JUDGMENT

DR. ARIJIT PAsAYAT. J.

1. Challenge in this appeal is to the judgment of the Division Bench of the Gauhati High Court dismissing the appeal filed by the appellants. The appeal was directed against the judgment dated 31.8.2004 passed by learned Additional Sessional Judge convicting the appellants for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC) And sentencing each to undergo imprisonment for life and to pay a fine of RS.2000/- with default stipulation.

2. Background facts in a nutshell are as follows:

2.1 On 27th December, 2000, at about 11.00 a.m.; one Probin Das, brother of Anil Das (hereinafter referred to as the deceased) made a complaint to the officer in charge of the Teok Police Station that at about 6 a.m., on the same day Shri Manik Das s/o Late Duti Das, Shri Bimal Das s/o Sh. Manik Das and Shri Dipak Das s/o Shri Manik Das along with two others assaulted his brother Shri Anil Das with spears thereby severely injuring him while he was ploughing the field. He also stated that deceased-Anil Das was taken to the Kakajan hospital for treatment but he died there Accordingly a case no. 35/2000 dated 27.12.2000 was registered under Sections 147 and 302 IPC.

3. On 4th January, 2001; nearly a week after the alleged incident, the statements of Phukan Das (PW-1) and Kunmoni Borah (PW-7), the alleged eyewitnesses. were recorded by the Judicial Magistrate, 1st Class, Jorhat under Section 164 of the Code of Criminal Procedure, 1973 (in short the ‘CrPC’). On 13th May, 2002 charge sheet No. 45 of 2002 was filed against the appellant herein in respect of offences punishable under Sections 147 and 302 IPC. By order dated 27th October, 2003, the case was committed by the learned SDJM(S), Jorhat, to the Court of the Sessions Judge, Jorhat for trial of offences under Section 302 read with Section 147 I PC. On 13th November, 2003, the learned Additional Sessions Judge, Jorhat framed charge under Section 302 read with Section 34 IPC against the accused.

4. Trial Court, as noted above, convicted the accused, which was affirmed by the high Court.

5. Primary stand of learned counsel for the appellants is that Section 34 has no application to the facts of the case. In order to bring in application of the said provision personal presence of the accused at the place of occurrence has to be established. According to him this has not been done, It is pointed out that PWs. 3 & 7 are stated to be witnesses and PWs 5 &6 are stated to be witnesses who saw accused persons running away from the place of occurrence. Their presence was to be established. This has not been done. It is submitted that the so called eye witnesses have stated about the assaults made by the accused persons. Their statements were recorded in terms of Section 164 CrPC. They are related to the deceased and, therefore, their evidence has to be discarded. Though PW-3 named all the accused persons, PW-1 named only four of them. The post mortem report shows injuries at various parts of the body of the deceased. It is thus submitted that Section 34 has no application and in any event those persons whose names did not figure in the FIR should not have been convicted.

6. In response, learned counsel for the State submitted that the testimony of the eye witnesses is clear and cogent. Merely because they are related to the deceased, that cannot be a ground to discard their evidence. There is no variation in the statements made during investigation and the evidence in Court. PWs. 3 & 7 who are eye-witnesses categorically described in detail the role of each of the accused persons.

“7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal