JUDGMENT : Pradeep Kumar Srivastava, J. Heard learned counsel for appellants Mr. Nagmani Tiwari as well as Mrs. Nehala Sharmin learned Special Public Prosecutor appearing for the State. 2. Instant criminal appeal originally preferred by three appellants namely, Dilip Rabidas, Badal Rabidas and Anita Rabidas, out of them appellant (Dilip Rabidas) has died and appeal preferred on his behalf has been abated vide order dated 24.04.2025. 3. The appellants have challenged the legality of their conviction and sentenced passed by Ist Additional Sessions Judge, Pakur in sessions Case no. 73 of 2003 dated 13 th August, 2004 whereby and whereunder the appellants have been held guilty for the offences under Section 302 read with Section 34 of the INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for life alongwith a fine of Rs.50,000/- along with default stipulation. Factual Matrix 4. Factual matrix giving rise to this appeal is that on 22.04.2003 at about 06:00 AM, some quarrel broke between Rupan Rabidas and Dilip Rabidas due to keeping cow dung near the exit of the house of the informant which was protested by the informant. It is alleged that in the meantime, brother of Dilip Rabidas namely Badal Rabidas (appellant no.1) and Anita Rabidas (appellant no.2) wife of Dilip Rabidas also arrived there. It is further alleged that Badal Rabidas caught hold of Rupan Rabidas and Anita Rabidas brought sharp cutting Hasua and gave it to her husband. It is also alleged that Dilip Rabidas with intent to kill the informant gave 'Hasua' blow on the back and above the chest which caused severe injuries. The informant's wife (Astami Rabidas) came to rescue her husband, then she was also assaulted by Badal Rabidas and Anita Rabidas by lathi. 5. On the basis of the above information, F.I.R. was registered as Maheshpur P.S. Case No. 32 of 2003 for the offences under Sections 34 1, 307, 324, 326 and 323/34 of the INDIAN PENAL CODE . Later on, injured succumbed to the injuries and accordingly, charge-sheet was submitted for the offence including Section 302 /34 of the INDIAN PENAL CODE . 6. The appellants have denied the charges and claimed to be tried. After conclusion of trial, impugned judgment and order of conviction and sentence of the appellants has been passed. 7. Later on, injured succumbed to the injuries and accordingly, charge-sheet was submitted for the offence including Section 302 /34 of the INDIAN PENAL CODE . 6. The appellants have denied the charges and claimed to be tried. After conclusion of trial, impugned judgment and order of conviction and sentence of the appellants has been passed. 7. Learned counsel for the appellants submitted that the genesis of the occurrence shows that occurrence was started on a trivial matter of throwing cow dung near the main door of the informant and the main allegation of assault is against the appellant (Dilip Rabidas) who has been died during the pendency of this appeal. So far complicity of appellant Badal Rabidas and Anita Rabidas is concerned, there is simple allegation of assaulting the informant's wife (Astami Rabidas) by lathi. It is further alleged that appellant (Anita Rabidas) gave 'Hasua' to her husband which was used in assaulting the deceased, therefore, her culpability cannot be considered at par with her husband. In the course of trial, the eye-witnesses have not been able to attribute any specific overt act against the appellant Badal Rabidas and Anita Rabidas. 8. The learned trial court has also not considered as to how the principle of Section 34 of the I.P.C. was applicable in this case, in absence of any cogent evidence regarding any prior meeting of mind or appellants acted in a concerted manner in furtherance of common intention to kill the deceased. It is further submitted that appellants Badal Rabidas and Anita Rabidas have caused simple injuries to the wife of the informant for which appellant no.1 (Badal Rabidas) has remained in custody for about 02 years 10 months and 12 days and appellant no.2 (Anita Rabidas) has remained in custody for about 01 year 11 months and 22 days during the pendency of the trial and have sufficiently been punished. Therefore, impugned judgment and order of conviction is liable to be set aside and this appeal may be allowed. 9. On the other hand, learned Special Public Prosecutor defended the impugned judgment of conviction and sentence of the appellants and submitted that learned trial court has very wisely and aptly considered the entire aspects of the case and culpability of the appellants in commission of murder of the deceased. 9. On the other hand, learned Special Public Prosecutor defended the impugned judgment of conviction and sentence of the appellants and submitted that learned trial court has very wisely and aptly considered the entire aspects of the case and culpability of the appellants in commission of murder of the deceased. Appellant (Anita Rabidas) has supplied arm a kind of lethal weapon i.e. 'Hasua' which was used in commission of murder of the deceased. The post-mortem report (exhibit-1) corroborates the cause of death of the deceased due to ante- mortem injuries caused by sharp cutting weapon, therefore, there is no merits in this appeal, which is fit to be dismissed. 10. The only point for determination in this appeal is that "as to whether the impugned judgment of conviction and order of sentence suffers from any error of law, calling for any interference in this appeal? 11. Prosecution has examined altogether 15 witnesses in this case and we have to apprise with the testimony of eye-witnesses examined by the prosecution:- P.W.1 Haradhan Ravidas is not an eye-witness of the occurrence rather he was informed by daughter of Rupan Rabidas that her father has been killed by Dilip Rabidas. Hence, he went to place of occurrence and saw Rupan Rabidas has sustained cut injuries on his chest. He also came to know that Rupan Rabidas was assaulted by 'Hasua' by Dilip Rabidas while Badal Rabidas caught hold of him from behind and Anita Rabidas gave 'Hasua' to her husband. He has proved the signature over the inquest report. P.W.2 Subodh Rabidas is also a hearsay witness of the occurrence from local villager. According to him, he heard that Rupan Rabidas was assaulted by Chheni ¼Nsuh½ by Dilip Rabidas. He has not stated about the culpability of Badal Rabidas and Anita Rabidas. P.W.3 Mohni Rabidas is also a hearsay witness who came to know after hearing hulla of the villagers. He also came to know that Dilip Rabidas has assaulted to Rupan Rabidas while his brother Badal Rabidas caught hold of him and when Astami Rabidas wife of Rupan Rabidas came to rescue, then she was also assaulted by lathi. P.W.3 Mohni Rabidas is also a hearsay witness who came to know after hearing hulla of the villagers. He also came to know that Dilip Rabidas has assaulted to Rupan Rabidas while his brother Badal Rabidas caught hold of him and when Astami Rabidas wife of Rupan Rabidas came to rescue, then she was also assaulted by lathi. P.W.4 Sufal Ghosh is also not an eye-witness of the occurrence rather came to know about the incident from the wife of Rupan Rabidas that her husband has been assaulted by 'Hasua' given by Anita Rabidas and Badal Rabidas caught hold of her husband. She was also assaulted by daughter-in-law of Dilip Rabidas by lathi. P.W.5 Midul Ghosh admitted to be not present at the time of occurrence rather returned to his home in the evening, then came to know that Dilip Rabidas has assaulted to Rupan Rabidas and nothing else. P.W.6 Sujit Ghosh has been declared hostile by the prosecution and stated nothing about the incident. P.W.7 Deepak Ghosh has also expressed no knowledge about the incident. P.W.8 Dayawan Ghosh has also expressed his no knowledge about the occurrence rather he has proved his signature and writing on the written report which was scribed on the dictation of the informant. P.W.9 Ramapati Rabidas is also not an eye-witness of the occurrence rather admits that when he reached at the place of occurrence after hearing hulla, he saw that Rupan Rabidas was under injured condition and was unconscious and being lifted on a trolley for going to hospital. P.W.10 Dipen Ghosh has claimed to be an eye-witness of the occurrence and has stated that he was standing at a distance of 10 hands and saw quarrel was going on between Dilip Rabidas and Rupan Rabidas meanwhile, Badal Rabidas caught hold of Rupan Rabidas and Anita Rabidas wife of Dilip Rabidas brought a 'Hasua' and gave it to her husband, then Dilip Rabidas assaulted Rupan Rabidas by 'Hasua' on right side of the chest. Asthami Rabidas wife of Rupan Rabidas was also assaulted by Badal Rabidas and Anita Rabidas by Lathi. This witness in his cross-examination admits that his house is situated at a distance of 100 yards from the place of occurrence. He heard hulla at about 06:00 AM in the morning, then went to place of occurrence where several persons were present. Asthami Rabidas wife of Rupan Rabidas was also assaulted by Badal Rabidas and Anita Rabidas by Lathi. This witness in his cross-examination admits that his house is situated at a distance of 100 yards from the place of occurrence. He heard hulla at about 06:00 AM in the morning, then went to place of occurrence where several persons were present. He went inside the house of the Rupan Rabidas who was lying unconscious in his courtyard. Therefore, the claim of this witness to be an eye-witness becomes doubtful. P.W.11 Ashtami Rabidas is wife of the deceased. According to her evidence, a quarrel took place between husband and Dilip Rabidas for throwing cow dung, then Badal Rabidas caught hold of her husband and Anita Rabidas gave 'Hasua' to her husband, thereafter Dilip Rabidas assaulted to Rupan Rabidas by 'Hasua' on right side of the chest and when she went there to rescue her husband, then she was also assaulted by lathi by Badal Rabidas and Anita Rabidas. In her cross-examination she has stated as under:- Above testimony of this witness clearly goes to show that when she came out of her house to rescue her husband, her husband was already assaulted and she was also assaulted by Badal Rabidas and Anita Rabidas by lathi. Thereafter, her husband was brought into courtyard and laid down on a mat, thereafter with the assistance of local persons injured was brought to police station from where injured was being taken to hospital, but died on the way. P.W.12 Bama Charan Ghosh is also a hearsay witness of the occurrence who heard about the incident of assault to Rupan Rabidas by Dilip Rabidas and Ashtami Rabidas was also assaulted by Badal Rabidas and Anita Rabidas by lathi. He further admits in his cross-examination that his house is situated at a distance of 500 yards from the place of occurrence. When he heard about the incident of assault to Rupan Rabidas, he rushed towards the place and saw that Rupan was lifted on a thela for going to hospital. P.W.13 Dr. Ashok Kumar Srivastava has conducted autopsy on the dead body of the deceased on 22 nd April, 2003 at about 04:10 PM and found following:- External Injuries:- (i) Stab wound with sharp margins size 10 cm X 5 cm X thoracic cavity deep right side back below scapula. P.W.13 Dr. Ashok Kumar Srivastava has conducted autopsy on the dead body of the deceased on 22 nd April, 2003 at about 04:10 PM and found following:- External Injuries:- (i) Stab wound with sharp margins size 10 cm X 5 cm X thoracic cavity deep right side back below scapula. (ii) Cutting of 8 th & 9 th rib at right postrial axillary line. External Injuries:- (i) Thoracic cavity full of blood with sharp incised wound- 8cm x 4 cm x across lower part of right lung. (ii) All chambers of heart empty. (iii) Liver and spleen pale. (iv) Stomach contains liquid. (v) Brain- Pale. Cause of death has been opined by this witness haemorrhage and shock due to injury of right lung caused by sharp cutting weapon. P.W.14 Jai Bahadur Singh was posted as A.S.I and investigating officer of this case. He has proved the written report and endorsed written report for registration of the case as Exhibit-2. He sent the injured to hospital for treatment, but came to know that injured has been died. Therefore, he prepared inquest report of the deceased in presence of witnesses. He has also visited the place of occurrence which is situated in village Jaipur adjacent to the house of informant towards north at Pitch road. In his cross-examination, he admits that he saw that the injured was under conscious state, but he has not recorded his fardbeyan rather recorded statement of one Dayawan Ghosh which is the basis of formal F.I.R. He has recorded re-statement of the injured, thereafter he was sent to hospital, but he died on the way. He has not found any blood stains at the place of occurrence where he reached at about 13:30 hours. After finding sufficient evidence he has submitted charge-sheet against the accused persons. P.W.15 Dr. Shiv Kumar is medical officer in-charge of Mahespur PHC and examined the injured Dilip Rabidas (deceased appellant herein) on 22.04.2003 at about 11:00 AM and found following injury:- 1. He has opined that age of injury is within 06 hours and cause of injury is by hard and blunt substance which is simple in nature. He has proved this injury report which is marked as Ext-1/1. He has also examined Ashtami Rabidas wife of Rupan Rabidas found following injures:- 1. Swelling and tenderness on left ring finger posterial aspect. 2. Swelling and tenderness on right shoulder. He has proved this injury report which is marked as Ext-1/1. He has also examined Ashtami Rabidas wife of Rupan Rabidas found following injures:- 1. Swelling and tenderness on left ring finger posterial aspect. 2. Swelling and tenderness on right shoulder. He has opined that the age of injury is within 06 hours and cause of injury is by hard and blunt substance which is simple in nature. This witness has proved this injury report which is marked as Exhibit-1/2. 12. From the aforesaid discussion of testimony of witnesses, it is crystal clear that none of the witnesses including informant are eye-witnesses of the occurrence. The wife of the informant herself stated that she was inside the house and after hearing hulla, she came out and saw that her husband was lying in injured condition. Therefore, her claim that Badal Rabidas caught hold of her husband and Anita Rabidas gave a 'Hasua' to her husband Dilip Rabidas for assaulting to Rupan Rabidas does not inspire confidence. The trend of witnesses who have seen the injured and came to know from local witnesses goes to show that there is clear cut allegation only against the Dilip Rabidas. Appellant No.1 (Badal Rabidas) and Anita Rabidas (Appellant No.2) have assaulted to Ashtami Rabidas (P.W.11) by lathi which she has proved in her evidence and which also finds corroboration from the evidence P.W.15 (Dr. Shiv Kumar) who has medically examined P.W.11. 13. In our considered view there is no iota of evidence showing applicability of Section 34 of the I.P.C. in this case. The learned trial court has also not considered and opined as to how the principle of Section 34 of the I.P.C. is applicable in the factual background of this case. We also find that there is no iota of evidence that all the appellants acted in a concerted manner in furtherance of their common object to kill the deceased. The specific overt act about catching hold of the deceased by Badal Rabidas and giving Hasua to Dilip Rabidas by his wife appears to have been added subsequently to involve them for the purpose of joint liability. In our considered view the learned trial court has committed serious error of law in holding the appellants Badal Rabidas and Anita Rabidas guilty for the offence under Section 302 read with Section 34 of the INDIAN PENAL CODE without any concrete evidence. In our considered view the learned trial court has committed serious error of law in holding the appellants Badal Rabidas and Anita Rabidas guilty for the offence under Section 302 read with Section 34 of the INDIAN PENAL CODE without any concrete evidence. At best, the culpability of the appellants Badal Rabidas and Anita Rabidas appears to be proved for the offence under Section 323 of the I.P.C. voluntarily causing simple injury by lathi which falls under Section 323 of the I.P.C. These appellants have already undergone imprisonment for about 2 years and 10 months and 01 year 11 months and 22 days respectively and sufficiently been punished for their guilt. 14. In view of the above discussion and reasons, the appellants are acquitted for the charges leveled under Section 302 read with Section 34 of the I.P.C. and their conviction and sentence is hereby set aside rather both the appellants namely Badal Rabidas and Anita Rabidas are held guilty for the offence under Section 323 of the I.P.C. for which they are sentenced to imprisonment already undergone. Accordingly this appeal is Partly Allowed with aforesaid observation. 15. Appellants are on bail, hence, they are discharged from the liability of their bail bond and sureties are also be discharged. 16. Pending I.As, if any stand disposed of. 17. Let a copy of this judgment along with trial court record be sent to the concerned court forthwith for information and needful.