IMPORTANT POINT
Common intention can be inferred from conduct of the accused persons.

JUDGMENT

DIPAK MISRA, J.

The present appeal, by special leave under Article 136 of the Constitution of India, is directed against the judgment of conviction and order of sentence dated 6.3.2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 603 of 2005 whereby the Division Bench of the High Court partly allowed the appeal by acquitting the accused No. 3 (A-3), namely, Thoti Sivaram, for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short ‘the IPC’) but maintained the conviction and sentence in respect of other offences as had been imposed by the learned Sessions Judge, Chittoor in Sessions Case No. 108 of 2003. Be it noted, the accused No. 1 (A-1) was convicted for the offences punishable under Sections 452, 302, 326 and 324 of the IPC, the accused No. 2 (A-2) was found guilty of the offences under Sections 452, 302 read with 34, and 324 and 326 of the IPC, and the accused No. 3 (A-3) was convicted under Sections 452, 302 read with Section 34, and 324 of the IPC and, accordingly, sentenced to rigorous imprisonment and fine which we shall state at a later stage.

2. The broad essential facts of the prosecution case are that A-1 and A- 2 are real brothers and A-3 is their cousin. A-1, Thoti Ekambaram, had developed illicit relationship with Dhanamma, the cousin sister of the deceased, Kuppuswamy Modali. The deceased, his brother Damodaran and other family members had an apprehension that if Dhanamma continued such kind of intimacy with A-1, she would not be in a position to perform the marriage of her daughter. The said apprehension compelled them to send Dhanamma and her daughter to Bangalore where Dhanamma lived with her son. This act of the deceased and his family members stirred up anger in the heart of A-1 and a sense of revenge ruled his thought. The accused waited for the opportunity to pick up quarrels and triggered altercations on every trivial issue with the deceased and his family. The trivial cavil slowly gave rise to a major incident and on one day, A-1 and others allowed their cattle into the sugarcane fields of the deceased who wantonly grazed there and spoiled the crops. As the factual matrix would undrape, on 24.9.2002 at about 3.00 p.m., A-1 and A-2 drove their cows again for grazing the crop of the deceased. On seeing the same, Sekhar, son of the deceased, brought those cattle to his house and tied them. At about 4.00 p.m., A-1 and A-2 went to the house of the deceased, picked up a quarrel, assaulted them and took away their cattle. They also threatened them with dire consequences. Being disturbed, Kuppuswamy Mudali (deceased) and his son Sekhar (PW 1) approached the elders of the village, namely, Gunasekhar and Amudalaputtur Kesava Reddy (PWs-7 and 12) and others, for convening a panchayat so that such unwarranted actions were not repeated. The said elders secured the presence of A-1 and A-2, the deceased and his son and told all of them that there would be a mediation on 26.9.2002 and sincere efforts should be made to put the controversy to rest.

3. The case of the prosecution as further uncurtained is that on 25.9.2002, at about 11.00 a.m., when Sekhar, the deceased and Jayamma, wife of the deceased (PW-3), were in their house, A-1 and A-3 armed with iron rods and A-2 armed with billhook trespassed into the house of the deceased. A-1 and A-2 caught hold of him and his son and dragged them out of the house. A-1, Thoti Ekambaram, assaulted the deceased with iron rods on his head, neck and all over his body and caused injuries as a consequence of which he fell down and lost his consciousness. At that juncture, Arunachalam, PW-6, the younger brother of the deceased, intervened. Thoti Manohar, A-2, struck him with the billhook on his face as a result of which he sustained injuries. A3 also assaulted him with iron rod on his chest. Rukminamma, PW-2, intervened and was assaulted by A-2. Jayamma, PW-3, was assaulted by A