In order to convict persons vicariously under Section 34, I. P. C., it is not necessary to prove that each and every one of them had indulged in overt acts. Therefore, there must be material to show that the overt act of one or more of the accused was done in furtherance of common intention.

R. K. DASH, J.

( 1 ) CONVICTION of the appellants (hereinafter referred to as 'the accused') under section 304/34, I. P. C. and consequential sentence of rigorous imprisonment for six years awarded by the learned Sessions Judge, Keonjhar, in S. T. Case No. 1 of 1994 has been assailed in the present appeal.

( 2 ) ACCORDING to the prosecution, on 2nd August, 1993 Kusum Munda (hereinafter referred to as 'the deceased') had been to the house of accused Narahari Naik to realise a sum of Rs. 10/- towards a cost of a chicken purchased by him prior to the occurrence. The deceased returned empty handed as accused Narahari did not pay him the money. On that day evening all the accused persons being armed with lathis and cycle chain came to the house of the deceased and of them accused Narahari dragged him upto a path and thereafter all the accused persons assaulted him with the weapons held by them and caused injuries on his person. Budhuni Munda, P. W. 5, wife of the deceased came running to the spot, administered water to the deceased but by then the deceased was dead. She then went to the house of her brother Ranga Munda, P. W. 3 and informed him about the incident. As it was late in the night next day Ranga Munda, P. W. 3 and his wife Bala Munda, P. W. 4 went to Joda police station and lodged F. I. R. , Ext. 6 whereupon a case under section 302/34, I. P. C. was registered and investigation commenced, on completion whereof charge-sheet was laid against all the accused persons to stand their trial for the aforesaid offence.

( 3 ) THE accused persons denied the prosecution case and pleaded, inter alia, that the deceased assaulted the accused persons with axe and while running away fell down on a stoney surface and sustained injuries.

( 4 ) THE prosecution in order to bring home the charge to the accused persons examined six witnesses including two doctors and the investigating officer and brought in evidence the F. I. R. , post-mortem report, chemical examination report, seizure list, etc. The accused persons in support of their defence plea did not lead any evidence. The learned Sessions Judge on an appraisal of the evidence accepted the prosecution case that on the date of occurrence the accused persons had assaulted the deceased with lathis and cycle chain and held that since the accused persons had no intention to commit his murder he found them guilty of the offence punishable under section 304, Part I, I. P. C. and consequently convicted and sentenced them as hereinbefore stated.

( 5 ) SHRI S. K. Sarangi learned counsel for accused persons, has challenged the correctness of the findings and ultimate conclusion of guilt recorded by the trial Court on the following grounds : (1) That, P. W. 5, Budhuni Munda being a relation of the deceased was itnerested in the prosecution case, and therefore, learned Sessions Judge should not have accepted and relied upon her testimony for finding the accused persons guilty of the offence without there being corroboration; (2) That, in view of categorical admission of the Investigation Officer, P. W. 6 that accused Narahari had sustained injuries on being assaulted by the deceased, the learned Court below should have held that the incident occurred not in the manner as suggested by the prosecution and consequently extended the benefit of doubt to the accused persons; (3) That, since the defence plea that the deceased sustained injuries while fleeing away after assaulting accused Narahari, finds support from the evidence of the doctor, P. W. 1, learned Court below by applying the principle of preponderance of probability should have held the accused persons not guilty of the charge. (4) That, from the evidence of the attending circumstances it cannot be concluded that there was prior meeting of minds of the accused persons in sharing common intention to do away the deceased, yet the learned Sessions Judge in a slipshot manner and without discussing, the evidence of the prosecution in detail hel