PRANAB KUMAR DEB, J. ( 1 ) THIS appeal filed at the instance of the twenty appellants has been directed against the conviction and sentence passed by the learned additional Sessions Judge, 2nd Court, Siuri, Birbhum in connection with Sessions trial No. 2 of February, 2000. ( 2 ) THE shocking murder of one Dipankar Mondal took place nearly a decade back in village Indira within the jurisdiction of Saithia Police Station. The prosecution case, as stated in the F. I. R. and elaborated further during the course of the trial, was to the effect that on 06/09/93 round about 18-00 hrs. , the appellants armed with pistol, bomb, tangi and other deadly weapons targeted the informant Pareshnath Mondal, his cousin Dipankar Mondal, his nephew radharaman Mondal, brother Barun Mondal and their neighbour Ranjit Kabiraj, while they were gossiping near their house. Awestruck, the informant and others scooted off to escape being assaulted by the miscreants and his associates. The appellants, however, managed to intercept Dipankar Mondal who was trailing behind others. They started assaulting him with the deadly weapons in their hands. ( 3 ) THE informant and others made a vigorous search for Dipankar Mondal on coming back to their village on the next morning. The dead body of Dipankar mondal was found lying on a paddy field following frantic search being made by the informant and others. There were marks of injuries and wounds on the body. The incident was then reported to Local Police Station. With the lodging of the F. I. R. , Saithia Police Station Case No. 87/1993 dated 07. 09. 93 was registered. The then Officer-in-Charge of Saithia Police Station himself took up the investigation of the case. In course of the investigation, he visited the place of occurrence and prepared its rough sketch map with index. He also prepared another sketch map of the place where the dead body of Dipankar Mondal was found lying. Following the inquest over the dead body of Dipankar Mondal, the dead body was sent for post mortem examination. Meanwhile, the wearing apparels of the deceased were seized in presence of the witnesses. One pair of shoes and a lathi lying near the dead body of the deceased were also seized. ( 4 ) DESPITE raids being conducted on two consecutive dates i. e. 07. 09. 93 and 08. 09. Meanwhile, the wearing apparels of the deceased were seized in presence of the witnesses. One pair of shoes and a lathi lying near the dead body of the deceased were also seized. ( 4 ) DESPITE raids being conducted on two consecutive dates i. e. 07. 09. 93 and 08. 09. 93, the accused persons could not be apprehended. The arrest of some of the accused persons could be executed by S. I. Tapan Pal who took over investigation of the case from S. I. Ashok Sarangi. Eventually, on examination of all the witnesses and collection of all the documents including post mortem report, charge-sheet was submitted under Sections 147/148/149/342/506/302 i. P. C. ( 5 ) FOLLOWING the commitment of the case to the Court of Session, charges under Section 148 I. P. C. and under Section 302 read with Section 34 I. P. C. were framed. The appellants were charged with rioting. They were also charged with having committed murder of Dipankar Mondal in furtherance of their common intention. In the wake of specific denial of the charges the prosecution side examined as many as 12 witnesses including the informant and three other witnesses who claimed to have witnessed the incident, the doctor conducting the post mortem examination and the Police Officers who participated in the investigation of the case. Relying mainly on the accounts of the eye witnesses and the supportive post mortem report, the learned Additional Session judge convicted and, sentenced the appellant Nirmal Kabiraj to imprisonment for life and fine of Rs. 5,000/-, in default, to further rigorous imprisonment for one year for commission of offence under Section 302 I. P. C. The appellant nirmal Kabiraj was also sentenced to rigorous imprisonment for three years for commission of offence under Section 148 I. P. C. The 19 other appellants were sentenced to rigorous imprisonment for life and fine of Rs. 5,000/- each, in default, to further rigorous imprisonment for one year for commission of offence under Section 302/34 I. P. C. They were also sentenced to rigorous imprisonment for three years for commission of offence under Section 148 I. P. C. One of the accused persons namely Gopi Chakroborty, was however, exonerated of both the charges. ( 6 ) AGGRIEVED by the conviction and sentence, the appellants numbering twenty have jointly filed the instant appeal. ( 7 ) APPEARING on behalf of the appellants, Mr. ( 6 ) AGGRIEVED by the conviction and sentence, the appellants numbering twenty have jointly filed the instant appeal. ( 7 ) APPEARING on behalf of the appellants, Mr. Y. Z. Dastoor has submitted that the trial Court failed to appreciate some of the vital aspects of the case. What the learned trial Judge failed to appreciate was that the prosecution tried to improve its case at every stage. The trial Judge, it is submitted, viewed the unusual delay in forwarding the F. I. R. to the Court as an insignificant matter. The trial Judge did not take note of the fact that unusual and unexplained delay in forwarding the F. I. R. to the Court provided ample opportunity to the prosecution side to cook up a case for the purpose of implicating the rival groups following commission of murder of Dipankar Mondal somewhere else by unknown assailants. Referring to the provision of Section 157 of the Code of Criminal procedure, Mr. Dastoor has submitted that it is incumbent on the pan of the police Officer to dispatch the first information report forthwith to the Magistrate. In the instant case, no explanation was offered for the inordinate delay in sending the report to the Magistrate. The case of Iswar Singh v. Stale of U. R, reported in 1996 (4) SCC 355 is cited in support of his contention that the long delay in forwarding the F. I. R. provides a legitimate basis for suspecting, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. Identical view, it is contended, was held by the Apex Court in Balaka Singh and Ors. v. State of punjab, reported in 1975 (4) SCC 511 , where the Apex Court has held that long delay in forwarding the F. I. R. provides sufficient time to the prosecution party to deliberate and prepare a false case. ( 8 ) COMMENTING on the appreciation of evidence, Mr. Dastoor has submitted that the trial Court did not at all consider the unusual conduct of the witnesses who fled away from the alleged place of occurrence and those who stayed back. Those who actually fled away were expected to return immediately after the incident of assault on one of their relations. Dastoor has submitted that the trial Court did not at all consider the unusual conduct of the witnesses who fled away from the alleged place of occurrence and those who stayed back. Those who actually fled away were expected to return immediately after the incident of assault on one of their relations. What they did was to stay overnight in another village only to return only on following morning. That unusual conduct of the so called eye witnesses was not taken note of, as submitted by mr. Dastoor. It is submitted that had the eye witnesses including the informant seen the incident, they would not have asked the villagers as to what happened to Dipankar Mondal. Their making enquiries as to the whereabouts of Dipankar mondal is a firm indication that they had no idea about the assault on Dipankar mondal. The fact that the eye witnesses had seen the incident was not reflected in the inquest report. The names of the miscreants were not disclosed either. Thus, there was every reason to believe that they had no idea about the incident. Since the prosecution was clueless as to how and where the incident had occurred, they brought some highly inimical witnesses to prop up its case. ( 9 ) DRAWING the attention of the Court to the inquest report, Mr. Dastoor has submitted that the dead body was not found at the place where the alleged assault on Dipankar Mondal was made. The recovery of the dead body elsewhere after hours of search suggests that the incident did not happen in the place, as indicated by P. W. 1, P. W. 2, P. W. 4 and P. W. 8, ( 10 ) COMMENTING on the motive behind the murder, Mr. Dastoor has submitted that the evidence was adduced to the effect that the witness Barun mondal slaughtered the goat belonging to the appellants. The persons wronged by such alleged illegal act ought to have vented their ire against him only. There was no logic for the alleged assailants targeting Dipankar Mondal, sparing his relation Barun Mondal. ( 11 ) REPRESENTING the State, Mr. Swapan Mallick has submitted that the prosecution proved what they stated at the threshold of the case. The persons wronged by such alleged illegal act ought to have vented their ire against him only. There was no logic for the alleged assailants targeting Dipankar Mondal, sparing his relation Barun Mondal. ( 11 ) REPRESENTING the State, Mr. Swapan Mallick has submitted that the prosecution proved what they stated at the threshold of the case. The charges, it is claimed, have been proved to the hilt without having significant variations from the stand taken in the F. I. R. There was allegation of assault on Dipankar by the Appellants. This is what the prosecution proved through the evidence of p. W. 1, P. W. 3, P. W. 4 and P. W. 8. Since they were at the spot, there cannot be any logic for viewing their statements with suspicion. Furthermore, the contention of the eye witnesses as to assault of Dipankar Mondal by sharp cutting instruments having received substantial support from the post mortem report, the conviction and sentence should not be disturbed. ( 12 ) EVIDENTLY, the prosecution side sought to build up the foundation of its case on the testimony of the eye witnesses. P. W. 1, P. W. 3, P. W. 4 and P. W. 8 claimed to have seen the incident. As stated by the informant Pareshnath Mondal, they ran towards the south and then to the eastern field following the appellants chasing them with deadly weapons. His elder brother Dipankar Mondal ran at a slower pace. Hearing the alarming call of his elder brother, he turned his head round to see the accused Nirmal Kabiraj catching his elder brother, Dipankar mondal from back side. His elder brother Dipankar Mondal raised his -arm to ward off the assault with Bhojali on his head. In doing so, he sustained injury on his left hand. Thereafter, the appellant Nirmal Kabiraj gave blow on the left side of the head of Dipankar Mondal by the same Bhojali, as alleged by P. W. 1 pareshnath Mondal. His elder brother Dipankar Mondal fell down on the ground on being struck with Bhojali. P. W. 3 Ranjit Kabiraj also levelled the same charge against the appellant Nirmal Kabiraj. Threatened with assault he along with dipankar, Kartick, Paresh and Mukunda started running towards the field on the southern direction. He disclosed that Dipankar Mondal was trailing behind them, as he could not run fast enough. P. W. 3 Ranjit Kabiraj also levelled the same charge against the appellant Nirmal Kabiraj. Threatened with assault he along with dipankar, Kartick, Paresh and Mukunda started running towards the field on the southern direction. He disclosed that Dipankar Mondal was trailing behind them, as he could not run fast enough. On hearing the call of Dipankar Mondal to save him, they stopped. He found Nirmal Kabiraj first trying to deliver a blow on the head of Dipankar Mondal with a Bhojali. Dipankar Mondal sustained injury on the left hand, while raising his left hand to ward off the assault. As alleged by him, Nirmal Kabiraj then delivered a blow on the head of Dipankar mondal with a Bhojali. Same statements were made by P. W. 4 Muktipada Mondal and P. W. 8, They were quite consistent in their allegation that vital blows on dipankar Mondal were delivered by Nirmal Kabiraj. All of them with one accord testified that they scampered off towards the field on being chased by the appellants. There is hardly any contradiction in their statements. They were present at the spot. They viewed the incident from close range. The incident occurred during the twilight. There is no indication that the area was engulfed with darkness. The role of Nirmal Kabiraj in the assault on Dipankar Mondal is quite discernible. We do not find any logic for disbelieving the statements of the eye witnesses. ( 13 ) STRUCK with fear and apprehensive of their own lives, the witnesses ran desperately to escape being intercepted by the assailants. They did not venture to return back on the same date. There is nothing abnormality in their coming back to their village on the next morning. They saw Dipankar Mondal being assaulted by Nirmal Kabiraj. On return, Dipankar Mondal was not found. Naturally, they made enquiries as to whereabouts of Dipankar Mondal. It was followed by their making frantic search for Dipankar Mondal. They did what was expected from them at the hour of crisis. Their acts and deeds cannot be classified as unusual. ( 14 ) P. W. 10, Dr. Ambar Kr. Gupta held the post mortem examination over the dead body of Dipankar Mondal. The doctor found incised wound of 3" X 1/2" over the dorsal aspect of left arm with formation of haematoma. Their acts and deeds cannot be classified as unusual. ( 14 ) P. W. 10, Dr. Ambar Kr. Gupta held the post mortem examination over the dead body of Dipankar Mondal. The doctor found incised wound of 3" X 1/2" over the dorsal aspect of left arm with formation of haematoma. The incised wound over the front of scalp was also noticed with extrusion of brain matter. The doctor opined that the sharp cutting injuries might have been caused by Bhojali and axe. The eye witnesses claimed Dipankar Mondal sustained injuries on left turn and on the head following assault being made by Nirmal kabiraj with a Bhojali. What the eye witnesses claimed finds due corroboration and confirmation from the post mortem report. ( 15 ) THE trial Court convicted and sentenced the other appellants for rioting as well as causing murder in furtherance of their common intention. The eye witnesses did not clarify what precisely the other appellants had done. The informants alleged that the other appellants simply got hold of his elder brother dipankar Mondal. He did not say anything else against the other appellants. P. W. 3 alleged that the remaining appellants struck Dipankar Mondal with iron rods. P. W. 4 Muktipada Mondal simply stated that the remaining miscreants assaulted Dipankar Mondal. He did not elaborate it further. P. W. 8 Kartick Ch. Mondal also made a vague statement to the effect that the remaining accused persons landed blows on Dipankar Mondal. What was their precise role cannot be gauged from the statements of the eye witnesses. Citing the case of Raju panduram Mahala v. State of Maharashtra and. Anr,, reported in 2004 SCC (Cri)1259, Mr. Mallick has sought to impress upon the Court that 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. We do agree that the distinct feature of Section 34 of the Penal Code is the element of participation in action. There is, however, no denying the fact that the prosecution is required to prove that there was plan or meeting of minds of all the accused persons to commit the offences. We are constrained to say that in the instant case such element is totally lacking. There is positive evidence against Nirmal Kabiraj. There is, however, no denying the fact that the prosecution is required to prove that there was plan or meeting of minds of all the accused persons to commit the offences. We are constrained to say that in the instant case such element is totally lacking. There is positive evidence against Nirmal Kabiraj. The same reason, however, cannot be applied in the case of the other appellants. What we find is disjointed and incoherent statements as to their presence and participation. It is on record that nirmal Kabiraj delivered the vital blows, resulting in the death of Dipankar Mondal. There was no such accusation against the other appellants. The evidence-on-record does not suggest that they were aware of the intention of Nirmal Kabiraj either. The conviction of the other appellants with the aid of Section 34 was, therefore, not justified. ( 16 ) WE would like to dwell on another aspect. There are indications in the record that Dipankar Mondal intervened following the row over the slaughter of goat. Their resentment came in the form of annihilating him. He could not run fast enough to escape from the spot, which his associates did it successfully. It is far from true that his other associates were spared. We are afraid we cannot subscribe to the view that Dipankar Mondal alone was targeted. ( 17 ) THERE was some delay in forwarding the F. I. R. That itself is not indicative of cooking up of a false case. What was alleged in the F. I. R. was vindicated at the time of trial. The reporting of the incident was made with promptitude. The appellant Nirmal Kabiraj cannot be let off on that score. ( 18 ) IN the result, the appeal is allowed in part. While upholding the conviction and sentence of Nirmal Kabiraj, we set aside the conviction and sentence of the remaining 19 other appellants. The appellant Nirmal Kabiraj, now on bail, is directed to surrender within 15 days from the passing of the order, failing which, the trial Court shall take appropriate steps to secure the arrest and detention of the appellants Nirmal Kabiraj. The other appellants, who are also on bail, are to be discharged from their respective bail bonds.