JUDGMENT I.A. Ansari, J. 1. By the impugned judgment and order dated 22-10-1998 passed in Case No. ST 119(W.T./A) of 1996 the present two accused-appellants namely Shri Abu Bahar Siddik alias Abu Mia and Shri Abbasuddin Ali alias Abbas Mia stand convicted under Sections 302 and 447 read with Section 34 of the Indian Penal Code and sentenced to undergo for their conviction under Section 302 read with Section 34, IPC to imprisonment for life and to pay a fine of Rs. 5,000/- each and, in default, to suffer further imprisonment for three months and to further pay, for their conviction under Section447 read with Section 34 of the IPC a fine of Rs. 500/- each and, in default to suffer simple imprisonment for one month. 2. The case of the prosecution, as was unfolded at the trial may in brief be staled as follows :-- On 18-6-1995 at about 8/8-30 a.m. accused-appellant, Abu Bahar Siddik alias Abu Mia trespassed into the land of Abdul Hai husband of deceased Bandana Begam and started ploughing the same, Bandana came to the land and offered her resistance. When Bandana (since deceased) and accused Abu were having altercation the accused-appellant. Abbasuddin Ali alias Abbas Mia, brother of accused-appellant Abu came to the place, where Abu and Bandana were having altercation and gave a blow by a lathi on the person of Bandana. Bandana fell down on the ground whereupon both the accused-appellants namely Abu and Abbas gave further blows by lathis on Bandana. Accused Chand Mia and Sahid Islam (both of whom stand acquitted) reached armed with lathis near the place of occurrence; but in the meanwhile as their co-villagers came running to the place of occurrence on hearing the hue and cry raised there all the accused took to their heels. Injured Bandana was brought to the local Primary Health Centre and while Bandana was being given first-aid at the Health Centre a telephonic message was received at East Agartala Police Station from Sahidul Islam son of accused Chand Mia aforementioned (since acquitted) informing the police that some unknown persons had assaulted Bandana Begam. On the information so received G.D. Entry No. 988 dated 18-6-1995 at 9.25 a.m. was made at the said police station and when the Investigating Officer (P.W. 12) came to the said dispensary he found Bandana lying injured there. On the information so received G.D. Entry No. 988 dated 18-6-1995 at 9.25 a.m. was made at the said police station and when the Investigating Officer (P.W. 12) came to the said dispensary he found Bandana lying injured there. The said Police Officer examined the injured Bandana her statement was reduced into writing by one of Bandana's relatives and Bandana put her thumb impression thereon. Treating the said statement of Bandana as First Information Report police registered a case under Sections 447/325/34, IPC against the four accused persons aforementioned as Bandana's condition was precarious, she was referred to G.B. Hospital, Agartala and while remaining under treatment at G. B. Hospital Bandana succumbed to her injuries on 23-6-1995. In course of time after usual investigation police laid charge-sheet against the four accused persons namely (i) Chand Mia (ii) Sahid Islam (iii), Abu Bahar Siddik and (iv) Abbasuddin Ali under Sections 447/302/34, IPC. 3. During trial, all the four accused persons above-named pleaded not guilty to the charges framed against them under Sections 447 and 302 read with Section 34, IPC. 4. In all, prosecution examined 12 witnesses. The accused were then examined under Section 313, Cr. P.C. and in their examinations aforementioned the accused denied that they had committed the offences alleged to have been committed by them the case of the defence being in brief, thus : The land where the occurrence allegedly took place did not belong to, or was possessed by Bandana's husband Andul Hai rather the said land belonged to and had been in possession of accused Chand Mia. None of the accused was involved in the alleged occurrence of assault of Bandana and the question of the accused trespassing into their own land did not arise at all No evidence was, however, adduced by the defence. 5. On conclusion of the trial the learned trial Court held the present accused-appellants guilty of the offences charged with and convicted them accordingly and also passed sentence against them as hereinabove mentioned. The remaining two accused who had faced the trial were, however, accorded acquittal. 6. We have perused the materials on record. We have heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. Ghosh learned counsel appearing on behalf of the accused-appellant and Mr. A. Ghosh, learned Additional Public Prosecutor for the respondent. 7. Assailing the very foundation of the prosecution's case, Mr. 6. We have perused the materials on record. We have heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. Ghosh learned counsel appearing on behalf of the accused-appellant and Mr. A. Ghosh, learned Additional Public Prosecutor for the respondent. 7. Assailing the very foundation of the prosecution's case, Mr. Bhowmik has submitted that the whole case of the prosecution is a concocted one and the G.D. Entry which was allegedly made on the basis of the telephone message received regarding the occurrence at the police station, was deliberately suppressed by the prosecution. It is also submitted by Mr. Bhowmik that the statement of injured Bandana allegedly reduced into writing by one of her relatives could not have been treated as the First Information Report of the case inasmuch as the investigation into the offence had allegedly started on the basis of the telephonic message and before the said statement of the injured was recorded. Mr. Bhowmik points out that the FIR, in this case, has, thus not been produced before the Court to unfold as to what the version of the occurrence was originally disclosed to the police. Reliance in this regard, has been placed by Mr. Bhowmik on the decision in Sevi v. State of Tamil Nadu,. 8. Assailing further the case of the prosecution Mr. Bhowmik has submitted that in the case at hand, the evidence given by the witnesses, in general suffer from embellishment exaggeration and falsehood and that the star witness of the prosecution namely Smt. Rajia Khatoon (P.W. 3) who is claimed to have witnessed the whole occurrence was a student who was barely 13 years old. Apart from the fact that this child witness's evidence was recorded on a number of days after the occurrence and no explanation for her belated examination was offered even her evidence according to Mr. Bhowmik suffered from improvements and the learned trial Court ought to have held, in the face of the evidence on record as a whole that her evidence was wholly unsafe to place reliance upon. Reference in this regard has been made by Mr. Bhowmik to Chhagan Dame v. State of Gujarat reported in and Bharvad Bhikha Valu v. The State of Gujarat reported in. 9. However, ignoring all the weaknesses with which suffered the prosecution case, the learned trial Court complains Mr. Reference in this regard has been made by Mr. Bhowmik to Chhagan Dame v. State of Gujarat reported in and Bharvad Bhikha Valu v. The State of Gujarat reported in. 9. However, ignoring all the weaknesses with which suffered the prosecution case, the learned trial Court complains Mr. Bhowmik placed implicit reliance on the evidence of the witnesses and came to hold that the two accused-appellants had trespassed into the land which was in the possession of Abdul Hai, husband of deceased Bandana. This conclusion submits Mr. Bhowmik was reached by the learned trial Court primarily relying upon the finally published khatian in respect of the suit land whereas the draft Khatian reveals that the land in question belonged to and had been in possession of accused Chand Mia who stands acquitted since then. In the face of the evidence on record the learned trial Court ought not to have held, contends Mr. Bhowmik that the accused were guilty of criminal trespass into the land. 10. It is pointed out by Mr. Bhowmik that since it was the prosecution's case that the land where the occurrence had taken place belonged to, and had been in possession of deceased Bandana's husband Abdul Hai the said Abdul Hai, was an essential witness and his non-production as a witness by the prosecution should have been treated as sufficient by the learned trial Court to hold that the land where the alleged occurrence had taken place, was in the possession of the father of the accused appellants namely Chand Mia (supra acquitted) at the time of occurrence. Reliance in this regard, is placed by Mr. Bhowmik on Bir Singh v. The State of U. P. reported in. 11. It is also pointed out by Mr. Bhowmik that in the face of the evidence on record even if the same were believed in their entirety the same was not sufficient to hold that the accused-appellants shared the common intention of causing death of Bandana inasmuch as the total number of injuries found on the person of Bandana even if believed were three in number and out of these three injuries only one injury which was caused on the head was found to be fatal and since there was no evidence on record to show as to which of the two accused-appellants had caused the fatal injury none of the two accused-appellants pleads Mr. Bhowmik, could have been held guilty under Section 302 read with Section 34, IPC and at best the accused-appellants could have been convicted under Section 323read with Section 34, IPC. It is further pointed out by Mr. Bhowmik that no opinion was given in the post-mortem report by the doctor (P.W. 6) that the fractures of the fronto parietal area of the head sustained by Bandana was sufficient to cause death and in such a situation contends Mr. Bhowmik there was no expert opinion that it was the result of the fracture sustained on her head that Bandana had died. In such a situation according to Mr. Bhowmik the accused-appellants ought to have been given benefit of doubt. Support for his submissions is sought to be drawn by Mr. Bhowmik from the decisions in Mahbub Shah v. Emperor Gajjan Singh v. State of Punjab State of M. P. v. Deshraj and Ramesh Singh alias Photti v. State of A. P. 12. Controverting the submissions made on behalf of the accused-appellants Mr. Ghosh, learned Additional Public Prosecutor, has contended that, the evidence on record was sufficient to hold the accused appellants guilty of the charges framed against them. It is also submitted by Mr. Ghosh that the learned trial Court on a dispassionate consideration of the evidence on record, found only the present two accused-appellants guilty of the charges framed against them and acquitted the remaining other two accused (who had faced the trial), for, the evidence on record did not convince the learned trial Court that the two acquitted accused persons though shown to have come to the place of occurrence were actually involved in the occurrence of assault on Bandana or had shared the common intention of the accused-appellants. This shows, contends Mr. Ghosh that the accused-appellants received dispassionate appreciation of evidence on record by the learned trial Court Mr. Ghosh has further submitted that the learned trial Court was justified in holding the present accused-appellants guilty of the charges framed against them under Section 302 read with Section 34, IPC inasmuch as both the accused-appellants were convincingly proved to have shared the common intention of causing death of Bandana. 13. Ghosh has further submitted that the learned trial Court was justified in holding the present accused-appellants guilty of the charges framed against them under Section 302 read with Section 34, IPC inasmuch as both the accused-appellants were convincingly proved to have shared the common intention of causing death of Bandana. 13. Having heard the learned counsel for the parties, and upon perusal of the materials on record what attracts our eyes most prominently, is that though the defence agitated throughout the trial that the prosecution's case suffered from suppression of the FIR the fact remains that the Investigating Officer (P.W. 12) deposed that on 18-6-1995 at about 9-25 a.m. a telephonic message was received by their police station and upon making G.D. Entry No. 988, dated 18-6-1995 he came to the State dispensary. When this Investigating Officer was under cross-examination by the defence he deposed to a pointed query made by the defence that the telephonic message had been received from Sahidul Islam son of accused Chand Mia, to the effect that some unknown persons had assaulted Bandana Begam. Faced with the answer of the Investigating Officer the defence did not further cross-examine the Investigating Officer on this aspect of the prosecution's case and it was not even suggested to him that: his evidence that it was Sahidul Islam, who had informed the police on telephone that some unknown persons had assaulted Bandana Begam was false. Situated thus there is no escape from the conclusion that the initial information regarding the occurrence was given to the said police station by none other than one of the brothers of the accused-appellants. The information so given to the police could not have bound Bandana and/or her husband and/or the prosecution. Be that as it may in view of the fact that the undisputed evidence given by the Investigating Officer is that it is one of the brothers of the accused-appellants who had informed the police regarding the occurrence to the effect that some unknown person had assaulted Bandana it is not really material that the relevant G.D. Entry had not been produced in the Court for the Investigating Officer's evidence as to what information had been received by the police with regard to the occurrence has remained wholly unassailed. The present one is, thus not one of those cases in which the prosecution can be said to have suppressed the FIR. 14. The present one is, thus not one of those cases in which the prosecution can be said to have suppressed the FIR. 14. In Sevi (supra), the case of the defence was that the First Information Report which was originally registered was something altogether different from what had been put forward as the First Information Report at the trial. In order to substantiate their plea, the defence prayed for directing the police to produce the First Information Report Book in the Court. Though this prayer was allowed the police did not produce the relevant FIR Book in the Court. Had the FIR Book been produced it would have contained the necessary counterfoils corresponding to the FIR produced in the Court. The Sub-Inspector when questioned stated that he had searched for the counterfoil book, but was unable to find the same. This explanation was according to the High Court impossible to accept. The police officer claimed that the relevant entries had been made in the general diary but he did not produce even the general diary in the Court. In these circumstances the Apex Court held that there is great force in the submission of the defence that the original FIR had been suppressed and in its place some other document had been substituted and this manipulation made the entire prosecution case suspicious. In contrast, in the case at hand though the defence has alleged that the initial version of the occurrence disclosed to the police has been suppressed the fact remains as already indicated herein-above that the evidence given by the Investigating Officer that a telephonic message was received on 18-6-95 at 9.25 a.m. from one Sahidur Islam, i.e. one of the brothers of the accused-appellant to the effect that some unknown person had assaulted Bandana has remained unchallenged. This apart, the defence, at no stage demanded production of the relevant general diary. Situated thus it is clear that the prosecutions case does not suffer from suppression of facts and by no means prosecution's case can be discarded on account of the fact that the general diary entry No. 988 aforementioned had been suppressed by the prosecution at the trial. In short the facts of the present case do not attract the decision laid down in Sevi (supra). 15. To the facts of the case at hand, therefore, the decision in Sevi (supra) relied upon by Mr. In short the facts of the present case do not attract the decision laid down in Sevi (supra). 15. To the facts of the case at hand, therefore, the decision in Sevi (supra) relied upon by Mr. Bhowmik has no application at all. 16. As regards Mr. Bhowmik's contention that the statement of Bandana which was allegedly recorded at the State dispensary and proved as Ext. P.6 was not the FIR, there can be no dispute at all for this statement was made after the police investigation based on the said G.D. Entry, had already commenced. However, the statement so made by Bandana was in fact the dying declaration of Bandana, for the statement disclosed the cause of her death. Be that as it may, since neither the prosecution nor the defence relied on this statement, we presently keep the same excluded from the purview of our consideration. 17. Turning to the evidence of the child witness, namely, P.W. 3 (Rajia Khatoon) we notice that her statement was, admittedly, not recorded on the very day of occurrence. Merely because of the fact that the statement of P.W. 3 was recorded belatedly, this in itself is not sufficient to discard her evidence particularly, when the Investigating Officer's evidence that he visited the place of occurrence on 18-6-1998 (i.e. on the very day of occurrence) and, thereafter, he could not visit the place of occurrence between 20-6-1995 and 1-7-95 due to law and order problem has not been disputed by the defence. In her evidence P.W. 3 has clearly deposed that on the day of the occurrence which was a Sunday, at about 8/8-30 a.m. when it was drizzling, she saw accused Abu ploughing the land situated to the south of the Cherra, and while Abu was so ploughing the land, Bandana went there and requested him not to plough the land till the matter was settled between him (Abu) and his uncle, i.e. husband of Bandana and while Bandana and Abu were having altercation, accused Abbas came there with a lathi and gave a blow on Bandana, Bandana fell down on the ground, whereupon both the accused, Abu and Abbas, assaulted Bandana by lathis and at that very moment, Chand Mia and Sahid Islam (both of whom stand acquitted since then) went running to the place of occurrence being armed with lathis. It is in the evidence of P.W. 3 that seeing the incident, she became frightened, rushed to her house and narrated the occurrence to her mother, her mother and their other co-villagers went to the place of occurrence, she accompanied them she saw bleeding injuries on the head and ear of Bandana. Bandana was carried to hospital and she later on came to know that Bandana had died at the hospital. It is also in the evidence of P.W. 3 that she saw the accused fleeing away from the place of occurrence, when their co-villagers rushed to the place of occurrence. Though a number of contradictions were put to this witness at the time of her cross-examination by the defence, none of these contradictions were confirmed by the Investigating Officer, hence the contradictions so alleged to have existed between the evidence of this witness and her previous statement made to the police, remained unproved. We have closely scrutinized the cross-examination of P.W. 3; but we do not find any glaring inconsistency or inherent falsity in the evidence given by this witness and we see no reason to discard her evidence merely because of the failure of the police officer to record her statement promptly. 18. However, even if we, for a moment, do not take into account the evidence of P.W. 3 the evidence of P.W. 1 (Safia Begum), P.W. 2 (Dhanesh Miah), P.W. 4 (Abbas Miah) and P.W. 5 (Sisir Chakraborty) cannot be ignored. 19. According to the evidence of P.W. 1 about two days before the occurrence, she had come to the house of her father on a courtesy visit, the house of Bandana being on the adjacent south of her father's house and on the day of the occurrence, at about 8/8-30 a.m. when she came out of the kitchen to throw the waste water, she saw accused Abu ploughing the land and Bandana resisting him. It is in the evidence of P.W. 1 that Bandana was requesting Abu not to plough the land till arrival of his uncle i.e. husband of Bandana, but Abu did not pay any heed to Bandana's repeated requests and continued to plough the land, which belongs to Bandana's family. It is in the evidence of P.W. 1 that Bandana was requesting Abu not to plough the land till arrival of his uncle i.e. husband of Bandana, but Abu did not pay any heed to Bandana's repeated requests and continued to plough the land, which belongs to Bandana's family. It is also in the evidence of P.W. 1 that when Bandana and accused Abbu were having altercation, accused Abbas went to the place of occurrence with a lathi, gave a blow with his lathi on Bandana, Bandana fell down on the ground and, then, both accused Abu as well as accused Abbas assaulted Bandana by lathis, accused Chand Miah and his son Sahid too went to the place of occurrence armed with lathis, but as she (P.W. 1) raised the alarm and on hearing the same, her co-villagers went rushing to the spot, the accused, on noticing their co-villagers coming, fled the scene, whereupon their co-villagers took away injured Bandana for treatment. While dealing with the evidence of P.W. 1, it is imperative to note that the fact that on the day of the occurrence she was at the house of her father and Bandana was their neighbour could not be assailed by the defence. 20. Close on the heels of the evidence of P.W. 1 (Dhanesh Miah) has deposed that the occurrence took place at a paddy field, which is located at a distance of about 80/90 cubits from his house and on the day of the occurrence, in the morning on hearing hue and cry, he woke up and rushed to the place of occurrence, he saw Bandana lying with bleeding injury on her head and ear and the accused fleeing away from the place of occurrence with lathis. 21. It is in the evidence P.W. 2 that on a query made by him, Bandana told him that she had been assaulted by Abu and Abbas, and then he (P.W. 2) along with other co-villagers carried Bandana to hospital. 22. Closely lending support to the evidence of P.W. 1 and P.W. 2 P.W. 5 (Sisir Chakraborty), has deposed that on the day of occurrence on his way to Agartala when he was coming down the tilla (hillock), he saw Abu and Abbas assaulting Bandana by lathis on a field and hearing hue and cry. 22. Closely lending support to the evidence of P.W. 1 and P.W. 2 P.W. 5 (Sisir Chakraborty), has deposed that on the day of occurrence on his way to Agartala when he was coming down the tilla (hillock), he saw Abu and Abbas assaulting Bandana by lathis on a field and hearing hue and cry. Muslim people from the oilier side of the cherra (stream) rushed to the place of occurrence and seeing the villagers coming, the accused fled away, whereupon he (P.W. 5) went to the place of occurrence and found bleeding injury on Bandana's head. 23. Broadly in tune with the evidence of P.W. 1, P.W. 2, P.W. 5 and P.W. 4 (Abbas Mia) has deposed that on the day of the occurrence, at about 8/8-30 a.m. when he was going to bring jackfruit by the side of the cherra (stream), he noticed accused Abu ploughing land, Bandana going there and requesting Abu to stop ploughing till arrival of her brother-in-law but at that very moment, he (P.W. 4) saw accused Abbas going there with a lathi, accused Abbas giving a blow by his lathi on Bandana, Bandana falling down on the ground and, then, both Abbas and Abu assaulting. Bandana by lathis. It is in the evidence of P.W. 4 that he and others, then, shifted Bandana to hospital. It is also in the evidence of P.W. 4 that Abu and Abbas on seeing their co-villagers rushing to the place of occurrence, fled away and Bandana succumbed to her injuries after five days. 24. Nothing in particular, we find, elicited from the cross-examination of P.W. 1 to show that her evidence with regard to the occurrence that the two accused persons had assaulted Bandana at the field was false or untrue. The only material omission between her evidence and the statement made before the police, which the defence could elicit was that she had not stated to the police that the land in question, belonged to Bandana Begam. The only material omission between her evidence and the statement made before the police, which the defence could elicit was that she had not stated to the police that the land in question, belonged to Bandana Begam. In this regard also, there is nothing in the evidence on record to show that any query was made by the Investigating Officer from this witness, at the time of recording of her statement as to whether she knew as to who owned the land in question when no such query had been made by the police, the omission on the part of P.W. 1 who is a simple village woman as to who owned the land in question is really not significant and can be safely ignored. 25. Coming to the evidence of P.W. 2 it may be noted that though this witness was said to be inimical to Chand Miah, father of the accused-appellants, the defence could elicit nothing from this witness to show that his evidence that he woke up on hearing hue and cry and, on rushing to the place of occurrence he found Bandana lying at the field and the accused fleeing away from the place of occurrence with lathis was false. Though previous inimical relationship, even if believed, can, at the most make this Court cautious in appreciating the evidence of P.W. 2 the fact remains that previous inimical relationship, if any, cannot in the complete absence of any other reason be made a ground for discarding the evidence of this witness as untrustworthy and unreliable, when the defence failed to elicit any significant material from him to show that what he had deposed was false and untrue. In the fact situation of the present case, Badruddin (supra) can have no application at all. 26. The fact that P.W. 4 lives in the vicinity of the place of occurrence has not been disputed by the defence. From his cross-examination nothing could be specifically elicited by the defence to show that his evidence describing the occurrence and also confirming the presence of P.W. 3 at the place of occurrence, is false. This witness deposed in no uncertain words that at the time of occurrence one girl and some kids were present there. 27. From his cross-examination nothing could be specifically elicited by the defence to show that his evidence describing the occurrence and also confirming the presence of P.W. 3 at the place of occurrence, is false. This witness deposed in no uncertain words that at the time of occurrence one girl and some kids were present there. 27. Though P.W. 4 and P.W. 5 happen to be chance witnesses, this fact is not enough in the absence of any material weakness appearing in their evidence to hold that their evidence cannot be relied upon. 28. We may, at this stage pause to point out that in the case of Bharvad Bhikha (supra) since material witness was a young boy the Court deemed it prudent to seek corroboration of his evidence and the Apex Court held that this approach of the High Court was justified. In the case at hand, however, apart from the fact that the evidence of the child witness (P.W. 3) has remained unshaken on material aspects and inspires confidence, her evidence in fact, stands well corroborated on material aspects by other credible evidence on record. In a situation such as this, reference made by Mr. Bhowmik to the case of Bharvad Bhikha (supra) is misconceived. 29. As regards the case of Chhagan Dame (supra) it is important to note that the child witness, in that case was found to be tutored. It was in such a situation that the Court held that the evidence of the child witness was unsafe to place reliance upon. This apart, even in Chhagan Dame (supra), the child witness was shown to have been influenced and tutored. Contrary to the facts of this case, there is absolutely no material on record to show that P.W. 3 who has been treated as the child witness, was a tutored one and hence, in such a case the reference made by Mr. Bhowmik to the case of Chhagan Dame (supra) cannot but be held to be misconceived. 30. Though it is true as pointed out by Mr. Bhowmik to the case of Chhagan Dame (supra) cannot but be held to be misconceived. 30. Though it is true as pointed out by Mr. Bhowmik, that Abdul Hai should have been examined as a witness, he being the alleged owner and possessor of the land where the occurrence had taken place, what is important to note while dealing with this aspect of the matter is that the consistent evidence of the prosecution witnesses is that the land in question not only belong to but had also been in possession of Abdul Hai. This part of the evidence given by the witnesses, in general, remained unshaken. 31. It is, no doubt, true that the draft Khatian in respect of the said land was in the name of Chand Mia (since acquitted). What is, however, of utmost importance to note is that the final khatian in respect of the said land was proved to have been issued in favour of Abdul Hai. Hence, in the face of the oral evidence on record coupled with the fact that the final khatian in respect of the said land had been granted in favour of Abdul Hai, it was wholly justified on the part of the learned trial Court to conclude that the land in question had been in possession of Bandana's husband Abdul Hai. The case at hand is, therefore, not akin to the case of Bir Singh (supra). In Bir Singh (supra) the evidence of the witnesses, who were examined in the Court, were found to suffer from various infirmities and for the purpose of placing reliance, it was necessary for their evidence to be corroborated, but in view of the fact that the prosecution examined only the witnesses, who were inimical to the accused and at the same time excluded the independent witnesses the Apex Court held that non-examination of the independent witnesses was fatal for the prosecution's case. In the case at hand, no animosity in general is alleged to have been existing between the prosecution witnesses and the accused-appellants. This apart, all the material witnesses have been examined and the non-examination of Abdul Hai and/or non-examination of many other persons who might have assembled at the place of occurrence cannot be held to have caused dent to the case of the prosecution. 32. What emerges from the above discussion of the evidence of P.Ws. This apart, all the material witnesses have been examined and the non-examination of Abdul Hai and/or non-examination of many other persons who might have assembled at the place of occurrence cannot be held to have caused dent to the case of the prosecution. 32. What emerges from the above discussion of the evidence of P.Ws. 1, 2, 3, 4 and 5 is that accused Abu Mia was seen ploughing the land of Bandana's husband Abdul Hai and when Bandana objected thereto, accused Abbas Mia came running to the said land and gave blow with his lathi on Bandana. When Bandana having been so attacked, fell down on the ground, both the appellants gave further blows by lathis on Bandana. On witnessing the occurrence when alarm was raised and their co-villagers were seen rushing to the place of occurrence, the accused-appellants took to their heels. Bandana, who had sustained injuries on her head and other parts of her body, was brought to the local Sub-Health Centre and from there, as her condition was precarious, she was shifted to BG Hospital where she succumbed to her injuries on 23-6-1995. 33. Let us now determine as to how far the above oral evidence with regard to the occurrence is corroborated by the medical-evidence on record. In this regard it may be noted that the evidence of P.W. 7 (Dr. Indrajit Paul) is that on 18-6-1995, Bandana was brought to the Old Agartala Dispensary at about 9.30 am and on examining her, he found lacerated wound on the frontal aspect of her scalp measuring 3 inch x 1/2 x 1/2" and another lacerated wound on the left side of the scalp measuring 21/2 x 1/2 x 1/2" x 1/2". P.W. 7 also found one swelling injury on the right thigh of Bandana the injuries being fresh and caused by blunt weapon. P.W. 7 has proved his report as Ext. P2. 34. P.W. 7 also found one swelling injury on the right thigh of Bandana the injuries being fresh and caused by blunt weapon. P.W. 7 has proved his report as Ext. P2. 34. The defence agitated that since the medical report given by P.W. 7 mentioned the time as 9.30 p.m., it was incorrect that Bandana was brought to the Health Centre at 9-30 a.m. In this regard the evidence of the doctor (P.W. 7) is that the Health Centre is according to the Government Circular closed at 6 p.m. and hence the time was advertently written by him as 9-30 p.m. in place of 9-30 a.m. Notwithstanding the fact that such an assertion was made by the P.W. 7 the defence did not apply for production of the government circular. This apart, the evidence of the Investigating Officer (P.W. 4) more than abundantly proves that upon receiving the information about the occurrence at 9-25 a.m., from the brother of the accused-appellants, he came to the said dispensary and found Bandana lying injured there. The evidence of the Investigation Officer has remained unshaken on this aspect of the matter. This apart, nothing has been brought on record to show that P.W. 7 is an interested witness and/or was willing to falsely implicate the accused. Hence, the evidence of P.W. 7 cannot be discarded. 35. Coupled with the above, the evidence of P.W. 6 (Dr. Pijush Kanti Das) is that on 26-3-95, he held post-mortem examination on the dead body of Bandana and found as follows :-- 1. Stitched injury mid point of fronto parietal area of the head 3" x 1/2" skull depth. The injury was antemortem and six days old (approx). 2. All the system of the body was found healthy. The injury as stated above involved vessel muscles, brain materials with fracture. 36. It is also in the evidence of P.W. 6 that. Bandana's death was caused due to shock and haemorrhage and that the injury found on the said deceased was sufficient to cause death of a person in the ordinary course of nature. 37. The injury as stated above involved vessel muscles, brain materials with fracture. 36. It is also in the evidence of P.W. 6 that. Bandana's death was caused due to shock and haemorrhage and that the injury found on the said deceased was sufficient to cause death of a person in the ordinary course of nature. 37. Notwithstanding the fact that in the post-mortem report the doctor (P.W. 6) had not specifically expressed the opinion that the head injury sustained by Bandana was sufficient to cause death of a person in the ordinary course of nature, the fact remains that the opinion given by P.W. 6, at the trial, that the fracture of the fronto parietal area on the head of Bandana was sufficient to cause death of a person in the ordinary course of nature has remained unshaken and undisputed. Hence, there can be no escape from the conclusion that Bandana sustained injury on the fronto-parietal area of her head and this injury was sufficient to cause death in the ordinary course of nature. This apart, the evidence of P.W. 7 clearly reveals, as already indicated herein-above that her thigh bore swelling injury and that there was also a lacerated injury on the left side of her scalp. With the passage of time it was quite possible for the injury on the thigh and the injury on the left side of the scalp to have healed and having therefore, not remained noticeable by P.W. 6. 38. What transpires from the above discussion of the evidence of P.W. 6 and P.W. 7 is that Bandana suffered injuries on the fronto parietal region of her scalp, on the left side of her scalp and swelling on her left thigh she succumbed to the fracture of the fronto parietal area of the scalp, the fracture so sustained by her on her head being sufficient to cause death of a person in the ordinary course of nature. 39. What emerges from the above discussion of the evidence on record, as a whole is that Bandana, as the evidence on record reveals, was assaulted by both the accused-appellants with lathis, she sustained altogether three injuries, one on her leg and two on her head, one of the injuries on head which was sustained on the fronto parietal area, proved fatal. It is not, however, discernible from the evidence on record as to who had actually caused the fatal injury on the head. It is in such a fact situation that we have to decide if the accused-appellants can be said to have shared common intention to cause Bandana's death and caused her death in furtherance of their such common intention. 40. It is Section 34, IPC which embodies the concept of joint liability in doing the criminal act based on common intention. This section only provides a rule of evidence and does not create a substantive offence. As a general principle, in a case of criminal liability, it is the primary responsibility of the person who actually commits the offence and only that person, who has committed the offence can be held to be guilty of the offence committed. By introducing Section 34 in the Penal Code, the Legislature has laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention, would be responsible for the offence committed irrespective of the role played in its perpetration. 41. Common intention essentially being a state of mind, it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the acts, such as, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made from the nature of injury caused by one or some of them. The contributory acts of the persons, who are not responsible for the injury can be further inferred from the conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of the common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit the offence. (See Noor Mohammed Yusuf Momin, reported in. 42. In this regard even an illegal omission on the part of such accused can indicate the sharing of the common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit the offence. (See Noor Mohammed Yusuf Momin, reported in. 42. Since common intention is essentially a state of mind and can only be gathered by inference drawn from facts and circumstances established in a given case, the earlier decisions involving almost similar facts cannot be used as a precedent to determine the conclusions on facts in the case in hand. (See Ramesh Singh alias Photti v. State of A.P., reported in and Pandurang Tukia and Bhillia v. State of Hyderabad, reported in. 43. What Section 34, IPC envisages is that if two or more persons intentionally do an act jointly the position in law is just the same as if each of them has done it individually by himself. Existence of a common intention amongst the participants in a crime is the essential element for application of Section 34. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provisions of Section 34. (See State of M.P. v. Deshraj, reported in. 44. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention the prosecution has to establish by evidence direct or circumstantial that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of moment but it must necessarily be before the commission of the crime. (See Deshraj (supra)). 45. In fact in Deshraj (supra) the Apex Court has held as follows :-- The true contents of section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. (See Deshraj (supra)). 45. In fact in Deshraj (supra) the Apex Court has held as follows :-- The true contents of section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 6. This section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable to the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy v. State of A. P.. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. (Emphasis is added) 46. Bearing in mind the principles governing the concept of joint liability as Section 34 envisages, when we turn to the facts of the present case, what attracts my eyes, most prominently, is that none of the two accused-appellants was armed with any deadly or lethal weapon. (Emphasis is added) 46. Bearing in mind the principles governing the concept of joint liability as Section 34 envisages, when we turn to the facts of the present case, what attracts my eyes, most prominently, is that none of the two accused-appellants was armed with any deadly or lethal weapon. Since the evidence on record reveals that the land, in question, was in the possession of Abdul Hai and the accused appellant's family also laid their claim thereon, there was a dispute between the two families. It is in this background that the accused-appellant No. 1, namely, Abu Mia had entered into the land and started ploughing the same. He had not, however, carried any lethal weapon with him. When Bandana on witnessing the ploughing of the land by the accused-appellant. Abu Mia, protested thereto and an altercation ensued between the two, the accused-appellant No. 2, namely. Abbas Mia, came running to the place of occurrence, while the altercation was in progress between Bandana and Abu Mia, and gave a blow with his lathi on Bandana's leg. On being so assaulted on her leg. Bandana fell down. The swelling noticed by P.W. 6 on Bandana's right leg can safely be held to have been caused by the accused-appellant No. 2. It was, thereafter, that both the accused-appellants gave blows with lathis and two injuries were caused on the head of Bandana, one of the injuries being fracture which was caused on the fronto parietal area of the scalp, and the other one being as noticed by P.W. 6, a lacerated injury on the left side of the scalp. That Bandana sustained these three injuries are not in dispute. It is in such a situation that we have to determine if both the accused-appellants shared a common intention and if so, what the common intention was ? 47. While considering the above aspect of the case it is imperative to note that the evidence on record also clearly shows that had the co-villagers of Bandana not started rushing to the place of occurrence, she might have had been given more blows with lathis. However, in the face of the number of injuries sustained by Bandana it is difficult, nay impossible to infer that, the intention of the accused was to cause Bandana's death. However, in the face of the number of injuries sustained by Bandana it is difficult, nay impossible to infer that, the intention of the accused was to cause Bandana's death. In view of the fact that Bandana was not armed with any weapon and she had not assaulted any of the accused, the accused-appellants had no justification for assaulting Bandana. What is, however, of paramount importance to note is that out of the two injuries sustained there was only one of head, by Bandana, which proved to be fatal. It is not, however, discernible from the evidence on record, if I may reiterate as to which of the two accused-appellants had caused the said fatal injury. 48. What emerges from the above discussion is that the evidence on record does not disclose that Bandana was assaulted with the intention of causing her death. At the same time the evidence on record clearly reveals that both the accused-appellants had assaulted Bandana on her head and fracture was caused on the fronto parietal area of her scalp by one of the blows which had so fallen on her head. From the fact that Bandana had sustained two injuries on her head, it clearly follows that both the accused-appellants shared the common intention in causing grievous injuries on Bandana and, in such a situation, the accused-appellants, instead of being held guilty of the charge of murder ought to have been held guilty of the offence committed by them under Section 326 read with Section 34, IPC. 49. In the result and for the reasons discussed above, we hold that the prosecution could not substantiate and prove beyond all reasonable doubt that the two accused appellants were guilty of the offence under Section 302 read with Section 34, IPC, but the evidence on record proves beyond reasonable doubt that the accused-appellants committed offence under Section 326 read with Section 34, IPC. 50. We, therefore, hold the accused-appellants not guilty of the offence under Section 302 read with Section 34, IPC and we acquit them accordingly of the offence of murder but we hold them guilty of an offence under Section 326 read with Section 34, IPC and convict them accordingly. We also see no reason to interfere with their conviction under Sections 447/34, IPC. 51. We also see no reason to interfere with their conviction under Sections 447/34, IPC. 51. Considering the facts and circumstances of the case we sentence each of the accused-appellants to undergo rigorous imprisonment for a period of 5 (five) years and to pay a fine of Rs. 1000/- and in default of payment of fine to suffer rigorous imprisonment for a further period of three months. 52. The bail bonds of the accused-appellants are cancelled and their sureties discharged. The accused-appellants are hereby directed to surrender forthwith in the Court of Chief Judicial Magistrate, West Tripura, Agartala to serve out the sentences passed against them. 53. With the above observations and directions, this appeal shall stand disposed of. 54. Send back the LCRs.