JUDGMENT : RAJARSHI BHARADWAJ, J. 1. The instant appeal has been preferred challenging the judgment and order dated 10th September, 2012 passed by the learned Additional District and Sessions Judge, Special Court, Dakshin Dinajpur at Balurghat thereby convicting the appellants in connection with Session case no. 44 of 2002 and Session Trial Case no. 27 of 2002 for the offence punishable under Section 304/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/-; in default to suffer further imprisonment for one year. 2. The prosecution case in brief is that on 4th January, 1990 there was a trouble over catching of fish by the husband of one Pamiran Bibi and her son from the Ejmali tank over which there was dispute between Pamiran Bibi and Amiruddin's brother and sister. A Salish was called to resolve the dispute between the brothers, co-sharers over the issue of catching fish from Ejmali tank. The Salish was called by Jamal Mia. When the Salish was going on, there was a hot altercation and at that time accused Ramjan Ali gave a blow of hansua on the head of Ayub Ali. Ayub Ali raised his right fore arm to save his head, the blow of hasua fell on his right arm causing cut injury. Simultaneously, one Ismail gave a blow of lathi on the head of Osman Ali. Osman Ali fell on the ground when the assailants fled away. Injured Osman Ali and Ayub Ali were brought to hospital. Osman Ali was shifted to Balurghat Hospital on the following day. First Information Report was lodged by one Answer Ali Sarkar on 6th January, 1990. On the basis of the written complaint, a criminal case, being Gangarampur P.S. Case n. 7/90 dated 6th January, 1990 was initiated against the accused. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 147/148/149/326/324/304 of the Indian Penal Code against the accused persons. The case was transferred to the learned Additional District & Sessions Judge, Special Court, Balurghat, Dakshin Dinajpur and finally transferred to the learned Additional District & Sessions Judge, Special Court, Dakshin Dinajpur. The learned Trial Court framed charges on 3rd May, 2002 against the appellants under Sections 302/325/34 of the Indian Penal Code to which the appellants pleaded not guilty and claimed to be tried. 3. The learned Trial Court framed charges on 3rd May, 2002 against the appellants under Sections 302/325/34 of the Indian Penal Code to which the appellants pleaded not guilty and claimed to be tried. 3. Learned advocate appearing for the appellants argued that there was no material of Section 304/34 of the Indian Penal Code against the appellant no.3 Saidur Rahaman, who admittedly was present at the spot when a settlement was going on at the place of occurrence regarding the dispute between the appellants and their relations, but no over act was on his part. Moreover, he did not touch Osman (deceased) or Ayub Ali or facilitated the other appellants to assault him. Mere presence on the spot or carrying a hansua does not prove a crime under the Indian Penal Code. He further argued that the injured eyewitness being P.W.4 and other eyewitnesses stated that the appellant no.2 Ramjan tried to hit on the head of P.W.4 but he raised his forearm and the blow of hansua fell on his right forearm causing a deep cut injury and for such offence Section 324 of the Indian Penal Code can be attracted but not 304/34 of the Indian Penal Code. He also did not touch Osman (deceased) or facilitated the other appellants to assault him. He also submitted that the incident was happened suddenly and on instigation of one Guru Mia, the appellant no.1 Ismail Sarkar assaulted the deceased Osman with a wooden stick. It was not the case of pre-planned murder. Moreover, the appellants were initially acquitted by judgment dated 20th May, 2003 and after seven years the order of retrial was passed by this Hon'ble Court and finally they were convicted in the year 2012. He further submitted that in order to attract Section 34 of the Indian Penal Code there must be a common intention on the part of several persons to commit a particular crime and the crime is committed by them in furtherance of that common intention. In the instant case, there was a sudden fight for which both the parties were injured. In the instant case, there was a sudden fight for which both the parties were injured. Both the parties were sitting for a settlement about the dispute regarding a pond but there was a hot altercation during such settlement meeting and as a result of which both the parties assaulted each other which clearly shows that there was no prearranged plan on the part of the appellants to assault the deceased and P.W.4. In support of his submission, he relied on a decision of the Apex Court in the case of Balu @ Bala Subramaniam & Anr. vs State (U.T. of Pondicherry) (Appeal no. 502 of 2007) where the Hon'ble Supreme Court clearly stated in paragraph 10 that "To invoke Section 34 of IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention." 4. Hence, there was no applicability of Section 34 of the Indian Penal Code. Thus, he prayed that the order of conviction may be set aside in respect of appellant nos. 2 and 3. So far as the appellant no.1 is concerned, the sentence may be reduced to the period, which he already served. 5. Learned advocate for the State submitted that from the facts and circumstances of the case, it is evident that all the appellants were participants in the assault and there was a common intention to assault the deceased. In this connection, he has cited a decision of the Supreme Court in the case of Ramaswami Ayyangar vs State of Tamil Nadu reported in, (1976) 3 SCC 779 , where the essence and purport of common intention was observed as follows: "12. The acts committed by difference confederates in the criminal action may be difference but all must in one way or the other participant and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or may otherwise facilitate the commission of crime. Such a person also commits an 'act' as much as his co-participants actually committing the planned crime." 6. Such a person also commits an 'act' as much as his co-participants actually committing the planned crime." 6. Learned counsel also relied on a decision of the Supreme Court in the case of Raj Kishore Purohit vs State of Madhya Pradesh reported in, AIR 2017 SC 3588 . 7. He further submitted that from the evidences of the witnesses for the prosecution it reveals that on 5th January, 1990 at 8 p.m. the accused Ramjan and other accused persons assembled in a place and attacked Osman and killed him with a stick. All the prosecution witnesses, particularly P.W.1 to P.W.10 and P.W.14 narrated the prosecution case properly and they corroborated the statement regarding death of Osman. Therefore, the learned Trial Judge rightly convicted the appellants under Section 304/34 of the Indian Penal Code. Thus, he prayed for dismissal of the appeal. 8. Heard learned advocates for the parties and perused the impugned judgment. 9. In the instant case the prosecution examined as many as seventeen witnesses to substantiate the charge. 10. P.W.1, Answar Ali Sarkar, complainant in this case deposed that on 19th Poush 1396 B.S., on Friday at 7.00 p.m. he along with nine brothers were called in a Salish which was arranged for settlement of a dispute between the co-sharers over the issue of catching fishes from an Ezmali tank. When Salish was going on there was a hot altercation. One Guru Mia, neighbour gave a whip to the parties to that salish to complete their business. At that time Ramjan Ali gave a blow of hansua on the head of Ayub Ali. Ayub Ali raised his right forearm to save his head and the blow of hansua fell on his right arm causing cut injury. Simultaneously, one Ismail gave a blow of lathi on the head of Osman Ali, who fell on the ground and the assailants fled away. Then he took the injured Osman Ali and Ayub Ali to Kaldighi hospital and thereafter, Osman Ali was shifted to Balurghat hospital, where Osman died. Then he lodged the complaint before Gangarampur P.S. The written complaint was marked as Ext.1. 11. P.W.2, Jamijuddin Sarkar, brother of the complainant, deposed that on 18th Poush, 12 years ago there was an incident of quarrel over the issue of catching fishes from a ejmali tank. On that date Zamal Mia called Salish in the village and all nine brothers were called. 11. P.W.2, Jamijuddin Sarkar, brother of the complainant, deposed that on 18th Poush, 12 years ago there was an incident of quarrel over the issue of catching fishes from a ejmali tank. On that date Zamal Mia called Salish in the village and all nine brothers were called. Guru Mia told the people that the dispute would not be settled amicably and it might be solved by use of force. Then Ismail, Ramjan, Saidur, Rayab Ali, Amiruddin, who were identified on dock and others started assaulting them with hansua, lathi etc. Ramjan, Rojab Ali and Saidur had hansua in their hand, Ramjan gave a blow of hansua arising at the head of his brother Ayub, who raised his hand to save his head and the blow of hansua fell on the forearm of Ayub. Osman was admitted to Kaldighi hospital and Ayub was admitted to Balurghat hospital. Osman was again admitted to Balurghat hospital where he died. 12. P.W.3, Abdur Rahaman Mia corroborated the evidence of P.W.1 and P.W.2. 13. P.W.4, Ayub Ali Sarkar, brother of the complainant deposed that on 19th Poush, 1396 B.S. at 7.00 p.m. Jamal Mia called him and his other brothers for attending a Salish over the issue of quarrel between the brothers and sister for the share of fishes of a Ejmali tank. On that Salish there was an altercation and at that time Guru Mia ordered to start the fight. Immediately, Ismile gave a blow of lathi on the head of Osman, who fell on the ground with head injuries. Simultaneously, Saidur Rahaman and Ramjan ran the hansua aiming at him and the blow of hansua given by Ramjan was directed at his head. He raised his right forearm to save his head and the blow of the hansua fell on his right fore arm causing a deep cut injury. He wrapped around the wound to stop bleeding and thereafter, he fell on the ground and lost his senses. He was admitted to Balurghat hospital for 7/8 days. 14. P.W.5, Mostafa Sarkar deposed that on the date of incident he went to do his work outside the village and returned home at 8 p.m. After returning he heard from Ahed and Lufter that Osman was given a blow of lathi by Ismail and a blow of hansua was given to Ayub Ali by the accused Ramjan. 15. 14. P.W.5, Mostafa Sarkar deposed that on the date of incident he went to do his work outside the village and returned home at 8 p.m. After returning he heard from Ahed and Lufter that Osman was given a blow of lathi by Ismail and a blow of hansua was given to Ayub Ali by the accused Ramjan. 15. P.W.6, Lutfur Ali Sarkar, brother of the complainant was declared hostile by the prosecution but in cross examination by the defence he stated that he was present in the salish and Ismaile gave a blow of lathi on the head of Osman and Ramjan gave a blow of hansua aiming at the head of Ayub Ali, who raised his hand to save his head when the blow of hansua fell on his fore arm causing cut injury and they were also injured more or less in that incident. 16. P.W.7, Hasina Bibi, wife of the deceased deposed that 12 years ago her husband Osman Ali Sarkar was called by Jamaluddin Mia and was taken him to a vacant place for holding a Salish. In that Salish there was a hot altercation. Ismail gave a blow of lathi on the head of his husband. Ramjan and Saidur gave blows of hansua aiming at the head of Ayub. When Ayub raised his hand to save his head, the blow of hansua given by Ramjan fell on the arm of Ayub, who suffered cut injury. After receiving the blow of lathi on his head her husband fell on the ground. Her husband was taken to Kaldighi hospital. As per doctor's advice he was shifted to Balurghat hospital where he died on the following day in the morning. Accused Ramjan and Saidur were identified on dock. 17. P.W.8, Namiran Bewa, P.W.9, Wahed Ali Sarkar and P.W.10, Akbar Ali Sarkar corroborated the evidence of P.W. 4 to P.W.7. 18. P.W.11, Hamidur Rahaman, resident of Panchagram Police Station deposed that on 6th January, 1990 police officer held an inquest over the dead body of one Osman Ali Sarkar at Balurghat hospital in his presence and he signed on the inquest. 19. P.W.12, Anil Chandra Roy, Home Guard posted at Gangarampur P.S. stated that he did anything in this case. 20. P.W.13, Tapan Kumar Ghosh, Wardmaster of Balurghat District hospital deposed that he informed the death of Osman Ali Sarkar to the Officer-in-charge, Balurghat P.S. 21. 19. P.W.12, Anil Chandra Roy, Home Guard posted at Gangarampur P.S. stated that he did anything in this case. 20. P.W.13, Tapan Kumar Ghosh, Wardmaster of Balurghat District hospital deposed that he informed the death of Osman Ali Sarkar to the Officer-in-charge, Balurghat P.S. 21. P.W.14, Yakub Sarkar corroborated the evidence of P.W.4 to P.W.10. 22. P.W.15, Mohan Banshi Halder, Sub-Inspector of Gangarampur P.S. deposed that on 6th January, 1990 he received a written complaint from one Answar Ali Sarkar and registered Gangarampur P.S. Case no. 7/90 under Sections 147/148/149/326/324/304 of the Indian Penal Code against Amiruddin and thirteen persons. The formal F.I.R. was marked as Ext.3. The case was endorsed to the Sub-Inspector J. Chatterjee for investigation. During investigation he examined witnesses namely, Akbar Ali Sarkar, Ohed Ali Sarkar, Wazed Ali Sarkar and recorded their statements under Section 161 of the Code of Criminal Procedure. 23. P.W.16, Doman Karmakar, Inspector of Gangarampur P.S. deposed that he received the case from his predecessor in office and during investigation he recorded statements of Yakub, Hasina Bibi and Moniram Bewa and thereafter, he submitted charge sheet against Saidur Rahaman and 13 others under Section 147/148/324/326/304 of the Indian Penal Code. During investigation he arrested Amiruddin Sarkar and Wazuddin @ Rajab Ali and they were forwarded to the Court. 24. P.W.17, Mahadeb Ghosh, Sub-Inspector of Police posted at Balurghat P.S. deposed that on receipt of an information from Balurghat hospital he started U.D. Case no. 3/90 dated 6th January, 1990 and held inquest over the dead body of Osman Ali in presence of witnesses. He prepared the inquest report and dead body challan. The dead body of Osman was sent to morgue for post-mortem and the post mortem report was marked as 'x' for identification. He seized the wearing apparels of the deceased. 25. On perusal of the evidence on record it appears that it was the specific case of the prosecution that the appellants committed offence with common intention for which Osman Ali died and Ayub Ali was injured. All the prosecution witnesses corroborated the factum of attack by the accused persons regarding death of Osman and grievous hurt to Ayub Ali. It is evident that while salish was going on, there was a hot altercation and at that time accused Ramjan Ali gave a blow of hansua on the head of Ayub Ali. All the prosecution witnesses corroborated the factum of attack by the accused persons regarding death of Osman and grievous hurt to Ayub Ali. It is evident that while salish was going on, there was a hot altercation and at that time accused Ramjan Ali gave a blow of hansua on the head of Ayub Ali. When Ayub Ali raised his right hand to save his head, the blow of hansua fell on his right arm causing cut injury. Simultaneously, accused Ismail dealt a blow with lathi on the head of Osman Ali, who sustained seriously injured and fell on the ground and thereafter, he expired in Balurghat hospital. P.W.14 stated in his deposition that when Ismail gave a blow of lathi on the head of Osman, who fell on the ground being unconscious, then Saidur and Ramjan ran their hansuas aiming at the head of Ayub. Therefore, the evidence of P.W. 4 goes to show that accused Saidur was present at the spot and he also participated in the crime. The Apex Court in the case of Rajkishore Purohit vs- State of Madhya Pradesh (supra) held that "Common intention is a state of mind. It is not possible to read a person's mind. There can hardly be direct evidence of common intention. The existence or non-existence of a common intention amongst the accused has to be deciphered cumulatively from their conduct and behavior in the facts and circumstances of each case." Therefore, in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial there was plan or meeting of mind of all the accused persons to commit the offence. Learned counsel for the appellants relied on the decision in the case of Balu @ Bala Subramonium vs- State (supra), where the absence of role of the accused persons were considered but in this case all the accused persons played pivotal roles in injury and death of the victims namely, Ayub Ali and Osman Ali. This substantial distinguishing feature clearly renders the aforesaid decision inapplicable to this case. In the instant case, it is clear that all the accused/ appellants participated in the assault with common intention. They committed offence punishable under Section 304/34 of the Indian Penal Code. 26. This substantial distinguishing feature clearly renders the aforesaid decision inapplicable to this case. In the instant case, it is clear that all the accused/ appellants participated in the assault with common intention. They committed offence punishable under Section 304/34 of the Indian Penal Code. 26. Hence, I uphold the order of conviction and sentence passed by the learned Judge under Sections 304/34 of the Indian Penal Code. Since the appellant no. 3 Saidur Rahaman was granted bail, bail bond of the appellant no.3 shall be cancelled and he is directed to surrender forthwith before the trial court. 27. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure. 28. Accordingly, the appeal is dismissed. 29. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 30. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.