The central legal point established is that in the absence of evidence of common intention to cause death, the accused can be convicted under Section 304 Part II/34, IPC based on their knowledge that the blows given were likely to cause death.

Sunil Kumar Sinha, J.

1. The 9th Additional Sessions Judge (FTC), Raipur, has convicted and sentenced the appellants in Sessions Trial No. 402/2000 by judgment and order dated 28-12-2002. All the appellants have been convicted under Section 302/34, IPC and sentenced to undergo imprisonment for life. In addition to it, appellants Bharat, Shankar and T. Jagannath @ Jagga have also been convicted under Section 323, IPC and sentenced to undergo R.I. for six months, with further direction to run the sentences concurrently. The appellants were charged under Section 302/34, IPC, for committing murder of Harendrapal. They were also charged under Section 307, IPC for attempting life of Balkishan (P.W. 16). Shankar and T. Jagannath @ Jagga were also charged under Section 323, IPC for causing simple injuries to Tara Devi (P.W. 15).

2. The case of the prosecution is that on 28-8-2000 at about 10.30 p.m. Tara Bai (P.W. 15) gave Dehati Nalishi (Exh. P-19) in Mission Hospital, Tilda to ASI, Ram Kumar Vaishnav (P.W. 12) to the effect that on 28-8-2000 at about 9 O'clock they were sleeping in their house. About 10.30 they heard hue and cry of their elder son namely Harendra (since deceased). When she alongwith her husband and daughter Kavita came out from the house, they saw that Harendra was being beaten by Shankar Gond, Jagga Telugu, Motali @ Bhola Gond and Bharat Thakur. They were beating him with Shovel, wooden-club and stones. When they tried to intervene, the appellants also assaulted her (Tara Bai) and her husband Balkishan. Thereafter, Dehati Merg intimation, Exh. P-20 was recorded, based on which, First Information Report, Exh. P-21 was recorded. The information regarding death of Harendrapal was also recorded under Exh. P-22. The Investigating Officer gave notice to the Panchas under Exh. P-25, prepared inquest on the body of the deceased under Exh. P-26. Plain soil, blood stained soil alongwith a piece of brass chain, one iron chain and a blood stained boulder were seized from the place of occurrence vide Exh. P-26. The site plan was prepared under Exh. P-7 by ASI, Satyendra Pandey (P.W. 18). Another site plan was prepared under Exh. P-13 by Patwari. The dying declaration of Balkishan was recorded under Exh. P-12. After taking accused persons into custody, memorandum of accused Shankar was recorded under Exh. P-1, based on which, shovel and its broken wooden handle were seized under Exh. P-2. Memorandum of accused T. Jagannath was recorded under Exh. P-3 based on which a club was seized under Exh. P-4, memorandum of Bholanath @ Motali was recorded under Exh. P-5, based on which another club was seized under Exh. P-6. The seized articles were sent to Forensic Science Laboratory, Raipur, from where report Exh. P-38 was received. According to the FSL report, blood was found on almost every article except on two samples of plain soil and the wooden handle of the shovel, i.e., articles B, D & I. The bed-head ticket of Balkishan Exh. P-32 was seized. His examination report dated 10-10-2000 (Exh. P-35) from Agrasen Hospital, Raipur was collected. His X-Ray report of the same hospital dated 10-10-2000 was also collected vide Exh. P-36, according to which, there were fractures on his left scapula bone and left wrist. His other X-Ray report dated 6-11-2000 (Exh. P-37) was also collected, according to which, his 2-5 ribs of the right side were fractured. The body of the deceased was sent for post-mortem examination of Primary Health Center, Tilda, under Exh. P-14. The post-mortem was conducted by Dr. A.A. Siddiqui (P.W. 20), who prepared his report Exh. P-34 in which he noticed the following external injuries:

(i) One lacerated wound 3 cms x 1 cm x bone deep, 12 cms above the right ear;

(ii) One lacerated wound 5 cms x 1 cm x bone deep over scalp of the head situated at 2 cm away and towards left from injury No. 1;

(iii) One lacerated wound over right auricle of pinna upper 1/3rd region 2.5 cms x 5 cm x whole thickness;

(iv) One contusion ov