JUDGMENT I.A. Ansari, J. 1. These appeals have been preferred against the judgment and order, dated 15.02.2007, passed, by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia, in Sessions Case No. 8 (T)/2005. Since these appeals have been preferred against the same judgment and these appeals have been heard together, we propose to dispose of the appeals by this common judgment and order. The accused-appellants were charged and tried for the offences under Sections 448, 302 and 323 read with Section 34 IPC. By the impugned judgment, the appellants have been convicted under the aforesaid penal provisions and sentenced to undergo, for their conviction under Section 302 IPC read with Section 34 IPC, imprisonment for life and pay a fine of Rs. 1000/- and, in default, to undergo rigorous imprisonment for six months and also to surfer, for their conviction under Section 323 read with Section 34 IPC, rigorous imprisonment for three months. The appellants have been further sentenced to undergo, for their conviction under Section 448 read with Section 34 IPC, rigorous imprisonment for three months. 2. The prosecution's case, in brief, is that on 31.07.2003, at about 8 pm. the accused-appellants went to the house of Man Bahadur (deceased) and asked his wife, Ashamati (PW5), to give them CD player, but the members of the family of Man Bahadur refused. This annoyed the appellants and they abused the members of the family of the deceased in filthy language. Man Bahadur, who was lying on the bed, got up from the bed and asked the accused persons as to what had happened. The accused, Antony, asked for the CD player and threatened by saying that if the CD player was not given, he would demolish the CD player. Thereafter, accused Antony shoved Man Bahadur on to the courtyard. Accused Tuku and Rajen assaulted Man Bahadur by means of lathis. Accused Bishal and Sunil also kicked and punched Man Bahadur. When Madhuban Lama (PW4), father of Man Bahadur (since deceased), attempted to intervene, he, too, was assaulted. Smti Moti Lama (PW2), mother of the deceased, was also beaten by accused Luku. Man Bahadur succumbed to the injuries. Chandra Bahadur Thapa (PW1) brother-in-law of the deceased, lodged an Ejahar on 01.08.2003. Accused Bishal and Sunil also kicked and punched Man Bahadur. When Madhuban Lama (PW4), father of Man Bahadur (since deceased), attempted to intervene, he, too, was assaulted. Smti Moti Lama (PW2), mother of the deceased, was also beaten by accused Luku. Man Bahadur succumbed to the injuries. Chandra Bahadur Thapa (PW1) brother-in-law of the deceased, lodged an Ejahar on 01.08.2003. Based on the said Ejahar and treating the same as the First Information Report (in short, FIR), Makum Police Station Case No. 65/2003, under Sections 448/325/302/34 IPC, was registered against Luku Desari, Ranjan Proja, Antony Murah and some others. On completion of investigation, police submitted charge-sheet, under Sections 448/325/302/34 IPC, against the accused-appellants. 3. In course of time, trial was held in the Court of the learned Additional Sessions Judge (FTC), Tinsukia. At the trial, the accused-appellants pleaded not guilty to the charges framed against them under Sections 448, 302 and 323 read with Section 34 IPC. 4. During trial, prosecution examined eleven witnesses. The defence of the accused persons was that they were innocent and they were not involved in the alleged occurrence. On conclusion of the trial, the learned trial Court, having found the accused-appellants guilty of the offences charged with, convicted them accordingly and passed sentences against them as mentioned above. Aggrieved by their conviction and the sentences, which have been passed against them, the accused persons, as convicted persons, have preferred these appeals. 5. We have heard Mr. K. Goswami, Mr. AK Roy, Ms. A. Ajitsaria and Ms. N. Hawelia, learned amicus curiae, and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. 6. PW2 (Smt. Moti Lama), mother of deceased Man Bahadur, PW4 (Madhuban Lama), father of the said deceased, and PW5 (Ashamati Lama), widow of the said deceased, have been examined as eye witnesses to the occurrence. 7. AK Roy, Ms. A. Ajitsaria and Ms. N. Hawelia, learned amicus curiae, and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. 6. PW2 (Smt. Moti Lama), mother of deceased Man Bahadur, PW4 (Madhuban Lama), father of the said deceased, and PW5 (Ashamati Lama), widow of the said deceased, have been examined as eye witnesses to the occurrence. 7. PW2 (Smt, Moti Lama), in her evidence, has deposed that on the day of the occurrence, at about 7 pm, while her members of the family were about to partake their meals, accused Luku, Antony, Vishal and Laden came to their house and asked their daughter-in-law, Ashamati (PW5), to give the CD player, but Ashmati (PW5) refused to hand over the same to the accused persons, whereupon the accused persons abused them in filthy language and when her son, Man Bahadur (since deceased), asked the accused not to shout, accused Antony and Luku assaulted Man Bahadur by means of lathi and dragged him (Man Bahadur) out of the house, accused Vishal and Sunil kicked and punched Man Bahadur and when her husband (P W4) went out to rescue their son, Man Bahadur, accused Antony assaulted PW4 too by means of a lathi. Even accused Luku, according to the evidence of PW2, gave lathi blow on her (PW2) and she suffered injury on her left hand and injuries on her waist and back. 8. It is in the evidence of PW5 that thereafter, Rajesh and Thatu took Man Bahadur inside the house, accused Luku followed in and kicked Man Bahadur. Seeing the assault on her husband, PW5 ran away from home and Man Bahadur died at around 11 pm. It is also in the evidence of PW5 that police came next day morning and inquest, on the said dead body, was held in her presence. 9. In her cross-examination, PW5 has deposed that Antony entered her house, while three other accused persons were outside the house, and that accused Luku pressed the neck of Man Bahadur. PW5 has further deposed that the CD player and cassettes were seized by the police. 10. Corroborating the evidence of his wife (PW2), Madhuban Lama (PW4) has deposed that his wife, Moti Lama (PW2), his son, Man Bahadur Lama (deceased) and his daughter-in-law, Ashamati Lama (PW5), were at their home, when the occurrence took place. 11. PW5 has further deposed that the CD player and cassettes were seized by the police. 10. Corroborating the evidence of his wife (PW2), Madhuban Lama (PW4) has deposed that his wife, Moti Lama (PW2), his son, Man Bahadur Lama (deceased) and his daughter-in-law, Ashamati Lama (PW5), were at their home, when the occurrence took place. 11. Describing the occurrence, PW4 has deposed that Antony Mura came to take their CD player and when PW4 refused to give them the CD player, Antony hurled abuses and insisted upon Ashamati (PW5) to give the CD player saying that if she refused to do so, he would destroy the TV and the CD player, whereupon Man Bahadur got up from his bed and asked what had happened, but Antony shoved Man Bahadur down to the Courtyard and he (Man Bahadur) was beaten by Luku and Rajen @ Sunil by means of lathis and that accused Vishal was with the rest of the accused. 12. PW4 has also deposed that when he (PW4) came forward, he (PW4), too, was assaulted by Antony, Rajen and Luku by means of lathis and thereby he sustained injuries on his left shoulder, back and chest and, thereafter, he (PW4) went to Kunti Proja's house and told him about the occurrence and, accompanied by Kunti, he (PW4) went to Naneswar Gaon Burah's house and, then, he (P W4) went to the military camp and lodged there an information with regard to the said occurrence. 13. PW4 has further deposed that he was sent to Dhelakhat Tea Estate Hospital and while he was under treatment, he came to know that his son, Man Bahadur, had died in the said incident. 14. PW5 (Ashamati Lama), widow of the said deceased, has deposed, in tune with the evidence of her parents-in-law, that Antony demanded CD player and. on their refusal to hand over the CD player, accused Antony abused them in foul language and when her husband, Man Bahadur, woke up from bed and went out; he was assaulted by the accused persons and even her father-in-law, Madhuban Lama (PW4), was beaten up by Antony and others with the help of lathis and he (PW4) ran away from the house and that her husband, Man Bahadur, died, because of the injuries sustained by him on his abdomen, chest and neck. 15. 15. In her cross-examination, PW5 has deposed that seeing the assault, she (PW5) hid herself in the jungle near her house and after about half-an-hour, when she came back, she found her husband lying in the courtyard, her husband (deceased) asked for water, which was given to him and, later on, he died. It is in the evidence of PW5 that accused Tuku had grabbed her husband's neck, while rest of the accused persons had beaten him with lathis. 16. Admittedly, PW1 (Chandra Bahadur Thapa), who lodged the FIR, did not seethe occurrence. What he saw was Man Bahadur's dead body lying inside the house with injuries. PW1 and PW3 (Harikala Thapa) are witnesses to the inquest, which was held on the said dead body, PW3 being also a witness to the seizure of the said CD player. PW6 is merely a scribe of the FIR, who has written the FIR as per instructions of PW1. 17. What may, now, be pointed out is that PW8, an Executive Magistrate, held inquest over the dead body of Man Bahadur. According to his evidence, he noticed injuries on the private parts of the said deceased with presence of bleeding and bruises over his face and neck. PW8 has also deposed that blood had come out from the nostrils of the said deceased. 18. Coupled with the above, the inquest report (Ext. 4) shows that there was injury on the neck, abrasion with reddish spots below the left eye, blood had come out through the left nostril, belly was swollen, several blackish marks were seen on the left side of the belly and one of them appear to have a small hole. The inquest report also shows that blood was seen coming out of the penis and blackish spots were seen on either side of the penis and similar blackish marks were seen on the lower abdomen and the penis of the deceased. This apart, injury marks were present on the left knee, black spots were present on the left arm and abrasion was present at the back, 19. Close on the heels of the evidence of PW8, the doctor (PW7), who had conducted post mortem examination on the dead body of the said deceased, found as follows: External appearance: A male dead body of about 32 years wearing a half pant. Postmortem blisters present. Skin is piling off. Close on the heels of the evidence of PW8, the doctor (PW7), who had conducted post mortem examination on the dead body of the said deceased, found as follows: External appearance: A male dead body of about 32 years wearing a half pant. Postmortem blisters present. Skin is piling off. Scrotum and penis are swollen. Rigor mortis is present in the both upper and lower limb. Injury No. 1. A bruise over lumber region measuring 30 x 10 cms. 2. A bruise over the left groin measuring 5 x 3 cms. 3. A bruise over the right groin measuring 4 x 2 cms. In the thorax: The thoracic organs are contused on the left side. Pleurae is congested on the left side. Left lung is contused. Test of this thoracic organs are healthy. In the abdomen: Abdominal walls are confused in the lumber region. Peritoneum is congested. There is blood in the peritoneum cavity. Mesentery is grossly confused. Test of the abdominal organs are healthy. Stomach is healthy and empty. In the cranium and spinal canal: The scalp is contused in the left temporal region. Membranes are congested. Sub-dural hemorrhage is present over the left occipital region. Brain is congested, 20. In the opinion of the doctor, death was due to combined effects of coma, shock and hemorrhage as a result of the injuries described. The injuries were ante mortem and homicidal in nature, the same having been caused by blunt force impact, 21. Though the doctor (PW 7) has deposed, in his cross-examination, that the injuries found on the dead body of the said deceased were not, independent of each other, sufficient to cause the death of a person in the ordinary course of nature, the fact remains that examination of cranium and spinal canal, as deposed to by the doctor (PW 7) himself, reveals that: The scalp is contused in the left temporal region. Membranes are congested, Sub-dural hemorrhage is present over the left occipital region. Brain is congested. 22. Membranes are congested, Sub-dural hemorrhage is present over the left occipital region. Brain is congested. 22. When scalp was contused, membranes were congested, sub-dural hemorrhage was present and the brain was congested, it clearly follows that congestion of brain would lead to stoppage of flow of blood into the brain, In such circumstances, it was wholly incorrect, on the part of the doctor, to have deposed that injuries, in question, were not independently sufficient to cause death of a person in the ordinary course of nature. 23. Turning to the evidence given by the doctor (PW 7) that there was possibility of the deceased surviving if proper treatment was provided to him, it is imperative to note that Explanation 2 to Section 299 IPC, which defines culpable homicide, reads as under: Explanation 2 – Where death is caused by bodily injury, the person, who causes such bodily injury, shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment, the death might have been prevented. (Emphasis is added) 24. From the above Explanation, it becomes clear that when a person sustains an injury, which, otherwise, amounts to culpable homicide, the act of the accused would remain as culpable homicide even if proper or skilful treatment might have prevented death of the injured. The opinion, therefore, given, in the present case, by the doctor (PW 7) that the said deceased could have survived, had proper treatment been provided to him, does not have any bearing in determining the question as to whether the acts of the accused-appellants did or did not amount to culpable homicide. 25. While considering the above aspect of the case, one must bear in mind that the opinion of an expert, such as a medical practitioner, though admissible in evidence by virtue of Section 45 of the Evidence Act, is not binding on the Court inasmuch as, the opinion of an expert is merely advisory in nature and may help the Court, in a given case, in arriving at a correct conclusion; but, at the end of the day, it is the responsibility of the Court to determine, with the help of expert, if required, the cause of death. If the evidence on record discloses that the deceased had been beheaded, the conviction of the perpetrator of the crime would not require assistance from a medical practitioner if the Court is, otherwise, satisfied that the head of the deceased was severed from his neck by such weapon as might have transpired from the evidence on record. 26. In the cast at hand, too, the evidence, given by the doctor (PW 7) that the said deceased could have survived if proper treatment was provided to him, would not absolve the accused-appellants from the responsibility of having committed an act of culpable homicide if their acts, otherwise, fall within the meaning of culpable homicide as defined by Section 299 IPC. 27. We may, at this stage, pause here to point out that Clause fourthly of Section 300, which defines murder, reads: Fourthly – If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 28. In the case at hand, the injuries, which have been found in the groin area of the said deceased, clearly show that the deceased sustained injuries on both testicles and penis so much so that blood came out of the penis. In such circumstances, the person injured must have suffered, in all probability, cardiac arrest and died almost instantaneously. A reference, made in this regard, by Mr. Z. Kamar, learned Public Prosecutor, to the case of State of Karnataka vs. Shivalingaiah, AIR 1988 SC 115 , is not wholly misplaced. 29. Coupled with the above, the injuries, suffered by the said deceased, on the head, particularly, congestion of the brain, is yet another circumstance, which must, in all probability, cause death. Thus, the injuries caused, on the person of Man Bahadur, were so imminently dangerous that the injuries must have, in all probability, caused death unless proper medical treatment was provided. 30. A person is presumed to know the consequences of his act. Similarly, in the present case, the accused persons must be presumed to know the consequences of their acts. Thus, the injuries caused, on the person of Man Bahadur, were so imminently dangerous that the injuries must have, in all probability, caused death unless proper medical treatment was provided. 30. A person is presumed to know the consequences of his act. Similarly, in the present case, the accused persons must be presumed to know the consequences of their acts. The manner in which the said deceased was assaulted leaves no room for doubt that whoever had caused the injuries on the head or injuries on the groin area of the deceased had known that his act was so imminently dangerous that his act must, in all probability, cause death or such bodily injury as was likely to cause death. The act, in the case at hand, was done without any excuse for incurring the risk of causing death or bodily injury as described hereinbefore. 31. The case at hand is, thus, fully covered by clause fourthly of Section 300 IPC and the present appellants could have been convicted on a charge of murder if it could be shown that they had shared common intention to cause death of the said deceased. 32. In the case at hand, merely because of the fact that all the accused persons had assaulted the said deceased, they cannot, in the absence of any other material, be said to share an intention to cause all those injuries, which were found on the dead body of the said deceased. 33. In the facts and attending circumstances of the present case, it is not possible to determine as to who had caused injuries on the head of the said deceased or on his groin area and when there is nothing, in the evidence, on record, indicating that all the accused persons had intention to cause the kind of injuries, which had been found on the said dead body, they cannot be held to have acted in furtherance of common intention of causing death of the said deceased. To the facts and circumstances of the present case, Section 34 IPC could not have been made applicable. To put it a little differently, the accused persons were responsible for causing injuries, but all of them cannot be attributed with the intention to cause any of the given injuries, which were found on the said dead body. 34. To the facts and circumstances of the present case, Section 34 IPC could not have been made applicable. To put it a little differently, the accused persons were responsible for causing injuries, but all of them cannot be attributed with the intention to cause any of the given injuries, which were found on the said dead body. 34. Situated thus, it is abundantly clear that the accused-appellants ought to have been held responsible for, and guilty of, the individual acts, which they had done. 35. Considering the fact that some of the injuries, found on the said dead body, were simple in nature, for example, a bruise over the lumber region, it is not only difficult, but also impossible to hold, that all the accused persons intended to cause the kind of injuries, which were found on the head and groin area of the said deceased. 36. In the absence of any evidence showing as to who had caused the injuries, which proved fatal, and when there is, as already discussed above, no concrete material on record attracting the provisions of Section 34 IPC, the conviction of the accused-appellants, under Section 302 read with Section 34 IPC, cannot be sustained. They were, however, liable for their individual acts and, in the facts and attending circumstances of the present case, when there was a combination of such injuries, which were simple and grievous, the accused appellants ought to have been held guilty of the offence of causing voluntarily simple hurt and not grievous hurt unless the person, who had caused the grievous hurt, had been identified or could have been identified. 37. Because of what have been discussed and pointed out above, this appeal partly succeeds. While conviction of the accused-appellants by the impugned judgment and order is set aside and the accused-appellants are acquitted of the charge of murder, punishable under Section 302 IPC, all of them are held guilty of the offence under Section 323 IPC and convicted accordingly. For the offence, so committed, each of the accused-appellants is hereby sentenced to suffer rigorous imprisonment for a period of one year. This apart, for the simple hurt caused to PW2 and PW4, the appellants were liable to be convicted under Section 323 IPC. For the offence, so committed, each of the accused-appellants is hereby sentenced to suffer rigorous imprisonment for a period of one year. This apart, for the simple hurt caused to PW2 and PW4, the appellants were liable to be convicted under Section 323 IPC. Their conviction; therefore, for causing simple hurt to PW2 and PW4, under Section 323 IPC, is legally sustainable and the consequential sentence, too, call for no interference. 38. In view of the fact that the accused-appellants had entered into the house of the said deceased with no proven intention to commit offence under Section 448 IPC, their conviction under Section 448, with the aid of Section 34 IPC, cannot be sustained and they are accordingly acquitted of the offence punishable under Section 448 IPC. 39. Considering the fact that the accused-appellants have already suffered imprisonment for periods longer than they ought to have been sentenced to or could have been sentenced to, the accused-appellants are hereby directed to be released, forthwith, unless they are required to be detained in connection with any other case. 40. With the above observations and directions, this appeal shall stand disposed of. 41. Send back the LCR. Let each of the learned amicus curiae be paid a sum of Rs. 5,000/- for the assistance rendered by them.