The main legal point established in the judgment is the application of Section 34 of the Indian Penal Code to establish the shared common intention of the accused in committing the murder.

JUDGMENT :

(Subhash Chand, J.) :

Heard learned counsel for the appellants and learned counsel for the State.

1. The instant criminal appeal is preferred on behalf of the appellants against impugned Judgment of conviction and Order of sentence dated 20th September, 1993 passed by the 3rd Additional Sessions Judge, Dumka (S.P.) in Sessions Case No.295 of 1991, whereby, the appellants nos.1 and 2, namely, Pritam Baitha and Jugal Baitha @ Gopal Baitha had been convicted under Sections 302/34 of the Indian Penal Code and the appellant no.3, namely, Situ Baitha had been convicted for the offences under Sections 302 of the Indian Penal Code and the appellants had been sentenced to undergo rigorous life imprisonment; while two of the co-accused had been acquitted of the charge framed against them.

2. The brief facts giving rise to this criminal appeal are that the informant-Jairam Baitha (the brother of the deceased-Pairu Baitha) made his fard beyan to the police on 03.11.1990 stating therein that on 02.11.1990 at 11:00 a.m. his brother Pairu Baitha was removing clay from the wall in the lane. The accused Pritam Baitha, Jugal Baitha, Situ Baitha, Bhagan Baitha and Sabitri Devi all with intent to kill the said brother of the informant came there and opposed the removal of the clay. They also abused to the brother of the informant. Accused-Bhagan Baitha and Sabitri Devi caught the brother of the informant-Pairu Baitha; while accused-Pritam Baitha and Judgal Baitha assaulted his brother with lathi and the accused- Situ Baitha assaulted with farsa to the brother of the informant on his head; consequently the brother of the informant fell down on the ground in unconscious condition. The informant and other witnesses, namely, Andu Tatwa, Madhu Tatwa, Dinesh Baitha also attracted there and all the accused persons managed to flee away. It is further stated that his brother was brought to Dumka hospital in unconscious condition for treatment and on the basis of fard beyan, Saraiyahat (Hansdiha) P.S. Case No.128 of 1990 was instituted under Sections 147, 323, 324, 341 and 307 of the Indian Penal Code on 05.11.1990. The Investigating Officer conducted the investigation and offence under Section 302 I.P.C. was also enhanced and charge-sheet was also filed to the court of Chief Judicial Magistrate, Dumka against the five accused persons for the offence under Section 302 read with 34 of I.P.C. who after having taken cognizance on the same committed the case to the court of Sessions, who subsequently transferred the same to 2nd Additional Sessions Judge, Dumka and thereafter further the same was also transferred to 3rd Additional Sessions Judge, Dumka.

3. After commitment of the case to the Court of Session, the trial court framed under Sections 302/34 of the Indian Penal Code against the accused-Pritam Baitha, Jugal @ Gopal Baitha, Bhagan Baitha, Sabitri Devi while against accused-Jairam Baitha charge was framed under Section 302 of the Indian Penal Code. The charge was read over and explained to the all accused, who denied the charge and claimed for trial.

4. On behalf of the prosecution in oral evidence examined P.W.1- Bhagwati Devi, P.W.2-Nunulal Tatwa, P.W.3-Dinesh Baitha, P.W.4- Jhakasi Mandalain, P.W.5-Andu Tatwa, P.W.6- Madhu Tatwa, P.W.7- Jairam Baitha (the informant), P.W.8- Dr. Indra Kant Mishra, P.W.9- Surendra Kumar Rajak and P.W.10- Surendra Prasad Singh.

5. On behalf of the prosecution in documentary evidence Ext.1 is autopsy report, Ext.2 is signature of Surendra Kumar Rajak on inquest report, Ext.2/1 is signature of Dilip Rajak on inquest report. Ext.3 is fard beyan, Ext.4 is endorsement on inquest report (Pristhankan) and Ext.5 is inquest report.

6. The statement of accused persons under Section 313 of the Cr.P.C. was also recorded, wherein the accused persons denied the incriminating circumstances against them and stated to adduce defence evidence.

7. On behalf of the defense in oral evidence examined D.W.-1 Ashiw Kumar Das, D.W.-2 Dr. Di