- (1.) THE appellants, Dhodhey Pahan @ Dore Pahan and Gonjhu Pahan @ Ganjhu Pahan, were arrayed as A -1 and A -2. They were tried along with Hari Pahan under Section 302/34 of the Indian Penal Code , on the allegation that Hari Pahan assaulted the deceased Birsa Munda to death, while the appellants prevented PW -1, Made Mundain, sister of the deceased, from going to the help of her brother. The trial court finding the appellants guilty, as charged, sentenced each one of them to imprisonment for life. The present appeal is against the said conviction and sentence. 2. The appellants and Hari Pahan are brothers. The appellants and Hari Pahan were suspecting that the deceased was practicing witchcraft. This is said to be the motive for the unfortunate incident, which took place on 11.7.1994 at about 8.00 p.m. On 11.7.1994 at about 6.00 p.m., Birsa Munda accompanied by his sister, Made Mundain, went to the house of his cousin to attend a function. After taking drinks and dinner, the deceased came out of the house, followed by his sister. At that time, the appellants and Hari Pahan, who was arrayed as A -3 before the trial judge, appeared before the deceased. Hari Pahan assaulted the deceased with Tangi. The appellants, who were present, prevented PW -1 from going to the help of her brother. After the deceased fell down and died, the appellants went away from the place. The occurrence was witnessed by PW -1 as well as by PW -7, Role Pahanin. Fardbayan, Ext.3, was given by pw -1 and it was registered as an F.I.R. The investigation in the crime was taken up by PW -6, Shyam Kumar Singh, who then conducted inquest over the dead body and prepared inquest report. Ext.4 is the carbon copy of the said inquest report. He also prepared the seizure list for the recovery of blood stained Tangi and earth. Thereafter, the dead body was sent to the hospital with a requisition, requesting the doctor to conduct autopsy. 3. On receipt of the requisition, PW -5, Dr. Vijay Kumar Prasad, conducted autopsy on the dead body and he found the following injuries : (i) Sharp cut injury 4 1/2" 11/2" 2" on right parietal region cutting the skin muscle, brain, bone and arteries. Brain matters was cut and was out; (ii) Sharp cut injury 4"1" 1" on the right side of face cutting the soft tissues including vain and arteries right ramous, Mandible and lower part of frontal bone; (iii) Sharp cut injury 4" 1" 1" on right upper arm cutting the soft tissues. The doctor issued Ext.2, the post mortem report, with his opinion that the injury No. 1 and 2 are sufficient in the ordinary course of nature to cause death and the said injuries could have been caused by heavy sharp cutting weapon. 4. After the completion of investigation, the final report was filed against the appellants including Hari Pahan. 5. The learned Counsel appearing for the appellants submits that there is absolutely no material to show that the appellants shared the common intention of Hari Pahan as even, according to the prosecution, it was Hari Pahan, who assaulted the deceased with Tangi and, therefore, the appellants are entitled to be acquitted. 6. We have heard Mr. S.N. Rajgarhia, learned A.P.P. for the State. 7. The case of the prosecution is that the appellants and Hari Pahan are brothers and they were suspecting that the deceased is practicing witchcraft and that according to the prosecution the occurrence took place at 8.00 p.m. on 11.7.1994 on account of the said fact. The evidence of PW -1 indicates that on 11.7.1994 at about 6.00 p.m. she and her brother (the deceased) went to attend a function in the house of PW -4, Majhi Pahan, and later when the deceased came out of the house after taking drinks and meals, she followed him. According to her, the appellants and their brother Hari Pahan appeared before the deceased and the said Hari Pahan inflicted the injuries on the deceased. PW -7 also gave evidence on the same line. 8. On going through the evidence, we are unable to find any material to indicate that the appellants prevented PW -1 from coming to rescue of the deceased only with a view to enable Hari Pahan to assault the said deceased. There is no evidence from which this Court can infer that the two appellants shared the common intention of Hari Pahan, who is said to have assaulted the deceased. We are unable to accept the evidence of PWs -1 and 7 that they were prevented from going to the help of deceased, so as to enable Hari Pahan to assault the said deceased, since admittedly the occurrence took place in front of the house of PW -4 where there were number of persons, who had come to attend the function in his house. The appellants by merely preventing PW -1 could not have enabled Hari Pahan to assault the deceased as the other persons who would have been present, could have also gone to the help of the deceased. 9. We find the evidence of PWs -1 and 7 that the appellants prevented PW -1 from going to help of her brother is difficult to believe. We also find it difficult to come to the conclusion that the appellants shared the common intention of Hari Pahan in causing the death of Birsa Munda. We, therefore, set aside the conviction and sentence imposed upon the appellant. 10. The appeal is allowed. It is reported that the appellants, Dhodhey Pahan @ Dore Pahan and Gonjhu Pahan @ Ganjhu Pahan, are in jail; they shall be released forthwith, unless they are wanted in connection with any other case(s).;