The central legal point established in the judgment is the requirement to establish common intention and individual participation in the commission of the offense, as interpreted under Section 302 and Section 34 of the Indian Penal Code.

S.S. Jha, J.

1. Appellants are convicted for an offence under Section 302, I.P.C.

2. According to the prosecution, on 19.11.91 at about 7.00 O'clock in the morning Thakurdas, Sarpanch was returning from the field of Lakhansingh after attending the call of nature; then he saw that appellants Santoshsingh, Karansingh and Mehthansingh had surrounded his brother Meghsingh. Appellant Santoshsingh said that he has murdered his brother Radheshyam and thrown his body in the well of Darua Gadariya; now we will finish you. Accused Santoshsingh gave a farsa blow to Meghsingh which hit him on right mandible; accused Mehthansingh gave a farsa blow which hit Meghsingh on the right temporal region. Accused Karansingh gave another blow which hit him on the upper portion of the head and Meghsingh fell on the ground. Then, Karansingh gave two blows by axe on the head of Meghsingh. In between Complainant Thakurdas's father Dhansingh, Phupha Birje, Uttam Jamadar and other villagers reached the spot and accused ran away.

3. Prosecution examined as many as 14 witnesses and 30 documents were exhibited. No evidence in defence was filed.

4. P.W.13 Dr. (Smt.) Santosh Dixit has performed autopsy of the deceased Meghsingh. She has written post mortem report Ex.P/28. Deceased has suffered following injuries :--

(1) Big incised wound on right side of neck 7 Inches big, 4 Inches wide and 3 Inches depth from right angle of mandible to right temporal bone-External ear is cut in between.

(2) Right carotid cut. Second incised wound on the left parietal bone 3" big x 1" width x 1" depth, bone cut below Brain matter seen.

5. Learned counsel for the appellants submitted that the deceased has suffered only two injuries; whereas eye-witnesses have stated that injuries were caused by appellants Santoshsingh, Karansingh and Mehthansingh. Specific allegation of assault by Santoshsingh and Karansingh is levied, but allegation of assault by Mehthansingh is not levied. Even otherwise, deceased had suffered two injuries only, therefore, conviction of appellant without the aid of Section 34 of Section 302 I.P.C. is bad in law. The trial Court has not considered impact of each injury. Learned counsel further submitted that P.W. 13 Dr. Smt. Santosh Dixit has deposed that the death was caused on account of cumulative effect of injuries. Thus, in the absence of evidence that each injury was sufficient to cause death, conviction under Section 302 simplicitor is bad in law and deserves to be set aside. Learned counsel further submitted that in the absence of any evidence on record about the murder of the brother of the deceased Radheshyam, appellants' conviction is without evidence on record and deserves to be set aside.

6. In the present case, the trial Court has framed the charges against the appellants for an offence under Section 302 read with Section 34 I.P.C. The language of charges is similar and the appellants were charged for the murder of Radheshyam under Section 302 I.P.C. simplicitor and for the murder of Meghsingh under Section 302 read with Section 34 I.P.C.

7. Learned counsel for appellants then submitted that considering the facts of the case and the evidence on record, unless the act of each assailant under Section 302 I.P.C. is not specified, conviction of appellants is bad in law.

8. The question involved in the ease is whether after the charges were framed under Section 302 read with Section 34 I.P.C., conviction could be only under Section 302 I.P.C.; omission to convict the appellants with the aid of Section 34 I.P.C. is fatal to the prosecution and whether the Appellate Court has power to convict the appellants with the aid of Section 34 I.P.C.?

9. Before entering into the controversy, we shall examine the evidence on record.

10. P.W.1 Thakurdas has deposed that deceased Meghsingh was surrounded by Santoshsingh, Mehthansingh and Karansingh. Santoshsingh gave him a blow by farsa which hit him on right mandible; Mehthansingh gave a farsa blow which cut his ear a