S.C. Das, J.- On commitment of G.R.Case No.56/03 from the Court of SDJM, Karimganj, learned Sessions Judge, Karimganj, framed charges on 15.6.2004 against the accused appellants, namely, Ramlal Pashi, 2. Ashok Kumar Pashi and S.Bangshidhar Pashi, for commission of offence punish­able under Section 341 r/w 34IPC and Sec­tion 302 r/w 34 IPC to which they pleaded not guilty and claimed to be tried. Charges so framed against the accused appellants runs as follows: "CHARGES WITH TWO HEADS Sri T. Phookan,Sessions Judge, Karimganj do hereby charge you: 1. Ramlal Pashi, 2. Ashok Kumar Pashi and 3. Bongshidhar Pashi as follows:- That on or about the 25.1.03 at about 8-30 p.m. at Fanai (Lalcherra Bagan) under Ratabari P.S., you, in furtherance of your common inten­tion, wrongfully restrained Biswadipak Rai and thereby committed an offence punishable un­der Section 341/34 IPC and within the cogni­sance of the court of the sessions. That at the same date, time and place, in furtherance of common intention of you all, did commit murder by intentionally causing the death of Biswadipak Rai and thereby commit­ted an offence punishable under Section 3 027 34 IPC and within the cognisance of the court of sessions. And I hereby direct that you be tried by this court on the said charges. The charges being read over and explained, the accused pleaded not guilty and claimed to be tried. Date 15.6.04 Sd/- Sessions Judge Karimganj" 2. In course of trial, to prove the charges, prosecution examined 12 witnesses. On clo­sure of prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. and on call they declined to adduce any defence evidence. 3. Defence case so far ascertain from the trend of cross examination as well as from the statement of accused persons made while examination under Section 313 Cr.P.C is that of total denial of prosecution case and noth­ing else. 4. Learned Sessions Judge on conclusion of trial found the accused appellants guilty of the charge under Section 302 read with Sec­tion 34 IPC and by judgment and order of conviction and sentence dated 4.10.05 con­victed them accordingly and sentenced them to suffer R.I for life and to pay a fine of Rs.5,000/- each in default further simple im­prisonment for three months. On the charge under Section 341 r/w Section 34 of IPC learned Sessions Judge did not record any finding or decision. 5. The convicts are now suffering the sen­tence. On the charge under Section 341 r/w Section 34 of IPC learned Sessions Judge did not record any finding or decision. 5. The convicts are now suffering the sen­tence. They have preferred petition through Superintendent of Jail to the Hon'ble Chief Justice of this Court appealing against the judgment and order of conviction and sen­tence and hence this appeal. 6. We have heard learned senior Advo­cate Mr.A.K.Bhattacharyya assisted by learned Advocate Mr.K.K.Bhattacharyya and others for the convict appellants and learned P.P. for the respondent, the State of Assam. 7. Learned senior Advocate Mr. Bhattacharyya assailed the judgment and order of conviction and sentence passed by the learned Sessions Judge contending that- (i) PW 3 and PW 4 cannot be relied as they are of suspicious character. Their conduct makes them unbelievable as they have suppressed material fact. It might happen that they have also taken illicit li­quor in the house of accused Ramlal Pashi and in course of such taking of illicit liquor might be some incident occurred which they tried to suppress and to save them, made incriminating statement against the accused persons. (ii) There is no evidence that the ac­cused persons had formed common inten­tion to commit murder of the victim Biswa Dipak Roy and there is also no particular evidence as to who has dealt the blow causing fatal injury in the abdomen. Un­der such circumstances, the accused per­sons are entitled to get an order of acquittal. (iii) The next arguments advanced by learned senior counsel Mr.Bhattacharyya is that the victim died after 6(six) days of alleged occurrence and there was surgical interference in the abdomen and so it may happen that because of surgical interfer­ence, there was septic peritonitis in the abdomen and as a result of that Biswa Dipak might have died (iv) The last argument advanced by learned senior counsel is that there was provocation on the part of the deceased while he threatened Ramlal Pashi that he will destroy his liquor shop and thereafter the incident occurred and under such cir­cumstances, the findings of learned Ses­sions Judge that the accused persons com­mitted the offence of murder is unsustain­able and the case, if PW 3 & PW 4 are believed may be one under Section 324 IPC and not otherwise. 8. 8. Per contra learned P.P. has submitted that the evidence of PWs 3&4 has remained unrebutted which is corroborated by medical evidence and the inference of common inten­tion can be easily drawn from the evidence of PW 3 & PW 4 and the finding of learned Sessions Judge to that effect may not be dis­turbed and thus the conviction and sentence of accused persons shall sustain. 9. We have meticulously gone through the evidence and materials on record and the impugned judgment passed by learned Ses­sions Judge. The prosecution case in short, is that on 25.1.2003 at about 8-30 PM, Sunil Pashi and Ranjit Bhor (PW 3 & PW 4)were on way to the house of accused Ramlal Pashi to collect advance money towards charges of a vehicle bound for Kamakhya. On the way they met Biswa Dipak Roy who also told them that he was also intending to go to the house of Ramlal to collect subscription for Republic Day cel­ebration of his Azad Hind Club to which he was Secretary. They went to the house of Ramlal together and PWs 3&4 asked Ramlal about the advance of Rs.500/- which he agreed. Biswa Dipak then asked Ramlal for subscription of Rs.200/- to which Ramlal said that he would not pay more than Rs. 10/15 to which there was heated altercation between Ramlal and Biswa Dipak and in course of such exchange of word, Biswa Dipak threatened Ramlal that he would demolish his wine shop. Thereafter they sat together in the courtyard of Ramlal and Ramlal brought a small bottle of liquor with three cups .Ramlal called Biswa Dipak inside his room and thereafter, PWs 3 & 4 heard thumping/beating sound inside the room and Biswa Dipak was coming out run­ning from the room of Ramlal. At that time the accused Ashok hit him on his cheek with a stone and Biswa Dipak fell down. Imme­diately, Bangshidhar with a wooden stool pressed and twisted the corner of stool on the abdomen of Biswa Dipak sitting on the knees and Ramlal also assaulted Biswa Dipak with a splited wood/lathi on his abdomen. The accused Ashok kicked him on the abdo­men with his booted leg and placed his foot on the abdomen of Biswa Dipak and twisted it. Biswa Dipak was lying with his belly up. They (witnesses) tried to disentangle them. The accused Ashok kicked him on the abdo­men with his booted leg and placed his foot on the abdomen of Biswa Dipak and twisted it. Biswa Dipak was lying with his belly up. They (witnesses) tried to disentangle them. Thereafter they (PWs 3 & 4) took Biswa Dipak to his house carrying him on the car­rier of their bi-cycle. On the following day in the morning Biswa Dipak was taken to Ramkrishna Nagar PHC and Dr. Begum treated him there and referred him to Silchar Medical College and Hospital. He was taken to Green View Nursing Home, Silchar on 27.1.2003 and Laparotomy of abdominal cavity was done. He was under treatment in the aforesaid Nursing Home where he suc­cumbed to his injury on 31.1.2003. 10. PWs 3 & 4 are the star witnesses of the prosecution. They are eyewitnesses of the occurrence. They have been substantially corroborated by the medical evidence of PWs 2,8 and 9. PW 1 the father of the vic­tim and the informant of the case gathered information from PWs 3 & 4 as well from the deceased and he has also substantially cor­roborated PWs 3 & 4. The oral evidence of PWs 3 & 4 has not been shaken in any man­ner. We find no reason at all to disbelieve the evidence of PWs 3 & 4. 11. Let us see the material statement about the occurrence made by PWs 3 & 4 in their deposition before the court. PW 3 stated - "The three of us then went to Ramlalal's courtyard. Ramlal came out from inside. We sat down and discussed the issue of advance of Rs.500/-. He agreed to pay the money the next week. Biswa Dipak then asked him for subscription. He demanded Rs. 200/-. When Ramlal said he would not pay more than Rs.10/15. Biswa Dipak aimed a blow at him and said that unless Ramlal paidRs.200/-, he would demolish his wine shop. Following a heated exchange of words, Ramlal made us sit. Ramlal went in some 10/15 minutes later and returned with a small bottle of liquor and three cups placed them (ground). A little later, Ramlal called Biswa Deepak inside. Some 4/5 minutes thereafter, we heard thumping sounds inside. Even as we started running in, Biswa Deepak came running out of the house. Ramlal went in some 10/15 minutes later and returned with a small bottle of liquor and three cups placed them (ground). A little later, Ramlal called Biswa Deepak inside. Some 4/5 minutes thereafter, we heard thumping sounds inside. Even as we started running in, Biswa Deepak came running out of the house. About that time, accused Ashoke hit him in the cheek with a stone whereupon he fell down there itself. We raised a commotion. Bangshidhar placed a low stool on Biswa Deepak's absomen pressed and twisted it. He did so with a corner of the stool. Ramlal poked Biswa Deepak in the abdomen with a split wood and a lathi Ashok first kicked him in the abdomen with his booted leg and then placing his feet on the abdomen, twisted it. Biswa Deepak was lying belly up. Raising shouts, we tried to disentangle them. We then massaged Biswa Deepak, seated him on the carrier of his bi-cycle and pushed the cycle to his house. Reaching his house." The above statement of the witness re­mained completely unrebutted and not shaken in cross-examination. PW 4 stated- "The three of us went to Ramlal's house Going there, the three of us sat besides a fire in the courtyard. It was the winter season. When we asked for money, Ramlal said that he would make the payment a couple of days late. Tinku asked for a subscription of Rs.200/-Ramlal agreed to pay Rs 10 or 15. Tinku refused to accept that amount. An altercation arose be­tween Ramlal and Tinku over that.A little later, Ramlal brought a small bottle of liquor and stain­less steel glasses from inside and placed these outside. Sometime after that he went in and in the process called Tinku in Some 4/5 minutes after that, we heard the sound of beating in­side. Some time later, Tinku tried to come out. But even as he was on his way out, Ashok hit him in the left cheek with a stone. A fire was burning in the courtyard. A lamp was burning in the courtyard. Tinku fell down on the ground. Bangshidhar hit him in the abdomen with a stool. Tinku was lying on his back. The stool was placed on the abdomen and then twisted. Ramlal hit Tinku with a lathi. Ashok kicked him in the abdomen with his booted leg and placing his leg on Tinku's abdomen, twisted it. Tinku fell down on the ground. Bangshidhar hit him in the abdomen with a stool. Tinku was lying on his back. The stool was placed on the abdomen and then twisted. Ramlal hit Tinku with a lathi. Ashok kicked him in the abdomen with his booted leg and placing his leg on Tinku's abdomen, twisted it. We tried to disentangle them. Tinku became senseless. We carried Tinku on the carrier of his bi-cycle and took him home. The above statement of this witness also remained unrebutted and not shaken in any manner in cross-examination." 12. Learned Senior Counsel Mr. Bhattacharyya has submitted that illicit liquor was placed in the courtyard as stated by both the witnesses. But what happened to it has not been stated by them. Such suppression of fact by those witnesses creates doubt that might be something happened while consum­ing the liquor. Therefore the witnesses cannot be believed. During cross-examination of PWs 3 and 4 and in the examination u/s 313 Cr.P.C., the accused persons stated nothing in resppnse to the incriminating evidence against them, as stated by PWs 3&4. So this argument has got no substance. To judge whether a witness is speaking truth or not is no doubt a difficult task. It de­pends upon several factors such as observa­tion and memory of the witness, his motive etc. Cross examination is no doubt a fairly good test. But it is not always fool proof. Rules of evidence cannot solve these difficulties. Judges have to use their natural faculty and acquired experience to assess the evidence of a particular witness in a given circum­stances. The court has to consider the man­ner of giving evidence, surrounding circum­stances probabilities, motive for giving true or false evidence intensic merit of the evi­dence, how it stands with other evidence ad­duced etc. In this case the witnesses have no animos­ity with the accused persons to involve them falsely in the case. The witnesses went there to collect the advance money for vehicle. The deceased went there to collect subscription from the accused Ramlal. The incident oc­curred at that time. So PWs 3 & 4 are the natural witnesses of the occurrence and they have narrated the fact vividly having no noteable ambiguity. The witnesses went there to collect the advance money for vehicle. The deceased went there to collect subscription from the accused Ramlal. The incident oc­curred at that time. So PWs 3 & 4 are the natural witnesses of the occurrence and they have narrated the fact vividly having no noteable ambiguity. Fringe variations, minor discrepancies in details, cannot militate against veracity of the core of testimony, if there is impress of truth and conformity to probabil­ity in substantial fabric of prosecution story. We find no room of suspicion to reject the evidence of PWs 3 & 4, which is corrobo­rated by the evidence of PWs 2,8 and 9 and also supported by PW 1, the father of the deceased. The arguments advance by learned senior counsel Mr.Bhattacharyee has no merit at all. 13. Let us now see whether the charge, that the accused persons committed the of­fence in furtherance of their common inten­tion is established or not. On careful scrutiny of the deposition of PWs 3 & 4, we find that there was heated exchange of words between Ramlal and de­ceased Biswa Deepak on the issue of sub­scription. But thereafter they sat together in the courtyard. After 10/15 minutes, Ramlal brought a small bottle of liquor and three cups/glass and placed in the courtyard. There­after Ramlal called Biswa Deepak inside his room and after some 4/5 minutes, the wit­nesses heard thumping/beating sound inside the room. What happened inside the room, the witnesses could not say. They tried to enter but at that time Biswa Dipak came out run­ning. About that time Ashok hit him on his cheek with a stone and he fell down in the courtyard. At that moment the accused Bangshidhar assaulted him on his abdomen with a stool and twisted it. Accused Ramlal also beaten him with a lathi on his abdomen. The accused Ashok kicked him in the abdo­men and twisted the abdomen with booted leg. So all the accused persons jointly as­saulted Biswa Deepak on his abdomen caus­ing injury. The true concept of Section 34 is that if two or more persons intentionally do an act jointly the position of law is just the same as if each of them has done individually by him­self. In the case of Sachin Jana Vs. So all the accused persons jointly as­saulted Biswa Deepak on his abdomen caus­ing injury. The true concept of Section 34 is that if two or more persons intentionally do an act jointly the position of law is just the same as if each of them has done individually by him­self. In the case of Sachin Jana Vs. State of West Bengal, reported in (2008) 3 SCC 390 , the Hon'ble Apex Court has held:- Section 34 has been enacted on the principle of joint liability in the doing of criminal Act. Section is only a Rule of evidence and does not create substantive offence. The dis­tinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal Act perpetrated by several persons arises under Section 34. If such criminal Act is done in furtherance of common intention who joined in committing the crime. 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, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34IPC, be it pre-arranged or on the spur of the moment; but it must necessarily be before commission of the crime. In the case of Dani Singh Vs. State of Bihar reported in (2004) 13 SCC 203 and AIR 2004 SC 4570 , the Apex Court held that common intention does not mean same or similar intention. It implies pre-arranged plan and acting in concert persuant to the said plan. Though it may develop on the spot, but it must be anterior at the point of time. In the case of Ramesh Govind Jagesha & Ors. Vs. State of Maharastra reported (1999) 8 SCC 428 , the Hon'ble Apex Court has held that no premeditation or previous meeting of mind is necessary for the applicability of Section 34 IPC. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the pur­poses of common intention even the partici­pation in the commission of offence need not be proved in all cases. The common intention can develop on the spot during the course of commission of of­fence and the intention can be formed on the spur of the moment. In the case of Poosaram Vs. State of Rajasthan reported in 1984 Crl.L.J. 1848, the Hon'ble High Court has held that when there was a joint concerted attack on the vic­tim by all the accused persons, it implies com­mon intention on the part of all the accused persons. This Court in the case Titan Dey Vs. State of Tripura reported in (2011) 4 GLT 527 has held- "Another facet which the Court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any pre determined plan to commit such an offence." In this case, the victim was called inside the room and what happened inside the room only the deceased and accused persons can say. The accused persons stated nothing, dur­ing cross examination of the witness or in their statements while examined under Section 313 CrP.C., as to what had happened inside the room, for which the deceased was beaten up jointly by all of them. Under such attending circumstances, it may be easily presumed that common intention of assaulting the deceased developed at the time when the deceased was called inside the room and there he was beaten up. The argument of the learned coun­sel Mr.Bhattacharyya, therefore, cannot be appreciated. 14. To consider the next argument of the learned senior counsel, Mr. Bhattacharyya, we may have a sight to the evidence of medical officers who have been examined as PWs 2,8 and 9. PW 8 stated that on 26.1.2003 she ex­amined Biswajit Roy of Lalcherra and found the patient was brought with a history of physi­cal assault at around 10.00 P.M. The patient was restless and dehydrated. Contusion on left cheek. Skin abrasion on right forearm. Abdomen distended & rigid and tender. PW 8 stated that on 26.1.2003 she ex­amined Biswajit Roy of Lalcherra and found the patient was brought with a history of physi­cal assault at around 10.00 P.M. The patient was restless and dehydrated. Contusion on left cheek. Skin abrasion on right forearm. Abdomen distended & rigid and tender. In­ternal visceral injury haemoveritonities was suspected and patient was referred to SMCH after giving first aid. In cross examination, she stated such type of injury could be caused by wood or its edge. Such injury may be caused under the impact of press and hit by any hard substance. Mere pressing by such object can­not cause such injury. PW 2 stated that he examined Biswa Dipak Roy and found - (1) Irregulal shaped abrasion about 2" x ½” in size in the left meltar region. (2) ½" X ½" irregular shaped abrasion intheextenser surface of the left elbow. (3) The abdomen shows signs of peri­tonitis following rupture of the hollow dis­cus and the patient was in shock. Laparotomy was done on 27.1.03 at 12-30 PM after a chest X-Ray in erect posture which shows gas under the diaphragm. The abdomen is full of exudates containing pus & gas. One rent (tear) about ½. in diameter in the antemeserteric Border of the small gut. The exact location is jejunno-ilel junction, hi his opinion, the injuries No.1 and2are caused by blunt object and simple in nature. Injury No.3 (abdominal one) is caused by blunt ob­ject & grievous in nature. The injury No. 1 can be caused due to the impact of a stone Injury No. 2 (elbow injury) can be caused also due to dashing with hard substance. Injury No.3 (abdominal one) can also be caused due to the twisting of worn shoe on the abdomen by force. Such an in­jury can also be caused due to the impact of piri(wooden stool) when its comer is pressed & twisted on the abdomen. PW 9, the au­topsy surgeon in his deposition stated that on examination of the dead body he found the following injuries:- (1) Abrasion with scab formation 5 x 1.5 cm over left cheek near the angle of mandible; (2) Abrasion with scab formation over dorsal aspect elbow(3 X 3 cm) no ligature mark. Healthy on dissection. (3) Contusion of occipital scalp 4x4 cm; skull and vertegbra healthy. (4) Contusion in the inferior surface of lower lobe 4x4 cm. Healthy on dissection. (3) Contusion of occipital scalp 4x4 cm; skull and vertegbra healthy. (4) Contusion in the inferior surface of lower lobe 4x4 cm. (5) The wall of the abdomen was ex­ternally healthy. On dissection, left side at the level of umbilicus and also at pelvis found contused internally. (6) Stitched wound of 1 x 0.5 cm on the small intestine and its contents covered with thick layer of pus seen at the jejuno ilial junction at theantemesenterie border; empty. (7) Inferior part of the right lobe of liver found lacerated in an area of 4 x 3 x 1 cm with collection of pus at the site. (8) Infarior part of spleen found lacer­ated in an area of 1 x 1 x 1 cm covered with thick layer of pus. hi his opinion, death was due to exhaus­tion resulting from septic peritonitis following ante mortem blunt trauma abdomen. 15. The oral evidence of PWs 3 and 4 fully corroborated by medical evidence of PWs 2, 8 and 9. We find nothing to draw inference that Septic peritonitis was caused due to any surgical inference. PW 8 has done laparotomy to diagnose the nature of the dis­ease and to identify the cause. Might be PW 1 being a laymen regarding medical science, stated that there was surgical inference. Lap­arotomy was done only to identify the cause of abdominal problem for which the deceased was hospitalised. Injury in the abdominal cav­ity, so caused to the deceased was enough to cause death. 16. HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition, at page 427 has elaborated the wounds of abdomen thus:- "4. WOUNDS OF THE ABDOMEN like the thorax, the abdomen contains many vulnerable and vital structures which may be injured by a variety of traumatic insults. The stab wound may penetrate quite easily, espe­cially from the front or from the lateral side and any underlying organ may be damaged. In the upper abdomen, the liver is a frequent victim and severe haemorrhage may occur into the peritoneal cavity from a large laceration, unless prompt surgical treatment is offered. The spleen is also an extremely vascular organ and may bleed profusely, especially if the hilum is injured. In the upper abdomen, the liver is a frequent victim and severe haemorrhage may occur into the peritoneal cavity from a large laceration, unless prompt surgical treatment is offered. The spleen is also an extremely vascular organ and may bleed profusely, especially if the hilum is injured. In some areas, notably .the Mediterranean, large spleens due to malaria were formerly common and a specific method of murder was in vague, in which a narrow knife was deliberately aimed at the spleen to cause a fatal haemorrhage. Puncture of the stomach may lead to death from chemical peritonitis and puncture of the intestines may also lead to septic or faeculent peritonitis. The large blood vessels in the cen­tre of the abdomen are vulnerable as there is little protection overlying them except mesen­tery and intestines. Stab wounds of the central abdomen may puncture the abdominal aorta or inferior vena cava. The kidneys may also be injured by lateral wounds in the loins. In the lower abdomen, injuries to the groin may cause torrential haemorrhage from damage to the iliac or femoral blood vessels. Apart from stab wound, blunt injuries to the abdomen may cause many lesions. Kicking is particularly danger­ous and ruptures of the liver, spleen, mesentery or intestine may occur. Severe or fatal internal haemorrhage may occur without any sign of injury on the abdominal wall such as bruising or abrasions, especially if clothing overlies the area. A particular injury, sometimes seen in the =battered child syndrome', is a blow to the cen­tral abdomen, which crushes the duodenum against the front of the spinal column, some­times transecting it almost as cleanly as if it was cut by a scalpel. This naturally leads to haemorrhage and peritonitis. Kicking in the loin may rupture a kidney and in the lower abdo­men, injuries to the genitalia in the male may cause massive haemorrhage into the scrotum. Sometimes the neurogenic shock element of a blow or kick in the genitals may cause sudden instantaneous death." Having regard to the oral evidence of P Ws 3 and 4 and the opinion evidence of PWs 2,8 and 9, we find nothing to draw any inference that deceased suffered septic peritonitis for any reason other than the alleged assault by the accused appellants. The argument of learned counsel, therefore, deserves no con­sideration. 17. The question of provocation, as ar­gued by learned senior counsel Mr. The argument of learned counsel, therefore, deserves no con­sideration. 17. The question of provocation, as ar­gued by learned senior counsel Mr. Bhattacharyya, in his last submission, also does not stand in the facts and circumstances of the case. There was altercation between the de­ceased Biswa Deepak Roy and accused Ramlal Pashi on the issue of subscription. Thereafter the deceased and the witnesses were sitting in the courtyard and Ramlal bought a bottle of liquor with three glass. There is practically no evidence that immediately after heated exchange of word or altercation, the accused persons beaten the victim. It is already observed that the deceased was thereafter called by Ramlal inside the room and then the incident occurred. Therefore, the argument that there was provocation on the part of deceased and the accused persons might have assaulted the deceased being so proved, does not stand at all. 18. The fatal injury was caused in the ab­domen of the deceased and not on other vital part of the body and therefore the intention of the accused persons to murder the de­ceased can in no way be inferred. Finding of the learned Sessions Judge to that effect is not supported by any cogent evidence that the accused persons assaulted the victim with the intention of causing murder. 19. Evidence on record makes it clear that the accused persons jointly assaulted the victim causing injury on his abdominal cav­ity. The facts and circumstances of the case has in no way established the ingredients of murder as defined in Section 300 of IPC. The case is covered by the exception .2ndly to the definition of .Murder, prescribed in Section 300 IPC. The accused persons as­saulted the deceased with the intention of causing such bodily injury as they knew to be likely to cause the death of the deceased. The have severely hit and twisted the ab­dominal cavity of the deceased causing grievous injury and damage to small intes­tine, liver, spleen and other organs, of ab­dominal cavity which suggests that the ac­cused persons had the knowledge that those injuries might cause death of the deceased. There is, however, no evidence that the ac­cused persons with the intention of murder assaulted the deceased and so the judgment and order of conviction and sentence under Section 302 r/w 34 IPC cannot stand. There is, however, no evidence that the ac­cused persons with the intention of murder assaulted the deceased and so the judgment and order of conviction and sentence under Section 302 r/w 34 IPC cannot stand. The offence committed by the accused persons more appropriately fall under the purview of Section 304 Part II of IPC . Hon'ble Apex Court in the case of M. T. Nambiar Vs State of Kerala reported in AIR 1997 SC 687 has held that Section 304 Part II IPC is attracted where it is proved that even if the accused have no intention to cause such bodily injury as was likely to cause death, but had the knowledge that the injury was likely to cause death. When the accused appellant gave one blow with a pair of scissors on the chest of the victim, the intention to cause death cannot be imputed to him, but it would be reasonable to infer that he had knowledge that the injury on the vital part of the body of the deceased would cause death. So he can be convicted in Part II of Section 304 IPC. The ratio of Apex Court judgment may fairly be applied in the facts and circumstances of this case. Regarding the charge under Section 341 r/w 34 IPC we find no evidence of wrongful restraint or wrongful confinement on record and hence the appellants may be deemed to have acquitted from the charge. 20. For the foregoing reasons, the appeal is partly allowed. The conviction of the ap­pellants under Section 302 r/w 34 IPC is al­tered to one under Section 304 Part II of IPC. Consequently, the sentence of life imprison­ment awarded to the appellants is set aside and they are sentenced to rigorous imprison­ment for the period already suffered in cus­tody in the mean time and to pay fine of Rs.25,000/-(twenty five thousand) each in default to suffer S.I for further two year. Fine money if realised be given to the informant Bikash Ranjan Roy, the father of the victim Biswa Dipak Roy as compensation. 21. Send back the L.C. Records along with a copy of this judgment.