In order to convict a person under Section 302 read with Section 34 of the Indian Penal Code, the prosecution must prove that the accused had a common intention to kill the deceased and that the individual acts of each accused were performed in furtherance of that common intention.

JUDGMENT :

1. "Common intention" is not same or similar intention. It presupposes a prior concert and a pre-arranged plan. It follows that there must be a prior meeting of the mind. Several persons can simultaneously attack a man. Each can have the same intention, that is, intention to kill. Each can individually cause a separate fatal blow. Yet, there may not exist a common intention if there was no prior meeting of the mind. In such a case, each would be individually liable for the injuries he causes. None can be vicariously convicted for the act caused by the other. If the prosecution fails to prove that the blow of a particular offender caused murder, he them in their statements before the police. In the circumstances, Sida's statement u/s 342, Code of Criminal Procedure that he was detained in the village school for 7 days and was assaulted severely may not be unfounded. We accordingly exclude his confessional statement (ext. 2) from our consideration.

2. Mr. Mohanty contended that the finding of the learned Sessions Judge that death was caused by the blows of Hari was not supported by the materials on record. As to the factum of murder, the evidence of p.ws.4 and 5 only is relevant. Rest of the prosecution witnesses have not seen that part of the story. Though Hari raised a Barsi to assault Dubei, p.ws.4 and 5 have not seen him giving any stroke with the Barsi. P.ws.4 and 5 did not say that the lathi strokes of Hari caused the death. In the absence of any evidence that the assault by Hari caused the death of .the deceased, he cannot be convicted u/s 302, Indian Penal Code.

3. The only substantial point, which has been seriously urged before us, is that the Appellants cannot be convicted u/s 30234, Indian Penal Code. To appreciate this contention, it is necessary to examine the medical evidence. Postmortem examination was done by Dr. M.N. Hatial as per postmortem report (ext. 5). Dr. Hatial died before the sessions trial. The post-mortem report was proved and exhibited by Dr. Maheswar Panda (p.w.6). In Hadi Krisani v. The State 31 C.L.T. 823, a Bench of this Court held that the post-mortem report was admissible in evidence when the doctor was dead. The legal position as summarised thus -

If the doctor is available for examination in Court, the injury report or the post-mortem report given by him is not substantive evidence and is inadmissible unless he is examined. It can be used for corroboration or for refreshing memory or contradiction of his evidence in Court. If, however, the doctor is dead or is not available for examination in Court, under the circumstances mentioned in Section 32 (Evidence Act), the injury report or the post-mortem report is admissible and relevant. What weight it would carry with a Court of fact is altogether a different question. Its probative value depends on the facts and circumstances of each case.

On the authority of the aforesaid decision, we hold that ext. 5 is admissible and relevant.

4. Ext. 5 shows the following external and internal injuries:

External injuries:

(1) One bruise 3" x 2" on front and lower (torn) of, left fore-arm.

(2) One bruise 4" x 3" on left chest below axilla.

(3) One bruise 5" x 4" on upper part of (torn) chest (front).

(4) One incised wound 21/4" x 3/4" x deep (torn) bone on left zygomatic and (torn) region.

(5) One bruise 31/2' x 11/2" on rt. cheek.

(6) One incised wound 2" x 1/2" x bone deep on left temporal region.

(7) One incised wound 13/4" x 1/2" x bone deep on parietal region.

(8) 6 incised wounds 1/2" x 1/4" x skin deep to 11/2" x 1/4" x skin deep behind the left ear. Internal injuries on dissection:

Corresponding to injury Nos. 2 and 3.

Left 3rd and 4th ribs were broken on anterior axillary line.-

Left 5th, 6th and 7th ribs were broken at costochondral junction.

left 5th to 10th on mid axillary line.

Left pleura torn in front and left side, and left pleural cavity contains A.M. blood clots and blood about 8 z.

Corresponding to injury No. 6:

Left temporo-parietal suture is loosen