The judgment established the principles of common intention under Sections 34 and 149, IPC and the liability for constructive criminal activity.

R. K. DASH, J.

( 1 ) THE appellants were charged under Sections 302 and 201 read with Section 34, IPC for having committed murder by intentionally causing death of Dikesan Digal (hereinafter referred to as the 'deceased') in furtherance of their common intention and thereafter buried the dead body of the deceased in order to screen themselves from legal punishment. Upon trial, learned Sessions Judge, Phulbani found the appellants guilty of the charges and. consequently convicted and sentenced them to suffer imprisonment for life for the offence under Section 302 and rigorous imprisonment for five years for the offence under Section 201, IPC. It was ordered that both the sentences shall run concurrently.

( 2 ) PROSECUTION case, briefly stated, was that on 29-7-90 at about 10 a. m. while the inmates of appellant Khadal Digal were absent, the deceased entered inside his house, stole the food staff and consumed the same. Meanwhile appellant Khadal Digal came in side and at his sight, deceased started fleeing away, but both the appellants chased and intercepted him near the house of Zora Pradhan, P. W. 6 and assaulted him. Thereafter they brought him to the house of appellant Khadal Digal and assaulted him again, as a result he succumbed to his injuries. The appellants then removed the dead body and buried inside the forest. On a report being lodged by Raman Parichha P. W. 2, Niranjan Tripathy, Officer-in-charge, Daringibadi P. S. (P. W. 11) registered a case and proceeded with investigation. He arrested both the appellants, who while in custody led P. W. 11 and the witnesses and pointed out the place where the dead body of the deceased had been buried. Thereupon the dead body was exhumed and sent for postmortem examination. On completion of investigation, P. W. 11 placed charge-sheet against both the appellants to stand their trial under Sections 302 and 201 read with Section 34, IPC.

( 3 ) THE plea of the appellants was denial simpliciter.

( 4 ) THE prosecution in order to bring home the charges to the appellants examined 11 witnesses of whom P. W. 1 is the brother of the deceased, P. W. 2 is the informant, P. W. 3 is the autopsy doctor P. Ws. 4 and 5 are witnesses leading to the alleged discovery of the dead body of the deceased, P. Ws. 6, 7 and 8 are the alleged eye-witnesses to the incident, P. W. 9 is the constable who carried the dead body for postmortem examination, P. W. 10 is the A. S. I. attached to Rest House of Daringibadi P. S. who received the F. I. R. and forwarded the same to the police station for at registration of a case and P. W. 11 is the Investigating Officer. Learned trial Judge mainly relying upon the eye-witness account of P. Ws. 6, or 7 and R and the medical evidence of the doctor P. W. 2, convicted and sentenced the appellants as hereinbefore stated. Learned counsel Shri L. Pradhan appearing for the appellants while challenging the impugned judgment and order, raised the following contentions :- (1) That there was long delay in lodging of the F. I. R. and the same having not been satisfactorily explained, serious doubt casts on the truth of the prosecution. (2) That the evidence of eye-witnesses, P. Ws. 6, 7 and 8 being not cogent and convincing, it would be unsafe to rely upon the same to hold the appellants guilty of the offence. (3) That from the facts and circumstances of the case as projected by the prosecution it is not proved beyond doubt the appellants had common intention to commit murder of the deceased and in absence of any evidence to show as to who gave the fatal blow, both the appellants cannot be held guilty of murder punishable under Section 302 with the aid of Section 34, IPC.

( 5 ) THE informant P. W. 2 who happens to be the brother-in-law of the deceased was not an eye-witness to the occurrence. The prosecution story as stated in the F. I. R. (Ext. 1) is that P. W. 2 had been to the house of the appellant Khadal Digal where his son, Biswanath narrated that the deceased had been do