The court emphasized that mere presence without overt acts does not satisfy the requirement of common intention necessary for a conviction under Section 34 of the IPC.

JUDGMENT :

Pradeep Kumar Srivastava, J.

1. The instant criminal appeal is preferred by the above-named appellants for setting aside the judgment and order of conviction and sentence dated 27.05.2003 & 28.05.2003, respectively, passed by learned Additional Sessions Judge-XIII, Dhanbad, in Sessions Trial No. 575 of 1995, whereby and whereunder the appellants have been held guilty and convicted for the offence under Section 302 read with Section 34 of the I.P.C. and sentenced to undergo imprisonment for life.

2. It is here pertinent to mention that one co-convict Kishun Ram (main assailant) had preferred Cr. A. (DB) No. 774 of 2003 and due to death of the said appellant, his appeal has been abated.

Factual Matrix:-

3. Factual matrix giving rise to this appeal is that on 27.05.1995 at about 08:00 P.M., some scuffle took place between the appellants and one Ramayan Ram. It is alleged that accused Kishun Ram was holding Sabbal (iron rod) and other accused persons were armed with lathi, all the accused persons assaulted to deceased Ramayan Ram. It is further alleged that Sabbal blow inflicted on the head of the deceased was responsible for his death. It is also alleged that the informant Rama Kant Ram brought his injured brother to Central Hospital, Jagjivan Nagar, Dhanbad for treatment but he could not be saved and died on 31.05.1995. The fardbeyan of the informant was recorded at Central Hospital, Dhanbad. Accordingly, the F.I.R. was registered for the offence under Section 302/34 of the I.P.C.

4. After completion of investigation, charge-sheet was submitted against the appellants for the aforesaid offence. The case was committed to the Court of Sessions where S.T. No. 575 of 1995 was registered.

5. The accused persons denied from the charges and pleaded their innocence and false implication. Accordingly, the trial proceeded.

6. In the course of trial, altogether 8 witnesses were examined by prosecution to substantiate the charges levelled against the accused persons. However, no oral or documentary evidence was adduced by defence.

7. The learned Trial Court, after evaluating the evidence available on record, oral as well as documentary, adduced by the prosecution, recorded the finding about guilt of the appellants and sentenced to them for the offence under Section 302 read with Section 34 of the I.P.C. as stated above, which has been assailed in this appeal.

Submissions on behalf of appellants:-

8. Learned counsel for the appellants challenging the impugned judgment and order of conviction and sentence has pointed out the following main grounds:-

(i) Admittedly, the death blow by Sabbal is attributed only against Kishun Ram, no specific overt act has been attributed against these appellants. The cause of death of the deceased has also been opined to be head injury caused by hard and blunt substance like Sabbal. Other injuries on the body of the deceased are either abrasions or bruises of small measurement. Therefore, even if it may be assumed that the appellants were also present with lathi and assaulted the deceased, it cannot be inferred from the nature of injuries alleged to be caused by them, that they were also intending to cause death of the deceased and acted in furtherance of common intention to kill the deceased.

(ii) There is crucial difference between “common intention” and “similar intention”.

(iii) It is specific case of the prosecution that all the accused persons surrounded the deceased and there was some scuffle but no lathi blow by the present appellants was given to the deceased. In the meantime, Kishun Ram went inside of his house and came again with a Sabbal and assaulted on head of the deceased. Therefore, it was the prem