This appeal by the State of Assam is directed against the judgment and order dated 31.8.98 passed by the Additional Sessions Judge, Nagaon in Sessions Case No.8 (N) of 1995 whereby the respondent accused persons were acquitted of the charge under sections 302/323/34IPC. 2. Heard the learned Public Prosecutor assisted by Mr. HRA Choudhury on behalf of the appellant and Mr. JM Choudhury, Senior Advocate for the respondents. 3. On 17.2.94 Md Abdul Kuddus Khan lodged a written FIR (Ext 1) before the Choudhury Bazar Police Out Post stating inter alia that on that day at about 2 PM while his elder brother Abdul Hakim was returning home from Masjid, six accused persons named in the FIR attacked him and assaulted him. Hearing the shout for help of Abdul Hakim, another elder brother of the informant namely Md Abdul Karim and one of his neighbour Md Abdul Kalam rushed to the spot and intervened whereupon those two persons were also assaulted. The injured persons were taken to hospital and Abdul Karim succumbed to the injuries, e Police after usual investigation submitted charge sheet against all the six accused persons. The learned Addl Sessions Judge, Nagaon framed charge under section 302/323/34 IPC. During trial, prosecution examined as many as eight witnesses. On conclusion of the trial, the learned Additional Sessions Judge acquitted the accused persons and hence the appeal. 4. Before proceeding to consider the evidence and materials on record, we would like to recapitulate the scope and ambit of power of the High Court in an appeal against the order of acquittal. On consideration of the various judgments of the Apex Court, this Court in the case of State of Assam vs. Radha Oil Industries & another reported in (1987) 1 GLR 134 held as follows : "The power conferred by section 423 (10) (a) of the Code which deals with an g appeal from an order of acquittal is as large and wide as the power conferred by clause (b) thereof, which deals with an order of conviction. It is thus obvious that the High Court's power in dealing with criminal appeals are equally wide whether the appeal is one against acquittal or conviction. It is thus obvious that the High Court's power in dealing with criminal appeals are equally wide whether the appeal is one against acquittal or conviction. In an appeal against an order of acquittal the High Court has the full power to review at large the evidence upon which the order of acquittal is based and to reach the conclusion on the evidence as to whether the order of acquittal should be reversed or not. "The Code' places no special limitation on the appellate Court to appraise the evidence distinct and separate from the manner in which it should be appreciated in an appeal against conviction. Indeed the appellate Court dealing with an appeal against the order of acquittal has full power to review the evidence on which the order of acquittal is based and to reach a conclusion either to set aside the order or not but while exercising the function, it has been ruled by the Supreme Court in a catena of cases, the High Court should give appropriate weight and consideration to the following aspects : (i) the views of the trial Court as to the credibility of the witnesses should be properly weighed and considered; (ii) the presumption of innocence in favour of the accused is never weakened by the fact that he has been acquitted at the trial; (iii) the right of the acquitted persons to the benefit of reasonable doubt should not be denied on the score that they have been acquitted and are no longer accused; (iv) the appellate Court should be slow in disturbing the findings of fact reached by the trial Judge who had the advantage of personally seeing the witnesses; and (v) when the High Court does not agree with the view of the trial Court yet reaches the conclusion that the view expressed by the trial Court is reasonably possible, the same should not be disturbed." 5. In the case of Ramesh Babulal Doshi vs. State of Gujarat, reported in (1996) 9 SCC 225 , the Apex Court restated the principles as below : "This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and efficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal, the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers Die above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds for reasons to be recorded that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not." At this stage we may recapitulate the observations of the Apex Court in the case of Sarrwat Singh vs. State of Rajasthan ( AIR 1961 SC 715 ). In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not." At this stage we may recapitulate the observations of the Apex Court in the case of Sarrwat Singh vs. State of Rajasthan ( AIR 1961 SC 715 ). The Bench considered the matter in detail and held: "The foregoing discussion yields the following results: (1) an appellate Court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate Court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) 'substantial and compelling reasons, (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified." 6. On perusal of the impugned judgment it is seen that the learned trial Court has categorically held that an incident did take place on the date of occurrence wherein Abdul Karim, Abdul Hakim and Abdul Kalam sustained injuries and the said Abdul Karim succumbed to the injuries. PW 7 (Dr. Pradip Kumar Talukdar) who held the autopsy over the dead body found as below: "(i) On larynx and trachea, tracheotomy was (tone, old abrasion on the back of the chest 10 cm away from the root of the neck and 5 cms away from the midline left side of the size 5 cm x 3 cm. (ii) Abrasion over left buttock, (iii) Old abrasion over right leg. (iv) Lacerated wound over medial aspect of right wrist joint and above the elbow joint The wound is stitched. (v) Lacerated wound over the scalp in the parieto-occipital region on both sides. Left side wound of size 6 cm x 2 cm x bone deep. (ii) Abrasion over left buttock, (iii) Old abrasion over right leg. (iv) Lacerated wound over medial aspect of right wrist joint and above the elbow joint The wound is stitched. (v) Lacerated wound over the scalp in the parieto-occipital region on both sides. Left side wound of size 6 cm x 2 cm x bone deep. Right side wound is of size 5 cm x 1.5 cm x bone deep. Both the wounds are stitched. Injury over the skull - Depressed communated fracture over both right and left parieto-occipital region is present Membranes of the brain - Membranes lacerated at place and sizes very from 2 x 1.5 onto 2 cmx 2 cm. Brain (i) Lacerated injury over right parietal region of size 4 cm x 4 cm x 2 cm. (ii) Lacerated injury over left parietal region of size 4 cmx 2 cmx 1.5 cm. (iii) Frontal lobe contusion of size 6 cm x 3 cm of size." In the opinion of the doctor the death was to coma as a result of the head injuries which was ante-mortem in nature that the injury was caused by blunt force impact and homicidal in nature. 7. Admittedly, Abdul Karim died after 14 days of the occurrence. He was examined by Dr. S. Hoque (PW 6) on the day of incident itself. In the impugned judgment learned trial Judge has observed that for non-examination of the doctor who examined the deceased at Nagaon Civil Hospital and subsequently at Guwahati Neurological Research Centre, the Post Mortem Report and "evidence of PW 7 is not sufficient to rule out any possibility that Karim could have died of any surgical intervention of some other unknown cause, during 14 days before his death and date of occurrence". If the trial Judge had taken the trouble of going through the records, he could have seen that the inj ured was first examined at the local hospital by Dr. S. Hoque (PW 6) who has deposed that as the condition of Abdul Karim was serious he was sent to the Nagaon Civil Hospital for treatment. Thereafter the injured was in coma. He was removed to Guwahati Neurological Research Centre, a specialised institution for the purpose. The patient was under medical treatment till his death. S. Hoque (PW 6) who has deposed that as the condition of Abdul Karim was serious he was sent to the Nagaon Civil Hospital for treatment. Thereafter the injured was in coma. He was removed to Guwahati Neurological Research Centre, a specialised institution for the purpose. The patient was under medical treatment till his death. The Investigating Police Officer (P W 8) has stated that the deceased Abdul Karim in view of the grievous injury was removed from Dighaliar State Dispensary to Nagaon Civil Hospital where from was removed to Guwahati Neurological Research Centre where he succumbed to the injuries. PW 8 also deposed that he went to Guwahati Neurological Research Centre and made inquest on the dead body. The evidence of this witness was not under challenge. The cause of death can be ascertained from the post­mortem only and the doctor has categorically stated that the death was due to coma resulting from head injury. The observation that the deceased might have died due to surgical intervention is a fit of imagination of the trial Judge not supported by evidence. The doctor found depressed committed fracture over right and left parietal region and there were lacerated wound on the membrane and brain and there was contusion on the frontal lobe. The above evidence was not challenged even and due to surgical intervention, depressed fracture and the above injury can not be caused. It is therefore held that the deceased died as a result of the injuries sustained by him on the head and this is a case of homicide. 8. The oral evidence on record shows that the deceased was assaulted with lathi, a blunt object. The oral testimony is corroborated by medical evidence on record. PW 7 has categorically deposed that the injuries sustained by the deceased were caused by blunt forced impact. Learned trial Judge found fault with the prosecution case on the ground that in the FIR it is stated that the accused persons attacked being armed with sharp weapon whereas none of the injured persons sustained sharp cut injuries. The sharp cut seems to have been added or inserted in between the two words. Likewise in Ext 1 another name at Serial No.7 was added and struck out. The sharp cut seems to have been added or inserted in between the two words. Likewise in Ext 1 another name at Serial No.7 was added and struck out. Likewise the evidence on record shows that accused Abdul Mannan, Abdul Sobhan and Abdul Salam participated in the assault; but in the FIR, the names of three other persons, namely, Abdul Sukur, Abdul Mannan and Abdul Kuddus are also mentioned. The trial Court placed much reliance on the above infirmities in the FIR to record an order of acquittal. 9. The law is well settled that FIR is not a substantive piece of evidence and it can only be used to corroborate or contradict the statement of the maker under section 157 and 145 of the Evidence Act. As regards the addition and subsequent striking out the 7th name in Ext 1 is concerned, the informant (PW 5) has stated that he did not name 7th person and his name was struck out by the writer. Likewise PW 5 has explained for addition of the name of Abdul Sukur, Abdul Kuddus and Abdul Mannan. He has stated that all the six accused persons are the sons of Hazi Abdul Khaleque and these three persons had arrived at the place of occurrence subsequently being armed with lathi etc and as such he has named in the FIR. For omission to mention the names of the accused in the FIR or for adding the names of certain persons as accused in the FIR, the inference to be drawn by the Court varies from case to case. In this case, PW 5 has given an explanation that these three accused persons came to the place of occurrence armed with lathi after the assault was made and as such he included their names in the FIR. In view of the above PW 5's evidence cannot be thrown out even if the explanation is not accepted by the Court. Moreover, the addition of these name by PW 5 no way affects the testimony of the eye witnesses. The trial Judge has also given undue importance to the appearance of the word sharp weapon in the FIR Ext 1. The oral evidence supported by medical evidence as quoted above shows that the deceased was assaulted by lathi, a blunt object. Moreover, the addition of these name by PW 5 no way affects the testimony of the eye witnesses. The trial Judge has also given undue importance to the appearance of the word sharp weapon in the FIR Ext 1. The oral evidence supported by medical evidence as quoted above shows that the deceased was assaulted by lathi, a blunt object. Although the informant (PW 5) was available in Court and he was examined and cross-examined a by the defence, but his attention was not drawn to the above word and the contradiction was not proved as required under section 145 CrPC. The observation of the Court that non-examination of the writer of the FIR was fatal is also ill founded as because when the informant is a literate person and he put his signature and when he is examined, the writer of the FIR was not required to be examined. 10. In this case there are five eye witnesses, namely, Azizur Rahman (PAW 1), Abdul Kalam (PW 2), Abdul Malik (PW 3), Abdul Hakim (PW 4) and Abdul Kuddus (PW 5). The genesis of the occurrence is that Abdul Kalam (PW 2) and Abdul Hakim (PW 4) had purchased a cart load of firewood for sale and they had stocked the firewood near the house of Adbul Mannan as there was no road to their house. It may be mentioned that all the above mentioned eye witnesses and the accused persons are neighbours residing in the same locality. On the day of occurrence, the informant verified and found that the firewood was missing from the place of storage. When the informant made an enquiry, the accused persons came out and attacked the informant and thereafter they first assaulted PW 2 and PW 4. Hearing the shout for help the deceased Abdul Karim rushed to the place of occurrence whereupon he was assaulted. 11. In view of the overwhelming oral evidence on record the trial Court also held that the prosecution has been able to establish that the deceased was assaulted by the accused persons. However, the Court found that the witnesses are not specific as to which of the accused persons assaulted whom. 12. 11. In view of the overwhelming oral evidence on record the trial Court also held that the prosecution has been able to establish that the deceased was assaulted by the accused persons. However, the Court found that the witnesses are not specific as to which of the accused persons assaulted whom. 12. In the impugned judgment the learned trial Court held that there was no common intention on the part of the accused persons which we will revert at a later stage and the observation of the trial Court is as follows: "Now, that there was no common intention on the part of die accused persons, the question that now arises is as to who gave the fatal blow to Karim which resulted in his death. As the learned lawyer for the defence pointed out no witness had specifically pointed out any accused persons to have given die fatal blow on f the head of Karim. I have gone through the evidence on record carefully to find nut whether any accused person is named by any witness to have given the fatal blow to Karim I could find none." Before proceeding let us now examine whether the above finding is correct or not. 13. PW 1, Azizur Rahman has deposed that on arrival of the deceased Karim to the scene of occurrence, the accused Mannan, Sobhan and Salam abandoned their assault on Hakim and Kalam and started assaulting Karim with a lathi. PW 2, Abdul Kalam has also deposed to that effect. PW 3, Abdul Malik has categorically deposed that Abdul Mannan first assaulted Abdul Karim with a lathi on the back whereupon Karim fell down and thereafter accused Salam, Mannan and Sobhan assaulted Karim with a lathi. PW 4, Abdul Hakim, another witness has also deposed that seeing the assault when he came to the place of occurrence, the accused persons leaving them started assaulting Abdul Karim and fell down. PW 5, Md Abdul Kuddus Khan has also deposed to that effect. Thus, we find that the above finding of the trial Court is erroneous and palpably wrong. Learned trial Judge has misread the evidence to come to an erroneous finding. 14. PW 5, Md Abdul Kuddus Khan has also deposed to that effect. Thus, we find that the above finding of the trial Court is erroneous and palpably wrong. Learned trial Judge has misread the evidence to come to an erroneous finding. 14. Now coming to the question of common intention, the trial Court has held that the accused persons 'lacked' common intention to kill Karim or to assault the complainant party mainly on the ground that there was no pre-arranged plan or there was no meeting of mind and the occurrence began suddenly. In a catena of decisions the Apex Court held that although the common intention implies pre-consulted meeting of mind, the common intention can develop during the course of an occurrence. In the case of Sheoram Singh vs. State of UP, AIR 1972 SC 2555 , the Apex Court observed : "It is undeniable that common intention can develop during the course of an occurrence, but there has to be cogent material on the basis of which the Court can arrive at that finding and hold an accused vicariously liable for the act of the other accused by invoking section 34 of the Indian Penal Code." In a later case of Joginder Singh vs. State of Haryana, AIR 1994 SC 461 , the Apex Court observed : "It is one of the settled principles of law that the common intention must be anterior 'in time to the commission of the crime. It is also equally settled law that the intention of the individual has to be inferred from the overt act or conduct or from other relevant circumstances. Therefore, the totality of the circumstances must be taken into consideration in order to arrive at a conclusion whether the accused had a common intention to commit the offence under which they could be convicted. The pre-arranged plan may develop on the spot. In other words, during the course of commission of the offence, all that is necessary in law is the said plan must proceeded to act constituting the offence." 15. The pre-arranged plan may develop on the spot. In other words, during the course of commission of the offence, all that is necessary in law is the said plan must proceeded to act constituting the offence." 15. In the present case, we find that all the witnesses have stated that while Abdul Hakim and Abdul Kalam were being assaulted by the three accused persons namely Abdul Mannan, Abdul Sobhan and Abdul Salam, the deceased Abdul Karim arrived at the place of occurrence and seeing him, the above named three accused persons abandoned their assault on PW 2, PW 4 and pounced upon Abdul Karim assaulting him and felled him near the E&D Nallah. From the act of the accused persons, it can be safely inferred that the above three accused persons developed common intention to assault Abdul Karim and whether the above act amounts to an offence under section 302 or a lesser offence shall be considered later on. In this case, all the six accused persons were charged under section 302/34 IPC. In view of the evidence on record accused Abdul Sukkur, Abdul Kuddus and Abdul Mannan did not take any part in the incident and they arrived at the place of occurrence subsequently. Why these 3 (three) accused persons were impleaded has been explained by the informant. Hence, so far the acquittal of the above three named accused persons, it needs no interference and the order of acquittal stands affirmed. However, from the impugned judgment it is seen that the learned trial Court also laboured under a wrong impression that if some of the accused persons are acquitted from the charge altogether under section 34, IPC, the other accused persons are also entitled to acquittal on that count. In the case of Subhash and Shiv Sankar vs. State of UP ( AIR 1987 SC 1222 ), the Apex Court observed : a "We are, therefore, of the view that even though the other accused stand acquitted and even though there is no evidence that Subhash caused one of the fatal injuries, he cannot escape conviction under section 302 read with section 34 Penal Code, when his participation with three other assailants in the attack on Ram Babu has been established beyond reasonable doubt by the prosecution. We, therefore, confirm his convictions and the sentences awarded therefor." In the case of Brathi alias Sukhdev Singh vs. State of Punjab ( AIR 1991 SC 31 £)l» the Apex Court had the occasion to consider the implication of section 34/149, IPC in case where some co-accused are acquitted and some are sought to be convicted on the strength of section 34 IPC. The Apex Court in para 18 held-"The authorities thus show that it is not essential that more than one person should convicted of the offence and that section 34 Indian Penal Code, can be invoked if the Court is in a position to find that two or more persons were actually concerned in the criminal offence sharing a common object. Where the evidence examined by the appellate Court unmistakenly proves that the appellant was guilt under section 34, having shared a common intention with the other accused who were acquitted and that the acquittal was had, there is nothing to prevent the appellate Court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding." 16. The decision in Brathi (supra) was reiterated in the case of Khujji alias Surendra Tiwari vs. State of Madhya Pradesh ( AIR 1991 SC 1853 ). The learned trial Judge being unable to hold or determine as to who gave the fatal blow to the deceased, choose the safe way out by acquitting all the accused e persons. As stated above, all the five eye witnesses have stated that the deceased was assaulted with lathi by all the three accused persons. From the medical evidence I find that the injury sustained by the deceased proved fatal. Section 34 is definitely attracted in such a case when the fatal injury cannot be attributed to any particular assailant provided all the assailants shared the common intention. The trial Court even found fault with the evidence of PW 6, the doctor who had f examined the deceased initially. Considering the seriousness of the injury, the doctor referred the patient to an well equipped hospital. The trial Court has held that as PW 6 has not stated about the nature and site of injuries, the evidence of the PW 7 who held the autopsy is not corroborated. 17. Considering the seriousness of the injury, the doctor referred the patient to an well equipped hospital. The trial Court has held that as PW 6 has not stated about the nature and site of injuries, the evidence of the PW 7 who held the autopsy is not corroborated. 17. From my foregoing discussion, I find that the entire approach of the trial Court is vitiated by manifestly and illegally both on the point of law and fact.There is non reading and misreading of evidence and the law as it stands is also not appreciated in proper perspective. The conclusion arrived at by the trial Court can be termed as perverse as because no Court acting reasonably and judiciously can take such a view. This is also not a case where two views are possible and the Court below has taken one view. Hence the order of acquittal passed by the Court below so far it relates to the respondent accused Abdul Sobhan, Abdul Mannan and Abdul Salam is concerned, it stands set aside. 18. As discussed above, the death of Abdul Karim as a result of the injuries sustained by him on the date of occurrence has been well established and this is a case of homicide. As to the question who killed the deceased, I find from the prosecution case that three accused persons did assault the deceased with lathi. However, it cannot be said as to which of the injury or injuries caused by the accused person proved fatal. PWs 2 and 4 were also injured in the above incident. As a matter of fact they were victims of the assault made by the accused persons and the deceased unfortunately suffered for his indiscretion. PW 6 had examined PWs 2 and 4 and found the injuries on their person. Thus the presence of PWs 2 and 4 at the time of occurrence is well established. The learned trial Judge held that the genesis of the occurrence was not disclosed by the prosecution. This statement is far from truth. Both PWs 2 and 4 have deposed as to how incident developed. These, two witnesses cannot be charged for provoking or inviting assault When they found that the firewood stored by them is missing and the track marks led them to the house of the accused persons and they enquired about the missing firewood. This statement is far from truth. Both PWs 2 and 4 have deposed as to how incident developed. These, two witnesses cannot be charged for provoking or inviting assault When they found that the firewood stored by them is missing and the track marks led them to the house of the accused persons and they enquired about the missing firewood. There, is nothing on record to show that these witnesses were assaulted at that time or they did anything to prevent the unwanted assault. Moreover, from the evidence it is seen that when the deceased came on hearing shout for help, three accused persons prevented him and also assaulted him which shows that they shared common intention to teach a lesson to the deceased. 19. In this case a number of contradictions were suggested to the witnesses. But from the case diary it is seen that some of the contradictions were suggested to the witnesses without considering the statement recorded under section 161 CrPC. PW 8 has disproved certain contradictions. The contradictions are not at all material as they did not go at the root of the case in any manner. These minor e variations are bound to occur in the statement of illiterate/rustic witnesses when they depose in Court after a long gap and these contradictions do not disturb the prosecution case in any manner. 20. In view of the overwhelming evidence on record, it is held that accused Abdul Mannan, Abdul Sobhan and Abdul Salam shared common intention to assault Abdul Karim and Abdul Karim died as a result of the injuries caused by the three accused persons. Now the question that comes up for consideration is whether the three accused persons had an intention to commit murder of Abdul Karim or the act of these accused persons constituted an offence under section 302 IPC or not. There cannot be any direct evidence as regards the intention and the intention is to be inferred from the facts and circumstances of the case. The intention can also be inferred from the nature of injuries. In this case we find that the weapon used was a lathi which is common weapon for the village people. Moreover, the quarrel started with PWs 2,3 and 4 and the accused persons assaulted them also. There is no doubt that the accused persons hadintended to cause injury on the person of the deceased. In this case we find that the weapon used was a lathi which is common weapon for the village people. Moreover, the quarrel started with PWs 2,3 and 4 and the accused persons assaulted them also. There is no doubt that the accused persons hadintended to cause injury on the person of the deceased. The deceased succumbed to the injuries after 15 days. The doctor has also not deposed that the injuries were sufficient to cause death in the ordinary course. The prosecution did not try to bring home the above. 21. Considering the respective contention of the learned counsel for the parties and considering the facts and circumstances of the case we find that the injury caused on the deceased was not inflicted with the sole intention to cause death; but when the lathi blow was dealt with force on the head of the deceased it may be contended that the accused persons were aware that such injuries were a likely to cause the death. Under the circumstances, the intention to kill cannot be imputed. It is held that the offence punishable would be one culpable homicide. 22. In the result, the accused Abdul Sobhan Abdul Mannan and Abdul Salam stand convicted under section 304 Part n IPC. Considering the submission of the learned counsel for the parties and considering the facts and circumstances of the case, the three accused persons are sentenced to imprisonment for four years each and to pay a fine of Rs. 1,000 each, in default further imprisonment for one month each. The period of imprisonment undergone by the accused shall be set off under section 428 CrPC. They are directed to surrender forthwith to serve out the sentence. The appeal stands disposed of as stated above. 23. Send a copy of this order to the learned Additional Sessions Judge, Nagaon for necessary follow up action.