IMPORTANT POINTS
1. The non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable.
2. The fact that either accused may have had his own motive for killing the deceased is not relevant in determining the common object or intention required under Section 34 IPC.

JUDGMENT

Ruma Pal, J.-These appeals have been preferred from the decision of the Patna High Court dated 9th January, 1998 dismissing the appeals filed by the appellants against their conviction and sentence by the Additional Sessions Judge, Nawadah under Sections 302/34 of the Indian Penal Code (IPC) and Section 27 of the Arms Act.

2. It is the case of the prosecution that on the night of 22nd March 1987, Kishori Sao (PW 6) along with his brother, Parmeshwar Sao were threshing wheat in their khalihan in village Gangti, P.S. Pakribarawan, District Nawadah. Kishori Sao was operating the threshing machine and his brother, Parmeshwar Sao was bringing the wheat bundles from the khalihan to the threshing machine. Wheat bundles were stocked on the north-east corner of the khalihan . The appellants had concealed themselves behind the wheat bundles. At about 11.30 p.m. to 12.00 p.m. when Parmeshwar Sao went to bring wheat bundles for threshing, he took a lantern with him. He put down the lantern when suddenly Lakhan Sao came out from behind the wheat bundles with a pistol in his hand and grabbed Parmeshwar Sao around the waist from behind. Lakhan Sao told Baldeo Chauhan to shoot Parmeshwar Sao. Baldeo Chauhan shot Parmeshwar Sao in the right upper part of his chest. Parmeshwar Sao fell down. Kishori Sao saw the incident but before he could run to his brother s aid, the accused had fled away carrying their pistols, towards the east. Kishori Sao raised an alarm. Parmeshwar Sao s wife, Sarda Devi (PW 2), Saho Devi (PW 4), the mother of Kishori Sao and Parmeshwar Sao, Bishun Sao (PW 3), their uncle and others came running to the spot. Bishun Sao saw the appellants running away while he was coming to the spot. Kishori Sao told PW 2, PW 3 and PW 4 that Lakhan Sao had caught hold of the deceased and that Baldeo Chauhan had shot Parmeshwar Sao being ordered to do so by Lakhan Sao. PWs 2 and 3 corroborated this at the trial. Other members of the village had gathered by this time. Parmeshwar was still breathing. He was put into a rickshaw to be taken to the hospital but he died as soon as they reached the main road. Kishori Sao, (PW 6) and Bishun Sao (PW 3) and others took the body of the deceased to the police station. It took them an hour and a quarter to reach there. The First Information Report (Ext. 1) was recorded at 1.30 a.m. that night in which the facts noted above were recorded. The Sub-Inspector (PW 8) prepared an inquest report (Ext.3).

3. The Sub-Inspector then left for the site where he arrived at 3.45 a.m. The spot was identified by PW 2. PW 8 inspected the spot and found that it was on the land of Chamru Sao and that Kishori Sao had his khalihan there. He found that wheat bundles were kept on the north east corner of the khalihan . The wheat bundles were at a height of 5 ft. On the north of these wheat bundles, he found `Newari or straw ropes where he suspected the appellants hid themselves. On the south of the wheat bundles he found blood stains on the wheat bundles and on the ground. He seized the blood stained soil and the blood stained wheat bundles. The seizure list, which was prepared by him, was signed by Kishori Sao and Chando Paswan (Ext.6).

4. The Sub-Inspector found that the threshing machine was situated 25 yards west of the wheat bundles. He also found that the house of Kishori Sao and Prameshwar Sao was situated to the south-east of the place of occurrence at a distance of about 50 yards.

5. The body of the deceased was sent to the Sadar Hospital, Nawadah. The post-mortem examination was conducted on the body of the deceased by Dr. B.P. Singh (PW 5). The postmortem s report (Ext.2) recorded two wounds on the body, namely, a wound being a wound of entry, over the upper part of the right side of the chest in the first inter costal space and the second, a wound of exit, on the right side of the back of chest in the 4th inter costal space. There was scorching on the first wound. He found the wounds connected with ea