The main legal point established in the judgment is that the prosecution must establish the accused's shared common intention with others to commit the offence, as required by section 34 of the Indian Penal Code.

JUDGMENT :

Shree Chandrashekhar, J.

The sole appellant has been convicted and sentenced to R.I for life and a fine of Rs. 2,000/ - under section 302 of the Indian Penal Code, with default stipulation to suffer further R.I for 3 months.

2. In S.C. No.238 of 2008 corresponding to T.R. No.56 of 2010, the appellant has faced the trial on the charge of committing murder of Bajal Murmu in prosecution of common object of the unlawful assembly. In Boarijore (Lalmatiya) P.S. Case No.26 of 2008 which was lodged on 29.02.2008, Som Soren, the appellant, was an accused alongwith Sufal Hembram, Chota Ougo Hembram, Bara Ougo Hembram, Dhubo Hembram and Kargo Soren @ Chajja Soren. The wife of Bajal Murmu gave her fardbeyan at 07:00 PM on 29.02.2008 at village Babupur on the basis of which the First Information Report was lodged under section 302/34 of the Indian Penal Code against the above-named accused. In her fardbeyan which was recorded by N.K. Sah, S.I. of Lalmatiya P.S., Talamai Marandi has stated that on 29.02.2008 she had gone to Hatia with her husband and while returning home when they reached Dorma Chowk at about 05:00 PM they saw that the accused were standing near the bicycle shop of Pradeep Pandit. Chota Dugo Hembram caught hold of her husband and pulled him down and attacked him with knife. When her injured husband fell on the ground Sufal Hembram picked up a big stone and hit her husband with the stone on his head due to which her husband breathed his last on the spot. The accused persons with an intention to kill her husband had come to her house at about two months back and when they did not find her husband at home took away her goat and they were annoyed because her husband had lodged protest to them. On completion of the investigation a charge-sheet was filed against the other accused except Som Soren and cognizance of the offence was taken by the learned Chief Judicial Magistrate, Godda vide order dated 28.06.2008. Subsequently, a supplementary charge-sheet was filed against Som Soren and vide order dated 17.11.2008 a separate charge under section 302/149 of the Indian Penal Code was framed against Som Soren. He has faced the trial separately and as noticed above was convicted for causing death of Bajal Murmu in furtherance of common intention of all.

3. The prosecution has examined 12 witnesses to support the charge framed against Som Soren. PW-4-Naika Murmu who is uncle of the deceased, PW-6-Baran Murmu, PW-9-Baranvas Marandi and PW-11-Manadhan Marandi who is brother-in-law of the deceased were projected by the prosecution as eyewitnesses. PW -5, Dr. Pradeep Kumar Sinha who conducted the postmortem examination has found five injuries all grievous and antemortem in nature on the dead body of Bajal Murmu. PW-2-Shankar Pandit and PW-3-Jagdish Pandit did not support the prosecution during the trial and they were declared hostile. PW -7 is the Chawkidar who had brought dead body of the deceased for postmortem examination at Sadar Hospital, Godda and PW-8 as well as PW-10 are the hearsay witnesses. N.K. Sah, who recorded the fardbeyan of Talamai Marandi was not produced during the trial and PW -12 who is the second investigating officer in the case submitted chargesheet against the accused and proved the fardbeyan in the Court which was marked as exhibit-2 in the trial.

4. The learned Additional District and Sessions Judge, FTC- V, Godda has held that Bajal Murmu died a homicidal death was proved and the medical evidence fully corroborates the cause of death as stated by the prosecution witnesses. The learned trial Judge has further held that murder of Bajal Murmu was committed in furtherance of common intention of all and, therefore, Som Soren was also liable to be convicted with the aid of section 34 of the Indian Penal Code.

5. The relevant portions of the discussion by the learned trial Judge in the judgment under challenge are extracted below:

“9. The learned counsel for the defence argued that there is no specific allegation a