JUDGMENT Anima Hazarika, J. 1. This appeal is directed against the judgment and Order dated 12.12.2001 passed by the Additional Sessions Judge (Ad-hoc), Karimganj, in Sessions Case No. 3/99 whereby and where under the Appellant Abdul Malik was convicted under Sections 436/34 IPC and sentenced to Rigorous Imprisonment (RI) for one year and to pay a fine of Rs. 500/-, in default, to undergo RI for 3 months. 2. The prosecution case, in brief is that, one Ram Yatan Rabi Das lodged an FIR before the Karimganj Police Station on 28.8.1998 alleging inter alia that the Appellant Abdul Malik along with one Dhiren Nayak forcibly entered into his house on 27.8.1998, the Sunday, at mid night, and after damaging the boundary fences and walls of the dwelling house, set the house on fire which gutted the house and destroyed the house hold goods. When he made hue and cry, the accused persons fled away leaving a torch light after threatening the first informant. On receipt of the FIR, police registered a case being Karimganj Police Station Case No. 5189/98 under Sections 447/427/436/34IPC and started investigation. On completion of the investigation, the police submitted charge-sheet against both the accused persons under Sections 447/436/323/34 IPC. 3. The case being exclusively triable by the Court of Sessions, the same was committed to the Court of learned Sessions Judge, who assigned the same to the learned Assistant Sessions Judge, Karimganj, who upon perusal of the materials on record, framed charges against the accused persons under Sections 323/436/34 IPC. The charges so framed were explained and read over to the accused persons to which, they pleaded not guilty and claimed to be tried. The accused Dhiren Nayak expired in the meanwhile and as a result, the case against him stood abated and the present accused Appellant Abdul Malik had alone faced the trial before the Court. After examination of six prosecution witnesses, the case was again transferred to the Court of learned Addl. Sessions Judge (Ad-hoc), Karimganj, where two more witnesses including the Investigating Officer were examined. 4. Thus, during the trial, prosecution examined all total 8 witnesses while defence examined 2 witnesses. The defence categorically denied the prosecution case. After examination of six prosecution witnesses, the case was again transferred to the Court of learned Addl. Sessions Judge (Ad-hoc), Karimganj, where two more witnesses including the Investigating Officer were examined. 4. Thus, during the trial, prosecution examined all total 8 witnesses while defence examined 2 witnesses. The defence categorically denied the prosecution case. The accused while examined under Section 313 Code of Criminal Procedure denied the involvement in the case and stated that he has been falsely implicated in the case as he had an altercation with the informant on the date of occurrence over price of rice that was payable to him by the informant. After completion of the trial, the learned Court below found the offence under Sections 323/34 IPC as not proved by the prosecution and therefore, the accused Appellant was acquitted from the charge under 323/ 34 IPC." Sections 323/34 IPC. However, he was found guilty under Sections 436/34 IPC. Thus, the learned Court below passed the order of conviction and sentence as indicated above. Hence, this appeal. 5. In the instant appeal, the whole prosecution case rests mainly on the evidence of P.W. 1, the wife of the informant, who is the sole eye-witness. 6. The first informant died before facing the trial and therefore, he could not be testified to prove the fact that the house and household goods were gutted in the fire due to the mischief allegedly caused by the two accused persons named in the FIR (Ext. 1). 7. In the case in hand, except P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5, the Doctor, P.W. 6, the Investigating Officer and P.W. 7 and P.W. 8, the two police personnel, all are reported witnesses. The reported witnesses came after hearing hue and cry made by the first informant and his family and therefore, they had not seen the occurrence. Therefore, the evidences of these witnesses are not relevant in deciding the present case. 8. P.W. 1, Sabitri Rabidas is the only eyewitness to the occurrence as indicated above. She has deposed that the two accused persons broke the boundary fencing and the accused Dhiren Nayak called Ram Yatan, i.e. her husband by his name and asked to come out. Ram Yatan came out and he had an altercation near the door with accused Dhiren Nayak, since dead, who enquired whether Ram Yatan would leave that home-stead. She has deposed that the two accused persons broke the boundary fencing and the accused Dhiren Nayak called Ram Yatan, i.e. her husband by his name and asked to come out. Ram Yatan came out and he had an altercation near the door with accused Dhiren Nayak, since dead, who enquired whether Ram Yatan would leave that home-stead. Ram Yatan replied in negative. P.W. 1 came out of the house at that moment and she saw that accused Malik was about to assault her husband. When she intervened she was assaulted by the accused by way of slapping, boxing and kicking and she fell down. In the meanwhile, the accused Dhiren set fire to the thatches of the house. Having seen the same, she made hue and cry and on that, the accused fled away. She further deposed that there was no house nearby their house. There were some houses in the distance and when some persons came from there, they saw the accused persons fleeing away. During cross-examination, she deposed that accused Malik is staying half mile away from her house. The house of Dhiren is adjacent to her house. On a suggestion put to her that she and her husband are preparing country liquor at their house and therefore, police had already arrested them several times, she had denied the same. Other suggestions put to her also have been denied. 9. From the evidence of P.W. 1, it is seen that she had made the specific statement that "accused Dhiren put fire to the thatches of our house" and against present accused, Abdul Malik she has alleged that she was assaulted by Abdul Malik when she intervened him, who was about to assault her husband Ram Yatan. However, there is no mention in the FIR regarding the said assault. As stated earlier, the offence under Sections 323/34 IPC could not be proved by the prosecution and therefore, the accused Appellant was acquitted under Sections 323/34 IPC but the learned trial Court found the accused Appellant Abdul Malik to be responsible for the offence under Section 436 IPC and held that, "Abdul Malik is found responsible for his offence although he himself did not bum the house". The learned trial Court further held that the accused Appellant had pre-meditation and a concerted mind while coming along with accused Dhiren Nayak to the homestead of P.W. 1 and setting the house on fire conjointly with him in exercise of their pre-planned design to do the mischief and accordingly, the accused Appellant was found guilty for committing offence under Sections 436/34 IPC. 10. Defence examined two witnesses. Both D.W. 1 and D.W. 2 are co-villagers of the accused. They deposed that the accused is a small businessman doing business of rice. He is also a day labourer. On the day of occurrence, in the morning, some altercation took place between the accused and the first informant regarding payment of Rs. 300/- to be paid to the accused by the first informant, being the unpaid price of rice and therefore, the accused has been falsely implicated. The accused also made similar statements while examining under Section 313 Code of Criminal Procedure as mentioned above. 11. Heard Mr. H.R.A. Choudhury, learned Senior Advocate assisted by Mr. I. Uddin, Advocate appearing for the Appellant. Also heard Mr. K.C. Mahanta, learned P.P., Assam. 12. While attacking the judgment of conviction passed by the learned trial Court below, Mr. Choudhury, learned Senior Advocate has submitted that the learned trial Court had wrongly appreciated the deposition of P.W. 1 and thus had wrongly came to the conclusion that the accused Appellant in concerted mind with accused Dhiren Nayak had set fire to the house of the P.W. 1. While holding the Appellant guilty for committing offence under Sections 436/34 IPC, the learned trial Court has not considered the statements made by the accused under Section 313 Code of Criminal Procedure which is also supported by the two defence witnesses. Therefore, judgment of conviction has been passed without proper appreciation of the evidence on record and the same was passed without applying its mind to the evidence of the sole eye-witness, P.W. 1, who had categorically stated that, "accused Dhiren had put fire to the thatches of our house", which clearly shows that the prosecution has not been able to prove the ingredients necessary to warrant conviction of the accused Appellant under Sections 436/34 IPC. The impugned judgment of conviction is therefore bad in law and liable to be set aside and quashed. 13. In support of his submission, Mr. The impugned judgment of conviction is therefore bad in law and liable to be set aside and quashed. 13. In support of his submission, Mr. Choudhury has relied upon the following decisions: 1) AIR 1955 Gau 2 : Kinaram Das and Ors. v. State of Assam 2) (2005) 13 SCC 134 : Vaijayanti v. State of Maharashtra 3) 2006 (3) GLT 229: Jogen Chandra Roy and Anr. v. State of Assam. In Kinaram Das (supra), Division Bench of this Court itself at para 8 as to the proof of common intention has held that, common intention within the meaning of Section 34 implies a pre-arranged plan. It is necessary to prove for the application of Section 34, that the criminal act was done in concert pursuant to a pre-arranged plan. No doubt, it is difficult, if not impossible, to procure direct evidence to prove the intention of individuals or group but intention can be inferred from acts or conduct or relevant circumstances. Care has to be taken not to confuse same or similar intention with common intention and if the distinction is overlooked, it may result in miscarriage of justice in some cases. The inference of common intention within the meaning of the term in Section 34, should not be reached unless it is a necessary inference deducible from the circumstances of the case. In the said case, the court relied upon a decision of a case reported in AIR 1945 PC 118. In Vaijayanti (supra), the Hon'ble Apex Court while allowing the appeal filed by the accused held that inference in respect of common intention has to be drawn having regard to the actual role played by the accused. Relevant para 15 of Vaijayanti (supra) is quoted hereinbelow: In Hem Raj v. Raja Ram, one Hari Padam was sought to be roped in by applying Section 34 IPC who is said to have shouted that the enemy had been caught and that he had to be finished. This Court held (SCC p. 22, para 11) 11. Keeping in mind fully that this being an appeal against acquittal, this Court ought to be slow in reversing the same, we considered the evidence of the witnesses and the other relevant facts of the case. This Court held (SCC p. 22, para 11) 11. Keeping in mind fully that this being an appeal against acquittal, this Court ought to be slow in reversing the same, we considered the evidence of the witnesses and the other relevant facts of the case. We are of the view that the prosecution successfully proved that the accused Raja Ram and Pappu @ Raj Kumar fired bullets at Mota Ram and caused his death. As regards the involvement of Hari Padam, we have serious doubts. Exhortation made to kill the deceased Mota Ram is attributed to him and that by itself is not a strong evidence to prove his complicity. He has to be given the benefit of doubt and we accordingly do so. Though a charge was framed against the accused persons under Sections 25 and 27 of the Indian Arms Act, no conviction was entered against them despite recovery of weapons from them and the proved fact that these weapons were used for the commission of the offence. The evidence on record was not discussed in detail and no conviction was entered against them for that offence. So we do not want to express any opinion on that count." Yet again in Idrish Bhai Doudhbai v. State of Gujarat, wherein one of us was a member, this Court, while considering a case where the Appellant therein had come out with a big stick and rushed towards the deceased and others saying "beat, beat", it was held (SCC pp. 282-83, para 18). 18. The prosecution has also failed to bring any materials on record to show that there had been any pre-concert or pre-arranged plan so as to hold that the Appellant had any common intention to commit the alleged offence. The first information report itself suggests that the accused persons became excited all of a sudden. It has come on record that Accused 3 Bibiben had also sustained injuries. The learned Sessions Judge himself has found that the prosecution has failed to prove her involvement in the matter. If the Appellant exhorted after infliction of injuries was completed, he by no means can be held guilty of sharing a common intention with the other accused to commit murder of the deceased or cause injuries to P.W. 3. The learned Sessions Judge himself has found that the prosecution has failed to prove her involvement in the matter. If the Appellant exhorted after infliction of injuries was completed, he by no means can be held guilty of sharing a common intention with the other accused to commit murder of the deceased or cause injuries to P.W. 3. On the other hand, if he was the first person to cause injury to the deceased by inflicting a blow on his head by a stick, it is wholly unlikely that he would imagine that Accused 1 and 2 would go back to their house to bring the knives and inflict injuries to the deceased and P.W. 3 and, thus, a case of forming common intention at that time must be ruled out. It is, therefore, not a case where a common intention amongst the accused persons can be said to have been existing either from the beginning or was formed on the spur of the moment. Exhortation, furthermore, by itself is not enough to prove common intention on the part of an accused. We may, applying the principles of law as appearing from the decisions of this Court referred to hereinabove, note that in the instant case the expressions alleged to have been used by the Appellant herein, according to different witnesses, were different. It may be true, as contended by learned Counsel for the State, that the question as to whether the Appellant had shared a common intention with the other persons must be deciphered from the fact that the other accused persons were armed with gupti and dagger and the deceased was chased, but while arriving at such a conclusion, we have no other option but to take into consideration the actual role played by the Appellant and also the facts and circumstances in which dispute arose viz. Gullu, S/o P.W. 1 has allegedly outraged the modesty of one Mangla who happened to be the daughter of her sister. Presumably she was enraged. But it is difficult for us to perceive that only therefore she would join the other accused persons in forming common intention to kill the deceased Asgar Ali, particularly, when she had knowledge that it was not Asgar Ali but Gullu who had outraged the modesty of her sister's daughter. Presumably she was enraged. But it is difficult for us to perceive that only therefore she would join the other accused persons in forming common intention to kill the deceased Asgar Ali, particularly, when she had knowledge that it was not Asgar Ali but Gullu who had outraged the modesty of her sister's daughter. No evidence has been brought on record by the prosecution to show that the accused persons met prior to the date of occurrence for the purpose of commission of the said offence. It is true that common intention can be formed even on the spot but for the said purpose, as indicated hereinbefore, it is essential to consider the role played by the accused. We may notice that P.W. 2 S.k. Salim, in his evidence stated: ... When he reached near the house of Kantabai, that time. Accused 1 and 2 caught hold of him, and they started to beat him. They assaulted him by gupti and knife. Accused 3 Vaijayantibai also reached there. I saw Accused 3 instigating Accused 1 and 2 to assault the deceased saying that, 'maro, maro, khatam karo main dekh lungi'. It is, therefore, possible to arrive at a conclusion on the basis of the said evidence that the Appellant herein reached after the other accused persons reached the spot and had been assaulting the deceased by gupti and knife. Yet again P.W. 5 Kusum had stated: ...It did not happen that when I was going by the road, I heard shouts as 'bachao, bachao', therefore, I went to the spot. On 27.7.1998 I was taken by the police before JMFC, Murtizapur. There my statement was recorded by the Magistrate. While giving my statement before the Magistrate, Murtizapur I did not tell that I heard shouts, as 'wachwa (save), wachwa (save)' and therefore, I stopped near water pump beside house of Kantabai. The said witness therefore, could not state as to how and in what manner the Appellant gave exhortation. In Jogen Ch. Roy and Anr. (supra), this Court while acquitting the accused held that common intention under Section 34 is not itself an offence. It only creates joint and constructive liability for the crime committed in furtherance of such common intention. When the action was not premeditated, it has no application. 14. I have heard the submissions made by Mr. Roy and Anr. (supra), this Court while acquitting the accused held that common intention under Section 34 is not itself an offence. It only creates joint and constructive liability for the crime committed in furtherance of such common intention. When the action was not premeditated, it has no application. 14. I have heard the submissions made by Mr. Choudhury, learned senior Counsel appearing on behalf of the Appellant as well as Mr. K.C. Mahanta, learnt Public Prosecutor, Assam, supporting the judgment of conviction and also have gone through the cases referred to hereinabove. 15. Admittedly, P.W. 1 is the only eyewitness in the case in hand. As indicated above, the evidences of P.W. 1 clearly discloses that the accused Dhiren Nayak put fire to the thatches of the house of the P.W. 1. She was also cross-examined at length but nowhere she has stated that accused Appellant Abdul Malik along with accused Dhiren Nayak had set fire to her house. I have also perused the FIR which also does not testify as to who had set fire to the house of the informant. 16. Therefore, this Court after scrutiny of entire evidences on record and decisions referred to above held that there was no premeditation in setting fire to the house of the P.W. 1 so far accused Malik is concerned and the alleged criminal act was not done in furtherance of common intention, therefore. Section 34 is not attracted, inasmuch as, common intention under Section 34 IPC is not itself an offence, it only creates joint and constructive liability for the crime committed in furtherance of such common intention. When the action was not premeditated. Section 34 IPC has no application. In the instant case, P.W. 1 had stated that Dhiren Nayak had set fire to the thatches of the house of the P.W. 1 and Dhiren Nayak had expired before facing the trial and therefore, this Court is of the considered view that the accused Appellant cannot be roped in Section 34 IPC with Dhiren Nayak in committing the alleged offence. 17. In view of the above, the judgment of conviction passed by the learned Court below is liable to be set aside which I hereby do by acquitting the accused Appellant Abdul Malik from the charge under Sections 436/34 IPC. It is submitted by the learned Counsel for the Appellant that the accused Appellant is on bail. 17. In view of the above, the judgment of conviction passed by the learned Court below is liable to be set aside which I hereby do by acquitting the accused Appellant Abdul Malik from the charge under Sections 436/34 IPC. It is submitted by the learned Counsel for the Appellant that the accused Appellant is on bail. The bail bond thus stands discharged. 18. The appeal is accordingly allowed. 19. Send down the records. Appeal allowed