Crl.A. 147/2009 BEFORE THE HON’BLE MR JUSTICE P.K. MUSAHARY Heard Mr. P. Kataki, learned counsel for the appellants. Also heard Mr. B. B. Gogoi, learned Addl. Public Prosecutor for the respondent State of Assam. 2. This appeal has been preferred against the judgment dated 27.07. 2009 passed by the learned Addl. Sessions Judge, FTC No. 3, Kamrup, Guwahati, in Sessions Case No. 333(K) of 2003 convicting the appellants under Sections 304/3 23/34 IPC and sentencing each of them to undergo R.I. for 10(ten) years with fin e of Rs. 5,000/- each, in default, to undergo R.I. for 1 year under the first co unt and 3 months R.I. under the second count. 3. The prosecution case in short is that on 18.09.2002 at about 9 P M, while the brother of the informant Sri Thaneswar Malakar asked the accused Pr anab Barman to repay the loan amount, he was assaulted with sharp weapon and whe n he raised alarm, his father Suresh Malakar and brother Sri Ratneswar Malakar r ushed to the spot and found him lying on the ground in an injured state. All of a sudden, accused Krishna Barman, Ranjit Barman, Haresh Barman and Tapan Barman, began to assault them with sharp weapons as a result of which their father Sure sh Malakar was critically injured. He was shifted to Hajo PHC but succumbed to h is injuries. Three other members of Malakar family were also injured. On the fol lowing day, Sri Ratneswar Malakar lodged an FIR with Hajo Police Station which w as registered as Hajo P.S. Case No. 186/2002 u/ss. 325/326/302/34 IPC. After inv estigation, charge sheet was submitted and the case was committed to the court o f Sessions. The case being made over to the learned Additional Sessions Judge, F TC No. 3, Kamrup, Guwahati, charges were framed under Sections 323/302/34 IPC. T he accused appellants denied the charges and pleaded for trial. The prosecution examined in all 12 witnesses including the I.O. and the Medical Officer. The def ence also examined 2 witnesses. On consideration of the evidence and materials o n record and upon hearing the learned counsel for the parties, the learned trial court awarded conviction and sentence, as stated above. 4. Mr. Kataki, learned counsel for the appellants, submits that the prosecution could not bring home the charge under Section 302/323/34 IPC inasmu ch as the alleged occurrence took place suddenly and the deceased was hit at the heat of the moment and there was no intention to kill him to attract Section 30 2 of IPC. Similarly, there was no pre-plan or meeting of mind of the accused per sons for collectively attacking the deceased and his sons and daughter. The accu sed persons gathered on the spot only when there was a hue and cry just after th e scuffle between Thaneswar Malakar and accused Pranab Barman ensued on demand o f return of loan amount. All the accused persons cannot be held liable for causi ng death of the victim Suresh Malakar and as such, the accused persons should ha ve been acquitted or should have been awarded with lesser punishment. 5. The prosecution claims that PWs-1, 4 and 6, are eye-witnesses an d therefore, it is necessary to appreciate the evidence tendered by them. PW-1 S ri Ratneswar Malakar is the informant and one of the sons of the deceased Suresh Malakar. According to him, his brother Sri Thaneswar Malakar went to the house of accused Pranab Barman/Das demanding return of money which was due to him. The accused Pranab Barman/Das assaulted his brother causing serious injuries on var ious parts of the body and being attracted by hue and cry, he, along with his si ster Kunjalata and father Suresh Malakar, went there and saw the brother Thanesw ar Malakar lying on the road in an injured condition with pool of blood. He saw the accused Pranab Barman at the place of occurrence. Meanwhile, the other accus ed persons namely Tapan Barman, Krishna Barman, Ranjit Barman and Pranab Barman, made a combined attack on the informant and his brother and sister and assaulte d them by dao, lathi, etc.. PW-1 categorically stated that accused Tapan Barman/ Das assaulted his father Suresh Malakar by the blunt side of the dao causing ser ious injuries. PW-4 Robin Malakar, son-in-law of the deceased Suresh Malakar, de posed that on 18.09.2002, at around 9 PM, when he went out from his house for a stroll, all of a sudden, he saw a gathering in front of the village Namghar. He saw a scuffle took-place between accused Pranab Barman and Thaneswar Malakar. T he accused Pranab Barman gave a dao blow causing serious injuries over the thigh of Thaneswar Malakar. In the meantime, deceased Suresh Malakar along with his w ife, came to the spot. Other co-accused persons also came. As he was all along p resent there, PW-4 could see that accused Tapan Barman assaulted the deceased by a lathi causing serious injuries and thereupon Suresh Malakar fell on the groun d, who was immediately removed to Hajo PHC where he died. The other eye-witness PW-6, Thaneswar Malakar, brother of the informant and son of the deceased, depos ed that he was the person who allegedly came to the house of the accused Pranab Barman asking repayment of the loan amount. He deposed that when he came to the house of the accused appellants asking for repayment of loan amount, accused Pra nab Barman rebuked him and dealt blows by a dao on his left leg and also bite hi s head. When he made hue and cry, his deceased father Suresh Malakar, sister Kun jalata Malakar, and brother Sri Ratneswar Malakar, came to the scene. From the h ouse of accused Pranab Barman, other co-accused namely Sri Tapan, Ranjit and Kri shna, came, armed with lathi, rod, dao, etc., and they assaulted his father Sure sh Malakar, sister and brother. His injured father Suresh Malakar was shifted to Hajo PHC. He was pushed one injection. But his father expired in the morning of the following day in the Hajo PHC. The dead body was sent to Gauhati Medical Co llege at Guwahati, for post-mortem examination. The defence while cross-examinin g PW-1 put suggestion that his brother Thaneswar Malakar(PW-6), went to the hous e of the accused Tapan Barman/Das and wanted to commit rape on his wife in his a bsence and when Tapan’s wife protested, some trouble erupted between the parties . The defence also put similar suggestion to PW-6 Thaneswar Malakar that he ente red the house of Tapan Barman and attempted to commit rape on his wife. Both the said prosecution witnesses denied the said suggestion. From the aforesaid sugge stions, it can be understood that defence projected a story that the informant’s brother Thaneswar Malakar(PW-6) came to the house of Pranab Barman in his absen ce, to commit rape on his wife and he was caught by Pranab Barman and others, wh ich resulted into a scuffle and assault between two groups. To establish the sto ry/allegation, the defence examined DW-1 Sri Pabitra Kumar Das and DW-2 Smti. An jani Das. From the evidence of the defence witnesses, it is found that an FIR wa s lodged in respect of the aforesaid incident. 5. The evidence led by the prosecution has fully established the fa ct that the scuffle took place between the informant’s group and the accused per sons, resulting into physical assault and injuries. The facts of assault on Sure sh Malakar, his shifting to hospital at Hajo and succumbing to injuries, have al so been established. 6. PW-12 is Dr. Kanak Ch. Das, who conducted the post-mortem examin ation in Gauhati Medical College, Guwahati, on the body of the deceased. As per his deposition, the deceased was aged about 60 years and he found the following injuries: (i) One patterned contusion over left shoulder 3.5 cm X 2.5 cm in red colour . (ii) One patterned contusion on left side of the neck upper part 4 cm X 2 cm in size, red in colour. (iii) One contusion over front and right side of the chest 15 cm X 5 cm red in colour underneath 4th, 5th and 6th ribs, were fractured. Besides, he found pleura and right lung lacerated. He also found chest cavity contained about 900 Ms. Miti Libang, learned Government Advocate liquid a nd clotted blood. In his opinion, death was caused due to shock and haemorrhage as a result of injuries sustained which were ante-mortem and caused by blunt wea pon and homicidal in nature. On being asked, PW-12 stated that patterned injurie s means impression of the weapon present over the surface of the injury. Such ty pe of injury cannot be caused by falling on hard substance. He proved the post-m ortem examination, Ext.-P/7, prepared by him and also his signature thereon, Ext .-P/7(1). 7. The prosecution has been able to prove that the accused received multiple serious injuries by blunt weapon and such injuries are of homicidal in nature inasmuch as the Medical Officer(PW-12), categorically denied the possibi lity of causing such injuries due to falling on hard substance. The eye-witnesse s PWs-4 and 6, have also stated in their deposition that the deceased was hit by the accused persons by the blunt side of the dao. The injuries received by the deceased fit in the nature of weapon used by the accused persons. 8. It is to be examined as to whether the accused persons dealt blo ws with dao, lathi, rod, etc., upon the informant and his brothers and sister pa rticularly the deceased father Suresh Malakar at the heat of the moment. The adm itted position from the evidence is that it was Thaneswar Malakar(PW-6) brother of the informant, who went alone to demand return of the loan amount from accuse d Pranab Barman between whom the scuffle took place first and other accused pers ons came to the scene and assaulted him all of a sudden. The deceased Suresh Mal akar came to rescue his son Thaneswar Malakar(PW-6). It is clear from the eviden ce of PWs-1, 4 and 6, that the accused persons concentrated their attack on the deceased who was an old man of 60 years although it was the specific allegation that accused Thaneswar Malakar came and entered the house of Pranab Barman and attempted to commit rape on his wife in his absence. There is no evidence to the effect, at least, not even in the evidence of DWs-1 and 2, that deceased Thanes war Malakar came violent and assaulted some of the accused persons or their men. It is evident from the evidence that instead of attacking particularly Thaneswa r Malakar(PW-6) for his alleged misdeed, the accused persons assaulted and cause d multiple injuries on the person on the old man who was comparatively weak phy sically. 9. The other noticeable aspect is that the defence witnesses never stated before the court that the informant’s party including the deceased Suresh Malakar came to the place of occurance armed with any weapon. The fight was, th erefore, between unarmed informant’s party and armed accused persons. There is a lso no suggestion from the defence that the informant’s party came with arms to attack the accused persons. 10. On appreciation of evidence of both the prosecution and defence witnesses, irrespective of the stories projected by them, it is found that troub le started when Thaneswar Malakar visited the place of the accused appellants fo r whatever reasons may be, either to get refund of the loan amount or to commit rape in the house of accused Pranab Barman, and all the accused persons came out and attacked Thaneswar Malakar by lathi, dao, iron rod, etc., and later on, wh en deceased Suresh Malakar and his sons and daughter came to the spot, the accus ed appellants attacked the deceased person by hitting him with blunt side of the dao. The blow dealt by dao fell on the upper part of the neck, left shoulder an d front and right side of the chest, which are vital parts of a human body. Who has dealt such blows by the blunt side of the dao is not in the evidence but it is found that such act was done by one of the accused appellants knowing fully t hat it was likely to cause death which attracts the definition of culpable homic ide under Section 299 IPC. Such culpable homicide would attract the definition o f murder under Section 300 IPC. The act done by the accused appellants falls und er third exception provided under Section 300 IPC inasmuch as from the evidence, it has been proved that the accused appellants gave the dao blows causing bodil y injuries on the vital parts of the person of the deceased Suresh Malakar which is sufficient in ordinary course of nature to cause death. The injuries inflict ed on the deceased were so serious that he succumbed to the injuries in the next morning of the incident, surviving only for a few hours. 11. There is no doubt that the injuries received by the deceased Sur esh Malakar caused his death. It is to be considered under what circumstances su ch injuries were caused to the deceased. If the story of the defence is to be be lieved, the accused appellants got angry as Thaneswar Malakar visited the house of Pranab Barman in his absence and outraged the modesty of his wife, the accus ed appellants could have caught him and called the villagers or handed him over to the police for necessary action but they have chosen to assault him by taking the law at their hands and thereafter, the accused appellants, armed with dao, lathi, iron rod, etc., indulged in a scuffle with the informant’s party who were unarmed. There was no grave and sudden provocation from the informant’s side de priving the power of self-control of the accused persons for which they had to g ive dao blows, particularly on the deceased Suresh Malakar, who was an old man o f about 60 years. Even if the story of the prosecution is to be believed that Th aneswar Malakar came to the house of the accused persons for the purpose of real izing his loan amount. Nothing has been brought on record that he created nuisan ce or provoked the accused persons causing deprivation of power of self-control, resulting into attack by them on the informant’s party with arms, aforesaid. As per the evidence of the prosecution, accused persons selectively gave dao blows on the deceased who received serious injuries and succumbed to the said injurie s in the local Hospital within few hours. Had there been no intention to kill th e deceased, the accused persons would not have gone to the extent of assaulting the deceased by dao and they would have stopped after giving him some lathi blow s inasmuch as there is no evidence to the effect that the informant’s party came with equally lethal weapons like dao, etc., with intention to have a physical c lash with the accused persons. 12. As stated earlier, there is no evidence as to who carried the da o and who actually gave the dao blow(s) causing serious injuries to the deceased Suresh Malakar resulting into his death. Under such circumstances, amongst the accused persons, who should be held responsible for assaulting the deceased by d ao? Is it not an individual act of assault for which a particular person who rea lly inflicted the injury, should be charged and convicted for committing murder? Or is it the result of collective criminal act committed by a group of persons with common intention attracting the provisions under Section 34 IPC. There is e nough evidence to the effect that all the accused persons were present at the pl ace and time of occurrence although there is no specific evidence as to who carr ied what type of arms, particularly, as to who carried the dao used for the purp ose of assaulting the deceased. If it is an individual act without common intent ion, it must be proved by sufficient evidence that crime weapon dao was carried and used by a particular accused person and in that case, Section 34 IPC will no t be applicable but if the common intention in committing the offence against th e deceased is proved, all the accused persons would be liable and they shall be convicted for the offence they committed. 13. The essential pre-requisite of Section 34 are common intention a nd participation in the crime. The participation may be direct or indirect and p hysical presence of all the accused persons in all the cases, is not necessary t o come under the mischief of Section 34 IPC. For a clear view and better appreci ation, Section 34 IPC is quoted hereunder : 34. Acts done by several persons in furtherance of common intention :- When a criminal act is done by several persons in furtherance of common intentio n of all, each of such persons is liable for that act in the same manner as if i t were done by him alone. In the present case, I may repeat that the accused persons have not denied their presence at the place and time of occurrence and even the use o f dao, lathi, iron rod, etc., while they were engaged in physical clash with the informant’s party. Their common plea is that they were attacked and provoked by the informant’s party and under such provocation and attack, they have to resis t and during the process of resistance, the deceased Suresh Malakar received ser ious injuries on his person and there was no intention on the part of accused pe rsons to kill him or cause serious injuries resulting in the death of the deceas ed. They also projected that there was no pre-plan or meeting of mind to kill or to cause serious injuries upon any member of the informant’s party not to speak of the deceased Suresh Malakar. It was only at the heat of the moment when accu sed Pranab Barman was under attack by Thaneswar Malakar and when there was a hue and cry, other accused persons came to the scene to protect Pranab Barman and a s such, there was no chance for building up common intention or making pre-plan to attack and kill any member of the informant’s party. 14. How far the aforesaid claim of the accused persons is believable , is to be judged from the facts and circumstances of the case and the materials and evidence on record. DW-1 is Pabitra Kr. Das. He was cross-examined by the prosecutio n. He admitted that he did not witness ’mar-pit’. He also stated that even if th e ’mar-pit’ took place, he could not see the same due to darkness. In fact, as p er his deposition, he saw accused Pranab Barman but does not know why there was exchange of words between accused Pranab Barman and Ratneswar Malakar. He stated noting about the alleged entry of Thaneswar Malakar in the house of Pranab Barm an and his attempt to outrage the modesty of Pranab’s wife in his absence. The o ther witness, DW-2, Smti. Anjali Das, deposed that she is the wife of accused Ta pan Das and in absence of other family members, Thaneswar Malakar came to her re sidence and misbehaved with her. When she raised an alarm, her father-in-law Sri Krishna Das came and then Thaneswar Malakar fled away. Here is a marked contrad iction in the evidence of DWs-1 and 2 inasmuch as according to DW-1, Thaneswar M alakar entered the house of Pranab Barman in his absence while according to DW-2 , Thaneswar Malakar came to her house and misbehaved with her. This DW-2 never s aid in her deposition that Thaneswar Malakar outraged her modesty or attempted t o commit rape on her. On the face of this contradictory and uncorroborated evide nce of DWs-1 and 2, the defence story of alleged visit of Thaneswar Malakar and his attempt to outrage her modesty or attempted to commit rape on Pranab Barman’ s wife or Anjali Das, wife of Tapan Das, has become unbelievable. Again it shoul d be noted that PW 2, Anjali Das is not the wife of Pranab Barman. The defence s tory is found to be as much false as afterthought. 15. The defence has not led any evidence to prove that Thaneswar Mal akar by creating any nuisance near the house of the accused appellants, provoked them, rather it is quite evident from the evidence that all the accused appella nts came to the scene armed with lathi, dao, iron rod, etc.. The way they gather ed at the place of occurrence, amply proves that they came with a common intenti on to attack the informant’s party and they have acted in furtherance of common intention i.e. to give a lesson to the informant’s party. There is no doubt from the conduct of the accused appellants that each of them had shared the said com mon intention and finally committed the criminal act by assaulting and causing d eath to the deceased. 16. The Apex Court in several cases had occasion to discuss and rend er judgment in regard to applicability of Section 34 IPC under various circumsta nces. Amongst other, I choose to refer to Parasa Raja Manikyala Rao & Anr. -vs- State of A.P. reported in (2003) 12 SCC 306. For better appreciation, I think it apt to quote paragraph No. 11 of the said judgment, as under : 11. The Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individ ually. It is a well-recognized canon of criminal jurisprudence that the courts c annot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a com mon purpose to execute a common object, each and every person becomes responsibl e for the act of each and every other in execution and furtherance of their comm on purpose; as the purpose is common, so must be the responsibility. All are gui lty of the principal offence, not of abetment only. In a combination of this kin d a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not co gnizant of the intention of his companion to commit murder, is not liable, thoug h he has joined his companion to do an unlawful act. The lending feature of this section is the element of participation in action. The essence of liability und er this section is the existence of a common intention animating the offenders a nd the participation in a criminal act in furtherance of the common intention. T he essence is simultaneous consensus of the minds of persons participating in th e criminal action to bring about a particular result & &.. 17. The above discussion based on appreciation of evidence and mater ials on record and consideration made in the light of decisions of the Apex Cour t, I find no ground for interference with the impugned judgment dated 27.07.2009 passed by the learned Addl. Sessions Judge, FTC No. 3, Kamrup, Guwahati, in Ses sions Case No. 333(K) of 2003 convicting and sentencing the accused appellants e xcept to uphold the same. 18. Resultantly, this appeal stands dismissed. Registry shall return the records forthwith.