In order to establish the offence of murder under Section 302 of the IPC, the prosecution must prove beyond reasonable doubt that the accused had the intention to cause the death of the deceased.

M.P.VARMA, J.

1. The three appellants have been convicted under S.302/34 of the I.P.C. (hereinafter referred to as the Code) and each one of them has been sentenced to undergo rigorous imprisonment for life. They have further been found guilty of the offence under S.323/34 of the Code, but no separate sentence has been awarded under this charge.

2. The occurrence of murder took place on 21st May, 1983 in village Rajour Rambhadrapur under police station Rosra in the district of Samastipur. All the three appellants are own brothers. We get from the evidence of the witnesses that one Bairagi had three sons namely, Basudeo Jha, Jaydeo Jha and Bachcha Jha. The three accused appellants are sons of Basudeo Jha. The deceased Nunu Jha was son of Jaydeo Jha, deceaseds brother Bindeshwari Jha (P.W. 10) is the informant of the case. Bachcha Jha, third son of Bairagi Jha died leaving behind his widow Jashoda Devi and a daughter Shashi Kala Devi. Jasoda Devi also died. Shashi Kala is married to one Baijnath Mishra, who is said to be in possession of the estate of Bachcha Jha.

3. Evidence is not very clear. But it seems that there had been a division of the properties in the family. There is an orchard in the village. The trees of mango fruits and Jamun fruits (black berries) were there in the orchard. P. W. 10, the informant has said that Jamun tree was still in the joint possession of the parties.

4. It was some time in the morning on 21-5-1975 that accused appellant 2 Mahabir Jha had asked one Parmeshwar Mistry (who has been examined as P.W. 5) to cut the woods of Jamun tree. When this witness P. W. 5 was cutting the wood, the informant P. W. 10 Bindeshwari Jha forebade him from cutting the tree as the tree was held in jointness by both the parties. Bindeshwari Jha protested to it before the aforesaid three accused appellants, on which they gave out that they would cut the tree and if the prosecution had the courage to stop it, let them come to the spot and settle the score. At the same time, appellant 2 Mahabir Jha took up a bamboo pole, accused Ram Udgar (appellant 1) took up a Farsa and the third accused Ramji Jha (appellant 3) took up a lathi. They all advanced towards Bindeshwari Jha. Bindeshwari Jha ran to his house probably to take out some weapon, but he was stopped in the courtyard by his wife (P. W. 8) and his daughter Mithila Devi. This Mithila Devi is also now dead. Since Bindeshwari was stopped by then he could not come out. The case of the prosecution is that Bindeshwaris brother Nunu Jha, the deceased was at the Darwaza. He unfortunately became the victim. Accused Mahabir dealt a blow on his head. Nunu Jha fell down and thereupon the allegation is that all the three appellants began assaulting Nunu Jha again. Nunu Jhas wife Dulari Devi (now she is also dead and could not be examined as witness) and his daughter Sithila Devi P.W. 9 and Bindeshwaris daughter Mithila Devi (now dead) rushed out, but before they could intervene, all the accused assaulted them also and it is for this assault on the three women that the three accused have been further charged under S.323/34 of the Code.

5. Prosecution further alleges that when people started coming to the scene of occurrence, all the three accused ran away, but while getting back they bodily lifted Nunu Jha and carried him up to their own Darwaza. By the time some villagers arrived on Hulla. They left Nunu Jha on the Sahan and fled away from the place. In the meantime, the P. W. 10 Bindeshwari Jha had also come out. He brought Nunu Jha to his own Darwaza and kept him on a Chowki. The inmates of the house attempted to give some first aid, but he could not survive and died of the result of the injuries sustained at the hands of the three accused. The three accused threrefore, were charged at the trial stage that they, in furtherance of common intention, caused the death of Nunu Jha.

6. P. W. 11 Police Officer, who was camping in village nearby in connection with investigatio