ORDER : Shree Chandrashekhar, J. Three accused persons, namely, Prakash Bhuiyan, Banodhi Bhuiyan and Gadia Bhuiyan @ Godi Bhuiyan have faced the trial on the charge of committing murder of Mahadeo Bhuiyan in furtherance of their common intention. They have been convicted under sections 302/34 IPC vide judgment of conviction dated 29.09.2010 and vide order dated 30.09.2010 sentenced to undergo RI for life with fine of Rs. 5000/- each passed in S.T. No. 431 of 2006 by the learned Additional Sessions Judge, FTC-III, Hazaribag. 2. The convict, namely, Prakash Bhuiyan is the appellant in Cr. Appeal (D.B.) No. 499 of 2014, the convict, namely, Banodhi Bhuiyan is the appellant in Cr. Appeal (D.B.) No. 235 of 2014 and the convict, namely, Gadia Bhuiyan @ Godi Bhuiyan is the appellant in Cr. Appeal (D.B.) No. 442 of 2017. 3. On the basis of the fardbeyan of Dhanwa Devi recorded, at about 22.30 hours, on 16.02.2006 at the house of Banodhi Bhuiyan, the accused, Chauparan P.S. Case No. 30 of 2006 was registered under sections 302/34 IPC against the above-named accused persons. After the investigation, they were sent up for trial. During the trial, the prosecution has examined altogether 8 witnesses; the informant, who is wife of the deceased, namely, Mahadeo Bhuiyan, is PW-2 and her son, namely, Surendra Bhuiyan has been examined as PW-1. Another son of the deceased, namely, Birendra Bhuiyan PW-7, brother of the deceased, namely, Jagadeo Bhuiyan PW-6 and sister-in-law of the deceased, namely, Kunti Devi PW-4 have also been examined by the prosecution. 4. The Invesigating Officer of this case has not been examined due to his death. 5. Dr. Subhash Prasad PW-8, who has conducted the postmortem examination, has found the following on the dead body of Mahadeo Bhuiyan: (i) External Examination: Lacerated wound just below knee on right leg 1”x 1/2” skin deep. Lacerated wound on middle part of right leg 2” x 1” skin deep. Multiple bruise size: 1/2” x 1/2”-3/4” x 3/4”. Semi circle bruise black on chest and abdomen. Lacerated wound on chest right side 1”x 1/2” x skin deep. Abrasion on forehead 1”x 1”. Two abrasion on right side of face on two sides one inch apart 1”x 1/2” reddish brown. Abrasion on left arm front 1/2” x 1/2”. Lacerated wound on prequriantor area 1” x 1/2” x bone deep. Left ear cut 1/2” x 1/4” x1”. Lacerated wound on chest right side 1”x 1/2” x skin deep. Abrasion on forehead 1”x 1”. Two abrasion on right side of face on two sides one inch apart 1”x 1/2” reddish brown. Abrasion on left arm front 1/2” x 1/2”. Lacerated wound on prequriantor area 1” x 1/2” x bone deep. Left ear cut 1/2” x 1/4” x1”. Lacerated wound on right side of frontal area 1/2” x 1/2” x skin deep. Left lower leg near ankle joint swelling 3” x 3”. (ii) Internal Examination: Rib fracture from 1st to 8th on both side. Haemotoma under sternum. Sternum fractured. Both lunge ruptured and pale. Chest cavity had blood two ounces. Heart-both chamber empty. Liver, spleen, and both kidneys are intact and pale. Stomach wall normal and contains mucoid fluid 20 ounces. Tibia-fibila of left side fractured at lower end.” 6. According to the prosecution, previous dispute and grazing of plant of the accused persons by the goat of Mahadeo Bhuiyan were motive for the occurrence. 7. On the basis of the aforesaid evidences laid before him, the learned Additional Sessions Judge, FTC-III, Hazaribagh has held that the prosecution has proved the charge under section 302/34 IPC against the accused persons. 8. The prosecution has projected PW-1 and PW-2 as eye witness to the occurrence. PW-2 is the wife of the deceased. She claims that at the time when the appellants entered her house she was present there. PW-1, son of the deceased, has also asserted that at the time when the accused persons entered the house, he was present there. It is consistent evidence led by the prosecution that the appellants have forcibly taken away Mahadeo Bhuiyan from his house. PW-2 has stated in his cross-examination that the accused persons dragged her husband from the house. These witnesses have said that the accused persons were variously armed with Sabal, Daw and Lathi. PW-3 has also stated that the appellants have forcibly taken Mahadeo Bhuiyan towards their house. PW 4-wife of the brother of the deceased- has stated that she was present in the house when the accused persons took away Mahadeo Bhuiyan from his house. PW-5 is hearsay witness and PW-7, son of the deceased, was not present at the time of occurrence. He was narrated the story of the incident by his mother. PW 4-wife of the brother of the deceased- has stated that she was present in the house when the accused persons took away Mahadeo Bhuiyan from his house. PW-5 is hearsay witness and PW-7, son of the deceased, was not present at the time of occurrence. He was narrated the story of the incident by his mother. PW-6 has also stated that after hearing cries he came out from his house and saw the appellants taking away Mahadeo Bhuiyan. All these prosecution witnesses have alleged assault by the appellants upon Mahadeo Bhuiyan. 9. The entire episode of entering the house of the informant, quarrel between the appellants and the deceased, the appellants taking away the deceased forcibly from his house, dragging and assault by them upon the deceased and Mahadeo Bhuiyan found dead in the house of Banodhi Bhuiyan have all happened in such quick successions that it must be inferred in law that the appellants have caused death of Mahadeo Bhuiyan. Participation of the appellants in the occurrence stands proved through the evidence of PW-1, PW-2, PW-3, PW-4 and PW-6. 10. Now, the question is whether on the basis of the aforesaid evidence the appellants can be convicted under sections 302/34 IPC. 11. Common intention as envisaged under section 34 IPC must be distinguished from the same and similar intention. Common intention of the accused persons can be gathered from the manner of occurrence, the weapon used by them, assault on the victim and participation of the accused persons in the occurrence. Sri Shekhar Sinha, the learned Public Prosecutor submits that the number of injuries found on the body of Mahadeo Bhuiyan is sufficient to infer that the appellants shared a common intention to cause his death. By now, it is well-settled that when it is not possible to find out who has dealt the fatal blow and which injury has proved fatal, it is not safe to convict all the accused persons with the aid of section 34 or section 149 IPC for causing death [refer, “Vijay Singh and Another Vs. State of Madhya Pradesh” reported in (2014) 12 SCC 293 and “Rama Meru Vs. State of Gujarat” reported in 1993 Supp (1) SCC 315]. 12. Admittedly, there is no eye-witness to the actual occurrence how Mahadeo Bhuiyan has been done to death. The doctor has found as many as 11 external injuries and 10 internal injuries. State of Madhya Pradesh” reported in (2014) 12 SCC 293 and “Rama Meru Vs. State of Gujarat” reported in 1993 Supp (1) SCC 315]. 12. Admittedly, there is no eye-witness to the actual occurrence how Mahadeo Bhuiyan has been done to death. The doctor has found as many as 11 external injuries and 10 internal injuries. We find that one of the injuries found on the dead body of Mahadeo Bhuiyan is multiple bruises of the size 1/2”x1/2”-3/4”x3/4” around chest and abdomen. The injuries found on Mahadeo Bhuiyan would no doubt reflect the intention to cause his death. But then, the question is who are the persons who have caused those injuries upon Mahadeo Bhuiyan. The prosecution witnesses have deposed that the appellant Banodhi Bhuiyan was holding Sabal but evidence in respect of Prakash Bhuiyan and Gadia Bhuiyan is not consistent. PW-1 and PW-2, both have at one place stated that the appellant, namely, Prakash Bhuiyan was holding a Lathi. The allegation by the prosecution witnesses that the appellant Prakash Bhuiyan was holding a Daw stands falsified from the medical evidence. The doctor in his cross-examination has stated that he did not find any sharp-cut (incised) injury on Mahadeo Bhuiyan. 13. In the aforesaid state of evidence, we hold that the prosecution has failed to establish who amongst these appellants is the author of which injury found on the body of Mahadeo Bhuiyan. According to the doctor, the cause of death is shock and haemorrhage caused due to the injuries found on Mahadeo Bhuiyan; no particular injury has been found fatal. In our opinion, none of these appellants can be held guilty individually for causing death of Mahadeo Bhuiyan. 14. The informant and PW-3 have deposed that the appellants had asked Mahadeo Bhuiyan to accompany them for drink which was declined by him. Thereafter, the accused persons dragged him from his house and started assaulting him. In her fardbeyan, the informant has stated that the appellants came to her house and took her husband out. At this point in time, it cannot be inferred that the appellants had gone to her house with an intention to kill Mahadeo Bhuiyan. It was a trivial matter on which a quarrel had started. Therefore, common intention of all to cause death of Mahadeo Bhuiyan cannot be inferred. Consequently, the charge under sections 302/34 IPC framed against the appellants, namely, Prakash Bhuiyan in Cr. It was a trivial matter on which a quarrel had started. Therefore, common intention of all to cause death of Mahadeo Bhuiyan cannot be inferred. Consequently, the charge under sections 302/34 IPC framed against the appellants, namely, Prakash Bhuiyan in Cr. Appeal (D.B.) No. 499 of 2014, Banodhi Bhuiyan in Cr. Appeal (D.B.) No. 235 of 2014 and Gadia Bhuiyan @ Godi Bhuiyan in Cr. Appeal (D.B.) No. 442 of 2017 must fail. 15. Participation of these appellants in the occurrence has been established and, therefore, we hold that they are guilty for causing grievous hurt to Mahadeo Bhuiyan. Accordingly, they are convicted under section 326 IPC and sentenced to undergo RI for 10 years with fine of Rs. 5000/- each. 16. The judgment of conviction dated 29.09.2010 and the order of sentence dated 30.09.2010 passed by the learned Additional Sessions Judge, FTC-III, Hazaribag in S.T. No. 431 of 2006 against the appellants, namely, Prakash Bhuiyan in Cr. Appeal (D.B.) No. 499 of 2014, Banodhi Bhuiyan in Cr. Appeal (D.B.) No. 235 of 2014 and Gadia Bhuiyan @ Godi Bhuiyan in Cr. Appeal (D.B.) No. 442 of 2017 are set aside, however, they are convicted under section 326 IPC and sentenced to undergo RI for 10 years with fine of Rs.5000/- each. 17. Mr. Shekhar Sinha, the learned Public Prosecutor states that the appellants have undergone imprisonment of more than 13 years. 18. Accordingly, the appellants, namely, Prakash Bhuiyan in Cr. Appeal (D.B.) No.499 of 2014, Banodhi Bhuiyan in Cr. Appeal (D.B.) No.235 of 2014 and Gadia Bhuiyan @ Godi Bhuiyan in Cr. Appeal (D.B.) No.442 of 2017 shall be set free forthwith, if not required in connection to any other case. 19. Cr. Appeal (D.B.) No.499 of 2014, Cr. Appeal (D.B.) No.235 of 2014 and Cr. Appeal (D.B.) No.442 of 2017 are partly allowed. 20. Let lower court records be transmitted to the court concerned, forthwith.