Kolakkattil Ummerm and Kolakkattil Assainar vs State of Kerala

Basant, J.—(i) Where exactly did the incident in which the deceased, PW3, PW16 and PW28 suffered the crucial injuries take place?

(ii) Did it take place in the house of the accused or did it take place in the scene identified in Ext. P4 scene mahazar far away from the house of the accused?

The answers to these questions, we are convinced, can help us to authentically resolve the crucial controversies raised in this appeal by Sri. M.K. Damodaran, the learned senior counsel for the appellants.

The appellants are two brothers. They along with their father faced indictment for offences punishable under Sections 341, 307, 302 and 427 r/w 34 I.P.C. The 1st appellant Ummar was arraigned as the 1st accused. The 2nd appellant Assainar was arraigned as the 3rd accused and their father Muhammed @ Mammi was arraigned as the 2nd accused. To avoid any unnecessary difficulties, we shall refer to the appellants as accused 1 and 3. We shall refer to deceased Muhammed as accused 2. Accused No. 2, we do note, had expired even before the trial started before the Sessions Court.

The appellants/accused 1 and 3 have been found guilty, convicted and sentenced for offences punishable under Sections 341, 307 and 302 r/w 34 I.P.C. Accused No. 1 has further been convicted and sentenced u/s 427 I.P.C also.

According to the prosecution, when the deceased, PW3, PW16 and PW28 were returning from the house of the accused, at the public road junction at Parayarangadi at about 8 p.m on 13.03.2004, they were attacked by accused 1 to 3, who reached the scene armed with dangerous weapons, through a short cut, in furtherance of their common intention to attack and murder the victims. Accused 1 to 3 allegedly inflicted injuries on the deceased, PW3, PW16 and PW28 with M.Os.1 to 3. Accused 1 and 2 allegedly wielded M.Os.1 and 3 daggers; whereas A3 allegedly wielded M.O.3, Nanjak. P.Ws.3, 16, 28 and the deceased suffered serious injuries and the deceased succumbed to such injuries later on the same night. Investigation commenced with the registration of Ext. P2(a) FIR on the basis of Ext. P2 First Information Statement lodged by P.W.3. Investigation was completed and final report/charge sheet was filed by P.W.36 before the learned Magistrate having jurisdiction. The learned Magistrate, after observing all legal formalities, committed the case to the Court of Session. The learned Sessions Judge took cognizance of the offences alleged against the accused. Charges framed by the learned Sessions Judge were denied by the appellants. Thereupon the prosecution examined P.Ws.1 to 36 and proved Exts. P1 to P29. M.Os.1 to 15 were also marked.

In the course of cross-examination of prosecution witnesses and later when examined under Sec.313 Cr.P.C., the appellants denied all circumstances which appeared in evidence and which were put to them. They took up the stand that no incident whatsoever had taken place at the scene described in Ext. P4 scene mahazar. According to them, there was an earlier incident in the family house of the appellants and the deceased, P.Ws.3, 16, 28 and two others were the aggressors in the said incident. According to the appellants, the real incident had taken place in the said house and the appellants and the accused persons as also the deceased, P.Ws.3, 16 and 28 must have suffered the injuries in the course of such incident. There the accused persons were entitled to the right of private defence. Totally false allegations have now been raised about an incident having taken place at the scene of the crime described in Ext. P4 scene mahazar. The appellants did not examine any defence witnesses. Exts. D1 to D13 were marked on their side.

The learned Sessions Judge, on an anxious consideration of all the relevant inputs, came to the conclusion that the prosecution has succeeded in proving the offences punishable under Secs.341, 307 and 302 read with Sec.34 IPC against A1 and A2. It was further held that the charge against A1 under Sec.427 IPC has also been established. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment.

Before us the learned counsel for the appellants and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellants strenuously contends that the learned Sessions Judge had erred grossly in accepting and acting upon the evidence of P.Ws.3, 16 and 28 primarily, that an incident had taken place at the scene described in Ext. P4. It is further argued that the learned Sessions Judge had grossly erred in accepting the other piece of evidence and circumstances to draw inspiration for the oral evidence of P.Ws.3, 16 and 28. The learned Sessions Judge ought to have held that A1 to A3 as well as P.Ws.3, 16, 28 and the deceased must all have suffered injuries in the family house of the accused as contended by the accused. No proper investigation has been done and in any view of the matter, appellants are entitled to the benefit of doubt, contends the learned counsel for the appellants. In respect of the incident No. 1 which according to the learned counsel for the appellants is the only incident that had taken place, the appellants are, at any rate, entitled to the right of private defence, contends the learned counsel for the appellants further.

The learned Public Prosecutor, on the other hand, contends that there is overwhelming material for the court to sail to the safe conclusion beyond the semblance of any doubt that the crucial incident had taken place at the scene identified in Ext. P4 scene mahazar. That was a distinct and separate incident. It had no specific connection with the earlier incident which had allegedly taken place in the house of the accused. That earlier incident is at worst only the motive for the later incident which took place at a different point of time and geography. The two incidents are not part of the same transaction at all. The court below was eminently justified in coming to the conclusion that the evidence adduced by the prosecution establishes the incident that had taken place at the scene of the crime identified in Ext. P4 at about 8 p.m. on 13/3/2004, contends the learned Public Prosecutor.

We have considered all the relevant inputs. This appellate judgment is rendered and must be read in continuation of the impugned judgment of trial court. In that view of the matter, we do not think it necessary to attempt a re-narration of the oral and documentary evidence placed before the learned Sessions Judge. We may hasten to observe that the learned counsel had taken us in detail and meticulously through the oral evidence of P.Ws.1 to 36. We have also been taken through the contents of Exts. P1 to P29 and Exts. D1 to D13. We have also been taken through the charges framed by the learned Sessions Judge against the accused and the answers given by the appellants in the course of their examination under Sec.313 Cr.P.C. We shall refer to the relevant materials specifically wherever necessary in the course of discussions to follow.

The crux of the case of the prosecution is this. P.W.18 Sameera is the wife of the brother of accused 1 and 3. He is employed abroad. P.W.18 was living at her matrimonial home. She had fallen sick. She did not receive the attention which a sick daughter-in-law deserved at her matrimonial home. Her father P.W.3 Yahya therefore took P.W.18 Sameera to her house. She was hospitalized. She underwent a surgery. She did not choose to return to the matrimonial home. The accused persons were evidently not happy with such conduct of Sameera. Sameera had a child and accused No. 2 is alleged to have taken that child from the house of Sameera to her matrimonial home. The child was not returned. P.W.18 was sad about the non- return of the child. She complained to her father P.W.3 who advised her to go along with her mother to her matrimonial home and request for return of the child. Accordingly P.W.18 along with her mother went to her matrimonial home. The appellants allegedly did not return the child. Not only that, Sameera met with unpleasant responses at her matrimonial home. She was not permitted to take out her articles and was allegedly pushed out of the matrimonial home. She returned to P.W.16, her maternal uncle. Another maternal uncle P.W.28 also reached the house of P.W.16. P.W.3 Yahya was also informed and he also reached the house of P.W.16. Deceased Hyder Haji, brother-in- law of P.W.3 (they having married sisters) also was present. They along with two others - Ummer and Azeez (brothers-in-law of P.W.3) proceeded to the house of the accused. Ummer and Azeez went on a motor-cycle. The other four went in the autorikshaw of P.W.5.

In the house of the appellants they were not well received. To cut a long story short, there were untoward incidents and altercations in the house of the appellant on that evening. Some of them were victims of physical assault. They hastily returned from the house of the appellants. Ummer and Azeez proceeded in their motor-cycle. Deceased, P.Ws.3, 16 and 28 covered some distance on foot and then they allegedly got into the autorikshaw of P.W.24. P.W.24 with all four of them drove the autorikshaw for some distance and they reached the scene of the crime described in Ext. P4 - i.e., the road junction at Parayarangadi. According to the prosecution, A1 to A3 had rushed to the said scene through some short cut and were available there armed with M.Os.1 to 3. They stopped P.Ws.24''s autorikshaw, with the passengers, from proceeding further. The deceased, P.Ws.3, 16 and 28 were pulled out of the autorikshaw and injuries were inflicted on them by A1 to A3 with M.Os.1 to 3. All four of them suffered injuries. According to the prosecution, there was no other eye witness for the entire incident other than the victims and P.W.24. Hearing the commotion some people had come to the scene of the crime. The injured/victims were removed from the scene of the crime initially to K.P.M. Hospital where P.W.30 attended on them and rendered first aid. They were removed to Moulana Hospital at Perinthalmanna where P.W.26 examined all four of them. The deceased succumbed to the injuries on the same night. P.W.28 had allegedly suffered a grievous injury - transection of the spinal code. He was allegedly rendered paraplegic at the spot on suffering such injury. This, in short, is the case of the prosecution. The prosecution further alleged that A1 had committed mischief by causing damage to the tyre of P.W.24''s autorikshaw and thereby he had allegedly committed the offence punishable under Sec.427 IPC also.

The defence took up a definite stand. According to the defence, no incident at all had taken place at the road junction identified in Ext. P4. They took the stand that the only incident that took place on the day was in the house of the accused. After that incident, the injured (deceased, P.Ws.3, 16 and 28) had allegedly left the house of the appellants in the autorikshaw in which they came. When they reached the scene of the crime (described in Ext. P4 mahazar) the driver of the autorikshaw refused to carry them further as they were bleeding and blood had fallen in the autorikshaw. That is how the injured happened to be available at the scene of the crime. They asserted that no incident had taken place at the scene of the crime described in Ext. P4. They took the further stand that they had suffered injuries described in Exts. P11 to P13 in the incident which took place at their house. The injured persons of the prosecution party must have suffered such injuries in the melee which took place in the house of the appellants. This, in short, is the case of the appellants.

That the deceased, P.Ws.3, 16 and 28 suffered injuries is virtually not in dispute. The fact that they suffered injuries is proved convincingly by Exts. P19 to 22 proved by P.W.26. The injuries on the deceased are further established convincingly by the oral evidence of P.W.23 and Ext. P16 post-mortem certificate. The oral evidence of P.W.30 further says that the injured were attended to by him first at the K.P.M. Hospital, Malappuram. Virtually no dispute is raised before us by the appellants also on the question whether the deceased, P.Ws.3, 16 and 28 had suffered the injuries described in the relevant certificates. The evidence of these medical experts further show that these injuries could have been suffered with weapons like M.Os.1 to 3. We are not, at this juncture, entering into the controversy as to whether M.O.3 was really used for the infliction of the injuries on the victims. (Deceased, P.Ws.3, 16 and 28 are being referred to hereinafter as the victims). We do, in these circumstances, deem it absolutely safe and sound to concur with the conclusion of the court below that the victims had suffered injuries described in Exts. P19 to P22 and P16. The evidence of P.Ws.23, 26 and 30 confirm this conclusion beyond the trace of any doubt. Those injuries could have been caused with the weapons like M.Os.1 to 3, we further conclude.

The next crucial question to be considered is whether any incident had taken place at the scene described in Ext. P4. That, it appears to us, is a crucial question to be decided. We say crucial because if the incident had taken place in the house of the appellants, certainly their claim for right of private defence will have to be considered in detail. If, on the contrary, the incident had taken place at the scene of the crime, they cannot have semblance of a claim of having acted in private defence as the scene of the crime described in Ext. 4 is far removed from the scene of the earlier incident - viz., the house of the accused. There is considerable distance between the house of the accused and the scene of the crime described in Ext. P4. We are unhappy to note that the Investigating Officer has not specifically assessed/measured this distance. But we have ample inputs to ascertain the distance between the two. A witness P.W.3 stated that the distance was one furlong. Immediately it was clarified that his assessment of distance is not correct and acceptable. We have evidence to suggest that the said distance is 1 Km. from P.W.16. P.W.16 in his evidence stated that the distance from Ext. P4 scene to the spot where the autorikshaw stopped (and thereafter the victim proceeded on foot to the house of the accused) is 1 Km. A precise and authentic assessment of the specific distance from the house of the appellants to Ext. P4 scene does not appear to be possible from the inputs available. But certainly the assertion of the witness that the distance of 1 Km., is not seen challenged. Moreover, the suggestions made by the accused to the prosecution witnesses do themselves show that the victims had to walk some distance from the house of the appellants to the spot where they could get into the autorikshaw. The suggestions further show that the victims had travelled for some distance in the autorikshaw before they reached the Parayarangadi road junction, the alleged scene No. 2. Geographically, chronometrically and considering the nature of the incident, we are convinced that the two spots -- the house of the accused and Ext. P4 scene are far removed from each other and by no stretch of imagination can it be held that the incident at Ext. P4 scene is part of the same transaction of the incident which took place in the house of the appellants. In fact, the tenor of cross-examination and the stand taken by the accused do also reveal that the specific case is not that the two incidents are part of the same transaction; but that no incident at all had taken place at Ext. P4 scene. We thus find that even the accused did not have a case that the scene described in Ext. P4 is close to the house of the accused. The two are geographically different points far removed from each other, it can safely be concluded.

The next question to be decided is whether any incident had taken place at Ext. P4 scene. On that aspect we primarily have the oral evidence of P.Ws.3, 16 and 28. They are the injured victims of course. In that view of the matter they can be said to be interested also. Their evidence clearly show that all the four victims suffered injuries at Ext. P4 scene and at the hands of A1 to A3. The injury on P.W.28 deserves to be seen specifically. Ext. P21 wound certificate shows that P.W.28 had become paraplegic consequent to the transection of the spinal chord. We look at the oral evidence of witnesses which suggest that after suffering the injury P.W.28 could not move a bit. That input is crucially relevant objectively when we consider the question whether the injuries on the victims could have been suffered at the house of the appellants or at Ext. P4 scene from where P.W.28 was removed to the hospital. It is improbable, nay impossible, to assume that P.W.28 could have suffered injuries at the house of the appellants and in that condition - after suffering the injuries described in Ext. P21, he would have been able to reach the scene of the crime described in Ext. P4.

Other circumstances also are available. The oral evidence of P.Ws.2, 4, 24 and 17 deserve to be visited in this context. P.W.24 is the autorikshaw driver who took the victims upto Ext. P4 scene. His evidence clearly shows that they had no injuries when they boarded the autorikshaw until they reached the scene of the crime. He is the eye witness to the incident proper though on the details he is not very eloquent. Be that as it may, the evidence of P.W.24 helps the court to come to a conclusion beyond any doubt that the victims had suffered the injuries at the scene of the crime described in Ext. P4. P.Ws.2 and 4 are persons who heard the commotion and rushed to the scene of the crime. They also confirmed that the victims had suffered injuries and were available at the scene of the crime. Their evidence eloquently support the oral evidence of P.Ws.3, 16 and 28 that an incident had taken place at the scene of the crime and that they had suffered the injuries at that scene. We do accept that the evidence of P.Ws.2, 4 and 24 by themselves may not be sufficient for the court to precisely ascertain the details of the incident. But they support the evidence of P.Ws.3, 16 and 28 only. P.Ws.2 and 4 had come rushing to the scene of the crime only after the commencement of the incident. They have no case that they actually saw infliction of any of the injuries. P.W.24 of course speaks about the initial part of the incident. We now look at the evidence of P.Ws.17 and 29. P.W.17 is a woman having her house near the scene of the crime. According to her, a person (evidently the deceased) had crawled to her house and had demanded water which she obligingly furnished. Her evidence shows that one person had come to her house and had helped her to give water to that injured person and that person had removed that injured person from her house. Though that person who came to her house subsequently and took the deceased away is not identified by P.W.17, from the evidence of P.W.29, it is clear that the person was P.W.29. We think it unnecessary to delve deeper into the evidence of P.Ws.2, 4, 17, 24 and 29. Their evidence convincingly support the oral evidence of P.Ws.3, 16 and 28 that an incident had taken place at Ext. P4 scene in which they had suffered injuries. On that aspect of the matter we have absolutely no doubt or reservation.

A contention is laboriously advanced by the learned counsel for the appellants that the precise spot where the incident is alleged to have taken place is not convincingly supported by the evidence of witness like P.W.17. P.W.28 was found lying on the southern road margin near the electric post. The deceased is alleged to have reached the house of P.W.17. Those places are marked as spots 4 and 5 in Ext. P18 scene plan. If the incident had taken place at spot No. 2 as identified in Ext. P8, how is it that the deceased reached the house of P.W.17 (spot No. 5) and P.W.28 reached spot No. 4 (southern road margin), it is queried. We find no merit in this contention at all. The victims would not have been standing like statues when the incident started. Certain amount of movement after the autorikshaw of P.W.24 was stopped by accused is certainly to be expected by any prudent mind. The mere fact that P.W.28 was seen on the ground at spot No. 4 or that the deceased had reached the house of P.W.17 at spot No. 5 is according to us no reason whatsoever to disbelieve the version of P.Ws.3, 16 and 28 eminently supported by the evidence of P.Ws.2, 4, 17, 24 and 29.

From the spot of the crime people led by P.W.29 allegedly removed the victims to the local hospital i.e., the hospital where P.W.30 was available. From there they were removed to the Moulana Hospital at Perinthalmanna, where P.W.26 attended on them. The victims had reached the hospital only at 9 p.m. Much is attempted to be made out of the delay from 8 p.m. to 9 p.m. In the light of the evidence of P.W.30 we find absolutely no merit in this contention laboriously advanced about the delay in the victims reaching the hospital of P.W.26.

In Exts. P19, 20, 21 and 22 the history alleged is "assault at east Kodur around 6.45 p.m. on 13/3/04". First of all, the argument is advanced that Ext. P4 scene is not east Kodur and east Kodur is the place where the house of the accused (scene No. 1) is situated. A perusal of Ext. P4 scene mahazar knocks the bottom out of this contention. The description in Ext. P4 suggests that Ext. P4 scene also is within east Kodur.

Undaunted, the learned counsel for the appellants argues that at 6.45 p.m. no incident had taken place at the scene of the crime and that incident (at 6.45 p.m.) referred to in the alleged cause must be the incident in the house of the appellants. We find no merit in this contention also. We are convinced of the suffering of injuries by the victims at Ext. P4 scene. 6.45 p.m. referred to in the alleged cause is not a declaration of time by any one speaking by the clock. Obviously persons who took the victims to the hospital must have furnished that tentative information. Moreover, it appears interesting to us that according to A1 to A3 the alleged cause narrated by them had taken place at 8 p.m. in their house. Not that the statement of the accused would bind them and would fetter their option to take up any other defence available; we are only taking note of the fact that the time given before a Doctor by the injured person or those who brings him to the Doctor cannot be attached any crucial significance. We do not, in these circumstances, attach any significance to the time 6.45 p.m. referred to as the time of the incident in Exts. P19 to 21 wound certificates.

The learned counsel for the appellants relying on the evidence of P.Ws.2, 4, 17, 24 and 29 argues that their evidence do not support the evidence of P.Ws.3, 16 and 28 about the presence of all the three appellants at the scene of the crime. We think it would be idle to expect witnesses like P.Ws.2, 4, 17, 24 and 29 to give detailed narration about all the persons who were present at the scene of the crime. We need only observe that their evidence supports and corroborates the evidence of P.Ws.3, 16 and 28 though not in every meticulous detail. Broadly the evidence of P.Ws.3, 16 and 28 get support from the evidence of P.Ws.2, 4, 17, 24 and 29. Different portions of the incident spoken to by P.Ws.3,16 and 28 are supported and corroborated by such evidence of the totally disinterested witnesses who had reached the scene of the crime after the incident commenced. The fact that they did not specifically in one voice speak about the presence of A1 to A3 with blood stained weapons in their possession cannot in any way deliver any advantage to the accused. We do, in this context, further note that the evidence of P.Ws.2, 4, 17 and 24 get mutual support from each other. The name of the person who brought the victims to the hospital is Saidalikutty and he is none other than P.W.29, it is further seen. The fact that the tyre of the autorikshaw of P.W.24 was damaged also supports the oral evidence of P.W.24. We are satisfied, in these circumstances, that there is convincing unassailable and safe evidence to conclude that the victims had suffered injuries at the scene described in Ext. P4 scene mahazar.

It is true that the prosecution has not adduced detailed evidence about the incident which took place in the house of the appellants earlier on the day. We have already come to the conclusion that the incident which admittedly taken place in the house of the accused is unconnected - geographically and chronometrically or by the sequence of events, with the incident which took place at the scene described in Ext. P4. At worst, the earlier incident that took place in the house of the accused can operate and can be reckoned only as motive or provocation for the incident which took place later at Ext. P4 scene. It is also crucial to note that the appellants have no case whatsoever that they had suffered any injuries in the incident which took place at Ext. P4 scene. We do not hence find any merit in the contention that injuries on the accused in Exts. P11 to P13 have not been explained. The prosecution does of course have the burden to explain the injuries on the accused. This is certainly not an empty formality ritual or a fetish. There are very cogent reasons as to why the prosecution must explain the injuries on the accused. When there is no case for the prosecution or the defence that the accused had suffered injuries in the course of the incident which took place at Ext. P4 scene, we find it absolutely unreasonable to insist that the prosecution must explain all the injuries on the accused admittedly suffered elsewhere and not at Ext. P4 scene. In that view of the matter, we find it absolutely unnecessary to find fault with the prosecution for not having explained the injuries on A1 to A3 described in Exts. P4 to P13.

It will not be inapposite in this context to note that even according to the prosecution witnesses an untoward incident - a physical altercation had taken place at the house of the appellants. The evidence indicates that there was push and pull and some had fallen also. Some insignificant injuries suffered by the participants in the incident which took place in the house of the appellants is hence most reasonable and natural. It would be idle for the courts to insist that the prosecution must explain all those injuries specifically when they try to prove the incident that had taken place at a different place, specifically at Ext. P4 scene. Moreover, a perusal of the alleged cause narrated in Exts. P11 to 13 reveal that no accused has a case that he had suffered injuries at the hands of the victims with any sharp edged weapon. Attack with torch and stick is the alleged cause narrated uniformly in Exts. P11 to 13.

We have looked into the nature of injuries described in Exts. P11 to P13. It is true that two of the accused had suffered incised injuries. A careful perusal of the description of those injuries must also suggest to the court the insignificance of such injuries. The mere fact that two of those injuries were incised injuries cannot burden the prosecution with the obligation to offer meticulous explanation for such injuries even assuming that those injuries were suffered at the scene of the crime described in Ext. P4. In the nature of the incident which took place at Ext. P4 scene as described by the witnesses it was not at all important or vital that the victims must have noted the suffering of specific injuries described in Exts. P11 to P13 by accused 1 to 3. Those injuries could have been suffered at the house of the appellants in the earlier incident as contended by the accused. It is not improbable that such injuries could have been suffered in the course of the incident which took place at the scene of the crime and the nature of the injuries suggest to us that the non- explanation of those injuries by the victims cannot in any way affect the credibility of their testimony. We take note that even the accused do not have a case that they suffered any injury at Ext. P4 scene. In any view of the matter we are unable to find fault with the prosecution for not having explained the injuries in Exts. P11 to P13. We are satisfied that the oral evidence of all the victims - P.Ws.3, 16 and 28 do not deserve to be approached with any amount of doubt, suspicion or distrust on the basis of such non-explanation of the injuries on the accused.

A right of private defence is claimed -- not at the scene of the crime Ext. P4; but only regarding the incident that had tsken place in the house of the appellants. Even assuming that the appellants had right of private defence in the incident which took place in the house of the appellants, they cannot claim any right of hot pursuit against the victims to inflict injuries on them at Ext. P4 scene. Plea for right of private defence, on the admitted case of the appellants, has no legs to stand on in respect of the incident at Ext. P4 scene, we conclude.

What is the specific evidence against A1 to A3 in respect of the incident that had taken place at Ext. P4 scene? This is the next question to be considered. We have convincing evidence to suggest that A1 to A3 after the incident which took place in their house had reached the scene of the crime together armed with dangerous weapons. The evidence clearly suggest that all the three were acting in furtherance of their common intention. They came together. They were armed with dangerous weapons. All 3 of them participated in the crime, though they took up different roles. They retreated from the scene of the crime together. All these must certainly suggest eloquently to the court that the chord of common intention did bind the actions of A1 to A3. That all the victims suffered injuries at the hands of A1 to A3 who acted in furtherance of their common intention is also thus evidently clear. The precise ascertainment of overt acts does not, in these circumstances, assume any crucial significance or relevance. There is clear evidence as day light to establish that all the injuries suffered by the victims were suffered by them at the hands of A1 to A3 who acted in furtherance of their common intention - whatever be the specific overt acts assigned to each one of them. The evidence of P.Ws.3, 16 and 28 clearly suggest that all the three accused were present and actually participated in infliction of injuries on the victims. Their presence and participation having been proved clearly, each of them must be held liable for the culpable acts of all of them who acted in furtherance of their common intention. Specific overt acts are also established by the oral evidence of P.Ws.3, 16 and 28.

A contention is laboriously advanced that the use of M.O.3 Nanjak is not narrated in Ext. P2 First Information Statement lodged by P.W.3 one of the victims. This is factually correct. There is no reference to the use of M.O.3 by any of the accused in Ext. P2. But we have evidence of witnesses to show that a Nanjak was used in the incident and the said Nanjak was abandoned at the scene of the crime by the miscreants. We have the evidence of P.W.6 who had taken that Nanjak M.O.3 and had kept it with him, evidently out of juvenile curiosity. His evidence shows that he later produced the same before the Investigating Officer which was recovered under Ext. P3. It is relevant that in Ext. P3 the name of A3 is also written clearly. We do not, in these circumstances, find much merit in the contention that the evidence of use of M.O.3 by A3 must be discarded for the reason that P.W.3 had not narrated the same in Ext. P2 First Information Statement. We have already taken note of the fact that even if specific overt acts of infliction of injuries by A1 to A3 is not proved the conclusion is inescapable that all the injuries were inflicted on the victims by A1 to A3 acting in furtherance of their common intention.

What would be the common intention? This is the next question canvassed. Intention lies embedded and concealed in the secret chambers of the minds of the accused persons. Others/courts can attempt to decipher and decode the intention/common intention from the acts performed and the totality of circumstances. We take note that from the house of the appellants all the three accused had reached the scene of the crime. They were armed with dangerous weapons. They came together. The nature of the attack unleashed must certainly convey to the court the dominant common intention of all of them. There is nothing to assume that any one of them acted beyond the domain of the common intention which they shared with the other accused. The nature of the injuries inflicted, the nature of the weapons used, the parts of the anatomy where such injuries were inflicted do all eloquently convey that the common intention of A1 to A3 could not have been anything other than to attack and cause death of the victims. We find no reason to interfere with the conclusion of the court below that the intention was to cause the death of the victims.

The learned counsel for the appellants points out that though Ext. P14 statement of A2 given to P.W.20 - a Police Constable, has been proved by examination of P.W.20, there is significant dearth of evidence to reveal what action has been taken by the police on the basis of Ext. P14. We take note of this contention. We do in fact particularly note that P.W.20 was cross-examined. The tenor of cross-examination was that Ext. P14 in that form was not given by A2. That his signature (i.e., A2''s signature) had been surreptitiously obtained in Ext. P14 appears to be the suggestion made specifically to P.W.20. P.W.21 was examined and Ext. P15 seizure mahazar was proved to show that Ext. P14 complaint, Exts. P11 to 13 wound certificates and the intimation given by the Doctor were all seized by the Investigating Officer when P.W.31 produced the same under Ext. P15. P.W.21 is only an attestor to that document. When P.W.31 was examined in court or later when P.Ws.33 and 36 Investigating Officers who had various roles to play in the investigation of the crime were examined, no challenge whatsoever was raised as to why no action was taken on Ext. P14. Such a contention is raised for the first time in this appeal before us.

We do accept that even without challenge by the accused, the prosecution has the burden to explain why no action was taken on Ext. P14. A perusal of Ext. P14 which is not now specifically owned by the accused must suggest that the view is not impossible that the allegations reveal only non-cognizable offences. We are not finally accepting that explanation. But the omission to seek explanation from P.Ws.31 and 36 is taken note of by us in the light of the contents of Ext. P14. In the absence of any challenge when the witnesses were in the witness stand as to why the Investigating Officer did not take any further action on Ext. P14, the present queries laboriously raised in the course of arguments in the appeal cannot evidently deliver any advantage to the appellants. We would certainly have been happier if even without the accused soliciting explanation the Investigating Officers had offered explanation for the same. All that we intend to hold is that in the nature of the cross- examination directed against the Investigating Officers the appellants cannot now take advantage of the alleged inaction on the part of the Investigating Officers on receipt of Ext. P14.

We visit the broad facts again in this context. We take it that no action has been taken on Ext. P14 complaint. We agree that it was improper for the police not to have taken any action. But that complaint Ext. P14 is only in relation to an earlier incident which has no direct, immediate and substantial bearing on the incident which took place at Ext. P4 scene. In that view of the matter also the inaction on the part of the police after receipt of Ext. P14 complaint cannot deliver any tangible benefit or advantage to the appellants in respect of the incident which took place at Ext. P4 scene which as has already been found is different; distinct and separate from the incident that had allegedly taken place in the house of the appellants of which complaint is lodged under Ext. P14. That incident we have already noted is unconnected with the incident at Ext. P4 scene except as one providing motive or provocation.

The above discussions lead us to the conclusion that the verdict of guilty and conviction of the appellants under the impugned judgment by the court below does not call for any interference. The sentences imposed also do appear to us to be eminently fair, reasonable and just. The sentences do not also, in these circumstances, warrant any interference.

In the result:

(a) This appeal is dismissed.

(b) The impugned judgment is upheld in all respects.