JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. These criminal appeals have been preferred by the accused-appellants, namely, Md. Munna, Md. Salim Mian @ Md. Salim, Md. Chhotu @ Md. Chhotu Sidique and Md. Guddu; Criminal Appeal (DB) No. 390 of 2010 by Md. Munna, Cr. Appeal (DB) No. 207 of 2010 by Md. Salim Mian @ Md. Salim, Cr. Appeal (DB) No. 389 of 2010 by Md. Chhotu @ Md. Chhotu Sidique and Cr. Appeal (DB) No. 393 of 2010 by Md. Guddu, challenging the judgment of conviction dated 25.02.2010 and the order of sentence dated 26.02.2010 in Sessions Case No. 32 of 2008. 2. All the appellants have been sentenced to undergo R.I for life for the offence under section 302/149 of the Indian Penal Code, R.I for 10 years under section 307/149 of the Indian Penal Code, R.I for 3 years under section 148 of the Indian Penal Code and R.I for 2 years under section 147 of the Indian Penal Code. 3. During the trial, the appellant Md. Salim Mian @ Md. Salim was on bail, however, he has been serving the sentence awarded to him after he was convicted in Sessions Case No.32 of 2008. 4. Since all these Criminal Appeals arise from a common judgment in Sessions Case No.32 of 2008, these appeals were heard together and now disposed of by this order. 5. The prosecution case as narrated by Dropadi Devi, who is mother of the deceased-Laltu Mandal, is reflected in her fardbeyan which was recorded by the police at about 11.15 p.m. on 15.08.2007. It is stated that in the night of 15.08.2007 at about 9.40 p.m. the alleged occurrence has taken place and information to the police was given at about 10 p.m. on the same night. Accordingly, S.D Entry No. 521 was made at the police station and the officer-in-charge of Dumka (T) police station with other police officers proceeded to Karpuri Chowk, Tinbazar and recorded statement of Awadh Kishore Choudhary. The informant has stated that on 15.08.2007 when she was sitting in front of her shop, the accused, namely, Chhotu Mian and Raju Mian came there and inquired about his son- Laltu Mandal. They were threatening to kill him. The informant has stated that on 15.08.2007 when she was sitting in front of her shop, the accused, namely, Chhotu Mian and Raju Mian came there and inquired about his son- Laltu Mandal. They were threatening to kill him. The informant says that when Laltu Mandal came out both the accused persons started assaulting him with knife and in the meantime their brothers, namely, Munna Mian and Guddu Mian as well as Mirtunjay Singh came there. These three persons also started assaulting Laltu Mandal with knife and threw the body of Laltu Mandal in the drain. The informant has further stated that when her son, namely, Mahabir Mandal, who is handicapped, and her neighbour Chandan Kesari tried to rescue Laltu Mandal they were also assaulted by the accused persons. Thereafter, the injured persons were brought to Sadar Hospital, Dumka for treatment, however, during the treatment Laltu Mandal succumbed to his injuries. The reason disclosed by the informant for assault by the accused persons is that Md. Chhotu @ Md. Chhotu Sidique had teased her daughter-in-law to which Laltu Mandal had objected. The informant has further stated that on 14.08.2007 Chhotu Mian, Raju Mian and Mirtunjay Singh had come to her home and threatened that tomorrow would be the last day of Laltu Mandal. 6. On the basis of the statement of Dropadi Devi, Dumka (T) P.S. Case No. 220 of 2007 was registered against the accused-appellants including Md. Raju and Mirtunjay Singh under sections 147, 148, 149, 323, 324, 307, 302 and 504 of the Indian Penal Code. 7. After the investigation, charge-sheet was submitted and cognizance of the offence was taken by the Magistrate. Charges under sections 147,148,149, 302, 307 and 504 of the Indian Penal Code were framed against all the accused persons vide order dated 20.06.2008. During the trial, the prosecution has examined altogether 15 witnesses; the informant-Dropadi Devi is PW-13, her son, namely, Mahabir Mandal is PW-8 and her neighbour, namely, Chandan Kesari is PW-14. The prosecution has projected Bishnu Mandal and Jaiprakash Mandal also as eye witnesses who have been examined as PW-2 and PW-5 respectively. Dr. Ajay Kumar Singh, who has conducted the post-mortem examination, has been examined as PW-12 and the Investigating Officer is PW-15. 8. A counter case was lodged at the instance of Md. Chhotu Sidique on the basis of his statement recorded at 11.45 p.m. on 15.08.2007. Dr. Ajay Kumar Singh, who has conducted the post-mortem examination, has been examined as PW-12 and the Investigating Officer is PW-15. 8. A counter case was lodged at the instance of Md. Chhotu Sidique on the basis of his statement recorded at 11.45 p.m. on 15.08.2007. This is Dumka (T) P.S. Case No. 221 of 2007 which has been lodged under sections 147, 148, 149, 325, 307, 324 and 504 of the Indian Penal Code against Laltu Mandal, Chandan Singh, Chandan Keshari, Karu and Bega Mandal. The defence story is that on 15.08.2007 at about 9.45 p.m. Chhotu Sidique was going home on his Yamaha Motorcycle and when he reached Karpuri Chowk, Laltu Mandal started abusing him and gave sickle blow to him. He tried to defend himself and in the process two fingers of his left hand were injured, however, somehow he could snatch the sickle and in the process Laltu got injured. Subsequently, his brother, namely, Raju also came there and Chandan Singh, Chandan Keshari and Karu assaulted both the brothers. They were examined at Sadar Hospital and, thereafter, at PMCH, Dhanbad. 9. To demonstrate that they had a right of private defence, documents pertaining to Dumka (T) P.S. Case No. 25 of 2007, Dumka (T) P.S. Case No. 87 of 2007, Dumka (T) P.S. Case No. 237 of 2006 and the injury report as well as a copy of Information Petition No. 100 of 2007 were brought on record by the accused persons. Three witnesses including the accused Chhotu Sidique, who has been examined under section 315 Cr.P.C, have spoken on the right of private defence of the accused persons. 10. The stand taken by the accused persons is that the deceased Laltu Mandal and his brother Boro Nunu were musclemen of the area who were extorting money from the persons in the locality. Dumka (T) P.S. Case No. 25 of 2007 was lodged by Sanjeev Kumar Jaiswal alleging that Laltu Mandal and Chandan Mandal were asking extortion money from him. In that case charge sheet was submitted against the accused persons. Dumka (T) P.S. Case No. 87 of 2007 was instituted at the instance of Sanjay Kumar Ghosh who has alleged that Ram Mandal, Niraj Sah and Boro Nunu were demanding Rs. 551/- as donation on the occasion of Ram Navami. However, he could give only Rs. In that case charge sheet was submitted against the accused persons. Dumka (T) P.S. Case No. 87 of 2007 was instituted at the instance of Sanjay Kumar Ghosh who has alleged that Ram Mandal, Niraj Sah and Boro Nunu were demanding Rs. 551/- as donation on the occasion of Ram Navami. However, he could give only Rs. 51/- due to which they became enraged and threw articles from his shop. There is reference of another First Information Report lodged by Praveen Kumar in which he has alleged that when he was returning from Gayanda Talkies four unknown miscreants snatched Sonata wrist watch and Rs. 2,000/- from him. The defence has produced the aforesaid documents to establish that the deceased was a man of bad character and criminal antecedent. 11. On the basis of the evidences laid before him, the Additional Sessions Judge, FTC, Dumka has held that the prosecution has successfully proved the charge under sections 147, 148, 302/149 and 307/149 of the Indian Penal Code against five of the accused persons; the accused Mirtunjay Singh has been extended benefit of doubt and he has been acquitted of the charges framed against him. 12. Mrs. Abha Verma, the learned counsel, who appears for the appellants in Cr. Appeal (DB) No. 389 of 2010 and Cr. Appeal (DB) No. 390 of 2010 has assailed conviction of these appellants with the aid of section 149 of the Indian Penal Code, primarily on the ground that the prosecution has failed to establish common object of the unlawful assembly, if any. She has further contended that the appellants had a right of private defence which can be interfered from the injuries caused to two of the accused persons. Mr. Abhishek Kumar, the learned counsel appearing for the appellant in Criminal Appeal (DB) No. 393 of 2010 and Mr. Sudhir Kumar, the learned counsel who appears for the appellant in Criminal Appeal (DB) No. 207 of 2010 have submitted that the injuries which have been found fatal are not caused by these appellants and, therefore, it cannot be inferred that these appellants have shared the common object to kill Laltu Mandal. 13. Section 96 of the Indian Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence. 13. Section 96 of the Indian Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence. Section 100 of the Indian Penal Code provides instances in which the right of private defence of body extends to causing death. Before the amendment of 2013 section 100 of the Indian Penal Code reads as under: “100. When the right of private defence of the body extends to causing death - The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First - Such as assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly - An assault with the intention of committing rape; Fourthly - An assault with the intention of gratifying unnatural lust; Fifthly - An assault with the intention of kidnapping or abducting; Sixthly - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.” 14. Section 102 of the Indian Penal Code provides that the right of private defence of body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed. 15. Dr. Vinod Kumar Sinha, who has been examined as D.W. 2, has found the following injuries on Md. Chhotu Mian: “i. Incised wound over nose 1”x1/8” x1/8” ii. Incised wound 2 ½” x ½ “ x ¼” iii. 1 ½”x ½” x ¼”. Above injuries were found over right shoulder iv. Incised wound over left hand 2 ½” x ¼” x muscle deep.” 16. The doctor has found one incised injury on the right wrist of Md. Raju (absconder). The injuries caused to Md. Chhotu and Md. Raju were caused by sharp-cutting weapon. The injury reports of Md. Chhotu Mian and Md. Raju were marked as Ext.-E and E/1 respectively. Incised wound over left hand 2 ½” x ¼” x muscle deep.” 16. The doctor has found one incised injury on the right wrist of Md. Raju (absconder). The injuries caused to Md. Chhotu and Md. Raju were caused by sharp-cutting weapon. The injury reports of Md. Chhotu Mian and Md. Raju were marked as Ext.-E and E/1 respectively. These injury reports have been prepared on police requisition and the doctor has stated that it is difficult to say that these injuries were self-inflicted. 17. The learned Additional Sessions Judge has rejected the plea of right of private defence pleaded by the accused persons observing that when sharp-cutting weapon is used there is always a possibility that the accused side also may sustain injuries. 18. The appellant-Md. Chhotu Sidique, when he was examined under section 315 Cr.P.C, has deposed that Boro Nunu Mandal had taken loan of Rs.13000/- from him but when he asked him to return the money he started threatening him and in this connection he has filed a written report in the court of C.J.M, Dumka which was registered as Information Petition No.100 of 2007, dated 15.06.2007. The appellant-Md. Chhotu Sidique has further stated that both Boro Nunu Mandal and his brother-Laltu Mandal are muscle-men of the area and they are accused in many cases. 19. Mrs. Abha Verma, the learned counsel for the appellant-Md. Chhotu Sidique submits that the appellant-Md. Chhotu Sidique has suffered serious injuries and that is the reason he was referred for further treatment to P.M.C.H, Dhanbad. The defence has examined Dr. Dilip Kumar Bhagat as D.W. 3 to stress this point. In the X-ray report, the doctor (D.W 3) found fracture of left hand and second and third metacarpal bone. However, D.W 3 admits in his cross-examination that the injuries were not dangerous enough to cause death. We find one important fact emerging from the defence evidence which makes the defence story doubtful. That is injuries suffered by the accused Md. Raju and the appellant-Md. Chhotu Sidique. The injuries on Md. Chhotu Sidique have been found six hours old whereas the injury of Md. Raju was caused about three hours before he was examined by the doctor-D.W 2, though they claim that both of them have suffered injury in the same alleged incident. No doubt, D.W 2 has stated that it is difficult to say whether injuries on Md. Chhotu Sidique have been found six hours old whereas the injury of Md. Raju was caused about three hours before he was examined by the doctor-D.W 2, though they claim that both of them have suffered injury in the same alleged incident. No doubt, D.W 2 has stated that it is difficult to say whether injuries on Md. Chhotu Sidique were self-inflicted, the number of injuries caused to the deceased-Laltu Mandal and other three prosecution witnesses; 25 in number, would rule out any possibility of existence of the right of private defence of the appellants. The appellants have failed to establish that the prosecution party were the aggressors. On the contrary, the prosecution has led consistent evidence that Md. Raju and Md. Chhotu Sidique were the persons who first caught hold of Laltu Mandal and started assaulting him. 20. In Darshan Singh vs. State of Punja and Another, (2010) 2 SCC 333 , the Supreme Court has reiterated that every man has inherent right to protect his own person and property against any unlawful aggression of others. The right of private defence of a person has been summarized by the Supreme Court in these words: “31. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also a settled position of law that a right of self-defence is only a right to defend oneself and not to retaliate. It is not a right to take revenge. 32. Right of private defence of person and property is recognised in all free, civilised, democratic societies within certain reasonable limits. Those limits are dictated by two considerations: (1) that the same right is claimed by all other members of the society. (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrongdoer of commission of offences. 33. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrongdoer of commission of offences. 33. A legal philosopher Michael Gorr in his article “Private Defense” (published in the journal Law and Philosophy Vol. 9, No. 3/August 1990 at p. 241) observed as under: “Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Williams has termed ‘private defence’ i.e. to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same.” 34. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. 21. It is well-settled that it is for the accused claiming the right of private defence to place necessary material on record either by adducing positive evidence or by eliciting necessary facts from the prosecution witnesses and a plea of right of private defence cannot be established on mere speculation. The learned Sessions Judge has found that in his Information Petition the appellant-Md. Chhotu Sidique has not spoken about loan of Rs. 13000/- to Boro Nunu Mandal rather, he has stated that on 30.05.2007 Boro Nunu Mandal had demanded his motorcycle for two days to which he refused and, therefore, on 14.06.2007 Boro Nunu Mandal threatened to kill him. But, in the counter-case the appellant-Md. Chhotu Sidique has set-up a story of loan taken by Boro Nunu Mandal. Leaving this aspect aside, when statement of Md. But, in the counter-case the appellant-Md. Chhotu Sidique has set-up a story of loan taken by Boro Nunu Mandal. Leaving this aspect aside, when statement of Md. Chhotu Sidique recorded under section 315 Cr.P.C is examined in the light of the medical evidence produced by the defence through D.W 2 and D.W 3, we find that the appellants have failed to establish their right of private defence. 22. Dr. Ajay Kumar Singh who has examined Laltu Mandal has admitted in his cross-examination that when Laltu Mandal was brought before him he was alive and, accordingly, he referred him to a surgeon. Laltu Mandal was operated upon in the hospital, however, on the same day he succumbed to his injuries. The doctor has found the following injuries on the dead body of Laltu Mandal: “i. Penetrating wound 3 cmx2cm deep x abdominal cavity percing the peritoneum. Loops of intestine protruding out of the wound into size of the wound over lower abdomen right side of the midline below ablicus. On dissection abdominal cavity was found full of blood. Messentric vessels and small gut found cut. ii. A stiched wound 3 cm over right side of chest below nipple. On opening and dissection of the wound underline 4th rib found cut into pieces. On further dissection pleura and lungs punctured. Thorasic cavity both side found full of blood. iii. Incised wound 8 cm x1 ½ cm x muscle deep over upper part of right upper arm lateral aspect iv. Incised wound 3 cm x 1 ½ cm x skin deep over middle of the right upper arm v. Incised wound 3 cm x 1 cm x muscle deep over lower part of back of the right forearm vi. Incised wound over right plan extending from roots of the thumb to dorsal aspect of middle of the fourth metacarpal cutting across 6th metacarpal vii. Incised and cutting across the distal phylanx of right middle finger which was attached to the rest part of the finger by tag of skin viii. Incised stitched wound 10 cm extending from right eye-brow to left of the chick with cutting of nasal bone ix. Incised stitched wound 10 cm in length. On opening 2.5 cm wide muscle deep over back of neck x. Incised wound 6 cm x 3 cm x muscle deep over left shoulder xi. Incised stitched wound 10 cm extending from right eye-brow to left of the chick with cutting of nasal bone ix. Incised stitched wound 10 cm in length. On opening 2.5 cm wide muscle deep over back of neck x. Incised wound 6 cm x 3 cm x muscle deep over left shoulder xi. Incised wound 2 cm x 1 cm into muscle deep over right axilla xii. Incised wound 2 cm x 1 cm x skin deep over lateral aspect of chest below right axilla xiii. Incised wound 8 cm x 3.5 cm muscle deep over back of the lower part of left upper arm xiv. Incised wound 3 cm x 2 cm skin deep over back of the left elbow xv. Incised wound two in number 6 cm x 1 cm x muscle deep, 3 cm x ½ cm skin deep over back of the scalp side by side.” 23. PW-12 has opined that all the injuries were caused by pointed sharp-cutting weapon like knife and sword; injury nos. (i) to (vi) were sufficient to cause death. 24. The prosecution witness, namely, Mahabir Mandal-PW-8 was also examined by the doctor-PW-12 on 15.08.2007, who has found the following injuries on him: “i. Incised wound 4” x ¾” x muscle deep over left temporal region ii. Incised wound 1” over upper part of left pinna only attached with the tag of the skin iii. Incised wound 1 ¼” x ¾” x skin deep over left wrist iv. Incised wound 1” x 1/10” over left forearm v. Incised wound ½” x ½” x skin deep over right hand with bleeding.” 25. Chandan Keshari-PW-14 has suffered the following injuries: “i. Incised wound 6”x 1” x muscle deep on back of the skull with bleeding ii. Incised wound 1” x 1” x skin deep over left forearm iii. Incised wound 4 ½” x ¾” x muscle deep extending from left angular mouth to left chick including left side of lower lips with bleeding iv. Incised wound 4” x 2 ½” x bone deep over left wrist with bleeding v. Multiple incised wound over right back and front of the right hand. Injuries found on PW-8 and PW-14 were simple in nature.” 26. Besides the informant, there are as many as five witnesses who have been projected by the prosecution as eye-witness. Incised wound 4” x 2 ½” x bone deep over left wrist with bleeding v. Multiple incised wound over right back and front of the right hand. Injuries found on PW-8 and PW-14 were simple in nature.” 26. Besides the informant, there are as many as five witnesses who have been projected by the prosecution as eye-witness. Consistent case of the prosecution is that the accused Raju Mian ( absconder) and Chhotu Sidique were the persons who first came to the shop of the informant and inquired about her son Laltu Mandal. Other accused persons subsequently joined them and it is stated that they have also assaulted Laltu Mandal. The accused Guddu was holding a bread-cutting knife and the accused Md. Salim is said to have brought a sword. During the trial, the prosecution has established through P.W 1, P.W 2, P.W 5, P.W 8, P.W 13 and P.W 14 that Md. Chhotu Sidique caught hold of Laltu Mandal and the accused-Md. Raju started assaulting him with knife. The prosecution story as narrated by its witnesses splits the occurrence in two parts; in the first part only Md. Raju and Md. Chhotu Sidique have played role in assaulting Laltu Mandal. This part of the prosecution evidence has remained unimpeached. There is no contradiction or even any discrepancy in the prosecution evidence that Md. Chhotu Sidique caught hold of Laltu Mandal and Md. Raju started assaulting him with knife. In our opinion, this makes a distinction in the motive shared by the accused persons. 27. Section 141 of the Indian Penal Code defines unlawful assembly. There is no contradiction or even any discrepancy in the prosecution evidence that Md. Chhotu Sidique caught hold of Laltu Mandal and Md. Raju started assaulting him with knife. In our opinion, this makes a distinction in the motive shared by the accused persons. 27. Section 141 of the Indian Penal Code defines unlawful assembly. An assembly of five or more persons is designated as unlawful assembly, if the common object of the persons composing that assembly is to do an act which falls under one of the five clauses under section 141 of the Indian Penal Code It is not necessary to establish that every member of an unlawful assembly has committed some illegal overtact and it is also true that if an offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, or as a member of that assembly knew to be likely to be committed in prosecution of that object, every member who at the time of committing of that offence is a member of the same assembly is guilty of that offence, but then, when two persons have already started assaulting the victim with deadly weapon merely because others have joined them subsequently they also cannot be imputed with the same common object to cause death of the victim. 28. In the present case, there was no specific charge framed under section 302/149 of the Indian Penal Code against all the accused persons, rather a common charge under section 302 of the Indian Penal Code; an error in framing of charge, has been framed against all of them. Charge for the offence under section 149 of the Indian Penal Code has been framed for assaulting Laltu Mandal, Mahavir Mandal and Chandan Keshri, but not for causing death of Laltu Mandal. In the above facts, we are unable to accept the submission of Mr. Pankaj Kumar, the learned A.P.P that all the accused persons shared common object to cause death of Laltu Mandal. In fact, at the initial stage there was no unlawful assembly; only two accused persons were involved in the occurrence. In the above facts, we are unable to accept the submission of Mr. Pankaj Kumar, the learned A.P.P that all the accused persons shared common object to cause death of Laltu Mandal. In fact, at the initial stage there was no unlawful assembly; only two accused persons were involved in the occurrence. An assembly of persons may turn unlawful and common object may form subsequently, but in a case where only two persons have started the assault and the evidence in respect of the others who have joined them is not specific it is difficult to hold that all of them have shared a common object to kill. In our opinion, on the basis of the aforesaid evidence led by the prosecution the appellants namely, Md. Guddu, Md. Munna and Md. Salim cannot be held to have shared common object to cause death of Laltu Mandal. 29. Many of the prosecution witnesses have stated that the appellants namely, Md. Munna, Md. Guddu and Md. Salim also came there and started assaulting Laltu Mandal but there is a distinction in the role played by the appellant-Md. Salim and other two appellants namely, Md. Guddu and Md. Munna. P.W 1, who has been projected as an eye-witness, has named only two persons namely, Raju Mian and Chotu Mian and he says that two persons whom he does not recognize also came there and started assaulting Laltu Mandal. P.W 2 says that Md. Chhotu Sidique caught hold of Laltu Mandal and Md. Raju was assaulting him with knife and when a hue and cry was raised Md. Munna, Md. Guddu and their father Md. Salim came there. P.W 2 has not attributed any assault by these three appellants upon Laltu Mandal. He says that when Chandan Keshri, Mahavir Mandal and he tried to save Laltu Mandal all five accused persons assaulted them. P.W 8 says that the accused Md. Salim came later after a hue and cry was raised and P.W 13 has also stated that Salim came there later on. Above all, in her fardbyan the informant does not say that the appellant-Md. Salim also came there and assaulted her son. In fact, she has not named him as an accused. The other prosecution witnesses have made a general allegation that all the accused persons have assaulted Laltu Mandal but some of them have admitted in their cross-examination that the appellant-Md. Salim also came there and assaulted her son. In fact, she has not named him as an accused. The other prosecution witnesses have made a general allegation that all the accused persons have assaulted Laltu Mandal but some of them have admitted in their cross-examination that the appellant-Md. Salim came there later on and few have not spoken about any assault by him to Laltu Mandal. In view of the inconsistent evidence led by the prosecution against the appellant-Md. Salim on the point of assault upon Laltu Mandal, we are inclined to extend benefit of doubt to this appellant. 30. Accordingly, conviction of the appellant-Md. Salim for the offence under section 302/149 of the Indian Penal Code and the order of sentence passed against him for that offence are set-aside. 31. The injuries suffered by the prosecution witnesses namely, Mahavir Mandal, Chandan Keshri and Vishwa Mandal are simple in nature but the number of injuries caused to these prosecution witnesses reflect intention of the accused persons to commit an offence under section 307 of the Indian Penal Code. At this juncture, when the accused persons have started assaulting the prosecution witnesses they are five in number and, accordingly, conviction of all the appellants under section 307/149 of the Indian Penal Code is well-proved. However, on the question of sentence for the offence under section 307/149 of the Indian Penal Code we are inclined to reduce the sentence of R.I of 10 years awarded to the appellants to R.I for 7 years. 32. Ordered accordingly. 33. The conviction of the appellants under section 147 and 148 of the Indian Penal Code and the order of sentence passed against them for the aforesaid offences are also confirmed. 34. Now coming to the role played by the appellant-Md. Chhotu Sidique, we find that he was the one who along with his brother Md. Raju took Laltu Mandal on the point of knife from his house to Karpuri Chowk. He is said to have caught hold of Laltu Mandal by pressing his mouth while Md. Raju gave repeated knife blow to Laltu Mandal. He has thus taken an active part in assault upon Laltu Mandal. Common intention of an accused can be inferred from his conduct, the manner of occurrence and sometimes the cause for the occurrence. He is said to have caught hold of Laltu Mandal by pressing his mouth while Md. Raju gave repeated knife blow to Laltu Mandal. He has thus taken an active part in assault upon Laltu Mandal. Common intention of an accused can be inferred from his conduct, the manner of occurrence and sometimes the cause for the occurrence. It is not necessary that all the accused must have assaulted the victim, rather it is sufficient if it is shown that each one of them acted in concert and the offending act is done in furtherance of the common intention of all. May be, the appellant-Md. Chhotu Sidique has not assaulted the deceased-Laltu Mandal but then it was the role played by him which has facilitated the crime. Had he not caught hold of Laltu Mandal he would have fled away after suffering one or few injuries. The fact that this accused and his brother Md. Raju have taken Laltu Mandal to Karpuri Chowk under the fear of knife is the one fact which clearly reflects intention of these two persons to kill Laltu Mandal. From the evidences laid by the prosecution it is established that the appellant-Md. Chhotu Sidique shared a common intention with Md. Raju to cause death of Laltu Mandal and, accordingly, conviction of Md. Chhotu Sidique under section 302/149 of the Indian Penal Code is converted to section 302/34 of the Indian Penal Code. His conviction and sentence awarded by the learned Sessions Judge for causing death of Laltu Mandal are affirmed. 35. The prosecution has established that the appellants namely, Md. Guddu and Md. Munna have assaulted Laltu Mandal-the deceased and most of the injuries found on the dead body are grievous in nature, many of which can be ascribed to these two appellants. But, the evidence on the weapon held by these appellants and who has inflicted injury on which part of the body of Laltu Mandal are not consistent. Except the accused-Md. Raju and the appellant-Md. Chhotu Sidique other appellants did not share common intention to cause death of Laltu Mandal. The doctor-P.W 12 who has conducted the post-mortem examination over the dead-body of Laltu Mandal has held that the injury nos.(i) to (vi) were sufficient to cause death. This can be construed in two ways; either each of the injury at sl. Chhotu Sidique other appellants did not share common intention to cause death of Laltu Mandal. The doctor-P.W 12 who has conducted the post-mortem examination over the dead-body of Laltu Mandal has held that the injury nos.(i) to (vi) were sufficient to cause death. This can be construed in two ways; either each of the injury at sl. no.(i) to no.(vi) was sufficient to cause death or all the injuries commutatively were sufficient to cause death. Both ways, the prosecution has not been able to establish that any of the injury from sl. no. (i) to no.(vi) has been caused by these two appellants. However, since the prosecution has succeeded in proving that these two appellants have also caused injuries to Laltu Mandal, we are of the opinion that they are liable to be convicted under section 326/34 of the Indian Penal Code. Section 326 of the Indian Penal Code provides punishment for voluntarily causing grievous hurt by dangerous weapon or means; the offender shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 36. Accordingly, conviction of Md. Guddu and Md. Chhotu Sidique under section 302/149 of the Indian Penal Code and the order of sentence for the said offence passed against them are set-aside. They are convicted under section 326/34 of the Indian Penal Code and sentenced to undergo R.I for 10 years. 37. In the result, we affirm conviction of Md. Chhotu @ Md. Chhotu Sidique for causing death of Laltu Mandal and he is convicted under section 302/34 of the Indian Penal Code. Accordingly, the judgment of conviction under section 302/149 of the Indian Penal Code dated 25.02.2010 in Sessions Case No. 32 of 2008 against him is modified but sentence of R.I for life is affirmed. His conviction for the offence under section 147, 148 and 307/149 of the Indian Penal Code is affirmed but his sentence for the offence under section 307/ 149 of the Indian Penal Code is reduced to R.I for seven years. 38. Criminal Appeal (D.B.) No. 389 of 2010 is dismissed, however, with the aforesaid modification in the judgment of conviction and the order of sentence of the appellant- Md. Chhotu @ Md. Chhotu Sidique. 39. The appellant-Md. Salim Mian @ Md. 38. Criminal Appeal (D.B.) No. 389 of 2010 is dismissed, however, with the aforesaid modification in the judgment of conviction and the order of sentence of the appellant- Md. Chhotu @ Md. Chhotu Sidique. 39. The appellant-Md. Salim Mian @ Md. Salim in Criminal Appeal (DB) No. 207 of 2010 is acquitted of the charge under section 302/ 149 of the Indian Penal Code. Accordingly, the judgment of conviction under section 302/149 of the Indian Penal Code dated 25.02.2010 and the order of sentence dated 26.02.2010 for the said offence in Sessions Case No.32 of 2008 against the appellant-Md. Salim Mian @ Md. Salim are set-aside. His conviction and sentence under sections 147, 148 and 307/149 of the Indian Penal Code is affirmed. He stands convicted under section 307/149 of the Indian Penal Code but his sentence is reduced to R.I for 7 years. 40. Criminal Appeal (DB) No. 207 of 2010 is partly allowed. 41. The appellant-Md. Munna in Criminal Appeal (D.B.) No. 390 of 2010 and the appellant- Md. Guddu in Criminal Appeal (D.B.) No. 393 of 2010 are acquitted of the charge under section 302/149 of the Indian Penal Code. The judgment of their conviction under section 302/149 of the Indian Penal Code dated 25.02.2010 and order of sentence dated 26.02.2010 for the said offence in Sessions Case No. 32 of 2008 passed against them are set- aside. The appellants, namely, Md. Munna and Md. Guddu are convicted under section 326/34 of the Indian Penal Code and they are sentenced to undergo R.I. for 10 years. Their conviction for the offence under sections 147, 148 and 307/149 of the Indian Penal Code is affirmed but their sentence for the offence under section 307/149 of the Indian Penal Code is reduced to R.I for 7 years. 42. Accordingly, Criminal Appeal (DB) No. 390 of 2010 and Criminal Appeal (DB) No. 393 of 2010 are partly allowed. 43. The appellants, namely, Md. Salim Mian @ Md. Salim in Criminal Appeal (D.B.) No. 207 of 2010, Md. Munna in Criminal Appeal (D.B.) No. 390 of 2010 and Md. Guddu in Criminal Appeal (D.B.) No. 393 of 2010 shall be released forthwith, if not required in connection to any other case. 44. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 45. Let the lower-court records be transmitted to the court concerned forthwith. Criminal Appeal Nos. Guddu in Criminal Appeal (D.B.) No. 393 of 2010 shall be released forthwith, if not required in connection to any other case. 44. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 45. Let the lower-court records be transmitted to the court concerned forthwith. Criminal Appeal Nos. 390, 393 of 2010 partly allowed. Criminal Appeal No. 207 of 2010 partly allowed. Criminal Appeal No. 389 of 2010 dismissed.