The court's interpretation of Section 34 of the Indian Penal Code, which states that common intention can be formed on the spot and thereby intended by all the participants in a criminal action, and that in the case of an offense involving physical violence, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offense.

GIRISH CHANDRA GUPTA

1. THIS appeal is directed against a judgment and order dated 21st March 2009 by which the learned Additional Sessions Judge, Fast Track Court-1st Court, Baruipur in Sessions Trial Case No. 4(08)05 in connection with Sessions Case No. 26(12)04 (State Vs. Akbar Khan and 4 others) convicted all the accused persons of an offence punishable under Sections 304 Part-1 and 326 of the Indian Penal Code read with section 34 thereof. The convicts were sentenced to simple imprisonment for 10 years each for the offence punishable under Section 304 Part Part-1 of the Indian Penal Code as also to pay fine of Rs. 5,000/- each and for the offence punishable under Section 326 I.P.C they were sentenced to 10 years of simple imprisonment as also to pay fine of Rs. 500/- each, in default to undergo further simple imprisonment for a period of 6 months and 2 months respectively. 50% of the fine, if realized, was directed to be made over to the legal heirs of the victim Prabhat Kr. Mitra. The convicts have come up in the appeal.

2. The facts and circumstance of the case briefly stated are as follows: On 7th February 2004 at about 11 a.m. The accused amongst others were playing cricket in the playground of the club known as Milan Sangha. The playground was in the vicinity of a School, a Post Office and a Library. Noise generated naturally affected the smooth functioning of the School, Post Office and Library. The elders of the neighborhood protested. The unruly players resented the protest and refused to budge. An altercation followed. The librarian Shyamsundar (P.W.4) was sought to be assaulted. Naturally the other elders came to his rescue whereupon some players fled away but the accused persons became violent and started mercilessly assaulting, in consequence whereof Prabhat Kr. Mitra, aged about 55 years was seriously injured who eventually passed into perpetual senselessness and died on 15th February 2004. His brothers namely Ramdas Mitra and Pradip Mitra were also seriously injured. The injury reports are exts. 2, 3 and 4. The autopsy surgeon (P.W.9) found the following injuries on the dead body of Prabhat Kr. Mitra:-

1. Over the right eyebrow there was abrasion measuring X radish blue in colour. 2. There was haematoma under the scalp involving almost all over the scalp. 3. There was a stitched wound at the right side on the frontal and parietal are of the scalp. 8 stitches were given over the injuries of length of 3. 4. There was stitched wound at the left side of scalp at frontal and temporal area. 5 stitches were given over the injury of the length of 6. 5. At right side of the temporal bone there was a crack fracture of a length of 3. 6. Separation of crenial bone switcher of length of 3 at the coronal switcher of a length of 2 at the sadital switcher at the bregma. 7. On the left side of temporal bone and parietal bone there were 4 holes which meant for surgical interference. 8. There was a subdural hemorrhage at the both sides of brain. Opinion-Death was due to the effect or incranial hemorrhage ante mortem and homicidal in nature. Kaushik Gupta, learned Advocate appearing for the appellants made two fold submissions. His first submission was that all the 5 accused persons cannot be said to have shared common intention to commit the crime punishable under Section 304 of the Indian Penal Code. According to him the accused Kasem was the key man. The rest of the accused persons were present but did not take any active role.

3. SECOND submission made by Mr. Gupta was that the conviction under Section 326 of the Indian Penal Code cannot be supported on the basis of evidence on the record. Mr. Sanyal, learned A.P.P. submitted that the common intention of all the accused persons to commit a crime punishable under Section 304 of the Indian Penal Code is more than proved by the evidence on the record. The multiple injuries found in the dead body of the deceased is also a pointer which goes to establish not only common