JUDGMENT : Shree Chandrashekhar, J. Obhi Namta, Kajal Bhuiyan, Bishu Namata, Puntullu Bhumij and Anil Bhumij were tried together in Sessions Trial No. 330 of 2002 for committing murder of Anil Gopc in furtherance of common intention. They are convicted and sentenced to RI for life under section 302 of the Indian Penal Code. 2. Nuni Gope who is the mother of Anil Gopc gave her fardbeyan to the officer in charge of Mango PS that Obhi Namta, Kajal Bhuiyan, Bishu Namata, Puntullu Bhumij and Anil Bhumij trapped her son in the bylane near the house of Puntullu Bhumij and attacked him with knife and bhujali. She attempted to save her son but Puntullu Bhumij and Kajal Bhuiyan threatened her and when she raised hulla (Bachao Bachao) the accused fled away to the riverside. Anil Gope was brought home but before he could be taken to the hospital succumbed to the injuries. Mango PS Case No. 239 of 2002 was registered on 26th August 2002 under section 302/34 of the Indian Penal Code and statements of the family members of Anil Gope were recorded by the investigating officer on the same day. Dr. Yogendra Nath who conducted the autopsy found two stab wounds and two defence cuts on the dead body of Anil Gope. The investigating officer could not find crime weapons in the house of accused persons when he conducted raids the next day, and did not collect bloodstained soil and clothes of Anil Gope for FSL report. He completed investigation in the case in one month and laid a charge-sheet on 30th September 2002 against all five accused. On 01st August 2003, a common charge was framed under section 302/34 of the Indian Penal Code which all of them denied and claimed trial. 3. Thirteen witnesses were called by the prosecution to prove the charge of murder against the appellants. Except PW12 who conducted the postmortem examination and PW13 who is the investigating officer, other material witnesses are family members or close relatives of the deceased. PW1 Karuna Namata, PW2 Kallu Namata and PW3 Sanju Namata who are the co-villagers and independent witnesses gave a jolt to the prosecution in the Court and they were declared hostile. They were cross-examined by the prosecution with permission of the Court but did not admit any part of their statements made before the investigating officer. 4. PW1 Karuna Namata, PW2 Kallu Namata and PW3 Sanju Namata who are the co-villagers and independent witnesses gave a jolt to the prosecution in the Court and they were declared hostile. They were cross-examined by the prosecution with permission of the Court but did not admit any part of their statements made before the investigating officer. 4. The prosecution evidence is discussed by the learned trial Judge in paragraph no. 18 of the judgment in the following manner : “18. As discussed above it comes out from the evidence available on record that PW No. 4 Nuni Cope. PW No. 5 Shambhu Gope, PW No. 6 Lalla Gope. PW No. 7 Sunil Gope. PW No. 8 Bulmani Gope. PW9 Mangli Gope. PW No. 10 as well as PW No. 11 Sudhir Gope all are related witnesses of the deceased and the circumstance revolving around the occurrence is that prior to three to four days of the occurrence Anil Gope (now decca.sed) sat with the accused persons for taking wine and a hot discussion took place in between accused persons and Anil Gope and the effect of that hot discussion was that prior to one day of the occurrence the accused persons came to the house of Anil Gope, deceased, abused Anil Gope and due to the intervention of the local people accused persons fled away by saying that Anil Gope has to face the consequence and immediately on the next day the accused persons committed assault on Anil Gope in the broad day light leading to his death and the occurrence was witnessed by the close relatives i.e. mother, brother, bhabhi and wife etc. and it is natural course of conduct. It is also the evidence of PW Nos. 4 and 5 that when the informant, mother of the injured And Gope, went to save her son the accused persons pushed her to fell down and she was not allowed to save her son Anil Gope. Now the witnesses are saying on oath in Court that injured was assaulted on the stomach and near the thigh by sharp cutting weapon. The medical evidence also says that two stab wounds were found on the person of the deceased one cut of right kidney and second the loop of intestine was coming out and the injuries were caused by sharp cutting weapon. The medical evidence also says that two stab wounds were found on the person of the deceased one cut of right kidney and second the loop of intestine was coming out and the injuries were caused by sharp cutting weapon. Some defence cut were also found on palmar surface of the injured. These defence cut on the palmar surface of the injured gives an impression that the injured at the lime of assault by the accused persons tried to save himself and in that try her received these injuries. Thus all the injures inflicted on the person of the deceased were caused by sharp cutting pointed weapon and as such medical evidence supports the oral evidence and each are corroborating in nature and the testimony of the eye witness is corroborated by the medical evidence of great value. The IO (PW13) has also supported the prosecution's case and nothing has appeared in the cross examination of the PWs in order to discredit their evidence and as such the evidence adduced on behalf of the prosecution is cogent in nature constant and also believable.” 5. In this batch of criminal appeals, the appellants have challenged the judgment of conviction dated 04th August 2006 and order of sentence dated 05th August 2006 passed in Sessions Trial No. 330 of 2002 by filing these criminal appeals under section 374(2) of the Code of Criminal Procedure. 6. Puntullu Bhumij was the appellant in Criminal Appeal (DB) No. 575 of 2010. He was released from custody by virtue of decision of the State Sentencing Review Board as he had undergone the minimum period of custody prescribed under the rules - criminal appeal was dismissed as not pressed vide order dated 26th August 2021. 7. The judgment of sessions Court is assailed on the grounds that (i) assault upon Anil Cope was not premeditated or intended to kill him and therefore the acts of Kajal Bhuiyan would make him liable under section 304 Part II of the Indian Penal Code, and (ii) other three accused who were unarmed and did not even attempt to assault Anil Gopc can be said to have committed the offence under section 341 of the Indian Penal Code but they cannot be held guilty for murder. 8. PW4, PW5, PW6. 8. PW4, PW5, PW6. PW7, PW8 and PW11 are the prime witnesses who claimed in the Court that they saw five persons assaulting Anil Gope in a bylane adjacent to the house of Puntullu Bhumij. PW4 who is the mother of Anil Gope deposed in the Court that one day prior to the occurrence the appellants picked up quarrel with her son but the neighbours (Bastiwale) intervened and somehow pacified them. Next day, around 10.00 AM. her son went towards the riverside to ease himself and on the way back home he was apprehended and assaulted by the appellants with knife and bhujali and on hearing bulla when she went there the appellants fled away. At that time, her son Sunil Gope was with her with whom she went to the police station to give information about the occurrence. She admits in the cross-examination that her son used to enjoy drinking (thoda bahut daaru peeta tha), and that before the occurrence her son had gone for drinks. The defence tried to impeach her credibility on the ground that she made material improvements in the Court. 9. Mr. Manish Kumar, the learned counsel for the appellants, contended that in her fardbeyan the informant stated about presence of 2-3 more persons who were guarding other five accused but in the Court she denied that she had made such statement before the investigating officer. The learned counsel would further submit that the informant who gave a statement before the police that five accused persons were assaulting her son changed the story in the Court and stated that only two accused were assaulting her son with knife and bhujali while three others caught hold of him. But we do not find any inconsistency in her evidence. In her examination-in-chief, the informant has stated about assault upon her son by all five appellants and to that extent there is no inconsistency with her previous statement. This is important to keep in view that her statement that Kajal Bhuiyan and Puntullu Bhumij assaulted her son while other three had caught hold of him came in the cross-examination, but this statement in no way contradicts the prosecution story that all five accused were involved in the attack on Anil Gope. The statement of a witness may amount to contradiction if his evidence in the Court contains material exaggerations intending to set up a new case. The statement of a witness may amount to contradiction if his evidence in the Court contains material exaggerations intending to set up a new case. The informant is a rustic rural woman who at the instance of defence has specified the role played by the individual accused. Furthermore, she has denied in the cross-examination that she informed the police that each one of five accused were assaulting her son with knife and bhujali. She appears to have rendered a truthful account of the occurrence as seen by her. 10. The aforesaid narration of the prosecution case got support from four more witnesses who have corroborated her testimony in the Court. PW6 who is the wife of Anil Gope admitted in the cross examination that her statement was not recorded by the police. Nonetheless, her evidence in the Court as an eyewitness is acceptable. She was present in the house when hulla was raised and the defence did not challenge her stand in the Court. PW7 gave evidence that Kajal Bhuiyan and Puntullu Bhumij were assaulting his brother with knife and hhujali while the other three had caught hold of him. Like his mother, he also denied in the cross-examination that he had stated before the police about 2-3 persons guarding the accused (Nigrani kar rahe the). There are minor inconsistencies in their evidence but for that reason involvement of the appellants in the crime does not become doubtful. PW8 and PW11 have also supported the prosecution story about assault upon Anil Gope by the appellants. They are close relatives of Anil Gope who were present in the house and on hearing hulla came out and saw the occurrence. 11. PW9 and PW10 are hearsay witnesses but their statements are also useful for the prosecution as being relevant under section 157 of the Indian Evidence Act. 12. The stand of the prosecution is that PW5 is also an eyewitness and the learned trial Judge has accepted his testimony. We, however, do not find him a truthful witness. The evidence of PW5 is that he rushed towards the bylane when his cousin raised cries and witnessed marpit hiding himself at a place about 20-25 feet away. His further evidence is that he came to inform PW6 after Anil Gope fell on the ground and the accused had gone away. We, however, do not find him a truthful witness. The evidence of PW5 is that he rushed towards the bylane when his cousin raised cries and witnessed marpit hiding himself at a place about 20-25 feet away. His further evidence is that he came to inform PW6 after Anil Gope fell on the ground and the accused had gone away. He is a resident of another village and admits in the Court that he is a truck driver who would normally come back home by 05.00 PM. To the suggestions by defence as regards his previous statements before the investigating officer, he did not offer any satisfactory explanation and tried to justify his presence at the time of occurrence by taking a position that it was a fault on the part of the investigating officer who did not correctly record his statements. The conduct of a witness is not a ground to discard his testimony and minor exaggerations in the evidence of a witness are quite normal. But the evidence of PW5 does not inspire confidence of the Court, primarily for the reason that he failed to establish his presence at the place of occurrence. Furthermore, we gather from his evidence that he came to Chatai Colony after he received information about marpit. He is resident of a nearby village but it is highly improbable that he would have seen marpit with Anil Gope. 13. As we see, a large number of witnesses came to the Court to testify against the appellants. Though related to Anil Gope, they had no animosity with the appellants and their evidence does not indicate that they were tentative in the Court and merely on suspicion tendered evidence against the appellants. The presence of PW4, PW6, PW7, PW8 and PW11 in the house in the morning of 26th August 2002 is not challenged by the defence and cross-examination of these witnesses was rather focused to discredit them as eyewitnesses. In this context, it is relevant to note that it is the evidence of witnesses that the bylane near the house of Puntullu Bhumij where Anil Gope was assaulted by the appellants is about 50 yards from the house of the informant. Therefore, there is no difficulty in accepting the evidence of PW4, PW6, PW7, PW8 and PW11 that they could see assault upon Anil Gope. Therefore, there is no difficulty in accepting the evidence of PW4, PW6, PW7, PW8 and PW11 that they could see assault upon Anil Gope. There appears some exaggeration and improvement in evidence of the prosecution witnesses particularly PW4 who stated in the Court that she followed her son when he went out to ease himself. PW6 also tried to support PW4 by saying that she asked her mother-in-law to follow her husband because she was apprehending attack on her husband by the accused. But minor aberrations in evidence of the prosecution witnesses would not diminish the value of intrinsic truthfulness that is reflected in their testimony. 14. In a similar situation, the Hon'ble Supreme Court, [“Nirmal Singh v. State of Bihar” (2005) 9 SCC 725 ] has observed as under : “19. In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to he no reason why so many eyewitnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.” 15. Mr. Manish Kumar, the learned counsel for the appellants, has however contended that the prosecution case becomes suspicious because only two injuries are found on the person of Anil Gope, though marpit continued for about ten minutes. 16. Dr. Yogendra Nath was posted as Associate Professor in Forensic Medicine Department at MGM Medical College, Patna. As PW12, he has deposed in the Court that he conducted post-mortem examination over dead body of Anil Gope at 03.30 PM on 26th August 2002. He found the following stab wounds on Anil Gope : (i) 7cm x 3cm x abdominal cavity over hack of right abdomen 28cm below the axila. the weapon cut the right kidney, (ii) 3cm x 2cm x abdominal cavity over front of pelvic abdomen above pubic hair line, the loop of intestine was coining out through the end. 17. Besides the above injuries, the following defence cuts were observed by PW12 on the person of Anil Gope : (i) 4cm x 1cm x soft tissue over right thumb palmar surface, obliquely placed. (ii) 4cm x 2cm x 1/4 cm left palm lateral side palmar surface. 18. The defence wounds provide valuable information to the Court. 17. Besides the above injuries, the following defence cuts were observed by PW12 on the person of Anil Gope : (i) 4cm x 1cm x soft tissue over right thumb palmar surface, obliquely placed. (ii) 4cm x 2cm x 1/4 cm left palm lateral side palmar surface. 18. The defence wounds provide valuable information to the Court. Based on the presence of such injury one can easily comprehend that the victim was conscious and offered resistance during the assault. The type of injury sustained by the victim gives an idea regarding the weapon of offence and whether the assault occurred at a close range or from a distance. Two defence cuts found on the palmar surface of Anil Gope reveal that he tried to ward off the attack with a sharp cutting weapon and in the process suffered those injuries. The presence of defence cuts supports the prosecution story that marpit with Anil Gope continued for 10-15 minutes and Puntullu Bhumij and Kajal Bhuiyan inflicted blows around the abdominal cavity of Anil Gope after he was over-powercd by other three accused. 19. The independent witnesses did not support the prosecution case against the appellants but evidence of the eyewitnesses whose presence in the house was not challenged by the defence cannot be doubted. The eyewitness account of the occurrence given by PW4, PW6, PW7, PW8 and PW11 does not admit any doubt about active participation of Obhi Namta, Kajal Bhuiyan, Bishu Namata, Puntullu Bhumij and Anil Bhumij in the crime. No doubt there are certain inconsistencies in testimony of the prosecution witnesses but looking at the time of occurrence, place of occurrence, distance between place of occurrence and house of the informant, there seems no possibility of false implication of the appellants in occurrence. According to the prosecution, the appellants assaulted Anil Gope around 11.00 AM, an information was received in the police station around 11.45 AM and the police arrived at the scene of crime soon thereafter and recorded the fardheyan by 12.30 PM - police station is at a distance of about 2 kms from Chatai Colony within Mango PS. In our opinion, prompt registration of the First Information Report which was lodged at 01.30 PM the same day is one another reason that rules out chances of deliberations by the prosecution witnesses for false implication. 20. In our opinion, prompt registration of the First Information Report which was lodged at 01.30 PM the same day is one another reason that rules out chances of deliberations by the prosecution witnesses for false implication. 20. As regards conduct of the witnesses that they did not make any effort to save Anil Gope, we notice that PW4 stated in her cross-examination that when she tried to intervene Puntullu Bhumij and Kajal Bhuiyan threatened her. The other witnesses have also stated that when they raised hulla and approached the place of occurrence the accused fled away. In “Amar Singh v. State (NCT of Delhi)”, 2020 SCC OnLine SC 826 on which the learned counsel for the appellants placed reliance, the eyewitness account of the occurrence rendered by the brother of the deceased was disbelieved for the reason that the manner of occurrence described by him was found not possible - 15 stab and incised wounds were allegedly caused within five minutes. Evidently, the factual scenario in “Amar Singh” was entirely different and does not fit in with the fact situation obtaining in the present case. 21. Except PW5, these witnesses are truthful and reliable and we see no reason to disagree with the findings recorded by the learned trial Judge that the prosecution evidence is corroborated by medical evidence. The learned trial Judge took note of stab wounds and defence cuts on palmar surface of Anil Gope and rightly held that corroboration of ocular evidence by medical evidence must be accorded great weight. 22. The appellants are convicted with aid of section 34 of the Indian Penal Code. The learned 2nd Additional Sessions Judge, Jamshedpur held that all five accused took active part in the occurrence in which Kajal Bhuiyan and Puntullu Bhumij assaulted Anil Gope with knife and bhujali while other three caught hold of him. We may usefully extract paragraph no. 19 of the sessions Court judgment to see how all the appellants are fastened with criminal liability for causing the death of Anil Gope. 23. The learned trial Judge has held as under : “19. Now the accused persons stand charged for the offence under section 302 read with section 34 of the Indian Penal Code for committing murder of Anil Gope in furtherance of their common intention. 23. The learned trial Judge has held as under : “19. Now the accused persons stand charged for the offence under section 302 read with section 34 of the Indian Penal Code for committing murder of Anil Gope in furtherance of their common intention. Common intention is question of fact and to he gathered from the acts of the parties, conduct of the accused, the ferocity of the attack, the weapon used, situes of the injury and their nature together with the fact that there was a preconcert in between the accused persons to commit the offence. Here in this case all the facts involved in the occurrence gives an impression that the accused persons were animated with the common intention to commit murder of Anil Gope and attempted in such a manner that the affect of the attempt was the death of the injured Anil Gope, and thus I find that the prosecution has proved the charges against the accused persons beyond all shadow of reasonable doubt by cogent, corroborative and reliable evidence. And as such accused Obhi Namta, Kajal Bhiyan alias Kajal Nayak, Bishu Namata, Puntullu Bhumij, and Anil Bhumij each are found and held guilty for the charges under section 302 read with section 34 of the Indian Penal Code against them and each of them are convicted thereunder. Accused Kajal Bhuiyan alias Kajal Nayak is in custody as under trial prisoner and the other accused persons namely. Anil Bhumij, Bishu Namata. Ohhi Namata and Puntullu Bhumij are on bail and therefore, their respective hail-bonds stand cancelled and they are taken to judicial custody.” 24. The application of section 34 of the Indian Penal Code is normally based on a premise that the prosecution should disclose individual roles played by the accused persons in the occurrence because it is not necessary that all those who participated in the occurrence were motivated by a common intention to cause death. Based on this principle, an argument is raised that the other three appellants who were not carrying any weapon and did not cause any injury to Anil Gope cannot be convicted for murder. Based on this principle, an argument is raised that the other three appellants who were not carrying any weapon and did not cause any injury to Anil Gope cannot be convicted for murder. Reliance was placed on “Dharam Pal v. State of Haryana”, (1978) 4 SCC 440 wherein the Hon'ble Supreme Court has observed that there is no law which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. 25. There are four situations contemplated under section 300 of the Indian Penal Code under which culpable homicide amounts to murder. Clauses 2ndly and 3rdly of section 300 of the Indian Penal Code are definitely not attracted in the present case. The appellants acted with the intention of causing death of Anil Gope is also not proved by the prosecution. In “Pardeep Kumar v. Union Admn.”, (2006) 10 SCC 608 the Hon'ble Supreme Court has observed that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference drawn from the acts of the parties or attending circumstances of the case. 26. The appellants and Anil Gope were friends and co-villagers. They used to enjoy drinks together. It has come on record that there was a quarrel between them during the drinking session the previous night, and the appellants came to the house of Anil Gope and issued threats to kill him. There is also a hint in the records about some bitterness between Anil Gope and Kajal Bhuiyan. It appears that Anil Gope was objecting to the misbehavior of Kajal Bhuiyan who was teasing his wife. But except this indication, which however is not proved by the prosecution, there is no material on record to infer bad blood between the appellants and Anil Gope. The circumstances described by the prosecution witnesses indicate that Kajal Bhuiyan and PuntuUu Bhumij stabbed Anil Gope when he was made immobile and, therefore, the number of injuries caused to Anil Gope is also a relevant fact which leans in favour of the accused. 27. In the aforesaid circumstances, it is not possible to hold that the appellants possessed intention of causing death as envisaged under Clause Istly of section 300. 28. No witness could tell the Court in what manner the occurrence had started. 27. In the aforesaid circumstances, it is not possible to hold that the appellants possessed intention of causing death as envisaged under Clause Istly of section 300. 28. No witness could tell the Court in what manner the occurrence had started. The prosecution evidence is that Anil Gope was caught by the accused on the way back home and it appears that the witnesses came near the place of occurrence when bulla was raised. The witnesses have seen assault on Anil Gope when he was already overpowered by the accused and that is the reason no one could see the initial marpit in which Anil Gope suffered two defence cuts. In the circumstances, we are inclined to hold that the appellants came with premeditation to commit murder of Anil Gope is not proved by the prosecution. The presence of defence cuts on the dead body of Anil Gope indicates that first a quarrel had started between them but the appellants did not take undue advantage nor did they act in a cruel or unusual manner. Anil Gope suffered two injuries around his abdominal region but it is not proved that both injuries were caused solely either by Kajal Bhuiyan, or by Puntullu Bhumij. The prosecution evidence is that Kajal Bhuiyan and PuntuUu Bhumij both attacked Anil Gope after he was overpowered by the other three appellants. The two stab wounds caused to Anil Gope are attributable to these two appellants but there is no indication in the prosecution evidence that they attempted repeated blows to him. A stab injury in the abdominal region would definitely be dangerous but that Kajal Bhuiyan and Puntullu Bhumij knew that the injuries caused by them were so eminently dangerous that in all probability Anil Gope was likely to die so as to bring the case tailing under Clause 4thly in section 300 of the Indian Penal Code cannot be inferred from their acts. 29. Several persons may participate in the occurrence each one playing some role but all of them cannot be roped in for murder applying section 34 of the Indian Penal Code. No doubt all five appellants were involved in marpit but that they shared common intention to commit murder of Anil Gope is not established by the prosecution. 29. Several persons may participate in the occurrence each one playing some role but all of them cannot be roped in for murder applying section 34 of the Indian Penal Code. No doubt all five appellants were involved in marpit but that they shared common intention to commit murder of Anil Gope is not established by the prosecution. In this factual scenario, we hold that the prosecution has failed to prove that the appellants committed murder of Anil Gope, or that they committed murder of Anil Gope in furtherance of common intention and, therefore, their conviction under section 302/34 of the Indian Penal Code is set-aside. 30. We find that the circumstances in the case establish that the acts of Kajal Bhuiyan would bring his case within Exception 4 to section 300 of the Indian Penal Code. 31. Exception 4 to section 300 of the Indian Penal Code reads as under : Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault. 32. In “Surinder Kumar v. Union Territory, Chandigarh”, (1989) 2 SCC 217 the Hon'ble Supreme Court has summarized the essential preconditions for invoking Exception 4 as under : 7. “To invoke this exception four requirements must he satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly…….” 33. The prosecution has proved that Kajal Bhuiyan and Puntullu Bhumij shared common intention to cause grievous injury to Anil Gope. It is also proved that Anil Bhumij, Obhi Namta and Bishu Namata actively participated in the occurrence. No doubt a common intention which necessarily implies a pre-arranged concert should be distinguished from same or similar intention and merely because it is shown that all accused carried the same intention it is not enough to attract application of section 34 of the Indian Penal Code. But by now this is also a settled proposition in law that section 34 is applicable even if no injury has been caused by the particular accused himself. 34. The principle of criminal vicarious liability under section 34 of the Indian Penal Code that when a criminal act is done by several persons in furtherance of the common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone is attracted when two or more persons consent to do an act under common intention. Section 34 of the Indian Penal Code which is a rule of evidence and does not create a substantive offence by itself embodies the principle of joint criminal liability in the doing of a criminal act the essence of which is existence of a common intention. In “C. Kunhammad v. Emperor”, AIR 1924 Mad. 229 it was observed that the meaning of section 34 is that if two or more persons have individually done a thing jointly the position is the same as if each of them had done it individually. “C. Kunhammad” was approved by the Privy Council in “Barendra Kumar Ghosh v. King Emperor”, AIR 1925 PC 1 . 35. 229 it was observed that the meaning of section 34 is that if two or more persons have individually done a thing jointly the position is the same as if each of them had done it individually. “C. Kunhammad” was approved by the Privy Council in “Barendra Kumar Ghosh v. King Emperor”, AIR 1925 PC 1 . 35. It is worthwhile to note the appellant's argument in “Barendra Kumar Ghosh” which runs like this : “…….In section 34 a criminal act in so far as murder is concerned means an act which takes life criminally within Section 302 because the section concludes by saying “is liable for that act in the same manner as if the act were done by himself alone”. It was argued that where each of several persons does something criminal, all acting in furtherance of common intention, each is liable for punishment for what has been done, as if he had done it by himself.” 36. Lord Sumner captured the appellant's argument by an illustration, thus : “…..If three assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one bullet only grazes his ear, one of them is not a murderer and, each being entitled to the benefit of the doubt, all must be acquitted of murder, unless the evidence inclines in favour of the marksmanship of two or of one.” 37. Speaking for the Board, Lord Sumner has written : “Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and waif”. 38. The manner of occurrence and injuries caused to Anil Gope while he was returning home clearly establish that Anil Bhumij, Obhi Namta and Bishu Namata acted in furtherance of common intention to cause grievous injuries to Anil Gope. They overpowered Anil Gope who was offering resistance and had warded off attacks by them. These appellants restrained the movement of Anil Gope and facilitated attack by Kajal Bhuiyan and Puntullu Bhumij. They are equally liable for the injuries caused to Anil Gope which finally proved fatal and he died [refer, “Nandlal v. State of Maharashtra”, (2019) 5 SCC 224 and “Sridhar Bhuyan v. State of Orissa”, (2004) 11 SCC 395 ]. 39. These appellants restrained the movement of Anil Gope and facilitated attack by Kajal Bhuiyan and Puntullu Bhumij. They are equally liable for the injuries caused to Anil Gope which finally proved fatal and he died [refer, “Nandlal v. State of Maharashtra”, (2019) 5 SCC 224 and “Sridhar Bhuyan v. State of Orissa”, (2004) 11 SCC 395 ]. 39. In view of the aforesaid discussions, Kajal Bhuiyan, Anil Bhumij, Obhi Namta and Bishu Namata are held guilty for culpable homicide not amounting to murder. 40. Now for the purpose of deciding the nature of offence - whether it falls under Part I or Part II of section 304 of the Indian Penal Code - we need to turn to the findings recorded by the autopsy doctor. The doctor observed that the loop of intestine mesentery and mesenteric vessels were cut atleast at six places. There were blood clots in the pelvic abdomen, and injuries were antemortem in nature and caused by sharp cutting and pointed weapon. These observations of the doctor give a fairly good account of the injuries caused to Anil Gope - injuries are likely to cause death. 41. Keeping in mind the aforesaid facts and circumstances in the case, the appellants are convicted and sentenced to RI for ten years under section 304 Part I of the Indian Penal Code. 42. In the result, Criminal Appeal (DB) No. 1236 of 2006, Criminal Appeal (DB) No. 1476 of 2006 and Criminal Appeal (DB) No. 200 of 2007 are partly allowed in the above terms. 43. Mr. Shekhar Sinha, the learned Public Prosecutor has stated that Kajal Bhuiyan is in custody for more than eleven years and presently he is on bail by virtue of order dated 11th September 2013. 44. Accordingly, Kajal Bhuiyan who is the appellant in Cr. Appeal (DB) No. 200 of 2007 stands discharged from liability of bail bonds furnished by him. 45. The bail bonds furnished by Anil Bhumij, Obhi Namta and Bishu Namata are cancelled. They shall surrender to serve the remaining sentence. 46. Let the lower Court records be sent to the Court concerned forthwith. 47. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through ‘FAX’.