JUDGMENT : G. BASAVARAJA, J. 1. Appellants/accused have preferred this appeal against the Judgment of conviction and order on sentence dated 26 th February 2020 passed in SC No.19 of 2018 by the Principal Sessions Judge, Dharwad (for short hereinafter referred to as the “trial Court”.) 2. For the sake of convenience, the parties herein are referred to with their rank and status before the trial Court. 3. Facts leading to the case are that, the Police Inspector Dharwad Rural Circle submitted chargesheet against accused 1 to 4 for commission of offence punishable under Section 302 , 504, read with Section 34 of Indian Penal Code . It is alleged that on 12 th September 2017 at 3.00 am, complainant- Shivappa Irappa Pandeshi lodged complaint as per Exhibit P1 before the Police Sub-Inspector of Garag Police Station. In the complaint it is stated that the complainant, along with his family, is residing at Kottur Village and he is an agriculturist. He has five children, viz. Basavaraj, Suresh, Shobha, Sangamesh, and Manjunath. His eldest son Basavaraj is also an agriculturist. For the past one year, in connection with previous enmity, accused No.1-Junglisab was nurturing ill-will against his son and on the intervening night of 11 th & 12 th September 2017, he received an information about assault on his son and that his son has been admitted to District Hospital, Dharwad. After confirming the same from Muttu Badiger a friend of his son, he along with his wife, went to Dharwad District Hospital, wherein he saw that his son was dead. On enquiring with Muttu Badiger, he revealed that while he along with his friends, Nagaraj, Sanjeev and Praveen were returning to their village from Kottur Cross, at that time, in front of the Kirana shop of Hosamani, Basavaraj and accused No.1- Junglisab were quarreling. After enquiring about the quarrel, they tried to pacify the same. At that time, the uncle of accused No.1-Imamsab who is accused No.2, and his sons Rajesab and Asif who are accused 3 & 4 respectively, started to quarrel with Basavaraj. When PW5-Muttu Badiger and his friends asked Basavaraj to leave the place, accused No.1- Junglisab came out of his shop by abusing Basavaraj. When Basavaraj objected accused No.1, accused 2 to 4 came near Basavaraj and started assaulting him with fist and also kicked him. When PW5-Muttu Badiger and his friends asked Basavaraj to leave the place, accused No.1- Junglisab came out of his shop by abusing Basavaraj. When Basavaraj objected accused No.1, accused 2 to 4 came near Basavaraj and started assaulting him with fist and also kicked him. At that time, accused No.1-Junglisab stabbed Basavaraj with knife near his nose and on his chest, causing severe bleeding injuries. When they started to shout, accused 1 to 4 fled from the spot. By then, it was about 9:45 pm. Immediately, injured Basavaraj was shifted to District Hospital, Dharwad wherein doctors have told them he has been brought dead. Therefore, complaint-Exhibit P1 came to be lodged before Garag Police where a case came to be registered in Crime No.144 of 2017 for the offences punishable under Sections 302 , 504 & 324, read with Section 34 of Indian Penal Code and First Information Report was submitted before the jurisdictional Magistrate as per Exhibit P13. After completion of investigation, Investigating Officer submitted charge sheet against accused for the offence punishable under Section 302 and 504 read with section 34 of Indian Penal Code . After filing chargesheet, jurisdictional Magistrate has taken cognizance against the accused for the aforesaid offences and case was registered in CC No.1105 of 2017. After committal to Sessions Court, case came to be registered in SC No.19 of 2018. Having heard on charges, the trial Judge framed charges against the accused for the offence punishable under Sections 302 & 504 read with Section 34 of Indian penal code. The same was read over and explained to the accused in the language known to them. Accused have pleaded not guilty and claimed to be tried. 4. To prove the guilt of the accused, prosecution has, in all, examined nineteen witnesses as PWs.1 to 19 and marked 34 documents as Exhibits P1 to P34. Eleven material objects have been marked as MOs.1 to 11. Upon closure of prosecution side evidence, statement of accused, as required under Section 313 of the Code of Criminal Procedure , was recorded. Accused have totally denied the incriminating evidences appearing against them, but have not chosen to lead any defence evidence on their behalf. Having heard on both sides, the trial Court has passed the impugned Judgment of conviction and order on sentence. Accused have totally denied the incriminating evidences appearing against them, but have not chosen to lead any defence evidence on their behalf. Having heard on both sides, the trial Court has passed the impugned Judgment of conviction and order on sentence. Being aggrieved by the judgment of conviction and order on sentence, the accused have preferred this appeal. Submissions advanced on behalf of the accused: 5. Sri K.M. Shiralli, learned Counsel appearing for the appellants/accused would submit that the impugned Judgment of conviction and order on sentence passed by the trial Court is contrary to evidence, facts, and probabilities of the case. He would submit that the trial Court has gravely erred in convicting the applicants for the offences punishable under Sections 302 & 504 read with Section 34 of Indian Penal Code on the testimony of interested prosecution witnesses whose evidence suffers from serious infirmities. The trial Court has gravely erred in holding that the prosecution proves beyond all reasonable doubt that on 11 th September 2017, accused committed the offence punishable under Sections 302 and 504 read with Section 34 of Indian Penal Code . It is the submission of the learned Counsel that the Court below ought to have held that accused have not committed any offence as alleged by the prosecution. 5.1. The Court below, while passing impugned Judgment of conviction, has not properly assessed the evidence of PWs.5, 6, 14 & 15 judiciously. The Court below has also not appreciated the evidence of PW19-Doctor, who was then working as only Medical Officer in Primary Health Centre, Kottur Village and that on the say of one Sri Sortur the Police staff, he rushed to mortuary of District Hospital, Dharwad and without taking permission of Medical officers or Superintendent of District Hospital, conducted the post-mortem examination of the deceased Basavaraj and the said post-mortem report was collected by the Police from his house. Although this witness has given unnatural evidence, the Court below failed to appreciate the same. The Court below ought to have held that PWs.5, 6, 14 and 15 are not trustworthy witnesses. The perusal of their evidence, their examination-in-chief and their cross-examination, clearly demonstrates that they are planted witnesses. 5.2. Learned counsel would further submit that there is no iota of evidence to project that the accused 2 to 4 have committed any offence, much less the offence of murder. The perusal of their evidence, their examination-in-chief and their cross-examination, clearly demonstrates that they are planted witnesses. 5.2. Learned counsel would further submit that there is no iota of evidence to project that the accused 2 to 4 have committed any offence, much less the offence of murder. The trial Court has seriously erred in not appreciating the attendant circumstances which are favourable to the defence. The circumstances are strong enough to render the prosecution’s version as improbable and unnatural. The trial Court has committed serious error in not appreciating the evidence of prosecution regarding the injuries sustained by the accused No.2 in this case. 5.3. PW17-Investigating Officer in his evidence has deposed that while producing accused No.2 along with other accused before the jurisdictional Magistrate, accused No.2 had not sustained any injuries on his body. He even denied the suggestion that the accused No.2 has been assaulted by PW5. Exhibit P34-wound certificate issued by the District Hospital, Dharwad shows that the accused No.2 has sustained injuries to the left hand, but strangely he gave evidence that the accused No.2 sustained injuries due to coming into contact with some sharp object in the police vehicle while he was being taken to the hospital and to Court. Hence, he submitted the trial Court is not justified in passing the impugned Judgment of conviction and sentence holding the accused guilty of offences punishable under Sections 302 & 504 read with Section 34 of Indian Penal Code and the same is liable to be interfered with by this Court. On all these grounds he sought to allow the appeal. Submission on behalf of the State: 6. On the other hand, Sri M.B. Gundwade, learned Additional State Public Prosecutor, appearing for the State would submit that the trial Court has appreciated the evidence on record and the documents in accordance with law and facts and absolutely there are no grounds to interfere with the impugned Judgment of conviction and the order on sentence. Accordingly, he sought for dismissal of the appeal. 7. Having heard the arguments on both sides and on perusal of material please, before us, the following points arise for our consideration: 1. Whether the impugned judgment passed by the Trial Court suffers from legal infirmities requiring this Court to intercede? 2. What order? 8. Accordingly, he sought for dismissal of the appeal. 7. Having heard the arguments on both sides and on perusal of material please, before us, the following points arise for our consideration: 1. Whether the impugned judgment passed by the Trial Court suffers from legal infirmities requiring this Court to intercede? 2. What order? 8. Our answer to the able points would be as under: Point No.1: partly in the affirmative; Point No.2: as per final order. Regarding Point No.1 9. We have carefully perused the materials placed before us. The Investigating officer has cited 23 witnesses in the chargesheet. Out of them, prosecution has examined nineteen witnesses as PWs.1 to 19. 34 documents have been marked as Exhibits P1 to P 34; and eleven material objects have been marked as MOs.1 to 11. 10. The genesis of the case arise out of the complaint-Exhibit P1 filed by PW1-Shivappa Irappa Pandeshi. In the complaint, it is stated as under: 11. The complaint was filed on 12 th September 2017 at 3.00 AM. On the basis of the complaint, case was registered against accused 1 to 4 in Crime No.144 of 2017 for offence punishable under Sections 324 & 504 read with Section 34 of Indian Penal Code and First Information Report was submitted to the Court as per Exhibit P13 on the same day, i.e. 12 th September 2017 at 9.00 am. The complainant PW1 is not an eye-witness to the incident. He has deposed in his evidence that he has got five children-four male & one female. Deceased-Basavaraj was the eldest son and he was doing agriculture work. Complainant-PW1 knows the accused. They are all residents of the same village. Accused No.1-Junglisab is running a chicken shop in their village. It is stated that his son deceased-Basavaraj and Accused No.1-Junglisab were often quarreling with each other prior to the incident also. On the date of incident, he was in his house. He has received telephonic message from PW5-Muttu Badiger as to assault on his son Basavaraj by the accused and also shifting of injured to General Hospital Dharwad for treatment. Immediately, he along with his wife, rushed to General Hospital, Dharwad only to see the dead body of their son with bleeding injuries on his face and chest. PW5-Muttu Badiger was present in the hospital. Immediately, he along with his wife, rushed to General Hospital, Dharwad only to see the dead body of their son with bleeding injuries on his face and chest. PW5-Muttu Badiger was present in the hospital. When the complainant enquired about the incident, he came to know that the accused have picked up quarrel with the deceased during night hours at about 9:45 pm on 11 th September 2017 near the Kirana shop of one Hosamani and all the accused were abusing the deceased-Basavaraj in filthy language as “choot mari magane, bosadi magane, hadaragitti magane”. Accused dragged the deceased, kicked him with legs and accused No.1-Junglisab went to his shop situated at a distance of 10 to 15 feet from the place of incident, came back with a knife and assaulted the deceased with knife on his face and chest and to other parts of the body. Thereafter, the complainant went to police station along with PW5 and got prepared the complaint-Exhibit P1 from PW5 and gave the same to Station House Officer for registration of a criminal case against the accused. 12. CW2-Atmanand Basavaraj Patath examined as PW2, has deposed as to the inquest mahazar conducted by the Police as per Exhibit P6. 13. CW4-Gangappa Basavaraj Bennigeri, said to be the attester to Panchama and sketch witnesses examined as PW3, has deposed as to the Panchama conducted by the Police as per Exhibit P7 and also preparation of sketch as per Exhibit P8. He has also deposed as to the seizure of material objects MOs.9 & 10. He has further deposed as to the mahazar Exhibit P10 and also identification of material objects, MOs.1 to 10. 14. CW6-Sanju Eeti, said to be the attestor to the weapon seizure panchanama is examined as PW5. He has deposed in his evidence that on 13 th September 2017, Police summoned him and CW7-Manjunath to the police station. When they went there, accused No.1-Junglisab was present in the station. Accused No.1, took them to his shop and produced knife before police and the police have seized the same as per Exhibit P11 and took photograph. Accused No.1 has also put a signature on Exhibit P11 as per Exhibit P11(c). He has also identified the said knife which is marked as MO11. 15. Accused No.1, took them to his shop and produced knife before police and the police have seized the same as per Exhibit P11 and took photograph. Accused No.1 has also put a signature on Exhibit P11 as per Exhibit P11(c). He has also identified the said knife which is marked as MO11. 15. CW8-Muttu Badiger, CW11-Praveen Kammar, CW9- Nagaraj @ Nataraj Hadkar and CW10-Sanjeev Ishwar Kammar, all said to be the witnesses, examined as PWs5, 6, 14 and 15 respectively. The substance of evidence of these material eye- witnesses is that the accused were abusing deceased Basavaraj as “Bosadi magane”. They know the complainant and the accused. All are the residents of the same village. All the accused are related to each other. That on 11 th September 2017 at 9:45 pm, all the accused were quarrelling with the deceased-Basavaraj and murdered him in front of shop of Hosamani. They have further deposed that prior to this incident deceased-Basavaraj has lent Rs.20,000/- to accused No.1-Junglisab and the accused No.1 did not return the same to the deceased. Deceased-Basavaraj, often used to ask accused No.1-Junglisab to return the amount. On the fateful day, when the deceased went to the shop of accused No.1 and asked to return the money, then the accused No.1-Junglisab being enraged, retorted to deceased as to why he was coming to the shop often asking for money. In that regard, there was a quarrel with each other and PWs5, 6, 14 and 15 tried to pacify the accused and the deceased. Accused No.1, abused the deceased as “hadaragitti magane” and accused No.2- Imamsab kicked the deceased with legs. Accused No.4-Asif assaulted the deceased with fist and accused No.3-Rajesab caught hold of the hands of the deceased. Then, accused No.1- Junglisab gave blow to the deceased on his face and chest with knife causing bleeding injuries. Injured Basavaraj fell on the ground and became unconscious. When there was hue and cry, all the accused fled the spot. Thereafter, PW5 has informed the same to PW1 and shifted the injured to Civil Hospital, Dharwad. There, the duty Doctor examined the injured and declared him dead. 16. PW 15-Anand Kulkarni, Head Constable, examined as PW7 has deposed in his evidence as to submission of First Information Report to the Court pertaining to Crime No.144 of 2017. 17. Thereafter, PW5 has informed the same to PW1 and shifted the injured to Civil Hospital, Dharwad. There, the duty Doctor examined the injured and declared him dead. 16. PW 15-Anand Kulkarni, Head Constable, examined as PW7 has deposed in his evidence as to submission of First Information Report to the Court pertaining to Crime No.144 of 2017. 17. PW16-Umesh Madiwala, Police Constable, examined as PW8 has deposed in his evidence that he was deputed to supervise the dead body of Basavaraj and he has assisted the Medical officer for post-mortem examination of the deceased and thereafter, he handed over the dead body to the relatives of the deceased. 18. CW17-Santosh Jawali, Police constable, examined as PW9 has deposed any evidence as to the submission of fifteen seized articles, to Forensic Science Laboratory, Belagavi and he has received acknowledgement as per Exhibit P 14. 19. CW18-Udaykumar Bhandari, Police Constable examined as PW1 has deposed in his evidence as to the snapping of photographs, Exhibits P2 to 5 & 9 as per the direction of the Investigating officer. 20. CW19–M.G. Kulkarni, Head constable, examined as PW11 has deposed as the Panchanama-Exhibit P6 written by him. He has deposed as to recording panch witness as per Exhibit P7 and sketch Exhibit P8. 21. CW-25 additional witness Dr. Somashekhar, Senior Scientific Officer, examined as PW12, has deposed in his evidence as to issuance of certificate Exhibit P16. 22. Another additional witness, CW24-Dr Vidya, Senior Scientific Officer, examined as PW13, has deposed in her evidence as to the opinion given by her as per Exhibit P17. 23. CW22-Sangappa Palabhavi and CW23-Prashant Suresh Nayak, Police inspectors examined as PW16 & PW17, have deposed as to their respective investigation. 24. CW21-Khadarsab Sheikhsab Mulla, Junior Engineer, HESCOM examined as PW18, has deposed in his evidence as to issuance of certificate Exhibit P24 at the instance of police. 25. CW20-Dr. Vishwanath P.R., examined as PW19, has deposed as to the conducting of post-mortem examination on the dead body of deceased-Basavaraj and issuance of postmortem report as per Exhibit P23. 26. On careful scrutiny of the entire evidence on record, it is crystal clear that PW1–complainant the father of deceased- Basavaraj, has alleged in the complaint that, as per the information given by PW5-Muttu Badiger, who is an witness to the incident, he has lodged the complaint as per Exhibit P1. 26. On careful scrutiny of the entire evidence on record, it is crystal clear that PW1–complainant the father of deceased- Basavaraj, has alleged in the complaint that, as per the information given by PW5-Muttu Badiger, who is an witness to the incident, he has lodged the complaint as per Exhibit P1. In the complaint, it is specifically stated that accused No.1- Junglisab gave blow to the deceased on his nose and chest with knife. The same is also stated by PW1 and the material witnesses PWs.5, 6, 14 and 15. All of them have clearly deposed in their evidence that accused No.1-Junglisab abused the deceased-Basavaraj and gave blow to him with knife on his nose and chest, causing severe bleeding injury. All these material witnesses have specifically stated that the accused No.1-Junglisab has borrowed an amount of Rs.20,000/- as loan from deceased-Basavaraj and the said Basavaraj used to ask accused No.1-Junglisab to return the money. In this regard, accused No.1, started quarrel and incidentally, brought knife from his shop and gave blow to the deceased-Basavaraj on his nose and chest causing severe bleeding injury. During the statement recorded under Section 313 of Code of Criminal Procedure , accused No.1-Junglisab has clearly admitted to question No.2 that he is running chicken shop in his village. The Police have conducted inquest panchanama and have also conducted spot mahazar. The evidence of material witnesses reveal that, soon after the incident, the material witnesses shifted the injured to the hospital and in the hospital, the doctors have declared that the injured brought dead. Thereafter, postmortem examination was done by the medical officer and he has issued postmortem report as per Exhibit P23 in which the injuries inflicted upon the deceased are shown as under: "External Injuries: 1. Stab wound measuring 4cm length 1.5cm breadth x cavity deep over right side dogma and ala of nose, the margin are clear cut, upper end is short and lower end is blunt. 2. Stab wound measuring 3cmx2cm cavity deep. present over right side lower part of neck, located 1cm outer end is sharp and inner end is blunt. Track of Wound: 1. 2. Stab wound measuring 3cmx2cm cavity deep. present over right side lower part of neck, located 1cm outer end is sharp and inner end is blunt. Track of Wound: 1. On further dissection of external injury no.1, the wound after pressing skin substantaneous tissue, it has fractured nasal bone on right side, then goes downward and backward external right orbital floor, nasopharynx, finally pictured sellar region of base of skull, fractured & lacerated base of brain at inter antemortem in nature. Examination of brain & membranes: Brain & membranes shows subdural hemorrhage subarchenoid hemorrhage over…….. 2. On further dissection of external injury no.2 the weapon after piercing skin, substantaneous tissue, it has entered below right side of clavicle, then downwards and backwards pertaining 1 st rib & 1 st intercoastal space, cutting the right ……. then entered the right pleura & punctured right lung apreal lobe depth measuring 7cm, flush of wound shows extravasation of blood, fractured end of bone shows extravasation of blood, wound is antemortem in nature. " 27. After obtaining Forensic Science Laboratory report Exhibit P28, Doctor has opined that the cause of death of the deceased is haemorrhagic shock as a result of multiple stab injuries, sustained. Investigating Officer has arrested accused No.1-Junglisab and interrogated him and has recorded his voluntary statement as per Exhibit P21 and at the instance of accused, and the investigating officer also seized the knife MO11 in the presence of panchas under seizure measure. Investigating Officers have clearly deposed as to the investigation conducted by them. 28. Accused No.2-Imamsab has submitted his written statement in which he has stated as under: 29. A careful examination of the written statement submitted by accused No.2-Imamsab, so also, the arguments advanced on behalf of the applicants/accused, would reveal that accused have not disputed the murder of deceased- Basavaraj. The accused have set up defence that PW5-Muttu Badiger was in love with one Saira Banu and as the deceased Basavaraju was also having relationship with said Saira Banu and because of this, there was a quarrel between PW5-Muttu Badiger and deceased Basavaraju. To take revenge against the deceased, PWs.5, 6 and 14, while returning from Lotus Bar having consumed alcohol, upon noticing Basavaraju in front of the shop of Hosamani, committed the murder of Basavaraj and later have given false information to PW1 alleging that the appellants/accused committed the murder of his son. To take revenge against the deceased, PWs.5, 6 and 14, while returning from Lotus Bar having consumed alcohol, upon noticing Basavaraju in front of the shop of Hosamani, committed the murder of Basavaraj and later have given false information to PW1 alleging that the appellants/accused committed the murder of his son. Accused No.2-Imamsab has also received injuries as per Exhibit P34- wound certificate and he went to Police station to lodge complaint against PW5 and others. Police have not taken any action. Instead, received complaint from PW1 against the accused and filed false chargesheet against them. To substantiate the defence set up by the accused, the accused have not placed any material before the Court. If really, PW5- Muttu Badiger and others had committed murder of Basavaraj, the accused would have stated the same before the police, so also, if the police had not taken any action, the accused could have taken necessary legal steps to ensure taking action against PW5 and others, but they have not done so. The materials placed before the prosecution reveals that accused No.1-Junglisab has committed the murder of Basavaraj with the help of knife MO11, which is supported by other witnesses, so also, medical evidence. There is cogent convincing and believable, as well as, legally acceptable evidence before the Court to come to the conclusion that accused No.1-Junglisab has committed murder of Basavaraju with help of knife MO11 by abusing the deceased in filthy language in the presence of eye-witnesses. Accordingly, accused No.1-Junglisab has committed offence punishable under Section 302 and 504 of Indian Penal Code . 30. Now, we have to assess the evidence as to involvement of accused 2 to 4 in committing the murder of deceased-Basavaraj. 31. Before delving into assessing the involvement of accused 2 to 4 in committing the murder of Basavaraj, it is necessary to refer to Section 34 of Indian Penal Code . The same reads as under: "34. Acts done by several persons in furtherance of common intention.--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.” 32. The same reads as under: "34. Acts done by several persons in furtherance of common intention.--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.” 32. A plain reading of the said Section emphasizes that joint liability, stating that when a criminal act is done by several persons in furtherance of a common intention, each person is liable as if they had done it alone. In a catena of decisions, the Hon’ble Supreme Court clarified that ‘common intention’ is a psychological fact and can be inferred from the facts and circumstances of the case, even if there's no explicit pre-arranged plan. Only the presence of the accused, by itself, would not attract the provisions of Section 34 of IPC . Other factors shall also be taken into consideration for arriving at said conclusion. As regards “common intention” is concerned, the Hon’ble Supreme Court, in the case of Parasa Raja Manikyala Rao and Another v. State of Andhra Pradesh, (2003) 12 SCC 306 , at paragraphs 11 and 12, has observed as under: "11.The Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co- conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. ...................... The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. ...................... The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section cannot apply. 12. "Common intention" implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413 ) 33. In Amrit Singh and Others v. State of Punjab , (1972) Cri. L.J. 465 (SC), it has been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. 34. In the case of Maqsoodan and Others v. State of Uttar Pradesh, AIR 1983 SC 126 , it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. 35. In the case of Suresh v. State of Uttar Pradesh, (2001) 3 SCC 673 , Hon'ble Supreme Court at paragraph 24 of the judgment, has observed thus: "24. ...................... Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC ." 36. In the same judgment, at paragraph 40, it is observed as under: "40. .................. The word "act" used in Section 34 denotes a series of acts as a single act. In the same judgment, at paragraph 40, it is observed as under: "40. .................. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the Court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention…..” 37. In this backdrop, now we have to assess the involvement of accused 2 to 4 in the murder of deceased- Basavaraju. With regard to involvement of accused 2 to 4 is concerned, it is not the case of the prosecution that accused 2 to 4 have assaulted the deceased-Basavaraj with knife or any other weapon. The content of Exhibit P1 reveals that accused No.2-Imamsab and his children, Rajesab and Asif accused 3 & 4 respectively, abused the deceased. Accused 2 to 4 assaulted the deceased with hands and legs. 38. PW1 complainant, who is the hearsay witness, has also deposed the same in his evidence. PWs.5, 6, 14 and 15 have also deposed that accused No.2-Imamsab assaulted deceased-Basavaraj with legs and accused No.4-Asif assaulted the deceased with his fist and accused No.3-Rajesab caught hold of the hands of deceased. In Exhibit P1-complaint, it is stated that when the accused No.1-Junglisab tried to assault the deceased with knife and when the deceased tried to escape at that time, accused No.2-Imamsab also received blow to his hand and sustained bleeding injury. In this regard, neither PW1 nor other eye-witnesses have deposed in their evidence as to the injuries caused to Imamsab-accused No.2. But during the course of cross-examination of PW1, he has admitted that accused No.2 has received injuries on his hand as stated in Exhibit P1. However, he has stated that Imamsab himself has inflicted injury upon him with blade and after noticing the death of Basavaraju, he tried to lodge complaint against the complainant. 39. But during the course of cross-examination of PW1, he has admitted that accused No.2 has received injuries on his hand as stated in Exhibit P1. However, he has stated that Imamsab himself has inflicted injury upon him with blade and after noticing the death of Basavaraju, he tried to lodge complaint against the complainant. 39. Exhibit P34-wound certificate pertaining to accused No.2-Imamsab issued by the Casualty Medical Officer, District Hospital, Dharwad reveals that accused No.2-Imamsab Amingad has received injury to his left hand. It is also mentioned in Exhibit P34 as CLW over left hand. History of this injury has not been disclosed by the medical officer. 40. PW16-Sangappa Palabhavi and PW17-Prashant Nayak, Police inspectors have not deposed anything as to the injuries caused to accused No.2 as per wound certificate Exhibit P34. But during the course of cross-examination of PW16, has categorically denied the suggestion of the accused Counsel that accused No.2 sustained injuries on his hand. In the course of cross-examination of PW 17, he has also denied the suggestion as to the injury caused to accused No.2. But, when Exhibit P34-wound certificate was confronted to PW17, he has admitted the injuries shown in Exhibit P34 and he has deposed in his cross-examination that accused No.2 has received the injury in the police jeep when he came into contact with a sharp edge. The Exhibit P1 complaint reveals that accused No.2 received injuries to his hand and same is also substantiated with the wound certificate Exhibit P34. The prosecution has not explained anything in this regard. Even the material witnesses complainant PW1 and witnesses PW5, 6, 14 and 15 have also not deposed anything as to the injuries caused to accused No.2-Imamsab. Even the investigating officers have not explained in their examination-in-chief as to the injuries caused to accused No.2, and also as the contents of Exhibit P34 wound certificate. 41. Accused No.2-Imamsab has submitted his written statement in which it is stated that on 12 th September 2017 at 4.00 am, he went to Police Station to inform the death of the deceased Basavaraj as Muttu Badiger, Praveen Kumar and two- three others and friends of Badiger quarrelled with Basavaraj and assaulted him with knife. 41. Accused No.2-Imamsab has submitted his written statement in which it is stated that on 12 th September 2017 at 4.00 am, he went to Police Station to inform the death of the deceased Basavaraj as Muttu Badiger, Praveen Kumar and two- three others and friends of Badiger quarrelled with Basavaraj and assaulted him with knife. After noticing the fact, he had come to police station to lodge complaint against Muttu Badiger and others, the said Muttu Badiger threatened him and villagers assaulted him, and accordingly, he got hurt on his left finger. This explanation given by accused No.2 cannot be accepted as there is no evidence to show that PW5 and others have assaulted him. Accused No.2 might have inflicted injury on his own or at the time while accused No.1-Junglisab was trying to assault the deceased with knife and for that reason accused No.2-Imamsab has not lodged any complaint against accused No.1. However, there is no consistent and corroborative evidence to prove that accused 2 to 4 were actively participated in the murder of deceased-Basavaraj having common object to kill the deceased. 42. Even Exhibit P1 does not reveal that accused No.3- Rajesab held the hands of deceased. For the first time before the Court, PWs.5, 6, 14 and 15 have deposed that accused No.3-Rajesab caught hold of the hands of the deceased. Accused 2 to 4 have no motive or intention to kill the deceased at the relevant point of time. It is the case of the prosecution that accused 2 to 4 have assaulted deceased with their hands and legs. But the evidence of material witnesses is not consistent to the contents of Exhibit P1 complaint. Admittedly, accused 2 to 4 have not used any weapon for the commission of murder of the deceased. Even in the chargesheet, the investigating officer has dropped the penal provision of Section 324 Indian Penal Code against these accused. The non- explanation of the injury caused to accused No.2-Imamsab will create doubt as to the overt act of accused 2 to 4 as alleged by the prosecution. It is a specific case of prosecution that accused No.1-Junglisab has assaulted and stabbed deceased Basavaraj with knife on the face and chest. The non- explanation of the injury caused to accused No.2-Imamsab will create doubt as to the overt act of accused 2 to 4 as alleged by the prosecution. It is a specific case of prosecution that accused No.1-Junglisab has assaulted and stabbed deceased Basavaraj with knife on the face and chest. We have already held that the prosecution has proved that accused No.1- Junglisab has committed murder of deceased by stabbing with knife on his face and chest, and there is no cogent, corroborative, consistent and believable evidence as to the involvement of accused 2 to 4. Since accused No.2-Imamsab is the uncle of accused No.1-Junglisab and accused 3 & 4 are sons of accused No.2-Imamsab, the complainant would have filed complaint against accused 2 to 4 alleging that accused 2 to 4 have also participated in the alleged crime. In the case on hand, the prosecution has failed to establish that there was a common intention, in the sense, pre-arranged plan, between the accused 2 to 4 and accused No.1 to commit the murder. 43. Learned Counsel for the appellants vehemently submitted that Exhibit P1-complaint does not reveal as to the borrowing of amount of Rs.20,000/- from the deceased. PW1 and other eyewitnesses, for the first time before this Court, have stated as to the loan transaction. A perusal of Exhibit P1- complaint makes it clear that there is no reference as to borrowing of loan by accused No.1-Junglisab from the deceased Basavaraj. However, in the complaint it is stated that there is a previous enmity between accused No.1-Junglisab and deceased Basavaraj for the past one year, but the reason of old enmity is not disclosed in the complaint. However, accused have set up a defence that there was an ill-will between the accused number one and deceased Basavaraju regarding an affair with one Saira Banu. The defence set up by the accused had not been proved by accused. But the defence set up by accused No.1-Junglisab reveals that there was a previous enmity between him and the deceased. Non-mentioning of the loan transaction in the complainant, will not be a ground for acquittal of accused No.1 since there is direct evidence of accuse No.1 assaulting with knife on face and chest of deceased-Basavaraju, we cannot accept argument advance on behalf of the accused No.1-Junglisab. 44. Non-mentioning of the loan transaction in the complainant, will not be a ground for acquittal of accused No.1 since there is direct evidence of accuse No.1 assaulting with knife on face and chest of deceased-Basavaraju, we cannot accept argument advance on behalf of the accused No.1-Junglisab. 44. Further, the learned Counsel has for the accused has also submitted that after the death of the Basavaraj, the people of village were telling that there was a news flashing in the television that because of a lady from Dubai murder has happened in the village. In this regard, there is no material placed before the Court. Hence, this argument also cannot be accepted. 45. The learned Counsel has also argued that Medical officer to be held responsible because he has given unnatural and irresponsible and contradictory evidence in the cross-examination, which clearly demonstrates that he has conducted post-mortem examination and the same has been done in collusion with the police only to help them. Further, the learned counsel for the appellants submitted that PW19 was working as only Medical Officer at Primary Health Centre, Kottur, conducted the post-mortem examination on 12 th September 2017 at 11:25 am and issued postmortem report Exhibit P23 on 13 th September, 2019. He has given his opinion as to cause of death as per Exhibit P28 and also issued Exhibit P29 regarding opinion of MO11. In the cross-examination he admits that on 12 th September, 2017, he was the only doctor working at Primary Health Centre, Kottur, which is about 17 km away from Kottur village. When he received the requisition letter he was at Primary Health Center Kotur Village. He further said when he conducted PM report no flesh has come out from injury no. 1 and 2. But in his cross-examination, he admits that, in the Inquest report form no.146(II) it is mentioned that about 1" length and ½" width portion of flesh was hanging out of the chest injury of the deceased. 46. He further said at para-14 of his evidence that at about 11:25 AM he received requisition for conducting Post Mortem. 47. The medical officer, during his deposition, stated that he received oral instructions from the Investigating Officer to conduct the postmortem examination of the deceased. He deposed that, acting on such oral instructions, he proceeded to the mortuary of the District Hospital at Dharwad, where he collected the requisition. 47. The medical officer, during his deposition, stated that he received oral instructions from the Investigating Officer to conduct the postmortem examination of the deceased. He deposed that, acting on such oral instructions, he proceeded to the mortuary of the District Hospital at Dharwad, where he collected the requisition. He further clarified that, on the day of the incident, between about 8:30 a.m. and 9:00 a.m., the Investigating Officer contacted him telephonically and requested him to undertake the postmortem examination. In paragraph 15 of his deposition, the doctor added that a police staff member from Garag Police Station, identified as one Mr. Soratoor, had also orally conveyed the same instructions to him. The doctor candidly admitted that he was the in-charge medical officer of the PHC at Kottur, which operated between 09:00 a.m. and 04:30 p.m. On that day, despite his official responsibility to remain at the PHC to attend to patients, he instructed the staff nurse to attend to the patients in his absence and proceeded to Dharwad for the postmortem. 48. In his cross-examination, particularly between paragraphs 17 and 20, the doctor admitted that even though he was responsible for the functioning of the PHC at Kottur, he did not deem it necessary to obtain a written requisition or formal permission prior to leaving for Dharwad to conduct the postmortem. He reiterated that his actions were based solely on oral instructions received from the police. Notably, he did not advise the police to consult other available medical officers at the District Hospital, Dharwad, for the purpose of conducting the postmortem examination. He admitted that there is no statutory requirement or formal protocol indicating that the postmortem examination must be conducted only by a doctor from the jurisdictional village where the deceased resided. He also stated that upon reaching the mortuary at the District Hospital, Dharwad, he did not submit any written requisition or obtain any formal permission from the District Surgeon or any Senior Medical Officer to conduct the postmortem. He concluded his examination by stating that he completed the postmortem at around 3:00 p.m. and returned to Kottur by approximately 4:30 p.m. Thereafter, he handed over the postmortem report to the police personnel who collected the same from his residence. 49. He concluded his examination by stating that he completed the postmortem at around 3:00 p.m. and returned to Kottur by approximately 4:30 p.m. Thereafter, he handed over the postmortem report to the police personnel who collected the same from his residence. 49. It is pertinent to note that the factum of death of the deceased Basavaraj is not in dispute, nor is there any challenge raised by the accused in respect of the postmortem or the report of the Forensic Science Laboratory. Furthermore, the fact of homicidal death is also not contested by the defence. The limited defence sought to be projected by the accused is that prosecution witnesses PWs.5 and 6 were allegedly responsible for the murder of Basavaraj. In this context, procedural irregularities or administrative lapses, if any, in the manner in which the postmortem was conducted, would be inconsequential and immaterial to the core issue. Such irregularities, assuming they exist, do not detract from or impair the case of the prosecution. Therefore, the contention advanced by learned counsel for the accused that procedural irregularities in conducting the postmortem create a doubt about the prosecution's case stands rejected as being without merit. 50. The learned counsel for the accused has further contended that there are omissions, contradictions, and an alleged delay in the submission of the FIR to the jurisdictional court. However, on close scrutiny of the records, it is evident that there is no delay in the registration of the complaint. The prosecution has placed on record the consistent and corroborative testimonies of the eye-witnesses, namely PWs.5, 6, 14 and 15, all of whom have unequivocally deposed that accused No.1 – Junglisab, inflicted multiple stab injuries on the face and chest of the deceased with a knife, identified as MO11. The minor discrepancies and omissions pointed out during the course of trial are neither material nor sufficient to discredit the core version of the prosecution. Such inconsistencies, which are normal in witness testimonies, do not go to the root of the matter and do not cast any reasonable doubt on the culpability of accused No.1. Hence, the said arguments on omissions and contradictions are rejected. 51. Such inconsistencies, which are normal in witness testimonies, do not go to the root of the matter and do not cast any reasonable doubt on the culpability of accused No.1. Hence, the said arguments on omissions and contradictions are rejected. 51. On a comprehensive and meticulous re-appreciation, re-examination, and re-evaluation of the entire oral and documentary evidence available on record, this Court finds no error, infirmity or illegality in the findings of the Trial Court insofar as the conviction of accused No.1–Junglisab is concerned. The prosecution has succeeded in proving beyond reasonable doubt that accused No.1 committed the murder of the deceased and is guilty of offences punishable under Sections 302 and 504 of the Indian Penal Code . However, insofar as the conviction of accused Nos.2 to 4 for the offence punishable under Sections 302 and 504 read with Section 34 of the Indian Penal Code is concerned, we find that the prosecution has failed to produce cogent, corroborative, convincing, and clinching evidence to establish the specific overt acts attributed to accused Nos.2 to 4. In criminal jurisprudence, unless the prosecution is able to establish the collective intention and the specific role played by each accused beyond reasonable doubt, benefit of doubt must enure to the accused. Consequently, accused Nos.2 to 4 are entitled to be extended the benefit of doubt. Accordingly, Point No.1 is answered partly in the affirmative. Regarding Point No.2: 52. For the aforestated reasons and discussions, we proceeded to pass the following: ORDER : 1. Appeal is allowed in part; 2. The Judgment of conviction and order on sentence dated 26 th February 2020 passed in SC No.19 of 2018 by the Principal District and Sessions Judge, Dharwad against accused No.1-Junglisab, @ Jangalu Sab Mullannavar, is confirmed; 3. Accused No.1-Junglisab @ Jangalu Sab Mullannavar, who is on bail, shall surrender himself before the trial Court within thirty days from this day. If the accused No.1-Junglisab does not appear before the trial Court within thirty days from today, trial Court is directed to take necessary legal steps to secure accused No.1-Junglisab to serve the sentence passed by the trial Court; 4. The Judgment of conviction and order on sentence dated 26 th February 2020 passed in SC No.19 of 2018 by the Principal District and Sessions Judge, Dharwad against accused 2 to 4, is set aside; 5. The Judgment of conviction and order on sentence dated 26 th February 2020 passed in SC No.19 of 2018 by the Principal District and Sessions Judge, Dharwad against accused 2 to 4, is set aside; 5. Accused 2 to 4 are acquitted of the offences punishable under Sections 302 and 504 read with Section 34 of Indian Penal Code . Fine amount, if any, deposited by accused 2 to 4 shall be refunded to them in accordance with relevant Act and Rules; 6. Registry to transmit copy of this Judgment, along with trial Court records to the trial Court, forthwith; 7. Registry is also directed to furnish forthwith a copy of the Judgment to appellant/accused No.1-Junglisab, free of cost.