In order to convict an accused of an offence applying Section 34, Indian Penal Code, it should be proved that the criminal act was done in concert pursuant to a prearranged plan. There must be prior meeting of the minds. There must be a pre-arranged plan however hastily formed or rudely conceived. But pre-arranged plan there must be and premeditated concert. It is not enough to have the same intention independently of each other.

J.N. Bore, J.

1. APPELLANTS Desh Soren and Sagar Soren were convicted under Section 302/ 34, Indian Penal Code for committing murder of their uncle Dandu Soren in furtherance of the common intention of them both and sentenced to suffer imprisonment for life each and also to pay fine of Rs. 2,000/- each, in default, rigorous imprisonment for another year by the learned Sessions Judge, Malda in the Sessions Trial No. 19 of 1988/Sessions Case No. 118 of 1987. The appellants set to assail the said order of conviction and sentence.

2. THE prosecution case may briefly be stated as under: Desh Soren and Sagar Soren are residents of Goaljoi village within P.S. Bamangola. Their uncle Dandu Soren, since deceased, also lived in the same village. On 8.12.1986 between 7.30 and 8.00 a.m. Desh Sorer and Sagar Soren were cutting a Mahua tree situated on the land of Dandu Soren. When Dandu Soren protested there was quarrel between them and in course of the quarrel. Desh Soren caught hold of Dandu Soren and Sagar Soren struck him with an axe on his head. As a result Dendu Soren fell down on the ground with severe head injury. Thereafter, the victim was taken to the hospital and he succumbed to the injury on the following day, PW 1 Tarapar Murmu lodged a written First Information Report at Bamangola P.S. on 9.12.1986 at 3.30 P.M. on the basis of which police started a case under Section 302/34, Indian Penal Code against Desh Soren and Sagar Soren. PW 14 S.I. Indu Bhusan Talukdar took up investigation in the case and after completion of investigation he submitted charge-sheet against Desh Soren and Sagar Soren under Section 304/34, Indian Penal Code which in usual course ended in committal of the case of the Court of - Sessions. THE defence was denial simpliciter. In order to bring home the charge to the accused the prosecution examined 14 witnesses while the defence examined none.

3. THAT Dandu Soren died a homicidal death is not disputed before us and is amply proved by the medical evidence. P.W. 11 Dr. Debaprosad Chatterjee who held post-mortem examination on the body of the deceased found the following injuries:

(i) One lacerated wound 2-1/2 x 1-1/2 xl on left forehead involving the cranium;

(ii) Hacmatoma on the left side face;

(iii) fracture skull frontal and occipital on the left side. According to the doctor these threeinjuries could be caused by one stroke only by an axe (Mat. Ext. 1). According to the doctor death was due to the said injuries which were ante mortem and homicidal in nature. There is, therefore, no doubt that death of Dandu Soreo was homicidal.

4. THE crucial question\is whether the appellants or any of them were responsible for the death of the deceased and whether the order of conviction as recorded by the court below can be sustained. There are six alleged eye witnesses to the occurrence P.W. 2 Nobin Tudu, P.W. 3 Lakshan Hansda, P.W. 4 Suresh Hansda, son-in-law of the deceased, P. W. 5 Malo Soren, daughter of the deceased, P.W. 6 Jogesh Soren, son of the deceased and P.W. 7 Chunda Murmu. Of them P.W. 7 appears to be really a post occurrence witness. He was working in his land in another Mouza at a considerable distance and on hearing the row he came to the place of occurrence and found Dandu Soren lying on the land. He did not see the accused persons. P.W s. 5 and 6 do not also appear to have witnessed the incident of assault It appears from the cross-examination of P.W. 6 that he was working in a field at a distance of 4 to 5 minutes walk from the place of occurrence and on hearing a row he came to the place of occurrence. He has specifically stated that the occurrence took place prior to his arrival there. P.W. 5 arrived at the place of occurrence even later. She also, therefore, did not see the actual assault. There is, however, no infirmity in the ocular testimony of P.Ws. 2, 3 and 4 who have deposed in one voice that Sagar Soren and Desh Soren were cutting a Mahua tree situated on the land of Dandu Soren and