JUDGMENT By Court.-AII the appellants stand convicted under sections 302/34 of the Indian Penal Code and have been sentenced to undergo life imprisonment. 2. The prosecution case, as per the fardbeyan (Ext. 3) of Jatan Baitha (PW 3) recorded on 6.2.1992 at 9.30' hours near the house of Peter Kujur (One of the appellants) at Shea Durga lane is as follows: On that date at about 9.00 A.M. Usha Kujur the daughter of Mikal Kujur, who is the neighbour of the informant (P.W 3) came to the house of the informant and stated to Ramchandra Baitha, @ Chingri who was the son of the informant now deceased that her brother Peter Kujur was calling him in his house. She also added to take price of bamboo pieces and small beams. On this the son of the informant started going along with Usha Kujur while he was in process of washing his mouth. On this informant and his youngest son Bablu Baitha (PW 5) stopped Chingri and asked him not to go with Usha Kujur, but Usha Kujur pursuaded him that as the dispute was over and they are living like good neighbours, so she was taking, him (Chingadi) for taking tea. Chingri @ Ramchandra Baitha followed Usha to her house. In the meantime Bablu Kumar Baitha (PW 5) and the informant (PW 3) remained in the field washing their mouth. but their faces was towards the house of Peter Kujur. All of a sudden, Peter Kujur, dressed in civil shirt and Khakhi pant keeping an iron Oabli in his hand came out of his house in his courtyard, where son of the informant had already reached and caught hold of Chingri. By that time Munni Kujur (one of the appellants), Usha Kujur and Shree Man Nayak appellant (who is now dead), all residents of Shea Durga lane, caught hold of Chingri and tied his hands from behind. Seeing this the Informant and his son (Bablu Kumar Baitha) raised hulla of 'Bachao Bachao', on which the male and female living nearby, stared gathering. Seeing the crowd Peter rushed towards the crowd to cause them hurt with Oabli in his hand then the crowd withdrew from there and stood in the field at a little distance. Seeing this the Informant and his son (Bablu Kumar Baitha) raised hulla of 'Bachao Bachao', on which the male and female living nearby, stared gathering. Seeing the crowd Peter rushed towards the crowd to cause them hurt with Oabli in his hand then the crowd withdrew from there and stood in the field at a little distance. Then Peter again went near Chingri and asked Munni Kujur, Usha Kujur and Shree Man Nayak loudly to move away and as soon as they went back Peter started assaulting Chingri by Dabli that he had kept in his hand on his head and neck from sharp portion of the Dabli and Chingri fell down on the ground and became restless. The informant and others kept raising hulla from some distance but Peter did not flee away. Thereafter, Peter Kujur keeping his Dabli in his own hand remained standing in the Angan and Shreeman Nayak brought cut a sword and started patrolling alongwith Usha Kujur outside the Angan. Seeing this the informant proceeded towards Sukhdeonagar police station in order to inform the police about the occurrence but in the meantime he saw the police coming and he came back with the police officials to the place where his fardbeyan was recorded and where he found his son was lying dead in the Angan. The cause of occurrence, according to the fardbeyan is that there is a land dispute against they filed an appeal in the Court. He claimed that all the appellants with common intention have committed murder of his son. This fardbeyan is marked as Ext. 3 in this case, on the basis of which a formal F.I.R. was drawn and, thereafter, the case was investigated and the charge sheet was submitted. At the time of framing of charge, the only plea taken by the accused persons was that they were not guilty. 3. The defence version of the appellant, Peter Kujur, is that the appellant Peter Kujur, who was an employee of C.I.S.F. and was posted in H.E.C., was suffering from psychiatric from before the occurrence and in course of psychiatric the occurrence, if at all, it was said to be committed was committed. 3. The defence version of the appellant, Peter Kujur, is that the appellant Peter Kujur, who was an employee of C.I.S.F. and was posted in H.E.C., was suffering from psychiatric from before the occurrence and in course of psychiatric the occurrence, if at all, it was said to be committed was committed. The defence of these other appellants in the appellate Court is that since Peter Kujur himself was insahe and if he committed the offence in that State of in sanity then in that circumstances any sharing of intention on the part of the other two accused i.e. Shreeman Nayak and Munni Kujur did not arise. It is relevant to mention here that Shreeman Nayak, who was appellant no. 1 in Cr. Appeal No. 42 of 1995 (R) is dead and he died during the pendency of this appeal, which is evident from the letter no. 907 dated 5.4.2002 sent by the Superintendent of Lok-Nayak Jaiprakash Narayan Central Jail, Hazaribagh, which was obtained by the Registry of this Court after a submission has been made by the learned counsel for the defence on behalf of Shreeman Nayak that he was already dead, that letter was produced by the Registry and thus, it is held that the appeal of Shreeman Nayak has already abated. 4. It is also to be made clear here that in the Court below also this ground of insanity on the part of appellant Peter Kujur has been taken and was sought to be proved by the defence and it was also argued before the learned Court below with which the learned trial Court did not agree. Here in appeal, the prosecution case has been challenged mainly on three grounds: (1) That all the prosecution witnesses are not the eye witnesses of the alleged occurrence. (2) Peter Kujur was suffering from lunacy since before the occurrence and at the relevant time of occurrence and the learned Court erred in not giving the benefit of section 84 of the LPC. (3) In respect of appellant Munni Kujur it is stated that as the main appellant i.e. Peter Kujur was himself suffering from psychiatry at the relevant time of occurrence, the question of sharing of common intention could not have arisen and, therefore, the charges under Section 34 of the Indian Penal Code against Munni Kujur is not made out. 5. (3) In respect of appellant Munni Kujur it is stated that as the main appellant i.e. Peter Kujur was himself suffering from psychiatry at the relevant time of occurrence, the question of sharing of common intention could not have arisen and, therefore, the charges under Section 34 of the Indian Penal Code against Munni Kujur is not made out. 5. We wish to take up the defence version one by one. In support of its case, the prosecution, in all, examined 10 witnesses; Out of 10 witnesses : (i) P.W. 10 : Buchu Uraon has been declared hostile and in his evidence only this much is admitted that Chingri has died. Thus, this witness has denied his knowledge regarding the cause of his (Chingri's) death and regarding the manner in which he was murdered or the person who had murdered him. (ii) P.W. 1 is the mother of the deceased. She is a maid servant. She is by profession a maid servant. She has claimed to be an eye witness to the occurrence, which has been seriously contested by the defence. The defence has pointed out certain discrepancies in her evidence by referring to paragraph 6, where she had said that she went near the dead body of her son and, thereafter, that the body was covered by cloth. In paragraph 10 she could not describe the type of weapon that was actually used. Even in the F.I.R. her name has not been figured as a person either present alongwith the informant or inside the house. In paragraph 10 of her evidence she has been confronted with her statement made before the Court and made before the I.O. and the I.O. (PW. 9) vide paragraph 17 has stated that she had not stated before him that at about 9 A.M. she was in her house and at that time Ramchandra Baitha was washing his mouth outside and Usha Kujur had come and taken him to the house of Peter and the hands of Chingri were tied. Thus, it appears that this witness in her earlier statement did not depose as the eye witness of the occurrence. Thus, it appears that this witness in her earlier statement did not depose as the eye witness of the occurrence. It appears that she being a maid servant, at the time of occurrence i.e. 9 A.M. normally she is not expected in her house because of profession to which she was attached, required her to be somewhere else, where she was working as maid servant, so her evidence is only reliable on two points i.e. she came back and saw the dead body of her son. (iii) PW 2, he is the elder son of the informant. He works in a Bank. Naturally a person who works in a Bank used to go to the office at 10 A.M. and thereafter. Therefore, his presence at the time of occurrence in his house does not appear to be improbable. He gave his statement to the I.O. and in paragraph 18(i), the P.W 9, I.O. has stated that this witness has stated before the I.O. that "Kafi Bakjhak hone laga to Munni Kujur Bola ki ise rasi se bandho". In his evidence this witness has stated vide paragraph 2 that he was at that time in his house and when he heard that Munni Kujur and Shreeman Nayak were tying the hands of his brother he went to the house of Peter Kujur and saw that Peter came out of his house taking a Daubli and assaulted Chingri and fell him down and on this point there is no contradiction in his statement before the Court and the statement made before the 1.0.. Thus, it cannot be said that this witness is not an eye witness of the occurrence simply on the ground of certain minor development in his statement before the Court which is quite natural. This witness could be present at the P.O. as it has not been shaken and his statement is also not disbelieved. (iv) PW 3 is the informant. He was given the description of the occurrence as has been given by him in the fardbeyan. Then a question has been raised whether this witness could have seen the occurrence from a distance where he was standing, because in paragraph 5 of his cross-examination he has stated that there is a distance of more than 30 feet between his house and the house of Peter Kujur. Then a question has been raised whether this witness could have seen the occurrence from a distance where he was standing, because in paragraph 5 of his cross-examination he has stated that there is a distance of more than 30 feet between his house and the house of Peter Kujur. In the evidence of PW 1 it has come that there are 50 to 60 houses at the place of occurrence. This matter has been clarified by the I.O. in his evidence. I.O. vide paragraph 12 said that there is a distance of 20-25 yards between the house of the informant and the house of appellant Peter Kujur. This distance is not a such big distance from where a thing cannot be seen particularly when there is no evidence on record that there is something in between these two places to prevent the informant from his house to see. So, this witness is an eye witness of the occurrence. In paragraph 10 his attention has been drawn to his earlier statement made before the police. In paragraph 18(ii) the I.O. has said that this witness (P.W. 3) has stated before him that when he asked Peter not to do so then Peter was hurling Katari and he has also stated before the I.O. that Shreeman carrying sword in his hand was patrolling, but he has not stated that he was patrolling at the gate. This difference between his statement made before the Court and made before the I.O. is not material contradiction rather, in our opinion, even there is no minor contradiction, therefore, there is no reason to disbelieve his evidence. (v) P.W. 4 Bishnu Baitha is a witness of the seizure of Dabli which was seized from the right hand of the appellant Peter Kujur. He has stated that in that Dabli there were blood stain. The seizure was made in his presence and he has proved the seizure list (Ext. 1) on which there is a signature of Sameshwar Ram Baitha. He is also a witness to the inquest and he has stated that he has seen both the hands of the deceased were tied from behind vide paragraph-2. He has not gone to the police station. 1) on which there is a signature of Sameshwar Ram Baitha. He is also a witness to the inquest and he has stated that he has seen both the hands of the deceased were tied from behind vide paragraph-2. He has not gone to the police station. Though he has admitted in his evidence that he had not read the contents written in the inquest report but by this alone his evidence as a seizure witness or witness of the inquest cannot be doubtful. Of course the defence has pointed out that there are cuttings on the seizure list regarding the time of seizure, which was also, in fact, taken note of by the court below on the deposition of P.W 4. In the inquest report the time of inquest is 10.25 A.M. There is no cutting mark of overwriting in Ext. 7 and in the seizure list Ext. 6. There is a description of seizure of one Daubli from the right hand of accused Peter which there is blood stain of deceased Ramchandra- Baitha, two pairs of Habai Chapals, one Ta/bar, blood stained sword and thereafter something has been cut and it cannot be read, one silver chain and one blood stained rope. This witness made his signature on the seizure list. It is true that there is deep cutting or interpolation, even if this part is excluded, then this does not mean that the whole seizure doubtful paper. (vi) PW 5 is the younger brother of the deceased and youngest son of the informant. On the date of his deposition i.e. in the year 1993 he was aged 12 years. Thus on the alleged date of occurrence he was about 11 years. The Court below examined him and asked certain question and on being satisfied has given a certificate that the witness was quite intelligent and understands the things. The witness is competent to give evidence. The learned counsel appearing on behalf of the appellant Munni Kujur while dealing with his evidence said that this witness does not know the capital of Bihar and by saying this he wanted to impress the Court that he does not understand that what he has stated in the Court. The witness is competent to give evidence. The learned counsel appearing on behalf of the appellant Munni Kujur while dealing with his evidence said that this witness does not know the capital of Bihar and by saying this he wanted to impress the Court that he does not understand that what he has stated in the Court. But on considering his total evidence that he has given in the Court or before the Police it does not appear that this witness was not understanding them and, therefore, by giving no correct answer to the question which depends upon the educational ability. it cannot be said that he is not a competent witness. There was nothing to show that he was a tutored witness. His presence at the P.O. was corroborated by the statement given in the fardbeyan as also by PW 5 and P.W. 3 and no contradiction has been brought in his evidence from the statement made by him. This witness has stated the same thing which has been stated by other witnesses whose evidence has been discussed above. Thus, he has stated that Munni Kujur and Shreeman Nayak tied both the hands of Ramchandra Baitha from behind and Peter came out with dawli in his hand and started giving dawli blows on his (Chingri) head and neck and his brother was found dead there. This witness has not stated that Shreeman Nayak was patrolling by taking sword. In his cross examination nothing has come to contradict his evidence given in examination-in-chief. (vii) P.W. 6 is the Doctor who conducted postmortem on the dead body of Ramchandra Baitha on 6.2.1992 at 16 hours and found the following injuries on the person of the deceased : 1. Incised wound : 1 . 7 x 2 cm x bone deep left perital eminence cutting the under lying bone. 2. 4 x 1 C M. x bone deep left perital region of head cutting the underlying bone. 3. 71/2 x 2 cm x bone deep left frontal region of head situated entire posteriorily cutting the underlying bone and brain matter. 4. 7 x 1 x 1 cm on the back of neck lower part situated transverselly. 5. 11 x 1 c.m. x bone deep on the back of neck situated transversaly cutting the soft tissues, 5th cervical vertebra, spinal cord, oesophagus, blood vessels. 6. 4. 7 x 1 x 1 cm on the back of neck lower part situated transverselly. 5. 11 x 1 c.m. x bone deep on the back of neck situated transversaly cutting the soft tissues, 5th cervical vertebra, spinal cord, oesophagus, blood vessels. 6. 10 x 3 cm x bone deep on the back of neck 1 % cm above the proceeding injury cutting the soft tissue and 4th cervical vertebra partially. 7. 12 x 2 x 2% C.M. on the let lateral neck and adjoining left chick cut ting the left side of mandible bone partially 8. 3 x 1 x 1 c.m. right lateral neck upper part. (viii) In his cross-examination vide paragraph 7, the Doctor said that he cannot say the type of weapon used for causing injuries nos. 5, 6 and 7. Such injuries may be caused by Talwar. Injuries no. 7, 5 and 6 cannot be caused by using the weapon in such a way to put mark of injuries. Injuries no. 7, 5 and 6 may be caused by curved weapon as well as by weapon which is not carved one. The deepness of the injuries may depend on the force applied while using the weapon. The learned counsel appearing for the appellant Peter Kujur by referring paragraphs 9 and 10 of the cross-examination of the Doctor argued that the injuries no. 2 and 8 are caused by similar type of weapon, whereas injury nos. 5 and 6 may be caused by similar type of weapon and injury no. 7 may be possible by different weapon. Thus the defence wants to create a doubt regarding the weapons used. The defence, thus, argued that there are two different set of injuries and they cannot be attributed by Dawli and Dawli again and in the circumstance it goes to prove that the manner of occurrence is doubtful. Here, we examined this aspect of matter very cautiously and found that this Doctor was examined on 27.9.1993 first and after six months he was again cross-examined on 19.3.1994 and he gave this evidence, which is inconsistent with his statement given earlier. (ix) PW 7 has been declared hostile and PW 8 is a witness who said that the police had not made any paper in his presence but he identified his signature as Ext. 1/2 on inquest report. (ix) PW 7 has been declared hostile and PW 8 is a witness who said that the police had not made any paper in his presence but he identified his signature as Ext. 1/2 on inquest report. (x) P.W 9 is the I.O., he has stated in his evidence at paragraph 4 that he found both the hands of the dead body tied on the back. There was enough blood on the ground and some drop of the blood were also found on the wall• of the house. Be-sides that, on the clothes of Peter Kujur some drops of the blood were found. Again in paragraph 5 he said that when he was preparing inquest report of the dead body he had given some finding that the hands of the deceased were tied from behind. In paragraph 11 he again said the same thing but he said that he opened the rope from which the hands were tied but he did not say anything about the blood stain on the rope. With regard to the accused he said that all the accused were standing near the dead body and he arrested all the three accused persons at that place and there was no inconvenience received by him in course of arresting of the accused persons, though at the alleged time of occurrence accused Peter Kujur was some violent. "Peter Kujur ke Upar Khoon Sabar Tha". He had not written in the diary whether Peter Kujur was standing at the place of was running. He has admitted that he had not recorded in the diary the time of the arrest of Petter Kujur. He has also produced the Exts. that were seized in this case i.e. Dawli and Talwar, material Exts. I and II and also produced and proved Hawai Chapal, material Ext. II and the blood stain on the Hawai Chappal, material Ext. IV. A suggestion was given that there is no mark of Malkhana on the material Exts., which was accepted by the I.O. He has admitted that he has not given mark regarding the material Exts. but marks the Exhibits have are of Malkhana. The evidence of I.O., thus, does not suffer from material discrepancy. IV. A suggestion was given that there is no mark of Malkhana on the material Exts., which was accepted by the I.O. He has admitted that he has not given mark regarding the material Exts. but marks the Exhibits have are of Malkhana. The evidence of I.O., thus, does not suffer from material discrepancy. An argument was made before this Court that the fardbeyan suffers from some discrepancies because it does not appear from the fardbeyan that as to how the I.O. had come to the place of occurrence and if I.O. had already received information prior to coming to the place of occurrence then fardbeyan was not recorded prior to his coming to the place of occurrence. In this context it appears that in the Court below station diary entry was produced. In the station diary entry vide Sanha diary no. 136 at 9 A.M. there is an entry that some unknown person had informed telephonically that near Ram Bilash Petrol Pump some one had been killed and Sanha Entry was made to this effect and the maker of the Sanha Diary Entry who is the I.O. of the case and the officer incharge of Sukhdeonagar police had proceeded towards the P.O. The Entry No. 136 gives a detail about the return of the party which had gone to the P.O. They had brought Peter Kujur, Munni KUJur and Shreeman Nayak and Usha Kujur under arrest. This fact does not dispute the going of the I.O. towards the P.O. and meeting of the informant on the way and. therefore, recording of the fardbeyan near the house of Peter Kujur, thus, does not create any suspicion as alleged by the learned counsel for the defence. Thus it is held that from the evidence discussed above, it transpires that the witnesses no. 2, 3, 4 and 5 are eye witness of the alleged occurrence and there is no reason to hold that they are not the eye witness to the alleged occurrence, considering the time of occurrence, place of occurrence, the distance between the place of occurrence and the place where these witnesses were standing. The manner of occurrence and the place of occurrence have also been proved and these have been corroborated by the earlier statement made in the fardbeyan by the informant also made by the I.O. while producing the material exhibits in this case. The manner of occurrence and the place of occurrence have also been proved and these have been corroborated by the earlier statement made in the fardbeyan by the informant also made by the I.O. while producing the material exhibits in this case. Thus, following facts which are relevant are by now proved: (1) Usha Kujur called out or latter persuaded Chingri to go to the house of Peter. (2) There was certain land dispute between the deceased family and Peter. (3) Munni Kujur and Shreeman Nayak had tied the hands of the deceased by rope on his back. (4) Peter had assaulted him by Dawli. (5) Shreeman Nayak was patrolling with a sword in his hand outside the courtyard. (6) The accused persons were arrested on the spot. (7) The dead body was seized from that place of occurrence alongwith other material exhibits of this case. 6. The most important question now arises is whether Peter Kujur on the alleged date of occurrence was insane and then whether he will be entitled to get benefit of Section 84 of the Indian Penal Code. Section 84 of the I.P.C. is a general Rule of Criminal liability and then the person who claims benefit has to prove the heavy onus in order to show that he comes under that Section. From the record, it is found that at the time of framing of charges no such plea was taken by the accused. Moreso, by Peter Kujur that at the alleged time of occurrence he was under insanity. The matter was enquired under section 329 of the Code of Criminal Procedure on 3.8.1993, but that may not be relevant because that enquiry under section 329 of the Code of Criminal Procedure is simply for the purpose whether the accused is fit to face trial or not due to his inability and the learned trial Court asked a large number of questions from him and the answers that were given by the accused were very reasonable and speaks that he is a reasonable person. So during the course of enquiry or trial this does not appear that appellant Peter Kujur was mentally unsound. So during the course of enquiry or trial this does not appear that appellant Peter Kujur was mentally unsound. The accused was arrested on 6.2.1992 which will appear from the order sheet of the Court and when the accused was produced before the Court of the learned C.J.M., there is no mention that he complained or any body complained that he was suffering from mental disease. There after, a bail petition was filed on behalf a Munni Kujur and Shreeman Nayak and subsequently, on 15.2.1992 a bail petition was filed on behalf of Peter Kujur praying for making an enquiry under section 329/ 329 of the Code of Criminal Procedure. So prior to 15.2.1992 there is no evidence to show that any judicial Court or the police was moved with this prayer that the accused Peter Kujur was insane. Thereafter, of course it appears that when such a petition was filed, the accused was sent to mental hospital. Prior to that what has happened, the defence has tried to show by referring the evidence of D.W. 4, he is Dr. Umesh Narayan Chaudhary. He has stated in his evidence that on 10.12.1991 he has treated Peter Kujur for three months for neurotic depression. In his cross-examination he has stated that he examined Peter Kujur as his private patient at this residence and had found that Peter is a patient of depression and on that basis he treated him. He has admitted that he had not maintained any register of his private patient, but he gives prescription to the patients whom he treated and then he prescribes medicines on prescriptions. He does not say as to how many times he treated Peter Kujur. He has said that one lady had brought him to his clinic. Exts. A., Band C are the certificates and prescriptions issued by the Mental Hospital, Ranchi, which are dated 14.7.1992. No prescription allegedly issued by P.W. 4 has been produced and proved behalf of the defence. It was the duty of the defence to prove this fact positively in support of the fact that the appellant Peter Kujur was suffering from mental disease from before the date of occurrence and it could have been proved on the basis of the prescription of D.W. 4, who allegedly issued the same in the year 1991. It was the duty of the defence to prove this fact positively in support of the fact that the appellant Peter Kujur was suffering from mental disease from before the date of occurrence and it could have been proved on the basis of the prescription of D.W. 4, who allegedly issued the same in the year 1991. So if actually he is a patient of neurotic depression then in that circumstance, prescription of his long treatment must have been easily available and produced before the trial Court on by the wife of the appellant Peter Kujur, who has been examined in this case as D.W. 5. (i) D.W. 5, the wife of appellant Peter Kujur, has stated that the mental condition of her husband was not good right from the year 1990 and, therefore, she filed a representation in her department for her transfer, but even a copy of the representation or any report from the department concerned has not been produced before the learned trial Court. Therefore, the fact that Peter Kujur was suffering from mental disease from before the alleged occurrence has not been proved by any documentary evidence. Even on the date of occurrence and two days prior to the alleged occurrence this witness was not present in her house rather she was at Khunti and in her house besides her husband there was Munni Kujur. Thus, this witness, who is wife of appellant Peter Kujur did not produce the report of D.W. 4, rather she said in her cross-examination at para-8 that Dr. Upesh had given prescription that had been lost in her house. Thus. whatever reliable evidence has come on record with regard to treatment of accused Peter Kujur are the documents that have been created during the course of investigation and that course was started after 10 days of the alleged occurrence. Even if, it is presumed for the time being and for the sake of argument that earlier he was treated for this mental disease then also the Doctor has not stated the type of mental disease from which he was suffering, rather the evidence goes to show that accused Peter Kujur was suffering from mental depression. Even in the statement recorded under section 313 Cr. PC., the appellant did not say that he was being treated from before the alleged occurrence. 7. Even in the statement recorded under section 313 Cr. PC., the appellant did not say that he was being treated from before the alleged occurrence. 7. The question now arises whether the said man was violent "Peter Kujur Ke Upar Khoon Sawar Tha" as was found by the I.O. at the place of occurrence is true or not. It has come on the record that a crowd had gathered. In that circumstance a person, who had already committed a death, is not expected to run away, rather peculiar circumstance is that one accused Shreeman Nayak started patrolling, so that other person may not come. It is common that if some person, who commits ghastly crime must try to flee away after committing crime and it is argued on behalf of the appellant Peter Kujur that the accused was suffering from lunacy since before the alleged occurrence and, therefore, at the relevant time also he was suffering from that disease and therefore he did not try to run away after the crime. The learned counsel for the appellant Peter Kujur also placed reliance on a decision reported in A.I.R. 1971 S.C. 778 in support of his contention. If a man is insane at a relevant time he is expected to be insane for everyone and not for only that man who he killed. He did not hit any other person even Shreeman Nayak or Munni Kujur. This is a circumstance to show that at the relevant time he was not insane. Thus, considering the total circumstances of the case, it is found that after investigation has already taken place this type of evidence has come from the side of the defence, because, there was no evidence by anyone before any higher officials or even by the accused person to show that the appellant Peter Kujur was suffering from lunacy before the occurrence. Thus, we do not agree that the appellant was suffering from lunacy at the relevant time. Consequently, we hold that the defence has failed to discharge its burden in bringing the reliable evidence and thus prove to show that Peter Kujur was suffering from lunacy since before the alleged occurrence and also at the relevant time. The ruling, thus, does not fit in this case, considering the entire circumstances discussed above, we do not find any merit, so far appeal preferred by appellant Peter Kujur (Cr. The ruling, thus, does not fit in this case, considering the entire circumstances discussed above, we do not find any merit, so far appeal preferred by appellant Peter Kujur (Cr. A. No. 44 of 1995 (R)) is concerned, which accordingly fails. 8. In the result, the conviction and sentence recorded by the learned trial court so far accused Peter Kujur is concerned, is hereby confirmed and Cr.A. No. 44 of 1995 (R) is dismissed. Cr. Appeal No. 42 of 1995 (R). 9. Coming to the case of Munni Kujur (as Shree Man Nayak has already died and his appeal has already abated), the learned counsel for the appellant rested his argument on the premise of Peter Kujur being lunatic at the relevant time and, therefore said that there can be no sharing of common intention with a lunatic and consequently, this appellant cannot be roped under section 34 of the Indian Penal Code. We have already held that Peter Kujur was not suffering from lunacy at the relevant time. In face of such finding the very premise on which the argument aforesaid rests does not remain available to this appellant. His further argument was that in a case recently decided by this Court (in Cr.A No. 123/95 (R)), two persons who dragged the deceased, were not found to have shared the common intention and, therefore, in this case also that principle may be applied. We find that in that case the accused persons, who were let out, were of different village, whereas in this case, they are related persons living in the same house. In the case their presence at the P.O. became doubtful because of non-availability of reliable witnesses and the F.I.R. was lodged at a great delay. In this case, these things are not available and this distinguishes the facts of this case from the facts of the case referred to by the learned counsel for this appellant. As we found from the evidence that this appellant did some positive act, he tied the hands of the deceased by rope, he remained all along present in the house, he is the brother of main assailant and, therefore, in totality of the circumstances the sharing of the common intention with Peter Kujur and Shreeman Nayak is established. As we found from the evidence that this appellant did some positive act, he tied the hands of the deceased by rope, he remained all along present in the house, he is the brother of main assailant and, therefore, in totality of the circumstances the sharing of the common intention with Peter Kujur and Shreeman Nayak is established. It was also argued that one Usha Kujur, who was instrumental in persuading the deceased to go to the house of Peter Kujur had been let out by the police itself and, therefore, this appellant also deserves the same treatment. If the police acted discriminately for the reasons best known to it then in that circumstance the advantage of lapses committed by the police cannot be given to this appellant. Consequently, this argument is also dismissed. 10. In the result, it is found that his offence falls under section 302/34 of the Indian Penal Code and, therefore, considering all these facts and circumstances, we find no merit in the appeal preferred by Munni Kujur, which also fails and consequently, the conviction and sentence awarded to him by the learned trial court is confirmed. This appeal is also dismissed.