IMPORTANT POINTS
Mere presence at the place of occurrence cannot attract section 34 IPC.
There being only two fatal injuries on body of unarmed deceased by armed assailants cannot attract section 304 Part II IPC.

JUDGMENT :

A.M. Khanwilkar, J.

This appeal takes exception to the judgment and order dated 4th January, 2008, passed by the Gauhati High Court in Criminal Appeal No.323 of 2004, confirming the conviction of the four appellants for offences punishable under Section 302/34 of I.P.C. as recorded by the Additional Sessions Judge, No.2 (Ad-hoc) at Sivasagar in Sessions Case No.27(S-C) 2003. Initially, six accused were tried for the stated offence. Amongst them two accused came to be acquitted by the Trial Court on the finding that no tangible evidence was produced to establish their guilt. The four accused, who are appellants herein, however, came to be convicted by the Trial Court. They preferred an appeal before the High Court which came to be dismissed. The High Court, however, reversed the observation of the Trial Court that PW-5 (Lakhiram Kurmi) was an eyewitness. In that sense, the Trial Court as well as the High Court proceeded on the basis that it was a case of circumstantial evidence to establish the complicity of the appellants. The Trial Court in paragraph 35 recorded the circumstances as follows:

"(1). Jugeswar Kurmi visited the house of Lakhiram Kurmi (PW-5) on the night and after having the night meal he left his house at about 08:30 P.M.

(2). Lakhiram Kurmi heard that dogs were barking just after departure of Jugeswar Kurmi from his house.

(3). Lakhiram heard the sound that the chowkidars are chasing somebody.

(4). Lakhiram heard the sound of beating someone by the chowkidars.

(5). The chowkidars asked Lakhiram to bring some water for the injured lying on the road inside the garden.

(6). In the light of torch light of the accused persons Lakhiram identified Jugeswar.

(7). Injured Jugeswar was carried by the accused persons on the carrier of the bicycle belonged to Jiten to the factory of Khagorijan Tea Estate with his two hand tied up with rope.

(8). Jugeswar was lying dead in-front of the garden factory.

(9). A lathi was recovered and seized from the house of accused Dipankar by the Investigating Officer."

The High Court affirmed the view taken by the Trial Court that the stated circumstances clearly indicated the involvement of the appellants in the commission of the crime resulting in the death of Jugeswar Kurmi (deceased), and having so held, confirmed the conviction and sentence awarded by the Trial Court qua the appellants.

2. After considering the rival submissions and perusing the record, we have no hesitation in observing that the prosecution case rests on circumstantial evidence. Besides the circumstances noted by the Trial Court and which commended to the High Court, no other circumstance can be discerned from the record. Notably, Lakhiram Kurmi, Manager of the Tea Estate (PW-5) is the only witness who had reached the spot after Jugeswar Kurmi was already assaulted and seen lying on the ground. In his examination, he has stated that Jugeswar Kurmi had visited his house on the same evening and left at about 08:30 p.m. after taking dinner. Later on, he (PW5) heard some commotion outside his house at around 10:30 p.m. When he went out to see as to why the dogs were barking, he could see from about 300 cubits from where the sound was coming, the chowkidars (all accused) identified by him in court were standing. He asked them whether they were beating any person or cattle. The chowkidars, in return, asked him to bring water and when he went near the spot he found Jugeswar Kurmi lying on the road. He could recognize Jugeswar Kurmi in the light of the torch belonging to accused persons. He has stated that he offered water to Jugeswar Kurmi. Further, the chowkidars told him that he (Jugeswar Kurmi) was stealing tea bushes. Thereafter, the accused took the injured to the factory of the garden on the bicycle of his son, Jiten, and in the morning, he was informed that Jugeswar Kurmi had died.

3. The High Court rightly concluded that Lakhiram Kurmi (PW-5) was not an eyewitness. The question is: whether the circumstances noted by th