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2013 DIGILAW 792 (JHR)

Mahadeo Mahto v. State of Jharkhand

2013-07-04

D.N.PATEL, SHREE CHANDRASHEKHAR

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Judgment Shree Chandrashekhar, J. 1. The appellants namely, Mahadeo Mahto, Kailash Mahto and Jodhan Mahto have preferred Criminal Appeal No. 1265 of 2003 and the appellants namely, Thanu Mahto and Shankar Mahto have preferred Criminal Appeal No. 1067 of 2013 against the judgment of conviction dated 18.07.2003 and order of sentence dated 19.07.2003 in Sessions Trial No. 346 of 1992 passed by the Additional Sessions Judge, F.T.C.-II, Hazaribagh. The appellants namely, Mahadeo Mahto, Kailash Mahto, Jodhan Mahto, Thanu Mahto and Shankar Mahto have been found guilty of offences punishable under Sections 342, 302 / 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with fine of Rs.500 each for the offence punishable under Section 302/34 of the Indian Penal Code and in default of paying the fine, the convicts have been ordered to suffer simple imprisonment for two months. No separate sentence for offence punishable under Section 342/34 of the Indian Penal Code was recorded. The charge for offences under Sections 323, 324, 147 and 148 of the Indian Penal Code failed as the prosecution failed to establish assault on Hitnarayan Mahto and Jugal Mahto beyond reasonable doubt. Accused Tukan Mahto had died during the trial. 2. From the record of the case, it appears that one Hitnarayan Mahto is the informant, who gave his statement at about 15.30 hours on 25.02.1991 at government hospital, Chauparan. In the fardbeyan, it is alleged that his brother Jugal Mahto was irrigating the land from the water-well when accused Mahadeo Mahto, Jodhan Mahto, Shankar Mahto, Kailash Mahto, Thanu Mahto and Tukan Mahto came there. The accused Jodhan Mahto started abusing Jugal Mahto and snatched the pot and rope through which Jugal Mahto was drawing water from the well. The informant and his younger brother Rewa Mahto reached there and asserted that the well belonged to them and therefore, they would permit the accused persons to irrigate from the water-well only when there would be excess water, whereupon accused Mahadeo Mahto threatened them and all the accused persons went inside the house. Accused Mahadeo Mahto, Kailash Mahto and Jodhan Mahto armed with sword and accused Shankar Mahto, Thanu Mahto and Tukan Mahto armed with lathi came out from the house and accused Mahadeo Mahto, Kailash Mahto and Jodhan started assaulting Rewa Mahto by sword and injured him. Accused Mahadeo Mahto, Kailash Mahto and Jodhan Mahto armed with sword and accused Shankar Mahto, Thanu Mahto and Tukan Mahto armed with lathi came out from the house and accused Mahadeo Mahto, Kailash Mahto and Jodhan started assaulting Rewa Mahto by sword and injured him. When the informant and his elder brother Jugal Mahto went there, accused Shankar Mahto, Tukan Mahto and Thanu Mahto assaulted his brother Jugal Mahto also with lathi. The accused persons assaulted the informant and his 2 brothers who fell down and started crying for help. On hearing hulla, Ram Sewak Singh, Sudarshan Mahto, Akshaywat Singh, Tulsi Singh, Ashok Mahto and Babulal Mistri reached there and saved them from further assault. Thereafter, people from Daihar village reached there and took all the three injured to hospital on a bullock-cart. However, during the course of treatment Rewa Mahto died. 3. On the basis of the fardbeyan of Hitnarayan Mahto, a First Information Report being Chauparan P.S. Case No. 29 of 1991 dated 25.02.1991 under Sections 147, 148, 149, 342, 323, 324, 307 and 302 of Indian Penal Code was registered against the above-named six persons and after the investigation, police filed charge-sheet against all the accused persons. Charges for the offences under Sections 147 and 323 of the Indian Penal Code were framed against accused Shankar Mahto, Thanu Mahto and Tukan Mahto. Charges for offences under Sections 148, 342 and 324 of the Indian Penal Code were framed against accused Mahadeo Mahto, Jodhan Mahto and Kailash Mahto and charge for the offence punishable under Section 302/34 of the Indian Penal Code was framed against all 6 named accused persons. 4. During the trial, the prosecution examined 9 witnesses in support of its case and relied on the inquest report, postmortem report, seizure memo, requisition for medical examination and F.I.R. After the prosecution evidence was closed, statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure. Three witnesses were examined on behalf of the accused persons. By judgment of conviction dated 18.07.2003 and order of sentence dated 19.07.2003, as noticed above, the accused persons were convicted and sentenced by the Trial Court. 5. One Ram Sewak Singh has been examined by the prosecution as P.W. 1. He has stated in the Court that on hearing hulla, he reached the place of incident. By judgment of conviction dated 18.07.2003 and order of sentence dated 19.07.2003, as noticed above, the accused persons were convicted and sentenced by the Trial Court. 5. One Ram Sewak Singh has been examined by the prosecution as P.W. 1. He has stated in the Court that on hearing hulla, he reached the place of incident. He has admitted that when he reached there, the injured persons had already been assaulted and they were lying there. He had not accompanied the injured persons to the hospital and he stated that he could not name the persons who had taken Rewa Mahto to the hospital. 6. The prosecution witness namely, Ashok Mahto (P.W. 2) has claimed to be present at the place of incident. He has stated that, first Jugal Mahto and Hitnarayan Mahto were assaulted by the accused Jodhan Mahto, Mahadeo Mahto and Kailash Mahto by sword and other three accused persons armed with lathi were preventing the villagers from interfering. He further stated that after Jugal Mahto and Hitnarayan Mahto were assaulted and they fell down, the accused persons started assaulting Rewa Mahto. In cross-examination, he has admitted that Tulsi Mahto had not gone to the water-well. He has claimed that his hand and lungi were stained with blood and there was blood near the water-well where the 'Marpit' took place. He has also stated that there was blood stains on the wall of the room where Rewa Mahto was assaulted. He further stated that the police had taken the blood stained soil from the room. This witness has stated that the police had taken statement of Akshaywat Singh, Kameshwar Singh, Sudershan Mahto, Ramshewak Singh and few others. He has also stated that people from Daihar Mauza had also reached there and he remembered the name of Sanjay Dangi, Bandhan Mahto and Janki Mahto. He has deposed that there was verbal altercation between both the parties at the water-well for about 10 minutes. He has also stated that sword and lathi were recovered from the house of Jodhan Mahto, however, he denied the suggestion that there was any land dispute between the accused persons and informant party. He has denied the suggestion that he lost the case which was filed against him by the accused persons. He has denied the suggestion that the accused persons had also instituted a case against the prosecution party. 7. He has denied the suggestion that he lost the case which was filed against him by the accused persons. He has denied the suggestion that the accused persons had also instituted a case against the prosecution party. 7. One Kameshwar Singh has been examined as P.W. 3. At the time of occurrence, he was in his house and on hearing hulla, he went there and saw Jugal Mahto and Hitnarayan Mahto in injured condition. He has deposed that after he reached the place of occurrence, the accused persons were still assaulting the injured persons and the accused namely, Mahadeo Mahto, Jodhan Mahto and Kailash Mahto dragged Rewa Mahto inside the house of Mahadeo Mahto. Other villagers had also reached there and they carried the injured Rewa Mahto to the hospital where he died. He has admitted in the cross-examination that first of all Hitnarayan Mahto was assaulted by the accused persons and at the place of occurrence about 20-25 villages had assembled. He has also stated that the officer-in-charge never recorded his statement. However, he admitted that the Deputy Superintendent had taken his statement. He has further stated that the incident took place over a dispute for drawing water from the well. 8. The prosecution has examined Akshaywat Singh as P.W. 4, who has stated in the Court that on hearing hulla, he had gone to the water-well near the house of Hitnarayan Mahto. He has supported the prosecution evidence in so far as the assault on Hitnarayan Mahto, Jugal Mahto and Rewa Mahto, is concerned however, he has admitted in the cross-examination that he is illiterate and he cannot see now. Contrary to the prosecution case, he has stated in the Court that Jugal Mahto did not suffer any sword injury and about hundred villagers had assembled there. He has denied the suggestion that the accused Mahadeo Mahto and others had lodged a case against Rewa Mahto and others. 9. The injured namely, Jugal Mahto has been examined as P.W. 5. He has also stated that at about 11.00 A.M. on 25.02.1991 when he was drawing water from the water-well for irrigating the land, the accused namely, Jodhan Mahto, Mahadeo Mahto and Kailash Mahto came there and snatched the 'Latha' whereupon, he told them that water-well belonged to them and therefore, after drawing water for irrigating, he would let them draw water. The accused persons threatened him and went inside their house and immediately thereafter, accused Jodhan Mahto, Mahadeo Mahto and Kailash Mahto came out with sword in their hand and accused namely, Shankar Mahto and Thanu Mahto were holding lathi in their hand. He has stated that accused namely, Jodhan Mahto, Mahadeo Mahto and Kailash Mahto assaulted him with sword and he suffered 4 sword injuries. He has admitted in the cross-examination that the accused persons are his cousins. He has also admitted that, he did not state before the police that when he was trying to save Rewa Mahto, accused persons assaulted him also. He has not stated before the police that accused Shankar Mahto, Tukan Mahto and Thanu Mahto assaulted him with lathi. He has denied the suggestion that there was any dispute with respect to partition of land and that any case was initiated before the Circle Officer. He has also denied the suggestion that they assaulted the accused persons and to save themselves, the prosecution party instituted the present case against the accused persons. 10. The informant namely, Hitnarayan Mahto has been examined as prosecution witness no. 6. He has supported his fardbeyan, on the basis of which the First Information Report was lodged. In the cross-examination, he admitted that the accused persons had also lodged a counter-case with respect to the same incident. He has also admitted that the Partition Suit bearing No. 24/1996 filed by the accused persons against them, was pending in the Court. He has further admitted that a case was instituted earlier also for the water-well. He has denied the suggestion that they had initiated 'Marpit' and assaulted the accused persons and to save themselves the present case was lodged by him. 11. One Sudarshan Mahto has been examined as P.W. 8, who has identified his signature on the Seizure Memo by which one sword was seized by the police. In the Cross-examination he has stated that he has not seen the occurrence. 12. The police officer who recorded the fardbeyan and inspected the place of occurrence, has been examined as P.W. 9. He has admitted in the cross-examination that he seized the blood stained soil. However, he admitted that he did not remember whether the witnesses had signed over it or not, as in the case-dairy there was no reference of signature by the witnesses. He has admitted in the cross-examination that he seized the blood stained soil. However, he admitted that he did not remember whether the witnesses had signed over it or not, as in the case-dairy there was no reference of signature by the witnesses. He admitted that he found the dead body in the veranda of the hospital and dead body was bandaged at 7 places. He has admitted that he has instituted the case lodged by the accused Mahadeo Mahto and he had issued the Requisition Form for examination of the injury on Mahadeo Mahto, Shankar Mahto and Jodhan Mahto. 13. The doctor namely, Dr. Ramanand Sharma, who conducted the postmortem examination of the body of the deceased Rewa Mahto @ Rewa Shankar Dangi was examined as P.W. 7. He found the following injuries on the dead body : (i) Sharp cut injury on the right side of scalp stitched 3”x¼” skin deep. (ii) Sharp cut injury on the left side of the fore head 2”x½” skin deep. (iii) Sharp cut injury on the left side of scalp 1½x½” skin deep (iv) Swelling on the left palm 3”x2½”. (v) Sharp cut injury on the left palm between index & thumb 3½”x¼”x½”. (vi) Sharp cut injury on the back of right arm 3”x¼”x½”. (vii) Sharp cut injury on the upper lateral part of the right arm 4”x¼”x½”. (viii) Sharp cut injury on the right palm 1”x¼”x½”. (ix) Black bruise on the back of right shoulder joint 6”x1”. (x) Swelling on the back of chest 3”x½”. (xi) Swelling with fracture of 4th Meta Carpophalyngeal joint 3”x¾”. (xii) Swelling with fracture of 3rd Meta Carpophalyngeal joint of right palm 2½”x2”. (xiii) Sharp penetrating wound on the back of right knee 1½”x1½” deep. (xiv) Swelling with lacerated cut injury on the front of right leg 2”x½” skin deep. 14. The defence has also examined 3 witnesses, one of them was Janki Prasad Dangi (D.W. 1), who was a lecturer in the college in which accused Thanu Mahto was studying. He has stated that on 25.02.1991 accused Thanu Mahto was present in the class. One Mahendra Thakur has been examined as D.W. 2, who was also a lecturer in the college and he has also stated that on 25.02.1991 accused Thanu Mahto was present in the class. He has stated that on 25.02.1991 accused Thanu Mahto was present in the class. One Mahendra Thakur has been examined as D.W. 2, who was also a lecturer in the college and he has also stated that on 25.02.1991 accused Thanu Mahto was present in the class. The defence has examined Rakeshpal Dangi as D.W. 3, a lecturer in the college, who has also stated in the Court that the accused Thaneswar Kumar @ Thanu Mahto was present in the class on 25.02.1991. 15. Learned Trial Court has dealt with the plea of alibi taken by the accused Thanu Mahto as under : “27. So far plea of alibi of Thanu Mahto is concerned on this point, three defence witnesses has been examined. D.W. 1 Janki Pd. Dangi has stated that on 25.02.91 at 10.30 to 11.00 A.M. Thanu Mahto was present in his class and he took his attendance. Attendance register marked as Exhibit B and B/1 attendance of Thanu Mahto. In the same way D.W. 2 has also stated that on 25.02.91 Thanu Mahto was present in his class from 12.00 to 1.00 A.M. In the same way D.W. 3 has also stated that on 25.02.91 from 11.20 to 12.10 A.M. He was there to take his class and he saw Thanu Mahto at 10.00. However, D.W. 1 Janki Pd. Dangi has stated that he has stated about presence of Thanu Mahto on the basis of register Gy-B and from the perusal of register this witness is not in a position to say whether Thanu Mahto remain present during entire period or not. Moreover, this witness has also stated that he is not in a position to say about presence of other student on that day and mode of transportation of other students. This witness has also stated that on 25.2.91 he did not saw Thanu Mahto while he was coming to the college and when he left college. As per this witness within 30 minutes one can reach Nima village. In the same way D.W. 2 Mahendra Thakur has also stated that he is not in a position to say whether student after attendance remained present during entire period in the class and in the same way this witness cannot say whether during entire period Thanu Mahto was present in the class or not. In the same way D.W. 2 Mahendra Thakur has also stated that he is not in a position to say whether student after attendance remained present during entire period in the class and in the same way this witness cannot say whether during entire period Thanu Mahto was present in the class or not. In the light of above mentioned infirmities of D.W.s 1,2 and 3 and statement of prosecution witness which suggested about presence of the accused persons at the time and date of occurrence, I find that plea of alibi has not been proved beyond reasonable doubt, specially when one can reach Nima village within 30 minutes from college.” 16. Although, accused Thanu Mahto died during the pendency of the Criminal Appeal and therefore, appeal preferred by him has abated, we find that the approach of the learned trial judge in dealing with the defence evidence led in support of the plea of alibi taken by the accused Thanu Mahto is erroneous. The defence witnesses are lecturers in the college and they all have affirmed the presence of the accused Thanu Mahto in the college at the time when the alleged occurrence took place and therefore, it is immaterial how much time it would have taken for reaching the place of occurrence from the college in which the accused Thanu Mahto was studying. 17. Mr. V.P. Singh, the learned senior counsel appearing for the accused persons contended that the prosecution has suppressed the genesis of the occurrence as it has failed to explain the injuries on the body of the accused persons and therefore, judgment and order passed by the learned trial judge is liable to be set-aside. He has further submitted that two of the accused persons suffered grievous injuries during the course of the same occurrence and the investigating officer collected their injury reports and a counter-case was lodged by the accused persons against the prosecution party and although, these facts have been noticed by the learned trial judge, still the accused persons have been convicted and sentenced by the learned trial judge, which is not sustainable in law. The learned senior counsel has also submitted that the incident took place on a trivial issue and after a prolonged altercation, a 'Marpit' took place and it cannot be said that the alleged occurrence took place after pre-meditation and thus, the accused persons cannot be convicted with the aid of Section 34 of the Indian Penal Code. 18. As against the above, the learned A.P.P. submitted that the informant Hitnarayan Mahto and Jugal Mahto are the injured eye witnesses who have fully supported the prosecution case. The other prosecution witnesses have also supported the case against the accused persons. The incident is admitted by the accused persons as, a counter-case was lodged by them and therefore, no error has been committed by the learned trial judge in convicting and sentencing the appellants. 19. The prosecution record clearly reveals that the accused namely, Mahadeo Mahto suffered one sharp cutting wound on the left parietal region of scalp 3”x½”x½” and the injury report of the accused namely, Shankar Mahto reveals that he also suffered grievous injury. 20. It is a matter of record that the accused persons also lodged a counter-case against the prosecution party for the present incident. Certified copy of the injury reports of accused persons were brought on record and signature of the doctor was also got proved in the counter case. The learned trial judge has dealt with this issue as under :- 28. “So far argument of the learned defence counsel that injury on the body of Mahadeo Mahto, Jodhan Mahto and Shankar Mahto has not been explained by the prosecution, so benefit of doubt should be given to the accused person is concerned, this court is not in a position to accept this argument in the light of facts and circumstances of the case. From the side of defence certified copy of injury report of Shankar Mahto, Mahadeo Mahto and Jodhan Mahto were produced in this Case. However, doctor who examined these injured persons has not been summoned to prove injury report. Mere signature of doctor has been proved by a formal witness in counter case. So this court is not in a position to take into consideration contains of injury report of above mentioned accused persons. As per decision of the Hon'ble Apex Court (Rajendra Singh Vrs. Mere signature of doctor has been proved by a formal witness in counter case. So this court is not in a position to take into consideration contains of injury report of above mentioned accused persons. As per decision of the Hon'ble Apex Court (Rajendra Singh Vrs. State of Bihar A.I.R. 2000 SC 1779) If prosecution witnesses found trust worthy none explain of the injuries on the accused person cannot be held to be fatal. So in this case also none explain of the injury on the body of accused person is not fatal for the prosecution.” 21. The learned senior counsel appearing for the accused/appellants has seriously challenged the reasoning of the learned trial judge as recorded in the paragraph no. 28 which is extracted hereinabove. He has submitted that once it has come on record that the accused persons suffered grievous injuries, it was the duty of the learned trial judge to ascertain whether any right of private defence had accrued to the accused persons or not. He has further submitted that the learned trial judge has erroneously construed the ratio in the case of “Rajendra Singh Vs. State of Bihar”, reported in A.I.R. 2000 SC 1779, in as much as in the present case three accused persons have suffered injuries whereas, in the case of “Rajendra Singh Vs. State of Bihar” (supra), only one accused person suffered injury. It has been held by the Hon'ble Supreme Court that non-explanation of injury on the accused person would not affect prosecution case, if the prosecution evidence is otherwise cogent, clear and reliable. The learned senior counsel appearing for the accused/appellants thus submitted that in the present case the manner of occurrence, the assault by the accused persons on the prosecution witnesses and even the place of occurrence have not been established by the prosecution and therefore, not only the facts in the case of “Rajendra Singh Vs. State of Bihar” (supra) are clearly distinguishable from the facts of the present case, the ratio laid down therein is also not applicable in the present case. 22. Before examining the contention raised by the counsel appearing for the appellants, it would be useful to refer to the provisions under Sections 96, 97 and 102 of the Indian Penal Code which are as under : “96. 22. Before examining the contention raised by the counsel appearing for the appellants, it would be useful to refer to the provisions under Sections 96, 97 and 102 of the Indian Penal Code which are as under : “96. Things done in private defence.— Nothing is an offence which is done in the exercise of the right of private defence. 97. Right of private defence of the body and of property.—Every person has a right, subject to the restrictions contained in section 99, to defend— First.—His own body, and the body of any other person, against any offence affecting the human body; Secondly.—The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. 102. Commencement and continuance of the right of private defence of the body.—The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.” 23. A careful examination of the above provisions of the Indian Penal Code would show that on a reasonable apprehension of grievous hurt, the accused would have a right even to the extent of causing death of the assailants. It is also well settled that the accused need not set up a specific plea of his defence and adduce evidence. Although, the burden of proving the existence of circumstances bringing the accused within any of the General Exception, is on the accused however, such presumption is rebuttable. The onus which is on the accused person to establish his plea of private defence is not as onerous as the burden which lies on the prosecution to establish every ingredient of the offence beyond reasonable doubt. The accused can rebut the presumption by introducing evidence in support of his plea or through admission made or circumstances elicited from the evidence laid by the prosecution itself. The accused can rebut the presumption by introducing evidence in support of his plea or through admission made or circumstances elicited from the evidence laid by the prosecution itself. In “K.M. Nanavati Versus State of Maharastra”, reported in A.I.R. 1962 SC 605, the Hon'ble Supreme Court has observed as under : “In India, as it is in England, there is presumption of innocence in favour of accused as a general rule, and it is duty of the prosecution to prove the guilt of the accused; to put in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the court shall regard the non-existence of such circumstances as proved till they are disproved... This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients, of the offence with which the accused is charged; that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary than real. Indeed there is no conflict at all.” 24. From the materials on record, it would appear that the inquest dated 25.02.1991 has mentioned stitched wounds on the dead body. The investigating officer has also admitted during cross-examination that he found the dead body on the veranda of the hospital with bandages at 7 places. The doctor who conducted the postmortem examination over the dead body, has found stitched wound on the dead body. However, the prosecution has not revealed the name of the doctor who first examined the deceased Rewa Mahto. The doctor who conducted the postmortem examination over the dead body, has found stitched wound on the dead body. However, the prosecution has not revealed the name of the doctor who first examined the deceased Rewa Mahto. The learned Trial Court noticed that a counter-case was lodged by the accused persons against the prosecution party and this is also an admitted fact that the accused persons namely, Mahadeo Mahto and Shankar Mahto suffered grievous injuries. The investigating officer has admitted that he had issued the Requisition Form for examination of the injuries on the accused persons and the defence has duly proved the injury reports which were marked as exhibit nos. E to E/2. Even one of the prosecution witnesses has admitted in the Court that the accused persons suffered injuries in course of the same incident with respect to which the present case was initiated against them. In these facts, we are of the considered opinion that though the failure of the prosecution to explain the injuries on the accused persons would not affect the prosecution case as a whole but in case of this nature the accused had a right of private defence and this aspect of the matter has not been examined by the Trial Court. Further, the learned Trial Court itself has noticed that the prosecution has failed to examine all the charge-sheeted witnesses and therefore, we are of the opinion that in view of the aforesaid facts and circumstances, a reasonable doubt appears that innocent persons may also have been implicated in the case. 25. In so far as the accused Shankar Mahto is concerned, he was alleged to have been armed with lathi and there is no specific allegation against him except, some omnibus allegations levelled by the prosecution witnesses and therefore, we are inclined to extend the benefit of doubt to him. Charges under Sections 323 and 147 of the Indian Penal Code were framed against accused Shankar Mahto, Thanu Mahto and Tukan Mahto however, the learned Trial Court has recorded the finding that the charges under Sections 323, 324 and 19 147 of the Indian Penal Code have failed as the prosecution failed to establish assault on Hitnarayan Mahto and Jugal Mahto. In so far as the charge for offence punishable under Section 302/34 of the Indian Penal Code is concerned, we are of the opinion that the prosecution has not been able to establish that accused Shankar Mahto was sharing common intention with other co-accused persons. There is no specific allegation levelled against accused Shankar Mahto of assaulting deceased Rewa Mahto. The alleged assault on Hitnarayan Mahto and Jugal Mahto, has been found by the learned Trial Court not proved. Even the examination of the accused under Section 313 of the Code of Criminal Procedure appears to be wholly unsatisfactory. In fact, the charge for sharing common intention with other co-accused persons, was not even put to the accused. It is the prosecution evidence that after the 'Marpit' took place near the water-well, accused persons namely, Mahadeo Mahto, Kailash Mahto and Jodhan Mahto took injured Rewa Mahto inside the house of the Mahadeo Mahto where he was assaulted by those persons. In fact, at the first instance when there was an altercation with Jugal Mahto, it was accused Mahadeo Mahto, who had threatened the informant and his brother and no overt act has been alleged against accused Shankar Mahto. Accused Shankar Mahto is alleged to have remained outside and therefore, it cannot be said that he was sharing any common intention to kill Rewa Mahto, with other 3 accused persons. 26. In “Parichhat and others Versus the State of Madhya Pradesh”, reported in (1972) 4 SCC 694 , the Hon'ble Supreme Court has enunciated the law relating to applicability of Section 34 of the Indian Penal Code as thus : “22. Section 34 will not be attracted unless first it is established that a criminal act was done by several persons, second, that there was a common intention and a pre-arranged plan to commit an offence and third that there was participation in the commission of the offence in furtherance of that common intention. The High Court was wrong in convicting the appellants Parichhat, Sunnu and Sitaram under Section 326 read with Section 34 of the Indian Penal Code. Their convictions are set aside. The High Court was wrong in convicting the appellants Parichhat, Sunnu and Sitaram under Section 326 read with Section 34 of the Indian Penal Code. Their convictions are set aside. The High Court in setting aside the acquittal of Parichhat, Sunnu and Sitaram should have considered the enmity between Dharam Ballabh and Parichhat, the case instituted by Durji against Dharam Ballabh, the allegations made by Parichhat against Dharam Ballabh, the hostile and unsympathetic attitude of Ram Lakhan Sharma in investigating the complaint of Durji against Dharam Ballabh. If the appellants could not be convicted under Sections 147, 447 and 302 read with Section 149 of the Indian Penal Code and they were acquitted the acquittal could not be set aside by the High Court unless the Sessions Court in acquitting the accused was palpably wrong or took an erroneous view or committed grave injustice. The setting aside of the acquittal by the High Court was itself erroneous and wrong. The High Court was also wrong in convicting the appellants under Section 326 read with Section 34 of the Indian Penal Code. Merely remaining with Gangu at the time of cutting the crop will not justify any application of Section 34 of the Indian Penal Code with regard to the murder of Kashiram.” 27. In “Rambilas Singh Versus State of Bihar”, reported in (1989) 3 SCC 605 , the Hon'ble Supreme Court has held as under : 7. ........ It is true that in order to convict persons vicariously under Section 34 or Section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.” 28. In “Surendra Chauhan Versus State of M.P.” reported in (2000) 4 SCC 110 , the Hon'ble Supreme Court has held as under : “11. .....................To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. .....................To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.” 29. In “Virendra Singh Versus State of M.P.”, reported in (2010) 8 SCC 407 , the Hon'ble Supreme Court has held as thus : “39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court.....................” 30. In view of the law enunciated by the Hon'ble Supreme Court and the facts of the present case, we hold that the prosecution has failed to establish the charge framed under Section 302/34 of the Indian Penal Code against accused Shankar Mahto. Accused Tukan Mahto had died during the pendency of the trial and accused Thanu Mahto died during the pendency of the Criminal Appeal and therefore, in so far as accused Shankar Mahto is concerned, Criminal Appeal (DB) No. 1067/2003 stands allowed. 31. Accused Tukan Mahto had died during the pendency of the trial and accused Thanu Mahto died during the pendency of the Criminal Appeal and therefore, in so far as accused Shankar Mahto is concerned, Criminal Appeal (DB) No. 1067/2003 stands allowed. 31. In so far as the other accused persons namely, Mahadeo Mahto, Kailash Mahto and Jodhan Mahto are concerned they were armed with sword and the prosecution witnesses have clearly established their presence and assault by them on the deceased. However, from the postmortem report, it appears that the deceased Rewa Mahto suffered as many as 14 injuries out of which all the injuries are on non-vital part of the body except, injury nos. (i), (ii) and (iii), which however, are not grievous in nature and therefore, it can be reasonably inferred that the accused persons had no intention to kill Rewa Mahto. It would further appear that the prosecution party and the accused party are close relatives and the incident started over a trivial matter. It has also come in the evidence of the prosecution witnesses that 'Marpit' continued for over 10 minutes. As noticed above the incriminating circumstances were not put to the accused persons during their examination under Section 313 of the Cr. P.C. Moreover, the prosecution evidence with respect to assault on Hitnarayan Mahto and Jugal Mahto, is inconsistent and there is no evidence on record so as to ascertain among accused Mahadeo Mahto, Kailash Mahto and Jodhan Mahto, the individual injury caused by them and the fatal injury on the deceased Rewa Mahto and therefore, it would not be proper to convict these three appellants for offence under Section 302/34 of the Indian Penal Code. In the aforesaid facts, we hold that the accused persons had the right of private defence however, they exceeded their right of private defence. Further, the accused persons had no intention to kill Rewa Mahto. In the result the conviction and sentence of the accused Mahadeo Mahto, Kailash Mahto and Jodhan Mahto for offence u/s 302/34 of the Indian Penal Code is set-aside as the prosecution has failed to establish the charge for offence u/s 302/34 of the Indian Penal Code, beyond reasonable doubt. 32. In the facts and circumstances of the case, Cr. In the result the conviction and sentence of the accused Mahadeo Mahto, Kailash Mahto and Jodhan Mahto for offence u/s 302/34 of the Indian Penal Code is set-aside as the prosecution has failed to establish the charge for offence u/s 302/34 of the Indian Penal Code, beyond reasonable doubt. 32. In the facts and circumstances of the case, Cr. Appeal No.1265 of 2003 is allowed in part and the conviction of Mahadeo Mahto, Kailash Mahto and Jodhan Mahto is converted from Section 302/34 of the Indian Penal Code to Section 304 (I) of the Indian Penal Code and they are punished for ten years' rigorous imprisonment. However, these appellants will be released from jail only upon receiving intimation from the High Court that the appellants have deposited Rs.50,000/-towards compensation to be paid to the victim's family. This amount should be deposited in the High Court by the appellants within a period of two weeks from today. If the amount is deposited earlier, the same will be communicated by the Registry of this Court to the concerned jail for the release of the appellants. 33. In so far as Cr. Appeal No.1067 of 2003 is concerned, Appellant No.1 Thanu Mahto @ Thaneshwar Kumar has expired on 10th June, 2007 as per the report submitted by the learned A.P.P. upon instruction from the Superintendent of Jail, Koderma and accordingly, the appeal is abated against him. In so far as Appellant No.2 Shankar Mahto is concerned, he is acquitted of the charges and the appeal filled by him is allowed. Since the appellant Shankar Mahto is on bail, he is discharged from the liability of his bail bond and his sureties are also discharged from their liability.