ORDER : Shree Chandrashekhar, J. The appellants have challenged the judgment of conviction under section 302/34 IPC and the order of sentence, both dated 13.05.1993 passed in Sessions Case No. 41 of 1985 by the 3rd Additional Sessions Judge, Dumka (S.P). 2. The accused namely, Paramdhan Jha who has preferred Criminal Appeal (DB) No. 285 of 1993 passed away during pendency of the criminal appeal and, accordingly, the appeal filed by him has abated. 3. In Sessions Case No. 41 of 1985, four accused persons were convicted under section 302/34 IPC and the appellant no. 1 namely, Param Ratan Jha was convicted under section 323 IPC also. For the offence punishable under section 302/34 IPC, all the appellants have been sentenced to undergo R.I. for life and the appellant namely, Param Ratan Jha has been sentenced to undergo R.I for two months for the offence punishable under section 323 IPC. 4. On the basis of the evidence laid before him, the 3rd Additional Sessions Judge, Dumka has held that the deceased namely, Balram Mandal has died due to head injury, which was caused by the accused-Paramdhan Jha. However, the learned Sessions Judge has also held that all the accused persons shared common intention to kill Balram Mandal, primarily because they all have assaulted Balram Mandal. 5. This finding recorded by the learned Sessions Judge about all the accused persons sharing common intention to kill Balram Mandal has been challenged by the appellants. 6. Briefly stated, on the basis of the fardbeyan of Sambhu Mandal recorded at 9 p.m. on 15.05.1984 at the police station, Masalia P.S. Case No. 15 of 1984 was registered against the accused namely, Paramdhan Jha, Param Ratan Jha, Bibhudhan Jha and Birbal Jha for the offence under section 325, 307/34 IPC. After the injured Balram Mandal died in the hospital, offence under section 302 IPC was added. Charge-sheet was filed against all the accused persons under section 302, 307, 323/34 IPC. A common charge under section 302/34 IPC was framed against all the accused persons and the appellant namely, Param Ratan Jha was separately charged for the offence under section 323 IPC for causing injury to the informant and other prosecution witnesses. Charge-sheet was filed against all the accused persons under section 302, 307, 323/34 IPC. A common charge under section 302/34 IPC was framed against all the accused persons and the appellant namely, Param Ratan Jha was separately charged for the offence under section 323 IPC for causing injury to the informant and other prosecution witnesses. During the trial, the prosecution has examined 14 witnesses; the doctor who has prepared the injury report has been examined as P.W. 7 and the doctor who has conducted autopsy has been examined as P.W.13. The investigating officer has examined himself as P.W. 14. 7. Seven prosecution witnesses have claimed themselves eye-witnesses. 8. The defence taken by the accused persons is that Balram Mandal died due to fall from a tree on a hard surface. Their further defence is based on the counter-case which was lodged by one Jharna Jha, wife of the accused namely, Bibhudhan Jha. The first information report was lodged by her alleging that when she was returning home the prosecution party stopped her and snatched her jewelries and in the scuffle which ensued there her husband-Bibhudhan Jha was assaulted by farsha on his head. This first information report has been produced by the defence and marked as Exhibit-H. A certified copy of the order framing charge in the counter-case was also brought on record vide Exhibit-I. Several documents relating to civil and criminal litigation between the parties were also brought on record by the defence. 9. One of the plea urged on behalf of the appellants is that all the prosecution witnesses are close relatives of the deceased-Balram Mandal. 10. The doctor-P.W.13 who has conducted the post-mortem examination over the dead-body has found the following injuries on the person of Balram Mandal : “(1) One lacerated wound 1½”X ¾”X scalp deep, over the frontal aspect of the head on the right side with depressed fracture of the skull at the site. (2) One lacerated wound ¾”X1/2”X skin deep, over the prominence of the left cheek. The skull had been depressed fractured on the frontal aspect on the right side and the suture of the skull had been opened. Injury no. 1 was grievous in nature which proved fatal. In the opinion of the Doctor the death was due to shock, hemorrhage and collapse, as a result of injury no. 1. Injury no. 2 was simple. The skull had been depressed fractured on the frontal aspect on the right side and the suture of the skull had been opened. Injury no. 1 was grievous in nature which proved fatal. In the opinion of the Doctor the death was due to shock, hemorrhage and collapse, as a result of injury no. 1. Injury no. 2 was simple. Both the injuries had been caused by some hard blunt and heavy object. Time elapsed since death within 24 hours of the P.M. examination.” 11. But before that, Balram Mandal was examined by Dr. Rajendra Prasad Singh who has found the following injuries on him: “(1) One cut injury 2 ½” X ½” X1/4” on the right side of parietal bone near occipital parietal joint. (2) Abrasion on the left cheek near left eye. (3) Abrasion on the lateral part of the right chest. The doctor has opined that all the three injuries were caused by hard and blunt substance.” 12. The learned Sessions Judge has held that Balram Mandal has died due to head injury caused by the accused-Paramdhan Jha. The learned Sessions Judge has held thus: “The prosecution witnesses have consistently stated that accused-Paramdhan Jha had assaulted to deceased-Balram Mandal by axe blow on his head whereas the rest three accused persons assaulted him by lathi blow.” 13. This has also been brought on record through the evidence of P.W.11 that Balram Mandal was assaulted by Paramdhan Jha by the blunt portion of axe. 14. From the evidence of P.W.7, it transpires that on 16.05.1984 he has examined Sambhu Mandal-P.W.2, Panchu Kapari-P.W.3, Gaudu Gorai-P.W.8 and the deceased-Balram Mandal. On the same day, he has also examined Bibhudhan Jha and Param Ratan Jha. P.W.7 has found the following injuries on Bibhudhan Jha: “(1) One cut injury 2 ½’’ X ½”X1/2” one the right side of frontal and parietal bone near parietal-joint. (2) Abrasion on the left hand just on the left wrist-joint. Injuries were simple, caused by hard and blunt substance like lathi or by fall on hard rocky soil.” 15. The doctor-P.W.7 has found the following injuries on Param Ratan Jha : “(1) One cut injury 3”X1/2”X1/4” on the head just left side of intra-parietal-joint. (2) Complain of pain in waist. (3) Abrasion on the left fore-arm (4) Abrasion on the right thumb. Nature of injury nos. 1, 3 & 4 was simple. So far injury no. The doctor-P.W.7 has found the following injuries on Param Ratan Jha : “(1) One cut injury 3”X1/2”X1/4” on the head just left side of intra-parietal-joint. (2) Complain of pain in waist. (3) Abrasion on the left fore-arm (4) Abrasion on the right thumb. Nature of injury nos. 1, 3 & 4 was simple. So far injury no. 2 was concerned opinion was kept reserved and X-ray was advised. All the injuries were caused by hard and blunt substance like lathi or by fall on hard and rocky substance.” 16. The learned Sessions Judge has dealt with the injuries caused to the accused persons in the following manner: “So far injuries caused to accused persons are concerned the same has been explained by P.W.5 Sita Ram Mandal who stated in his cross-examination that Subhash Chandra Mandal son of deceased Balram Mandal had assaulted the accused persons. It appears from the facts and circumstances of the case that son of deceased Balram Mandal assaulted the accused persons only for saving the life of his father. Further the prosecution has not concealed the injury sustained to the accused persons. From the side of the prosecution the injury reports granted in respect of injury sustained to accused Bibhudhan Jha and Param Ratan Jha have been exhibited as Ext. 3/4 and 3/5. Hence I find that injuries sustained accused persons have been explained by the prosecution side.” 17. It is a well-settled proposition in law that evidence of the prosecution as well as the defence must be tested on the same yardstick. In paragraph no. 11 of the judgment, the learned Sessions Judge has held that son of the deceased-Balram Mandal has assaulted the accused persons to save the life of his father. But the son of the deceased has not suffered any injury. The accused persons who were examined by P.W. 7 on the same day when the deceased-Balram Mandal was examined have also suffered injuries. It is really not necessary that before a person exercises right of private defence of his own or another, injury must be caused to him; a mere apprehension is sufficient. The accused persons who were examined by P.W. 7 on the same day when the deceased-Balram Mandal was examined have also suffered injuries. It is really not necessary that before a person exercises right of private defence of his own or another, injury must be caused to him; a mere apprehension is sufficient. Section 100 of the Indian Penal Code provides that a right of self-defence of the body extends, subject to the restrictions, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right of any description provided under this section. The learned Sessions Judge has brushed aside the defence plea that the prosecution has suppressed the actual incident on the ground that in the counter-case there is allegation of assault only on Bibhudhan Jha. Even if the version given in the counter-case is not consistent with the manner of occurrence disclosed by the prosecution in the present case, examination of the accused persons by the same doctor, on the same day, create a reasonable probability of existence of right of self-defence by the accused persons. 18. It is the prosecution’s own case that when the informant-Sambhu Mandal along with other prosecution witnesses were sitting at the door of his house, the accused persons went there and asked him why he has deposed falsely against them in a criminal case (Kebat Case). At this point in time, Balram Mandal is not present there. Only after an altercation took place between the prosecution party and the accused persons, Balram Mandal came out from the house and asked the accused persons why they were abusing his brother whereupon these appellants namely, Param Ratan Jha, Bibhudhan Jha and Birbal Jha allegedly assaulted him with lathi. Now on this evidence, it cannot be inferred that at the initial point in time the accused persons had intention to kill Balram Mandal; Balram Mandal was not present at the place of occurrence at that time. At best, what can be inferred from the prosecution evidence is that the accused persons intended to engage themselves in a quarrel with Sambhu Mandal and others. When Balram Mandal was assaulted allegedly by these appellants, it is not the prosecution’s case that these appellants gave repeated lathi blow to Balram Mandal. At best, what can be inferred from the prosecution evidence is that the accused persons intended to engage themselves in a quarrel with Sambhu Mandal and others. When Balram Mandal was assaulted allegedly by these appellants, it is not the prosecution’s case that these appellants gave repeated lathi blow to Balram Mandal. In fact, no injury except one abrasion on the left cheek has been found on the person of Balram Mandal by the doctor who has conducted autopsy; the injury no. 1 was caused by the blunt portion of the axe. At best the injury no. 2 can be said to be caused by lathi. The doctor has opined that this injury is simple in nature. It has also been brought on record that it was Paramdhan Jha who has given a repeated blow to the deceased-Balram Mandal by jumping and pressing his chest. The learned Sessions Judge has held thus: “So far manner of the alleged occurrence is concerned, the prosecution witnesses have consistently supported that while the informant was present at his Darwaja and he was talking to other witnesses all the four accused persons came there and they asked the informant as to why he had deposed against them in a case of Kebat and over this matter altercation took place between the parties. When deceased Balram Mandal full brother of the informant came out of his house hearing altercation and he asked accused persons not to abuse the informant. Then accused Paramratan Jha, Bibhudhan Jha and Birbal Jha assaulted the decased Balram Mandal by lathi blow and the accused Paramdhan Jha assaulted him by axe blow causing injury on his head and due to head injury Balram Mandal died in Hospital.” 19. However, the learned Judge has opined that all the accused persons shared the common intention to kill Balram Mandal. He has held thus; “Since all the accused persons had taken part in assault and as such it appears their common intention was to kill the deceased Balram Mandal. The evidence of Doctor goes to show that the deceased Balram Mandal was admitted in Masalia Hospital and in the hospital he died due to head injury.” 20. Section 34 of the Indian Penal Code postulates criminal act done by several persons in furtherance of the common intention of all. The expression “common intention” has a distinct connotation in law. The evidence of Doctor goes to show that the deceased Balram Mandal was admitted in Masalia Hospital and in the hospital he died due to head injury.” 20. Section 34 of the Indian Penal Code postulates criminal act done by several persons in furtherance of the common intention of all. The expression “common intention” has a distinct connotation in law. It is distinct from common object. Common intention implies acting in concert. There must be a pre-arranged plan which is proved either from the conduct or from the circumstances of the case [refer, “Krishnan and Another Vs. State Represented By Inspector of Police” reported in (2003) 7 SCC 56 ]. 21. In the first information report, the informant has alleged that Paramdhan Jha was holding sword and axe, however, in his evidence in court he has alleged that Paramdhan Jha was holding axe. The prosecution witnesses-P.W.1, P.W.2, P.W.3 and P.W. 5 all have stated that Balram Mandal was not present there when an altercation took place between his brother namely, Sambhu Mandal and the accused persons. They all have also stated that the appellants namely, Param Ratan Jha, Bibhudhan Jha and Birbal Jha gave lathi blow to Balram Mandal and it was thereafter that Paramdhan Jha has assaulted Balram Mandal with blunt portion of axe. 22. The assault allegedly inflicted by the present appellants, except one injury, has not been found on the person of the deceased-Balram Mandal by the doctor-P.W.7 who has examined him. 23. Having carefully examined the materials on record and after considering the above facts and the circumstances in the case, we are unable to concur with the finding recorded by the learned Sessions Judge that the present appellants have also shared common intention with Paramdhan Jha to kill Balram Mandal. Merely because it was alleged that these appellants have also assaulted Balram Mandal, though only one injury can be ascribed to them, it cannot be inferred that these appellants also shared common intention to kill Balram Mandal. On an unsecured foundation the learned Sessions Judge has held these appellants guilty for the offence under section 302/34 IPC. 24. Accordingly, the judgment of conviction of these three appellants under section 302/34 IPC and under section 323 IPC of the appellant no. 1 and the order of sentence, both dated 13.05.1993 passed in Sessions Case No. 41 of 1985 are set-aside. 25. 24. Accordingly, the judgment of conviction of these three appellants under section 302/34 IPC and under section 323 IPC of the appellant no. 1 and the order of sentence, both dated 13.05.1993 passed in Sessions Case No. 41 of 1985 are set-aside. 25. Criminal Appeal (DB) No. 248 of 1993 is allowed. 26. We appreciate the assistance rendered by Ms. Amrita Sinha, the learned Amicus who has prepared notes on the prosecution evidence and ably supplemented the arguments of Mr. A. K. Kashyap, the learned Senior counsel who has appeared for the appellant no. 3. 27. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. She shall be paid Rs. 5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.