JUDGMENT S.C. Das, J. 1. The appellants named above, along with two others, namely, Mijan Miah alias Mijan Hossain and Billal Miah alias Billal Hossain were, in connection with Sessions Trial No. 15 (WT/S) of 2007, charged by the learned Additional Sessions Judge, Sonamura, for commission of offences punishable under Sections 148 and 302 read with Section 149 of IPC, to which they pleaded not guilty and claimed to be tried. On conclusion of trial, learned Additional Sessions Judge found the accused appellants guilty of committing offence punishable under Section 302 read with Section 34 of IPC, convicted them accordingly and acquitted accused Mijan Miah alias Mijan Hossain and Billal Miah alias Billal Hossain on benefit of doubt. The appellants, being aggrieved, presented this appeal. 1.1 We have heard learned counsel, Mr. S. Sarkar, for the appellants, and learned P.P., Mr. D. Sarkar, assisted by learned Spl. P.P., Mr. R.C. Debnath for the State respondent. 2. Facts of the case may be summerised thus:- The houses of Joydul Hossain and Ful Miah are located adjacent to each other at village Madhya Baxanagar under Kalamchaura P.S. On 25.10.2005, in the early morning at about 4-30 a.m., Khairul Islam (P.W. 3) and Shariful Islam (P.W. 4), both nephews of Joydul Hossain, found Ful Miah engaged in removing bamboo fencing of Joydul Hossain and they informed Joydul about what Ful Miah was doing. Later on, Joydul came out and a quarrel ensued between Ful Miah and Joydul. In the midst of the quarrel, Ful Miah threw a broken spade towards Joydul and Joydul sustained bleeding injury on his left hand. Soon thereafter, Ful Miah, with a Cheni dao (a sharp cutting weapon), attacked Joydul and started beating him with fists, kicks and blows as well as with the blunt side of a cheni dao. Immediately thereafter, the other accused persons, namely, Gani Miah, Mijan Miah alias Mijan Hossain, Billal Miah alias Billal Hossain, Khalek Miah alias Abdul Khalek, Harun Miah and Tara Miah too, assembled there and they all dragged Joydul to the nearby paddy field of Rafikul Islam and severely beat Joydul up with fists, blows and kicks, causing severe injuries. P.Ws. Khairul and Shariful informed the incident to the members of their other house (old house) from where P.Ws 2, 5, 6 and others from their family arrived and found the accused persons assaulting Joydul. P.Ws. Khairul and Shariful informed the incident to the members of their other house (old house) from where P.Ws 2, 5, 6 and others from their family arrived and found the accused persons assaulting Joydul. On hearing their cry, when the nearby people arrived, the accused persons fled away. Joydul was shifted to Baxanagar Hospital, where he was declared dead. 3. To prove the charge, prosecution examined 11 witnesses. Out of them, P.W. 1 is the father of the deceased, who lodged the FIR. P.W. 2 is the sister-in-law of the deceased, who claims to be an eye witness to a part of the occurrence. P.Ws 3 and 4 are the nephews of the deceased and according to the prosecution, they are the key witnesses, who saw the entire occurrence and reported the incident to P.Ws. 1, 2, 5 and 6, etc. P.W. 5 is the brother of the deceased and P.W. 6 is the step-mother of the deceased. P.W. 7 is an independent witness, who is a resident of the locality in whose presence, dao and spade were seized from the house of Ful Miah and, in his cross examination, he supported the defence version. P.W. 8 is the scribe of the FIR and he stated nothing more. P.W. 9 is a resident of that locality, but he was declared hostile by the prosecution. P.W. 10 is also a witness to the seizure of the wearing apparels of the deceased. P.W. 11 is the I.O. of the case. 4. Defence made a searching cross examination of the prosecution witnesses. After closure of the prosecution evidence, all the accused persons were examined under Section 313 Cr. P.C. and, on their behalf, the accused persons examined 3 witnesses, D.W. 1, Gani Miah (accused), D.W. 2, Ranuja Begam, and D.W. 3, Tarab Ali. 5. Defence case is that, in the midst of quarrel between Joydul and Ful Miah, when they started scuffling and beating one another with fists and blows, P.W. 7 separated them and thereafter, they left for home. Joydul Hossain, during the midst of scuffling, suffered a heart attack and he was shifted to hospital. Immediately thereafter, Jimul Hoque (P.W. 5), along with Ainul Haque, Amir Hamjan and Ala Miah, attacked Ful Miah and chased him, for a small distance, towards the tilla land and murdered Ful Miah. Joydul Hossain, during the midst of scuffling, suffered a heart attack and he was shifted to hospital. Immediately thereafter, Jimul Hoque (P.W. 5), along with Ainul Haque, Amir Hamjan and Ala Miah, attacked Ful Miah and chased him, for a small distance, towards the tilla land and murdered Ful Miah. When Ful Miah and Joydul Hossain were engaged in quarrel, Shariful (P.W. 4) informed Gani Miah and Gani Miah with Shariful went to the house of D.W. 2, Ranuja Begam, wherefrom, Gani Miah gave a telephone ring to Baxanagar P.S. and accordingly, Baxanagar P.S. G.D. Entry No. 839, dated 25.10.2005, was made by S.I. Prabir Debbarma at 05-50 hours and therefrom, O.C. of the P.S.(P.W. 11) rushed to village Madhya Baxanagar and started investigation of the case. For the murder of Ful Miah, Baxanagar P.S. case No. 41 of 2005 was registered and, subsequently, to avoid the charge of murder of Ful Miah, P.W. 1, father of accused Jimul Haque (P.W. 5) and the deceased Joydul, lodged a false FIR against the accused appellants, who all were witnesses to the murder of Ful Miah, the accused persons were not involved in the assault of Joydul and that the prosecution's case was false. 6. Learned additional Sessions Judge, considering the evidence of PWs 2 to 6, held the accused appellants guilty of committing offence punishable under Section 302 read with Section 34 of IPC and sentenced them as aforesaid. He, however, acquitted accused Mijan Miah alias Mijan Hossain and Billal Miah alias Billal Hossain relying on the plea of alibi and the evidence of D.W. 3. 7. It is submitted by learned counsel, Mr. Sarkar, that the FIR was lodged after about 10 hours of the occurrence and no explanation was assigned for the delay and, therefore, from the very inception, the prosecution's case is shrouded in suspicion, but the learned trial Court failed to consider the delay in lodging of the FIR and arrived at a wrong decision as regards guilt of the accused-appellants. Learned Special P.P. has submitted that P.W. 1, being informed by P.Ws 3 and 4, lodged the FIR and he did not know about the presence of the police, who were already present in the village, investigating the case. So, the delay, in lodging FIR, has no consequence at all. 8. Learned Special P.P. has submitted that P.W. 1, being informed by P.Ws 3 and 4, lodged the FIR and he did not know about the presence of the police, who were already present in the village, investigating the case. So, the delay, in lodging FIR, has no consequence at all. 8. On going through Exhibit 5 (FIR), it transpires that it was lodged on 25.10.2005 at 14-25 hours. The incident occurred at 4-30 hours to 5-00 hours in the morning. No explanation for this delay was given in the FIR. The informant made the allegations, in the FIR, based on the information he received from P.Ws. 3 and 4. On the contrary, in the evidence of P.W. 11, we find that on 25.10.2005, at about 05-50 hours, duty officer of Kalamchaura P.S., S.I. Prabir Debbarma, received a telephonic call from accused, Gani Miah, that some incident was going on at Baxanagar Madhyapara and he sought police help. The copy of the G.D. is proved as Exhibit 9. P.W. 11 stated that immediately after the G.D. entry was made, he left for the place of occurrence at village Madhya Baxanagar and when he reached there, it was about 6-20 hours. He found Firdausi Begam (P.W. 2), who informed him that Joydul Hossain was assaulted by Ful Miah, Gani Miah and some others and in consequence whereof, Ful Miah had died, in the early morning, on way to hospital. He did not record the statement of Firdausi Begam as FIR, but started investigation assuming that a cognizable offence has been committed. He prepared sketch map with index, seized a spade and a dao from the house of Ful Miah (Exhibit- M.O. 1 series), raided the village for arresting the accused persons and, thereafter, went to Baxanagar PHC and found the dead body of Joydul Hossain, prepared inquest report in presence of witnesses and forwarded the dead body for post-mortem examination. Thereafter, he returned to KLC P.S. and found that S.I. Prabir Debbarma, on the basis of a complaint filed by Sirajul Islam (P.W. 1), registered KLC P.S. Case No. 40 of 2005. It is, therefore, evident that Exhibit 2 cannot be termed as an FIR, because investigation had already started before it was lodged by P.W. 1. An FIR is the information, first in point of time, regarding a cognizable offence. It is, therefore, evident that Exhibit 2 cannot be termed as an FIR, because investigation had already started before it was lodged by P.W. 1. An FIR is the information, first in point of time, regarding a cognizable offence. Any statement, whether recorded by the I.O. or submitted by anybody else, after the investigation already started, is hit by Section 162 of Cr. P.C. and cannot be termed as an FIR. In the present case, at best, Exhibit 9, the G.D. Entry No. 839, dated 25.10.2005, recorded at 05-50 hours, on the basis of which P.W. 11 left for the place of occurrence and started the investigation, may be treated as FIR. Since Exhibit 2 cannot be termed as an FIR, question of explanation regarding delay has become redundant. 9. The next argument, advanced by learned counsel, Mr. Sarkar, is that P.Ws may be classified in two sets, i.e., P.Ws 1 to 6, who are members of the family of the deceased, Joydul Hossain, and P.W. 7 is the only independent witness, examined by the prosecution, who has supported the defence version. Learned Additional Sessions Judge discarded his evidence in a single stroke stating that his solitary evidence cannot brush aside the cumulative effect of the evidence of P.Ws 2 to 6. It is also submitted by learned counsel, Mr. Sarkar, that P.W. 7 is supported by the evidence of the defence witnesses, i.e., D.Ws 1, 2 and 3, but the learned Additional Sessions Judge did not consider the evidence of D.Ws 1 and 2; and simply considered the evidence of D.W. 3 in respect of plea of alibi of accused Mijan and Billal. The judgment, therefore, according to Mr. Sarkar, suffers from serious infirmity and is liable to be set aside. Learned Special P.P. has submitted that in the facts and circumstances of the case, P.Ws 2 to 6 are the natural witnesses, who made consistent statements regarding the entire occurrence. P.Ws 3 and 4 are the witnesses to the occurrence from the very beginning to the end and the presence of P.W. 4 has been admitted by D.W. 1 also. Hence, under such circumstances, the learned trial judge rightly relied on the evidence of the P.Ws and discarded the evidence of P.W. 7. It is, however, candidly admitted by learned counsel, Mr. Hence, under such circumstances, the learned trial judge rightly relied on the evidence of the P.Ws and discarded the evidence of P.W. 7. It is, however, candidly admitted by learned counsel, Mr. Debnath, that the evidence of P.W. 7, in his cross examination, has not been controverted by the prosecution in the witness box and has remained unchallenged. 10. We have meticulously gone through the evidence of P.Ws 2 to 6. P.W. 2 is the mother of P.Ws 3 and 4. They (P.Ws 2, 3 and 4) gave evidence, consistent with each other, to the effect that on the previous night, P.Ws 3 and 4 went to the house of Joydul and slept there, they woke up, in the early morning, on 25.10.2005, and went out of the hut of their uncle, Joydul, to answer nature's call, they found Ful Miah removing bamboo fencing of Joydul. They informed Joydul about the occurrence and subsequent thereto, Joydul came out and picked up a quarrel with Ful Miah on the issue, Ful Miah threw a broken spade aiming at Joydul and Joydul received bleeding injury on his left hand. It is also in the evidence of PWs 2, 3 and 4 that immediately thereafter, Ful Miah attacked Joydul with a cheni dao and started beating Joydul with fists, blows and kicks and in the meantime, other accused persons also arrived there and Joydul was dragged to the nearby paddy land of Rafikul Islam and was beaten up by all the accused persons, indiscriminately, causing severe injuries. 11. Admittedly, P.Ws 2 to 6 are all family members/relatives of deceased Joydul. It is also an admitted fact that there was scuffling and mutual fight between Joydul and Ful Miah. Prosecution's case is that during the midst of scuffling between Joydul and Ful Miah, other accused persons arrived there and they also assaulted Joydul with fists, blows and kicks and that Joydul died immediately thereafter, while on way to hospital. Inquest report, prepared over the dead body of Joydul by P.W. 11, shows only one mark of injury on the wrist of left hand. There was no other mark of injury on other parts of his body. Inquest was prepared in the presence of all the family members/relatives of the deceased. Inquest report, prepared over the dead body of Joydul by P.W. 11, shows only one mark of injury on the wrist of left hand. There was no other mark of injury on other parts of his body. Inquest was prepared in the presence of all the family members/relatives of the deceased. P.Ws 3 and 4 stated that a broken spade was thrown, aiming at Joydul, by Ful Miah and thereby Joydul received bleeding injury on his left hand P.M. report, which has been marked as Exbt. 10, shows that there was congestion and echymosis in the lung. There was laceration of liver, which indicated blunt trauma to abdomen, and echymosis of right testis, which indicates injury to testis and which can lead to neurogenic shock. The Autopsy Surgeon opined that the death was caused by asphyxia along with blunt trauma to liver and testis. Had all the 7 accused persons, named in the FIR, participated in the assault of Joydul, some more marks of injury on his body, other than the injury on his left hand, would have obviously occurred. Absence of any such injury on the body of Joydul, no doubt, creates in the facts and circumstances of the case, a serious doubt about the authenticity of the allegations made by the prosecution witnesses, where Ful Miah was also murdered and the allegation is that the witnesses, Jimul Haque, Firdausi Begam and other relatives of Joydul, were involved in the killing of Ful Miah. P.Ws 2 to 6 all made categorical statements, in their examinations-in-chief, that on hearing their cries, the nearby people arrived, and, on seeing them, the accused persons fled away. If it was so, then, the nearby people of the locality, who had arrived at the spot were, in the facts and circumstances of the case, independent witnesses and would have supported the prosecution's case; but the only independent witness, i.e., P.W. 7 has stated just contrary to what P.Ws 2 to 6 have stated. Admittedly, P.W. 7 is an independent witness. Admittedly, P.W. 7 is an independent witness. In his cross-examination, he has stated that he went near the house of Ful Miah and Joydul Hossain for cutting grass in the morning and, at that time, he heard the cries of sons of Ful Miah and, upon hearing the cries, he went there and found Ful Miah and Joydul Hossain scuffling with each other in the paddy field of Rafikul Islam, he separated them and they went to their respective houses. PW7 has also stated that none of the accused persons of this case was present there at that time and on that very day, later on, Joydul Hossain expired and he heard that Joydul died of heart attack. The evidence of P.W. 7 is supported by the evidence of D.Ws. D.W. 1 stated that on 25.10.2005, at about 5/5-30 am., while he was sleeping in his house, Shariful Islam (P.W. 4), nephew of Joydul, woke him up saying that there was altercation between Joydul and Ful Miah in the paddy field of Rafikul Islam. Hearing this, he went to the house of Abdul Hassem and informed KLC P.S. about the matter over telephone. Shariful also accompanied him. Wife of Abdul Hasem, Ramuja Khatun (D.W. 2), opened the door and he (D.W. 1) talked with the P.S. over telephone. This evidence of D.W. 1 was corroborated by the evidence of D.W. 2, who has deposed that accused Gani Miah (D.W. 1), along with Shariful Islam (P.W. 4), went to her house and Gani Miah gave a ring to the P.S. This evidence was also corroborated by P.W. 11, the I.O. of the case, as well as the G.D. Entry, which has been proved as Exhibit 9. Learned Additional Sessions Judge failed to consider this part of the evidence on record, which is equally convincing vis-a-vis the evidence of P.Ws 2 to 6. 12. It is a settled law that evidence of a prosecution witness, supporting the defence case and not declared hostile by the prosecution, while the witness was in the witness box, can safely be relied upon and such evidence cannot be ignored. On this score, we may gainfully rely on the decisions in the case of Rajaram Vs. State of Rajasthan, reported in (2005) 5 SCC 272, and Mukhtar Ahamad Ansari Vs. State of Delhi, reported in (2005) 5 SCC 258. On this score, we may gainfully rely on the decisions in the case of Rajaram Vs. State of Rajasthan, reported in (2005) 5 SCC 272, and Mukhtar Ahamad Ansari Vs. State of Delhi, reported in (2005) 5 SCC 258. It is also a settled proposition of law that if two versions surfaced in a prosecution case, one contradicting the others, the version, which favours the accused shall be accepted. The Supreme Court in Harchand Singh Vs. State of Haryana, reported in (1974) 3 SCC 397 , has observed: If in a case Prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation. 12.1 In view of the two contradictory versions appearing from the evidence on record and in view of the surrounding circumstances that the deceased had no visible injury on his person, except the one on his left hand caused by Ful Miah, the other injuries to deceased Joydul might have been caused during the midst of free fight between the two deceased (Joydul and Ful Miah), it is very difficult to believe that P.Ws 3 and 4, on seeing the occurrence, rushed to their old house in the wee hours of the morning, woke up the witnesses, rushed to the spot and that till then, all the accused persons were still beating the deceased; whereas no visible injury were available on his person. This makes the prosecution's case seriously doubtful about the involvement of the accused persons except, as regards Ful Miah, as stated by P.W. 7. In the circumstances, defence is entitled to get the benefit of doubt on this ground. 13. The next argument, advanced by learned counsel, Mr. Sarkar, is that the charges were framed under Sections 148 and 302 read with Section 149 of IPC, the trial judge acquitted accused, Mijan Miah and Billal Miah, on benefit of doubt and thereafter, jumped to the conclusion that the other accused persons committed the offence of murder in furtherance of their common intention. This decision of the learned trial judge is based, according to Mr. Sarkar, on no evidence. This decision of the learned trial judge is based, according to Mr. Sarkar, on no evidence. It is further submitted that learned trial Judge failed to distinguish between common intention and same or similar intention. According to learned counsel, since there is no evidence of common intention, the appellants are entitled to be acquitted. In support of his contention, learned counsel relied on AIR (32) 1945 PC 118 and AIR 1955 SC 216 . Learned Special P.P., on the other hand, has submitted that there is nothing wrong, in the absence of a specific charge under Section 34 of IPC, to arrive at a conclusion, if there is evidence on record to draw an inference that common intention developed on the spot and, therefore, learned Special P.P. supported the finding of the learned Addl. Sessions Judge and submitted that the order of conviction may be sustained. For reference, we may quote here the observations of the learned Additional Sessions Judge in para 18 of the judgment, which read thus:- 18. The conclusions that follow from the discussion aforesaid, is that the charge under Section 148 IPC or for that matter under a lower section under the same chapter fails because of the doubt about the participation of accused Billal Miah and Mirjan Hossain in the attack upon Joydul Hossain. But it is proved beyond any doubt that hearing the hue and cry, remaining four accused persons arrived at the spot and formed the common intention to inflict injuries on vital parts of the body of Joydul Hossain and the injuries thereafter inflicted were sufficient in the ordinary course of nature to cause his death. Thus charge under Section 302 IPC read with Section 34 IPC is clearly proved against the accused persons namely 1. Gani Miah, 2. Khalek Miah, 3. Harun Miah and 4. Tara Miah. Needless to say on a charge framed with the aid of Section 149 IPC, the accused persons may be ultimately convicted with the aid of Section 34 of IPC without altering the charge. 14. We have carefully gone through the evidence of prosecution witnesses. We find no iota of evidence on record that the accused persons had previous meeting of minds or a pre-arranged plan to commit murder of deceased Joydul. 14. We have carefully gone through the evidence of prosecution witnesses. We find no iota of evidence on record that the accused persons had previous meeting of minds or a pre-arranged plan to commit murder of deceased Joydul. It is the definite case of the prosecution that on seeing Ful Miah removing bamboo fencing of Joydul, P.Ws 3 and 4 informed Joydul and, thereafter, Ful Miah and Joydul picked up quarrel and started scuffling and a free fight between them ensued. Thereafter, according to prosecution, other accused persons appeared on the spot and dragged Joydul to the paddy field of Rafikul and assaulted him there. The evidence on record, nowhere, makes a whisper that the accused persons had any conversation between themselves or with deceased, Ful Miah, to assault Joydul with a view to eliminate him. Under such circumstances, the finding of the learned trial judge, that there was common intention, is totally unfounded and we are constrained to observe that the finding is based on no cogent evidence. 15. Common intention and common object stand on different footing. For common intention, evidence is required showing previous meeting of minds and pre-arranged plan. In case of common object, there is no need for prior concert and common meeting of minds before the commission of crime. No doubt, common intention may develop on the spot, but to that effect, there must be very specific and cogent evidence. Common intention and same or similar intention are often misunderstood. Mere participation of all the accused persons, in the alleged assault of Joydul, even if believed, as narrated by P.Ws 2 to 6, does not necessarily signify prior concert of mind or pre-arranged plan having developed at the spot of incident. In a given case, several persons can simultaneously attack a man and each one may individually inflict separate fatal blows and yet none may have the common intention required by Section 34 if there is no evidence of prior meeting of minds. In such a case, each would be individually liable for whatever injury one causes, but none could be vicariously convicted for the act of any of the others. The courts are required to take care of the facts and circumstances of each individual case based on legal evidence, and must not get confused in distinguishing same or similar intention from common intention. The courts are required to take care of the facts and circumstances of each individual case based on legal evidence, and must not get confused in distinguishing same or similar intention from common intention. It has, now, been settled that the partition, which divides their bounds, is often very thin; nevertheless the distinction is real and substantial, and if overlooked, it will result in miscarriage of justice. The plan need not be elaborate nor is a long interval of time required. It could arise and be formed suddenly. But there must be pre-arrangement and premeditated concert. In Mahabub Shah Vs. Emperor reported in AIR (32) 1945 PC 118, the Privy Council held- Common intention within the meaning of S. 34 implies a prearranged plan. To convict the accused of an offence applying Section 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. The Supreme Court, in Pandurang & Ors. Vs. State of Hyderabad, reported in AIR (1955) SC 216, on the point of common intention, held thus:- In the case of Section 34, it is well established that a common intention presupposes prior concert. It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case. The partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The plan need not be elaborate, nor is a long interval of time required: It could arise and be formed suddenly, as for example, when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, to have the same intention independently of each other, e.g., the intention to rescue another, and, if necessary, to kill those who oppose. It is true, prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". 16. In the case at hand, on careful scrutiny of the evidence of the P.Ws 2 to 6, we find no cogent evidence to hold that even at the spot, no common intention had developed amongst the accused persons. The participation of all the accused persons in the offence is found to be doubtful. Under such circumstances, the defence version gained strength that the prosecution story, as narrated, cannot be believed for holding the accused persons guilty of the offence with the help of Section 34 of IPC, while Ful Miah has already been murdered. The ratio of the case laws, referred to above, may be gainfully applied to the facts and circumstances of this case. The deceased might have received the injury in his liver and testis, while having scuffling with Ful Miah (since deceased). Such a presumption may be drawn from the evidence of P.W. 7 and other attending circumstances. 17. In view of the discussions made above, the accused-appellants are entitled to get benefit of doubt and the appeal is allowed. The judgment and order of conviction and sentence of the appellants stand accordingly set aside. They be released, at once, if not required in any other case. Appeal allowed