BHAGABAN BARIK Vs. THE STATE

JUDGEMENT

(1.) THIS is an appeal from an order of conviction and sentence passed by the learned Sessions Judge, Cuttack, convicting the accused -Appellant one Bhagaban Barik under Section 304, Part II, Indian Penal Code and sentencing him to undergo rigorous imprisonment for four years in S.T. No 13C of 1959.

(2.) BEFORE the learned Sessions Judge, the accused -Appellant Bhagaban Barik and his father one Bidyadhar Barik were committed to stand trial under Section 302, Indian Penal Code: or intentionally beating one Kanhei Barik of their village to death on February 28, 1959 on account of alleged previous enmity. The learned Sessions Judge gave the benefit of doubt to the father Bidyadhar Barik and acquitted him of the charge under Section 302, Indian Penal Code but found the accused -Appellant Bhagaban Barik guilty under Section 304, Part II, and sentenced him as aforesaid. Hence this appeal by the said accused Appellant Bhagaban Barik.

(3.) MR . P.K. Dhal, learned defence counsel, contended that in this case there was no common intention on the part of those who participated in the assault on the deceased Kanhei. In fact, there was no charge under Section 34 of the Indian Penal Code to warn the accused person of the case he is to answer. Accepting however, the prosecution contention that the omission to mention Section 34 in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof, it is also well settled law that 'common intention' is an intention to commit the crime actually committed and each accused person can be convicted of that crime only if he had - participated in that common intention. Thus the 'common intention' is not necessarily the 'same intention'. In the present case, the intention of all those, who participated in the assault, appears to be to save the woman champa Dei (Bhagaban's wife) on hearing her alarm as aforesaid; the steps that these persons, who rushed to the spot on hearing that the woman was being molested, were certainly not in furtherance of common intention to do a criminal act. The persons, who rushed to the scene in the circumstance as aforesaid, appear to have the same intention of saving Bhagaban's wife but not the common intention of killing the deceased Kanei. 'Common intention' within the meaning of Section 34 implies a pre -arranged plan, to convict the accused of an offence applying Section 34 it should be proved that the criminal act was done in concert pursuant to the pre -arranged plan; it is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case; care must be taken not to confuse same or similar intention with common intention; the partition which divides 'their bounds' is often very thin; nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice; the inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of Mahbub shah v. Emperor : A.I.R. 1945 P.C. 118.