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Jharkhand High Court · body

2017 DIGILAW 2066 (JHR)

Sirmuna Oraon v. State Of Jharkhand

2017-11-30

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2017
JUDGMENT Anil Kumar Choudhary, J. - Since all these three appeals were filed by these appellants separately against the judgment of conviction dated 18.11.2006 and order of sentence dated 21.11.2006, passed by the learned Additional Sessions Judge, Fast Track Court Lohardaga, in S.T. Case No. 132 of 2005,hence, these appeals are tagged together and are disposed of by this common judgment. 2. In these three appeals, the appellants are aggrieved by the Judgment of conviction dated 18.11.2006 and Order of sentence dated 21.11.2006, passed by the learned Additional Sessions Judge, Fast Track Court Lohardaga, in S.T. Case No. 132 of 2005 corresponding to G.R. Case No. 274 of 2005, whereby and where under, these appellants have been found guilty and convicted for the offence under Section 302/34 and 323/34 of the Indian Penal Code. Upon hearing on the point of sentence, they have been sentenced to undergo R.I. for life for the offence punishable under section 302/34 of the Indian Penal Code and R.I. for 6 months for the offence punishable under section 323/34 of the Indian Penal code and it was ordered that the sentences shall run concurrently. 3. The case of the prosecution in brief is that on 16.06.2005 at 10 p.m. one of the deceased Budhana Oraon was chiding his sons as they could not properly thatch the roof (chappar) of their house. The accused Kishun Oraon came to house of the informant and asked Budhana Oraon (deceased) as to why he is creating noise. The deceased Budhana Oraontold Kishun Oraon that as he is chiding his own sons hence the Kishun Oraon has no business in interfering with the same. The accused Kishun Oraon went to house of coaccused Hardayal Oraon and after some time he came with Hardayal Oraon, Bandhanu Oraon and Sirmuna Oraon. Kishun Oraon, Bandhanu Oraon and Hardayal Oraon were armed with lathi and Sirmuna Oraon was armed with axe. The accused Sirmuna Oraon gave three tangi (axe) blows on the head of the informant''s brother Dhariya Oraon as a result of which Dhariya Oraon fell down on the ground. The accused Kishun Oraon assaulted the father of the informant namely Budhana Oraon (another deceased) by lathi, the accused Sirmuna Oraon thereafter gave axe (tangi) blow on the head and face of Budhana Oraon while he was lying on the ground after getting the lathi blow of Kishun. The accused Kishun Oraon assaulted the father of the informant namely Budhana Oraon (another deceased) by lathi, the accused Sirmuna Oraon thereafter gave axe (tangi) blow on the head and face of Budhana Oraon while he was lying on the ground after getting the lathi blow of Kishun. The accused BandhanuOraon assaulted the mother of the informant namely Sadahani Orain (P.W. 2) by lathi. The accused Hardayal Oraon also caught hold of the informant Chaudhary Oraon (P.W.9) and the accused Bandhanu Oraon has also assaulted him with stick. However, the informant managed to flee away from the scene and saved his life. Co-accused Bandhanu Oraon has been declared juvenile and his case has been separated. 4. On the basis of Fardbeyan (Ext.-3) of the informant Choudhary Oraon (P.W.9) Lohardaga P.S. Case No. 107 of 2005 was instituted under section 302/34 of the Indian Penal Code against the four accused persons and investigation was taken up. Upon completion of investigation, police submitted charge sheet against the three accused persons. Upon commitment of the case to the Court of Session charge was framed against the accused persons namely : Sirmuna Oraon, Kishun Oraon and Hardayal Oraon separately for the offence punishable under Section 302/34 of the Indian Penal Code for committing murder of Dhariya Oraon and Budhana Oraon and also under section 323/34 of the Indian Penal Code for voluntarily causing hurt to Choudhary Oraon (P.W.9) and Mother of the informant Sadahani Orain (PW2). Upon the accused persons pleading not guilty and claiming to be tried, they were put on trial. In course of trial, the prosecution altogether has examined 10 witnesses in the case including Investigating Officer (P.W.10) and the Doctor (P.W.1), who had conducted the post-mortem examination on the dead body of both the deceased and also examined the in jured Sadahani Orain (PW2). 5. Out of the ten witnesses examined by the prosecution P.W. 3-Budhu Oraon and P.W. 4-Budhwa Oraon have stated that they went to the hospital and saw the dead body of Budhana Oraon and Dhariya Oraon. Police prepared the inquest report of the dead body of the deceased Budhana Oraon and Dhariya Oraon, in their presence and they put their thumb impression over the inquest report of the dead body. Both the said witnesses were declared hostile by the prosecution. 6. P.W. 9-Choudhary Oraon is the informant of the case. Police prepared the inquest report of the dead body of the deceased Budhana Oraon and Dhariya Oraon, in their presence and they put their thumb impression over the inquest report of the dead body. Both the said witnesses were declared hostile by the prosecution. 6. P.W. 9-Choudhary Oraon is the informant of the case. He is also one of the alleged victims of the occurrence. He is son of the Budhana Oraon (deceased). He deposed that on 16.06.2005 at 10.00 a.m. when he was sitting along with his family members in the courtyard of his house and his father Budhana Oraon was scolding him and his brothers by telling them that they have not thatched the roof (chappar) of the house properly,the accused Kishun Oraon came to his house and questioned Budhana Oraon(deceased) as to why he is creating noise. At this Budhana Oraon told the accused Kishun Oraon that he was scolding his own sons. Then the Kishun Oraon went away and after some interval he came along with Sirmuna Oraon, Hardayal Oraon and Bandhanu Oraon to the place of occurrence. The accused Kishun Oraon and Bandhanu Oraon were armed with lathi whereas the Sirmuna Oraon was armed with axe (tangi). He further stated that Sirmuna Oraon assaulted Dhariya Oraon with axe. By such axe blows, Dhariya Oraon sustained injuries on his temporal region and on his back and he fell down and blood was oozing out from the injuries of the Dhariya Oraon. Kishun Oraon assaulted Budhana Oraon (deceased) by lathi. Budhana Oraon fell down on the ground then Sirmuna Oraon assaulted him by his axe. Accused Bandhanu Oraon assaulted the mother of the informant (P.W.9) namely Sadahani Orain (P.W.2) by lathi. Sirmuna Oraon also assaulted the Sadahani Orain by axe. Chaudhary Oraon (P.W.9) was caught hold of by Hardayal Oraon and assaulted by Bandhanu Oraon but somehow he managed to flee away from the scene. Bundhana Oraon breathed his last at the place of occurrence itself. Dhariya Oraon was taken to the Sadar Hospital, Lohardaga by rickshaw where he died in course of the treatment. Sadahani Orain (P.W.2) and Choudhary Oraon (P.W.9) were treated in the hospital. In paragraph 15 of his cross-examination the P.W. 9 categorically stated that the accused persons are his agnates and are distantly related to him and he also stated that the villagers came to his house after the incident. 7. Sadahani Orain (P.W.2) and Choudhary Oraon (P.W.9) were treated in the hospital. In paragraph 15 of his cross-examination the P.W. 9 categorically stated that the accused persons are his agnates and are distantly related to him and he also stated that the villagers came to his house after the incident. 7. P.W.2-Sadahani Orainis the mother of the deceased Dhariya Oraon and the wife of the deceased Budhana Oraon. In her examination in chief she has stated about the occurrence in the same manner as PW9. She has also stated that Kishun Oraon asked Bundhana Oraon as to why he was creating noise at which Bundhana Oraon told Kishun that it was none of Kishun''s business at which Kishun left the place and after some interval came back with Sirmuna Oraon, Hardayal Oraon and Bandhanu Oraon to the place of occurrence. The accused Kishun Oraon and Bandhanu Oraon were armed with lathi whereas the Sirmuna Oraon was armed with axe (tangi). He further stated that Sirmuna Oraon assaulted Dhariya Oraon with axe. By such axe blows Dhariya Oraon sustained injuries on his temporal region and on his back and he fell down and blood was oozing out from the injuries of the Dhariya Oraon. Kishun Oraon assaulted Budhana Oraon by lathi. Budhana Oraon fell down on the ground then the Sirmuna Oraon assaulted him with his axe. Accused Bandhanu Oraon assaulted the P.W.2 by lathi. Sirmuna Oraon also assaulted the Sadahani Orain with axe. Chaudhary Oraon (p.W.9) was caught hold of by Hardayal Oraon and was assaulted by Bandhanu Oraon In her cross-examination PW2 has stated that the accused persons are their agnates and there has not been partition of the property between the accused and the family of P.W.2. She has also stated that the axe could not be seized by the police as the accused-Sirmuna Oraon fled away with the axe from the place of occurrence. 8. P.W.-7-Mahesh Oraon,is the son of Budhana Oraon and brother of the deceased Dhariya Oraon. He has deposed that in the night of 16.06.2005 at about 10.00 p.m., he was sitting in the courtyard along with his family members and his father-the deceased-Budhana Oraon, was scolding him and his brothers by telling that they have poor knowledge of thatching the roof of the house. The accused-Kishun Oraon came there and asked Budhana Oraon why he is making the noise. The accused-Kishun Oraon came there and asked Budhana Oraon why he is making the noise. At this, the deceased-Budhana Oraon told KishunOraon that he has no business to interfere when he is reprimanding his sons. Thereafter, the accused-Kishun Oraon went to the house of the Hardayal Oraon and after some interval, the accused persons namely, Kishun Oraon, Hardayal Oraon, Sirmuna Oraon and Bandhanu Oraon came to the house of P.W.7-Mahesh Oraon, which is the place of occurrence. The accused Sirmuna Oraon was armed with an axe (Tangi) whereas; the remaining accused persons named in the F.I.R. namely Kishun Oraon, Hardayal Oraon and Bandhanu Oraon were armed with lathi. He also testified that the accused-Sirmuna Oraon gave a tangi (axe) blow on the head and other parts of the body of his brother-Dhariya Oraon. By such assault, Dhariya Oraon fell down. The accused-Kishun Oraon assaulted his father Budhana Oraon by lathi. His father fell down on the ground on receiving the lathi blow. Thereafter Sirmuna Oraon assaulted his father with his tangi (axe). The father of P.W.7 died at the spot. Bandhanu Oraon assaulted the mother of P.W.7 namely, Sadahani Orain by means of a lathi. Sadhani Orain also fell down on the ground. The accused Sirmuna Oraon also assaulted the mother of the P.W.7 by means of tangi (axe). The accused-Hardayal Oraon caught hold of his brother-Chaudhary Oraon(P.W.9) and Bandhanu Oraon assaulted him with lathi but his brother somehow managed to flee away and saved his life. After the occurrence, the villagers came to his house and his father-Budhana Oraon and his brother-Dhariya Oraon were taken to Sadar hospital, Lohardaga by rickshaw. His brother-Dhariya Oraon died in the hospital in course of his treatment. In paragraph No. 6 of his cross-examination, he has stated that the villagers came to the place of occurrence only after the incident and they have not witnessed the same. 9. P.W.-8-Ratni Orain has deposed the same facts as stated by P.W.-7-Mahesh Oraon. Besides narrating about the incident that the deceased-Budhana Oraonwas scolding his sons and the accused-Kishun Oraon asked him why he is making noise. She also categorically stated that accused-Kishun Oraon went to the house of the Hardayal Oraon and thereafter, Kishun Oraon, Hardayal Oraon, Sirmuna Oraon and Bandhanu Oraon came there. Besides narrating about the incident that the deceased-Budhana Oraonwas scolding his sons and the accused-Kishun Oraon asked him why he is making noise. She also categorically stated that accused-Kishun Oraon went to the house of the Hardayal Oraon and thereafter, Kishun Oraon, Hardayal Oraon, Sirmuna Oraon and Bandhanu Oraon came there. The accused Sirmuna Oraon was armed with an axe (Tangi) and the remaining three accused persons namely Kishun Oraon, Hardayal Oraon and Bandhanu Oraon were armed with lathi. The accused-Sirmuna Oraon assaulted her husband Dhariya Oraon with an axe (tangi). By such blow, Dhariya Oraon fell down. The accused-Kishun Oraon assaulted the deceased-Budhana Oraon by lathi. After receiving lathi blows Budhana Oraon fell down. When Budhana Oraon was lying on the ground, Sirmuna Oraon assaulted him with his axe on his face and head. The juvenile accused-Bandhanu Oraon assaulted Sadahani Orain (P.W.2) by means of lathi and when she fell down, Sirmuna Oraon assaulted Sadahani Orain (P.W.2) with his tangi. Budhana Oraon breathed his last at the spot. Dhariya Oraon sustained grievous injuries and died in course of his treatment at Sadar hospital, Lohardaga. Accused Hardayal Oraon assaulted the informant-Chaudhary Oraon (P.W.9) with lathi but the informant-Chaudhary Oraon somehow managed to flee away from the scene. Both, Dhariya Oraon and Budhana Oraon, were taken to the hospital by rickshaw. In paragraph No. 5 of her cross-examination, she has stated that it was a moon lit night. In paragraph No. 7 of her cross-examination, she has stated that the blood stained earth was seized by police in her presence. 10. P.W.5- Mangey Oraon and P.W.6-Sudhram Oraon are the post occurrence witnesses. They saw the dead body of the Budhana Oraon and injured Dhariya Oraon lying on the place of occurrence. They also saw the Sadahani Orain (P.W.2) in an injured condition and on being inquired by them P.W. 9-Choudhary Oraon disclosed that Hardayal Oraon, Kishun Oraon, Sirmuna Oraon and Bandhanu Oraon assaulted the deceased Budhana Oraon, Dhariya Oraoin and Sadahani Orain (P.W.2). Police seized blood stained earth in their presence and they put their thumb impression on the seizure list (Ext.5). 11. P.W.1-is the Doctor, who on 17.05.2005 conducted the post-mortem examination on the dead bodies of the deceased Dhariya Oraon and Budhana Oraon and also examined the injured Sadahani Orain (P.W.2). Police seized blood stained earth in their presence and they put their thumb impression on the seizure list (Ext.5). 11. P.W.1-is the Doctor, who on 17.05.2005 conducted the post-mortem examination on the dead bodies of the deceased Dhariya Oraon and Budhana Oraon and also examined the injured Sadahani Orain (P.W.2). On the dead body of the Dhariya Oraon, he found the following external injuries after opening the bandage of scalp :- "i) Incised wound on posterior aspect of right chest size 5"x 1"x muscle deep. ii) Incised wound on lateral aspect of left occipital bone size 4"x 1" x bone deep. iii) Incised wound below left ear on lateral aspect at the junction of temporal and zygomatic bone." On internal examination he found the following:- i) Lungs - Pale; ii) Heart - both right and left chambers were found empty; iii) Liver - Pale; iv) Stomach - empty. The PW1 opined that the injury No. (ii) was sufficient to cause the death of the deceased in normal course of nature and the cause of death was due to hemorrhage and shock. He conducted the post mortem examination of Dhariya Oraon at 10.30 am. The time elapsed since death was about 12 to 24 hours from the post-mortem examination of the deceased. On being proved by him the post-mortem report of the dead body of the Dhariya Oraon, which was in the pen and signature of the PW1 has been marked as Ext. 1. The P.W.1 on the same day at 10.15 am conducted the post mortem examination of the dead body of the Budhana Oraon and found the following external injuries: i) Depressed fracture of left orbital bone and left maxilla. ii) Incised wound on left lateral aspect of frontal bone 1 1 /2 "x 2"x scalp deep. iii) Incised wound obliquely on left maxilla size 3 1/2 " x 1/2" x skin deep. iv) Incised wound on left lateral aspect of left orbit 1 1/2 " x 1/2 " x skin deep. On internal examination he found the following:- i) Lungs - Pale; ii) Heart - both right and left chambers were found empty; iii) Liver - Pale; iv) Stomach - empty. The PW 1 opined that the injury No. (i) was sufficient to cause the death of the deceased in normal course of nature and the cause of death was hemorrhage and shock. The PW 1 opined that the injury No. (i) was sufficient to cause the death of the deceased in normal course of nature and the cause of death was hemorrhage and shock. The time elapsed since death was about 12 to 24 hours from the time of postmortem examination of the dead body. On being proved by him the post-mortem report of the dead body of the Bandhanu Oraon which was in his pen and signature, has been marked as Ext. 1/1. The PW1 examined Sadahani Orain (P.W.2) at 11.40 am and found (i) incised wound above left eyebrow size 2" x 1 1/2" x skin deep. The Doctor opined that injury was simple in nature and caused by hard and blunt substance such as lathi or blunt portion of tangi and the time elapsed was about 12.00 hours. On being proved by the PW1 the injury report of Sadahani Orain (P.W. 2) has been marked as Ext.2. The PW1 in his cross examination has stated that in course of both the postmortem examinations he did not find any injury which was caused by hard and blunt object. 12. P.W. 10-Silvanush Tigga-is the investigating officer of the case. He deposed that on 17.06.2005 at about 7.30 a.m. he recorded the Fardbeyan of the informant P.W.9-Choudhary Oraon. On being proved by him the fardbeyan has been marked Ext.3. His endorsement on the fardbeyan regarding registration of Lohardaga P.S. case No. 107 of 2005 has been marked Ext. 3/1. PW10 prepared the inquest report of the dead bodies of the deceased namely Dhariya Oraon and Budhana Oraon in the presence of P.Ws. 3 & 4 namely Budhu Oraon and Budhwa Oraon respectively. On being proved by him the inquest reports have been marked as Ext. 4 and 4/1. During the investigation, he recorded the statement of the witnesses and inspected the place of occurrence, which is the courtyard of the house of the informant situated at Koila Toli Bhakso. He described the place of occurrence including its boundaries. He found huge amount of blood spread on the ground at the place of occurrence and seized blood stained earth from the place of occurrence in presence of the witnesses P.Ws. 5 and 6 namely Mangey Oraon and Sudhram Oraon respectively and also prepared the seizure list. On being proved by him, the seizure list has been marked as Ext. He found huge amount of blood spread on the ground at the place of occurrence and seized blood stained earth from the place of occurrence in presence of the witnesses P.Ws. 5 and 6 namely Mangey Oraon and Sudhram Oraon respectively and also prepared the seizure list. On being proved by him, the seizure list has been marked as Ext. 5 and formal F.I.R. has been marked as Ext. 6. He also proved the requisition slip prepared by him for medical examination of Sadahani Orain (P.W.2) which has been marked Ext. 7. At paragraph 22 of his cross examination he stated that he had not sent the blood stained earth to Forensic Science Laboratory for its chemical examination. The weapons used for committing murder of Dhariya Oraon and Budhana Oraon could not be seized by him. In paragraph 14 of his cross examination he stated that P.W. 2-Sadhani Orain did not state before him that Sirmuna Oraon assaulted her with tangi (axe) on her head. In paragraph 19 of his cross examination he has stated that P.W. 7-Mahesh Oraon, the brother of the deceased, did not state before him that the P.W. 2-Sadhani Orain fell down and Sirmuna Oraon assaulted her with axe and P.W.7- Mahesh Oraon also did not state before him that Hardayal Oraon came there armed with lathi. 13. The statement of the accused persons were recorded under Section 313 Cr.P.C., 1973 wherein the accused Sirmuna Oraon besides denying the evidence against him has stated that Dhariya Oraon and Budhana Oraon were fighting amongst themselves and P.W. 9-Chaudhary Oraon murdered them and he also stated that he will examine witnesses in his defence. The accused Kishun Oraon besides denying the evidence against him stated that he reached the place of occurrence after Budhana Oraon and Dhariya Oraon was assaulted. Hence, he is innocent. Hardayal Oraon denied the evidence against him and stated that he has been falsely implicated in the case. No witness, however, was examined by the defence in this case. On the basis of the evidence on record, the appellants have been found guilty, convicted and sentenced by the Trial Court, as aforesaid. 14. Hence, he is innocent. Hardayal Oraon denied the evidence against him and stated that he has been falsely implicated in the case. No witness, however, was examined by the defence in this case. On the basis of the evidence on record, the appellants have been found guilty, convicted and sentenced by the Trial Court, as aforesaid. 14. At the time of hearing, it was submitted by the learned counsel for the appellants that the impugned Judgment of conviction and order of sentence are absolutely illegal and cannot be sustained in law in as much as the post-mortem report did not support that any lathi blow was given to either of the deceased. The prosecution has made out a false case against the appellants only to grab their property which has not yet been partitioned. It was also submitted that that no independent eye witness has been examined in the case and there being contradiction in the evidence of the prosecution, this is a fit case where the appellants ought to have been acquitted by giving them the benefit of doubts. It was also submitted on behalf of Hardayal Oraon that there being absolutely no evidence in the record to show any overt act of Hardayal Oraon, so far as the murder of Budhana Oraon and Dhariya Oraon is concerned the trial erred in attributing constructive liability to Hardayal Oraon while convicting them under section 302 read with 34 of the Indian Penal Code. It was also contended by the learned counsel for the appellant Hardayal Oraon that in the absence of any specific evidence in the record to suggest that any hurt has been caused to PW9 nor any injury report of PW9 having been proved the learned trial court ought not to have convicted Hardayal Oraon of the charge for the offence punishable under section 323/34 of the Indian Penal Code. It was further submitted that the Investigating Officer P.W. 10 has categorically stated that none of the witness has stated before him that Hardayal Oraon was armed with lathi and that the Hardayal Oraon has been falsely implicated in this case. Hence it is submitted that Hardayal Oraon ought to have been acquitted by the learned trial court. 15. Learned Addl. Hence it is submitted that Hardayal Oraon ought to have been acquitted by the learned trial court. 15. Learned Addl. P.P., appearing for the State, on the other hand, has opposed the prayer for acquittal of the appellants and defended the impugned judgment and submitted that the testimonies of eye-witnesses P.Ws. 2, 9, 7 & 8 corroborated by the medial evidence of the Doctor- P.W.1. have brought home the charges against the accused persons beyond all reasonable doubts. It was also submitted that the prosecution has been able to prove its case against all the three appellants beyond reasonable doubt and there being no illegality in the impugned Judgment of conviction and order of sentence. Hence it was submitted that these appeals being devoid of any merit be dismissed. 16. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that P.Ws. 2, 9, 7& 8 are the eye witnesses to the occurrence. Their testimony is trustworthy and reliable. Nothing has been elicited in their cross examination to demolish or discredit any part of their testimony. These witnesses have narrated the occurrence in detail. They are the natural witnesses. The testimonies of these witnesses inspire confidence. It is the case of the prosecution that except these four witnesses there was no other eye witnesses to the occurrence. In view of the such nature of the case of the prosecution as there was no eye witness other than these four eye witnesses examined by the prosecution in the case, hence there is no force in the submission advanced on behalf of the appellants that the failure on the part of the prosecution to examine independent eye witnesses has weakened the case of the prosecution. We are of the considered view that the cogent testimonies of the four eye witnesses P.Ws. We are of the considered view that the cogent testimonies of the four eye witnesses P.Ws. 2, 7, 8 & 9 have established the fact of the case of the prosecution that Kishun Oraon had hot exchange of words with Budhana Oraon and after some interval the three appellants along with one juvenile co-accused came together to the place of occurrence and the accused first Sirmuna Oraon assaulted Dhariya Oraon with an axe (tangi) and Kishun Oraon was supporting him by first assaulting Budhana Oraon with lathi and when Budhana Oraon fell down Sirmuna Oraon assaulted him with axe and also that Sirmuna Oraon caused hurt to the PW2 by assaulting her with the axe, beyond reasonable doubt. But the evidence against Hardayal Oraon is that he caught hold of P.W. 9 - Choudhary Oraon while the juvenile co-accused Bandhanu Oraon assaulted the PW 9 and thereafter PW9 managed to flee away from the place of occurrence. 17. So the point falling for consideration is that in the facts and circumstances of the case, whether the trial court was right in holding that all the three appellants acted in furtherance of common intention in committing the murder of Dhariya Oraon and Budhana Oraon and whether the trial court was right in attributing constructive liability to the appellants while convicting them under section 302 read with 34 of the Indian Penal Code. 18. It is a settled principle of law that to invoke Section 34 of the Indian Penal Code, it must be established that the criminal act was done by more than one person in furtherance of the common intention of all. It must, therefore be proved that (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 of the Indian Penal Code is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention get satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Minds regarding the sharing of common intention get satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention. 19. The Hon''ble Supreme Court of India in the case of Balu vs. State (UT of Pondicherry), (2016) 15 SCC 471 after referring the judgment of the Privy Council in Mahbub Shah vs. King-Emperor AIR 1945 PC 118 and Ramesh Singh vs. State of A.P. (2004) 11 SCC 305 held in paragraph 14 and 15 as under:- "14. Common intention is seldom capable of direct proof, it is almost invariably to be inferred from the proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The inference to be drawn from the manner of origin of the occurrence, the manner at which the accused arrived at the scene and the concert with which the attack was made and from the injuries caused by one or some of them. The crime actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor. 15. Under section 34 IPC, a pre-concert in the scene of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proving facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted." 20. The question whether there was any common intention or not depends upon the inference to be drawn from the proving facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted." 20. In the light of the above principles, considering the present case, in our view, the evidence in the record as already mentioned above do not indicate that Hardayal Oraon has any common intention to commit the murder of either Budhna Oraon or Dharia Oraon because the only evidence which the prosecution has succeeded in establishing against Hardayal Oraon is that he came to the place of occurrence and caught hold of the PW9 while the juvenile co-accused Bandhanu Oraon assaulted him with lathi and thereafter PW9 fled away from the place of occurrence. Had he been having the common intention of committing the murder of either Budhna Oraon or Dharia Oraon, Hardayal Oraon could well have assaulted either of them or at least could have exhorted the co-accused to assault them or could have aided the co-accused persons in any manner in commission of the offence of murder of either Budhna Oraon or Dharia Oraon. But the prosecution having failed to prove any such fact, we are of the considered opinion that this is a fit case where the accused Hardayal Oraon be acquitted of the charge for the offence punishable under section 302/34 of the Indian Penal Code by giving him the benefit of doubt. In the absence of any specific evidence in the record to the effect that Hardayal has caused hurt to anybody or that any hurt has been caused to PW9 and as no injury report of PW9 has been produced, we are of the considered view that this is a fit case where Hardayal Oraon be acquitted of charge for the offence punishable under section 323/34 of the Indian Penal Code as well. 21. 21. So far as the accused Kishun Oraon and Sirmuna Oraon are concerned we are of the considered view that the evidence in the record is sufficient to establish that they had the common intention to murder Budhna Oraon and Dharia Oraon as well as causing hurt to PW2-Sadahani Orain, as already mentioned above there is evidence in record that Kishun had hot exchange of words with Budhna Oraon and he went to the house of Hardayal Oraon and after some interval came with Sirmuna Oraon and other two accused persons and besides Sirmuna, Kishun also assaulted Budhna Oraon. Hence, these facts are sufficient to infer that the conduct of these two appellants show that they have common intention to commit the offence. The ocular testimony of the eye-witnesses is also corroborated by the evidence of P.W.1 Doctor who has stated that the incised wound on lateral aspect of left occipital bone size 4"x1" x bone deep was sufficient to cause death of Dharia Oraon and Depressed fracture of left orbital bone and left maxilla was sufficient to cause death of Budhna Oraon. Postmortem report of both the deceased as well as the injury report of Sadahani Orain(P.W.2) has been proved by the P.W. 1. 22. Hence, in view of the facts and circumstances of the case we are of the considered view that the appellant of Cr. Appeal (DB) No. 421 of 2007 namely Sirmuna Oraon and appellant of Cr. Appeal (DB) No. 43 of 2007 namely Kishun Oraon have rightly been convicted and sentenced for the offence punishable under section 302/34 of the Indian Penal Code for committing the murder of Budhna Oraon and Dharia Oraon and under section 323/34 of the Indian Penal Code for the offence causing hurt to Sadahani Orain (P.W.2). There is no illegality in the portion of impugned judgment of conviction dated 18.11.2006 and order of sentence dated 21.11.2006 passed by Additional Sessions Judge, Fast Track Court, Lohardaga in S.T. No. 132 of 2005 whereby and where under the appellants namely Kishun Oraon and Sirmuna Oraon were found guilty and convicted and sentenced for the offence punishable under section 302/34 as well as 323/34 of the Indian Penal Code hence the said conviction and sentence of Kishun Oraon and Sirmuna Oraon is affirmed.Accordingly Cr. Appeal (DB) No. 421 of 2007 and Cr. Appeal (DB) No. 43 of 2007 are dismissed. 23. Appeal (DB) No. 421 of 2007 and Cr. Appeal (DB) No. 43 of 2007 are dismissed. 23. But so far as the appellant of Cr. Appeal (DB) No. 671 of 2007 namely Hardayal Oraon is concerned, as already indicated above we are of the considered view that the evidence in the record is not sufficient to hold him guilty and convict for the offences punishable either under section 302/34 or under section 323/34 of the Indian Penal Code accordingly his conviction and sentence by the trial court both for the offence punishable under section 302/34 or under section 323/34 of the Indian Penal Code is set aside and he is acquitted of both the charges by giving him the benefit of doubt. The appellant Hardayal Oraon is on appeal bail. In view of his acquittal he is discharged of the liabilities of his bail bond. 24. The appellant Sirmuna Oraon is already in custody and undergoing the sentence. The appellants Kishun Oraon is on bail. In view of the confirmation of the judgment of conviction and order of sentence, the appellant-Kishun Oraon, is directed to surrender before the trial court within a month from the date of this judgment to undergo the sentence, failing which, the trial court is directed to take coercive steps to compel his appearance for undergoing the sentence. 25. Cr. Appeal (DB) No. 671 of 2007, is allowed. The rest two appeals are dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. Ordered Accordingly.