The main legal point established in the judgment is the interpretation of common intention under section 34 of the IPC and its application to the case.

JUDGMENT

Suman Shyam, J. - Heard Mr. T. H. Hazarika, learned counsel appearing for the appellant. We have also heard Mr. H. Sarma, learned Additional Public Prosecutor, Assam, appearing for the State/respondent No.1 and Mr. A. Mobaraque, learned counsel representing the respondent No.2.

2. The appellant in this case has been convicted under section 302/34 of the Indian Penal Code (IPC) for committing the murder of Md. Sirajul Islam and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.2000/- and in default, to undergo rigorous imprisonment for a further period of three months.

3. The prosecution case, as unfolded during the trial, is that on 21.08.2005 at about 3:30 p.m. when the victim Sirajul Islam was cultivating in the paddy field, the accused Md. Abdul Rouf along with other accused persons had attacked him armed with lethal weapons and assaulted the victim leading to his death.

4. On 21.08.2005 Md. Mainul Islam, the younger brother of the deceased, had lodged an ejahar with the Rupahihat Police Station reporting the incident. Based on the ejahar, Rupahihat P.S. Case No.127/2005 was registered under sections 147/148/149/341/302 of the IPC . There were all together 9(nine) persons named in the F.I.R. The matter was then taken up for investigation. During the course of investigation, the police had visited the place of occurrence, seized one 'dao' and one 'fala' (a piece of split betel nut tree having sharp edge) vide M.R. No.42/05, conducted inquest over the dead body of Sirajul Islam and thereafter, sent the body for post mortem examination. Upon completion of investigation, the Investigating Officer (I.O.) had submitted charge-sheet against two accused persons viz., the appellant Abdul Rouf and Abdul Hashim under section 302/34 IPC. However, the I.O. had sought release of the other F.I.R. named accused persons since there was no evidence found against them. The accused persons had claimed innocence and therefore, the matter went up for trial. It appears that during the course of the trial, the co-accused Abdul Hashim was also murdered and therefore, the proceeding against him had abated.

5. The prosecution side had examined as many as 12 witnesses out of which, PW1, Dilwara Khatoon, i.e. the minor daughter of the deceased, who had witnessed the incident, was also examined as CW-1. After recording the evidence of the prosecution witnesses, the statement of the appellant was recorded under section 313 of the Cr.P.C. wherein he had denied all the incriminating circumstances put to him and had claimed himself to be innocent. The accused has, however, declined to lead any evidence in his defence.

6. From a perusal of the impugned judgment and order dated 17.02.2016, it appears that the learned trial court had treated the PWs-1 and 3 as the eye-witnesses to the occurrence and has also observed that although the PW-2 did not see the actual occurrence, yet, he had seen the accused person fleeing away from the scene of crime. Upon evaluation of the evidence adduced by PWs-1, 2 and 3, the learned trial court had observed that the testimony of these witnesses were found to be trustworthy and hence, reliable. The learned court below has also relied upon the evidence of PW-1 to hold that the accused Rouf had assaulted the victim by means of a 'fala' and the co-accused Hashim (now deceased) had assaulted him by means of a dao which was seized vide seizure-list Ext-2. Based on such evidence available on record, the learned trial court had found the accused/appellant Abdul Rouf guilty of committing the murder of Sirajul Islam and therefore, convicted him under section 302/34 IPC. The learned trial court had, however, rejected the plea taken by the accused that the present is a case of culpable homicide not amounting to murder and therefore, the same would fall within the ambit of one of the Exceptions to Section 300 of the IPC.

7. By assailing the impugned judgment and order dated 17.02.2016 passed by the lear