The court confirmed that eyewitness testimonies, despite procedural lapses in FIR registration, sufficiently proved the common intention of the accused in a joint assault leading to conviction under IPC sections 302 and 34.

JUDGMENT :

Gautam Kumar Choudhary, J.

1. Since both the appeals arise out of judgment of conviction and sentence under Sections 302 /34 and 148 of the IPC passed in Sessions Trial No. 261 of 2001 / 107 of 2002, they have been heard together and will be disposed of by the common judgment.

2. Informant is the brother of the deceased. As per the FIR, on 30.03.1987, the informant-Ludu Baski had gone to attend the marriage ceremony in the house of his co-villager- Jitan. At around 10:00 p.m. on hulla, he came out of the house and rushed towards his house. He saw that, (i) Sunu Lala Murmu (ii) Sitaram Murmu (iii) Guna Murmu (iv) Sinan Murmu (v) Kakam Murmu (vi) Surun Murmu (vii) Dabu Murmu (viii) Dhari Murmu (ix) Shiv Lal Murmu (x) Sona Murmu (xi) Kamal Murmu were indiscriminately assaulting Pithu Baski with lathi and iron rod. On hulla, when the villagers started gathering there, the accused persons fled away. It is claimed that the accused persons were identified in the light of lantern. The genesis of offence has been stated to be land dispute. Pithu Baski sustained fatal injury and died on spot.

3. On the basis of the fardbeyan , Nala P.S. Case No.32/87 was registered under Sections 148 , 149 and 302 of the IPC against all the eleven named accused persons. After investigation, charge sheet was submitted and all the eleven accused persons were put on trial under Sections 148 and 302/34 of the IPC. Two of the accused namely Kakam Murmu and Shiv Lal Murmu died during trial. Accused persons facing trial were convicted by the learned trial Court.

4. Altogether nine witnesses have been examined on behalf of prosecution and the relevant documents including post-mortem report of deceased- Pithu Baski (Exhibit 1), injury report of Wakil Marandi (P.W. 3) has been exhibited as Exhibit 2.

5. It is argued by the learned counsel on behalf of the appellants that charge has been framed under Section 34 of the IPC, and to prove the charge, it was necessary that accused should have participated in the offence in furtherance of common intention. Mere presence at the place of occurrence is not sufficient to attract vicarious liability under Section 34 of the IPC. It is further argued that the incidence took place on the spur of moment and therefore, on the facts of the Section 149 or 34 of the IPC will not apply.

6. Learned senior counsel representing the appellants submits that the fardbeyan which forms the basis of the F.I.R. is hit by Section 162 Cr.P.C. As per him, the informant (P.W.-7) at para-5 he had stated that on that night itself when the incident had occurred, he had gone to the Police Station and informed the entire matter to the police, but surprisingly his initial statement has not been made the basis of the F.I.R. F.I.R. is based on fardbeyan, which was recorded on the next date at 12:00 hours. He submits that since the Investigating Officer has not been examined in this case, the defence has been prejudiced as what was the first correct version narrated to the police by the informant could not be brought to the notice of the Court during trial. It is further submitted that the informant in his fardbeyan claims to be an eye witness, but if his evidence is scrutinized, it would be clear that he is not an eye witness to the said occurrence, as he admits that he reached the place of occurrence when the assault had already taken place and some of the named accused were fleeing from the place of occurrence. P.W. 1 who is the son of the deceased also cannot be said to be the eye witness as in the F.I.R., the informant has stated that this P.W. 1 reached the place of occurrence after him which means that P.W. 1 could not have seen the occurrence at all, whereas P.W. 1 in his evidence has transposed himself to be an eye w