JUDGMENT GIRISH CHANDRA GUPTA 1. THIS appeal is directed against a judgment and order dated 21st March 2009 by which the learned Additional Sessions Judge, Fast Track Court-1st Court, Baruipur in Sessions Trial Case No. 4(08)05 in connection with Sessions Case No. 26(12)04 (State Vs. Akbar Khan and 4 others) convicted all the accused persons of an offence punishable under Sections 304 Part-1 and 326 of the Indian Penal Code read with section 34 thereof. The convicts were sentenced to simple imprisonment for 10 years each for the offence punishable under Section 304 Part Part-1 of the Indian Penal Code as also to pay fine of Rs. 5,000/- each and for the offence punishable under Section 326 I.P.C they were sentenced to 10 years of simple imprisonment as also to pay fine of Rs. 500/- each, in default to undergo further simple imprisonment for a period of 6 months and 2 months respectively. 50% of the fine, if realized, was directed to be made over to the legal heirs of the victim Prabhat Kr. Mitra. The convicts have come up in the appeal. 2. The facts and circumstance of the case briefly stated are as follows: On 7th February 2004 at about 11 a.m. The accused amongst others were playing cricket in the playground of the club known as Milan Sangha. The playground was in the vicinity of a School, a Post Office and a Library. Noise generated naturally affected the smooth functioning of the School, Post Office and Library. The elders of the neighborhood protested. The unruly players resented the protest and refused to budge. An altercation followed. The librarian Shyamsundar (P.W.4) was sought to be assaulted. Naturally the other elders came to his rescue whereupon some players fled away but the accused persons became violent and started mercilessly assaulting, in consequence whereof Prabhat Kr. Mitra, aged about 55 years was seriously injured who eventually passed into perpetual senselessness and died on 15th February 2004. His brothers namely Ramdas Mitra and Pradip Mitra were also seriously injured. The injury reports are exts. 2, 3 and 4. The autopsy surgeon (P.W.9) found the following injuries on the dead body of Prabhat Kr. Mitra:- 1. Over the right eyebrow there was abrasion measuring X radish blue in colour. 2. There was haematoma under the scalp involving almost all over the scalp. 3. The injury reports are exts. 2, 3 and 4. The autopsy surgeon (P.W.9) found the following injuries on the dead body of Prabhat Kr. Mitra:- 1. Over the right eyebrow there was abrasion measuring X radish blue in colour. 2. There was haematoma under the scalp involving almost all over the scalp. 3. There was a stitched wound at the right side on the frontal and parietal are of the scalp. 8 stitches were given over the injuries of length of 3. 4. There was stitched wound at the left side of scalp at frontal and temporal area. 5 stitches were given over the injury of the length of 6. 5. At right side of the temporal bone there was a crack fracture of a length of 3. 6. Separation of crenial bone switcher of length of 3 at the coronal switcher of a length of 2 at the sadital switcher at the bregma. 7. On the left side of temporal bone and parietal bone there were 4 holes which meant for surgical interference. 8. There was a subdural hemorrhage at the both sides of brain. Opinion-Death was due to the effect or incranial hemorrhage ante mortem and homicidal in nature. Kaushik Gupta, learned Advocate appearing for the appellants made two fold submissions. His first submission was that all the 5 accused persons cannot be said to have shared common intention to commit the crime punishable under Section 304 of the Indian Penal Code. According to him the accused Kasem was the key man. The rest of the accused persons were present but did not take any active role. 3. SECOND submission made by Mr. Gupta was that the conviction under Section 326 of the Indian Penal Code cannot be supported on the basis of evidence on the record. Mr. Sanyal, learned A.P.P. submitted that the common intention of all the accused persons to commit a crime punishable under Section 304 of the Indian Penal Code is more than proved by the evidence on the record. The multiple injuries found in the dead body of the deceased is also a pointer which goes to establish not only common intention but also the participation of the accused persons. As regards the submissions that Section 326 of the Indian Penal Code may not be attracted, he replied that the injuries suffered by P.Ws.5 and 6 were serious in nature. As regards the submissions that Section 326 of the Indian Penal Code may not be attracted, he replied that the injuries suffered by P.Ws.5 and 6 were serious in nature. But in any event any reduction of the gravity of the offence in connection with the assault upon the P.Ws.5 and 6 is not likely to make any significant difference because the learned Trial Judge has directed that both the sentences shall run concurrently. 4. WE have considered the submissions made by the learned Counsel appearing for the parties. Whether the appellants shared a common intention would largely depend upon their conduct because direct evidence in that regard is seldom available. It would therefore be appropriate to notice the relevant evidence on the point. The evidence of Pradip Kr. Mitra (P.W.5), an injured witness, in that regard is as follows :- On 7.2.2004, Saturday, the accused Akbar Khan, Kasem, Bhuto Khan, Najim Sanpui were playing cricket on the play ground of Milan Sangha club. While the boys were playing cricket the office of post office and the office of Govt. Library and a school were then going on. Swapan Chowdhury, a member of Executive Committee of Milan Sangha told the boys not to play cricket on the playground. Then altercation took place between the boys and Swapan Chowdhury. Kasem Sanpui after taking a stamp (wicket) in his hand attempted to assault Swapan Chowdhury. Ramdas Mitra and myself came to rescue Swapan Chowdhury from Rabindra Smiriti Pathagar came to the playground. Shyamsundar Chowdhury told the boys that as post office and library were going on, so they should not play cricket on the ground. Then the accused persons attempted to assault Shyamsundar Chowdhury. Pranab Mitra came to the place of occurrence to separate the accused persons from Shyamsundar Chowdhury. Then Kasem assaulted my elder brother Pranab Mitra with fists. Meanwhile some other boys came to the place of occurrence. The accused persons after taking bamboo after breaking down the fencing of bamboo assaulted Probhat Mitra with bamboo. 5. SWAPAN Chowdhury, Shyamsundar Chowdhury and myself were at the place of occurrence. Ramdas, also a staff of library came to the place of occurrence. Then the accused persons mercilessly assaulted us with bamboo. Kasem assaulted Probhat Kumar Mitra on his head violently with bamboo. Either Najim or Bigre assaulted me on my fore head and they also assaulted my brother Ramdas Mitra. Ramdas, also a staff of library came to the place of occurrence. Then the accused persons mercilessly assaulted us with bamboo. Kasem assaulted Probhat Kumar Mitra on his head violently with bamboo. Either Najim or Bigre assaulted me on my fore head and they also assaulted my brother Ramdas Mitra. The evidence of Ramdas Mitra ( P.W.6), another injured witnesse, is as follows:- The incident took place on 7.2.2004 at about 11 a.m. Kasem Sanpui, Nazir Sanpui, Bigre Sanpui, Bhuto Khan an Akbar Khan and other boys of Tilakpara of Futigola were playing cricket on the play ground of Milan Sangha. The accused persons and those boys were creating noise by playing cricket. SWAPAN Chowdhury a member of the Executive Committee of Milan Sangha and who has a house nearby forbade the accused persons to play cricket on the playground. He told that accused persons to go away from the play ground. But, the accused persons abused SWAPAN Chowdhury and they again went to him to assault. Hearing the hue and cry Shyam sundar Chowdhury, the librarian of Rabindra Smriti Pathagar came and the voiced protest against the play of cricket by the accused persons. But, the accused persons assaulted Shyam Sundar Chowdhury with fists, blows etc. My 2nd elder brother Probhat Mitra after hearing the hue and cry came out of the place of occurrence and came to the play ground. Prabhat Mitra also voiced protest against play of cricket on the play ground by the accused persons. Pradip Mitra my elder brother and myself also came out of her house and came to the playground. After the accused persons saw that we came out of our house then the accused persons after taking out bamboos from the fencing of the garden assaulted Pradip Mitra on his head, shoulder. The accused Kasem with great force assaulted Probhat Mitra on his head and on my head. Probhat Mitra fell down on the ground. The accused persons assaulted him. The accused Kasem Sanpui, Nazim Sanpui, Bhuto Khan, Akbar Khan and Bigre Khan are present in the court on dock (identified). Other persons fled away from the play ground. 6. The evidence of the rest of the eyewitnesses in that regard is as follows. De facto complainant Pranab Kr. The accused persons assaulted him. The accused Kasem Sanpui, Nazim Sanpui, Bhuto Khan, Akbar Khan and Bigre Khan are present in the court on dock (identified). Other persons fled away from the play ground. 6. The evidence of the rest of the eyewitnesses in that regard is as follows. De facto complainant Pranab Kr. Mitra ( P.W.1) who also was present at the place of occurrence deposed as follows :- Some boys of Tilak para were playing cricket on the play ground of the club Milan Sangha. The boys who were playing cricket were creating noises by shouting. Because of their creating noises by shouting works of post office and Government library were being affected. The post office authority forbade the boys to create the noise, but to no effect. Swapan Chowdhury, a neighbor of us came out of his house and forbade the boys to create nuisance by shouting. But, the boys abused Swapan Chowdhury and involved in altercation with him. Shyam Sundar Chowdhury who was an employee of the library came out of the library and forbade the boys to create noises. The name of the library is Rabindranath Smriti Pathaghar. The boys had altercation with Swapan Chowdhury and Shyam Sundar Chowdhury. Then the boys went to assault them. Then I came to the place of occurrence to rescue them. Then the boys of Tilak Para after breaking down fencing of bamboo took out bamboo from the fencing and chased at us to assault. Hearing the hue and cry Probhat Mitra came out from the post office. My other brothers namely Pradip Mitra, Ramdas Mitra and Samir came to the place of occurrence. My brothers and myself and tried to resist the boys from assaulting us. Kasem Sanpui assaulted Probhat Mitra on his head with a bamboo. Probhat Mitra fell down on the ground. Pradip Mitra , Ramdas and myself went to rescue Probhat Mitra. Swapan Chowdhury and Shyam Sundar Chowdhury also came to us. Najim Sanpui, Bhuto Khan, Bigre Khan, Akbar Kha and Akbal Khan assaulted Ramdas and Prabir with split bamboo. Though Probhat Mitra fell down on the ground, the accused again assaulted him. Probhat Mitra became senseless. Probhat Mitra sustained bleeding injury on his head. Swapan Chowdhury and Shyam Sundar Chowdhury also came to us. Najim Sanpui, Bhuto Khan, Bigre Khan, Akbar Kha and Akbal Khan assaulted Ramdas and Prabir with split bamboo. Though Probhat Mitra fell down on the ground, the accused again assaulted him. Probhat Mitra became senseless. Probhat Mitra sustained bleeding injury on his head. Pradip Mitra and Ramdas Mitra also sustained bleeding injuries on their head Pratul Bose, an employee of post office also came out from the post office and came to the place of occurrence. While other neighbors and some boys of our locality came to the place of occurrence, the accused flee away from the scene of occurrence. During his cross-examination the P.W.1 deposed that the deceased Prabhat Kr. Mitra had remained senseless until his death after the assault. P.W.2 reached the place of occurrence after the incident was over. He found the deceased and the P.Ws.5 and 6 lying in a pool of blood. P.W.3 Swapan Kr. Chowdhury who had taken active role seeking to convince the accused to stop the play in his evidence in that regard deposed as follows: I forbade the accused persons to play cricket on the play ground of Milan Sangha as the study of the students of the school, official work of library, official work of post office were being affected. I also requested the accused persons to leave the playground. The accused persons told me that they would not leave, as they had right to play cricket on the playground. The accused persons also abused me. 7. The accused persons attempted to assault me with stamps (wickets). Shyam Sundar Chowdhury, the librarian of the library came out of the library and came to the place of occurrence. The librarian also told the accused person to leave the playground, as he felt disturbed. Then the accused persons attempted to assault librarian. I came to the librarian to rescue him. The librarian and myself raised alarm by saying Marche, Marche. Probhat Mitra, an employee of post office came out of the post office and came to the place of occurrence. Pradip Mitra and Ramdas Mitra, two brothers of Probhat Mitra came to rescue us from the clatches of the accused persons. Then the accused persons assaulted Probhat Mitra. The accused persons broke down the fencing of bamboo and taking out the bamboo of the fencing assaulted us. Pradip Mitra and Ramdas Mitra, two brothers of Probhat Mitra came to rescue us from the clatches of the accused persons. Then the accused persons assaulted Probhat Mitra. The accused persons broke down the fencing of bamboo and taking out the bamboo of the fencing assaulted us. The accused persons also assaulted Pradip Mitra and Ramdas Mitra with bamboos. The accused persons assaulted Probhat Mitra on his head. Probhat Mitra fell down on the ground. Probhat Mitra sustained bleeding injuries on his head. The other two brothers of Probhat Mitra sustained injury to a little extent. The local boys after knowing the incident hurriedly came to the place of occurrence. Then the accused persons fled away from the place of occurrence. P.W.4. Shyamsundar is the librarian. The account given by him during his examination-in-chief is as follows : I am the Librarian of Rabindra Smriti Pathagar. Probhat Mitra is the postmaster of the post office which is under the library. Over the play of the cricket there broke out a trouble. After sensing the trouble I came to the place of occurrence. Swapan Chowdhury told me that he forbade the boys to play cricket on the playground, the boys threatened him to assault. I told the boys as to why they were holding out threat to Swapan Chowdhury as he was a senior man. I also told the boys if they played cricket at that time the official works of post office and library might be affected. But the boys did not leave the playground. 8. INSTEAD the accused persons pushed me down. Meanwhile many boys came to the place of occurrence. Hue and cry was raised. The boys after taking out the bamboo from the fencing of bamboo assaulted Prabhat Mitra. While Ramdas Mitra and Pradip Mitra came to rescue Prabhat Mitra, the boys also assaulted them. Mainly the boys Kasem. Akbar , Bhuto, Bigre Khan and Najim assaulted Prabhat Mitra and others. The boys assaulted Prabhat Mitra on his head. Prabhat Mitra fell down on the ground and he sustained bleeding injuries on his head. We took Prabhat Mitra to the varanda of Samir Mitra and we kept him lying there. Mainly the boys Kasem. Akbar , Bhuto, Bigre Khan and Najim assaulted Prabhat Mitra and others. The boys assaulted Prabhat Mitra on his head. Prabhat Mitra fell down on the ground and he sustained bleeding injuries on his head. We took Prabhat Mitra to the varanda of Samir Mitra and we kept him lying there. From the evidence of the eyewitnesses including the injured witnesses the impression we have been able to gather is that the request of the elders to stop the noisy play as a consideration to the students reading in the school and readers in the library and the official work in the post office fell on deaf ears. Upon insistence to stop the play an altercation followed. Shyamsundar was pushed. Naturally the elders protested whereupon the accused persons became violent. The bamboo fence at hand provided the weapons which were broken and used for the assault. The common intention was formed on the spot to silence the protest even at the cost of life. Probhat Kr. Mitra was severely assaulted. Naturally his brothers tried to rescue him. They were also assaulted. It was a fortuitous circumstance that the P.Ws. 5 and 6 did not suffer any deadly injury but that by no means was due to any concession on the part of the assailants. It is, therefore, not possible to accept the submission that Kasem was the key man but the others did not share the common intention. The multiple injury suffered by the deceased and the injury suffered by the P.W.5 and 6 demonstrate unmistakably that there was joint participation by all the appellants. All of them are local residents and well known to the injured persons and the witnesses. 9. Their names were disclosed contemporaneously in the First Information Report lodged at 13.35 hrs. on 7th February, 2004. In the written complaint 7 persons were named as the accused. Ultimately, 5 of them were charge sheeted. As regards guilt of these 5 accused persons who were ultimately convicted no material was shown to entertain any manner of doubt. They are as such jointly and severally liable for the assault on the deceased and the P.Ws.5 and 6. The law on the subject was succinctly laid down in the case of Ramaswami Vs. As regards guilt of these 5 accused persons who were ultimately convicted no material was shown to entertain any manner of doubt. They are as such jointly and severally liable for the assault on the deceased and the P.Ws.5 and 6. The law on the subject was succinctly laid down in the case of Ramaswami Vs. State of Tamil Nadu reported in AIR 1976 SC 2027 as follows : Section 34 is to be read along with the preceding Section 33 which makes it clear that the act spoken of in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance. One may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an act as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application Sec. 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring such a particular result. Such consensus can be developed at the spot and thereby intended by all of them. 10. The injury reports of the P.Ws.5 and 6 do however disclose that the injuries suffered by them were simple in nature but the description of the injury appearing from those exhibits is grave in nature. Both the P.Ws.5 and 6 were hit on their respective head by bamboos. Both of them suffered bleeding injuries. We, therefore, are of the view that it was a fortuitous circumstance that their injuries did not prove fatal. Both the P.Ws.5 and 6 were hit on their respective head by bamboos. Both of them suffered bleeding injuries. We, therefore, are of the view that it was a fortuitous circumstance that their injuries did not prove fatal. In the circumstances the conviction and sentence of all the appellants for the offence punishable under Section 304 Part-1 of the Indian Penal Code is upheld. The conviction under Section 326 of the Indian Penal Code is however scaled down to Section 324 of the Indian Penal Code read with Section 34 thereof. Accordingly the appellants are sentenced to undergo simple imprisonment for 3 years and are directed to pay fine for a sum of Rs. 500/- each. Both the sentences shall however run concurrently. In the result, the appeal technically succeeds in part but in substance the punishment remains the same. The learned trial Court shall issue a modified jail warrant and shall take all coercive measures to secure the presence of the appellants. The appellants are further directed to surrender forthwith to serve out the sentence as modified above. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.