JUDGMENT : Shree Chandrashekhar, J. The appellants, namely, Basu Hembrom, Hembro Besra and Kanhu Hembrom @ Marang Hembrom have been convicted and sentenced to R.I for life and fine of Rs. 10,000/-each under section 302/34 IPC, R.I for 3 years and fine of Rs. 3000/-each under section 452/34 IPC and the appellants, namely, Basu Hembrom and Hembro Besra have been convicted and sentenced to S.I for 3 months under section 4 of the Prevention of Witch (Daain) Practices Act, 1999. 2. The above-named accused persons have faced the trial also on the charge under section 326/34 IPC, section 201/34 IPC and section 307/34 IPC but they were acquitted of the aforesaid charges by the learned Sessions Judge, Godda, by extending benefit of doubt to them. 3. Jurgu Besra, who is father of the appellant no. 2, is the informant of this case. On the basis of his fardbeyan recorded on 18.08.2009 at about 14:30 hours at Hari Devi Referal Hospital Thakur Ragri, Meharma (Thakur Gangti) P.S. Case No. 111 of 2009 was registered against Basu Hembrom, Hembro Besra, Jurgu Besra and Kanhu Hembrom @ Marang Hembrom under sections 452, 341, 326, 307, 323 read with section 34 IPC and under section 3/4 of Prevention of Witch (Daain) Practices Act, 1999 and vide order dated 21.08.2009 the offences punishable under sections 302 IPC and 201 IPC were added in the Report. However, after the investigation a charge-sheet was submitted only against the three accused persons, namely, Hembro Besra, Basu Hembrom and Kanhu Hembrom @ Marang Hembrom and, accordingly, the aforesaid charges were framed only against them. 4. The case of the prosecution is that in the night of 16.08.2009 after taking dinner at about 9:00 p.m the informant, his wife and the younger son, namely, Dhanelal Besra had gone to bed. In the midnight at about 1:00 a.m when he heard cries of Dhanelal Besra, his son, he woke up. He saw his elder son, namely, Hembro Besra carrying iron Gupti, grandson, namely, Jurgu Besra weilding Lathi and daughter-in-law, namely, Basu Hembrom was carrying an iron Sabal. Kanhu Hembrom @ Marang Hembrom was also accompanying them. They were assaulting Dhanelal Besra and when the informant and his wife tried to save their son Hembro Besra tried to assault him on his neck, however, since he leaned his neck he suffered Gupti assault on his ear. Kanhu Hembrom @ Marang Hembrom was also accompanying them. They were assaulting Dhanelal Besra and when the informant and his wife tried to save their son Hembro Besra tried to assault him on his neck, however, since he leaned his neck he suffered Gupti assault on his ear. His wife was assaulted by Basu Hembrom and when Dhanelala Besra tried to escape the accused persons chased him and thereafter he did not come back home. According to the informant, Hembro Besra and his wife, namely, Basu Hembrom used to call his wife-Hopanmai Murmu “Daain” which was objected by his younger son, namely, Dhanelala Besra. The informant has also stated that his daughter-in-law Basu Hembrom had earlier also threatened to kill his younger son. 5. During the trial the prosecution has examined ten witnesses. Hopanmai Murmu was examined as P.W.1 and Jurgu Besra is P.W.2. The co-villagers, namely, Paku Hembrom, Sarban Marandi, Ramdev Marandi, Tala Hansda, Dinalal Marandi and Samu Hansda were also examined by the prosecution to establish the charges framed against the appellants. The doctor who has conducted the post-mortem is P.W.8 and the investigating officer is P.W.9. 6. P.W.1 and P.W.2 are the eye-witnesses. They are related to the accused persons; Hembro Besra is their son and Basu Hembrom is wife of Hembro Besra. P.W.1 has deposed in the Court that it was in the midnight about seven months ago when the accused persons came inside her house and assaulted Dhanelal Besra. She has alleged that Hembro Besra has assaulted her and she became unconscious. P.W.2 has also spoken about assault on the chest of Dhanelal Besra by Hembro Besra and Basu Hembrom. He has alleged that Kanhu Hembrom @ Marang Hembrom and Jurgu Besra had also assaulted Dhanelal Besra with Lathi. He has also stated about assault on his ear with Gupti by Hembro Besra. P.W.3-Paku Hembrom is the daughter-in-law of P.W.1 and P.W.2. In her cross-examination, she has admitted that on the day when the occurrence took place she was at Naihar (parents' place). She has stated that she was informed by her in-laws about murder of Dhanelal Besra by the accused persons. P.W.4, P.W.5, P.W.6, P.W.7 and P.W.10 are not the eye-witnesses and they have deposed in the Court that they were informed about the occurrence by P.W.1 and P.W.2. They have also stated that the accused persons were calling Hopanmai Murmu “Daain”. She has stated that she was informed by her in-laws about murder of Dhanelal Besra by the accused persons. P.W.4, P.W.5, P.W.6, P.W.7 and P.W.10 are not the eye-witnesses and they have deposed in the Court that they were informed about the occurrence by P.W.1 and P.W.2. They have also stated that the accused persons were calling Hopanmai Murmu “Daain”. The investigating officer has stated that he tried to obtain the injury reports of P.W.1 and P.W.2 but since the doctor was not available he could not procure the same. The First Information Report, photocopy of the Inquest Report and the P.M. Report were tendered in evidence. 7. P.W.1 and P.W.2 have remained unshaken and nothing material could be elicited from them by the defence during their cross-examination. There is some discrepancy in their evidence regarding manner of occurrence in as much as P.W.1 has stated that her son was assaulted by all the accused persons with Gupti, Sabal and Lathi, but then, it has to be kept in mind that the occurrence has taken place in the midnight and in the ensuing milieu it may not have been possible to her to identify each blow on her younger son and, moreover, minor inconsistency, improvement, embellishment etc. in the evidence of the prosecution witnesses are bound to occur. It is also well-settled that there can be exaggerations by the prosecution's witnesses in their testimony but on that count eye-witness account of a prosecution witness cannot be disbelieved [refer, “State of U.P Vs. Naresh” reported in (2011) 4 SCC 324 ]. P.W.1 and P.W.2 have identified the appellants and they have seen them carrying weapons. On such facts, it is not difficult to infer that they intended to cause injury to Dhanelal Besra. However, from their evidence it is not established that death of Dhanelal Besra has been caused in furtherance of common intention of all. 8. Section 34 IPC embodies constructive liability of all for the act done by one. Though it is not necessary that the accused persons must have had deliberations before they have committed the crime; common intention can be formed instantly and at the place of occurrence itself, but to fasten liability upon all the accused persons with the aid of section 34 IPC the prosecution must establish that death has been caused in furtherance of common intention of all. In “Surendra Chauhan Vs. In “Surendra Chauhan Vs. State of M.P” reported in (2004) 4 SCC 110, the Hon'ble Supreme Court has observed that the essence of section 34 IPC is simultaneous consensus of mind of the persons participating in the criminal action to bring about a particular result and before section 34 IPC is applied two factors must be established; (i) common intention and (ii) participation of the accused in commission of the offence. 9. The appellants did not share common intention to cause death of Dhanelal Besra would appear also from the medical evidence. 10. On 21.08.2009, Dr. Satyendra Mishra-P.W.8 has conducted post-mortem examination over the dead body of Dhanelal Besra. He has found one perforating wound 1/2'' in diameter on the left pectoral region. The injury was ante-mortem in nature, caused by sharp pointed weapon. P.W.1 and P.W.2 both have stated that the appellant no. 2, namely, Hembro Besra was carrying a Gupti which is a sharp pointed weapon. However, the doctor has not described depth of the injury. In his opinion the death was caused due to severe hemorrhage and shock resulting from the chest injury. No other injury was found by the doctor on the person of Dhanelal Besra. For that, the reason may be that the dead body was recovered after about four days and by that time it had decomposed. The doctor has found that all the vital organs, such as, brain, lung, liver, spleen, kidney etc. were in the state of liquefaction, but for this reason an inference cannot be drawn that other accused persons have also assaulted Dhanelal Besra and, accordingly, benefit of doubt on that point must be extended to the appellant nos. 1 and 3. 11. In the aforesaid state of evidence, we are satisfied that the prosecution has failed to establish the charge under section 302/34 IPC against the appellants and, accordingly, their conviction for the said offence is set-aside. 12. The offence under section 326 IPC is attracted when grievous hurt which is likely to cause death is voluntarily caused by an accused. 11. In the aforesaid state of evidence, we are satisfied that the prosecution has failed to establish the charge under section 302/34 IPC against the appellants and, accordingly, their conviction for the said offence is set-aside. 12. The offence under section 326 IPC is attracted when grievous hurt which is likely to cause death is voluntarily caused by an accused. The medical evidence does not suggest that the injury found on Dhanelal Besra was sufficient to cause death in the ordinary course of nature and the prosecution has not been able to establish that Hembro Besra intended to cause death of Dhanelal Besra or that he had knowledge that his act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. The injury on chest of Dhanelal Besra by Gupti would fall under the definition of grievous hurt, under clause Eighthly of section 320 IPC and, therefore, there is no doubt that Hembro Besra has committed offence under section 326 IPC. 13. Accordingly, the appellant no.2, namely, Hembro Besra is convicted and sentenced to R.I for 10 years under section 326 IPC. 14. The other two appellants, namely, Basu Hembrom and Kanhu Hembrom @ Marang Hembrom who were accompanying the appellant no. 2 and have committed house tress-pass were also carrying weapons and in the incident P.W.1 and P.W.2 both have suffered injuries. For want of injury reports the charges under section 324/34 IPC and section 307/34 IPC have failed, but from narration of the occurrence as deposed by P.W.1 and P.W.2 it can be safely inferred that these two accused-appellants have shared common intention with Hembro Besra to cause injury to Dhanelal Besra. 15. Accordingly, the appellant nos. 1 and 3, namely, Basu Hembrom and Kanhu Hembrom @ Marang Hembrom are convicted and sentenced to R.I for 2 years under section 325/34 IPC. 16. While conviction of the appellants, above-named, under section 452/34 IPC is affirmed the order of sentence dated 10.03.2011 of R.I for 3 years and fine of Rs. 3000/-each for the said offence is however set-aside. They are sentenced to R.I for 2 years. 17. The conviction and sentence of the appellants, namely, Basu Hembrom @ Manjhi and Hembro Besra of S.I for 3 months under section 4 of the Prevention of Witch (Daain) Practices Act, 1999 is affirmed. 18. Mr. 3000/-each for the said offence is however set-aside. They are sentenced to R.I for 2 years. 17. The conviction and sentence of the appellants, namely, Basu Hembrom @ Manjhi and Hembro Besra of S.I for 3 months under section 4 of the Prevention of Witch (Daain) Practices Act, 1999 is affirmed. 18. Mr. Shekhar Sinha, the learned Public Prosecutor states on the basis of the letter dated 03.12.2019 of the Jail Superintendent, Central Jail, Dumka that the appellant, namely, Hembro Besra has remained in custody for more than 10 years and 10 months, the appellant, namely, Kanhu Hembrom @ Marang Hembrom has remained in custody for more than 2 years and one month and the appellant, namely, Basu Hembrom has remained in custody for more than 2 years and 2 months. 19. Accordingly, the appellant, namely, Hembro Besra who is in jail custody shall be released forthwith, if not wanted in connection to any other case. 20. The appellants, namely, Kanhu Hembrom @ Marang Hembrom and Basu Hembrom are discharged of liability of the bail-bonds furnished by them. 21. In the result, Criminal Appeal (DB) No. 453 of 2011 is allowed, in the aforesaid terms. 22. Let the lower-court records be sent to the Court concerned forthwith. 23. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX. Appeal allowed