resulted in the death of the deceased. Accordingly it was held by the Hon'ble Supreme Court that section 34 can only be applied when a criminal act is done by several persons in furtherance of the common intention of all. In the said case no overt acts had been proved or established on the part of the appellants which showed that they shared the intention of the person or persons who inflicted the injury or injuries on the head of the deceased which led to his death and as such it was held by the Hon'ble Supreme Court that the appellants cannot, therefore, possibly be held guilty of an offence under section 304 Part II read with section 34 of the Indian Penal Code. The Hon'ble Supreme Court was pleased to allow the appeal and the conviction and sentence of the appellants were set aside. 17. Mr. S. Moitra, the learned Additional P.P. has referred to the ratio decided in the case of Patil Hari Meghji & Anr. Vs. State of Gujarat, 1983 (2) SCC 270 . In the said case the accused party had come to teach the deceased a lesson for having raised dispute in respect of land about which they had hinted even a month back when the report was lodged. The Hon'ble Supreme Court had observed that the manner of assault, the consequence of which was the death of three persons could not for a moment give rise to a jurisdiction for pleading a right of private defence. The Hon'ble Supreme Court had observed that the manner of assault, the consequence of which was the death of three persons could not for a moment give rise to a jurisdiction for pleading a right of private defence. In the said case the injured persons fell down on the ground and were rendered harmless and were not in a position to offer any resistance, but the accused persons continued to assault them until they had inflicted all the injuries and in such circumstances the Hon'ble Supreme Court did not accept the plea for the right of private defence. 18. Mr. S. Moitra has also referred to the ratio decided in the case of State of Punjab Vs. Karnail Singh, AIR 1995 SC 1970 . In that case it transpired that two of the victims were fired from close range and the doctor holding post mortem examination of the dead bodies had noted blackening of skin of the deceased. It was also established that one of the deceased had died due to receipt of gun shot injury on his back indicating that he was fleeing and not attacking. It also transpired from the evidence that the deceased were not armed and it was not established that there was any danger or threat from the deceased for which killing of the father and the two sons at the spot was justified. Mr. Moitra has also referred to the ratio decided in the case of Gopi Nath @ Jhallar Vs. State of U.P., JT 2001, (6) SC 130. It was held in that case that section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality of persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, renders each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action-be it that it was not overt or was only overt act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case. 19. Thus, two questions appear to be paramount here: the right of private defence of body and property and the other is as regards the common intention. Section 97 of the Indian Penal Code deals with the provisions for right of private defence of the body and property which reads as under:- "First.- His own body, and the body of any other person, against any offence affecting the human body; Secondly.- The property, whether movable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass." We have already accepted the explanation given by the prosecution as regards the injury on the accused Guiram. Accordingly, the first clause of section 97 as stated above does not come to play any role in the instant case. Now the question for defence of the property is before us. From the facts and circumstances of the case as discussed above it appears that both the parties are close relation to each other having their lands side by side and on the date of the occurrence the prosecution party went to their land with a view to broadcasting seeds but seeing excess water on their land they cut their ail to drain out the water through the land of the defence party and then the incident of assault took place. The learned senior Advocate for the defence argues before us that for the passing of excess water through the land of the accused persons the mischief to the land of the accused persons was caused and this had given rise to the right of the accused persons of private defence of property as enumerated under section 97 of the Code. Section 103 of the Code has enumerated the occasions when the right of private defence of property extends to causing death and the third and fourth clauses are specific on the occasion of mischief amongst other offences. The third and fourth clause of section 103 reads as under:- "Thirdly. - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly.- Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." From the reading of the third clause it cannot be taken by any stretch on imagination that the cultivable land of the accused should be treated as a place for custody of property by stretch of any imagination particularly when there was no evidence that there was either any standing crop or any seed was shown therein by the accused persons. From the facts and circumstances of the case there is absolutely no ground for the fourth clause of section 103 of the Code to have any application in the instant case. 20. Section 425 of the I.P.C. deals with the definition of 'Mischief and it reads as under :- "Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits 'mischief. Explanation 1.- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. Explanation 1.- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.-Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and other jointly." There are several illustrations to that section. But on the perusal of the definition of mischief and the explanations appended thereto it is candid that there must be the wrongful loss or damage to the property. There is absolutely no evidence that there was anything on the land of the accused persons which was damaged or intended to be damaged by the prosecution party or for passing the water through the land of the accused persons, there was any change in the property or in the situation thereof or the said act diminishes its value or utility or affects it injuriously. The defence had also eschewed from substantiating their claim of any mischief to have been caused or intended to have been caused on their land either by adducing evidence or even by putting any specific suggestions to the prosecution witnesses. 21. It is true that the defence party went to the place of occurrence with the common intention to protect their property but there is nothing before us that there was any common intention to commit murder or to assault any person. The circumstances of the case suggest that the defence party was the aggressor and as such in view of what has been discussed in the foregoing lines the accused appellants are not entitled to have any right of private defence of property extending to causing death. Even if it is accepted that the accused persons had any private defence of property that did not extend to causing death of the opponent and the act of the defence by causing death of Jimut Bahan and causing injuries to Dulal had exceeded all the limits, for, there was absolutely no apprehension of injury on body of the defence party extending to causing death. 22. Although it is claimed by the P.Ws. 22. Although it is claimed by the P.Ws. that both Jimut Bahan and Dulal were assaulted not only by Khagendra Nath with tangi but also by the other accused persons with lathis, the medical report goes to show that both the deceased Jimut Bahan and the injured Dulal had the sharp cutting injuries and this was dispelled the claim of the prosecution party as regards the involvement of the other accused persons in assault. This imposes the individual liability of assault by tangi only on the accused appellant Khagendra Nath Chetial. From the location of the injury of the deceased Jimut Bahan and his instantaneous death on the place of occurrence it cannot be taken by any imagination that Khagendra Nath had no intention to cause death of the deceased. In the absence of any common intention to cause death and in the absence of any participation of assault by the other accused appellants there appears no ground to attribute any criminal liability to the other accused-appellants. 23. Thus, having followed the ratio decided in the case of Gurdatta Mal (supra) as referred to by the learned Senior Advocate for the defence wherein it was, inter alia, held that once it is established that the common intention was to commit murder, the question of separate individual liability in the context of private defence would be out of place, we are inclined to hold that it was the accused appellant Khagendra Nath Chetial who is responsible for committing offence under section 302 I.P.C. by causing murder of Jimut Bahan and also for the offence under section 307 I.P.C. for causing attempt to murder of Dulal Chetial and in the absence of common intention to commit murder or attempt to commit murder and in the presence of individual liability of Khagendra Nath Chetial we are inclined to acquit the other accused-appellants from both the charges under section 302 read with section 34 and under section 307 read with section 34 I.P.C.. There appears nothing wrong as regards the term of sentence imposed by the learned trial Judge. 24. The appeal is thus allowed in part on contest and the judgment and order of conviction passed by the learned trial Judge are modified. 25. The conviction and sentence in respect of Khagendra Nath Chetial passed by the learned trial Judge are hereby affirmed. 24. The appeal is thus allowed in part on contest and the judgment and order of conviction passed by the learned trial Judge are modified. 25. The conviction and sentence in respect of Khagendra Nath Chetial passed by the learned trial Judge are hereby affirmed. We also confirm the observation of the learned trial Judge as regards the fact that no separate sentence need be passed against the accused-appellant Khagendra Nath Chetial for the offence under section 307 I.P.C. The other two appellants Dayal Chetial and Timir Chetial (the appellant Guiram @ Putia Chetial since deceased during' the pendency of the appeal) are acquitted from both the charges under section 302 read with sections 34 and 307 read with section 34 of the Indian Penal Code. They must be released at once. 26. A copy of this judgment along with the L.C.R. be sent down to the learned lower court forthwith. I agree. Appeal allowed in part. Conviction and sentence of appellant Khagendra Nath Chetial affirmed but that of other appellants set aside on both the Counts.