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2002 DIGILAW 571 (CAL)

Kala @ Kishore Ghosh v. State of West Bengal

2002-08-27

Narayan Chandra Sil, Sujit Barman Roy

body2002
JUDGMENT S. Barman Roy, J. Both these two appeals are being disposed of by this common judgement as they are directed against same judgement of conviction and sentence passed by the Trial Court. However, it needs to be mentioned here that Criminal Appeal No. 228/90 against same judgement has already been disposed of as it has abated due to death of the appellant Betia alias Nagendra Poddar who expired while serving out the sentence of life imprisonment passed against him and, therefore, we are not concerned with this Criminal Appeal No. 228/90 in this judgement. 2. The Criminal Appeal No. 162/90 preferred by Kala alias Kishore Ghosh and Criminal Appeal No. 244/90 preferred by appellant Nepali alias Uttam Mahato alias Udma and Narayan alias Narayan Saha are directed against the judgement dated 20.3.90 passed by the City Sessions Court, 11th Bench, Calcutta in Sessions Case No. 48 of 1988 convicting all these appellants including the deceased appellant Betia under sections 302/34 I.P.C and sentencing them thereunder to suffer imprisonment for life. 3. The prosecution case in brief is that on 29.2.88 at about 19.00 hours an F.I.R. was registered under sections 302/34 I.P.C. on the basis of oral complaint lodged by P.W.4 Madan Paramanick alleging, inter alia, that on that day during noon time said P.W.4 alongwith Bhodu (since deceased), P.W.5 Dilu and P.W.6 Pochu were gossiping at Haritukibagan Lane near the crossing of Vivekananda Road, and Haritukibagan Lane. At that time the deceased Bhodu and Dilu were sitting on a small verandah (locally called roak) on the eastern side of the Sweetmeat Shop of Rabindra Ash at 49, Haritukibagan Lane. P.W.4 himself was sitting on a small stool there and Pochu (P.W.6) was standing nearby. While they were so gossiping at about 1.40p.m/1.50p.m., suddenly the appellants Narayan, Betia, Nepali and three others appeared there using filthy language against the deceased Bhodu. The appellant Narayan had a long knife in his hand. Appellant Nepali had a cobbler's knife and one of the three unknown persons who accompanied the aforesaid appellant had a razor in his hand. Immediately after that one of those unknown three persons caught hold of Bhodu being the deceased and simultaneously appellants Narayan, Nepali and the unknown person with razor started assaulting the deceased while appellant Betia and two other unknown persons threatened the deceased not to run away. Immediately after that one of those unknown three persons caught hold of Bhodu being the deceased and simultaneously appellants Narayan, Nepali and the unknown person with razor started assaulting the deceased while appellant Betia and two other unknown persons threatened the deceased not to run away. Being scared P.W.4 and others who were gossiping with the deceased, as already stated above, fled from that place and ran towards Vivekananda Road. Later on P.W.4 being the informant came to learn that the deceased Bhodu being seriously injured fell down on the passage in front of his house and from there deceased was removed to Medical College and Hospital by P.W.9 Lakshmi and at the hospital deceased was declared dead. P.W.4 further stated in his oral complaint that he saw Narayan, Betia and Nepali alongwith those three unknown persons in front of 'Chaya' cinema hall on several occasions. He further claimed that he would be able to recognise those three unknown persons who took part in this incident alongwith other accused persons if he could see them. It needs to be mentioned here that S.I.S. Ahmed came to the place of occurrence pursuant to a telephonic information received at the P.S. before whom P.W.4 lodged this oral complaint which was reduced into writing and signature of P.W.4 was obtained thereon and thereafter at about 7 p.m. on the very same day said oral complaint was registered as an F.I.R. at the police station under sections 302/34 I.P.C. 4. After usual investigation police submitted charge-sheet against the appellants and also against the deceased appellant Betia alias Nagendra Poddar whose Criminal Appeal No. 228/90 has abated due to his death while serving out the sentence of life imprisonment in the jail. In due course of time the case was committed to the City Sessions Court at Calcutta and ultimately the case was tried in the City Sessions Court, 11th Bench, Calcutta. On perusal of materials on record ld. Trial Court framed a charge under sections 302/34 I.P.C. against four accused persons. In course of the trial in all 30 P.Ws. were examined on behalf of the prosecution. No evidence was adduced on behalf of the appellants. Defence of the appellants in course of the trial was a simple denial. On conclusion of the trial all the appellants including deceased appellant Betia were convicted and sentenced as already stated. In course of the trial in all 30 P.Ws. were examined on behalf of the prosecution. No evidence was adduced on behalf of the appellants. Defence of the appellants in course of the trial was a simple denial. On conclusion of the trial all the appellants including deceased appellant Betia were convicted and sentenced as already stated. On perusal of the evidence on record it appears that P.Ws. 4, 5, 6 and 7 are the eye-witnesses in this case. The impugned judgement is based primarily on the evidence of these four eye-witnesses apart from other evidence on record and identification of one appellant and another during T.I. Parade. 5. P.W.4 Madan Paramanick being the informant stated in his evidence that on 29.2.88 at about 1.30 p.m. he alongwith deceased Bhodu alias Rajkumar Jaiswal, P.W.5 Dilu and P.W.6 Pochu were gossiping on a small verandah (locally called roak) situated on the eastern side of the Sweetmeat Shop of Rabindranath Ash at the crossing of Vivekananda Road and Haritukibagan Lane. At this time he further saw the appellant Narayan, Betia, Nepali and three other unknown persons came there and began to abuse P.W.4 and the deceased in filthy language. Narayan had a knife in his hand and Nepali had a bada (cobbler's knife) in his hand and one of the three unknown persons had a razor in his hand. The deceased tried to run away from that place but he was caught by one of those unknown three persons and that unknown person began to assault the deceased with fist and blows on his chest and face. Narayan and Nepali started to assault the deceased with knife and bada(cobbler's knife) respectively. The person who had a razor in his hand also tried to assault P.W.4. However, P.W.4 managed to flee away towards Bidhan Sarani through Vivekananda Road. The unknown person who had a razor in his hand returned to the place of occurrence and began to assault the deceased with his razor. P.W.5 Dilu and this witness managed to flee away from the place of occurrence. Dilu fled away towards his house. After some minutes this witness returned to the place of occurrence and saw blood on the ground P.W.9 Lakshmi Paul came and reported him that the deceased had already succumbed to his injuries. P.W.9 Lakshmi Paul further wanted to know whether police was informed about the incident. Dilu fled away towards his house. After some minutes this witness returned to the place of occurrence and saw blood on the ground P.W.9 Lakshmi Paul came and reported him that the deceased had already succumbed to his injuries. P.W.9 Lakshmi Paul further wanted to know whether police was informed about the incident. When P.W.9 was informed that matter was not reported to the police, he reported the matter to the Burtolla Police Station over phone. He further identified appellants Narayan, Betia and Nepali in the dock. He also stated that the person who first caught hold of the deceased was also present in the dock with other accused persons and accordingly he identified the appellant Kishore Ghosh alias Kala and stated that it was Kishore Ghosh who first caught hold of the deceased when Narayan and Nepali assaulted him with the weapons. He further stated that the person who was carrying razor in his hand was not present in the dock. He also claimed that in T.I. Parade he had identified the appellant Kala alias Kishore Ghosh. 6. It is also the case of P.W.4 that after the matter was reported to the Burtolla P.S. a police officer came to the place of occurrence to whom he reported the entire incident and such information was reduced into writing by the said police officer and thereupon P.W.4 gave his signature to such statement. This is in brief the evidence given by P.W.4 during his examination-in-chief. During cross-examination he also claimed that when the occurrence was taking place, he fled from that place and about 15/20 minutes thereafter he again returned to the place of occurrence. When he returned to the place of occurrence he did not notice the deceased. However, he saw P.Ws. Dilip Bose and Pochu. He was informed by others that deceased was removed to the Medical College and Hospital, Calcutta. However, P.W.9 Lakshmi Paul reported the matter to the P.S. over phone from a neighbouring shop. P.W.4 returned to the place of occurrence little after the incident was over, P.W.9 Lakshmi Paul reported the matter to the P.S. over telephone. He did so after discussing the incident with P.Ws. Madan, Dilu and Pochu. It is true that during cross-examination of this witness it was brought out that this witness omitted to mention certain statements in the FIR. He did so after discussing the incident with P.Ws. Madan, Dilu and Pochu. It is true that during cross-examination of this witness it was brought out that this witness omitted to mention certain statements in the FIR. But such omissions do not pertain to material parts of the prosecution story and, therefore such omissions have absolutely no effect upon the credibility of this witness. He further denied the suggestions that he belonged to any political party or that P.W. Lakshmi Paul, Dilip Bose and Pochu were supporters of any political party or that on the advice of local leaders pf that party, these witnesses including P.W.4 manufactured this false case against the appellants by giving false evidence. This is in brief the entire evidence given by P.W.4 before the Trial Court. On scanning the evidence of this witness we do not find anything to effect the credibility of his evidence. 7. Next important eye-witness is P.W.5 Dilip Bose alias Dilu. In his evidence he stated that he was resident of the area in which the incident occurred. The deceased Bhodu was also a resident of that area. On the date of occurrence at about 1.30 p.m. this witness alongwith deceased were sitting on the eastern roak of the Sweetmeat Shop of Rabindranath Ash situated at the crossing of Haritukibagan Lane and Vivekananda Road at Calcutta. P.W.4 Madan Paramanick was sitting in front of them on a stool while P.W. Pochu was standing there. They were gossiping together. At that time the appellants Betia, Kala, Narayan, Nepali and Prince and another unknown person came near them. The appellants were all six in number. Accused Nepali had a cobbler's knife in his hand while appellant Narayan had a knife in his hand. The accused Prince had a razor with him. On their arrival the appellants and their companions started abusing the deceased in a filthy language. The deceased Bhodu tried to run away but he was caught by appellant Kala alias Kishore Ghosh and he began to assault the deceased Bhodu on his face and chest with fist and blows. Then appellant Narayan began to assault deceased with knife. The accused Prince and another person were also standing there. Prince began to assault deceased with his razor. Out of fear this witness fled towards his house and P.W.4 Madan alias Mona fled towards Vivekananda Road. Then appellant Narayan began to assault deceased with knife. The accused Prince and another person were also standing there. Prince began to assault deceased with his razor. Out of fear this witness fled towards his house and P.W.4 Madan alias Mona fled towards Vivekananda Road. This witness further claimed in his evidence that when he was running away from the scene of occurrence, he saw Ashok and Jato were standing in front of Bagri House facing towards Vivekananda Road. After crossing his house when P.W.5 turned back, he could see that the accused persons after assaulting the deceased to flee away towards Amherst Street through Vivekananda Road. This witness identified the appellants Kala, Narayan, Nepali and Betia in the dock before the Trial Court. Two other persons who also accompanied the aforesaid appellants during the occurrence were not seen by this witness in the Trial Court when he gave evidence. He found profuse bleeding from the body of the deceased after the incident was over. Deceased was slowly moving towards the house of P.W.5. However, deceased fell down in the passage. This witness as well as P.W. Pochu, Rajua, Jawahar, P.W.9 Lakshmi, Ashok, Jato alongwith this witness came near the deceased and they lifted the deceased in a taxi and thereafter Rajua, Jawahar and P.W.9 Lakshmi took the deceased to Medical College Hospital. About half an hour thereafter P.W.4 Madan Paramanick returned to the place of occurrence. He saw large quantity of blood at the place of occurrence where deceased was first assaulted. Little thereafter P.W.9 Lakshmi alongwith Jawahar and Rajua returned from the Hospital and reported him that the deceased had succumbed to his injuries. On enquiry when P.W.9 Lakshmi could learn that police was not informed about the incident till then, he went away to inform the police about the incident over telephone. After a while police came there and recorded the statements of witnesses. He further gave description of the wearing apparels of the deceased at the time of occurrence. Said wearing apparels being blood stained were identified by this witness and marked as material exhibits. He also saw P.W.9 Lakshmi, sister-in-law (wife of elder brother) of the deceased and one Rajua lifting the body of the deceased in a taxi and proceeded for hospital. Since then he was at the place of occurrence till arrival of the police party. Said wearing apparels being blood stained were identified by this witness and marked as material exhibits. He also saw P.W.9 Lakshmi, sister-in-law (wife of elder brother) of the deceased and one Rajua lifting the body of the deceased in a taxi and proceeded for hospital. Since then he was at the place of occurrence till arrival of the police party. Burtolla P.S. is about five minutes walk from the scene of occurrence. However, from the FIR it appears that the P.S. is situated at a distance of about 3/4 kms. from the place of occurrence. Little after arrival of Lakshmi Paul from hospital, P.W.4 Madan Paramanick came to the place of occurrence again. This witness discussed about the assailants with P.W.4 Madan Paramanick. He saw P.W.4 Madan Paramanick making statement to the police and the same was recorded by the police. It was around 4/4.30 p.m. in the shop of Ram Jeevan situated nearby where statement of P.W.4 was reduced into writing by the police. During cross-examination he gave further details about the incident. He further stated during his cross-examination that police took photographs of the place where deceased was assaulted and also of the place where the deceased had fell down. He also claimed to have talked with P.W.9 Lakshmi Paul when he returned from the hospital. On going through the statement of this witness during cross-examination we do not find anything to effect the credibility of this witness. Statement of this witness is more or less identical with the statement of another witness namely, P.W.4 Madan Paramanick. Therefore, they corroborate each other in all material particulars including identification of the appellants. 8. Next eye-witness is P.W.6 Bablu Saha alias Pochu. He had a video cassette shop on the crossing of Haritukibagan Lane and Vivekananda Road. He knew Bhodu who was his friend. On the date of occurrence at about 1.30/1.40 p.m. this witness alongwith P.W.5 Dilip Basu alias Dilu and deceased Bhodu were sitting on the eastern roak of the sweetmeat shop of Rabindranath Ash. P.W.4 Madan Paramanick was sitting on a stool. They were gossiping together. At this time appellants Narayan, Kala alias Kishore Ghosh, Nepali, Betia and Prince and one unknown person came there and began to abuse them in filthy language. Appellant Narayan had a knife in his hand, Prince had a razor in his hand. Nepali had a bada (cobbler's knife) in his hand. They were gossiping together. At this time appellants Narayan, Kala alias Kishore Ghosh, Nepali, Betia and Prince and one unknown person came there and began to abuse them in filthy language. Appellant Narayan had a knife in his hand, Prince had a razor in his hand. Nepali had a bada (cobbler's knife) in his hand. Others did not carry any weapon with them. When they had been so abusing them, deceased Bhodu tried to run away but he was caught by Kala and he began to assault the deceased Bhodu on his face and chest with fist and blows.8imultaneously Narayan began to assault the deceased with a knife and appellant Nepali with bada. At that time Betia and one unknown person were guarding the other witnesses so that they may not run away from the place of occurrence. Prince also started assaulting the deceased with a razor. At this point of time P.W.4 Madan Paramanick fled away towards Bidhan Sarani through Vivekananda Road and P.W.5 Dilip Bose fled away towards his house. P.W.6 also slowly moved towards his shop and stood there. After assaulting Bhodu, the appellants and other miscreants including the unknown man fled away towards Amherst Street through Vivekananda Road with weapons in their hands. This witness further identified accused Betia, Nepali and Narayan in the dock before the Trial Court. After the assailants of Bhodu went away, this witness proceeded to the place where the deceased had been assaulted and saw some blood marks on the ground. He also saw deceased slowly moving towards his house in the north by pressing his chest with his hand. But the deceased fell down in the passage near his house on the Haritukibagan Lane. He also saw Ashok and Jato standing in front of "Bagri House". He then saw P.Ws. Dilip, Lakshmi, Jawahar and Rajua also. Lakshmi, Jawahar and some others brought a taxi and lifted the deceased in the taxi and thereafter Lakshmi, Jawahar and Rajua proceeded for the hospital in that taxi with injured Bhodu. About an hour after that P.W.9 came back and reported that Bhodu had already succumbed to his injuries. On enquiry when Lakshmi was told that police was not informed about the incident, he went to a shop on Vivekananda Road and informed the police about the incident over phone. Soon after that police party arrived at that place and statements were recorded. On enquiry when Lakshmi was told that police was not informed about the incident, he went to a shop on Vivekananda Road and informed the police about the incident over phone. Soon after that police party arrived at that place and statements were recorded. He identified the photograph of the deceased being Ex-10 and also photograph of the place where deceased fell down in the passage on Haritukibagan Lane. He further described the wearing apparels of the deceased at the time of the occurrence. All these blood-stained wearing apparels were marked as material exhibits. On being shown exhibits 17 and 7, this witness further stated that he could recognise the bada (cobbler's knife) carried by Nepali and the razor carried by Prince respectively. We have perused the statement made by this witness in course of his cross-examination. But we find nothing material to affect the credibility of this witness. Of course there were some omissions brought on record during the cross-examination of this witness. But these omissions are of minor nature and much importance cannot be attached to them. P.W.7 Jato Mitra Roy is also another important eye-witness. In his evidence he has stated that this witness alongwith P.W.8 Ashok Shaw was proceeding along the Haritukibagan Lane at the crossing of Haritukibagan Lane and Vivekananda Road on 29.2.88 at about 1.30/1.35 p.m. They were so proceeding towards the video cassette shop of P.W.6 Pochu. When they reached in front of Bagri House, they saw Bhodu running away and Kala after a short chase caught hold of him and began to assault him on his chest and face with fist and blows. Simultaneously Nepali and Narayan began to assault the deceased with a weapon like knife. They also saw Betia and Prince and one unknown person were guarding other companions of the deceased, namely, Pochu, Mona and Dilu near the front roak of the shop of Ashish. Then they further saw that Prince left Pochu, Mona and Dilu and then he proceeded towards Bhodu and began to assault him with a razor. At this moment P.W.4 ran away towards Bidhan Sarani and Dilu came inside Haritukibagan Lane. P.W.6 Pochu fled towards Maniktala. The assailants of the deceased after assaulting him fled away towards Maniktala through Vivekananda Road with their weapons. They all fled away after assaulting the deceased Bhodu. At this moment P.W.4 ran away towards Bidhan Sarani and Dilu came inside Haritukibagan Lane. P.W.6 Pochu fled towards Maniktala. The assailants of the deceased after assaulting him fled away towards Maniktala through Vivekananda Road with their weapons. They all fled away after assaulting the deceased Bhodu. The deceased with bleeding injuries pressed his chest and slowly went towards his house and fell down in the passage. They also saw blood in the passage where the deceased had fallen. Little after that Pochu, Dilu, Lakshmi and some other persons of the locality assembled there. Lakshmi brought a taxi and proceeded for the hospital in that taxi with injured Bhodu. About an hour after that P.W.9 Lakshmi and others returned to the place of occurrence and reported that Bhodu had already succumbed to his injuries. This witness further identified the accused Betia, Nepali, Kala and Narayan in the dock before the Trial Court. He further stated that this witness did not discuss anything about the incident with Lakshmi. He did not accompany Lakshmi when Lakshmi went to inform the police over phone. This witness further admitted that he did not discuss anything about the incident with P.Ws. Mona, Dilu, Pochu and Ashok after the incident. P.W.4 Mona returned to the place of occurrence after Lakshmi left for hospital with the deceased. This is in short the evidence given by this witness. P.W.8 Ashok Kr. Shaw was tendered by the prosecution and the accused declined to cross-examine him. 9. P.W.9 Lakshmi Paul is another witness in this case though he is not an eye-witness. In his evidence before the trial court he stated that he resides in premises No. 44A, Haritukibagan Lane. He runs a tea stall on Vivekananda Road in front of Bank of Baroda. On 29.2.88 at about 1.15 p.m. this witness was returning home to take his lunch. He saw P.Ws. Dilu, Mona, Pochu and the deceased Bhodu were gossiping on the eastern roak of the Sweetmeat Shop of Rabindranath Ash. However, he went straight to his house and took his lunch. After he had finished his lunch, this witness heard some hue and cry coming from the road side. He came out of his house and saw a large gathering of persons in front of the house of Bhodu. He further saw Bhodu was lying in a pool of blood in front of his house. After he had finished his lunch, this witness heard some hue and cry coming from the road side. He came out of his house and saw a large gathering of persons in front of the house of Bhodu. He further saw Bhodu was lying in a pool of blood in front of his house. On seeing this he immediately rushed to the Vivekananda Road and brought a taxi and with the help of Jawahar and Raju he lifted injured Bhodu in the taxi and he proceeded for Medical College and Hospital in that taxi. However, in the hospital after examining the deceased Doctor declared him dead. From there they returned to Haritukibagan Lane where this witness met P.Ws. Dilu, Pochu, Mona, Jawahar, Jato, Ashok and many other persons. He told them that Bhodu had already succumbed to his injuries. On enquiry he could learn that till then police was not informed about the incident and, therefore, he went to a nearby shop namely, ‘Dipak Iron Shop’ and from there he informed the Burtolla P.S. about the incident over phone. Thereafter he returned to his house, changed his blood-stained clothes and came back to Haritukibagan Lane. He also found police coming to the place of occurrence. His statement was recorded by the I.O. Police had seized one sandle and a brick from the place where blood had fallen. Police also seized blood from that place under a seizure list. As a seizure witness he put his signature on the seizure list. During cross-examination this witness admitted that he talked with P.Ws. Dilu, Mona and Pochu and others upon his return from hospital. However, he did not discuss with the aforesaid witnesses immediately upon his return from the hospital on the question as to how the incident had occurred. However, he discussed with them later on. He did not ask them about the names of the assailants of the deceased when he was going to a shop to inform the police station about the incident over telephone. Others also did not tell him about the names to the assailants of the deceased when he was going to inform the police over telephone. He merely reported to the police over phone that some persons had assaulted Bhodu alias Raj Kumar Jaiswal. In his presence photographer took photographs at the place of occurrence. Others also did not tell him about the names to the assailants of the deceased when he was going to inform the police over telephone. He merely reported to the police over phone that some persons had assaulted Bhodu alias Raj Kumar Jaiswal. In his presence photographer took photographs at the place of occurrence. Apart from the aforesaid nothing of importance could be elicited from this witness during cross-examination. It has been emphatically argued by the learned Counsel for the appellants that though this witness met the alleged eye-witnesses before reporting the matter to the police over phone, yet he could not give the names of assailants or anything about the incident to the police. From this fact it is contended by the learned Counsel for the appellants that none of the alleged eye-witnesses saw the occurrence and further that none of them could recognise the assailants and this is the reason why the alleged eye-witnesses did not disclose names of the assailants or anything about the occurrence to P.W.9 before he went to a shop to inform the police about this incident over phone. But, we are of the view that this witness clearly stated in his evidence that primary task before him was to inform the police which he did. Therefore, before he could report the matter to the police over phone, he did not waste time to collect the names of assailants. Perhaps it was upper most in the mind of P.W.9 to set criminal law in motion by reporting the matter to the police first instead of wasting time unnecessarily in collecting details of the incident including the names of the assailants. It is nothing unusual on the part of this witness. Failure of this witness to collect the names of the assailants or the details of the incident from the eye-witnesses before he went to a shop to report the matter to the police over telephone cannot be a ground for disbelieving the eye-witnesses if the account given by them appear to be fully trustworthy and inspire our confidence. Apart from this, there may be hundreds of reasons for P.W.9 in not divulging the names of the assailants to the police. Reasons are not very far to seek. Apart from this, there may be hundreds of reasons for P.W.9 in not divulging the names of the assailants to the police. Reasons are not very far to seek. It needs to be mentioned here that P.W.9 is also a poor man running a road side tea stall and, therefore, by divulging the names of the assailants to the police he perhaps did not think it wise to incur displeasure of the elements of nature of the appellants. Apart from the aforesaid, we do not find anything of importance from the cross-examination of this witness to disbelieve him. Evidence of P.W.9 cannot be pitted against the evidence of as many as four eyewitnesses if the evidence of such eye-witnesses is found to be fully credible and trustworthy. It must be mentioned here name of all these eye-witnesses are mentioned in FIR. 10. P.W.10 Dr. Shyamal Kumar Gope was a Medical Officer attached to the Calcutta Medical College and Hospital on 29.2.88. He was then posted in the emergency department of the said hospital. On that day at about 2 p.m. he had examined one Raj Kumar Jaiswal alias Bhodu in the emergency room of the said hospital. He was brought to the hospital by Lakshmi Kanta Paul (P.W.9). On examining Bhodu, P.W.10 declared him to be dead as he was brought dead in the hospital. The injury report that this witness had prepared is marked in this case in course of the trial as Ex-17. Evidence of this witness lends ample corroboration to the evidence of P.W.9. It further lends corroboration as to the time of occurrence as because the dead-body was brought to the hospital at about 2 p.m. and the prosecution case is that the incident occurred at about 1.40 p.m. His evidence further shows that the deceased was brought to the hospital from 44A, Haritukibagan Lane, Calcutta-6. This evidence supported by contemporaneous hospital record lends further corroboration to the prosecution case as to the time and place of occurrence. 11. P.W.11 Raja Thakur alias Rajua is another independent witness whose evidence lends indirect corroboration to the evidence of P.Ws. Lakshmi, Dilip and Pochu. His evidence is that he has a shop at Haritukibagan Lane. At noon time he came to his house to take meal and after taking meal when he came out he heard some local boys were discussing that the Bhodu had been stabbed. Lakshmi, Dilip and Pochu. His evidence is that he has a shop at Haritukibagan Lane. At noon time he came to his house to take meal and after taking meal when he came out he heard some local boys were discussing that the Bhodu had been stabbed. As he proceeded further, this witness saw the deceased Bhodu lying in a pool of blood in the passage leading to his house. He also saw P.Ws. Dilu, Pochu, Lakshmi Paul and many others. He also saw Lakshmi, Jawahar etc. calling a taxi and shifting the deceased in that taxi to the hospital. He also accompanied them to the hospital. After examining the deceased Doctor pronounced that he was dead. Thereafter he returned to the place of occurrence. After learning that police was not informed about the incident, P.W.9 Lakshmi Paul went to a nearby shop and reported the matter to the police over phone. His evidence lends indirect support to the evidence of Dilu, Pochu, Lakshmi Paul, Jawahar etc. At least it shows these witnesses were at the scene of occurrence at the relevant point of time. During cross-examination absolutely nothing could be brought out from this witness to affect his credibility. This witness and all other important prosecution witnesses are residents of that area. 12. P.W.12 Ananta Kumar Ghosh is a shopkeeper situated not very far from the place of occurrence. He sells biscuits, logenge and cosmetic goods. His shop is situated opposite to the crossing of Haritukibagan Lane and Vivekananda Road. On 29.2.88 from his shop he heard that P.W.9 Lakshmi called a taxi and found that Lakshmi alongwith Rajua and Jawahar sitting inside the taxi and the deceased Bhodu was lying in a pool of blood. Taxi went away. After that this witness closed his shop and learnt that Bhodu was stabbed. Evidence of this witness also lends support to the prosecution version so far as time and place of occurrence are concerned. It also lends support the prosecution story as to the place of occurrence apart from the fact some of the important witnesses were shifting the deceased in a taxi to hospital. This much of the prosecution version is supported by this witness P.W.12. Evidence of P.W.13 Narayan Singh is more or less similar to the evidence of P.W.12. It also lends support the prosecution story as to the place of occurrence apart from the fact some of the important witnesses were shifting the deceased in a taxi to hospital. This much of the prosecution version is supported by this witness P.W.12. Evidence of P.W.13 Narayan Singh is more or less similar to the evidence of P.W.12. Of course he further stated in his evidence that at about 2.45/3 p.m. P.W.9 Lakshmi returned from the hospital and told him that Bhodu who was taken to the hospital was dead. P.W.9 Lakshmi came to his shop and from his telephone informed Burtolla P.S. about the incident. Therefore, evidence of P.W.13 also corroborates the evidence of P.W.9 Lakshmi as to the fact that after returning from the hospital he informed the police station about this incident over phone from the shop of P.W.13. This part of the prosecution story is supported not only by P.W.13 but by a large number of prosecution witnesses. Except a vague and general suggestion to this witness that he deposed falsely, there is absolutely no cross-examination to hold that this witness made false statement before the trial court. It has not been suggested that this witness had any enmity with any of the appellants. Therefore, there is no reason as to why P.W.13 should not be believed. P.W.14 Smt. Mangala Jaiswal is the wife of elder-brother of the deceased. We have already seen from the evidence of some of the witnesses that this witness came to the place of occurrence soon after the incident. She stated in her evidence that on 29.2.88 at about noon time she took her lunch and at about 1.30/1.45 p.m. she heard that Bhodu had been murdered. Immediately on hearing this news she came out from her house and saw that the deceased was lying in a pool of blood on the passage of her house. She also saw P.W.9 Lakshmi to call a taxi immediately. Lakshmi and other local boys brought a taxi and lifted the deceased in the same and proceeded for the hospital. She also helped in lifting the deceased on to the taxi and consequently her wearing sari was stained with blood. This is in short the evidence this witness gave before the trial court. Lakshmi and other local boys brought a taxi and lifted the deceased in the same and proceeded for the hospital. She also helped in lifting the deceased on to the taxi and consequently her wearing sari was stained with blood. This is in short the evidence this witness gave before the trial court. Another important statement she made during cross-examination is that the deceased took a meal with rice on that day at about 12/12.30 p.m. He also took fish in his meal. Evidence of this witness lends support to the evidence of P.W.9. Her evidence does not disclose that she had enmity with anybody. The cross-examination also does not disclose any material whatsoever to discard the testimony of this witness. 13. P.W.15 Moti Shaw stated in his evidence that on 21.3.88 at about 3 p.m. he was standing with Ashok Seth. Police came there with two arrested persons and on the request of the police he became witness of seizure of some weapons of offence at the instance of the two accused persons. On being asked by the police one of the accused persons informed the police that he would be able to bring out weapon. And he pointed out a hole in the wall of premises No. 192, Vivekananda Road and brought out therefrom a cobbler's knife used for cutting leather by the cobblers. Said cobbler's knife was stained with blood. Police seized it under a seizure list on which P.W.15 Moti Shaw gave his L.T.I. The second arrested person also informed the police that he had kept the weapon inside a lane and thereafter he took the police and other witnesses to premises No. 15, Barick Lane and 192, Vivekananda Road and on removing a stone slab he brought out a razor hidden under the stone. Police seized the said razor under a seizure memo and this witness being P.W.15 put his L.T.I .therein. Both the weapons of offences were marked as material exhibits. Similar is the evidence of P.W.16 Ashok Seth. He was also witness of seizure of the aforesaid weapons at the instance of two arrested persons. His evidence is exactly similar to the evidence of P.W.15 Moti Shaw. 14. P.W.I7 Amitava Chakraborty is the proprietor of a photographic studio being "Techno Colour Studio". From his studio police seized some colour photographs and negative prints thereof under seizure list. He was also witness of seizure of the aforesaid weapons at the instance of two arrested persons. His evidence is exactly similar to the evidence of P.W.15 Moti Shaw. 14. P.W.I7 Amitava Chakraborty is the proprietor of a photographic studio being "Techno Colour Studio". From his studio police seized some colour photographs and negative prints thereof under seizure list. P.W.18 Manik Kumar Modak stated in his evidence that he is an employee of the Sweetmeat Shop of Rabindranath Ash which is situated on the crossing of Haritukibagan Lane and Vivekananda Road. On 29.2.88 he was in the shop. After taking his lunch he was taking rest. At about 1.45 p.m. he heard some hue and cry saying 'murder, muder' on hearing this hue and cry he came out of the shop and found P.Ws. Rajua and Lakshmi Paul went inside the said Haritukibagan Lane with taxi. He further saw the said taxi proceeding towards Vivekananda Road with Rajua, Jawahar, Lakshmi and Bhodu (since deceased) sitting inside. Shirt of Bhodu was stained with blood. He also noticed blood stains in between the shops of Dilip and Bhola on Haritukibagan Lane. Later on he learnt from Lakshmi that Bhodu was dead. This is in brief the evidence given by this witness during examination-in-chief. There is nothing important in his cross-examination to discredit him. P.W.19 Ramjiban Shaw was tendered by the prosecution. During cross-examination also he stated nothing of importance. P.Ws. 20 and 21 were also tendered by the prosecution. There was no cross-examination of these witnesses on behalf of the appellants. P.W.22 Naba Kumar Saha is the witness of seizure of sample of blood, one full brick, hawai chappal etc. Blood was seized from two places. He put L.T.I. on the seizure lists. The seized materials were marked as material exhibits. 15. P.W.23 was Metropolitan Magistrate on being directed by Additional Chief Metropolitan Magistrate, he held T.I. Parade in the Presidency Jail at Calcutta. In the T.I. Parade two suspects namely Prince alias Shouvik Bhowmick and Kala alias Kishore Ghosh were placed. It was held on 29.3.88 when P.W.4 Madan Paramanick identified two suspects. P.W.24 Arjun Chandra Bera was a constable of Calcutta Police. On 18.4.88 he carried some exhibits to the Forensic Science Laboratory with a memo issued by Deputy Commissioner, Detective Department. P.W.25 Binod Behari Ghosh was also a constable of Calcutta Police. It was held on 29.3.88 when P.W.4 Madan Paramanick identified two suspects. P.W.24 Arjun Chandra Bera was a constable of Calcutta Police. On 18.4.88 he carried some exhibits to the Forensic Science Laboratory with a memo issued by Deputy Commissioner, Detective Department. P.W.25 Binod Behari Ghosh was also a constable of Calcutta Police. He took the dead body of the deceased to the morgue for post-mortem with relevant papers. He identified the dead body of the deceased before the Doctor who held post-mortem examination. 16. P.W.26 Dr. Apurba Nandy was the Head of the Department of Forensic and State Medicine in Medical College, Calcutta. On 1.3.88 he held postmortem examination over the dead body of the deceased being identified by a constable. Dead body was received at Calcutta Police morgue at 1.45 p.m. on 1.3.88 and post-mortem examination was held on the same day at 3.30 p.m. He found large number of cut marks/tearing of the wearing apparels of the deceased. During post-mortem examination he detected the following injuries:- "(1) One abrasion 3/4" x 1/2" placed on the right side of face 1/2" molar prominence. (2) One abrasion 1/2" x 1/3" placed on the right side of the face 1/2" above and medial of molar prominence. (3) One incised wound of 1/4" x 1/8" x skin deep over the right molar prominence of the face. (4) One abrasion 2" x 3/4" placed on the right side cheek of the face. (5) One abrasion 1/4" x 1/4" placed on the inner aspect of the upper lip against upper right central incisor. (6) Fracture of upper right central incisor with missing of a small piece. (7) Dislocation of right upper lateral incisor with evidence of extravasation in the socket red in colour. (8) One incised wound 1/4" x 1/8" x skin placed at the medial end of right eye-brow. (9) One incised wound 1/2" x 1/6" x skin placed at the medial end of right eye-brow. (10) One incised wound 1/2" x 1/8" x skin placed over mid part of lower 2/3rd forehead. (11) One stab wound 1/3" x 1/6" x 1/3" with sharp margins and angles placed on the left temple, 1" behind and lateral end of left eye-brow. (12) One stab wound 1/3" x 1/6" x 1/3" with sharp margins and angles placed on the left temple 1/2" behind and below. (11) One stab wound 1/3" x 1/6" x 1/3" with sharp margins and angles placed on the left temple, 1" behind and lateral end of left eye-brow. (12) One stab wound 1/3" x 1/6" x 1/3" with sharp margins and angles placed on the left temple 1/2" behind and below. (13) One incised wound 3/4" x 1/2" x skin placed in front of right arm 1" below acromion process of right clavide. (14) One abrasion 3/4" x 1/2" x left elbow against lateral spicondy of humerus. (15) One liner abrasion 1/2" long placed on the posterolateral aspect of middle and lower third of left arm. (16) One incised wound 1/3" x 1/4" x skin placed on the mid part of dorsum of first phallan of last and little finger. (17) Multiple abrasions size varying between 1" x 1/4" to 1/2" x 1/8" placed all over the pina of right ear. (18) Linear abrasion 6" x 1/8" placed on the left flank of abdomen and left side back of abdomen. (19) One stab wound 1/3" x 1/4" x muscle with sharp margins and angles placed at the inferior angles of left scapula on back. (20) One abrasion 1/3" x 1/2" placed on the back 3" below left shoulder and 2" left of medial angle of left scapula. (21) One linear abrasion 5" long placed transversly 1" below and behind left shoulder line. (22) One stab wound 1/4" x 1/6" x 1/4" on the back 3/4" right of spine of 2nd thoracic vertebrae. (23) Multiple abrasions over an area of 6½” x 4” placed on the back of abdomen across the midline. Size varied from 1/2" to 1/2" and 1/4" to 1/4". (24) One incised wound 1" x 3/4" x skin placed on the left side of waist. (25)One penetrating wound 1" x 2/5" x chest cavity, margins and angles sharp, placed 1/2" left of midline at the level of 2nd intercostal spaces 52½ from left heel. On tracing the track of the wound it was seen to have passed through skin, soft tissues including muscle of the 2nd intercostal space, entered the chest cavity and then passed through the pleura and whole the thicknels of upper part of upper lobe of left lungs and terminated after making a tent of 1/3" long at the enterior aspect of arch of aoita. (26) Chest cavity contained 1½ litre of liquid blood." 17. (26) Chest cavity contained 1½ litre of liquid blood." 17. He further observed that the abrasions were reddish in colour and these abrasions were not stabbed wounds. Incised wounds had sharp angles and sharp reddish swollen margins. Stab and penetrating wounds had also sharp angles and margins. Margins were reddish in colour and were swollen and inverted. He gave further details about these injuries. He found left lung showed injury. All the injuries were found ante-mortem and homicidal in nature and that these were not result of any accident nor these injuries were self inflicted. According to his opinion injury No. 25 alone was sufficient to cause death in ordinary course of nature. All the injuries together in ordinary course of nature had cumulitive effect of causing death of a person but in this particular case injury No. 25 alone was found to cause death. On examining the stage of digestion of the meals found in the stomach of the deceased this witness opined that the principal meal was taken by the deceased about one and half hours before his death. Linear abrasion could be caused by a pointed weapon or by nail. Other abrasions were result of friction of hard and blunt substances. Fracture and fracture dislocation of teeth being injury Nos. 6 and 7 could be caused by fist blows or similar blows. He also found injury Nos. 1, 2, 4, 5, 14 and 17 were caused by hard blunt or hard substances or weapons. Incised injuries were caused by sharp edge of a cutting weapon like knife or razor. Penetrating wounds could have been caused by sharp cutting pointed weapons. He also opined that weapon like material exhibit (IV) capable of causing stab wound, incised wound, abrasion, lacerated, bruise. Material exhibit (V) was capable of inflicting incised wound. During cross-examination he further opined that he found un-digested rice in the stomach. This is in short the evidence given by P.W.26. 18. P.W.27 R.N. Thakur was posted as Sub-Inspector of Police at Burtolla Police Station. He arrested accused Nepali alias Uttam Mahato, Shouvick Bhowmick alias Prince and Kala alias Kishore Ghosh on 9.3.88 at about 4.15 a.m. Similarly P.W.28 being a Sub-Inspector of Police arrested accused Betia on 4.3.88 in connection with this case. He also arrested accused Narayan Saha on 13.10.88. 19. He arrested accused Nepali alias Uttam Mahato, Shouvick Bhowmick alias Prince and Kala alias Kishore Ghosh on 9.3.88 at about 4.15 a.m. Similarly P.W.28 being a Sub-Inspector of Police arrested accused Betia on 4.3.88 in connection with this case. He also arrested accused Narayan Saha on 13.10.88. 19. P.W.29 Shabir Ahmed was on duty on 29.2.88 at Burtolla P.S. as a Sub-Inspector of Police. On that day at about 3-05 p.m. he received an information over phone from P.W.9 Lakshmi Paul that he removed deceased with bleeding injuries to Calcutta Medical College and Hospital at about 2 p.m. He recorded the said information/message in the G.D. of the Police Station being G.D. entry No. 2226 dated 29.2.88. The G.D. entry was marked as Ext. (20). Immediately after that this witness alongwith O.C. of the Police Station and some other officers/police staff left for 45/1, Haritukibagan Lane and on reaching this spot he found some persons had assembled there. He also noticed some blood in the narrow passage to the said premises at 45/1, Haritukibagan Lane. He also noticed some blood marks in front of premises No. 49, Haritukibagan Lane. At that place P.W.4 Madan Paramanik made a statement which he reduced into writing and obtained signature of Madan Paramanik thereon. He arranged some photographer to take photographs of the places having blood marks. Soon after that this witness went to the Medical College and Hospital and on reaching the said hospital at 15.40 p.m. he learnt from the Medical Officer on duty at the emergency that deceased had already succumbed to his injuries. Soon after that he returned to the place of occurrence and recorded the statement of various witnesses mentioned in his evidence. He returned to the P.S. at 19.00 hours and registered the complaint recorded from P.W.4 Madan Paramanik as an F.I.R. He took all other necessary steps in connection with investigation of the case. On 9.3.88 on the instruction of superior officer he handed over the C.D. to Homicide squad of Detective Department for further investigation. Thereafter P.W.30 Samir Kumar Ganguly investigated the case. Subsequently on 17.3.88 accused Nepali and accused Prince alias Shouvick led the police party to respective places and brought out two weapons of offences, as already stated. 20. This is in short the entire evidence on record. Thereafter P.W.30 Samir Kumar Ganguly investigated the case. Subsequently on 17.3.88 accused Nepali and accused Prince alias Shouvick led the police party to respective places and brought out two weapons of offences, as already stated. 20. This is in short the entire evidence on record. During examination of the appellants under section 313 Cr.P.C. They merely stated that the allegations against them are all false and they are innocent. No specific plea in their defence was taken by them. 21. We have heard learned Counsel for both sides. Learned Counsel for appellants vehemently contended that though P.W.9 Lakshmi Paul arrived at the place of occurrence immediately after the incident and took the deceased to hospital and after returning to the place of occurrence from the hospital and after returning to the place of occurrence from the hospital he met number of eye-witnesses before giving information to the P.S. about this incident over phone, yet P.W.9 did not divulge names of the assailants or anything about the incident to the police. Relying upon these circumstances learned Counsel for the appellants contended that none of the alleged eye-witnesses saw the occurrence or that at least they failed to recognise the assailants and this is the reason why they did not divulge the names of the assailants to P.W.9 before P.W.9 gave intimation over phone to the P.S. However, P.W.9 repeatedly stated in course of cross-examination that he did not ascertain names of the assailants from the alleged eye-witnesses as he did not know that the alleged eyewitnesses saw the occurrence. The alleged eye-witnesses also stated in their evidence in course of their cross-examination that they did not divulge names of the assailants to P.W.9 before he sent the message about this incident to the P.S. over phone. Furthermore, reason why P.W.9 did not divulge the names of assailants in telephonic message to the P.S, even if he learnt the same from the alleged eye-witnesses are perhaps not very far to seek. P.W.9 was a poor road side tea stall owner. It was rather risky for him to incur displeasure of the assailants by divulging their names to the police. That may be the reason why he did not divulge names of the assailants to the P.S. while giving information about this incident over phone provided he learnt names of appellants. P.W.9 was a poor road side tea stall owner. It was rather risky for him to incur displeasure of the assailants by divulging their names to the police. That may be the reason why he did not divulge names of the assailants to the P.S. while giving information about this incident over phone provided he learnt names of appellants. Furthermore, perhaps it was upper-most in the mind of P.W.9 to immediately inform the police about his incident without further loss of time. Perhaps for this reason he did not want to waste time by collecting details of the incident or the names of the assailants before bringing the matter to the notice of the police over phone so that police may take timely action. For failure of P.W.9 to collect the names of assailants from eye-witnesses and for his further failure to give such names in his message to Burtolla P.S. over phone, we cannot discard the testimony of so many eye-witnesses corroborated by a large number of witnesses about what they heard from the eye-witnesses. The evidence of eye-witnesses sounds fully credible. If this is so, it may not be proper to discard their testimony on the sole ground that P.W.9 did not collect the names of the assailants from eye-witnesses nor did he divulge the names of the assailants to the police over phone. 22. Learned Counsel for the appellants also referred to various parts of the cross-examination to point out that these witnesses substantially developed their statements before the trial court though they omitted to mention many of such statements before the police when their statements were recorded under section 161 Cr.P.C. We have thoroughly scanned the evidence of these witnesses vis-a-vis the evidence of the two Investigating Officers. On perusal of the same we are of the view none of these omissions are at all material. For such omissions the evidence of eye-witnesses cannot be discarded as they sound to be fully trustworthy. Their evidence is fully corroborated by those witnesses who arrived at the place of occurrence immediately after the incident. Such statements are clearly admissible under section 157 of the Evidence Act if not under section 6. We are not expressing any opinion whether statement of witnesses who heard the eye-witnesses divulging the names of assailants to be admissible under section 6 of the Evidence Act as forming part of the res gestae. Such statements are clearly admissible under section 157 of the Evidence Act if not under section 6. We are not expressing any opinion whether statement of witnesses who heard the eye-witnesses divulging the names of assailants to be admissible under section 6 of the Evidence Act as forming part of the res gestae. But such statements are at least admissible under section 157 of the Evidence Act to lend corroboration to the testimony of the eye-witnesses. Testimony of the eye-witnesses is also substantially corroborated though indirectly, the evidence of the Doctor who declared him dead at Calcutta Medical College and Hospital as regards the question of time and place of occurrence. Evidence of Doctor of the emergency ward of Calcutta Medical College and Hospital lend indirect corroboration to the testimony of eye-witnesses a part from evidence of P.W.9 and others. Further evidence of eye-witnesses as to the place of occurrence and also time of occurrence is fully supported by the subsequent G.D. entry made at the P.S. pursuant to the information received by the said P.S. from P.W.9 over telephone. The G.D. entry is a documentary evidence and lends full support to the prosecution evidence as to the place of occurrence and also time of occurrence. Blood was seized from two places at or about the place of assault and these facts further lend support to the evidence of eye-witnesses. All these eye-witnesses and other important prosecution witnesses are local residents of the area in which the incident occurred and hence they are all natural witnesses. After considering the entire facts on record we are left with not even an iota of doubt in our mind that it is the appellant alongwith other accused persons who had assaulted the deceased in the manner and at the time and place as alleged by the eye-witnesses. 23. Now, the question is whether under the circumstances of the case it was proper for the trial court to convict the appellants under sections 302/34 I.P.C. In this respect evidence of P.W.26 Doctor Apurba Nandy is very important. Most of the injuries inflicted on the deceased are of simple nature bearing injury No. 25 and some other injuries which resulted in dislocation of teeth are of course grievous. Only injury No. 25 is found to be fatal. Other injuries individually could not have been fatal to the deceased. Most of the injuries inflicted on the deceased are of simple nature bearing injury No. 25 and some other injuries which resulted in dislocation of teeth are of course grievous. Only injury No. 25 is found to be fatal. Other injuries individually could not have been fatal to the deceased. Most of these injuries are superficial in nature. We have already quoted in this judgement herein above the details of the injuries found on the person of the deceased during autopsy. There is no evidence-on-record as to exactly when injury No. 25 being the fatal injury was inflicted upon the deceased. There is also no evidence as to who had inflicted the fatal injury No. 25. Evidence does not show that after injury No. 25 was inflicted upon the deceased, appellants inflicted further injuries upon him. For these reasons it is very difficult for us to hold that all the appellants shared a common intention to murder the deceased. 24. The essential constituent of vicarious criminal liability prescribed by or under section 34 I.P.C. is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by anyone of them Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly so the existence of a combination of persons sharing the same common intention is one of the features of section 34. In this connection we may refer to the decision of the Apex Court in Brathi vs. State of Punjab, (1990) 1 SCC 519. Common intention should be gathered from one's own overt acts and not from what others did subsequently. In one case Apex Court found appellants causing simple injuries with sticks. Thereafter, the main accused inflicted fatal injuries with a chopper. In these circumstances Supreme Court held in A. Mohanam vs. State of Kerala, (1990) Supp SCC 66, that appellants could not be held to have shared common intention with the main accused. Appellants were, therefore, held to be liable for conviction under sections 323/34 I.P.C. and not under sections 302/34 I.P.C. 25. In this case also there is no evidence as to who inflicted the fatal injury No. 25. Appellants were, therefore, held to be liable for conviction under sections 323/34 I.P.C. and not under sections 302/34 I.P.C. 25. In this case also there is no evidence as to who inflicted the fatal injury No. 25. All other injuries are by and large simple barring the injuries which resulted in dislocation of teeth which may be designated as grievous injury. There is also no evidence as to when exactly these grievous injuries were inflicted upon the deceased. Prosecution could not adduce any evidence as to whether after injury No. 25 was inflicted on the deceased the appellants inflicted any further injury upon the deceased. It is also not the case of the prosecution that at or about time of occurrence any of the appellants exhorted to kill the deceased. From their utterances it is not evident as to whether they had common intention to kill the deceased. 26. Similarly from Rana Pratap vs. State of Haryana, (1983) 3 SCC 327 , it appears that on the date of occurrence deceased and his brother while proceeding towards their shop met the three accused persons, namely, M, R and S who were coming from the opposite direction. M shouted that he would teach a lesson to the deceased who had insulted him. Thereupon R & S caught hold of the deceased and M gave him stab injuries. The brother of the deceased then attacked the accused persons with his belt and a milk vendor and a fruit hawker who witnessed the occurrence threw brick bats at the accused. In these circumstances Supreme Court held in this case that evidence is not very clear whether R and S continued to hold deceased even after M stabbed the deceased. Neither R nor S is alleged to have said anything to indicate that they wanted the deceased to be done away with. There is nothing to indicate that they knew that M would cause fatal injuries to the deceased, though they must have anticipated that he would cause grievous injuries to the deceased. In the circumstances, the Supreme Court concluded in this case, though with little hesitation, that common intention of R and S to murder the deceased was not established beyond reasonable doubt. In the circumstances, the Supreme Court concluded in this case, though with little hesitation, that common intention of R and S to murder the deceased was not established beyond reasonable doubt. However, in the facts and circumstances of this case it was held by the Supreme Court that common intention to inflict grievous hurt to the deceased was made out so far as accused R and S are concerned. 27. In our present case there is absolutely nothing that all the appellants shared common intention with the author of the injury No. 25 to murder the deceased. There is nothing on record that after the fatal injury No. 25 was inflicted, the appellants inflicted any further injury upon the deceased. Like wise there is nothing on record from the uttrences of the miscreants that their intention was to kill the deceased. In these circumstances it is very difficult for us to attribute any such common intention to the appellants that they jointly wanted to kill the deceased. In the absence of any such evidence, we are unable to hold that the appellants shared the common intention of inflicting the fatal injury like injury No. 25. That being deposition, and deceased having sustained some grievous injuries in the form of dislocation of teeth and all of them having been armed with some weapons capable of inflicting such injuries, as were likely cause injury like injury No. 25, we are constrained to hold that all the appellants shared the common intention to commit culpable homicide not amounting to murder. We may refer in this connection another decision of the Apex Court in Gopal Singh vs. State of Bihar, 1995 SCC (Crl) 146. In this case the Supreme Court found that the fatal injury resulting in death of the deceased was inflicted by A-1. Remaining accused inflicted other injuries with sticks not using much force. In these circumstances the Supreme Court held in this case that the co-accused had no common intention or object to cause death. Therefore, A-1 was rightly convicted under section 302. However, co-accused was convicted under sections 325/34 I.P.C. 28. In the circumstances we are constrained to hold that there is no doubt about the participation of the appellants in the incident. Therefore, A-1 was rightly convicted under section 302. However, co-accused was convicted under sections 325/34 I.P.C. 28. In the circumstances we are constrained to hold that there is no doubt about the participation of the appellants in the incident. We have also no doubt in our mind to hold that they shared common intention to inflict such injuries as were likely to cause death of the deceased. In the absence of any evidence as to who inflicted fatal injury No. 25 or as to whether any further injury was inflicted upon the deceased after he sustained injury No. 25 or that there being no evidence that by their words or other acts the appellants or other accused persons exhibited any indication of intention to murder the deceased, we are constrained to hold that none can be convicted for inflicting the fatal injury No. 25, whether vicariously or directly. The appellants can at best be convicted under sections 304 Part-II/34 I.P.C. Accordingly we alter the conviction of the appellants from sections 302/34 to one under sections 304 Part-II/34 I.P.C. and accordingly sentence them to suffer R.I. for 10 years. As the appellants Nepali @ Uttam Mahato @ Udma and Narayan @ Narayan Sahu have already served out more than 10 years rigorous imprisonment, we direct that they be set at liberty immediately. However, Trial Court shall take all necessary steps for execution of the remaining part of the sentence in so far as appellant Kala @ Kishore Ghosh is concerned. It needs to be mentioned here that pursuant to an order passed by this court, said Kala @ Kishore Ghosh was released on bail. Office is further directed to send down the records of this case alongwith a copy of this judgement to the Trial Court immediately. Appeal is thus partly allowed and accordingly disposed of. N.C. Sil, J. : I agree. Appeal partly allowed.