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2004 DIGILAW 411 (AP)

Kagithala Soma Raju v. State Of A. P.

2004-04-01

B.SUBHASHAN REDDY, G.BIKSHAPATHY

body2004
B. SESHASAYANA REDDY, J. ( 1 ) THESE two Criminal Appeals are directed against the judgment dated 29-1-2002 passed in S. C. No. 129 of 1998 on the file of Sessions Judge, West Godavari at Eluru by which the learned Sessions Judge convicted A1 Kagithala Sorna Raju, A2 kagithala Venkateswara Rao, A3 Bandi ramanadham and A4 Shaik Nazeer for the offences under Sections 448 and 302 read with 149 IPC and further convicted A2 for the offence under Section 324 IPC and Al, a3 and A4 for the offence under Sections 324 read with 149 IPC and sentenced Al to A4 to suffer imprisonment for life and to pay a fine of Rs. 1,000. 00 each in default to suffer rigorous imprisonment for two months for the offence under Section 302 read with 149 IPC and A2 to suffer rigorous imprisonment for a period of three years and fine of Rs. 1,000. 00 in default to suffer rigorous imprisonment for two months for the offence under Section 324 IPC; and Al, a3 and A4 to suffer rigorous imprisonment for three years and fine of Rs. 1,000. 00 each in default to suffer rigorous imprisonment for two months for the offence under sections 324 read with 149 IPC. However, learned Sessions Judge found A5, A6 and a8 not guilty for the offences which they stood charged and accordingly acquitted them. A7 died pending trial and so the case against him stood abated. The appellants in crl. A. 354 of 2002 are Al and A2 and appellants in Crla. No. 356 of 2002 are A3 and A4. Since both the appeals arise out of the same judgment passed in S. C. No. 129 of 1998 on the file of Sessions Judge, West godovari at Eluru, they are being disposed of by this common judgment. ( 2 ) THE appellants along with four others namely A5 Chintada Dhanu @ danam, A6 Puvvula Kishore, A7 kasanakurthi Raju (since died) and A8 salagala Yesu were put on trial before the sessions Judge, West Godavari at Eluru for the charges punishable under Sections 148, 448, 302, 302 read with 149, 307, 307 read with 149 IPC. ( 3 ) THE case of the prosecution in brief is: All the accused are residents of venkatapuram Panchayat limits. ( 3 ) THE case of the prosecution in brief is: All the accused are residents of venkatapuram Panchayat limits. P. W. 2 vemula Sankarayya is father, P. W. 3 Vernula jayamrna is mother, P. W. 4 Vemula Suresh kumar is brother of Devender Prasad (hereinafter referred to as the deceased ). P. W. I Nelluri Ramachandra Rao is friend of the deceased. P. W. 5 Chandragiri subbalakshini Tharnmisetti Kamalamma is neighbour to P. Ws. 2 to 4. Al is son of a2 and other accused are said to be the associates of A1 and A2. The house of A1 and A2 and the house of P. Ws. 2 to 4 are adjacent to each other. A small drain runs in front of their house. On the morning of 24. 3. 1997 there was heavy down pour of rain and therefore A1 and A2 put up a cross bund in front of their house and obstructed the flow of drain water. The deceased and his father P. W. 2 questioned al and A2 for obstructing the flow of water and thereby a quarrel ensued between them wherein the deceased allegedly slapped A2. Al and A2 felt ashamed of it and planned to do away the life of the deceased. Al and A2 consulted a3 to A8 and all of them armed with knives formed themselves into unlawful assembly at 3. 45 p. m. on that day, trespassed into the house of the deceased and attacked him. It is alleged that Al hacked the deceased with a knife on left side of the neck and A2 hacked the deceased with a knife on head. When P. W. I who happened to be conversing with the deceased at the time of the incident intervened, A2 hacked him on his head with a knife and thereby caused bleeding injuries to him. Thereafter A3, A4 and others incited each other to hack the deceased and in pursuance of their common object they all dealt blows on him indiscriminately and thereby killed him. P. Ws. 2, 3 and 4 who are father, mother and brother respectively of the deceased witnessed the incident. P. Ws. 7 to 13 though stated to have witnessed the incident being the residents of the same locality did not support the prosecution and the prosecution declared them hostile and marked their Section 161 Cr. P. C statements as Exs. P. Ws. 2, 3 and 4 who are father, mother and brother respectively of the deceased witnessed the incident. P. Ws. 7 to 13 though stated to have witnessed the incident being the residents of the same locality did not support the prosecution and the prosecution declared them hostile and marked their Section 161 Cr. P. C statements as Exs. P. 4 to P. 10. P. W. I was removed to eluru (Rural) Police Station on a cycle rickshaw and from there to Government headquarters Hospital, Eluru for treatment. PW. 19 Police Constable of Eluru (Rural) police Station sent P. W. I to Government hospital through P. C. 1494 along with memo. P. W. 20 N. Chiranjeevi, S. I. of Police (Rural) Police Station received the information about the incident through P. C. 1439, rushed to the Government Hospital, eluru, recorded the statement of P. W. I which has been exhibited as Ex. P. 1. He obtained the endorsement of the duty doctor (P. W. 16) about the fit state of mind of P. W. I to give his statement. Ex. P. 38 is the endorsement of the duty Doctor on ex. P. l8 statement of P. W. I. Basing on ex. P. l statement of P. W. 1, P. W. 20 registered a case in Cr. No. 43 of 1997 under sections 448, 302, 307 read with 34 IPC and issued Ex. P. 39 FIR. P. W. 21 K. S. N. Murthy, C. I. of Police took up investigation, examined P. Ws. l and 2 and recorded their statements. He inspected the scene of offence on 25. 3. 1997 at 7 a. m. , in the presence of P. W. 17 Gadde Sitharamabrahmam and seized broken bangle pieces (MO. 10), Hair logs (MO. 13), pair of Hawai chappals (MO. 12), Blood stained cloth pieces (MO. 14), blood stained floor (MO. 15) and controlled floor (MO. 16) under the cover of ex. P. 27 observation report. He also noticed a cross bund at the house of A2 which made drain water stagnated in front of the house of the deceased and p. Ws. 2 to 4. He got the scene of offence photographed through P. W. 14 Adabala chinnarao. Exs. P. 15 to P. 19 are the positive photographs and Exs. P. 20 to P. 25 are the corresponding negative. 2 to 4. He got the scene of offence photographed through P. W. 14 Adabala chinnarao. Exs. P. 15 to P. 19 are the positive photographs and Exs. P. 20 to P. 25 are the corresponding negative. Thereafter, he proceeded to Government Hospital, held inquest over the dead body of the deceased in the presence of PW. 17 and two others. During the inquest he examined P. Ws. 3 to 7 and recorded their statements. The opinion arrived by the panchas on hearing the statement of the witnesses examined during the inquest has been incorporated in Col. 15 of Ex. P. 28 inquest report. After the inquest the dead body was subjected to post-mortem examination. P. W. 15 Dr. R. Kusuma Kumari, civil Assistant Surgeon, conducted autopsy on the dead body of the deceased and issued Ex. P. 25 post-mortem report opining that the deceased died of shock and hemorrhage due to multiple injuries. She noticed as many as 34 antemortem external injuries. P. W. 21 arrested A1, A3 to A7 on 10-4-1997 and recovered MOs. 1 to 6 knives and MO. 7 butchers knife and six pants and six shirts (MO. 11) in pursuance of their disclosure statements under the cover of ex. P. 34 panchanama in the presence of p. W. 17. Ex. P. 29 to P. 33 are admissible portions in the confession statements of al, A3, A4, A5 and A6. He arrested A2 on the same day at 6. 30 p. m. Since A2 had injuries on his person, he produced him before the Doctor for medical examination. DW. 1 Smi. Dr. S. Nagarjuna examined A2 and noticed an incised injury measuring 10 x 2 cms scalp deep on the left parietal region. She issued Ex. D1 wound certificate. The Doctor who issued the certificate has been examined as P. W. 16 by the prosecution to speak of the injuries found on P. W. I and as DW. l on behalf of the defence to speak of the injuries found on A2. P. W. 21 sent the material objects seized in the course of investigation to RFSL, Vijayawada through Sub- Divisional Police Officer, eluru. After completing investigation a charge-sheet came to be submitted before the II Additional Judicial First Class magistrate, Eluru. The learned Magistrate took the charge-sheet on file as P. RC. P. W. 21 sent the material objects seized in the course of investigation to RFSL, Vijayawada through Sub- Divisional Police Officer, eluru. After completing investigation a charge-sheet came to be submitted before the II Additional Judicial First Class magistrate, Eluru. The learned Magistrate took the charge-sheet on file as P. RC. No. 80 of 1997 and committed the case to the Court of Session as the offences under Sections 302 and 307 IPC are exclusively triable by the Sessions Court. On committal the learned sessions Judge took the case on file as s. C. No. 129 of 1998. A7 died pending enquiry and consequently case against him stood abated. On hearing the prosecution and Al to A6 and A8, the learned Sessions judge framed the following charges: charge No. l: Against A1 to A6 and A8 for the offence of rioting armed with deadly weapons punishable under section 148 I PC; charge No. 2: Against At to A6 and A8 for the offence of house trespass to commit the murder of the deceased punishable under Section 448 IPC; charge No. 3: Against A1 to A4 and A6 for the offence punishable under section 302 IPC for causing the death of the deceased punishable under Section 302 IPC; charge No. 4: Against A5 and A8 under constructive liability for causing the death of the deceased punishable under Section 302 read with 149 IPC; charge No. 5: Against A2 for attempt to commit murder of P. W. I Nelluri ramachandrarao punishable under section 302 IPC; charge No. 6: Against A1 and A3 to A6 and a8 under constructive liability for attempting to commit murder of pw1 punishable under Section 307 read with 149 IPC. The accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which they stood charged the prosecution examined as many as 21 witnesses, proved 39 documents and exhibited 16 material objects. It is the defence of the accused that the deceased had illicit intimacy with one veeranki Laxmi and in that regard a panchayat was held in the village and that the deceased was killed by some one because of his illicit intimccy with veeranki Laxmi and that the case was foisted against them on mere suspicion. The accused examined Smt. Dr. Nagarjuna as DW. The accused examined Smt. Dr. Nagarjuna as DW. l on their behalf and marked the wound certificate issued by him as Ex. D1. The learned Sessions Judge, on appreciation of the evidence brought on record, found a1 to A4 responsible for the death of the deceased and for causing injuries to P. W. I and accordingly convicted A1 to A4 for the offences under Sections 448, 302 read with 149 IPC and further convicted A2 for the offence under Section 324 and Al, A3 and A4 for the offences under Sections 324 read with 149 IPC and sentenced them as detailed above. Assailing the judgment of conviction and sentence, A1 and A2 filed criminal Appeal No. 354 of 2002 and whereas A3 and A4 filed Criminal Appeal no. 356 of 2002. ( 4 ) THE appellants in both the appeals, hereinafter, referred to as they are arrayed in s. C. No. l29 of 1998. ( 5 ) LEARNED Counsel appearing for a1 and A2 contends that Ex. P. l report is brought into existence by the police to suit the prosecution version. He further submits that the presence of P. Ws. 2, 4 and 6 is not mentioned in the FIR and therefore their evidence cannot be given any credence. It is also submitted by him that non- examination of P. W. 2 who is said to be an eye-witness during the course of inquest throws any amount of doubt regarding his presence at the time of the incident. It is nextly submitted by him that P. W. 4 was a student as on the date of the incident and that at the relevant point of time he was in the school and therefore his witnessing the incident occurred at the residence could not be believed. His further submission is that P. W. 5 did not speak of overtacts of any of the accused except making ominibus statement and therefore his testimony cannot be a basis to convict the accused for the offence under Section 302 IPC and that the overt acts attributed by other material witnesses is not supported by the medical evidence. He drew our attention to the postmortem report which has been exhibited as Ex. P. 25. He drew our attention to the postmortem report which has been exhibited as Ex. P. 25. His last submission is that so far as A2 is concerned the overt act attributed to him by the material witnesses correspond to injury No. 33 which is simple in nature and therefore he could utmost be held liable for punishment under Section 324 IPC. ( 6 ) LEARNED senior Counsel appearing for A3 and A4 contends that the case of a3 and A4 stands on the same footing as that of A5 to A8 whose participation in the commission of the offence has been disbelieved by the Trial Court, and, therefore, their conviction for any of the offences cannot be sustained. It is also submitted by him that A3 and A4 have no enmity with the prosecution party and there is no cause for them to share the common object with A1 and A2 or to have pre-concert or pre-plan with A1 and A2 in committing the offence. It is also submitted by him that the prosecution has not adduced any evidence to show the preplan or preconcert of A3 and A4 with Al and A2. It is nextly submitted by him that P. Ws. 5 and 6 did not speak of the participation of A3 and A4 in the commission of offence and therefore their evidence does not further the prosecution case to establish the participation of A3 and A4 in the commission of offence. ( 7 ) PER contra, learned Public prosecutor submits that the presence of a1 to A3 in the unlawful assembly has been spoken out consistently by PWs. 1 to 6 and therefore the specific overt act of each member is not required to be proved by the prosecution. It is also submitted by her that though P. W. I did not support the prosecution in toto but his evidence corroborates with the testimony of P. Ws. 2 to 6 with regard to the membership of A1, a3 and A4 in the unlawful assembly. She further submits that the evidence of p. Ws. 2 to 4 clearly established that Al and A2 are the persons who dealt blows on vital parts and A3 and A4 are the persons who caused injuries to the deceased discriminately. 2 to 6 with regard to the membership of A1, a3 and A4 in the unlawful assembly. She further submits that the evidence of p. Ws. 2 to 4 clearly established that Al and A2 are the persons who dealt blows on vital parts and A3 and A4 are the persons who caused injuries to the deceased discriminately. It is also submitted by her that the acquittal of A5 to A8 cannot have any bearing on the conviction of the appellanls (A1 to A4 ). She would further submit that A1 to A4 attacked the deceased in pursuance of the common intention and in which case each one of them is responsible for the act of others. In support of her submissions she placed reliance on the decisions of Supreme Court in Sucha Singh v. State of Punjab, 2003 SCC (Crl) 1697, bhagwan Singh v. State of Madhya Pradesh, 2002 SCC (Crl) 736, State of Gujarat v. Anirudhsing, 1997 (6) SCC 514 . ( 8 ) IN State of Gujarat v. Anirudhsing, 1997 (6) SCC 514 , the Supreme Court held that merely because some of the witnesses have turned hostile their ocular evidence recorded by the Court cannot be held to be quashed of or unavailable to the prosecution. It is the duty of the court to carefully analyze the evidence and to reach conclusion whether that part of the evidence is consistent with the prosecution case is acceptable or not. In the case on hand, P. W. 1 is the first informant to the police regarding the incident. Ex. P. l is the statement of P. W. I recorded by p. W. 20. A criticism has been made by the counsel appearing for A1 and A2 on the conduct of the police who sent P. W. I to hospital without recording his report regarding the incident. P. W. 19 is the Head constable of Eluru (Rural) Police Station. He testifies that on 24. 3. 1997 at 4. 15 p. m. P. W. I appeared before him with head injury, which had a pro fused bleeding and therefore sent him to Government headquarters Hospital, Eluru. He further testifies that after 5 p. m. A2 appeared before him with a bleeding injury and therefore he also sent A2 to hospital through the same constable who just returned after admitting P. W. I in the hospital. He further testifies that after 5 p. m. A2 appeared before him with a bleeding injury and therefore he also sent A2 to hospital through the same constable who just returned after admitting P. W. I in the hospital. When both the injured appeared before P. W. 19, he referred them to the hospital for treatment along with memos. He states in the cross examination that he made an entry in the general Diary of the station before sending p. W. 1 to the Police Station. We did not find any exception to the course adopted by p. W. 19 in sending the injured to the hospital after making General Diary entry without receiving a report from them in view of the fact that his anxiety was to provide medical aid immediately. P. W. 20 sub-Inspector of Police received the information, rushed to the hospital, recorded the statement of P. W. I and registered a case in Cr. No. 43 of 1997 under Sections 448, 307 read with 149 IPC and issued Ex. P. 39 fir. In view of the sequence of events right from P. W. I appearing before the constable with profuse bleeding injuries on his person at the time of recording his report by P. W. 20, we do not find any exception to the course adopted by P. W. 19 in referring PW. 1 to the hospital without recording his report. It has come on record that P. W. I married A3 s sister after the incident. In view of the subsequent event of his marrying A3 s sister, there is every reason for him in not supporting the prosecution in toto. Though the prosecution declared him hostile it does not mean that his evidence is to be rejected in its entirety. What is required of by the Court is his evidence must be carefully analysed and see whether any part of it is consistent with the prosecution case. In other words, the part of the evidence which is consistent with the prosecution case can be accepted. His evidence before the Court reveals that a group of persons numbering ten armed with knives came upon the deceased and attacked him. His evidence further discloses that one of the assailants attacked him with a knife on his head and thereby he sustained injuries. His evidence before the Court reveals that a group of persons numbering ten armed with knives came upon the deceased and attacked him. His evidence further discloses that one of the assailants attacked him with a knife on his head and thereby he sustained injuries. The fact that the deceased and P. W. 1 are the victims in one and the same incident is fully established by the evidence of P. W. 1. He identified A1, A3 and A4 among the persons who came upon the deceased as assailants. P. W. 17 is the panch witness for the observation of the scene and seizure of incriminating material that were found at the scene. The incriminating material found at the scene are : MO. 10 broken bangle pieces, MO. 12 pair of hawai chappals, MO. 13 hair logs, mo. 14 blood stained cloth pieces, MO. 15 blood stained flooring pieces and MO. 16 controlled flooring pieces. The panchas noticed the existence of small bund across the drain at the scene. Ex. P. 27 is the observation report. P. W. 21 speaks of his observing the scene, and lifting the incriminating material from the scene in the presence of PW. 17. The blood stained flooring and cement flooring along with other material were sent to Forensic Laboratory. Ex. P. 37 is the FSL report. Human blood came to be detected in the blood stained flooring pieces. The evidence of P. W. 17 and 21 coupled with Ex. P. 27 observation report clearly established that the incident occurred in front of the house of the deceased. P. W. 2 is the father, P. W. 3 is the mother and P. W. 4 is the brother of the deceased and they are inmates of the house. P. W. 5 is neighbour to the deceased. P. Ws. 2 to 4 being the inmates of the house and p. W. 5 being the neighbour to the deceased are the natural witnesses to the incident which occurred in front of the house of the deceased. P. W. 6 is said to be conversing with P. Ws. 2 and 3 at the time of the incident. Her evidence is not of much material since she admits in the chief examination that as soon as the accused entered the house she took to heels due to fear. P. W. 6 is said to be conversing with P. Ws. 2 and 3 at the time of the incident. Her evidence is not of much material since she admits in the chief examination that as soon as the accused entered the house she took to heels due to fear. Except the blow on P. W. 1 attributable to A1, he did not claim of witnessing the assault on the deceased. Learned Counsel for Al and A2 submits that the names of P. W. 2, 4 and 6 do not find place in FIR presented by P. W. 1 and it creates any amount of doubt with regard to their presence in the house at the time of the incident. ( 9 ) NO doubt the names of P. Ws. 2, 4 and 6 do not find place in the FIR. It is stated in the FIR that P. W. 3, P. W. 5, komisetty Somalingam (not examined) and some others witnessed the incident. It is further stated therein that neighbours arrived at the scene on hearing the cries and thereupon all the accused fled away. ( 10 ) THE contention of the Counsel for the accused that no credence can be given to the testimony of the witnesses whose names did not figure in the FIR cannot be accepted as the FIR is not the Alfa and Omega of the prosecution and the same is not to be confused that being on par with a comprehensive encyclopedia of all that transpired. P. Ws. 2, 3 and 4 being the inmates of the house wherein the incident occurred are the natural witnesses. They categorically stated that Al and A2 hacked the deceased with knives on neck and head respectively. So far as A3 and a4 is concerned an omnibus allegation is made that they along with others incited each other to hack the deceased and thereafter they all hacked the deceased with knives indiscriminately. P. Ws. 2 to 4 stated that A5, a6 to A8 and another accused by name kasanakurthi Raju (A7 since died) are the other persons who participated in assaulting the deceased. The Trial Court disbelieved the participation of the accused other than al to A4. That prompted the Trial Court to record acquittal of the accused for the offence under Section 148 IPC. The Trial Court disbelieved the participation of the accused other than al to A4. That prompted the Trial Court to record acquittal of the accused for the offence under Section 148 IPC. The prosecution did not choose to file any appeal questioning the acquittal of the accused for the offence under Section 148 IPC. It is submitted by the learned Counsel for the accused that since participation in the assault is confined only to four the question of invoking Section 149 IPC does not arise. Reliance has been placed on the decision of supreme Court in Kartar Singh v. State of punjab, AIR 1961 SC 1787 . In the cited case it has been held as follows: "where the Trial Court can legally find that the actual number of members in the assaillants party was more than five, the said party will constitute an unlawful assembly even when only three persons have been convicted. It is only when the number of the alleged assailants is definite and all of them are named, and the number of persons found to be proved to have taken part in the incident is less than five, that it cannot be held that the assailants party must have consisted of five or more persons. The acquittal of the remaining named persons must mean that they were not in the incident. The fact that they were named, excludes the possibility of other persons to be in the assailants party and especially when there be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognizing them. " ( 11 ) P. WS. 2 to 4 stated before the court that A5 to A8 are the other persons who participated in the commission of the offence. The Trial Court did not believe their evidence with regard to the participation of those accused other than A1 to A4 and thereby acquitted them. When the participation is confined only to Al to A4, they cannot constitute unlawful assembly for the reason that minimum number of members required to form an unlawful assembly is five. Hence, the conviction of al to A4 by invoking Section 149 IPC is not sustainable. When the participation is confined only to Al to A4, they cannot constitute unlawful assembly for the reason that minimum number of members required to form an unlawful assembly is five. Hence, the conviction of al to A4 by invoking Section 149 IPC is not sustainable. But the non-application of section 149 IPC is no bar in convicting the accused under Section 302 read with 34 IPC if the evidence discloses commission of the offence in furtherance of their common intention. This is because both Sections 149 and 34 IPC deal with a combination of persons who become liable to be punished and sharers in the commission of offences. Therefore, in cases where the prosecution is unable to prove the number of members of unlawful assembly to be five or more courts can convict the guilty persons under section 34 IPC provided that there is the evidence on record to show such accused shared the common intention to commit the crime. While doing so the Courts will have to bear in mind the requirements of section 34 IPC. It is well known that to establish the common intention on several persons and to attract Section 34 of IPC the following two fundamental facts have to be established: (1) common intention (2) participation of the accused in the commission of the offence. If the above two ingredients are satisfied even the overtacts on the part of some of the persons sharing in the common intention is not necessary. The Apex Court has observed in Girija Shanker v. State of U. P. , AIR 2004 scw 810, that Section 34 IPC is only a rule of evidence and does not create a substantive evidence. The distinctive feature of the section is the element of participation in the action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section 34 is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. In Ashok Kumar v. State of Punjab, ADR 1977 SC 109, the Supreme Court observed that the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and others v. State of Andhra Pradesh, AIR 1993 SC 1899 , Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34 it is not necessary to show some overt act on the part of the accused. ( 12 ) THE evidence of P. Ws. 2 to 4 is crystal clear that A1 and A2 hacked the deceased on neck and head respectively. Their ocular testimony is fully corroborated by the medical evidence. A1 and A2 are father and son. They had dispute over the flow of a sullage water with the deceased. It has come on record that on the morning of the day of the incident A1 and A2 raised a bund to obstruct the flow of sullage water and consequently water stagnated in front of the house of the deceased and in that regard there was a scuffle between A1 and a2 on the one side and the deceased on the other and they beat each other. So far as A3 to A8 are concerned, they have no enmity with the deceased. This fact has been admitted by P. Ws. l and 2 in the cross- examination. There is nothing on record to show that A3 and A4 are in any way related to Al and A2 or they are associates of A1 and A2. An omnibus allegation has been made that A3 to A8 dealt blows with knives on the deceased indiscriminately. The case against A3 and A4 stands on the same footing as that of A5 to A8. The Trial Court did not believe the participation of A5 to A8 and recorded their acquittal. The Trial Court, however, distinguished the case of A3 and a4 by observing that they have been identified as the members of the unlawful assembly. In the absence of any positive material to show that they had any hostility against the deceased or they were associates of Al and A2, there is no scope for distinguishing their case from other accused who have been acquitted. In the absence of any positive material to show that they had any hostility against the deceased or they were associates of Al and A2, there is no scope for distinguishing their case from other accused who have been acquitted. Therefore, their conviction cannot be maintained. A question whether a conviction of the accused can be sustained when there is no scope for distinguishing his case from the co-accused persons who have been acquitted came up for consideration in Charan Singh v. State of Uttar Pradesh, 2004 AIR SCW 1329. The Supreme Court answered the question in the following words: "12. We shall first deal with the accused- appellant-Raj Pal. As noted by the High court he stands on the same footing as that of the acquitted accused persons. The Trial court and the High Court, however, distinguished his case by observing that being the son of accused-Harkesh who was prime mover of the crime, he may have a motive. In the absence of any positive material in that regard, there is no scope for distinguishing his case from the other accused persons who have been acquitted. Therefore, his conviction cannot be maintained. " in the absence of any positive material to speak of enmity between A3 and A4 on the one side and the deceased on the other or any close association of A3 and A4 with A1 and A2 so as to lend their support to the latter, there is no scope for distinguishing their case from other accused persons (A5 to A8) who have been acquitted. Therefore, A3 and A4 cannot be held responsible for the death of the deceased and accordingly their convictions and sentences under Sections 448, 302 read with 149, 324 read with 149 IPC are not legal and proper and they are liable to be set aside. With regard to Al and A2, their participation is clearly established by the evidences of PWs. 2 to 4 and therefore they are responsible for committing the death of the deceased and causing injuries to pw1 and they are liable for the punishment under Section 302 read with 34 IPC and 324 read with 34 IPC. ( 13 ) LEARNED Counsel appearing for a1 and A2 submits that the prosecution has not come forward with true version of the incident since it has not explained the injuries found on A2. ( 13 ) LEARNED Counsel appearing for a1 and A2 submits that the prosecution has not come forward with true version of the incident since it has not explained the injuries found on A2. He refers to the evidence of DW1 in support of his submission. It has come on record that pw20 Investigating Officer registered a case in Cr. No. 44 of 1997 under Section 324 IPC basing on the statement of A2. DW1 is the doctor who medically examined A2 and found one incised injury 10 x 2 cms pulp deep on left parietal region. The injury has been classified as simple in nature and ex. D1 is the wound certificate. PW21 inspector of Police stated that he conducted investigation in Cr. No. 44 of 1997 and referred the case as a mistake of law. In these circumstances it cannot be said that the prosecution has suppressed the true version of the incident. Since the injury sustained by A2 is minor in nature, there is no obligation on the part of the prosecution to explain the same. ( 14 ) IN the result, Criminal Appeal no. 354 of 2002 is dismissed and Criminal appeal No. 356 of 2002 is allowed setting aside the conviction and sentence of A3 bandi Ramanadham and A4 Shaik Nazeer for the offences under Sections 448, 302 read with 149 and 324 read with 149 IPC and they are acquitted of the same and they are directed to be set at liberty if they are otherwise not required in any other crime. Fine amounts, if any, paid by A3 and A4 are ordered to be refunded to them.