A.K. Sikri, J.

The prosecution version, on the basis of which respondent No.2, along with various other persons, was chargesheeted for the offences punishable under Sections 147, 148, 149, 302, 324 and 337 of the Indian Penal Code (for short 'IPC') goes somewhat like this:

Respondent No.2 Baliram Junghare (A-5) and all other accused persons were the residents of Village Hatna, Tehsil Manora, District Washim (Maharashtra). In their village, Panchayat elections were held sometime in the month of November, 1992. Two political factions, one led by Khandusing (A-1) and other by Shriram (deceased) were in the fray who had fielded their respective candidates. Party led by Khandusing emerged victorious and was elected whereas candidates set up by Shriram were vanquished in the said elections. Roughly 3-4 months thereafter i.e. 07.03.1993 is the date when the incident in question occurred. It so happened that on that day at about 7:30 p.m. at Village Hatna, Khandusing was sitting under a Neem tree on Ota. The deceased Shriram and few other persons were sitting in front of the house of one Nagorao Pawar. At that time, respondent No.2 Baliram along with Shankar, Bhurasing, Duryodhon, Kishor, Janardhan, Baliram Chavan, Pralhad Pawar, Vitthal Mankute, Sitaram and Vasanta came there. They were armed with sticks and stones. Seeing them, Shriram asked accused Khandusing as to what had happened. Khandusing took a stick from the hand of one of the accused and assaulted Shriram on the head i.e. vital part of his body, on account of which Shriram sustained bleeding injury. Thereafter, respondent No.2-Baliram assaulted Shriram by his stick on his head due to which Shriram fell down and blood started oozing profusely. All other accused persons also assaulted Shriram with sticks and stones. Thereafter, eye-witnesses Ulhas, Durgadas and Prakash along with others made an attempt to intervene and rescue Shriram. In the process, these witnesses also received injuries. The assembly pelted stones at the house of Durgadas. After accomplishing their job in this manner, all the accused persons fled from the spot. The prosecution further alleged that Shriram (father of the appellant herein) was referred to the hospital at Manora. From there he was referred to District Civil Hospital, Akola. After receiving serious and grievous injuries, Shriram had gone into coma and did not recover therefrom. He succumbed to the injuries on 08.03.1993 at 07:15 a.m.

The police prepared the Inquest report of the dead body of Shriram on 08.03.1993 at 09:05 a.m. in the presence of the witnesses and found various injuries on the body of the deceased Shriram which were recorded in the Inquest report. Relevant portion thereof is reproduced below:

"The body of the deceased was lying supine with its head towards sought and feet towards north. Left hand of the deceased was resting on the stomach and right hand was straight. Fingers of both hands of the deceased were turned inwards partly. There were small black hair on the head of the deceased, the nose and ear of the deceased were straight and both the legs were also straight. The eyes and mouth of the deceased were close. On the person of the deceased were old payjama of terrycot cloth having nadi [waist tying string] and buttons, 3 on the front side which bears blood stains from place to place, old Sando banian of cotton cloth stitched from the tailor having two pockets, which bears blood stains from place to place, old blue coloured under pant of cotton cloth having nadi [waist tying string]".

"While cotton bandage of the Government Hospital was seen tied around the head of the deceased, which bears blood stains. In the presence of the Pachas, when the said bandage was untried, an injury came to the notice on the left side of the head through which blood had came out. The said injury was of the size 2" in width (approx.). On the front side of the head of the deceased was an injury through which blood had came out. It was of the side 1" in length and " in width (approx). Both the said injuries were appearing about " deep."

"Thin injury came to the notice extending from the lower portion of the eye upto the left ear of the deceased through which blood had come out."

2. Postmortem on the body of Shriram was conducted on 08.03.1993 by Dr. Gulab Nikam (PW-7). On that basis, the Police registered C.R. No. 35/1993 under Sections 147, 148, 149 and 302 of IPC against the accused persons, 12 in number. After completing the investigation, challan was filed and these accused persons were chargesheeted for various offences as mentioned earlier. After the trial, the learned Additional Sessions Judge, Washim, vide his judgment and order dated 11.09.1998 convicted Khandusing and respondent No.2 Baliram for offences punishable under Sections 302 read with Section 34 of the IPC, resulting in the imposition of sentence of imprisonment for life, and a fine of Rs. 1,000/- each. They were acquitted of the rest of the charges. Insofar as other 10 accused persons are concerned, they got clean acquittal in all the charges.

3. Feeling aggrieved by their conviction, Khandusing and Baliram (respondent No.2) filed the appeal in the High Court. However, Khandusing died during the pendency of the appeal. Thus, the appeal survived only at the instance of respondent No.2. The appeal came up for final arguments and after hearing the counsel for the parties, the High Court has rendered the impugned judgment dated 25.07.2014 wherein it is held that the genesis of the incident has not been established on record by credible and unimpeachable evidence. Thus, allowing the appeal of respondent No.2, conviction has been set aside, giving the benefit of doubt to him.

Son of the deceased Shriram has felt aggrieved by that judgment and, therefore, he has challenged the veracity and legality thereof by filing the special leave petition. Leave was granted and the matter heard finally at the time of granting leave, on the insistence of the counsel for the parties.

4. We may record at this stage that defence of the convicted accused persons was that it was an accidental death as the deceased was under the influence of liquor and had fallen down on the stony ground. The Sessions Court, however, did not accept this version as suggested by the defence and recorded the finding that in view of the ocular evidence that was produced on record, it cannot be said that it was an accidental death. Further, the death of Shriram could not be said to be a suicidal death and certainly not a natural death. It was a homicidal death.

5. At the same time, the Sessions Court also concluded that it could not be said that accused persons were the members of unlawful assembly and their common objective was to cause the death of Shriram. It was also not proved that all of them acted in furtherance of the common objective to kill Shriram or they committed rioting at the place of incident by means of deadly weapons, inasmuch as evidence of PW-1 to PW-3 itself speaks of assault on person of Shriram by means of sticks and stones only.

6. The Court of Session also noted that it was not stated by the witnesses as to which accused had executed how many blows. In the opinion of the Sessions Court, since the witnesses had described the role of accused Nos.1 and 2 only, other accused persons could not be said to be the author of the injuries on deceased except these two accused persons and as such could not be said to be the members of unlawful assembly. It was also recorded that these accused persons had appeared with sticks and stones on the spot and except giving beating to the deceased, they did nothing of that sort which may call them rioters. On this basis, all the accused persons were acquitted of the charge of rioting.

7. The Session Judge further recorded, looking at the evidence of PW-1 Ulhas, PW-2 Durgadas and PW-3 Prakash, that all of them had stated that when they intercepted, they had also sustained injuries. Except this, their evidence does not speak about who had beaten them. Their evidence being of general nature, it is hard to say that the accused or any one of them had caused those injuries. Dr. Rathod had mentioned about the injuries on Durgadas and Prakash. Thus, the Court had no reason to say that there was any injury caused to Ulhas. In respect of allegations of pelting stones by the accused persons on the house of Nagorao Pawar and thereby acting negligently so as to endanger human life and safety of others, it was concluded that there was no evidence except the evidence of PW-3 Prakash who stated that the accused persons pelted stones on the house whereby the safety of the inhabitants was in peril. Thus, the Court was totally in disagreement with the proposition of the prosecution that offence under Section 337 IPC has been made out.

8. Insofar as Khandusing and Baliram are concerned, the Sessions Court came to the conclusion that they were the authors of the injuries on the person of the deceased, causing his death. It, however, held that other accused persons cannot be said to be the members of an unlawful assembly or they had acted in furtherance of common intention within the province of Section 34 IPC and rest of the accused cannot be said to have the same intention with them or common object and, therefore, the rest of the accused are entitled to be acquitted on all the counts as the formation of unlawful assembly is not established by the prosecution and their act in prosecution of their common object or creating rioting there by means of deadly weapons and causing injuries to the other persons and pelting of stones has not been established. On these grounds, all other accused were acquitted of all the charges. By attributing specific role to Khandusing (A-1) and Baliram (A-5), the Sessions Court convicted them only, that too of charge under Section 302 IPC read with Section 34 IPC. The Court specifically addressed the question as to whether the accused No. 1 and accused No. 5 had committed the offence punishable under Section 302 IPC. The Court stated that causing injuries by both accused No.1 and accused No.5 by means of sticks, one after another, on the vital body parts of the deceased i.e. head, showed that there was a common intention of both accused to cause death of Shriram.

9. As mentioned above, the High Court examined the culpability of respondent No.2 only since Khandusing had passed away during the pendency of his appeal. The High Court noticed that in all 7 witnesses were examined by the prosecution and out of these, 3 were the material witnesses viz. PW-1 Ulhas, PW-2 Durgadas and PW-3 Prakash. They were examined as eye-witnesses. Deceased Shriram was their Uncle and these witnesses were related to the deceased. The High Court also took note of the fact that they were two factions in the village and the incident had happened shortly after the Gram Panchayat elections. The accused persons belonged to the rival factions. In these circumstances, as per the High Court, though the evidence of these witnesses could not be discarded only on the ground of the witnesses being either partisan or related, at the same time, the Court had to be circumspect in appreciating such evidence and greater care and caution was needed while finding out whether their evidence inspired confidence. In an appropriate case, the Court would also make an attempt to look for corroboration, either direct or circumstantial in order to lend credence to the evidence of such witnesses. With the aforesaid introductory remarks, the High Court had minute and meticulous examination of the deposition of these three witnesses. In the process, it found certain material discrepancies in their statements. The Court also noticed substantial improvements made by these witnesses in their depositions as compared to the statements which they had given to the Police during investigation under Section 161 of the Code of Criminal Procedure. Such aspects were duly brought out by the defence in cross examination of these witnesses. Following discussion in the impugned judgment, thereafter, needs a reproduction:

"It would appear that there are substantial improvements made by P.W.2-Durgadas in his evidence over his police statement. In this case, the prosecution has not examined the Investigating Officer, as a result the appellants/accused were deprived of an opportunity to bring on record these improvements. Insofar as the present appellant-Baliram is concerned, there is a general statement that he also inflicted a stick blow on the person of Shriram. Nowhere these witnesses have stated about Baliram having inflicted a stick blow on the head of the deceased. Thus, the observation to that effect in paragraph no.39 of the impugned judgment, in our considered view, is not borne out of the evidence on record. It would be significant to note that the learned Sessions Judge has not accepted the evidence of these witnesses about the complicity of the rest of the accused whose names figured in their evidence. The learned Sessions Judge has also not accepted the prosecution case about all these accused persons having formed an unlawful assembly with the common object of committing the murder of Shriram. In order to convict the appellants, the learned Sessions Judge has taken the aid of the provisions of Section 34 of IPC and had found that common intention can be gathered between Khandusing and Baliram in causing the death of Shriram. We find that once the version of these material prosecution witnesses about the complicity of the other accused has not been accepted, the present appellant could not have been convicted for the offence punishable under Section 302 of IPC with the aid of Section 34 of IPC, particularly when there is no evidence on record to show that he had assaulted the deceased on his head."

10. In addition, the High Court has also pointed out some more aspects which dent the veracity of prosecution case. These are:

(a) As per the statement of Dr. Bhilsing Rathod (PW-6), Medical Officer at P.H.C. Manora who had first opportunity to examine the deceased, two injuries were found on the person of the deceased and both were simple having been caused by hard and blunt object.

(b) PW-6 had issued injury certificate (Ex.107) and reading thereof along with statement of PW-6 showed that deceased Shriram had consumed alcohol and was under the influence of the said alcohol.

(c) Dr. Gulab Nikam (PW-7) who had conducted the autopsy on the dead body of Shriram had noticed five injuries which were recorded by him in his report which according to him were sufficient in the ordinary course of nature to cause death. The High Court noted that injury No.3 was "Incised wound on left side of the face starting from 1 below lateral ankle of right eye, just above Toagus of left ear, size 3 Inch x Inch x Inch".

However, contrary to the above, insofar as PW-6 is concerned, he had noticed only two injuries on the person of the deceased on 07.03.1993 which would certainly militate against the story of assault by sticks and stones by as many as 13 persons.

Thus, medical evidence was at variance with the ocular testimonies and the evidence so led could not be accepted. Here, the medical evidence had the effect of destroying the ocular testimony itself and, therefore, the prosecution case had to fail inasmuch as findings of two simple injuries immediately after the incident in the wake of allegedly assault by as many as 13 persons would certainly create a serious dent and doubt in the prosecution version and the evidence of the so-called witnesses.

(d) According to the High Court, the genesis of the incident and mode and the manner of the assault and the role played by the individual accused did not clearly come on record.

(e) Once the evidence of material prosecution witnesses (PW-1 to PW-3) had not been accepted qua the formation of unlawful assembly by the accused persons, the conviction of Baliram under Section 302 IPC could not be sustained with the aid of Section 34 of IPC, particularly so, when there was no evidence to show that respondent No.2 had inflicted blow on the head of the deceased, as observed by the Sessions Court.

In nutshell, aforesaid are the reasons given by the High Court while acquitting respondent No.2.

11. Learned counsel for the appellant submitted that a serious error was committed by the High Court in holding that there was no evidence to show that respondent No.2 had inflicted blow on the head of the deceased. He drew our attention to the testimony of eye witnesses who according to him had specifically narrated the role of respondent No.2 in inflicting injuries on the person of the deceased. He further submitted that this aspect was specifically taken note of by the trial court while convicting respondent No.2. On this basis, he argued that the observations of the High Court that there was no evidence to implicate respondent No.2 was contrary to the record.

12. Learned counsel for respondent No.2, on the other hand, stood by the reasoning that has been given by the High Court in support of its conclusion and submitted that High Court had not committed any error in arriving at the aforesaid findings. He argued that all the three eye-witnesses have stated in their depositions that respondent No.2 gave a blow to the deceased. In the first instance, it was their improved version as they did not say anything before the Police about the role of respondent No.2. Further, one witness out of the three did not even mention as to in what manner the blow was given and also did not state the weapon allegedly used by him. Other two witnesses had stated that respondent No.2 had given a stick blow on the person of the deceased. Thus, there was no allegation against respondent No.2 that he gave a blow on the head of the deceased. On the contrary, all these witnesses had specifically mentioned that Khandusing was author of head injury and postmortem report had clearly spelled out that death was caused due to head injury. He further submitted that apart from the above, High Court had also pointed out various other infirmities in the prosecution story which are of serious nature.

13. We shall first deal with the arguments of the learned counsel for the appellant relating to the alleged involvement of respondent No.2 in the commission of the act for which the accused persons were prosecuted. As noted, the argument was that respondent No.2 had also inflicted head injury to the deceased and the High Court has failed to notice the same. It is true that PWs-1, 2 and 3 have stated in their depositions that respondent No.2 gave a blow to the deceased. However, at the same time, it has also come on record that one of the witnesses has not mentioned as to in what manner the blow was given or which weapon was used. Other two witnesses have stated that a stick blow was given on the person of the deceased. Relevant portion of the depositions of these three witnesses, in this behalf, is reproduced below:

"PW-1 - There Khandusing took a stick from one person and inflicted a blow on the head of my Uncle. The accused Baliram Junghare beat my uncle.

PW-2 - According Khandusing took a stick from hand of other person and inflicted a blow on the head of my uncle Shriram. Then accused Baliram Junghare inflicted a stick blow on the person of my uncle.

PW-3 - The accused Khandusing inflicted a stick blow on the head of Shriram. Then accused Baliram Junghare inflicted a stick blow on the person of Shriram."

14. It is clear from the above that insofar as Khandusing is concerned, it is specifically stated that he gave a blow on the head of the deceased. But qua respondent No.2, the only allegation is that the blow was given on the 'person' of the deceased. It is not stated that respondent No.2 had given a blow on the head of the deceased. Even if the postmortem report is to be believed, the death was caused due to head injury. Thus, attribution qua respondent No.2 is that he has only given a stick blow on the body of the deceased without specifying which part thereof. It is also to be borne in mind that when the statement of these witnesses were recorded by the investigating officer under Section 161 of Cr.P.C., they did not say anything about respondent No.2 and whatever is stated in the Court, as extracted above, is an improved version. Since this was the main argument of the appellant and when we find no merit therein, the appeal is liable to fail. However, in addition, we would also like to observe that the High Court did not only go by the alleged role that was attributed to respondent No.2 but took into consideration the case of prosecution in its entirety and found various loopholes in the prosecution story which had already been discussed above. Suffice it is to point out that as per the prosecution case, there were as many as 13 persons, including respondent No.2, who formed unlawful assembly and came to the place of incident with common intention to kill Shriram. Even as per the trial court, charges pertaining to unlawful assembly or the complicity of other accused persons had not been proved and the trial court itself acquitted all the accused persons except Khandusing and respondent No.2. In a case like this, respondent No.2 cannot be convicted with the aid of Section 34 IPC, more particularly in the absence of any allegation against him of any fatal assault.

15. In Pandurang & Ors. v. The State of Hyderabad, 1955 SCR (1) 1083 this Court held that to attract the applicabilit

y of Section 34 of the Code the prosecution is under an obligation to establish that there existed a common intention which requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all. This Court had in mind the ultimate act done in furtherance of the common intention. In the absence of a pre-arranged plan and thus a common intention even if several persons simultaneously attack a man and each one of them by having his individual intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section. In a case like that each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any or the other. The High Court has also correctly relied on the law laid down by this Court in the case of Noor @ Nooruddin v. State of Karnataka, (2007) 12 SCC 84 wherein this Court has held that when there was nothing on record to show that the accused had inflicted injury on the vital part of the body, Section 34 of the IPC would not be attracted. In a case like this, it is the specific role of respondent No.2 which has to be established to find out what particular crime is committed by him. Though evidence of PW-1 to PW-3 does not inspire confidence insofar as respondent No.2 is concerned, even if it is to be accepted on its face value the role attributed to him of giving blow on the body of the deceased with stick, by no stretch of imagination it can be said that it was done with the intention to cause his death. 16. It is also to be borne in mind that PW-6 had found only three injuries on the body of the deceased which were not of serious nature. That apart, prosecution cannot also shy away from the fact that deceased was found to be under the influence of alcohol and since injury on the head was found to have been caused by a blunt object, it was possible that such a injury was caused as a result of fall on the floor. 17. When we examine the matter in all its length and breadth and in a holistic manner, we are inclined to form an irresistible opinion that conviction of respondent No.2 was rightly set aside by the High Court. This appeal, accordingly, fails and is hereby dismissed. No costs.