JUDGMENT By Court.-Both the aforesaid appeals arose out of the judgment passed in Sessions Trial No. 110/1999 by the First Additional Sessions Judge, Deoghar. 2. Three accused persons namely Kamruddin Mian, Sarfuddin Mian and Khursid Mian were charged and tried for the offences under Sections 302/34, 3231 34 and 341/34 of the Indian Penal Code. 3. On conclusion of trial Kamruddin Mian and Sarfuddin Mian were found guilty under Sections 302 and 341 I.P.C. and Were sentenced to undergo 8.1. for life and to pay a fine of Rs. 20,000/- under Section 302, I.P.C. and S.1. for one month under Section 341 I.P.C. However, Khursid Mian was found guilty under Section 302 with the help of Section 34 of the Indian Penal Code and was sentenced to undergo life imprisonment. He was further convicted under Section 323 I.P.C. and Section 341 I.P.C. and was sentenced to undergo R.I. for six months under Section 323 I.P.C. and S.I. for one month under Section 341 I.P.C. 4. Aggrieved by their conviction the appellants filed two sets of appeals. Khursid Mian filed Cr. Appeal No. 37/2001, whereas Kamruddin Mian and Sarfuddin Mian filed Cr. Appeal No. 73 of 2001. 5. With the consent of the counsel, both the appeals were heard together and are being disposed of by this common judgment. 6. The prosecution against the appellant was launched on the basis of the written report of Alimuddin Mian son of Sharif Mian (deceased). 7. The prosecution case, in brief, is that on 19.4.1999 at about 5:00 P.M. the informant Alimuddin @ Kutka Mian alongwith his two brothers Kalim and Wasim @ Bona, his farher Sharif Mian and his mother Jafrun Bibi were digging foundation for construction of boundary wall on their land. Ibrahim Mian @ Digwa, Rehman Mian and Kayum Mian-Iabourers were also at work with them. In the meantime Kamruddin and Sarfuddin armed with iron rod and Khursid armed with lathi came there uttering abuses and attacked on the father of the informant-Alimuddin. Kamruddin Mian hurled iron rod on the head of the informant's father, but he withstood the same on his left hand. Due to which his hand was fractured. Kamruddin then repeated the assault and Sarfuddin also gave iron rod blow on the head of Sharif Mian causing some injuries and profuse bleeding, due to which he fell down. Kamruddin Mian hurled iron rod on the head of the informant's father, but he withstood the same on his left hand. Due to which his hand was fractured. Kamruddin then repeated the assault and Sarfuddin also gave iron rod blow on the head of Sharif Mian causing some injuries and profuse bleeding, due to which he fell down. Even, thereafter, both the said accused rained iron rod on him indiscriminately on vital part of his body. Khursid assaulted him with lathi on his right arm causing injury on the arm. Informant's father was seriously injured. Then his brother Wasim went to rescue his father but he was also assaulted by Khursid with lathi on the back portion of his head causing him injuries. Khursid also assaulted informant's mother with lathi which she tried to turn away by raising hand and due to that she sustained injury on her thumb and other part of the body. She raised alarm and several persons assembled incuding Mudassir and Anwar Ali Informant's father died while he was being taken for treatment. They, thereafter, went to the Police Station with the dead body and lodged report. 8. An F.I.R. was drawn up on the statement of Alimuddin and registered under Section 302/34 I.P.C. police took investigation and on completion of investigation the police submitted charge-sheet under the said Sections against all the three accused persons. 9. Charges were framed against the appellants. The accused-appellants denied the charges and claimed to be tried. In their examination under Section 313 Cr.P.C. they denied to have committed the alleged offences. 10. The prosecution, in order to establish the charges against the appellants, altogether examined 16 witnesses, P.W.1 Anwar Ali, P.W. 2 Md. Kalim, P.W. 3 Rehman Mian, P.W. 4 Wasim, P.W. 5 Jairun Bibi, P.W. 6 Md. Ibrahim @ Digwa, PW.7 Mudassir Mian @ Pochi Mian, PW. 8 Abujan Bibi, PW. 9 Salima Bibi and PW. 10 Alimuddin alias Kutka (informant) were examined as the eye-witnesses of the occurrence. The Investigating Officer Shyam Narayan Singh was examined as P.W. 11. He corroborated the testimony of the eye witnesses, P.W. 12 Dr, Sudhir Prasad proved the report of the injuries of Jairun Bibi and Wasim prepared by him after their examination. P.W.13 Dr. 10 Alimuddin alias Kutka (informant) were examined as the eye-witnesses of the occurrence. The Investigating Officer Shyam Narayan Singh was examined as P.W. 11. He corroborated the testimony of the eye witnesses, P.W. 12 Dr, Sudhir Prasad proved the report of the injuries of Jairun Bibi and Wasim prepared by him after their examination. P.W.13 Dr. Jugal Kishore Choudhary had conducted post mortem of the dead body of the deceased Sharif Mian, P.W. 14 Ali Akhtar proved the seizure list; P.W. 15 Muzammii Nurani is witness to the inquest report; P.W. 16 Ali Amjad is a formal witness. 11. The defence also examined Dr. Ram Lakhan Prasad Singh to prove the nature of the injuries sustained by the deceased. 12. The prosecution also proved several documents. Ext.-1 is the signature of Mudassir Mian on the seizure list; Ext.-2 is the signature of Alimuddin on written report; Ext.-3 is the signature and endorsement on the written report; Ext.-4 is the formal F.I.R.; Ext.-5 is the inquest report; Exts.-6 and 6/1 ate the requisitions for examining the injuries; Ext.-7 is the seizure list; Exts.-8 and 8/1 are the injury reports of the injured Jairun Bibi and Wasim Mian; Ext.-9 is the post mortem report of the deceased; Ext.-10 is the written report; Ext.-11 is the signature of the witnesses on the inquest; Ext.-12 is a Patta in the name of Sharif Mian @ Sannu Mian with respect to Plot No. 259 of Village-Chhota Rajasare, P.S.-Jasidih, District-Deoghar. 13. Some documents were also proved on behalf of the defence. Ext.-A, map of the Village-Chhota Rajasare and Exts.-B/ B/1 and 8/2, the certified copies of the Khatiyan of Jamabandi Nos. 11 and 17 of Village-Chhota Rajasare were brought on record to rebut the informant's claim over the land in dispute, leading to the said occurrence. 14. Learned trial court on conclusion of the trial, held the appellants guilty of the aforesaid charges on the basis of material on record. He found the prosecution case fully proved by the eye-witnesses coupled with the testimony of the other witnesses and medical evidence and convicted the appellants as aforesaid. 15. Learned counsel for the appellants assailing the impugned judgment of the court below, submitted that the same is a result of total non-application of mind and is contrary to facts and evidence on record. 15. Learned counsel for the appellants assailing the impugned judgment of the court below, submitted that the same is a result of total non-application of mind and is contrary to facts and evidence on record. Learned counsel submitted .that even if the entire prosecution case is taken to be proved, the conviction of Khursid Mian appellant of Cr. Appeal No. 37/2001 under Sections 302/34 of the Indian Penal Code is wholly without any legal basis. The admitted position is that Khursid Mian was armed with lathi. The allegation is that he had assaulted the deceased on his hand. He also allegedly assaulted the other two witnesses-P.W. 4 and P.W. 5 on hand. There is no allegation of giving any blow on vital part of the body of the deceased. The nature of the arm held by him and role attributed to him by the prosecution does not go to suggest common intention of Khursid with other two accused. There is neither any allegation nor any material on record to show that there was any premeditation and pre-plan to commit murder of Sharif Mian. It is evident from the record that the incident was a result of sudden provocation due to land dispute. The allegation of common intention is conspicuously absent. P.W. 13 the Doctor, who conducted the post mortem has given definite opinion that the cause of death of the deceased was head injury. Admittedly, Khursid had not given any blow on head of the deceased. There is absolutely no basis for convicting Khursid under Section 302 with the help of Section 34 of the Indian Penal Code. Learned counsel further submitted that the nature of the arm used and the injury allegedly caused by Khursid, in segregation, does not constitute an offence under Section 302. Since there is absence of allegation of common intention he cannot be convicted under Section 302 with the help of Section 34 I.P.C. and the said part of the impugned judgment convicting him under the said Sections is wholly erroneous and unsustainable. Learned counsel referred to and relied upon a decision of the Hon'ble Supreme Court in Gopal Singh vs. The State of Bihar reported in 1995 SCC (Cri.) 146. 16. Learned counsel appearing on behalf of the informant as also learned A.P.P. strongly supported the impugned judgment but have not disputed the aforesaid factual position on record. 17. Learned counsel referred to and relied upon a decision of the Hon'ble Supreme Court in Gopal Singh vs. The State of Bihar reported in 1995 SCC (Cri.) 146. 16. Learned counsel appearing on behalf of the informant as also learned A.P.P. strongly supported the impugned judgment but have not disputed the aforesaid factual position on record. 17. Having heard learned counsel and learned A.P.P., we examined the facts and evidences on record. 18. P.W. 1 Anwar All in paragraphs 1, 2 and 3; P.W. 2 Md. Kalim in paragraphs 2 and 3; P.W. 3 Rehman Mian in paragraphs 1, 2 and 3; P.W. 4 Wasim in paragraphs 2 and 3; P.W. 5 Jairun Bibi in paragraphs 1,2 and 3; P.W. 6 Md. Ibrahim @ Digwa in paragraphs 1 and 2; P.W. 7 Mudassir Mian in paragraphs 1, 2 and 3; P.W. 8 Abujan Bibi in paragraphs 1 and 2; P.W. 9 Saiima Bibi in paragraphs 1, 2 and O P.W. 10 Alimuddin in paragraphs 1, 2 and 3 have fully supported the prosecution case. They were cross-examined at length but nothing could be elicited to discredit their testimony. P.W. 11 Investigating Officer and P.W. 13 the Doctor have also corroborated the ocular testimony of the said witnesses. P.W. 13 the Doctor, who conducted post mortem report, found (1) incised wound 2" x ½ " x scalp deep over right parietal region, blood clot present in the wound, and (2) swelling 3" x 2" in his scalp and fracture in right parietal region. Upon dissection he has given definite opinion that the head injuries were the cause of death of Sharif Mian. The prosecution has, thus, proved the charge against the appellant Kamruddin and Sarfuddin, beyond all reasonable doubts. 19. Learned trial court has arrived at the finding, holding them guilty under Section 302 I.P.C. on detailed discussion and consideration of the said evidences. We find no fault in the said conclusion of learned trial court. We accordingly uphold the conviction of Kamruddin and Sarfuddin Mian and dismiss Cr. Appeal No. 73/2001. 20. So far as the conviction of Khursid Mian under Section 302/34 I.P.C. is concerned, we find no valid basis to support the said part of the finding of learned trial court. There are at least 10 eye-witnesses, none of them has said that Khursid Mian had given any blow on the vital part of the deceased. Appeal No. 73/2001. 20. So far as the conviction of Khursid Mian under Section 302/34 I.P.C. is concerned, we find no valid basis to support the said part of the finding of learned trial court. There are at least 10 eye-witnesses, none of them has said that Khursid Mian had given any blow on the vital part of the deceased. The only overt act attributed to him is that of giving a lathi blow on the hand of the deceased as also on the hand of Wasim and clairun Bibi. Learned trial court has convicted Khursid Mian under Section 323 I.P.C. for giving blow on the hand of Wasim and Jairun. However, we find that blow on the hand of the deceased caused fracture wound. In view thereof, the only material available on record go to suggest that Khursid had given lathi blow on the hand of the deceased, which caused a fracture wound. 21. On scrutiny of the material and evidences on record we find that there is complete absence of meeting of mind and pre-meditation of this appellant with other two accused. There is, thus, absence of common intention, so far this appellant is concerned. The alleged role played by this appellant was individual and in our opinion constituted an offence under Section 325 I.P.C. We do not find offence under Section 302/34 I.P.C. made out against him. We accordingly find him guilty under Section 325 I.P.C. 22. In view of the above, we set aside the conviction of Khursid Mian under Section 302/34 I.P.C. and convict him under Section 325 I.P.C. and sentence him to undergo R.1. for seven years. 23. We are informed that he had already remained in custody for more than eight years after his conviction. The said sentence shall be set off by the period already undergone. 24. We, accordingly, dismiss Cr. Appeal No. 37/2001 with the saia modification. Since the appellant-Khursid Mian is on bail, he is discharged from the liabilities of his bail bonds.