P. K. DEB, J. ( 1 ) THIS appeal has been directed against the conviction and sentence passed by the learned Additional Sessions Judge, 6th court, Alipore in connection with Sessions Trial No. 3 (4)/99. ( 2 ) THIS case relates to a daring act of murder of a person in broad daylight near busy thoroughfares. It was unfurled during the trial while on 21. 06. 98 round about 12. 30 hrs. Armed constable Jiwan Kr. Gurung and Sepoi Niranjan Acharya were on duty in front of Body Guard Lines, a taxi cam along National Library Avenue at a high speed. Mounting the footpath, the taxi rammed against the southern boundary walls of body Guard Lines. The Sepoi and the constable saw one of the passenger of the taxi trying to alight from the said taxi, screaming for help. Another passenger of the taxi was seen pulling his T-shirt to prevent him from escaping. However, the man in distress wriggled out of their clutch. He made desperate bid to safe his life by entering into the Body Guard lines Compound. He was hotly pursued by the miscreants. One of them even fired from his revolver, aiming at the body. The injured collapsed near the gate. Prior to that, the miscreants pounced on him with razors and revolvers. While the miscreants tried to flee off after the commission of murder, they were chased by some of the police personnel. One of the miscreants could be nabbed at the crossing of Diamond Harbour road and National Library Avenue with revolver in his possession. The other miscreants were also apprehended from different spots. Meanwhile, the injured was shifted to hospital in a critical condition. The injured stripped of cloth, succumbed to his injury in SSKM Hospital. ( 3 ) A specific case under section 302/34 IPC and 25 (1b) (a)/27 Arms act was instituted on the basis of the FIR lodged by Sri J. K. Gurung. The investigating officer examined the available witnesses and recorded their statements in course of the investigation. The investigating Officer went on interrogating the accused persons. In pursuance of the statement of accused Nabi Box, cartridges could be recovered. Fired cartridges were also seized near a Jeep. Those articles were seized in presence of the witnesses. Steps were taken to collect the Inquest Report, Medical Report and Ballistics Report. Ultimately on completion of investigation, charge sheet was submitted. In pursuance of the statement of accused Nabi Box, cartridges could be recovered. Fired cartridges were also seized near a Jeep. Those articles were seized in presence of the witnesses. Steps were taken to collect the Inquest Report, Medical Report and Ballistics Report. Ultimately on completion of investigation, charge sheet was submitted. ( 4 ) THERE being prima facie allegation of commission of murder, the case was committed to the Court of Session. On perusal of the case diary and after hearing the submission of the learned counsel for the state and the Defence, the learned Session Judge framed charges under sections 302/34 and 25 (1b) (a)/27 Arms Act against all the accused persons. The accused persons were charged with intentionally causing the death of Umar Khan a furtherance of their common intention. They were also charged with having possessed one six chamber and country made revolver without any valid license in contravention of provision of section 3 of the Arms Act. The appellants having pleaded innocence, the trial commenced against them. In course of the trial, as many as 24 witnesses were examined on behalf of the prosecution. The eye witnesses of the incident, the witnesses of the seizure, the medical officer conducting the post mortem examination, the officer conducting ballistic examination and the officer conducting the search and seizure were the notable witnesses of the prosecution side. On the other hand, three witnesses were examined on behalf of the defence. On scanning the entire evidence, oral as well as documentary, placing heavy reliance on the statements of the witnesses including the taxi driver who had given a first impression of the incident, banking on the corroborative medical and ballistic report and pinning faith on the seizure of the incriminating articles, the learned Additional Session Judge convicted all the accused persons for commission of offence under section 302/34 IPC. Lack of sanction, however, resulted in exoneration of the charge under section 25 (lb) (a)/27 Arms Act. The appellants were sentenced to imprisonment for life and fine of Rs. 500/-, in default further rigorous imprisonment for one month for commission of offence under section 302/34 IPC. ( 5 ) AGGRIEVED by the conviction and sentence, the appellants have preferred the instant appeal. ( 6 ) APPEARING on behalf of the appellants, Mr. The appellants were sentenced to imprisonment for life and fine of Rs. 500/-, in default further rigorous imprisonment for one month for commission of offence under section 302/34 IPC. ( 5 ) AGGRIEVED by the conviction and sentence, the appellants have preferred the instant appeal. ( 6 ) APPEARING on behalf of the appellants, Mr. Dilip Dutta, learned senior counsel, has submitted that the Trial Court could not appreciate the fact that whatever the appellants did was done in self defence. The appellant Sk. Sarfaraz did it in grave provocation following attempt on the life of his brother being made by the injured Umar Khan. It is contended that had the injured been shot from behind, the injuries would have been different from was noted in the post mortem report. In view of PW 16 (taxi driver) not divulging as to how the injuries of Md. Asfaque had been caused, there was no earthly reason for the Trial court to disbelieve the statement of the appellant Sk. Sarfaraz. ( 7 ) IT is contended that in view of the appellant Md. Asfaque receiving bullet and knife injury following Umar Khan pouncing on him with arms and deadly weapons, the miscreant called Umar Khan had to be fired. Referring to the injury reports (Ext. B. C. E and G), it is argued that the medical reports do confirm that Md. Asfaque had received bullet injury on left thigh and incise injury on the left cheek and left side of the arm. PW 5 in his examination admitted that Md. Asfaque had sustained bleeding injuries on his neck. The medical reports having confirmed the factum of Md. Asfaque sustaining injury, the version of the incident as told by Sk. Sarfaraz in his examination under section 313 Cr PC ought to have been accepted. Sk. Sarfaraz having fired from his gun in self defence to protect the life of his brother Md. Asfaque, the conviction and sentence were totally uncalled for. ( 8 ) IT is argued that the prosecution not having explained as order how Asfaque received injury, the explanation offered by the defence cannot be ignored. Mr. Dutta has referred to the case of State of Rqjasthan v. Madho and Anr. Asfaque, the conviction and sentence were totally uncalled for. ( 8 ) IT is argued that the prosecution not having explained as order how Asfaque received injury, the explanation offered by the defence cannot be ignored. Mr. Dutta has referred to the case of State of Rqjasthan v. Madho and Anr. , reported in 1991 Cr LJ 1343, in support of his contention that in view of the failure of the prosecution witnesses to explain the injuries sustained by the accused persons, they are entitled to benefit of doubt. Mr. Dutta has also referred to the case of Debrqj and Anr. v. State of Himachal Pradesh, reported in AIR 1994 SC 523 , to substantiate his contention that where the accused persons received injuries during the same occurrence in which complainants were injured and when they have taken the plea that they acted in self defence, that cannot be lightly ignored, particularly in the absence of any explanation as to their receiving injuries. The accused persons, acting on self defence, need not prove beyond all reasonable doubt. If two views are possible, the accused should be given benefit of doubt. ( 9 ) MR. Datta has argued that finding his brother Md. Asfaque in danger of being assassinated, his elder brother Sk. Sarfaraz fired in self defence. Since miscreant called Umar Khan had to be fired upon to prevent him from murdering Md. Asfaque, the act of Sarfaraz resulting in death would not constitute an offence. This will squarely come within the exceptional clause of section 100 IPC. It was an unilateral act of Sk. Sarfaraz. The other appellants had not role to play. They did not nurture the thought of eliminating Umar Khan and as such the conviction and sentence of the other three appellants were totally unjustified. In the absence of element of common intention, the conviction under section 302/34 IPC does not stand. Sitting together in the taxi, it is submitted, does not mean that they had meeting of mind either. ( 10 ) MR. Dutta concludes his argument, submitting that there was no evidence that the bullet fired by Sk. Sarfaraz actually struck Umar khan. The Inquest Report, it is contended, indicated that the deceased had received six bullet injuries. There was evidence to the effect that the police personnel including their high officials fired indiscriminately from their revolvers. ( 10 ) MR. Dutta concludes his argument, submitting that there was no evidence that the bullet fired by Sk. Sarfaraz actually struck Umar khan. The Inquest Report, it is contended, indicated that the deceased had received six bullet injuries. There was evidence to the effect that the police personnel including their high officials fired indiscriminately from their revolvers. The bullets fired by the police officer might have caused the instant death of Umar Khan. If PW 2 is to be believed, the firing was made from short distance. The bullets fired by Sk. Sarfaraz from little distance perhaps missed the target. There being apparent lacunas, incongruities and inconsistency in the statements of the prosecution witnesses, the appellants should not have been convicted and sentenced under section 302/34 IPC. ( 11 ) DEFENDING the conviction and sentence, the learned counsel appearing for the State has submitted that unless the right of self defence comes within the scope of section 100 IPC the right cannot be extended to causing the death of another person. It is argued that the right of private defence lasts so long as the reasonable apprehension of injury on the body continues. It is contended when the right of private defence is pleaded, the defence is required to give a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling any further reasonable apprehension. Since the defence failed to discharge its onus of proving that assault on the victim was made either for warding off the attack or for forestalling any further reasonable apprehension, the plea of right of private defence would not be of any help to the appellants. ( 12 ) REGARDING injury on appellant Md. Asfaque, it is contended that unless it is established that the victim assaulted the appellant Md. Asfaque, prosecution will not be under any obligation to explain as to how Md. Asfaque got injury. The fact that the injuries sustained by Md. Asfaque were absolutely negligible in comparison to that of Umar Khan belies the story of self defence. Furthermore, the appellants Md. Asfaque and Sk. Sarfaraz having explained as to how Md. Asfaque sustained injury, the prosecution is not required to explain it further. Asfaque got injury. The fact that the injuries sustained by Md. Asfaque were absolutely negligible in comparison to that of Umar Khan belies the story of self defence. Furthermore, the appellants Md. Asfaque and Sk. Sarfaraz having explained as to how Md. Asfaque sustained injury, the prosecution is not required to explain it further. ( 13 ) THE learned counsel for the State has submitted that the materials on record do confirm that all the appellants chased the victim with revolver in their hands. They also tried to prevent the injured Umar khan alighting from the taxi. One of them was also found firing from his revolver, aiming at Umar Khan. All these facts taken together to suggest that all of them had been actuated by common intention of murdering Umar Khan. The element of common intention having been established, the Trial Court, it is argued, rightly convicted and sentenced all the appellants. ( 14 ) THE incident leading to the death of Umar Khan had been explained in detail by some of the eye witnesses. Notable amongst them were PW 1 Niranjan Acharya, PW 2 J. K. Gurung, PW 5 Dinesh Kr. Trivedi, PW 14 Raj Kanojia. PW 15 Sankaran Ramkrishnan, PW 16 S. P. Singh PW 17 Zulfikar Hassan and PW 18 K. Harirajan. ( 15 ) PW 1 Niranjan Acharya testified that on 21. 06. 98 about 12. 30 hrs. he saw a taxi ramming against the wall of the Body Guard Lines. In view of the thundering sound, they came out of the gate. He saw a person in the taxi trying to wrench himself free, while the other occupants trying to tie him down to prevent his escape. In the ensued scuffling, the T-shirt of the person in distress was torn. He was actually stripped of cloth. He tried to escape by entering into the gate of the Body guard Lines. Identifying Sk. Sarfaraz, the witness testified that the person actually fired at the person who sought refuge in the Body Guard lines. The witness also alleged that the person was also chased by 3 to 4 persons. Identifying the other appellants namely Nishar Ahmed and nabi Box, the witness alleged that they had been armed with razors and revolvers. Identifying Sk. Sarfaraz, the witness testified that the person actually fired at the person who sought refuge in the Body Guard lines. The witness also alleged that the person was also chased by 3 to 4 persons. Identifying the other appellants namely Nishar Ahmed and nabi Box, the witness alleged that they had been armed with razors and revolvers. He disclosed that one of the miscreants who chased the injured person could be nabbed at the crossing of National Library avenue and Diamond Harbour Road. It transpired from his evidence that some senior officials of the police department also joined in the operation of nabbing the miscreants. ( 16 ) AS told by PW 2 J. K. Gurung, following a taxi ramming against the boundary wall of Body Guard Lines, he found a person desperately trying to come out of the taxi. Despite the efforts made by the other occupants of the taxi to prevent him from alighting the taxi, the unfortunate person managed to free himself from their clutches. He was hotly chased by a person with revolver in his hand. The injured, stripped of cloth, fell inside the Body Guard Lines after the firing. The other miscreants in the taxi also joined their associate. They were also seen with revolvers in their hands. He confirmed that all the four miscreants afterwards moved in different directions to escape being apprehended. They were, however, chased by police officers and other police personnel. Eventually, all of them could be apprehended from various places. ( 17 ) PW 5 Dinesh Kr. Trivedi was sergeant of Calcutta Police. He deposed that one of the miscreants could be apprehended in front of the main gate of Kothari Research Centre. He claimed that two other miscreants namely Md. Asfaque and Nishar Ahmed could be apprehended by him, while they tried to escape from the spot. ( 18 ) PW 6 Provakar Rao disclosed that Sri Harirajan, the then D. C. Port, opened one round of fire from his firearm following one of the miscreants firing from his revolver at them. The miscreants also made an effort to board a taxi in waiting by threatening the driver. Identifying the appellant Sk. Sarfaraz, the witness claimed that the person was arrested by them at the crossing of National Library Avenue and diamond Harbour Road. The witness also confirmed that the other miscreants namely Nishar Ahmed, Md. The miscreants also made an effort to board a taxi in waiting by threatening the driver. Identifying the appellant Sk. Sarfaraz, the witness claimed that the person was arrested by them at the crossing of National Library Avenue and diamond Harbour Road. The witness also confirmed that the other miscreants namely Nishar Ahmed, Md. Asfaque and Md. Asfaque could be successfully apprehended by his colleague Trivedi. As per statement of PW 14 Raj Kanojia, on 21. 06. 98 at about 12. 30 hrs. on hearing the sound of firing, he came down the stairs to entrance gate of officer's quarter. Ascertaining the incident from the Security guard and the Sergeant, he joined his colleagues in chasing the miscreants. He disposed that instead of surrendering his arms, one of the miscreants fired at the police officers. The miscreants could be apprehended, as he made a frantic effort to board a taxi in waiting. All the appellants were identified by the witness at the time of trial. PW 14 further claimed that the accused Nishar Ahmed was also found carrying a single shorter improvised fire arm. ( 19 ) PW 15 Sankaran Ramkrishnan found a person lying on pool of blood near gate No. 3 of the Body Guard Lines with four persons with fire arms encircling him. As stated by PW 15, the sentry was calling for help. The witness hurried down the stairs and joined his colleagues mr. Harirajan and Mr. Zulfikar Hassan in their consorted effort to nab the miscreants. He claimed that the person who ran towards Diamond harbour Road had a fire arm in his hand. That men opened fire, targeting them. It was sheer luck that it missed the target. The miscreant made a desperate effort to flee off, boarding taxi in waiting. The miscreant, however, could be apprehended before he Could get in. The witness also confirmed that two other miscreants could be arrested by one sergeant belonging to the Calcutta Police. The remaining one was nabbed by a Sub-Inspector of Calcutta Police. Identifying all the four appellants, the witness claimed that those persons were apprehended by them after their unsuccessful bid to escape. ( 20 ) PW 16 is an important witness for the prosecution. He had the occasion to see the incident right from its beginning. The remaining one was nabbed by a Sub-Inspector of Calcutta Police. Identifying all the four appellants, the witness claimed that those persons were apprehended by them after their unsuccessful bid to escape. ( 20 ) PW 16 is an important witness for the prosecution. He had the occasion to see the incident right from its beginning. PW 16 to S. P. Singh was the driver of the taxi which was availed of by the appellants on that eventful date. As stated by PW 16, six boys stopped his vehicle while it was heading towards Watganj Police Station. He was not in favour of six passengers traveling together in the taxi. Ignoring his protest, the aforesaid six persons forcibly stormed into the taxi. The taxi then moved on with those six passengers. Finding a person on shorts, those occupants asked the driver to stop the vehicle. The person in short took his seat on the front row of the taxi. The vehicle moved on National library Avenue after crossing Diamond Harbour Road. At that juncture, the occupants of the vehicle pounced on the person in shorts, as told by PW 16 in his examination-in-chief. The witness further disclosed that the occupants on the rear seat had revolvers and razors in their possession. Frightened by their activities, the taxi driver tried to speed off. The driver lost control of the vehicle and in the result it dashed against the wall of the Body Guard Lines. The witness forced open the door of the taxi and took to his heel. After 20/25 minutes came back only to find the man in short lying in injured condition. The appellants were also duly identified by him at the time of the trial. ( 21 ) PW 17 Mr. Zulfikar Hassan and PW 18 Harirajan confirmed the factum of the apprehension of the appellants. They also confirmed that the appellant Sk. Sarfaraz had fired from his revolver, targeting the police officer. ( 22 ) THE post mortem on the body of the deceased Umar Khan had been conducted by PW 21 Dr. Amitava Das. On examination of the dead body, the doctor found the following injuries :-"i) one incised cut throat injury 7" x 1" muscle vessel - thyroid cartilage over anterior surface of neck. ii) Incised injury 1 " x ' X muscle over right side of anterior neck. Amitava Das. On examination of the dead body, the doctor found the following injuries :-"i) one incised cut throat injury 7" x 1" muscle vessel - thyroid cartilage over anterior surface of neck. ii) Incised injury 1 " x ' X muscle over right side of anterior neck. iii) Incised injury 1 " x ' X muscle over right side of anterior neck which was 1" below injury No. l. iv) Incised injury 1" x X muscle over lateral aspect of light chest wall. On discretion, further injuries were seen. Those were :-v) Incised injury 1 " x ' X muscle over lateral aspect of right chest wall. On further discretion and stressing the target of wound, the following injuries were seen :-vi) Incised injury 1" x ' X muscle over left side of anterior abdominal wall. vii) Incised injury " x ' Xmuscle over anterior aspect of right thigh. viii) Abrasion 2" x 1" over left anterior shoulder, ix) Abrasion 4" x over left anterior chest wall. x) Incised injury 1" x 1/2" X muscle over posterior aspect of left forearm. 9 xi) Perforating wound of gun injury with a diameter of 1" x having reddish margin with abrasion. On dissection, laceration of liver and commuted fracture on the 5th rib could be detected. xii) There was also wound of exit of size 1" x in circular shape over the anterior surface and right chest wall of anterior midline. " ( 23 ) THE doctor affirmed that the death was due to combine effect of the injuries as noted in the post mortem report. He viewed it as homicidal and anti mortem in nature. The doctor reasoned that injuries no. 11 and 12 might have been caused by firearms. ( 24 ) AS per statement of PW 3 Bablu Dutta, the appellant Nabi Box led the police officer to the first floor of the hospital. On reaching there, he brought out one packet from behind a picture in frame. The packet was opened in their presence. Two rounds of cartridges were found inside the packet, as testified to PW 3 and PW 4 who were also witnesses of the seizure. Identifying the appellant Md. Asfaque, the witness testified that in pursuance of the statement of the person and being led by him, they had been to the first floor of the hospital. Two rounds of cartridges were found inside the packet, as testified to PW 3 and PW 4 who were also witnesses of the seizure. Identifying the appellant Md. Asfaque, the witness testified that in pursuance of the statement of the person and being led by him, they had been to the first floor of the hospital. The said accused brought out one packet of polythene sheet which contained two rounds of cartridges. Those were seized and labeled in presence of the witness, as claimed by PW 4. ( 25 ) PW 8 Kalipada Saha was a witness of the seizure of fired cartridges. As per his statement, the police personnel recovered one fired cartridge from the ground near a jeep which was parked there. The seizure of the taxi and broken spectacles was made outside the gate No. 3 in their presence, as confirmed by PW 8. ( 26 ) PW 23 Ardhendu Sengupta happened to be the senior Scintific officer of State Forensic Science Laboratory. The improvised pistols were examined by him. He found it for use. The fired cartridge was also examined. He expressed his view that piercing of the body by bullet from pistol depends on the velocity. ( 27 ) FROM the statements of PW 1, PW 2, PW 14, PW 15, PW 17 and pw 18, it emerges that all the appellants made a consorted effort to prevent the person in short escaping from their dragnets. It reveals from their statements that the person made an frantic effort to save his life by entering into the Body Guard Lines Compound. It was brought to light that all the appellants were equipped with revolvers. The miscreants tried to escape from the spot after the injured had collapsed into the ground. As per statement of PW 1 and PW 2, the appellants tried to pin him down on the front seat of the taxi. The injured succeeded in setting himself free. Opening the door, the appellants also went after the injured with revolvers in their hands. One of them, namely, Sk. Sarfaraz also fired at him. All these facts do indicate that they did share the common intention of murdering him. ( 28 ) PW 16, the taxi driver, was the prime witness of the prosecution. The incident of assault was narrated by him in verbatim. One of them, namely, Sk. Sarfaraz also fired at him. All these facts do indicate that they did share the common intention of murdering him. ( 28 ) PW 16, the taxi driver, was the prime witness of the prosecution. The incident of assault was narrated by him in verbatim. As per his statements, six persons including the appellants squeezed into his taxi despite his protest. One the way, they picked up a person in shorts. Uttering the provocative words - "mardo Mardo", the occupants of the taxi pounced on the person in shorts. It reveals that despite being overpowered, the injured did manage to come out of the taxi. He ran towards the Body Guard Lines in a futile bid to save his life. One of the miscreants went on firing at him. Eventually, he collapsed into the ground. The post mortem report (Ext. 24) tends to confirm that the deceased had sustained bullet injury. He also suffered incised injury as well. There is evidence to the effect that the injured was attacked with razors and revolvers. The medical report confirms the factum of the injured sustaining incised as well as perforating wounds. The injured was struck with sharp cutting instruments. The miscreants also fired at him. What the witness testified finds adequate confirmation from the medical report. ( 29 ) TO sustain a charge under section 302/34 IPC, overt act of all the participants need not be explained. What it is required to be proved is whether they are actuated by common intention. It is to be seen whether there was meeting of mind before. It has come out in evidence that all the appellants along with others boarded a tax with revolvers in their possession. The injured was picked up on the way of their destinations. It was well within the taxi that the miscreants including the appellants pounced on him with razors revolvers. They tried to pin him down on the front seat of the taxi, as testified to PW 1, PW 2, and pw 16. The injured was hotly chased by all of them even after he had managed to wrench himself free from their clutches. They ran after him with revolvers in their hands. One of them even fired at the person whose wearing apparels were stripped. The injured was hotly chased by all of them even after he had managed to wrench himself free from their clutches. They ran after him with revolvers in their hands. One of them even fired at the person whose wearing apparels were stripped. All these facts and circumstances do indicate that all the appellants acted in consorted manner with their common intention of eliminating the person called Umar Khan. ( 30 ) IT is contended on behalf of the appellants that the appellant Sk. Sarfaraz swung into action after Umar Khan had made an unsuccessful bid to murder Md. Asfaque. Since firing was made to protect the life of one of their colleagues, such act in self defence would not constitute an offence of murder. It is urged that the act done in self defence would come within the purview of section 100 of the Indian Penal Code. ( 31 ) AS per section 96 of Indian Penal Code, nothing is an offence which is done in exercise of right of private defence. It has been further clarified in section 100 of the Indian Penal Code. It enlists the situations when the right of private defence of the body extends to causing death, occasioning the exercise of the right. It has been enumerated as follows :-"firstly - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequences of such assault; secondly - Such an assault as may reasonably cause the apprehension that grievous hut will otherwise be the consequences of such assault; thirdly - An assault with the intention of committing rape; fourthly - An assault with the intention of gratifying unnatural lust; fifthly - An assault with the intention of kidnapping or abducting; sixthly - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. " ( 32 ) THE consorted efforts of the appellants, we are afraid, do not come within the purview of any of the circumstances as listed and enumerated in section 100 of the Indian Penal Code. The materials on record do not bear out that Umar Khan made an unsuccessful attempt to murder Md. Asfaque well inside the taxi. " ( 32 ) THE consorted efforts of the appellants, we are afraid, do not come within the purview of any of the circumstances as listed and enumerated in section 100 of the Indian Penal Code. The materials on record do not bear out that Umar Khan made an unsuccessful attempt to murder Md. Asfaque well inside the taxi. What we find from the statements of the eye witnesses is that the injured Umar Khan desperately tried to wrench himself free from the clutches of the appellants, although they tried to pin him down. The injured was a literally outnumbered and overpowered by the appellants and their associates. They were also armed with revolvers and razors. There was nothing on record to show that the injured Umar Khan was armed to the teeth. The scuffling went on with the applicants trying to pin the injured down, while the inured making a frantic effort to set himself free. Md. Asfaque might have sustained some minor injuries in the process. The police personnel also fired at the miscreants when they were trying to make off. The possibility of the bullets striking Md. Asfaque at the time of his escape cannot be ruled out. Such facts, in no way, support the plea of the appellants that Umar Khan made an unsuccessful attempt on the life of Md. Asfaque. The facts are altogether different. It was on record that Md. Asfaque and their associates pounced on Umar Khan well inside the taxi with revolvers and razors. They also tried to pin him down on the front seat of the taxi. One of the appellants even fired at Umar Khan when he made a desperate attempt to save his life by entering into the Body Guard Lines Compound. All these facts negate the plea of self defence. The deliberate act of the appellants to eliminate a person does not come within the purview of section 100 of indian Penal Code. Nothing was done in self defence. Their consorted efforts resulted in untimely death of a person. It was certainly not an act in self defence, rather it was a deliberate and consorted efforts to eliminate a person by applying brutal method. It was the culmination of their common intention to get rid of Umar Khan. That they were actuated by common intention is well established by direct and circumstantial evidence. It was certainly not an act in self defence, rather it was a deliberate and consorted efforts to eliminate a person by applying brutal method. It was the culmination of their common intention to get rid of Umar Khan. That they were actuated by common intention is well established by direct and circumstantial evidence. As observed by the Lordships in Hariram v. State of U. P. , reported in 2005 SCC (Cri) 321, for application of section 34 ipc, it is not necessary to prove the overt act on the part of the accused persons. The element of common intention is to be drawn and inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. This is what the prosecution has successfully executed. The story as projected by the appellants is not believable. It is true that prosecution side has not come out with evidence as to how Md. Asfaque got minor injuries. Non-explanation of the injuries on the person of Md. Asfaque by prosecution cannot weaken the otherwise strong prosecution case. It has been highlighted by the apex Court in a case reported in 2005 SCC (Cri) 178 that non explanation of the injuries by the prosecution will not affect the prosecution case. Where injuries sustained by the accused are minor and superficial or where the evidence is so clear, cogent, so independent and disinterested, so probable, consistent and creditworthy that it outweighs the effect of the omistion to explain the injuries. Viewed from all these aspects, we do not find any reason whatsoever to disagree with the finding so arrived at during the trial. We are constrained to say that there is practically no merit in the appeal. In the result, the Criminal Appeal No. 334 is dismissed with the affirmation of the conviction and sentence against all the appellants. Send down the LCR to the Trial Court with a copy of the Judgment. Let another copy of the judgment be served upon Superintendent of jail/correctional Home where the appellants are presently lodged for their information. Appeal dismissed