JUDGMENT A.C. Upadhyay, J. 1. This appeal is directed against the judgment and order dated 21.9.2004 passed by the learned Addl. Sessions Judge, Dhubri in Sessions Case No. 61 of 1999. By the aforesaid judgment and order all the three appellants namely, (1) Md. Salu Miah, (2) Md. Abdul Wahab and (3) Md. Khayer Uddin were convicted under Sections 302/34, IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 2,000 in default to suffer rigorous imprisonment for three months. 2. The case of the prosecution as unfolded in the FIR, reveals that late Bakta Zamal Sheikh, younger brother of the complainant, namely, Md. Jahirul Haque (PW2), had gone to his paddy field at Purana Diara, Telipara Village at about 11 a.m. on 11.4.1997. At that time, the accused above named, Md. Salu Miah, Md. Abdul Wahab and Md. Khayer Uddin arrived at the paddy field and picked up quarrel with Bakta Zamal Sheikh and started assaulting him with sharpened 'fala's (spears) which resulted in the death of Bakta Zamal on the spot. 3. PW2, Jahirul Haque, the first informant, after having been informed by Samsul Bari, PW3 immediately came to the place of occurrence and found Bakta Zamal, lying dead with injuries. Thereafter, PW2 straightway came to Mankachar Police Station and lodged an ejahar. The officer-in-charge of Mankachar Police Station, on receipt of ejahar registered Mankachar P.S. Case No. 57 of 1997 dated 11.4.1997 under Sections 447/302 read with Section 34 of the IPC, and launched investigation. During the course of the investigation the Investigating Officer (I.O.) recorded statement of the witnesses, seized one 'fala' (sharp spear) and wooden stick from the place of occurrence and thereafter prepared the inquest report over the dead body and sent the dead body to the Dhubri Civil Hospital for post mortem examination. The I.O., during the course of investigation prepared a sketch map of the place of occurrence and also recorded the testimony of witnesses. 4. On completion of the investigation, the I.O. submitted charge sheet against all the appellants above named alleging commission of offence under Sections 447/302/34, IPC. The case was committed to the Court of Sessions Dhubri for trial by learned SDJM, (Sadar), Dhubri. 4. On completion of the investigation, the I.O. submitted charge sheet against all the appellants above named alleging commission of offence under Sections 447/302/34, IPC. The case was committed to the Court of Sessions Dhubri for trial by learned SDJM, (Sadar), Dhubri. During the course of trial, learned Sessions Judge, Dhubri, finding sufficient materials to frame charge against the accused above named under Section 302 read with Section 34, IPC, framed formal charges aforesaid against accused facing trial. On reading over and explaining the charges aforesaid, all the accused persons pleaded not guilty and claimed to be tried. Prosecution side examined as many as 6 witnesses including the I.O. and the Medical Officer, who conducted the post mortem examination of the deceased. Another witness, namely, Mustt. Nur Banu Khatun was also examined as court witness (CW1) in this case. 5. On completion of recording of all the prosecution evidence the statements of the accused were recorded as per provision of Section 313, Cr.PC. In their defence statement all the accused/appellants took the plea of total denial. However, the appellants declined to adduce defence witness in this case. On completion of the trial, the accused appellants have been convicted and sentenced as aforesaid giving rise to the present appeal. 6. We have heard Mr. A.M. Majumdar, learned senior Counsel assisted by Mr. G.S. Sarkar, Counsel for the accused appellants and also heard Mr. Z. Kamar, learned P.P., Assam. 7. In order to delve into the facts of the prosecution case for the purpose of appreciating the arguments advanced by the appellants as well as the respondent's Counsel, it will be in fitness of things to briefly notice the evidence given by the prosecution witnesses. 8. PW1, Mustt. Sanja Khatun is the wife of the deceased Bakta Jamal. In her statement she revealed that on the date of occurrence at about 11.00 a.m. her deceased husband together with her son. Samsul Bari had been working in their own field near the house of accused Salu. In the meantime, there was quarrel with the accused regarding ridge of the boundary of the land belonging to PW1. After a little while accused, Salu and Wahab came armed with falla (spear) and lathi to the place of occurrence, where PW1 was also working around the place with her husband and son. In the meantime, there was quarrel with the accused regarding ridge of the boundary of the land belonging to PW1. After a little while accused, Salu and Wahab came armed with falla (spear) and lathi to the place of occurrence, where PW1 was also working around the place with her husband and son. PW1 saw the accused, Salu inflicting penetrating injury on the body of her husband below his chest and above the belly with the 'fala'. The 'fala' pierced through the body of the deceased. Her husband fell down on the ground and became unconscious. Thereafter, the accused Wahab, hit her husband on the head with lathi, and the accused Khayer Udin also assaulted her husband with lathis. She stated that her deceased husband sustained severe injuries on different parts of his body, as a result of which he became unable to stand up and died a little later. PW1 stated that her son, Samsul (PW4), who was also present in the place of occurrence, witnessed the incident. 9. PW2, Jahirul Haque, who is the younger brother of the deceased, Bakta Jamal was informed at his residence by his nephew, Md. Samsul Bari, PW3, about the killing of his brother by the accused. On receipt of such information he came to the place of occurrence and found Bakta Zamal lying dead with his face down. PW2 saw stab injuries on the back and other parts of the dead body of Bakta Zamal. Sanja Khatun, Nur Banu and many others were present at the place of occurrence. Having found his brother dead he went to the Police Station and lodged ejahar. PW2 in his deposition also stated to have identified the falla (spear) and wooden lathi, which was seized from the house of the accused, Salu by the Police, after the occurrence. 10. PW3, Samsul Bari, is the son of the deceased. In his deposition PW3 stated that he was working in the paddy field along with the deceased together with PW1, Sanja Khatun and Nur Banu (mother of Sanja Khatun). At that time the accused, Khairuddin and Fozal came to the place of occurrence and called his father at about 8/10 cubits inside their land in order to correct the boundary ridge in between the land belonging to them and the accused Salu. When the accused persons and his father were working in the ridge, a quarrel ensued. At that time the accused, Khairuddin and Fozal came to the place of occurrence and called his father at about 8/10 cubits inside their land in order to correct the boundary ridge in between the land belonging to them and the accused Salu. When the accused persons and his father were working in the ridge, a quarrel ensued. When the quarrel was going on between them accused Salu picked up a 'fala' (spear) from nearby and stabbed his father in the left side of the waist. The iron portion of the 'fala' pierced the body of his father and his father started bleeding. After having been stabbed by a 'fala' his father fell down on the ground on his face. At that time, the accused Fazal ordered Salu, "hit him more, hit him more" whereupon the later dealt another stabbing blow on the waist of his father. His father started bleeding from the injuries. At that time the accused Wahab dealt some blows with the wooden lathi on the head of his father, as a result of which his father sustained crushing injury on his head and fell down on the ground and died. By seeing this, PW3 ran towards the house of Jahirul Haque and informed PW2. PW3 stated in his deposition that after the occurrence, Police came to the place of occurrence. Having come to know from the police of the locality that the accused persons had fled to the house of the accused Salu, the Police went to the residence of the accused and seized the 'fala' and the wooden lathi. PW3 also recognized the seized wooden lathi and 'fala' (spear) which was seized by the Police at the place of occurrence. The defence Counsel cross-examined the witnesses thoroughly. However, cross-examination of PW1, PW2 and PW3 did not yield any substantial result to shake the prosecution version. 11. PW4, Nurjamal Sheikh at about 9 a.m. on the date of occurrence was ploughing his land. PW4 saw the deceased Bakta Jamal also ploughing his own land. In the meantime PW4 witnessed an altercation between the accused and the deceased. On seeing the accused persons quarrelling with the deceased, PW4 went near the place of occurrence and saw accused Wahab dealing with a blow on Baktar Jamal's head with lathi. After the accused Fazal and Salu saying 'maar, maar' (hit hit). At that, the accused. In the meantime PW4 witnessed an altercation between the accused and the deceased. On seeing the accused persons quarrelling with the deceased, PW4 went near the place of occurrence and saw accused Wahab dealing with a blow on Baktar Jamal's head with lathi. After the accused Fazal and Salu saying 'maar, maar' (hit hit). At that, the accused. Salu stabbed Baktar Jamal with the "fala". Thereafter, Salu, dealt with another stabbing blow with the same 'fala' on the right armpit of the deceased. PW4 saw accused Khairuddin hitting on the head of the deceased and other parts of the body with lathi. PW4 saw the deceased bleeding profusely from the injuries. Thereafter, by leaving the lathi and 'fala' (spear) at the residence of Salu, accused persons fled the scene. PW4 stated that when he raised alarm wife of the deceased, Sanja and Nur Banu came to the place of occurrence, as the place of occurrence was near their own residence. PW4 proved his signature in the inquest report, Exbt. 1(1) and the seizure list by with Ext. 2(1) by which a 'fala' and a lathi was seized by the Police. PW4 identified the material exhibit 'fala' and lathi and the description of the 'fala' as having 6 ft long handle with six inches long metal point and a 'lathi', both of which were seized from the house of accused Salu. 12. PW5, Shri Suna Ram Gogoi, S.I. of Police stated that after registration of the case under Sections 447/302/34 of IPC, on receiving the Ejahar, Ext. 3, he visited the place of occurrence, recorded the testimony of witnesses and also seized One 'fala' (spear) and a wooden stick in presence of witnesses. PW5 also prepared the Inquest Report of the dead body and forwarded the dead body for post mortem examination. 13. PW6, Dr. Sayedur Rahman, who was working as M&H.O.-1 at Galpara Civil Hospital on 12.4.1997 performed the post mortem examination of Baktar Jamal, 35 years, Male Muslim and found the following injuries: Injuries: 1. Crush injuries of the skull placed on the back on right side occipital bone on the right and posterior part of right parietal bone is crushed, brain is also crushed. 2. Penetrating injury on the right hypocardiac region in the anterior axillary line on dissection the would extend upward and injured the right labe of liver with severe bleeding. Crush injuries of the skull placed on the back on right side occipital bone on the right and posterior part of right parietal bone is crushed, brain is also crushed. 2. Penetrating injury on the right hypocardiac region in the anterior axillary line on dissection the would extend upward and injured the right labe of liver with severe bleeding. Size 5 cm x 2 cm (external). 3. Penetrating wound on the left side of chest between 6th and 7th ribs in mid auxiliary line size 4 cm x 2 cm on dissection the injured left lung and enters into left ventricle with severe bleeding. 4. Penetrating injury on the back of chest in the mid line about the level of 10th Thorax vertebrae - on dissection enters up to the bone. 14. In the opinion of Dr. Rahman, the cause of death is due to shock and haemorrhage as a result of injuries sustained by the injured. PW6 also proved Ext. 6, the post mortem report of the deceased. The injuries described by PW6 fully corroborates with the eye witnesses account of the fact. 15. PW6, Dr. Sayedur Rahman, in his cross-examination clarified that the injuries sustained by the deceased could not have been caused due to fall on a single pointed object, but it can be possible if there is successive falls of the kind. However, as the cause of death is not disputed by the defence there is no reason to analyze the post mortem report of the Doctor to find out the cause of death. However, the nature and the extent of the injuries sustained clearly reflect the amount of brutality involved in inflicting fatal injuries on the body of the deceased on a broad day light. 16. On an application made by the petitioner, the learned Sessions Judge recorded testimony of CW1, Nurbanu Khatun, wife of the deceased Baktar Jamal, who was present near the place of occurrence. However, her statement was not recorded by the I.O. during investigation. 17. In her deposition, CW1 stated that on the date of occurrence her husband, wife Sanja Khatun and son Samsul were weeding out in jute cultivation grown on their own land. At about 11/11.30 a.m., accused Khairuddin called away her husband to a distance of about 150 cubits in order to correct the boundaries. 17. In her deposition, CW1 stated that on the date of occurrence her husband, wife Sanja Khatun and son Samsul were weeding out in jute cultivation grown on their own land. At about 11/11.30 a.m., accused Khairuddin called away her husband to a distance of about 150 cubits in order to correct the boundaries. At that time she saw the accused Khairuddin and her husband who were having some altercations between them. In the meantime, the accused Fazal came and asked the accused Salu to hit the deceased with lathi. Then the accused Salu, brought a 'fala' from his house and thrust it on Baktar Jamal near the belly causing penetrating injury which came out from the opposite side of the body. Her husband fell down on the ground on his chest. In the meantime, accused Waheb came to the place of occurrence and assaulted with a lathi on the head of the deceased, as a result of which brain substance came out through the ear of the deceased. 18. In the midst of hearing of the appeal on being pointed out by the learned Public Prosecutor in order to remove inherent errors apparent on the face of the records, in the construction of the sentences in the evidence of PW3, Samsul Bari this case was remitted back to the learned court of Sessions, Dubri, with a direction to re-examine the witness only to clarify the facts relating to misconstruction of the sentences which had crept in while recording his deposition. The learned P.P., drew our attention to the relevant part of sentences, which read as follows: I went in a run to the house of PW2 Jahirul Haque and informed PW1 of the incident. She came to the place of occurrence and found the dead body of my father lying on the ground. PW2 went to the thana and brought police along to the place of occurrence; 19. The sequence in the sentence reflected while recording the testimony of PW3 incorrectly identified as PW2 as PW1. 20. In view of the order passed by us the learned Sessions Judge, Dhubri, re-summoned PW3, Samsul Bari and recorded his evidence. PW3 was also allowed to be cross-examined by the defence Counsel. The evidence of PW3 is reproduced herein below: I have given evidence in this case previously. I was PW3 then, PW2 Jahirul Haque had given evidence. 20. In view of the order passed by us the learned Sessions Judge, Dhubri, re-summoned PW3, Samsul Bari and recorded his evidence. PW3 was also allowed to be cross-examined by the defence Counsel. The evidence of PW3 is reproduced herein below: I have given evidence in this case previously. I was PW3 then, PW2 Jahirul Haque had given evidence. He is the complainant in this case. After I had informed him of the incident he had lodged the ejahar at Mancachar Thana and had brought police along. My first wife Sajya Bewa (Khatun) is PW1 in this case. I had informed Jaharul Haque my preceding witness and the complainant of this case of the incident. But in my previous statement I had not mentioned that Musstt Sajua Khatun (PW1) had lodged the ejahar. * * * I myself had not lodged the ejahar at the thana. My mother who had been at home and at the place of occurrence, had not lodged the ejahar PW2 Jahirul has been living near my house. There is no river in between out house. It is not a fact that I had not given any information to Jahirul (PW2). 21. PW3, in his evidence clarified that he had informed PW2, Jahirul Haque and also clarified that he had not mentioned that Musstt Sajua Khatun (PW1) had lodged the Ejahar. In his cross-examination, PW3 denied the suggestion of the defence that he did not give any information to Jahirul (PW2). PW3 further confirmed that the Ejahar in the police station was not filed by Sajua Khatun, PW1. 22. On scrutiny of the evidence adduced by PW Nos. 1, 2 and 3 it clearly transpires that PW Nos. 1 and 2 are the eye witnesses of the occurrence and their evidence is corroborative in nature. PW2, who arrived at the place of occurrence, corroborated the testimony of PW Nos. 1 and 3. The Ejahar in the case was lodged in time. Deposition of PW2 supports the contents of the Ejahar in all material particulars. The evidence of the P Ws. 1, 2 and 3 when read conjointly with the post mortem report of the deceased coupled with circumstances revealed by the medical witness unerringly lead to the conclusion that the eye witnesses fully corroborated the testimony of the medical evidence. Deposition of PW2 supports the contents of the Ejahar in all material particulars. The evidence of the P Ws. 1, 2 and 3 when read conjointly with the post mortem report of the deceased coupled with circumstances revealed by the medical witness unerringly lead to the conclusion that the eye witnesses fully corroborated the testimony of the medical evidence. The brutality and severity in causing the injury indicated that the deceased succumbed to death instantaneously after the injury, which has been corroborated by the witnesses. Cross-examination of the eye witnesses by the defence could not bring home any substantial fact to disbelieve the prosecution case. 23. Learned Counsel for the appellants strenuously contended that the omission in the testimony of the PW4 is major omission which has cast a shadow in the testimony of the witnesses. PW4, Md. Nur Zamal Sheikh, was ploughing in his field near the place of occurrence. He deposed that when he was working in the field at about 9:00 a.m. on the date of occurrence his uncle, Bakta Zamal (deceased) was also in the field. In the mean time, all the three accused persons picked up quarrel over fixing boundary of their land, PW4 came near the place of occurrence when the quarrel was going on saw that the accused Wahab struck on the head of the deceased by means of a stick. Charge sheeted accused Fazal (absconder) directed the accused Salu to continue the assault. Thereafter accused Salu pierced Bakta Zamal by means of a 'fala' which went through his back. PW4 stated that the deceased immediately fell down on the ground and started bleeding. When the deceased was about to die, accused Khayeruddin struck on his head by means of a lathi. PW4 also stated that due to injuries on the head, the deceased died on the spot. As the occurrence took place on broad daylight, many persons gathered at the place of occurrence. The police, who came afterwards, conducted inquest over the dead body and also seized one 'fala' and one wooden stick from the house of accused Salu in presence of the witnesses. As the occurrence took place on broad daylight, many persons gathered at the place of occurrence. The police, who came afterwards, conducted inquest over the dead body and also seized one 'fala' and one wooden stick from the house of accused Salu in presence of the witnesses. In the cross-examination the PW4 denied to have stated before the police that at the time of incident he was working at the place of occurrence and further that Wahab, Khayer and Fazal picked up quarrel with the deceased and accused Wahab had struck Bakta Zamal by means of a wooden lathi and that Fazal told Salu to continue the assault and further that accused Salu pierced the back and chest of Bakta Zamal by a 'fala'. PW4 also proved the seizure of the weapon of assault used by the accused and the inquest report. 24. PW5, the Investigating Officer confirmed that PW4 did not state the aforementioned facts before the police. Hon'ble Supreme Court in Jaswant Singh v. State of Haryana (2000) 4 SCC 484 held that, an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked to the witness. The relevant extract of the decision reads as follows: 47. Section 161(2) of the Code requires the person making the statements "to answer truly all questions relating to such case put to him by such officer.... "It would, therefore, depend on the questions put by the police officer. It is true that a certain statement may now be used under Section162 to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Previously, the law was as enunciated in Tahsildar Singh v. State of U.P. as: (i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box; 48. Now the explanation to Section 162 provides that an omission to state a fact in the statement may amount to a contradiction. However, the explanation makes it clear that the omission must be a significant one and "otherwise relevant" having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 49. However, the explanation makes it clear that the omission must be a significant one and "otherwise relevant" having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 49. Reading Section 161(2) of the Criminal Procedure Code with the explanation to Section 162, an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. In this case the investigating officer, PW13 was not asked whether he had put questions to Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had caused the injuries. The deposition of PW4 do not reveal a new story, as such the evidence given by other eye witnesses cannot be said to have been rendered unreliable. In any view of the matter the omission aforementioned itself cannot fonder the forthright evidence of eye witnesses, PW Nos. 1 and 3, to the occurrence, futile and discredited. 25. On careful perusal of the evidence of the prosecution witnesses, it transpires that the accused salu played a vital role in causing severe injury upon the person of the deceased. The other accused persons, namely, Wahab and Khayer also participated actively in the assault by causing murderous assault upon the person of the deceased by inflicting severe injuries. Presence of the accused coupled with their active participation clearly reveals the action of the accused to be in furtherance of their common intention. In Parasa Raja Manikyala Rao v. State of A.P. (2003) 12 SCC 306 , Hon'ble Supreme Court observed that the section really means that 'if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well-recognized canon of criminal jurisprudence that the courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object, each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. Where parties go with a common purpose to execute a common object, each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the parties, is deemed in the eye of law to have been given by every individual present and abetting'. The precession and brutality in which the murder was carried out by the accused by individually participating unmistakably reflects a concerted effort of the accused in furtherance of their common intention. 26. The next question to be ascertained in this case is as to whether the evidence of the prosecution witnesses has established all the essential ingredients of offence of murder under Sections 302/34 of the IPC. The testimony of eye witnesses is very clear to show that accused Salu pierced the body of the deceased on different position by means of a 'fala'. Similarly all other accused persons struck the deceased on vital organs of the body and caused multiple injuries. It is not in dispute that the death of the deceased resulted from the injuries sustained by him. The evidence of the witnesses discussed above does not justify the defence stand of denial. The Medical evidence and the testimony of witnesses do not support the view that the injuries sustained by the deceased could have been caused by falling on sharp object. Falling on pointed object could not have caused the multiple injuries sustained by the deceased. From the evidence on record there is absolutely no doubt of the fact that the death of the deceased was caused by the accused persons. The materials on record have clearly established beyond all reasonable all doubt that the accused-appellants committed the crime of causing death of the deceased. Now, question arises, whether the accused-appellants did so intentionally? As a matter of fact, direct evidence may not be available to prove intention of a human being. It can very well be inferred from the facts and circumstances of the case. 27. Now, question arises, whether the accused-appellants did so intentionally? As a matter of fact, direct evidence may not be available to prove intention of a human being. It can very well be inferred from the facts and circumstances of the case. 27. On careful examination of the circumstances leading to the death of the deceased, which was caused by the accused appellants by choosing the vital parts of the body for causing assault and the brutality of the injuries and the weapons of assault used by the accused in committing the crime with prior design and with necessary preparation clearly reflects the intention of the accused persons in committing the offence of committing murder. 28. After having given thoughtful consideration on the complete facts leading the occurrence, we are of the considered view that prosecution side could establish the charges framed against all the accused appellants beyond all reasonable doubt and there is no scope to interfere with the findings of conviction and the sentence imposed by the learned trial court. Consequently, the appeal preferred by the appellants, is hereby dismissed affirming the conviction and sentence awarded by the learned Additional Sessions Judge, Dhubri, in Sessions Case No. 61/99. 29. The Registry is directed to send the LCR of this case to the Court of Sessions Dhubri, immediately, together with a copy of this judgment and order. Appeal dismissed