JUDGMENT : (Prayer: This Criminal Appeal is field under Section 374 of Cr.P.C., praying against to set aside the judgment of the learned I Additional Sessions Judge, Tiruvallur, made in S.C.No.28 of 2013 dated 18.03.2014 and acquit the accused/appellants herein.) 1. This appeal is directed against the conviction and sentence imposed by the Lower Appellate in S.C.No.28 of 2013 on the file of the 1st Additional Sessions Court, Tiruvallur (FAC). Four persons were tried for offences under Sections 294(b), 307 r/w 34, 324, 323 and 506(ii) of I.P.C. 2. After considering the evidence of PW.1 to PW.13, Ex P.1 to Ex.P.12 and the material object M.O.1 & M.O.2. The trial Court held; (i). A1 to A3 are found guilty of offence under Section 307 r/w 34 of I.P.C. (ii). A1 and A2 are found guilt of offence under Section 324 I.P.C (2 counts). Sentenced A1 to A3 to undergo 5 years R.I each and pay a fine of Rs.10,000/- each, in default 3 months R.I. The total fine amount of Rs.30,000/- was ordered to be paid as compensation to Sugantha (PW.3). A1 and A2 are found guilty for offence under Section 324 (2 counts) and pay a fine of Rs.5,000/- for each counts, in default to undergo 3 months R.I. The total fine amount of Rs.20,000/- was ordered to be paid to Annadurai (PW.1) and Stella (PW.2), at the rate of Rs.10,000/- each. 3. Aggrieved by the said conviction and sentence, the A1 (Sudhakar), A2 (Ambeth) and A3(Murugesan) are before this Court. 4. The brief fact of the case is that on 03.07.2009, at about 7.00 hours near the house of Annadurai (PW.1), the accused A1 to A4 picked quarrel with him and abused Annaduari (PW.1) and his family members with filthy language. His father Moorthy was attacked by A1 and A2 with iron rod. When his sister Stella (PW.2) came to rescue Moorthy, she was also attacked. When Amulu (PW.4) and Sugantha (PW.3) daughter-in-law and wife of Moorthy came to prevent the attack on Moorthy, they were also attacked by the accused persons. Hearing the news, Kumar one of the son of Moorthy came to the spot and took the injured to the Thiruvallur Hospital. From Thiruvallur Hospital, Moorthy was shifted to Government Hospital Chennai, for further treatment. 5. Hearing the news, Kumar one of the son of Moorthy came to the spot and took the injured to the Thiruvallur Hospital. From Thiruvallur Hospital, Moorthy was shifted to Government Hospital Chennai, for further treatment. 5. The First Information Report was registered on 04.07.2009, at about 11.00 hours by Thiru.Vinayagam, Sub-Inspector of Police (PW.12) and placed the file before the Inspector of Police, Micheal Irudhayaraj (PW.13), who took up the investigation and filed final report. Alleging that A1 to A4 with iron rod and hands, caused grievous injury on the head of A1 and simple injuries to Annadurai (PW.1), Stella (PW.2), Amulu (PW.3) and Sugantha (PW.4). 6. Before the trial Court, Annadurai was examined as PW.1. He has deposed that there was property dispute between his family and accused family and Civil suit is pending. On 03.07.2009, at about 7.00 am, when Annadurai (PW.1) and his father Moorthy was about to leave their house for work, 1st and 2nd accused came to their house and started scolding them with obscene words. A4 (Attappan) joined them soon after and blamed them that they have taken away the “Velikathan bush”. At that time, A1 to A3 took the iron rods kept nearby, A1 attacked Moorthy and Annadurai (PW.1) with iron rod on their head. A2 attacked Annadurai (PW.1) on his back. When Stella sister of PW.1 came to rescue, A1 attacked her with iron pipe on her head. A4 attacked Sugantha mother of PW.1 with his hand, they all threatened that they will eliminate them. Thereafter, all the injured persons went to Tiruvallur hospital in the auto of one Vimal. The father of PW.1 Moorthy died during the trial and therefore, he was not examined. The other injured witnesses Annadurai, Stella, Sugantha and Amulu were examined as PW.1, PW.2, PW.3 and PW.4 respectively. The brother of Annadurai (PW.1), Kumar who came to the spot, after hearing the news was examined as PW.5. He has deposed about the previous enmity and the incident which happened on 03.07.2009. Vimal, the Auto driver and his wife Santhiya have not supported the case of the prosecution. Hence, they were treated hostile. The witness for observation mahazar and recovery mahazar also did not support the case of the prosecution. Dr.Sivasankar who was examined as PW.9 had spoken about the treatment given by him to Moorthy, Stella and Annadurai. Vimal, the Auto driver and his wife Santhiya have not supported the case of the prosecution. Hence, they were treated hostile. The witness for observation mahazar and recovery mahazar also did not support the case of the prosecution. Dr.Sivasankar who was examined as PW.9 had spoken about the treatment given by him to Moorthy, Stella and Annadurai. The wound certificates issued to the injured persons were marked as Ex.P.2, Ex.P.3, Ex.P.4 and opinion Ex.P.5 and Ex.P.6. 7. The trial Court, after considering the evidence of injured witnesses and the medical records held that the prosecution has proved that A1 to A3 with intention to cause death of Moorthy had attacked him with dangerous weapon and cause grievous injury. He lost his speech, due to the injury he sustained on his head. But for the medical intervention, he would have lost his life. A1 and A2 caused injury to PW.1 and PW.2 using dangerous weapon and therefore, A1 to A3 are found guilty for offence under Section 307 r/w 34 of I.P.C and A1 and A2 guilty for offence under Section 324 of I.P.C (2 counts). Since, the prosecution has failed to prove any overt act of A4, it acquitted A-4 from all charges. 8. Aggrieved by the conviction and sentence, the accused have preferred this Appeal on the ground that the Court below has erred in convicting them without considering the discrepancies in the testimony of the prosecution witnesses. The de facto complainant family are aggressors and picked quarrel with accused family and attacked them. The police suppressed the injury sustained by A1 to A3 who were also admitted in the hospital. The occurrence took place in the front of the accused house. The alleged weapon were admittedly were kept in the house of the complainant. Even according to the prosecution witnesses, the iron pipes were lying on the vacant land and the complainant family own those iron pipes. The inordinate delay in registering the case with the respondent police was is to accommodate the de facto complainant family to fabricate evidence. The dispute regarding the vacant site, which is the scene of occurrence is pending for nearly 10 years. PW.1 to PW.4 admits about the Civil dispute pending in respect of the vacant land. The inordinate delay in registering the case with the respondent police was is to accommodate the de facto complainant family to fabricate evidence. The dispute regarding the vacant site, which is the scene of occurrence is pending for nearly 10 years. PW.1 to PW.4 admits about the Civil dispute pending in respect of the vacant land. To pressurize the accused family to give up their right in the vacant land, a false complaint was given and same has been taken up for investigation and the accused were erroneously held guilty. The Court below ought to have considered the admission of PW.1 and PW.2 that A1 and A2 also sustained injury and taking treatment along with them. There is no specific overt act against A3, though Annadurai (PW.1) vaguely refer about Murugesan (A3) that he attacked his father Moorthy. This version of Annadurai (PW.1) not been corroborated by the other witnesses Stella (PW.2) and Amulu (PW.4). 9. Pointing out the contradictions between PW.1, PW.2, PW.3 and PW.4 regarding the respective overt act attributed from A1 to A3, the counsel would submit that the contradictions between the eye witnesses is grave and deep, which renders the prosecution version unreliable. The complaint which is the base for the F.I.R, was not the 1st information. Contended that the witness to the prosecution are all closely related and interested witness, when their evidence is not corroborated by any independent witnesses, the trial Court should have considered their evidence with suspicion, more particularly, when the earlier information suppressed by the police. 10. The learned counsel appearing for the appellant would also submit that the prosecution case suffers material suppression of facts, such as, the pendency of Civil suit between the parties and the complainant family, which has lost the suit had grudge over the accused family members. The injury sustained by A2 at the hands of the defacto complainant family not been explained by the prosecution. Contrarily, the counter case has been totally suppressed by the Investigation Officer. When admittedly the accused did not carry any weapon with them, convicting them for offence under Section 307 r/w 34 of I.P.C is totally against law. 11. Per contra, the learned Government Advocate would submit that PW.1, PW.2 and Moorthy were the injured witnesses. The injury sustained by them is spoken by them as well as substantiated by the wound certificates. 11. Per contra, the learned Government Advocate would submit that PW.1, PW.2 and Moorthy were the injured witnesses. The injury sustained by them is spoken by them as well as substantiated by the wound certificates. The injury sustained by Moorthy was grievous in nature. The iron rod used to attack them were recovered and marked as M.O.1 and M.O.2. The Dr.Sivasankar, Dr.Muthuraj and Dr.Kotteswaran were examined as PW.9, PW.10 and PW.11 respectively. They have spoken about the injuries found on the witnesses PW.1 and PW.2 and Moorthy. 12. The trial Court, after considering the overwhelming evidence against A1 to A3 who have attacked Moorthy, in furtherance of common intention to cause death of Moorthy and the injuries found on Annadurai (PW.1) and Stella (PW.2), using the weapon M.O.1 and M.O.2 rightly held the accused guilty. 13. Heard the Learned Counsel for the Appellant and the Learned Government Advocate for the respondent/state. 14. The dispute between the complainant family and the accused family was due to the enjoyment of the vacant land in between the house of accused and the complainant. According to PW.1, on 03.07.2009, at about 7.00 a.m, the 1st and 2nd accused came to their house and started quarreling with them in respect of removing the thorn Bushes. Ex.P.2 is the Accident Register for Moorthy, he was taken to the hospital by Kumar (PW.5). The Doctor has deposed that Moorthy was in semi-conscious stage with lacerated wound exposing his left forehead. Ex.P.3 is the Accident Register of Stella (PW.2) it indicates that she sustained lacerated wound on the left parietal region and lacerated wound at mid occipital region. Ex.P.4 is the Accident Register for Annadurai(PW.1), he has sustained lacerated wound on the right forehead over frontal regions and lacerated wound on his back. The injury sustained by Moorthy has been opined as grievous injury under Ex.P.6 by PW.10 Dr.Muthuraj. Thus, the prosecution through witnesses has proved grievous injury to Moorthy and simple injury to PW.1 and PW.2. The nature of injury and the evidence of the injured persons also proves that weapons was used to cause the injury, but who has caused the injury and what was their intention has to be considered before holding them guilty of any offence. 15. From the evidence of PW.1 to PW.4, it is amply clear that the accused persons did not carry any weapons with them. 15. From the evidence of PW.1 to PW.4, it is amply clear that the accused persons did not carry any weapons with them. Initially, it started as a wordy quarrel. PW.1 in his cross examination admits that the fight started at 7 o'clock in the morning and lasted for one hour. More than 50 persons saw the quarrel. He has also admits that when they were admitted in the hospital, the accused were also admitted in the hospital. Immediately after sustaining injury, they have reported the matter to the police and then proceeded to hospital. This evidence is in corroboration with the entries found in the F.I.R (Ex.P.7), wherein, the C.S.R. registered on 03.07.2009, at about 11.00 a.m has been registered as a complaint after recording the statement of PW.1 from the hospital, while he was taking treatment as impatient. PW.2 Stella in her cross examination has said that the iron pipes were lying in her house and it was used by her brother in his gym. She also admits that when they went to hospital, they saw the accused persons also admitted in the hospital. PW.3 Sugantha also admits that the iron pipes were lying in her vacant land and stored along with old scarp. She has also admitted that when they went to the hospital for treatment, they saw the accused also in the hospital for getting treatment. 16. PW.4 Amulu though claims that she was also attacked by the accused persons, there is no medical records to substantiate the same. She admits that, she is living four house away from the place of occurrence and she came to the place of occurrence after hearing the commotion. From the evidence of PW.2, PW.3 and PW.5, it is clearly that the weapon used by the accused to attack Moorthy, Annadurai and Stella were not carried by the accused but it was lying near the scene of occurrence and those materials belong to the complainant family. Therefore, as pointed out by the learned counsel for the appellant though prosecution has proved that A1 and A2 had caused grievous injury to Moorthy and caused simple injury to PW.1 and PW.2 using iron rods, their intention to cause death is not established. The alleged utterance of words will not lead to an inference that the assailants had the intention of causing death and attempted to cause death. The alleged utterance of words will not lead to an inference that the assailants had the intention of causing death and attempted to cause death. The verbal fight between them had lasted for one hour, something in the course of the verbal fight has triggered the violence and assault. The weapons which were lying nearby been used to attack. There are some admission to show even the accused persons have sustained injury, though not proved or substantiate through preponderance of probability. In any event the accused persons cannot be held guilty for attempt to commit murder. 17. On perusing the evidence of PW.1, regarding the injuries and overt act, he has deposed that A1 attacked his father with iron rod. A1 and A2 attacked him with iron rod. A1 attacked his sister Stella with iron rod. A1 and A2 hit his sister-in-law Amulu (PW.4) with iron rod. A3 and A4 hit his mother with hands. Whereas, PW.2 (Stella) has deposed that, she was attacked by A1 and A2, which is contrary to evidence of PW.1, who say only A1 attacked his sister Stella. PW.3 has deposed that A1 attacked her on the right hand. Whereas, PW.1 has deposed that his mother Sugantha was attacked by A3 and A4. Whereas PW.4 had deposed that A2 attacked her on the shoulder but no wound certificate available and no evidence to show Amulu (A4) took treatment for any injury. 18. Thus on a cumulative assessment of the evidence let in by the prosecution through the injured witness and the doctors who have treated, them this Court is of the view that due to previous enmity, the fight has erupted between the complainant family and the accused family. They both are relatives. It was a sudden fight in which the accused have taken the iron rod lying near the scene of occurrence and had attacked Moorthy and PW.1 on his head and attacked Stella over her head. 19. In such circumstances, A3 (Murugesan) and A4 (Attappan @ Murugesan) had joined them only subsequently even according to PW.1. Hence, A3 (Murugesan) cannot be roped in for sharing common intention with A1 (Sudhakar) and A2 (Ambeth). For the specific over tact attributed against A1 and A2 they alone are held guilty for voluntarily causing grievous hurt to Moorthy by using dangerous weapon namely iron rod. 20. Hence, A3 (Murugesan) cannot be roped in for sharing common intention with A1 (Sudhakar) and A2 (Ambeth). For the specific over tact attributed against A1 and A2 they alone are held guilty for voluntarily causing grievous hurt to Moorthy by using dangerous weapon namely iron rod. 20. It is relevant to refer the judgment of the Hon'ble Supreme Court rendered in Girija Sankar Vs. State of U.P reported in 2004(3) SCC 793 , which discusses the true purport of Section 34 of I.P.C which is a rule of evidence and do not create any substantive offence. 8. It is noticed that neither the Trial Court nor the High Court assigned any reason for applying Section 34IPC. On surmises and conjectures, it was observed by the Trial court that though there was no direct evidence showing pre-concert or earlier meeting of mind, the possibility of it having developed at the spot cannot be ruled out. For coming to such conclusion, there was neither any direct or circumstantial evidence. So far as the High Court is concerned, it appears that no definite finding has been recorded. The specific plea of the accused-appellant before it that Section 34 is not applicable. 9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab ( AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 10. The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh( AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. 21. The evidence on record does not show that A3 had common intention with A1 and A2. It is spontaneous reaction that A1 and A2 independently in the course of argument attacked Moorthy and others. Except the contradictory version of PW.1 and PW.3, there is no material to show A3 had shared intention to cause hurt along with A1 and A2. 22. It is spontaneous reaction that A1 and A2 independently in the course of argument attacked Moorthy and others. Except the contradictory version of PW.1 and PW.3, there is no material to show A3 had shared intention to cause hurt along with A1 and A2. 22. A1 and A2 are to be held guilty of offence under Section 326 of I.P.C simplicator for causing grevious hurt to Moorthy and to be held guilty of offence under Section 324 of I.P.C for causing hurt to Annadurai (PW.1) and Stella (PW.2) by using dangerous weapon, namely iron rod. Annadurai (PW.1) implicates A3 (Murugesan) for attacking his mother Sugantha with hands. Whereas, Sugantha (PW.3), in her evidence does not implicate A3 as the person who attacked her. She only implicates A1 as her assailant. Therefore, A3 (Murugesan) is acquitted from all charges for want of corroboration. 23. In view of the above findings, the judgment of the Trial Court is modified as below:- (i). A1 and A2 are found guilty of offence under Section 326 of I.P.C and sentenced to undergo two years R.I and fine of Rs.10,000/- each, in default to under three months S.I. (ii). A1 and A2 are found guilty for offence under Section 324 of I.P.C (2 counts) and sentenced to pay fine of Rs.5,000/- for each counts, in default to undergo three months R.I. (iii). A3 is acquitted. The fine amount of Rs.10,000/- is paid by A-3, shall be refunded to the accused. The entire fine amount levied (Rs.40,000/-) upon A1 and A2 shall be paid as compensation to PW.1 and PW.2 as below: (i). Rs.20,000/- to Suganthi wife of (PW.3) deceased Moorthy (injured victim) (ii). Rs.10,000/- to Annadurai (PW.1). (iii). Rs.10,000/- to Stella (PW.2). 24. In the result, the Criminal Appeal is Party Allowed with the above said modification. The Bail Band stands cancelled. The trial Court shall secure the accused and commit him to prison to undergo the remaining period of sentence. The period of imprisonment already undergone shall be set off under Section 428 of Cr.P.C.