Judgement

BOSE, J. : The appellant Prabhu was indicted for the murder of his sister-in-law Mst. Parvati, Parbhu s sons, Babu and Bhika, his brother Ganpat and Ganpat s son Vishnu were also charged.

2. The Sessions Judge convicted Prabhu and his two sons under S. 302, read with S. 34, Penal Code, and acquitted the other two. All three were sentenced to transportation.

3. The High Court allowed the appeals of the sons and acquitted them. The conviction of the father under S. 302, read with S. 34, was maintained.

4. That at once arises the conundrum that arises in this class of case. The appellant was not charged for having committed the murder himself, nor does the evidence indicate that he was charged for having shared the common intention of four named persons and for having participated in the crime. If these four persons are all acquitted, the element of sharing a common intention with them disappears; and unless it can be proved that he shared a common intention with the actual murderer or murderers, he cannot be convicted with the aid of S. 31.

Of course he could have been charged in the alternative for having shared a common intention with another or others unknown. But even then, the common intention would have to be proved either by direct evidence or by legitimate inference. It is impossible to reach such a conclusion on the evidence in this case once the co-accused are eliminated because the whole gravamen of the charge and of the evidence is that the appellant shared the common intention with those other four and not with others who are unknown.

5. The facts are as follows. It will be convenient to set out a family tree as the parties are all related

6. The three brothers Prabhu, Ramchandra and Ganpat lived in separate houses which adjoined each other. They were separate in estate and cultivated their lands separately. After Ramchandra s death, his widow Parvati (the murdered woman) inherited his estate and she leased out the lands that had come to her to Parabhu and Ganpat on a half crop share basis.

She was paid her half share in the first year but after that the two brothers retained possession of the lands and refused to give her anything. She was then advised to adopt a son to default the claims of Prabhu & Ganpat. The prosecution case is that Parvati was murdered on account of the enmity thus engendered and to defeat the adoption.

7. It may be observed in passing that the adoption would not have made much difference to the legal rights because the brothers had no right to immediate possession apart from a lease. Parvati had the right to possession during her life time and after her death the right would have passed to her husband s daughter Draupadi, so, unless the parties were ignorant of the law and their rights, or unless they are not governed by the lex loci , the question of adoption would hardly be a relevant factor.

However, there is no doubt that there was enmity because the two brothers were in wrongful possession of the land and quite evidently resented Parvati s efforts to regain it.

8. From there we come at once to the occurrence. The woman was murdered on the evening of 8-7-1952 when the sun was setting just as she was about to take her evening meal. She was a young girl of 18. The only person who saw the actual murder was Sunderbai, P. W. 5, a girl of 15. She was a close neighbour of Paravati had asked her to come and dine with her that evening. Her story is this.

9. They were both inside a room of the house sitting down ready to eat. But before they could begin, the third accused Babu entered the room with an axe and struck Pravati with it on the back of her head. Parvati fell down and then

"accused 1, 4 and 5" (Prabhu, Vishnu and Bhika) came in and I ran out of the room. Near the door outside was standing accused 2 (Ganpat). He said do not come out until she is completely done with."

In cross-examination she says :

"The accused (1, 4 and 5) did not talk to me or to the deceased Parvati. Accused No. 3 had s