IMPORTANT POINT
The main legal point established in the judgment is the application of Section 34 of the IPC and the principles of joint liability, emphasizing the requirement of common intention and community of purpose among co-perpetrators in establishing liability for the commission of a crime.

JUDGMENT :

Goutam Bhaduri, J.

1. This appeal under Section 374(2) has been filed by the appellants against the judgment of conviction and order of sentence dated 30.11.2019 passed by the learned 2nd Additional Sessions Judge, Jagdalpur, District- Bastar in Sessions Trial No. 80/2018 whereby the appellants stand convicted and sentenced as under:-

2. Case of the prosecution is that on 17.08.2018, the complainant- Pojje Markam along with her husband Gangaram Markam (deceased) and son Sukhram were drinking country-made liquor. At that time, 4 accused/appellants namely Hunga Kawasi, Sonu Kawasi, Budra Kawasi and Jholu Kawasi came there and called the deceased Gangaram as previous land dispute was existing between them. The allegation is that the deceased occupied the field forcefully belonged to the accused. The appellants dragged the deceased and took him towards one canal named Silkajhodi. At that time, the complainant went out to save her husband, thereafter all the accused took the deceased to the field and she saw that they assaulted the deceased by way of an axe turn by turn. She tried to intervene and requested not to kill, however, they did not accede to it and instead complainant and her son were threatened that if she does not leave the place, she would also be eliminated. After killing the deceased, they dragged the dead body and threw it into the canal which was seen by the wife and son. Merg intimation was registered on 18.08.2018 at the instance of wife of the deceased and based on the merg, the FIR was registered at Police Station- Darbha on the same day under Sections 302, 201, 34 and 506-B of IPC. Thereafter, the dead body was recovered and was subjected to postmortem. After arrest of the accused/appellants, on the basis of their memorandum statements, the weapon was seized. The statements of the eye-witnesses were recorded and charge-sheet was filed.

3. During the course of trial, the prosecution had examined as many as 17 witnesses and exhibited 38 documents. The appellants abjured their guilt and claimed to be tried.

4. Learned Sessions Judge on the basis of statement of the eyewitnesses i.e. (P.W.-7)- Pojje Markam & (P.W.-8)- Sukhram Markam convicted and sentenced the accused/appellants as stated in para 1 of the judgment. Hence, this appeal.

5. Learned counsel for the appellants would submit that it would be quite strange to note that the eye-witness-(P.W.-7)- Pojje Markam who is wife of the deceased though claimed to have seen the incident but did not report the incident to any of the villagers for a considerable time. He would further submit that the eye-witnesses though claimed to be present on the spot but statement of (P.W.-8)- Sukhram Markam would reveal that he was inside the home while the incident happened and (P.W.-7)- Pojje Markam, the mother was also with him. Therefore, it is a case of no evidence and only on the basis of the circumstantial evidence and presumption, the conviction has been made.

He would further submit that it is also not clear from the statements as to who made the assault and only omnibus statements have been made. Therefore, in absence of such clarity of evidence, all the accused/appellants cannot be convicted with the aid of Section 34 of IPC and benefit of doubt should be extended to the accused/appellants. Hence, the appeal deserves to be allowed.

6. Per contra, learned State counsel would submit that the statement of the eye-witness remains unrebutted which is duly corroborated by postmortem report (Ex.P/19) and also by evidence of Dr. Mahendra Prasad (P.W.-11). He would submit that in view of the statements of the eye-witnesses read with postmortem r