P. K. BISWAS, J. ( 1 ) THIS appeal is directed against the judgment and order dated 21/08/1989 passed by Sri M. K. Basu, learned Additional Sessions Judge, 2nd Court, Hooghly in Sessions Trial Case No. 211 of 1984 whereby and whereunder the appellants were convicted and sentenced for an offence punishable under Section 304 (Part I) read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 500/- each in default to suffer rigorous imprisonment for 1 month more. ( 2 ) THE learned trial Judge also convicted all the appellants for the offences punishable under Section 323 read with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 6 months. ( 3 ) THE learned trial Judge also convicted appellant No. 4 Uttam for commission of offence punishable under Section 307 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 3 years and also to pay a fine of Rs. 500/- i. d. to suffer further R. I. for one month and also ordered that the sentences imposed on the appellants on each counts shall run concurrently. ( 4 ) THE facts leading to the filing of the this Sessions Trial are as under : one Sajanikanta Jana (since deceased) of village Hauli and three sons, namely Kanai Chandra Jana, Balai Chandra and Basudeb Chandra Jana and all of them used to reside in their father's house, but separately. Kanai used to reside at the western portion of the house, Balai used to reside at the middle portion of that house and Basudeb used to reside at the eastern portion of that house. There was a drawing room in the middle portion of the house and Kanai along with his family members used to possess that drawing room till the morning of 27th Magh, 1388 B. S. , on which date he shifted to a new house constructed by his father Sajanikanta Jana. There was a drawing room in the middle portion of the house and Kanai along with his family members used to possess that drawing room till the morning of 27th Magh, 1388 B. S. , on which date he shifted to a new house constructed by his father Sajanikanta Jana. But Kanai at the time of shifting to a new house, put the drawing room under lock and key and handed over the key of that drawing room to his father Sanjikanta and at this Balai Jana, the 2nd brother of Kanai raised a hue and cry saying that this drawing room belonged to him and he would not allow anyone to keep the same under lock and key and after saying this, he put another lock upon the lock already put by Kanai. Over this issue, there was a quarrel between the co-sharers. ( 5 ) AT about 1. 30 p. m. of the same date, Satish Jana, son of Kanai Jana was then taking straw towards their cowshed along the Panchayat road when Swapan Jana, another son of Balai Jana challenged him saying that he had no right to go through that road belonging to them and he threatened him by saying that he will make him a lame man. In reply Satish told him that he was going along a public road and Swapan had nothing to say in that matter and over this issue, altercations ensued between them when Basudeb Jana came there and enquired from them that what had happened and at that Swapan became furious and told that he would show him what had happened and saying this he went inside his house which was to the north of that place where they were then standing and Basudeb then was standing upon a machan nearby lying to the east of that place. Little later, Satish found Swapan Jana to come out from their house being accompanied by his father Balai Jana and his two brothers namely Uttam and Ashoke and at that time Satish also found Swapan to be armed with a shovel and the other three with lathis. Satish further noticed that those four persons were going towards the eastern side where Basudeb was then standing, facing towards east. Satish further noticed that those four persons were going towards the eastern side where Basudeb was then standing, facing towards east. Seeing this Satish shouted and cautioned Basudeb by saying that those four persons were going towards him to assault him and hearing the same Basudeb stood up at once, but at that time Swapan hit him on his head with the shovel from behind with great force and on receiving the assault, Basudeb fell down and thereafter the other three accused namely, Ashoke, Uttam and Balai went on assaulting him with lathis on his head. Kamala Bala Jana, mother of Satish came there at that time and tried to save Basudeb, but then Uttam Jana took out the shovel from the hand of Swapan and hit therewith on the head of Kamala. Seeing this Satish, his father, Kanai and his aunt, Lilabati who was the wife of Basudeb rushed there and began to raise hue and cry when they were also assaulted by the accused persons. On receiving the assault, Basudeb lost his consciousness and suffered bleeding injury on his head and Kamala also sustained bleeding injury on her head. Satish sustained injury on his left leg and Lilabati sustained injury on her left shoulder and Kanai also sustained injury on his person. Sajani Kanta also came there to intervene but he was also assaulted by the accused persons and he received injury on his left wrist and right elbow. ( 6 ) HEARING the cries of those injured persons, their neighbours namely Nabin Dhara, Sonatan Jana, Kartick Adak, Sambu Adak, Sambhu Jana and others came there and they also witnessed the occurrence. As the accused persons saw the above-named persons to come towards them, they fled away leaving their shovel and lathis at the place of occurrence. Basudeb was then taken to the thana first and therefrom to Tarakeswar-Baidyaput Primary Health Centre in a trolley driven by Nanda Dignath. As the condition of Basudeb was found to be critical, the doctors advised for his immediate shifting to Chinsurah Sadar Hospital and accordingly he was taken to Chinsurah Hospital and was admitted there, but on the next day he succumbed to such injuries. The other injured persons were treated at Tarakeswar-Baidyaput P. H. C. Kamabala Jana was however admitted in that health centre and others were discharged on the same date. The other injured persons were treated at Tarakeswar-Baidyaput P. H. C. Kamabala Jana was however admitted in that health centre and others were discharged on the same date. ( 7 ) THEREAFTER, Satish Jana came to Tarakeshwar P. S. on that very date and at about 3. 20 p. m. lodged a written F. I. R. before the police and on the basis of that F. I. R. Tarakeshwar P. S. Case No. 6 dated 10-2-1982 was started against the above-named four accused persons under Ss. 323, 325, 326 and 307, of I. P. C. and after the death of Basudeb S. 304 of I. P. C. was added in the case. Tarakeshwar Police after completion of the investigation submitted a charge-sheet against all the four accused under the above mentioned Sections of the Indian Penal Code and also for commission of the offence under S. 304, of the I. P. C. which being exclusively triable by the Sessions Court (sic) the case was committed before the Court of Sessions for trial and eventually the trial was held before the Court of the Additional Sessions Judge after framing the charge against all the four accused persons under S. 304 (Part I), I. P. C. read with S. 34, I. P. C. for causing the death of Basudev Jana and also under S. 323 read with S. 34, I. P. C. for causing hurt to Sajani Kanta Jana, Satish Jana, Kanailal Jana and Lilabati Jana and also under S. 307, I. P. C. against accused-Uttam Jana for attempting to cause the death of Kamala Jana by hitting on her head with a shovel. ( 8 ) THE defence case, as it appears, is that Kanai Jana did not put any lock on the door of that drawing room and it is the accused-Balai Jana who put the lock on that door of that drawing room in dispute. ( 8 ) THE defence case, as it appears, is that Kanai Jana did not put any lock on the door of that drawing room and it is the accused-Balai Jana who put the lock on that door of that drawing room in dispute. Further the case of the defence is that Sajani Kanta Jana, father of Balai, Kanai and Basudeb transferred the disputed drawing room by a registered deed long before the date of occurrence; but Kanai used to stay at that drawing room with his family as his house was not constructed completely and on the abovementioned date of occurrence, Kanai went to his new house and Balai put a lock on the door of that drawing room and then Kanai and Basudeb went to the Anchal and Thana for help but without any fruitful result. It is the further case of the defence that Kanai, Basudeb, Sajanikanta, Lilabati, Kamala and Satish came to take possession of that drawing room forcibly being armed with lathis etc. and then Balai protested and gave resistance when he was assaulted by those persons and Basudeb forcibly broke open that door of the drawing room with the help of a shovel and hearing the cries, Sonatan Jana, Kartick Yadav and others of the village came there and protested when all those persons fled away towards the house of Basudeb and at that time of such fleeing Basudeb fell down on an electric post lying on the road and then those persons started nursing Basudeb dropping their lathis there. ( 9 ) PROSECUTION in course of trial examined as many as sixteen witnesses to bring home the guilt of the accused persons but from the side of the defence only one witness namely D. W. 1, D. Bhattacharyya has been examined. ( 10 ) THE trial Judge after examination of the aforesaid witnesses and after hearing the arguments of both sides passed the impugned judgment by holding these accused-appellants guilty of the charges framed against them collectively and separately and accordingly he convicted and sentenced the appellants as mentioned at the outset. ( 10 ) THE trial Judge after examination of the aforesaid witnesses and after hearing the arguments of both sides passed the impugned judgment by holding these accused-appellants guilty of the charges framed against them collectively and separately and accordingly he convicted and sentenced the appellants as mentioned at the outset. ( 11 ) BEING aggrieved by and dissatisfied with the order of conviction and sentence imposed upon the appellants by the learned trial Judge, the appellants have come up in appeal alleging mainly that the assessment of the evidence on record by the learned Additional Sessions Judge is manifestly perverse inasmuch as it is the cardinal principle of law that the prosecution evidence must remain consistent both on the occular version and on the count of medical evidence and no Court can draw any inference or presumption to salvage the prosecution case which stands thoroughly contradicted by the opinion expressed by an expert on the question of injuries sustained by a victim. ( 12 ) IT has further been alleged that the learned trial Judge has acted with incurable illegality by convicting all the accused persons on the charge under S. 304 (Part 1) read with S. 34 of the Indian Penal Code, ignoring the three indispensable elements which are to be proved fundamentally for invocation of S. 34 of the Indian Penal Code namely pre-concert, presence and participation which according to the defence have not been proved in the present case beyond reasonable shadow of doubt. ( 13 ) IT has further been contended on behalf of the appellants that there has been miscarriage of justice on the part of the learned trial Judge as the learned trial Judge has failed to take into consideration the material contradiction and/or omissions in the statement of the eye-witnesses and the trial Judge has also failed to appreciate the evidence on record both ocular and medical version in their true perspective. Hence, they have come up in this appeal. ( 14 ) I have heard the learned counsel Sri Sekhar Basu for the appellants and Sri Ahindra Kumar Adhya for the State and Mr. Himangshu De on behalf of the de facto complainant. Mr. Basu and Mr. Adhya both the learned counsels representing the appellants and the State respondent have taken me through the evidence on record. ( 14 ) I have heard the learned counsel Sri Sekhar Basu for the appellants and Sri Ahindra Kumar Adhya for the State and Mr. Himangshu De on behalf of the de facto complainant. Mr. Basu and Mr. Adhya both the learned counsels representing the appellants and the State respondent have taken me through the evidence on record. ( 15 ) SRI Sekhar Bose, the learned counsel appearing for the convict/appellants contended before me that the learned trial Judge in holding the accused/appellants guilty of the offence punishable under S. 304 (Part I) read with S. 34 and under S. 323 read with S. 34 of the I. P. C. and for holding the accused-appellant Uttam Jana guilty of the offence under S. 307 of I. P. C. has strongly relied upon the evidence of P. Ws. 1, 2, 3, 5, 6, 12 and 13, although it has also been found by the trial Judge in his judgment that it was true that there are certain discrepancies between the P. Ws. on points like which witness came earlier or later and who was assaulted first and who last and the like. But, at the same time it was held by him upon placing reliance on certain decisions that the evidence of the witnesses is not to be rejected even if they give untrue, exaggerated and contradictory accounts in matters of the details when the main case of prosecution is substantiated by them. But, at the same time it was held by him upon placing reliance on certain decisions that the evidence of the witnesses is not to be rejected even if they give untrue, exaggerated and contradictory accounts in matters of the details when the main case of prosecution is substantiated by them. ( 16 ) SRI Basu has further contended that it is true that the duty of the Court is to assess the evidence of the witnesses with meticulous care to find out the truth and in doing so the Court has to take out the grains from the chaff or in other words Court is to discard the only exaggerate statements and to accept the cogent substantive evidence that has been adduced by the witnesses, but here in this case according to Sri Basu there is hardly any material to come to a finding that all the accused persons involved in this case had meeting of minds in concerted move, participation and presence in committing the offence under S. 304 (Part I) of I. P. C. ( 17 ) SRI Basu has further argued that the liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons will arise under S. 34 of I. P. C. , if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. ( 18 ) HE has further submitted that direct proof of common intention is seldom available; accordingly such intention can only be inferred from the circumstances appearing from the proved facts of the case and at the same time there must be a necessary inference from those circumstances. ( 19 ) HE has further submitted that unless a common intention can be inferred from the proved circumstance, the accused person will be liable for their individual act and not for the act done by any other person. ( 19 ) HE has further submitted that unless a common intention can be inferred from the proved circumstance, the accused person will be liable for their individual act and not for the act done by any other person. ( 20 ) NOW, drawing my attention to the evidence of P. W. 1 it has been submitted that although it has come out in the evidence that the locking of the drawing room as alleged was done in the morning, but with regard to the second phase of the incident, there is absolutely contradictory statement in the F. I. R. with that of the evidence of P. W. (Satish Jana) in Court in respect of accused-Balai and Swapan. Similarly, P. W. 3 (Lilabati) does not say by herself that she went for rescue of her husband, and it was in the evidence of P. W. 1 (Satish) that Lilabati came to the scene of occurrence on a much later stage, so witnessing of actual assault by Lilabati becomes doubtful. ( 21 ) DRAWING my attention to the evidence of P. W. 5 (Rathanath Mondal) it has been submitted by Mr. Basu that in his evidence this witness had made some sort of development in the narration of the incident and from close scrutiny of the evidence of this witness it will be revealed clearly that he was nothing but a chance witness. ( 22 ) SIMILARLY, pointing out to the evidence of P. W. 6 (Sambhu Nath Jana) to the effect that on going there he found that basudeb Jana, the youngest son of Sajanikanta Jana was lying in a pool of blood on the ground in front of the machan in unconscious condition and he also found Kamala Jana, wife of Kanai Jana, lying down by his side with bleeding injuries on her person specially on her head, it has been submitted that in view of the above evidence, the other portion of his evidence regarding witnessing the actual assault cannot at all be believed. ( 23 ) SIMILARLY, drawing my attention to the evidence of P. W. 7 (Niranjan Santra) it has been submitted by Sri Basu that close scrutiny of the evidence of this witness reveals clearly that all the accused persons were engaged in striking Basudeb with lathis and it was not possible for him to describe who assaulted whom and as such it was also difficult to place any reliance on the evidence of this witness for inflicting punishment on the accused-appellants. ( 24 ) DRAWING my attention to the evidence of P. W. 9, N. K. Chanda, retired A. S. I. , especially during his cross-examination wherein this witness has categorically stated that he found one injury on the head of the deceased, it has further been submitted by Sri Basu that the evidence of this witness falsifies the prosecution story that apart from striking Basudeb with shovel by Swapan Jana, Uttam, Balai and Ashoke went on assaulting Basudeb with their lathis with full force. ( 25 ) REFERRING to the evidence of P. W. 12 Rabin Dhara, it has been submitted by Sri Basu further that the scrutiny of the evidence of this witness reveals that he came after the alleged incident of assault and as such there is no point in placing any reliance on the evidence of the above witness to come to a finding with regard to the guilt of the accused persons for the offences charged. ( 26 ) SRI Basu has submitted further that the evidence of P. W. 14, Dr. Sukumar Dutta also does not support the prosecution story since this witness only witnessed one lacerated injury on the skull 1 inch x 1 inch and this witness did not notice any other injury on the person of Basudeb. ( 26 ) SRI Basu has submitted further that the evidence of P. W. 14, Dr. Sukumar Dutta also does not support the prosecution story since this witness only witnessed one lacerated injury on the skull 1 inch x 1 inch and this witness did not notice any other injury on the person of Basudeb. ( 27 ) UPON ultimate analysis of the prosecution evidence it has further been contended by Sri Basu that although in the instant case, the prosecution came with the main allegation of assault with shovel by accused-Swapan upon Basudeb, yet to rope in the other accused persons, another allegation has been levelled by the prosecution that accused-Asoke, Uttam and Balai who came there being armed with lathis also assaulted Basudeb with lathis in their hands on different parts of his body, but in fact the latter portion of the allegation has not been supported by the medical evidence and the doctor has only stated that there was only one injury on the parietal region of Basudeb and that being the position of the evidence, the application of provisions of S. 34 of I. P. C. has no manner of application in the instant case. ( 28 ) SRI Basu has further contended that in this particular case from the side of the defence, particular alibi has been taken that disputed drawing room was a part and parcel of Balai's share and as such he kept it under lock and key in the morning on the date of occurrence and subsequently at noon Kanai, Balai, Sajanikanta, Lilabati, Kamal and Satish came to occupy the said drawing room when Balai raised protest and then the abovenamed accused persons assaulted him and Basudeb broke open the door with the help of shovel and then having heard the cries, the neighbours Sanatan, Kartik and others came there and protested against their act. At that they fled towards the house of Basudeb and while fleeing away, Basudeb fell upon the electric post which was then lying there and then other accused persons started taking care of Basudeb. ( 29 ) SRI Basu has further contended that unexplained injury found on the person of Balai also goes to suggest the falsity of the prosecution allegation and all these facts, taken together certainly go to suggest the hollowness of the prosecution claim. ( 29 ) SRI Basu has further contended that unexplained injury found on the person of Balai also goes to suggest the falsity of the prosecution allegation and all these facts, taken together certainly go to suggest the hollowness of the prosecution claim. ( 30 ) IN opposing the aforesaid contention of the appellant, it had been contended by Mr. Adhya on behalf the State/opposite party and also on behalf of the de facto complainant that may be that there are some minor discrepancies in the evidence as has been adduced by examining P. Ws. 1, 2, 3, 5, 6, 12 and 13, but that does not in any way affect the merit of the prosecution case and from their evidence the charge under S. 304 (Part I) read with S. 34 of the Indian Penal Code and under S. 323 read with S. 34 of I. P. C. have been clearly established against all the four accused persons and from the evidence and materials on record, the charge under S. 307 of I. P. C. have also been established against the accused-appellant-Uttam Jana as it is now quite well settled principles of law, although there may be some exaggerated statements in the evidence of the prosecution for that the entire evidence of the witness is not to be discarded and it is the duty of the Court to find out the truth by sifting the grains from the chaff. ( 31 ) SRI Adhya has further contended that the accused persons took a pre-planned action in committing the aforesaid crimes and as such there was no reason for interfering with the punishment awarded against the accused persons. ( 32 ) I have given my anxious consideration with regard to the submissions made by the respective parties and I have also gone through the evidence on record and the judgment of the learned trial Judge wherein the learned trial Judge has discussed in detail and ultimately discarded both the plea taken by the defence by assigning cogent and adequate reasons. On scrutiny of the materials before me, I also find no reason to disagree with the reasons assigned by the learned trial Judge on those counts, firstly because the alibi of the specific defence that has been taken by the accused persons must have to be established by them by adducing some sort of cogent materials and evidence on record, but here in this particular case, as I find not an iota of evidence to that effect has been adduced by the defence to substantiate that defence taken in this case. ( 33 ) IN view of the above position of the evidence, the right of private defence or self-defence, as sought to be taken by the defence, in the present case, cannot at all be invoked. ( 34 ) IT has now become admitted position as per the evidence of the doctor that Basudeb received only one injury on his head and from the side of the defence, attempt was made to establish that Basudeb received such injury by a fall upon electric post which was then lying on the road and thus, he received such injury, but since that could not be established by any cogent evidence from the side of the defence, the only thing that remains in this case is that Basudeb received such injury due to the hitting by shovel on his head and that goes, therefore, to suggest clearly from the overwhelming nature of evidence as has been adduced in this particular case by prosecution witnesses including the medical evidence that it was Swapan and none else who was responsible for causing such injury on the person of Basudeb which ultimately took his life. ( 35 ) ON meticulous scrutiny of the evidence adduced from the side of the prosecution, I find that the allegation of assault upon Basudeb with lathis by the other accused persons, however, has not been properly established as the medical evidence does not at all support that and in view of the above position of the evidence, hardly it can be said that the other accused persons, namely, Balai Jana, Uttam Jana and Ashoke Jana (since deceased) had also common intention with Swapan for committing an offence of culpable homicide not amounting to murder on Basudeb by way of sharing a prior concert or pre-planning as from their act it has not been borne out that they also shared same intention of eliminating Basudeb by inflicting assault on him. ( 36 ) BUT the evidence on record, however, clearly establishes that Balai, Uttam and Ashoke also shared common intention with Swapan to cause voluntary hurt on Basudeb. ( 37 ) THAT being the position of the evidence, I hold that although the learned trial Judge was also quite justified in inflicting the punishment upon Swapan for committing an offence u/s. 304 (Part I) of I. P. C. , yet, he was not justified in holding other accused persons namely, Uttam, Balai and Ashoke (since deceased) guilty of an offence under S. 304 (Part I) read with S. 34 of I. P. C. and accordingly the conviction and sentence imposed upon those three accused persons namely Uttam, Balai and Ashoke (since deceased) under S. 304 (Part I) read with S. 34 of I. P. C. are not at all tenable in law as such it should be set aside. ( 38 ) BUT the conviction and sentence imposed upon the accused persons under Ss. 323/34 of I. P. C. were quite justified and similarly, the conviction under S. 307 of I. P. C. against accused-Swapan has also been rightly inflicted by the trial Judge by placing his reliance upon the evidence and available materials on record. ( 39 ) TO conclude, upon ultimate analysis of the materials, I find that conviction and sentence imposed upon Swapan Jana for the offence under S. 304 (Part I) is quite justified and there is no reason for interference. Similarly, the conviction and sentence imposed upon the accused persons under Ss. ( 39 ) TO conclude, upon ultimate analysis of the materials, I find that conviction and sentence imposed upon Swapan Jana for the offence under S. 304 (Part I) is quite justified and there is no reason for interference. Similarly, the conviction and sentence imposed upon the accused persons under Ss. 323/34 was also quite justified and there is also no reason for interference by this Court in the fact situation of this case. The conviction and sentence imposed upon the accused Uttam Jana under S. 307 of I. P. C. is also quite justified and there is no reason for interference by this Court. The conviction and sentence upon Balai, Uttam and Ashoke (since deceased) for the offence under S. 304 (Part I) read with S. 34 of I. P. C. however, stands set aside. ( 40 ) IN the aforesaid premises, the appeal is hereby partially allowed so far as it relates to the offence under S. 304 (Part I) read with S. 34 of I. P. C. as imposed upon the accused appellants-Balai Jana, Uttam Jana and Ashoke Jana (since deceased) and the remaining part of the conviction and sentence as imposed by the trial Judge upon all these accused appellants are hereby confirmed. The accused-appellants namely Swapan, Balai and Uttam are directed to surrender forthwith before the trial Judge for serving out the remaining period of the sentence as has been confirmed by this Court. ( 41 ) LET a copy of this judgment be sent down to the Court below for information and necessary compliance. Order accordingly.