D.N. Patel, J.

1. Both these appeals have been preferred by original accused no. 1 and original accused no. 2 respectively of Sessions Trial No. 65 of 1990 as they have been punished for life imprisonment for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 of the Indian Penal Code by learned Additional Judicial Commissioner-I, Khunti vide judgment of conviction and order of sentence dated 16th July, 2002.

2. It is the case of the prosecution that P.W. 8 Prakash Sanga informant had given his fardbeyan on 17th September, 1986 that on 16th September, 1986 he saw his brother-in-law Walter Purty and Habil Purty (original accused no. 2) were quarreling with each other, at evening hours. The reason for quarreling was that Habil Purty was demanding money for liquor from the driver of the trucks, which were passing through. This was objected by Walter Purty and, therefore, threat was given by Habil Purty to Walter Purty and on the same day at about 08:00 p.m. when Walter Purty was going to missionary school (because he always used to sleep in the said school) from Sarwada Mission Chowk, he was assaulted by dagger by Habil Purty (original accused no. 2appellant in Criminal Appeal No. 736 of 2002). Younger brother of Habil Purty, namely, James Purty (original accused no. 1appellant in Criminal Appeal No. 491 of 2002) had blocked Walter Purty from the front side and, thereafter, Habil Purty had assaulted Walter Purty by dagger. Walter Purty attempted to run away, but, there was injury on his stomach, which made him senseless and because of dagger blows, Walter Purty expired on the spot. After recording of the fardbeyan, investigation was carried out, several statement of the witnesses were recorded, charge-sheet was filed and the case was committed to the Sessions Court being Sessions Trial No. 65 of 1990 and on the basis of the evidences given by P.W. 1 to P.W. 10 and on the basis of other documentary evidence on record, the learned trial court has convicted both the accused for the offence of murder of Walter Purty and they have been sentenced for life imprisonment for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 of the Indian Penal Code. Against the judgment of conviction and order of sentence passed by learned Additional Judicial Commissioner-I, Khunti, original accused no. 1 has preferred Criminal Appeal No. 491 of 2002 and original accused no. 2 has preferred Criminal Appeal No. 736 of 2002.

3. We have heard learned counsel for the appellants, who has submitted that the prosecution has failed to prove the offence of murder beyond reasonable doubt. There is no allegation against James Purty original accused no. 1, who is appellant in Criminal Appeal No. 491 of 2002. It is also submitted by learned counsel for the appellants that James Purty has not caused any injury to the deceased-Walter Purty. Not a single eye witness or any other prosecution witness has stated that James Purty has caused any injury upon the body of the deceased. This aspect of the matter has not been properly appreciated by the learned trial court. Moreover, it is submitted by learned counsel for the appellants that the prosecution has failed to prove common intention on the part of original accused no. 1 sharing with original accused no. 2 and, therefore, the judgment of conviction and order of sentence passed by learned trial court for James Purty (appellant in Criminal Appeal No. 491 of 2002) deserves to be quashed and set aside. It is further submitted by learned counsel for the appellants that bail was granted to James Purty by suspending the sentence while admitting the Criminal Appeal No. 491 of 2002. It is also submitted by learned counsel for the appellants that looking to the postmortem report, which is at Ext.1, there is no incised wound, which is capable of being caused by the so called weapon alleged in the hand of James Purty. It is alleged by the pros