Summary
Mere presence at the scene did not establish three accused persons’ common intention or participation in a fatal assault. They received benefit of doubt. The fourth accused’s murder conviction was sustained on the proved circumstantial chain, including recovery of the weapon from his house. The fact that there were only two fatal injuries did not justify reducing his offence to culpable homicide not amounting to murder.
Issues
- Whether the circumstantial evidence established each appellant’s responsibility for murder with common intention.
- Whether the surviving conviction should be reduced to Section 304 Part II IPC.
Held
- The witness arrived after the assault and was not an eyewitness. His evidence established the appellants’ presence but did not establish that the three appellants were carrying lathis, had assaulted the deceased, or shared a common intention to kill. The nine circumstances did not clinchingly establish their complicity, warranting benefit of doubt. (¶¶ 2–4, 7)
- The proved circumstances, particularly recovery from Dipankar Bora’s house of the lathi used in the assault, together with the medical evidence, supported the concurrent finding of his individual guilt for murder. (¶¶ 4–5, 7)
- The number of fatal injuries alone did not bring the case within an exception to murder. Suspecting and chasing the unarmed deceased as a thief did not justify the vigorous stick blows that caused fatal injuries. Conversion to Section 304 Part II was refused. (¶ 6–7)
Result
Appeal partly allowed. Convictions of Bikash Bora, Atul Bora and Haren Rautia under Sections 302/34 IPC set aside and they acquitted on benefit of doubt. Dipankar Bora’s appeal dismissed; conviction and sentence under Section 302 IPC simpliciter upheld, bail bond cancelled and surrender directed within four weeks to serve the remainder, failing which police to proceed according to law.