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2007 DIGILAW 1430 (BOM)

Chagan s/o. Kisan Koli v. State of Maharashtra

2007-10-03

P.V.HARDAS, S.P.KUKDAY

body2007
S.P. KUKDAY,J,:- Chagan Kisan Koli (accused no. 1), Narayan Shalik Choudhary (accused No.2), Bharat Uttam Koli (accused no.3) and Bhavlal Shivram Patil (accused no4) are convicted by First Ad hoc Additional Sessions Judge, Dhule, for the offences punishable under sections 307,324 and 323 r/w. 34 of the Indian Penal Code. Accused nos. 1 and 2 are convicted for the offence punishable under section 135(1) of the Bombay Police Act. Case of accused no. I was separated as he absconded at the stage of arguments. trial of accused nos.2 to 4 was completed and they were convicted of the offences with which they were charged. Thereafter, accused no. I appeared before the court suo motu, on 22nd July, 2004. On completion of the trial against him, accused no. 1 came to be convicted of all the offences by order dated 24.8.2005. For the first offence the accused are sentenced to suffer rigorous imprisonment for life and fine of Rs.10,000/- each. For the second offence, they are sentenced to suffer R.I. for three years and to pay fine of Rs.5,000/- each; for the third offence the accused are sentenced to suffer R.I. for one year and fine of Rs.500/- each and for the fourth offence accused nos.1 and 2 are sentenced to suffer R.I. for three months and fine of Rs.500/- each. The default sentence carries stipulation for non payment. Accused no.1 has filed Criminal Appeal No.677 of2005. Accused no.2 has file Criminal Appeal No.186 of 2005; and accused nos.3 and 4 have filed Criminal Appeal No.185 of 2005. All the appeals are disposed off by common order as all they arise out of the same trial. For the sake of convenience the appellants are referred to in their capacity as accused. 2. Facts of the prosecution case lie in a narrow compass. Rival groups of Shamrao Gaur (Namrata Panel) and Ashok Patil (Vikas Panel) contested Grampanchayat elections in village Bhortek, on 15th February, 2004 . Pundalik Bhila Koli, cousin of Chagan Koli (accused no.1) and Bharat Uttam Kohli (accused no.3) from Namrata Panel lost the election. The accused were annoyed with Dongar Jadhav (PW.12), Mahendra Jadhav (P.W.8) and Nitin Ahire (P.W.10) for not supporting their candidates. On 16th February, 2004. Pundalik Bhila Koli, cousin of Chagan Koli (accused no.1) and Bharat Uttam Kohli (accused no.3) from Namrata Panel lost the election. The accused were annoyed with Dongar Jadhav (PW.12), Mahendra Jadhav (P.W.8) and Nitin Ahire (P.W.10) for not supporting their candidates. On 16th February, 2004. at about 3.30 p.m. Chagan went to the barber shop of Nitin and threatened him for not supporting his cousin in the election, while Narayan (accused no.2) stayed outside the shop near the motor cycle. Some time later, these persons went towards Bhortek and returned with sword. Narayan caught Nitin and Chagan dealt blows with sword on his neck, Nitin succeeded in dodging the blows which caused injuries over his chest. Injuries were also inflicted over thigh and back, in presence of Bhavlal (accused noA) and Bharat (accused no.3). Chagan and Narayan then went to Bhortek bifurcation on motor cycle at about 4.30 p.m. where Dongar and Mahendra were gossiping. Chagan dealt sword blow which was blocked by Mahendra by right hand, sustaining injury to the palm and wrist. Narayan and Chagan then attacked Dongar with swords. Dongar blocked blow intended for the head with his hand snstaining injury to the right hand. On their arrival Bhavlal and Bharat kicked and fisted Dongar. During the progress of the assault, Mahendra ran to the nearby field. On arrival of the female labourers from the adjoining field, the assailants left the place. Dongar was taken to Thalner police station in a jeep used for public transport. As his injuries were serious, Dongar was immediately sent to Shirpur for treatment. After first aid was given, he was sent to Dhule hospital by medical officer. Dr. Agrawal. Operation was perforrnedat Dhule Civil Hospital in which muscle tendons. ulna artery and nerves of his right hand were ligated. In the meanwhile, Mahendra went to the village, where he was informed of the assault on Nitin. He then went to Thalner Police Station with villagers and lodged first information report (ExA3). On the basis of this report. offence came to be registered against the accused under sections 307.324.323.504 and 506 r/w. 34 of the Indian Penal Code and section 37(1)(3) r/w. 135 of the Bombay Police Act. at 7.30 p.m. Nitin also came to the police station. Both of them were sent to Shirpur for medical treatment. Dr. On the basis of this report. offence came to be registered against the accused under sections 307.324.323.504 and 506 r/w. 34 of the Indian Penal Code and section 37(1)(3) r/w. 135 of the Bombay Police Act. at 7.30 p.m. Nitin also came to the police station. Both of them were sent to Shirpur for medical treatment. Dr. Agrawal wound that Mahendra had sustained three injuries and Nitin had suffered four injuries mentioned in certificates (Exs.61 & 62). The potients hod given history of assault. On 17th PSI Gilish Pntil collected sample of blood stained soil and control soil from the spot under panchanama (Ex.32). Accused Bhavlal and Bharat were arrested under panchanama (Ex.33). Clothes of the victims were attached under seizure memos (Exs.36 & 38). Chagan was arrested on 27th under panchanama (Ex.64). On the same day Chagan made a confessional statement (ExA5) and produced swords from the shrubs near the river. The swords were attached under seizure memo (ExA6). On 29th Chagan made a confessional statement (ExA7) and produced motor cycle parked under Neem tree near Surya hotel. The vehicle was attached under seizure memo (ExA8). Articles attached during the course of the investigation were sent to Forensic Laboratory on 12th March. 2004. On completion of the investigation charge-sheet came to be filed against the accused. At the trial the accused adopted defence of total denial claiming that they are falsely implicated in view of the political rivalry. 3. In support of its case; the prosecution examined in all 15 witnesses. Dr. Almas (P.W. 1 ) who examined Dongar in OPD at Dhule Civil Hospital has referred to injury on right forearm extending upwards having 10 stitches; injury over palm having five stitches and tenderness over right wrist joint mentioned in injury Certificate (Ex.23). On X-ray examination he found that muscle tendons, flexor beigitorum profundus of middle finger and little finger were severed, sesamoid bone was fractured. There was a chip fracture of the dorsum of ulna in lower 1/3rd. He has also referred to the operative notes disclosing that during the operation ulna artery and nerve were identified and ligated. All the tendons were identified and sutured. In the injury certificate (Ex.23) the medical officer opined that the injuries were caused within 24 hours by hard and blunt weapon. The opinion of the medical officer is tentative and obviously erroneous. All the tendons were identified and sutured. In the injury certificate (Ex.23) the medical officer opined that the injuries were caused within 24 hours by hard and blunt weapon. The opinion of the medical officer is tentative and obviously erroneous. as the large gash can not be caused by hard and blunt weapon. The patients were examined by Dr. Agrawal. Injury Certificates (Exs.60-62) describe nature of the injury suffered by the victims. Dr. Rajput (P.W.2) has merely collected blood samples of Dongar, Mahendra and Nitin. Dr. Surekha Deshmukh (I'. WA) examined accused Chagan and Narayan. There was no injury on their person. She has also collected blood sample of these accused. Dr. Purushottam Agrawal examined Dongar at 6.20 p.m. and found that the patient had suffered two incised injuries. One was muscle deep incised wound over right forearm and bone deep incised wound on right wrist of the size of 10 x 4 x 2 ems. and the other was fracture of ulna on the right side. The injuries are described in celtificate (Ex.60). After giving first aid he sent the patient to Civil Hospital Dhule for treatment. Mahendra was examined at 8.40 p.m. Injury certificate (Ex.61) shows that he sustained three mjuries: "(1) Incised wound over left thigh lateral aspect 6 x I cm. Within six hours. caused by hard and sharp object. Nature in between simple and grievous (moderate). (2) Abrasion over left hand 3 x 1 cm within 6 hours caused by hard and blunt object, simple in nature. (3) Contusion abrasion over left leg upper 1-third, 5 x 2 cm. Within 6 hours caused by hard and blunt object, injury simple in nature. identification mark mole on right arm." Nitin who was examined at 8.50 p.m. had suffered four injuries mentioned in certificate (Ex.62). The injuries were: "(1) Superficial incised wound 4 in number. over chest anterior wall 6 x 1/2 cm. within 2 hours caused by hard and sharp object. Nature of injury moderate. (2)Incised wound over left thigh anterior aspect, 3 x 1 cm within 2 hours, caused by hard and sharp object, nature of injury moderate. (3) Abrasion over back intern scapular 3 in number, 5 x 1 cms within 2 hours by hard and sharp object. Nature of injury moderate. (4) Abrasion over left hand. 3 x 1 cm. Within 2 hours caused by hard and sharp object. Injury simple in nature. (3) Abrasion over back intern scapular 3 in number, 5 x 1 cms within 2 hours by hard and sharp object. Nature of injury moderate. (4) Abrasion over left hand. 3 x 1 cm. Within 2 hours caused by hard and sharp object. Injury simple in nature. OPD treatment was given. Identification mark mole on right shoulder." Dr. Agrawal opined that these injuries can be caused by swords articles to and 11. As there is no controversy regarding the medical evidence. it is not necessary to discuss medical evidence in detail. 4. Surveyor Ramkrishna Patil (P. W.3) has prepared sketch of the scene of occurrence (Ex.27). Chotu Patil (P.W.5) has proved panchanama of the scene of occurrence (Ex.22). Rohidas Jadhav has proved seizure memo (Ex.36) under which blood stained clothes of Mahendra and Nitin were attached. Ramesh Shinde (P.W.7) has proved seizure memo (Ex.38) under which blood stained clothes of injured Dongar were seized. Sharad Jadhav (P.W.9) has proved confessional statement of Chagan (Ex.45) and seizure memo under which blood stained swords tied in lungi were attached under seizure memo (ExA6) from thorny shrubs by the side of the road going towards the river. He has also proved memorandum and seizure memo (ExsA7 & 4S) relating to the discovery of motor cycle parked under Neem tree near Surya hotel at some distance from Bhortek bifurcation. Report of the Chemical Analyser (Ex.67) disclosed that soil of blood collected from the scene of the occun-cnce and clothes of Don gar were stained with blood of 'A' group. Full pant of Mahendra and clothes of Nitin were stained with blood of 'O' group. The swords were stained with human blood. 5. First informant Mahendra (P.W.8) stated that while he was gossiping with Dongar at the Bhortek bifurcation. Chagan and Narayan came there on motor cycle. Chagan took out two swords from cloth bag and handed over one of the weapons to Narayan. He then inflicted sword blow to him. He made an effort to avoid the blow, but it fell on right wrist and palm. Chagan then dealt 2/3 sword blows which caused injuries to his left leg. Chagan and Narayan then dealt sword blows to Dongar, who dodged the blows but suffered injuries on his wrist and elbow. Bharat and Bhavlal then arrived at the scene of occurrence. They kicked and fisted Dongar. Chagan then dealt 2/3 sword blows which caused injuries to his left leg. Chagan and Narayan then dealt sword blows to Dongar, who dodged the blows but suffered injuries on his wrist and elbow. Bharat and Bhavlal then arrived at the scene of occurrence. They kicked and fisted Dongar. Apprehending danger from the assailants, he ran to the nearby field. while he was at the field, he saw female labourers taking away Dongar in a jeep. Mahendra then went to the village, where he learnt that Nitin was also assaulted. From the village, Mahendra went to Thalner Police Station and filed report (Ex.43). Nitin also came to police station while he was there. Both of them were sent to Shirpur cottage hospitaL where Dr. Agrawal examined them. In the cross-examination Mahendra admitted that the accused had come from the direction of Manjrod. Chagan alone assaulted him. First blow was given on the right palm. second on thigh and the third blow was dealt behind knee of left leg. Mahendra admitted that report of Nitin was also recorded by the police. The witness denied the suggestion that he witnessed assault on Dongar while he was running away. He further denied that the accused arc falsely implicated on account of political rivalry or that Bhavlal and Bharat had not assaulted Dongar. 6. Nitin (P.W.10) stated that on 16th February. 2004 at about 3.30 p.m. Chagan and Narayan came to his shop on motor cycle. Chagan entered the shop and abused him for not supporting his cousin. Chagan then gave a signal to Narayan. who went towards Bhortek with Bhavlal. On their return. Chagan and Narayan came to his shop. Narayan restrained him and Chagan dealt sword blows on his neck. As he dodged. the blows fell on his chest. Chagan also inflicted injuries on his thigh and back. Bhavlal and Bharat were present there while the assault was in progress. He freed himself from the hold of Narayan by giving a jerk and went to Manjrod and from there to Bhortek, where he came to know of the assault on Dongar and Mahendra. He then went to Thalner Police Station. Mahendra was there. Both of them were sent by the Police to Shirpur Cottage Hospital for treatment. In the crossexamination. Nitin admitted that he did not file the report with the police, his statement was recorded on the next day. He then went to Thalner Police Station. Mahendra was there. Both of them were sent by the Police to Shirpur Cottage Hospital for treatment. In the crossexamination. Nitin admitted that he did not file the report with the police, his statement was recorded on the next day. Nitin admitted that his injuries were bleeding when he ran towards village Manjrod from the shop. He further admitted that holes found on his clothes were not there when they were attached from him by the police. He further admitted that Mahendra had filed report before his arrival at the police station. The witness denied suggestion that the accused are falsely implicated on account of political rivalry. 7. Dongar (P.W.I2) stated that on 16th at about 4.30 p.m. while he was gossiping with Mahendra at Bhortek bifurcation, Chagan and Narayan came there on motor cycle. Chagan first assaulted Mahendra with sword as they did not support cousin ofChagan in the election. Chagan and Narayan then assaulted him. He warded off the blow intended to be inflicted on the head by his hand, sustaining injury to the right hand. After the assault by Chagan and Narayan. Bhavlal and Bharat arrived. Both of them kicked and fisted him. While the assault on him was in progress, Mahendra ran to the nearby field. After departure of the assailants, Manoj (P.W.11) brought him to Thalner and from there to Shiprur. He was then shifted to Civil Hospital Dhule where he was treated. Cross-examination of this witness is mainly in respect of his omission to refer to accused Bhavlal and Bharat. The witness mentioned that he is illiterate and does not clearly remember whether his statement was recorded by the Executive Magistrate or by the local police, at Dhule. In the beginning Dongar denied that he did not mention names of accused nos.3 and 4 in his statement recorded by the authorities at Dhule but subsequently made an attempt to explain that as Chagan was the main culprit he did not refer to accused nos.3 and 4. 8. Manoj (P.W.II) is adjoining land holder. Fields of Don gar and Mahendra are also near his field. On the day of incident while he was working in the field at about 4.30 p.m. Manoj heard loud voices and went to the scene of the occurrence. 8. Manoj (P.W.II) is adjoining land holder. Fields of Don gar and Mahendra are also near his field. On the day of incident while he was working in the field at about 4.30 p.m. Manoj heard loud voices and went to the scene of the occurrence. He found that Chagan and Narayan who were armed with swords were threatening Mahendra and Dongar as they had not supported their panel in the Grampanchayat election. Mahendra obstructed sword blow dealt to him by Chagan with his hand. Chagan then dealt two three blows. Mahendra tried to avoid the blows but in the process suffered injuries to his leg. Chagan then turned to Dongar, Narayan joined him. Both of them dealt several blows to Dongar with sword. Dongar defended himself with his hand and suffered injuries to his right hand. Thereafter, Bharat and Bhavlal kicked and fisted Dongar. Female workers from the neighbouring field had also come to the scene of occurrence. However, no one dared to intervene as all of them knew that Chagan is a rowdy involved in several criminal cases. After departure of the assailants, he took Dongar to Thalner Police Station with his mother. The police sent them to Shirpur for treatment of the injured. As the injuries were serious, Dongar was referred to Dhule Civil Hospital. No damaging admission could be elicited from the witness during the cross-examination except that he is a distant relative of Dongar. 9. PSI Girish Patil (P.W.14) has narrated the steps taken during the investigation. In his cross-examination thrust of the defence is on the point of discovery and omissions in the statement of Dongar recorded by the Executive Magistrate and Dhu1e Police. The investigating officer has explained that Dongar was seriously injured and was immediately referred to the hospital for treatment without recording his statement. He further clarified that Dongar has not referred to accused nos.3 and 4 in his statement before the Magistrate and the Police. The investigating officer has remained firm on the point of discovery and has repelled suggestion that the discovery is not genuine. 10. On appreciation of the evidence learned Sessions Judge found that testimony of injured witnesses, corroborated by the medical evidence and the discovery of weapon at the instance of Chagan, inspires confidence. The investigating officer has remained firm on the point of discovery and has repelled suggestion that the discovery is not genuine. 10. On appreciation of the evidence learned Sessions Judge found that testimony of injured witnesses, corroborated by the medical evidence and the discovery of weapon at the instance of Chagan, inspires confidence. He further found that common intention can be inferred from the existence of the motive and participation by all the accused in the assault. In conformity of this conclusion the Sessions Judge convicted all the accused of the offences with which they were charged, though the orders were passed separately on dated 16th February, 2005 and 24th August, 2005. All the accused are sentenced to suffer imprisonment as stated earlier. 11. Adopting arguments advanced by Smt. S. S. Jadhav; learned Counsel Shri. Sabnis appearing for appellant no. 1 would argue that in view of the variance between their evidence, no reliance can be placed on the evidence of prosecution witnesses. In addition the prosecution has failed to prove discovery of weapons at the instance of accused no.1. Accused no. 1 was suffering from illV + and had to keep away for the purpose of treatment. He has surrendered himself after taking treatment; therefore, his absence should not be treated as abscondance. According to learned Counsel the prosecution has failed to establish guilt of the accused beyond reasonable doubt. The accused are, thus, entitled to an acquittal. 12. Arguing for accused nos.3 and 4; learned Counsel Shri. Deshmukh urged before us that accused nos.3 and 4 are concerned with assault on Dongar. Learned Counsel would argue that Dongar did not file report though he was first to reach Police Station and did not mention names of accused nos.3 and 4 in his statement recorded by the Executive Magistrate and the Police Officer attached to Dhule Police Station. According to learned Counsel omission on the part of Dongar, would absolve accused nos.3 and 4 of the offences with which they were charged. It is contended no reliance can be placed on the testimony of either Mahendra or Manoj, as they are interested witnesses and neither made any effort to rescue Dongar while he was being assaulted. It is contended that the trial court has committed an error in founding a conviction on the basis of evidence of interested witnesses; which does not receive corroboration from an independent source. It is contended that the trial court has committed an error in founding a conviction on the basis of evidence of interested witnesses; which does not receive corroboration from an independent source. In the alternative, it is submitted that on prosecutions own showing, accused nos.3 and 4 arri ved on the scene of occurrence after the assault by Chagan and Narayan. Therefore, it cannot be said that they shared common intention with accused nos.1 and 2 and can be convicted only for the acts committed by them. 13. Learned A.P.P. Shri. N. H. Borade supports findings recorded by the Sessions Judge on the premise that no fault can be found with the appreciation of evidence by the Sessions Judge. Shri. Borade would argue that names of all the assailants were mentioned in the information given to the Police by the first informant. Dongar was seriously injured and was not in a position to make a statement. Ocular testimony of Mahendra, Dongar, Nitin and Manoj is corroborated by the medical evidence and evidence of discovery. There are no material contradictions or omissions in their evidence, the ocular testimony of the victims show that the assailants shared common intention to commit murder of the victims. Shri. Borade would further argue that once the prosecution proves that the penultimate act was committed with the intention to commit murder, commission of the offence punishable under section 307 stands proved. [n such circumstances the nature of injuries and the site where the injuries were caused would be immaterial. Therefore, the Sessions Judge has not committed any error in relying on the evidence of the victims to convict the accused for the offences punishable under Section 307 read with 34 of the Penal Code. 14. Main thrust of the arguments of learned counsel for accused no. 1. Smt. S. S. Jadhav is on the nature of the offence established against the appellants. According to learned counsel there is no evidence to show that at the time of the occurrence the accused either threatened the victims or manifested intention to commit murder by exhortations. In the absence of such evidence, the only guiding factor would be the nature and site of the injuries. Except Dongar others have suffered minor injuries. Dongar has suffered grievous injury on hi s hand. This injury is not sufficient to cause death. In the absence of such evidence, the only guiding factor would be the nature and site of the injuries. Except Dongar others have suffered minor injuries. Dongar has suffered grievous injury on hi s hand. This injury is not sufficient to cause death. According to learned counsel, if these factors are considered, it is apparent that the accused did not have intention to commit murder. Therefore, if it is held that the accused did assault the injured, they can at the most be convicted of the offence punishable under Section 326 of the Penal Code. In support of her contention, learned counsel has placed reliance on the decisions of the Apex Court reported in 2003 Criminal Law Journal 465 : [2003 ALL MR (Cri) 788 (S.C.)] (Lallau Rai Vs. State of Bihar); AIR 2003 SC 3682 : [2003 ALL MR (Cri) 2405 (S,C.)] (Hamlet alias Sasi aud others V s. State of Kerala) and 2004 AIR SCW 849 (Chowda Mandai and another Vs. State of Bihar (now Jharkhand). 15. We have carefully scrutinized the record and proceeding with the assistance of learned counsel for both sides. Learned counsel for the appellants contends that the conviction of the appellants is based on erroneous appreciation of evidence. In appreciating oral evidence, the question which normally arises is whether the evidence of the prosecution witnesses is truthful or whether there is some infirmity which raises suspicion about the veracity of these witnesses. While appreciating evidence, the court has to consider effect of inconsistencies, exaggerations and emhellishments appearing in the evidence. Normal inconsistencies appear in the evidence of even a truthful witness on account of difference in the faculties of each individual to remember, recall and recount past events. Normal discrepancies which do not materially affect credibility of a witness nor create any infirmity in the prosecution case are generally ignored. Only those inconsistencies which tend to show that the version of the incident narrated by the witness is improbable and affects the very fabric of the prosecntion case, corrodes evidentiary value of the testimony of a witness. Though, evidence of injured witness stands on a different footing, general principles of appreciation of evidence applies to the appreciation of the evidence of injured witnesses. The court has to consider cumulative effect of the evidence to ascertain whether testimony of the prosecution witnesses is reliable or deserves to be discarded. Though, evidence of injured witness stands on a different footing, general principles of appreciation of evidence applies to the appreciation of the evidence of injured witnesses. The court has to consider cumulative effect of the evidence to ascertain whether testimony of the prosecution witnesses is reliable or deserves to be discarded. Principles governing appreciation of evidence of partisan witnesses are adverted to by the Apex Court in Masalti Vs. State of U.P., (1964)8 SCR 133 . In para 14 it is observed: 14 There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 16. In the present case it is not in dispute that there was enmity between Dongar (P.W.12). first informant Mahendra (P.W.8), Nitin (P.W.10) and accused, because the witnesses did not support candidature of Pundlik Koli and Bharat (accused no.3). Both of them had lost the election which was held on the earlier day. The incident had taken place at two places but the object was to take revenge for opposing the candidates sponsored by the accused. Both these incidents are, therefore. parts of the same transaction. Evidence of Nitin, Dongar and Mahendra is corroborated by Manoj. Both of them had lost the election which was held on the earlier day. The incident had taken place at two places but the object was to take revenge for opposing the candidates sponsored by the accused. Both these incidents are, therefore. parts of the same transaction. Evidence of Nitin, Dongar and Mahendra is corroborated by Manoj. It is contended by learned counsel for accused nos.3 and 4, Shri. Deshmukh, that no reliance should have been placed on the evidence of Manoj as he is related to Dongar. The contention that evidence of Manoj be discarded merely on account of his relationship with the victim cannot be sustained. It is not in dispute that Manoj owns field which is near the scene of occurrence. He had come to his field to carry out agricultural operations. Therefore, his presence at the scene of occurrence is natural. In addition he had taken Dongar to Thalner Police Station and from there to Shirpur and Dhule hospital for treatment. Testimony of Dr. Agrawal that Dongar was brought to the Hospital by his relatives, and evidence of Dr. Almas that Dongar was brought to the hospital by his mother, lends credence to the evidence of Manoj that he had taken Dongarto the hospital with his mother Gulabai. Inspite of searching cross-examination nothing could be brought on record to discredit Manoj. Testimony of Mahendra. Nitin, Dongar and Manoj is corroborated by injury certificates (Exs.60, 61 & 62). Dr. Agrawal has mentioned that the incised injuries referred to in the injury certificates can be caused by swords articles 10 and II. Learned Counsel Shri. Deshmukh has contended that Dongar has not referred to assault by accused nos.3 and 4 in his statement recorded by the Executive Magistrate and Police Officer attached to Dhule Police Station. Apart from the fact that these contradictions are not duly proved. it has been brought on record during the cross-examination of Dongar that he did not refer to participation of accused nos.3 and 4 as he concentrated on the assault by the main culprits by swords. The omission is explained by the investigating officer by mentioning in his cross examination that Dongar was not in a position to make a statement when he was brought to the Police Station in injured condition. Dr. Agrawal has stated that Dongar was required to be referred to Civil Hospital Dhule as his injuries were serious. The omission is explained by the investigating officer by mentioning in his cross examination that Dongar was not in a position to make a statement when he was brought to the Police Station in injured condition. Dr. Agrawal has stated that Dongar was required to be referred to Civil Hospital Dhule as his injuries were serious. Dr. Almas has proved injury certificate (Ex.23) which shows that Dongar was operated for repairing the damage caused to muscle tendons. artery and nerves. The case papers (Ex.58) vouch for this fact. Apart from this it is not in dispute that names of accused nos.3 and 4 are mentioned in the first information report (Ex.43) filed soon after the occurrence by another injured Mahendra. who had no opportunity to confer with Dongar prior to filing of this report. In the light of these facts we are unable to persuade ourselves to sustain contention of learned counsel Shri. Deshmukh that omission by Dongar to refer to the part played by accused nos.3 and 4 would falsify ocular testimony of the victims and Manoj. The fact that Nitin did not claim that accused nos.3 and 4 assaulted him, would show that the witnesses have refrained from making improvements and have stuck to the truth. Considering totality of the circumstances brought on record, even if we ignore the evidence relating to discovery, in our considered opinion, contention by learned counsels for the accused that the Sessions Judge has committed an error in appreciating ocular testimony of the victims and Manoj is devoid of substance. 17. Next contention of learned counsel is pertaining to the sharing of common intention by accused nos.3 and 4 with the remaining accused for the commission of offence. Learned counsel Shri. Deshmukh would argue that considering the sequence of events, it is apparent that the acts of accused nos.3 and 4 form a separate transaction. There is nothing on record to show that these accused shared common intention with armed assailants. The Sessions Judge has held these accused vicariously liable for the commission of offence punishable under section 307, on the premise that they shared common intention with accused nos. 1 and 2. The object for introduction of section 34 is to overcome difficulties encountered by the court in determining liability for commission of offence where it becomes difficult to ascertain acts committed by individual member of the group. 1 and 2. The object for introduction of section 34 is to overcome difficulties encountered by the court in determining liability for commission of offence where it becomes difficult to ascertain acts committed by individual member of the group. In such cases, all those who act in furtherance of the common intention, are made vicariously liable for the acts committed by other members of the group; on the principle that presence of accomplices gives support and protection to the perpetrator and encourages him to commit the penultimate act. The section envisages unity of action and community of intention. Common intention can be formed at any stage of the occurrence. The only precondition is that formation of the common intention must precede commission of the offending act. Presence and participation of each member is essential, but each of them need not actually perform an overt act. Some may contribute by keeping a vigil or preventing rescuers from intervening. The law on the point is succinctly explained by the Privy Council In Bareodra Komar Ghosh Vs. The Emperor (AIR 1925 PC 1). Explaining the true purport of the section, it is observed by Their Lordships: "The words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, 'act' includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally cooperates in the commission of that offence by doing anyone of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things 'they also serve who - only stand and wait'." 18. Applying these tests to the facts of the present case, in our considered opinion, the material on record shows that though he was present, Bhavlal (accused no.4) did not take part in the assault on Nitin. There is nothing on record to show when Bharat joined Bhavlal. Learned counsel Shri. Deshmukh has rightly pointed out that on prosecutions own showing Bhavlal and Bharat did not attack Mahendra. There is nothing on record to show when Bharat joined Bhavlal. Learned counsel Shri. Deshmukh has rightly pointed out that on prosecutions own showing Bhavlal and Bharat did not attack Mahendra. Both of them arrived at the scene of occurrence after completion of the assault by accused nos. 1 and 2. In this background, we are inclined to sustain contention of learned counsel that there was no pre-concert between accused nos. 1 and 2 and accused nos.3 and 4. The Sessions Judge has dealt with this aspect in paras 51 and 52 of the judgment (dated 16.2.2005). It appears to us that the Sessions Judge was influenced by the fact that assault by accused nos.3 and 4, immediately followed assault by other two accused. In this context it is observed that accused nos.3 and 4 were present at the time of the commission of the offence. This observation is based on conjecture and surmise. The fact that accused nos.3 and 4 did not take part in the assault on Nitin and were not present at the time of assault on Mahendra is overlooked. Mahendra speaks of arrival of Chagan and Narayan on motor cycle. After referring to the assault by these two, Mahendra states that "Meanwhile Uttam Koli and Bharat ran towards us. Both of them caught Dongar Pratap and assaulted him by kicks and fists". Dongar himself states that Bharat and Bhavlal arrived after Mahendra fled to the adjoining field and beat him. It is thus apparent that there was no pre-concert between these two groups, though the motive for both groups was the same. In the light of these facts we cannot uphold conclusion of learned Sessions Judge that all the accused were present at the scene of occurrence from the beginning and shared common intention to assault Mahendra and Dongar. In this view of the matter we sustain contention of learned counsel for accused nos.3 and 4 that these accused did not share common intention to commit murder of the victims with accused nos.1 and 2. 19. Learned Counsel Smt. S. S. Jadhav has straneously argued that the Sessions Judge has committed an error in convicting the appellants of the offence punishable under section 307 of the Penal Code. Learned Counsel would argue that the nature of the injuries and the site of injuries give a clear indication that the intention was not to commit murder. 19. Learned Counsel Smt. S. S. Jadhav has straneously argued that the Sessions Judge has committed an error in convicting the appellants of the offence punishable under section 307 of the Penal Code. Learned Counsel would argue that the nature of the injuries and the site of injuries give a clear indication that the intention was not to commit murder. According to learned counsel, at the most, the appellants can be convicted for the offence punishable under section 326 of the Penal Code. This argument is based on the nature of the injuries suffered by the victims and site of the injuries. In our considered opinion it is not permissible to consider these two factors alone for determining the nature of offence committed by the culprits. A person commits an offence under section 307 if he has an intention to commit murder and performs some overt act for accomplishing that object. The intention has to be gathered from all the circumstances and not merely from the consequences of the acts of the perpetrator. Factors such as the motive, the weapon used, the manner of commission of the offence and the site where the injuries are inflicted, furnish clue as to the intention of the perpetrator. But the decisive factor is the intention of the offender. It is not necessary in every case bodily injury capable of causing death has to be inflicted, if an overt act towards commission of murder is established, the offence is complete, even ifno injury is caused. In the present case, Nitin has testified that he was restrained by Narayan and Chagan aimed sword blow at his neck, but he dodged the blow, it fell on his chest. In the present case, Nitin has testified that he was restrained by Narayan and Chagan aimed sword blow at his neck, but he dodged the blow, it fell on his chest. Similarly, the blow on aimed at head was blocked by Dongar with his hand, Injury suffered by Dongar to his right hand does give an indication of the force employed by Chagan, The fact that such a forceful blow by the sword was intended to be inflicted on the head, does establish that the intention of the perpetrator was to commit murder of the victim, Medical evidence on record lends required corroboration to the testimony of Don gar and Nitin, Considering the fact that Chagan and Narayan were together from the beginning and acted in concert, there can be no difficulty in holding that both of them shared common intention to commit murder of Dongar and Nitin, In the light of these facts we are unable to persuade ourselves to concur with learned counsel that because the injuries are suffered on non vital parts of the body and were not capable of causing death, intention to commit murder cannot be inferred from the material on record, Learned counsel Smt. Jadhav has placed reliance on the decision of the Apex Court In HamIet Ys. State (AIR 2003 SC 3682: [2003 ALL MR (Cri) 2405 (S.C.)]). In that case the injury on head was caused due to the fall. In this background it is held that the intention of the accused was not to cause death as none of them used lethal weapons carried by them on the vital parts of Yugine. In another decision of the Apex Court relied upon by learned counsel In Lallan Rai Vs. State of Bihar (2003 Cri.L.J. 465 : [2003 ALL MR (Cri) 788 (S.C.)]) as seen from the observations in para 35 of the report though infliction of causing grievous act was established, the conviction under section 307 was altered to one under section 326 in the interest of justice. The third decision relied upon is in the matter of Chowda Mandal and another Vs. The third decision relied upon is in the matter of Chowda Mandal and another Vs. State of Bihar (2004 AIR SCW 849), conviction under section 304 read with 34 is altered to one under section 326 read with 34 of the Penal Code as it was found that the incident took place on the spur of the moment and there was no intention to kill the victim. None of these decisions are applicable to the facts and circumstances of the present case. The appellants, thus, cannot derive any benefit from these authorities. From the earlier discussion of the evidence, in the present case the intention to kill the victim has been amply demonstrated. In the light of the material on record, we do not find any fault with the finding recorded by the Sessions Judge that Chagan and Narayan are guilty of committing offence punishable under section 307 read with section 34 of the Indian Penal Code. 20. In the light of earlier discussion of the evidence on record, we confirm conviction and sentence of appellants Chagan and Narayan for the offence punishable under section 307 r/w. 34 of the India 1 Penal Code, but alter the conviction of Bharat and Bhavlal from section 307 r/w. 34 to section 323 r/w. 34 of the Penal Code and reduce the sentence to the imprisonment already undergone. In the result the appeals are partly allowed. Conviction and sentence of accused nos.1 & 2 for the offence punishable under sections 307 and 324 read with section 34 of the Indian Penal Code and section 37 (1) read with section 135(1) of Bombay Police Act read with section 34 of I.P.C. is altered to conviction under sections 326 and 324 of the Indian Penal Code and section 135(1) of Bombay Police Act read with section 34 of IPC. The sentence of imprisonment is reduced to a sentence already undergone maintaining the sentence of fine and default stipulation. Accused Nos. 1 and 2 are acquitted of the offence punishable under section 323 read with section 34 of the Indian Penal Code. Fine, if paid, be refunded to them. Conviction and sentence of accused nos.3 and 4 for the offence punishable under sections 307, 324 and 323 read with section 34 of the Indian Penal Code is quashed and set aside. They are convicted of the offence punishable under section 323 of the Indian Penal Code. Fine, if paid, be refunded to them. Conviction and sentence of accused nos.3 and 4 for the offence punishable under sections 307, 324 and 323 read with section 34 of the Indian Penal Code is quashed and set aside. They are convicted of the offence punishable under section 323 of the Indian Penal Code. The sentence of imprisonment is reduced to the sentence already undergone maintaining the sentence of fine. Accused nos.3 and 4 are acquitted of the offence punishable under sections 307 and 324 read with section 34 of the Indian Penal Code and section 37(1) read with section 135( I) of Bombay Police Act read with section 34 of IPC. Fine, if paid be refunded to these accused. Accused no.1 Chagan s/o. Kisan Koli (Criminal Appeal No.6?? of2005) be released forthwith, if not required in any other case. Bail bonds of accused no.2 Narayan s/o. Shalik Choudhari (Criminal Appeal No.186 of 2005), accused no.3 Bharat s/o. Vttam Koli and accused no.4 Bhavlal s/o. Shivram Patil (Criminal Appeal No. 185 of 2005) stand cancelled. Appeals partly allowed.