Convictions under Section 34 IPC require evidence of common intention and participation, both inadequately established in this case.

CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH and HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA)

5 24-12-2025 Heard the learned Senior counsel for the appellants, Mr. Y.C. Verma, learned APP for the State, Mr.Sujit Kumar Singh and learned counsel for the informant, Mr. Amrit Abhijat.

2. The aforesaid appeal has been preferred against the judgment of conviction and order of sentence dated 05.03.2025 and 06.03.2025 respectively, passed by the Ld. District and Additional Sessions Judge-IV, Supaul in Sessions Trial No. 123 of 2021(arising out of Balua Bazar (Lalitgram O.P.) P.S. Case No. 85/2020) whereby and whereunder the appellants have been convicted under Sections 341 , 323, 307, 302/34 of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’) and by the order of sentence dated 06-03-2025, they have been sentenced as enumerated hereunder:-

have been sentenced as enumerated hereunder:-

have been sentenced as enumerated hereunder:-

have been sentenced as enumerated hereunder:-

have been sentenced as enumerated hereunder:-

have been sentenced as enumerated hereunder:-

have been sentenced as enumerated hereunder:-

have been sentenced as enumerated hereunder:-

All the abovementioned sentences have been directed to run concurrently.

3. The short facts of the case, according to the fardbeyan of the Informant Badami Das (P.W. 4) recorded on 28.11.2020 at 04.50 P.M., is that on the same day, at around 12:30 P.M. he along with his son Budhu Das (now Deceased) came to his farm/agricultural land to construct a ridge/boundary, whereafter, at about 1 P.M., his cousin brothers Badri Das and Sadri Das (the ‘appellants’) along with his nephew Anil Das came armed with spade and started hurling abuses at the Informant and his son questioning as to why the ridge/boundary had been extended. When Informant’s son, Budhu Das (now Deceased) objected the hurling of abuses by the appellants, they along with Anil Das indulged in assault and Anil Das inflicted a spade blow on the head and neck of the Informant’s son Budhu Das, causing him serious injury and by the time the informant along with his cousin brother Ramdev Das tried to catch hold of the accused persons they fled away along with the spade. It has been alleged that the Informant’s son Budhu Das died on the spot due to excessive bleeding from his neck and head. On the basis of the aforementioned fardbeyan of the Informant, the Police registered an F.I.R. bearing Balua Bazar (Lalitgram O.P.) P.S. Case No. 85/2020 on 28.11.2020 under Sections 302 /34 of the I.P.C against the present appellants and one co-accused Anil Das.

4. The record of this appeal has been placed before this Court to consider the prayer of the appellants for suspension of their sentence and release on bail during the pendency of the appeal.

5. Learned Senior counsel for the appellants submits at the outset, that as a matter of fact, no one is an eye witness to the alleged incident except the informant (PW-4) and out of the six non-official witnesses examined by the prosecution, two witnesses being PW-5, Ram Dev Das and PW- 6, Hari Dev Das have not supported the case of the prosecution and have been declared hostile. It has further been submitted that all the prosecution’s witnesses are relatives of the informant and no independent witness has been examined although the place of occurrence is said to be the agricultural land and time of occurrence has been alleged to be 1:00 pm, which would be the hour of broad day light. Further submission on behalf of the appellants relates to the fact that there are major contradictions in the statements of the prosecution’s witnesses with regard to the manner of occurrence, inasmuch as while in the First Information Report there is a direct allegation upon the co- accused, namely Anil Das of having inflicted spade blow on the head and neck of the inf