Point of Law: If common intention is proved, but there is no overt act attributed to individual, Section 34 will be attracted as essentially it involves vicarious liability. But if participation of accused in crime is proved and common intention is absent, Section 34 is not attracted.

JUDGMENT :

This appeal is filed by the accused in S.C.No.106/2002 on the file of the Additional Sessions Judge (Adhoc) II, Thodupuzha. The above case is charge-sheeted by the Circle Inspector of Police, Thodupuzha, against the appellants alleging offences punishable under Sections 341 and 307 read with 34 IPC.

2. When this appeal came up for consideration, the learned counsel for the appellants and the Public Prosecutor submitted that the 1st accused is no more. The learned counsel for the appellants also informed that, to his knowledge, the legal heirs of the 1st appellant/ 1st accused are not interested in proceeding with the appeal. Therefore the appeal against the 1st accused is abated as far as the sentence of imprisonment is concerned. This Court need to consider only the appeal filed by the 2nd appellant, who is the 2nd accused in this case. (hereafter, the appellants are mentioned as accused Nos.1 and 2 respectively)

3. The prosecution case is that on 10.11.1999, at about 7 pm, accused Nos.1 and 2 were abusing PW2, who is the injured in this case, using foul language just outside the shop of PW7, who is the uncle of PW2. Then, PW2 left the shop and tried to enter his autorikshaw which was parked nearby. At that time, it is alleged that the 2nd accused caught hold of PW2 on his collar and consequently there was a scuffle. Then, the 1st accused, who had a knife hidden on his waist, quickly pulled it out and caused an incised injury on the left side of the chest of PW2. It is further alleged that the 1st accused tried to swing his knife again to cause a second injury, but this was blocked by PW2, and the knife deflected and struck the 2nd accused on his right thigh. It is also alleged that, thereafter, the accused fled from the scene. PW2 was then taken to a hospital where he was given first aid and was then taken to Excelsior Hospital, Thodupuzha, where he was examined at 9.25 pm on 10.11.1999. Ext.P1 First Information Statement was subsequently recorded and Ext.P10 FIR was registered at 1.00 am.

4. To substantiate the case, the prosecution examined PWs 1 to 15. Exts.P1 to P21 were marked on the side of the prosecution. After going through the evidence and documents, the trial court found that both accused committed the offence under Sections 341 and 307 read with 34 IPC. The accused were sentenced to undergo rigorous imprisonment for 7 years each and to pay a fine of Rs.25,000/-each for the offence punishable under Section 307 read with Section 34 IPC. In default of payment of fine, the accused were directed to undergo rigorous imprisonment for one more year. The accused were further sentenced to undergo simple imprisonment for one month each for the offence under Section 341 read with 34 IPC. The substantive sentences were directed to run concurrently. If the fine is realised, there was a direction to pay the same to PW2 as compensation. Aggrieved by the conviction and sentence, this criminal appeal is filed.

5. Heard Adv.B.Renjith Marar, who is well assisted by Adv.Arun Poomulli. An argument note prepared by Adv.Arun Poomulli was also filed.

6. PW1 is the first informant in this case. Even though as per his First Information Statement, he saw the incident, he was declared hostile because he deposed before the Court that he had not seen the incident. Through PW1, Ext.P1 FI statement was marked. Exts.P1(a) and P1(b) are the portion of FI Statement marked through PW1. PW2 is the injured and he deposed about the incident in detail. PW3 is also an eye witness, who is the cousin brother of PW5. He also adduced evidence to support the case of PW2, the injured witness. PW4 was cited as an eye witness, but he turned hostile to the prosecution. The portion of Section 161 Cr.P.C. statement of PW4 is marked as Ext.P2. PW5 is the scene mahazar witness and Ext.P3 scene mahazar is marked through PW5. PW6 is a witness to Ext.P4 seizure mahazar by which the shirt and dhoti of the 2nd accused was recovered. But he turned hostile to the prose