JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 10.1.2005, passed in Sessions Case No. 24(DM) of 2001, the appellant herein, namely, Md. Asir Ali, stands convicted under Sections 302 and 457, IPC and sentenced, for his conviction under Section 302, IPC, to suffer imprisonment for life and also to suffer, for his conviction under Section 457, IPC, imprisonment for a period of one year with fine of Rs. 1,000/- and, in default of payment of fine, suffer imprisonment for a further period of one month, the sentences having been directed to run concurrently. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 28.1.1992, at about 1.30 a.m., Asir Ali (i.e., the accused-appellant herein), accompanied by Md. Rafiul Hussain and Sirajul Hussain, broke open the door of the house of Jalil Ali (since deceased) by cutting the same with an axe. On coming inside the house, the appellant, along with Md. Rafiul Hussain and Sirajul Hussain, entered into that room, wherein Jalil Ali (since deceased) was sleeping. Jalil Ali, had two wives, namely, Lehertun Begum and Mabia Begum (since deceased). Both the wives of Jalil Ali were also sleeping in the room, where Jalil Ali was sleeping. The appellant assaulted Jalil by dagger and axe. When deceased Jalil's said two wives tried to save their husband, they too were assaulted. Some of those, who had come to the said house along with the appellant, surrounded the house so that the neighbourers cannot come in. They tied Jalil's son, Tafazzul (PW 1), to a post with a rope and assaulted him with a Lathi. In the lamp, which was lying lit inside the room where Jalil was assaulted, the assailants were recognized by Jalil's wife, Lehartun (PW 5). Immediately after the assailants' left, Faizal (PW 2), another son of Jalil, who had run away from the place of occurrence, Naushad Ali (PW 3), a close relative of Jalil, came to the said house and were told by Jalil that Asir Ali was present amongst the assailants. Immediately after the witnesses had arrived, Jalil succumbed to his injuries. Both his wives were taken to hospital, where they were treated. After about six months of the occurrence, Jalil's wife, namely, Mabia Begum, died. However, Jalil's other wife, Lehertun Begum (PW 5), has survived. Immediately after the witnesses had arrived, Jalil succumbed to his injuries. Both his wives were taken to hospital, where they were treated. After about six months of the occurrence, Jalil's wife, namely, Mabia Begum, died. However, Jalil's other wife, Lehertun Begum (PW 5), has survived. On receiving an information on 28.1.1992, at about 4 p.m., that a dacoity had place at the house of Jalil, the police came, held inquest over the dead-body, seized the broken door and also the lamp. On completion of investigation, police laid charge-sheet against the present appellant and the two others, namely, Rafiul and Sirazul, under Sections 457 / 324 / 302 /34, IPC. 3. During trial, charges, under Sections 457, 302 and 324 read with Section 34 of the IPC, were framed against all the three accused, namely, Asir Ali, Rafiul Hussain and Sirajul Hussain. To the charges so framed, all the accused pleaded not guilty. 4. In support of their case, prosecution examined altogether nine witnesses. The three accused were, then, examined under Section 313, Cr PC and, in their examination aforementioned, they denied that they had committed the offences alleged to have been committed by them, the case of the defence being that all the accused had been implicated, in the case, because of property dispute in which Asir Ali's family, on the one hand, and deceased Jalil Ali's family, on the other, were involved. 5. While the learned trial Court did not find any reason to convict Rafiul Ali and Sirajul Ali, for any of the offences charged with, the learned trial Court held the accused, Asri Ali, guilty of the offences under Sections 457 and 302, IPC. Following the findings so reached, accused Asir Ali was convicted and sentences were passed against him as mentioned hereinabove. Hence, the present appeal. 6. We have heard Mr. J.M. Choudhary, learned senior counsel, for the appellant, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 7. Drawing attention of this Court to the injuries found on the dead-body of Jalil Ali, Mr. Hence, the present appeal. 6. We have heard Mr. J.M. Choudhary, learned senior counsel, for the appellant, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 7. Drawing attention of this Court to the injuries found on the dead-body of Jalil Ali, Mr. Choudhary submits that the nature of injuries clearly indicates that more than one person had assaulted Jalil inasmuch as the said deceased is shown to have sustained two incised wounds on his hands, which were, admittedly, not grievous and one lacerated injury on the parietal region of his scalp, exposing the brain matter, which proved to be fatal, and while the said incised wounds could have been caused by sharp cutting weapon(s), the injury on the parietal region of the scalp was caused by some blunt object, which, according to prosecution, was an axe. In such circumstances, contends Mr. Choudhary, it was the duty of the prosecution to prove that the fatal injury, i.e., the injury on the parietal region of the scalp, was caused by the accused. It is contended by Mr. Choudhary, there is no reliable evidence on record implicating the accused-appellant inasmuch it is PW 5, points out Mr. Choudhary, who claims to have witnessed the accused-appellant assaulting her husband, Jalil, by both axe and dagger. Such description of occurrence, according to Mr. Choudhary, is inherently improbable and can be given no credence at all. Moreover, further points out Mr. Choudhary, the lone eye-witness, namely, PW 5, wife of the deceased, claims to have sustained injuries at the hands of the appellant on the left side of her abdomen, whereas the findings of the doctor show that she had sustained injury on the right side of her chest. Coupled with all such disquieting facts, it is also necessary to bear in mind, contends Mr. Choudhary that PW 5 claims to have recognized accused Asir in the light of an earthen lamp. In the dimlight of an earthen lamp, it would not have been possible, according to Mr. Choudhary, for PW 5 to recognize the assailants. 8. It is further submitted by Mr. Choudhary that deceased Jalil and all his sons were, admittedly, accused in the murder case of Asir Ali's son-in-law. This apart, points out Mr. Choudhary, there were, admittedly, disputes between the parties over properties. In such circumstances, it is quite possible, submits Mr. Choudhary, for PW 5 to recognize the assailants. 8. It is further submitted by Mr. Choudhary that deceased Jalil and all his sons were, admittedly, accused in the murder case of Asir Ali's son-in-law. This apart, points out Mr. Choudhary, there were, admittedly, disputes between the parties over properties. In such circumstances, it is quite possible, submits Mr. Choudhary, that the present appellant was implicated out of grudge or suspicion and/or both. There is, according to Mr. Choudhary, no credible evidence on record, which could have led the Court to confidently hold the present appellant guilty of the offence of which he has been found guilty and stands convicted. 9. As far as the evidence of PW 3 and PW 4 are concerned, both of them claimed, points out Mr. Choudhary, that they were reported by Jalil, immediately preceding his death, that he had recognized accused Asir Ali as one of the assailants. These unbelievable pieces of evidence, in the light of the other evidence on record, cannot be believed at all; so contends Mr. Choudhary. 10. Though PW 1 (Tafazzal Ali), son of the deceased also claims to have recognized accused-appellant, Asir Ali, Mr. Choudhary submits that even this witness's evidence, on a close scrutiny, would appear to be wholly untrustworthy. The entire case of the prosecution, eventually, hinges, points out Mr. Choudhary, on the sole testimony of PW 5, but her sole testimony, according to Mr. Choudhary, is not of such a quality, which could have made it legally possible for the learned trial court to convict the accused-appellant. In this regard Mr. Choudhary has further submitted that though PW 5 had named Rafiul Hussain and Sirajul Hussain as the persons, who had entered into their house, the learned trial Court has acquitted them and, hence, in these circumstances and on the same evidence, the learned trial Court could not have convicted the present appellant, especially, when there is no credible evidence to show as to who had caused the fatal below on Jalil. 11. It is further submitted by Mr. 11. It is further submitted by Mr. Choudhary that the witnesses examined by the prosecution are members of the same family and no independent witness has been examined to show that the deceased and/or the injured or the inmates of the house had told anyone, immediately after the occurrence, that the appellant and his associates had entered into their house and caused death of Jalil Ali. Thus, there was, according to Mr. Choudhary, wholly insufficient evidence to found conviction of the accused-appellant and, hence, the impugned judgment and order may be set aside, the appellant be held not guilty of the offence charged with and be acquitted. 12. Controverting the submissions made on behalf of the appellant, learned Public Prosecutor has submitted that the description of the occurrence, given by PW 5, is wholly reliable inasmuch as her evidence implicating the appellant has remained wholly unshaken. Even the fact, points out the learned Public Prosecutor, that there was an earthen lamp kept lit inside the house and the light emanating from it was sufficient to recognize the persons, who had entered into the room of Jalil, who was sleeping therein with his two wives, has not been questioned or disputed by the defence. It is not impossible, points out the learned Public Prosecutor, that Jalil Ali had assaulted Asir with both axe and dagger. It is not the evidence of PW 5, points out the learned Public Prosecutor, that both the said weapons were used simultaneously by accused Asir. It is, therefore, possible, contends the learned Public Prosecutor, that accused Asir Ali had given blows with axe and dagger not simultaneously, but one after the other. Hence, merely because of the fact that two weapons are ascribed to have been used by the appellant, while assaulting the deceased, the evidence of PW 5, which is, otherwise, creditworthy, cannot, according to the learned Public Prosecutor, be thrown away. 13. The learned Public Prosecutor further submits that in the facts and circumstances of the present case, the inmates of the house were natural witnesses and, hence, when the learned trial Court, for good reasons, have found the evidence of PW 5 believable, there was no legal impediment, on the part of the learned trial Court, to convict the accused-appellant. 13. The learned Public Prosecutor further submits that in the facts and circumstances of the present case, the inmates of the house were natural witnesses and, hence, when the learned trial Court, for good reasons, have found the evidence of PW 5 believable, there was no legal impediment, on the part of the learned trial Court, to convict the accused-appellant. The relatives of a victim need not necessarily be, contends the learned Public Prosecutor, treated as interested witnesses and when PW 5 was herself an injured, her evidence when remained unshaken, could have been made foundation and has been correctly made foundation of conviction of the accused-appellant. In support of his submission, the learned Public Prosecutor has placed reliance on Dinesh Kumar v. State of Rajasthan reported in (2008) 8 SCC 270 . 14. Proceeding further with his argument, the learned Public Prosecutor has also submitted that the fact that there were property disputes between the parties was all the more reasons for the appellant to have put to death Jalil, who was persecuting the case against the family of the accused for killing of his son-in-law. In the facts and circumstances of the present case, the conviction of the accused-appellant, according to the learned Public Prosecutor, is based on legally sustainable evidence and may, therefore, be maintained. 15. Bearing in mind the rival submissions made before us, when we turn to the evidence on record, what we notice is that PW 1, one of the sons of the said deceased, was, admittedly, one of the persons, who was present at the house, where the occurrence had taken place. This witness's evidence is that after entering into the house, the accused beat his father and, on hearing the commotion, he (PW 1) proceeded towards the room, where his father was sleeping, but some of those, who had entered into his house prevented him from going into the room, beat him (PW 1) at his courtyard and tied him. PW 1 claims that he could recognize accused Asir Ali among those, who had entered into their house. It is in the evidence of PW 1 that his father, his mother and his step-mother were assaulted by those, who had entered into their house, and as a result of the injuries so sustained, his father died and after about six months, his step-mother, Mabia Begum, too died. It is in the evidence of PW 1 that his father, his mother and his step-mother were assaulted by those, who had entered into their house, and as a result of the injuries so sustained, his father died and after about six months, his step-mother, Mabia Begum, too died. It is also in the evidence of PW 1 that the people from the neighbourhood came and untied him, whereupon he (PW 1) became unconscious and he regained his senses at the hospital, where he saw his father's dead body. 16. On a close scrutiny of the cross-examination of PW 1, what transpires is that according to (PW 1), since accused Asir Ali had tied him, he (PW 1) recognized accused Asir Ali. The Investigating Officer (PW 7) has, however, proved that no such assertion was made by PW 1 at the time, when his statement was recorded during investigation; rather, during investigation, this witness had claimed that he had recognized accused Sirajul. 17. Thus, the evidence given by PW 1 that he had recognized Asir Ali cannot be believed, particularly, when he had not stated before the police that accused Asir Ali had tied him up. The assertion of PW 1 that he had recognized accused Asir is an assertion, which PW 1 has made, for the first time, at the trial. This assertion is a substantial improvement made by him on his previous statement. Such improved version, in the absence of any explanation, cannot be readily believed in or relied upon. It is, therefore, wholly unsafe to rely on the evidence of PW 1 that he had recognized accused Asir. 18. It is the clear evidence of PW 1 that except Asir Ali, he did not recognize any other person; whereas his statement made before the police, during investigation, shows that the only person, whom he claimed to have recognized, was accused Sirajul. Thus, the evidence of PW 1 that he had recognized Asir Ali cannot be believed at all. This inference gets strengthened from the fact that this witness claims to have remained unconscious until the time, he regained his senses at the hospital, but the prosecution never claimed that he was medically examined and/or treated. Even PW 1 does not claim that he was treated at the hospital. This inference gets strengthened from the fact that this witness claims to have remained unconscious until the time, he regained his senses at the hospital, but the prosecution never claimed that he was medically examined and/or treated. Even PW 1 does not claim that he was treated at the hospital. In such circumstances, we find PW 1 is a witness, who cannot be believed at all and we are firmly of the view that the evidence of PW 1 that he had recognized accused-appellant, Asir Ali, can be given no credence at all. 19. Turning to the evidence of PW 2 (Md. Faizul Al), another son of the said deceased, it needs to be noted that according to this witness, hearing the commotion, he, out of fear, went to another room and it was only after the assailants had left their house that he went to his father's room and saw his father lying injured. PW 2 claims that his father told him about accused Asir Ali's presence at the place of occurrence and that his father died about half an hour of the departure of the dacoits from their house. The Investigating Officer has, however, confirmed that PW 2 had not stated, during investigation, that his father had told him the name of accused Asir. The omission of the fact that his father had told him that accused Asir was present, at the place of occurrence, is a major omission and such an omission cannot but be regarded as a vital contradiction. Thus, it is, for the first time, at the trial, that PW 2 claimed that his father had named Asir as a person, who was present at the place of occurrence. The improvement, so made, in his evidence, by PW 2 makes him an unreliable witness, for, had his father told him that accused Asir was present at the place of occurrence, there is no reason why he would not have named accused Asir, in his statement, made before the police, as a person, whose name had been reported to him by his father as one of the assailants. As far as this witness (PW 2) is concerned, he had, admittedly, not seen any of the accused inasmuch as his clear evidence, in cross-examination, is that he had not seen the accused either arriving at their house or running away from their house. As far as this witness (PW 2) is concerned, he had, admittedly, not seen any of the accused inasmuch as his clear evidence, in cross-examination, is that he had not seen the accused either arriving at their house or running away from their house. Thus, the prosecution derives no strength for their case from the evidence of PW 2 too. 20. Turning to the evidence of Naushad Ali (PW 3), who is also a close relative of the said deceased, we notice that according to this witness's evidence, hearing hue and cry, he came to the place of occurrence and found Jalil lying injured and, on being asked, Jalil told him (PW 3) that he had seen Asir amongst the dacoits, who had assaulted him. It is in the evidence of PW 3 that he made Jalil drink a little water and, then, Jalil died. As against the claim so made by PW 3, the Investigating Officer has confirmed that PW 3 had never stated, during investigation, that Jalil had named accused Asir; rather, what PW 3 had told before the police was that Jalil had asked for water and, on being given water, Jalil stopped talking. Thus, it is, for the first time, at the trial, that PW 3 claimed that Jalil had named accused Asir as one of the assailants. Such improved evidence cannot inspire confidence of the Court. This apart, PW 5, wife of the deceased, (whose evidence we will shortly discuss), has clearly deposed that on being assaulted, her husband died instantly. In view of the fact that PW 5 was, admittedly, one of the injured and she claims to be an eye-witness to the occurrence and when her evidence is to the effect that her husband died instantly and when her evidence gives no indication that her husband told anyone as to who had assaulted him, it strengthens our belief that the claim of PW 2 and PW 3 that they had been reported by Jalil that he had recognized accused Asir Ali, can be given no credence at all. 21. The above discussion of the evidence on record, now, brings us to the evidence of PW 5 (Lehertun Begum). According to her evidence, on the night of the occurrence, someone knocked at the door and on; opening the door, three persons came inside the room. 21. The above discussion of the evidence on record, now, brings us to the evidence of PW 5 (Lehertun Begum). According to her evidence, on the night of the occurrence, someone knocked at the door and on; opening the door, three persons came inside the room. PW 5 claims that she was hacked at her abdomen and her husband was also assaulted. It is in the evidence of PW 5 that she recognized accused Asir by the light of the lamp, which was lying lit inside the room. It is also in the evidence of PW 5 that accused Asir cut her husband with axe and dagger and her husband died instantly. PW 5 has deposed that her husband was cut in his hands and head and she had witnessed the occurrence herself. PW 5 has also deposed that accused Asir had caused cut injuries on the left of her abdomen with a dagger and that the said accused also caused cut injury on Mabia Begum (since deceased). PW 5 has further deposed that accused did not take away anything. 22. Before we proceed to test the credibility of the evidence of PW 5, we may refer to the evidence of PW 8, a doctor, who had examined both PW 5 and Mabia Begum (since deceased) and the evidence of PW 9, (the doctor), who had performed post-mortem examination on the dead body of deceased Jalil. 23. According to the evidence of PW 8, he had examined both PW 5 and Mabia Begum, on 28.1.1992, at Mangaldoi Civil Hospital and found, on the person of Mabia Begum (since deceased), the following injuries: 1. Two sharp cut injuries over the occipital region of the head, size 3" x 1/2" scalp deep. 2. One sharp cut injury over the abdomen size 2" x " skin deep. 3. Sharp cut injury over the right chest size 1" x 1/4" skin deep. 4. Sharp cut injury right thumb size 1/2" x 1/2" skin deep. 24. It is in the evidence of PW 8 that duration of the injuries was fresh at the time of examination and that the injuries were caused by sharp weapon. In the opinion of PW 8, the injuries were simple in nature and the patient remained in hospital till 12.2.1992. 25. On PW 5, PW 8 found the following injuries: 1. Multiple lacerated injuries over the head. 2. In the opinion of PW 8, the injuries were simple in nature and the patient remained in hospital till 12.2.1992. 25. On PW 5, PW 8 found the following injuries: 1. Multiple lacerated injuries over the head. 2. Sharp cut injury over right chest size 2" x " x skin deep. 3. Sharp cut injury over right index size 1" x skin deep. 26. It is in the evidence of PW 8 that duration of the injuries was fresh at the time of examination and that the injuries were caused by blunt and sharp weapon. In the opinion of PW 8, the injuries were simple in nature. 27. The fact that the injuries were found, on the person of Mabia Begum and PW 5, as have been described by PW 8, was never disputed inasmuch the defence declined to cross-examine PW 8. 28. From the evidence of PW 8, it becomes clear that Mabia had sustained several injuries and that the injuries had also been sustained by PW 5 on her person. Thus, PW 5 had, undoubtedly, sustained injuries on her person in the said occurrence. 29. The fact that an occurrence, as described by PW 5, had taken place inside her house is not in dispute. What is in dispute is as to whether the present appellant was one of the assailants or one of persons present along with those, who had come to the said house and assaulted deceased Jalil and his two wives. In this regard, we have already pointed out above that PW 5 was, undoubtedly and admittedly, one of the injured persons. Her evidence cannot, therefore, be readily discarded. The reference made, in this regard, by the learned Public Prosecutor to the case of Dinesh Kumar v. State of Rajasthan reported in (2008) 8 SCC 270 , is not entirely misplaced. 30. We may pause here to point out that that a close relative of an injured or a deceased is neither incompetent nor inherently unreliable or partisan witness. In fact, the relatives of an injured or deceased, particularly, relatives such as, mother, father, widow and/or children of an injured or deceased would, in the absence of anything showing to the contrary, be the last persons to screen the real offender and falsely implicate an innocent. In fact, the relatives of an injured or deceased, particularly, relatives such as, mother, father, widow and/or children of an injured or deceased would, in the absence of anything showing to the contrary, be the last persons to screen the real offender and falsely implicate an innocent. We may make it clear that in a given set of facts and circumstances, a relative may, in fact, be most natural witness. The present one is one of such cases, because it was natural for PW 1 and PW 6 to be present at home and it was also natural for the said deceased to tell them, in injured condition, as to who had caused injuries on his person. Viewed from this angle, it becomes clear that the evidence of PW 1 and PW 6 cannot be discarded merely because of the fact that they are relatives of the said deceased. In Dalbir Kaur v. State of Punjab AIR 1997 SC 472, the Apex Court has, while dealing with similar controversy, observed thus, "Moreover, a close relative, who is a very natural witness, cannot be regarded as an interested witness. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused person is, somehow or the other, convicted either because he had some animus with the accused or for some other reason." 31. Dealing with the question as to whether a member of the family of an injured or deceased, particularly, if such a member is a female person can or cannot be relied upon, the Apex Court, in Dilip Singh and Ors. v. State of Punjab reported in AIR 1953 SC 364 , observed and held as under: 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the, fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. If the foundation for such an observation is based on the fact that the witnesses are women and that the, fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one, which another Bench of this Court endeavoured to dispel in the case of Rameshwar v. State of Rajasthan, AIR 1952 SC 54 at pl 59(A) : (1952) Cri LJ 547). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel. 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. 32. From the observations made in Dilip Singh (supra), it becomes clear that merely because of the fact that a witness is a woman, her evidence cannot be discarded and that a close relation of a deceased, such as, PW 5, had no reason to falsely implicate an innocent person, such as, the present appellant, and let off thereby the real culprit. 33. 33. Even in Dinesh Singh (supra), the Apex Court has clarified that testimony of an injured witness need not necessarily be eyed with suspicion, for, an injured would not shield the real culprit and rope in innocent persons. 34. In the present case, in the light of the position of law as discussed above, when we turn to the case at hand, we notice that since PW 5 was not only an injured, but was also the wife of deceased Jalil, she would not leave the real culprit and on account of enmity, implicate the accused-appellant. It needs to be borne in mind that enmity is a double-edged weapon. While enmity prompts a person to falsely implicate his enemy, enmity becomes the cause of assault on a person by his enemy. 35. In the factual setting of the present case, we must, however, cautiously deal with the evidence of PW 5, because possibility of her implicating the appellant does exist. At the same time, we must hasten to clarify that we cannot commence examination of the credibility of the evidence of PW 5 with a suspicious mind. A cautious mind is different from a suspicious mind. What is, therefore, required is a cautious and dispassionate scrutiny of the evidence of PW 5. 36. Bearing in mind the position of law as discussed above, when we revert to the evidence of PW 5, we note that though PW 5 has claimed that he had been injured at the left side of her abdomen, no such injury was found on her abdomen. The fact, however, remains that a sharp cut injury on the right side of her chest has been found. For an ordinary village woman, there is hardly any difference between chest and abdomen, for, the same fall, more or less, in the same area. In such circumstances, the bare fact that PW 5 claims to have sustained injuries on her abdomen and the doctor found injury on her right chest cannot make PW 5 an unreliable witness. 37. Turning to the evidence of PW 8, what we notice is that deceased Jalil had sustained two incised wounds, one on the dorsal aspect in his right hand and the other on the left hand. 38. Both the injuries, in the light of the evidence of doctor (PW 8), were caused by sharp cutting weapon. 37. Turning to the evidence of PW 8, what we notice is that deceased Jalil had sustained two incised wounds, one on the dorsal aspect in his right hand and the other on the left hand. 38. Both the injuries, in the light of the evidence of doctor (PW 8), were caused by sharp cutting weapon. What also transpires from the evidence of the doctor is that the said deceased had suffered a lacerated injury over the right parietal bone, which injured his scull membrane exposing the brain matter. It is in the evidence of PW 8 that the injury, on the right parietal bone, was sufficient to cause death of a person in the ordinary course of nature. A wound, such as, the one, which was found on the right parietal bone of the said deceased, could not have been caused by a blunt edge of an axe. Thus, while the injury on the head could have been caused by an axe, the incised wound at the hand of the deceased could have been caused by a dagger. Mr. Choudhary is, therefore, correct when he contends that the said deceased had sustained injuries, which had been caused by two distinct weapons. Before, however, of the fact that the said deceased had sustained injuries by two weapons, Mr. Choudhary contends, as already indicated above, that one person cannot be expected to assault his victim by two weapons. 39. Keeping in view the fact that the said deceased could have assaulted by both axe as well as dagger, when we revert to the evidence of PW 5, we notice that according to her evidence, accused Asir Ali gave blows on her husband with axe as well as dagger and her husband died instantly. For the kind of injuries, which Jalil had, in the light of the medical evidence on record, sustained on his head, it was quite possible that he died instantly, as deposed to by PW 5. 40. The question, however, is as to whether the evidence given by PW 5 that Asir Ali was the person, who had caused injuries on her husband by axe and dagger can be believed. 40. The question, however, is as to whether the evidence given by PW 5 that Asir Ali was the person, who had caused injuries on her husband by axe and dagger can be believed. This question is, to a large extent, dependant on the answer to the question as to whether it was at all possible for those, who were present inside the room, where Jalil Ali was assaulted, to have recognized the assailants. 41. With regard to the above, the evidence of PW 5 is clear and precise. Her evidence is that a lamp was lying lit inside the house and she recognized accused Asir Ali in the light of the lamp. In her cross-examination, PW 5 has clarified that it was a large kerosene lamp, which was burning inside the house. We have put the cross-examination of PW 5 to a microscopic scrutiny. Interestingly enough, what we find from the cross-examination of PW 5 is that the defence did not even dispute that a large kerosene lamp, as deposed to by PW 5, was lying lit inside the house. Thus, it is admitted position that when Jalil, his wife, Mabia (since deceased) and PW 5 were assaulted inside their room, a large kerosene lamp was burning inside their room. In such circumstances, when accused Asir Ali is a relative of PW 5 and was known to PW 5, it was quite possible for PW 5 to have recognized accused Asir Ali. Consequently, the question of PW 5 not being able to recognize the assailants did not arise. The question, therefore, is as to whether PW 5 could have truthfully deposed that accused Asir Ali had assaulted her husband Jalil with both axe and dagger. 42. We may pause, at this stage, to point out that it is not the evidence of PW 5 that her husband was assaulted by axe and dagger simultaneously. It is also not elicited from PW 5 as to whether accused Asir had first used axe or dagger. In such circumstances, what remains in the evidence of PW 5 is that her husband had been assaulted by accused Asir by both axe and dagger. It is also not elicited from PW 5 as to whether accused Asir had first used axe or dagger. In such circumstances, what remains in the evidence of PW 5 is that her husband had been assaulted by accused Asir by both axe and dagger. Since it is not in the evidence of PW 5 that both these weapons were simultaneously used, it would be reasonable to infer that though accused Asir had allegedly used both the said weapons, the weapons, in question, had not been used simultaneously. A cautious examination of the injuries sustained by the said deceased shows, as already indicated above, that there were two incised wounds, one on the dorsal aspect of the right hand and the other on the left hand. Both these injuries could have been caused if Jalil had tried to resist the assailants. In such circumstances, it is quite possible that having attacked Jalil by a dagger and having received resistance, the assailants had given blow with axe on the parietal region of the scull of Jalil leading to his instant death. In such circumstances, it cannot be said that it is impossible for a person to have been assaulted by both axe and dagger at the hands of one and the same person. So long as we do not exclude this description of the occurrence as wholly improbable, the evidence given by PW 5 cannot be discarded. In view of the fact that we are unable to discard the evidence of PW 5 as wholly improbable, we see no reason to disbelieve her evidence that her husband had been assaulted by both axe and dagger by accused Asir and died instantly. 43. It transpires from the evidence of the Investigating Officer that though the defence attempted to put to him that PW 5 had not told him (Investigating Officer) about her having recognized Asir Ali, the defence appears to have not pursued this suggestion and, therefore, the suggestion offered, to the Investigating Officer, in this regard, remained incomplete. 44. Situated thus, it is clear that if accused Asir Ali was one of the assailants, it was possible for PW 5 to have recognized accused Asir. 44. Situated thus, it is clear that if accused Asir Ali was one of the assailants, it was possible for PW 5 to have recognized accused Asir. Though the defence suggested to PW 5 that she had not told the police about her having recognized Asir, the fact remains that no such omission was put to the Investigating Officer or was confirmed by the Investigating Officer. Thus, the defence's suggestion, to PW 5, that she had not told police about having recognized Asir, remained as a mere suggestion. A suggestion, we must bear in mind, remains a suggestion unless it is concretized or probalished by evidence on record. The defence failed to elicit from the Investigating Officer if PW 5 had stated before him that she had recognized Asir. The suggestion, therefore, offered to PW 5 cannot, but be rejected as a mere suggestion. 45. It is in the evidence of PW 3 that Jalil's two wives, Mabia (since deceased) and Lahertun (PW 5), had sustained injuries and though it is also in the evidence of PW 3 that when they (Mabia and Lehertun) were asked, they were unable to say anything. Should the evidence, given by PW 3, that Mabia and Lehertun were unable to say anything be construed to mean that Mabia and Lehertun were unable to say what had happened. Both the said women, we must bear in mind, were victims of assault and had, admittedly, sustained injuries. In such circumstance, the expression, 'they were unable to say', would not necessarily mean that they were unable to say as to who the assailants were. What the words, 'they were unable to say', would mean is that, because of the injuries sustained by Mabia and Lehertun, 'they were unable to say anything'. From the sentence', "they were unable to say anytime", It cannot be inferred, and must not, in our view, be inferred, that the said two injured could not say as to who the assailants were. "Unable to say anything" does not mean unable to name the assailants what it would, in the facts and attending circumstances of the present case, would mean, if we may repeat, is that they were unable to speak. 46. "Unable to say anything" does not mean unable to name the assailants what it would, in the facts and attending circumstances of the present case, would mean, if we may repeat, is that they were unable to speak. 46. From the discussion of the evidence of PW 5, what we notice is that the defence has not been able to shake her evidence given to the effect that her husband had been assaulted by accused Asir by axe and dagger, he sustained injuries on his hands and head and that he died instantly. The defence could not also dispute the fact that it was quite possible for PW 5 to have recognized accused Asir. In the circumstances, as indicated hereinbefore, we see no reason to disbelieve the evidence of PW 5. This apart, the description of the occurrence, given by PW 5, is supported by the medical evidence on record. Furthermore, the evidence on record clearly reveals that the name of accused Asir had surfaced as assailant on the very night of the occurrence. The question, therefore, is as to what offence, if any, accused Asir Ali has committed. 47. It is imperative to note, in this regard, if we may repeat, that Mr. Choudhary has submitted that except the evidence of PW 5, there is no other evidence attributing any specific act to accused Asir. In such circumstances, submits Mr. Choudhary, it cannot be said as to who had caused the fatal injury. At best, therefore, according to Mr. Choudhary, the offence, if any, committed by the accused, could not have been graver than Section 324, IPC. It is this aspect of the case, which needs, now, some consideration by this Court. 48. While considering the submissions of Mr. Choudhary, it needs to be noted that though the charge-sheet had been submitted against three accused persons under various penal provisions read with Section 149 of the IPC, the learned Sessions Judge chose to frame charges under Sections 457,302 and 324 read with Section 34, IPC. Since charges had been framed under Sections 457, 302 and324 read with Section 34, IPC, we would make an attempt to determine if Section 34, IPC was attracted in the present case, particularly, when, out of the three persons, named in the charges, two persons, on the basis of the evidence adduced, have been found to be not guilty. 49. Since charges had been framed under Sections 457, 302 and324 read with Section 34, IPC, we would make an attempt to determine if Section 34, IPC was attracted in the present case, particularly, when, out of the three persons, named in the charges, two persons, on the basis of the evidence adduced, have been found to be not guilty. 49. Before, however, we deal with question of applicability of Section 34, IPC, what needs to be carefully noted is that in the case at hand, the evidence of PW 5 has not been disbelieved by the learned trial Court. The other two accused have, in fact, been found 'not guilty' by the learned trial Court, not because of the fact that the evidence of PW 5 was disbelieved, but because of the fact that PW 5 clearly deposed that though three persons had entered into their room, she had not been able to recognize anyone other than accused Asir. The present one is, thus, not one of such cases, where the trial Court, while convicting the present appellant, can be said to have acquitted, on the same evidence, the other two accused holding the evidence unreliable. The two accused have not been found guilty, because of the reason that PW 5 had not been able to recognize them. Treating, therefore, the evidence of PW 5 as believable, we are, now, required to determine if Section 34, IPC could have been applied in the present case. 50. Section 34, IPC states, "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." 51. It is trite that Section 34, IPC does not create substantive offence, but is really a rule of evidence. What Section 34 conveys is that if two or more persons intentionally do a thing jointly, it is as if each of them has done it individually. Common intention means an intention, which is common to each one of the persons, who is involved in the offence, or an intention, which is shared by each one of those, who are involved in the occurrence. Common intention means an intention, which is common to each one of the persons, who is involved in the offence, or an intention, which is shared by each one of those, who are involved in the occurrence. If a person is found to share an intention to commit an offence along with one or more persons and if he participates in the commission of such an offence, he would be treated to have committed the offence, which he and those, whom he had joined, intended to commit. 52. When a person is attacked by more than one person, but less than five in number, it would be the duty of the Court to determine as to what intention of the assailants was. If it is indeterminative or uncertain as to what intention of the assailants was or when it is not possible to determine that the assailants had attacked the person concerned in furtherance of an intention, which was shared by the assailants, no question of constructive liability under Section 34, IPC would arise and each one of the assailants would be liable for their own individual act; whereas, when a person is attacked by more than one person, but less than five and the Court is satisfied that the intention, shared by each one of them, was to put to death the person attacked, Section 34 would be attracted and it would be immaterial as to who was the author of the fatal blow, which caused death of the person attacked. 53. For the purpose of attracting Section 34, IPC, it is not necessary that name(s) of each of the assailants must be known. Hence, if a person, named in he charge along with an unknown person, is alleged to have assaulted a person and killed him by giving repeated blows with dangerous weapon and the multiple injuries sustained by the deceased, satisfy the Court that the intention of the assailants was to put to death their victim, the Court would be justified in inferring that the known accused, facing trial, shared a common intention with his companion, though not named, the common intention being to put to death their victim. In such circumstances, irrespective of the fact as to who had caused the fatal blow or irrespective of the fact that the name of the companion of the accused, facing trial, was not known, the accused, facing trial, can, nevertheless, held to be, guilty of the offence of murder. Such is the proposition of law, which flows from a number of authoritative judicial pronouncements. 54. In Mohan Singh v. State of Punjab, AIR 1963 SC 174 , two of the five persons, who were tried together, were acquitted, while two were convicted under Section 302 read with Section 149 and Section 147, IPC. In the charge, those five accused persons and none others were mentioned as forming the unlawful assembly and the evidence led, in the case, was confined to them. The proved facts showed that the two appellants and the other convicted person, who inflicted the fatal blow, were actuated by common intention of fatally assaulting the deceased. While examining the question of their liability, the Supreme Court, taking note of the views expressed by them in their earlier decisions, in Dalip Singh v. State of Punjab, AIR 1953 SC 364 ; Bharwad Me Pa Dana v. State of Bombay, AIR 1960 SC 289 and Kartar Singh v. State of Punjab AIR 1961 SC 1787 , observed as follows: Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the Court less than five persons to be tried, then Section 149cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial Court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under Section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under Section 149 because on the evidence the Court of facts is liable to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. 55. From the case of Mohan Singh (supra), what clearly transpires is that if the charge involves five or more persons as members of an unlawful assembly and even if, out of the persons, so facing trial, some of them are acquitted, but sufficient incriminating materials are found against the others, then, also, it is possible for the Court to convict the remaining persons, who maybe less than five in number with the aid of Section 149, IPC if those, who are held involved in the occurrence, are found to have committed the offence in prosecution of the common object of the unlawful assembly, though the remaining members of the unlawful assembly might not have been identified leading to acquittal of some of the accused. 56. 56. Krishna Govind Patil v. State of Maharashtra AIR 1963 SC 1313 , is one of the other cases on constructive liability, wherein the Apex Court, having taken note of the case of Mohan Singh (supra), held as follows: It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the Court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the Court, on the basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence. 57. Even from the case of Krishna Govind Patil '"upra), it becomes clear that if apart from the named persons facing trial, the record discloses existence of some named or unnamed persons, the court, on the basis of such evidence, may come to the conclusion that the others, named or unnamed, acted co-jointly along with the accused facing the trial. 58. The decision, in Krishna Govind Patil (supra), was followed and approved in Ram Bilas Singh v. State of Bihar reported in (1964) 1 SCR 775. In Ram Bilas Singh (supra), the Court analysed the application of constructive liability in the following words: The decisions of this Court quoted above thus make it clear that where the prosecution case as set out in the charge and as supported by the evidence is to the effect that the alleged unlawful assembly consists of five or more named persons and no others, and there is no question of any participation by other persons not identified or identifiable it is not open to the Court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof. Where, however, the case of the prosecution and the evidence adduced indicates that a number in excess of five persons participated in the incident and some of them could not be identified, it would be open to the Court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence committed by the unlawful assembly with the aid of Section 149, IPC provided it comes to the conclusion that five or more persons participated in the incident. 59. The decision, in Ram Bilas Singh (supra), clearly lays down that where the prosecution's case, as set out in the charge and/or as supported by the evidence, is to the effect that an unlawful assembly consisted of five or more persons and no others and when apart from the persons known and named, no other unidentifiable person is found to be involved, the Court would not be able to hold that there was an unlawful assembly if some of the persons, known and identified by the prosecution, are acquitted, leaving less than five persons as persons against whom there were evidence, the Court would not be able to take aid of Section 149. Where, however, the case of the prosecution and the evidence adduced indicates that more than five persons had participated in an incident and some of them could not be identified, it would be open to the Court to convict less than five persons of the offence of being members of unlawful assembly, with the aid of Section 149, provided that the Court comes to the conclusion that five or more persons, though unnamed, did participate in the incident. 60. Having referred to the decisions in Mohan Singh (supra), and Krishna Govind Patil (supra), the Court, in Maina Singh v. State of Rajasthan AIR 1967 SC 1084 , observed and held, at para 14, thus: 14. It would thus appear that even if, in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not other wise. 61. 61. From the above observations, made in Maina Singh (supra), it becomes clear that even if, in a given case, charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible for the Court to come to the conclusion that the others named or unnamed, besides those mentioned in the charge or besides those, who stand implicated on the basis of the evidence of the prosecution witnesses, acted co-jointly with one of the charged accused if there was other evidence to lead to such a conclusion. 62. Having referred to the case of Maina Singh (supra) and taking into account various other decisions, which had been considered in Maina Singh (supra), the Supreme Court, in State of Andhra Pradesh v. K. Venkata Reddy, AIR 1976 SC 2207 , reacted, on the basis of the facts disclosed in K. Venkata Reddy (supra), as follows: 53. In the FIR, it was alleged by the informant that 8 named persons and 10 unnamed persons who were not known to the informant, had conjointly committed the crime. At the trial, PW 2 testified that the total number of culprits who had participated in the commission of the murder, was 20. He named A-2 to A-5 and identified A-7, A-10 and A-12 as 8 out of those 20 culprits who had committed the crime. The evidence of PW 3 on this point was that the number of the culprits who committed the murder, while acting in concert was 17. This means according to the evidence, there were acting conjointly with A-7 at least 4 or 7 more persons in addition to the 13 who were charged by the Committing Magistrate. The medical evidence shows that there were no less than 44 incised injuries including penetrating wounds, apart from one lacerated wound, two contusions and one abrasion on the body of the deceased. Practically, he was made minced meat. The extremely large number of injuries on the body of the deceased also lends assurance to the testimony of PWs 2 and 3 that the number of assailants was more than 13 including some unnamed and unidentified persons. Practically, he was made minced meat. The extremely large number of injuries on the body of the deceased also lends assurance to the testimony of PWs 2 and 3 that the number of assailants was more than 13 including some unnamed and unidentified persons. This evidence on the record is thus sufficient to base a firm finding that apart from the accused named in the charge, there were at least one or more unidentified persons who participated in the criminal action against the deceased conjointly with A-7. While the precise number of those unidentified persons, other than the 13 named in the charge cannot be ascertained with certitude, it can safely be said that apart from. 13 named in the charge, there were some more confederates of A-7 and all of them participated in the fatal assault on the deceased in the manner alleged by the prosecution. A-7 can therefore be safely convicted under Section302 read with Section 34, Penal Code. Accordingly we allow this appeal against A-7, reverse his acquittal, convict him under Section 302 read with Section 34, Penal ' Code and sentence him to imprisonment for life. 63. The observations made above, in K. Venkata Reddy (supra), constitute clear authority for the proposition that while precise number of unidentifiable persons, (other than those, who were named and faced trial), may not be known or ascertained with certitude, yet, when the evidence on record discloses that the accused, against whom evidence exists, was involved and had participated along with the unidentifiable persons in causing the fatal assault on a person in such a manner as would lead the Court to infer that common intention, shared by all those, known as well as unknown, was to cause death of their victim, it would be quite safe for the Court to convict even one person under Section 302, IPC by taking aid of Section 34, IPC, while acquitting some of those, who may have faced trial. 64. In short, when several persons unite with a common intention to do a criminal act and those, who assist in commission of the act, would be equally guilty notwithstanding the actual part played in commission of the offence. 65. From the observations and conclusions reached in K. Venkata Reddy (supra), what transpires is that the Apex Court found that the assailants had made minced meat of their victim. 65. From the observations and conclusions reached in K. Venkata Reddy (supra), what transpires is that the Apex Court found that the assailants had made minced meat of their victim. The conclusion, therefore, which was irresistible to reach, and reached by the Apex Court, was that the assailants, whoever they might have been, intended to put complete end to the life of their victim. In such circumstances, even if one person was found to have, or recognized to have, participated in the crime, he must be held guilty of murder irrespective of the fact as to what was his degree of participation, for, what is necessary for the purpose of attracting Section 34 is not really the extent of involvement, but the intention. If a person is proved to have a common intention, such a person would be held guilty of murder even if the extent of his own involvement and/or name of those, who had accompanied him, remain unknown. 66. Bearing in mind the principle of constructive liability as envisaged under Section 34, IPC, when we turn to the case at hand, what we find is that all those, who had entered into the room, where Jalil was asleep, were aiming at Jalil as their target and intended to kill him. The attack, according to what the evidence on record reflect, was actually on Jalil inasmuch as the attack was intended to kill Jalil and Mabia Begum (since deceased) and also PW 5 were attacked only when they tried to offer resistance to the assailants, while the assailants were assaulting Jalil. Neither Mabia (since deceased) nor PW 5 received such an injury, which could have caused their death in ordinary course of nature. Though there is an assertion in the evidence of PW 5 that Mabia died, because of the injuries sustained by her, there is no supporting medical evidence on record. It becomes, thus, clear that the intention of those, who had entered into the room, was to put to death Jalil and this intention was accomplished by those, who had entered. The fact that the accused-appellant is proved to have participated in the crime is sufficient to conclude that he shared the intention of those, who had entered into the room to cause death of Jalil. The fact that the accused-appellant is proved to have participated in the crime is sufficient to conclude that he shared the intention of those, who had entered into the room to cause death of Jalil. Hence, had it not been known as to who had really caused the fatal blow, the appellants could have still been held responsible for the death of Jalil. In the face, however, of the fact that there is specific and clinching evidence given by PW 5 that her husband had been assaulted by none other than the appellant, we see no reason to hold that the appellant did not intend to cause death of the victim, Jalil. When the intention of the persons, entering into the room, was to cause death of Jalil and when Asir has, in furtherance of this common intention, given blow on his head, which caused the injury No. 1, it is not difficult to conclude and we, therefore, have no hesitation in concluding, that the appellant shared the common intention to cause death of Jalil and in view of the fact that Jalil's death was caused, in furtherance of this common intention, the appellant was guilty of the offence of murder under Section 302, IPC read with Section 34, IPC. 67. In the present case, there is no dispute with regard to the fact that the assailants had entered into the house of Jalil by breaking open the door, which amounted to an offence of house- breaking as defined in Section 445, IPC. When house breaking is committed after sunset and before sunrise, it is house breaking by night. An offence of house breaking by night is, indeed, punishable under Section457, IPC. In the present case, though the identity of those, who had accompanied the present appellant, might not have been known, the fact remains that the assailants had committed house-breaking by night and the appellant being present along with them and having, in the face of the evidence on record, shared the intention of housebreaking, was guilty of the offence under Section457, IPC read with Section 34, IPC too. 68. Because of what have been discussed and pointed out above, we find that the conclusion reached by the learned trial Court that the appellant is guilty of the offence under Sections 457 and302 read with Section 34 , IPC is not incorrect. 68. Because of what have been discussed and pointed out above, we find that the conclusion reached by the learned trial Court that the appellant is guilty of the offence under Sections 457 and302 read with Section 34 , IPC is not incorrect. Situated thus, we do not find any merit in this appeal. 69. What we, however, note, with anguish, is that the learned trial Court has not applied its mind so far as the charge under Section 324, IPC is concerned inasmuch as it has given no finding on the question as to whether Section 324 read with Section 34, IPC was or was not attracted to the facts of the present case. This apart, the learned trial Court, we are aghast to note, has not even recorded acquittal of the other two accused, who had faced trial, though in the face of the fact that they have not been found to have committed the offences charged with, they must be treated to have been acquitted. This shows the irresponsible manner in which the learned trial Court has dealt with the case at hand. 70. In the result, and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. 71. Let a copy of this order be served on the officer wherever she is posted. 72. Send back the LCR. Appeal dismissed