Allahabad High Court
Omkar Nath And Another vs State on 10 March, 2026
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:48123-DB
Reserved on 16.2.2026 Delivered on 10.3.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1121 of 1987
Omkar Nath And Another
.....Appellant(s)
Versus
State
.....Respondent(s)
Counsel for Appellant(s)
:
P.N. Misra, Sharad Shekhar Sharma
Counsel for Respondent(s)
:
A.G.A.
Court No. - 46
HON'BLE SIDDHARTH, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri Sharad Shekhar Sharma, learned counsel for appellant no.1, Omkar Nath; Smt. Manju Thakur, learned A.G.A. Ist for the State respondent and perused the trial court record.
2. This criminal appeal has been preferred by learned counsel for the appellant against the judgment and order dated 16.4.1987 passed by Sessions Judge, Jaunpur, in Sessions Trial No.77 of 1984, convicting and sentencing the appellant for life imprisonment under Section 302/34 IPC.
3. The prosecution case is that on 24.3.1983 one, Tara Devi, daughter of Ram Kumar (sister of Onkarnath, accused) was grazing her buffalo in the vacant field of Rajaram, son of Behari Pathak, situated by the side of the field of the informant, Achhaiber Pathak (P.W.1). The informant's daughter, Malti (P.W.3) told Tara that her buffalo was grazing in the field of the informant. In reply Tara said that her buffalo is not grazing in the field of the informant. On this issue both the girls entered into an altercation. It was about 9 a.m. when the victim, Furari went there and tried to intervene. In the meantime accused, Onkarnath and Sudama, having lathis, reached there and started quarreling with Furari. Accused, Onkarnath, struck a lathi blow from the top end of the lathi in the abdomen of Furari as a result of which he fell down. Thereafter, accused, Sudama, sat over on Furari. Furari became unconscious. The incident was witnessed by the informant, Achhaiber (P.W.1); Prabhawati (P.W.2); Narhkoo, Rajaram who intervened. The accused persons ran away from the spot. Victim, Furari, was taken by the informant and other persons on a cot to Sudhirganj where Dr. Nandlal examined the victim and informed that he had died. Thereafter, the informant and other men came back to their village and kept the dead body of the victim at the Chak road beside his wheat field.
4. After the incident the informant (P.W.1) got the written report Ex. Ka1 scribed by Salikram and lodged it with the police at 12.30 p.m. at the Police Station Rampur. The distance of the Police Station from the place of the occurrence is about six miles. On the basis of the written report Ex.Ka-l, the chick F.I.R. EX.Ka-8 and the general diary report copy of which is Ex.Ka-9 were prepared and a case under section 302 I.P.C. was registered against the accused persons. Station Officer of Police Station Rampur was not present there as he had gone to Head Quarter Jaunpur.
5. After the submission of the charge-sheet, the case was registered in the Court of the Chief Judicial Magistrate, who committed the accused persons to the Court of Sessions on 26.3.1984 to stand their trial.
6. Charge framed by the trial court on 3.9.1984 was read over and explained to the accused. They pleaded not guilty and claimed to be tried.
7. In support of its case, the prosecution examined P.W.-1, Ram Achhaiber (P.W.1); P.W.-2 Smt.Prabhawati and P.W.-3 Malti as eye witnesses of the occurrence. The rest of the formal witnesses are P.W.-4, S. I. P. D. Verma; P.W.-5 Constable Parasram; P.W.-6 Constable Rameshwar; P.W.-7 Dr. C.K. Gupta and P.W.-8 S.O. Qazi Anwarul Aziz.
8. The defence has examined three witnesses D.W.-1, Constable Pursottam Singh; D.W.-2 Suresh Prasad, Record-Keeper of the Police Officer and D.W.-3 Ram Prasad, father of accused Sudama.
9. P.W.1, Ram Achhaiber, deposed that the deceased, Furari, was his elder brother. The field where the occurrence took place is situated at a distance of about 100 paces towards the north from his house. On the day of the occurrence, buffalo of Ram Kumar was grazing in the field of the witness. His daughter, Malti (P.W.3), complained to Tara, daughter of Ram Kumar as a result of which both the girls started quarreling. It was about 9 a.m. when he on hearing the quarrel went there. Deceased, Furari, also went there from his house. The accused persons, Orkarnath and Sudama, also arrived at that place. Accused, Omkarnath, inflicted a blow by the top of his lathi in the abdomen of the deceased as a result of which he fell down. Thereafter, on his exhortation accused, Sudama, sat over on the chest of the victim and throttled him. At the time of the incident P.W.-2, Smt. Prabhawati, Rajaram, Laxminarain, Kaloo and others also arrived at the place of the occurrence as a result of which the accused persons ran away. Furari died on the spot. The informant and other persons who gathered there decided to take Furari to a doctor as his body was still warm. The victim was taken to Sudhiranganj where doctor Ramlal declared him dead. Thereafter the dead body was taken back to their village and was kept on the chak road near the place of the occurrence. The witness got the written report scribed by Salikram and lodged the same at the Police Station. In his cross-examination the witness admitted that P.W.2, Smt. Prabhawati, is the wife of Ram Kishore and Ram Kishore had his own separate Khata. In relationship Smt. Prabhawati is the daughter-in-law of the witness. Sudhiranganj, where the victim was taken, is situated at a distance of about one kilometer from the village of the witness. He denied the suggestion of the defence that his house was situated at a distance of about 500 paces from the place of the occurrence. He further admitted that there was some dispute between him and his nephews regarding the property of the deceased. He has further stated that he was alone, therefore, he did not proceed to the Police Station from Sudhiranganj and returned to his village. Police Station Rampur is at a distance of about six kilometers from his village and about five kiometers from Sudhiranganj. He has further stated that at the time of the incident P.W. 2., Smt. Prabhawati, was present at the spot and she was scraping grass, and the witness was in his field, which was situated at a distance of about 100 paces towards east from the place of the occurrence.
10. P.W.2, Smt. Prabhawati, has supported the prosecution case and corroborated the statement of P.W.1, Ram Achhaiber, informant. She has stated that on the day of the incident at about 9 a.m. both the girls Malti and Tara were grazing their buffaloes. The buffalo of Tara strayed into the wheat field of deceased. On complaint of Malti (P. W.3) both the girls started abusing each other. Malti (P.W.3) is the daughter of Ram Achhaiber and Tara is the daughter of Ram Kumar and sister of accused, Onkarnath. At the time and place of the occurrence the witness was also grazing her buffalo in the nearby field of Rajaram. Ram Achhaiber (P.W.1), informant, was harvesting in his field. The accused persons, having lathies arrived at that place from their house and started altercation with Ram Achhaiber. Meanwhile Furari (deceased) arrived and he also said some thing on which accused, Onkarnath, struck a blow by the top end of his lathi as a result of which he fell down where after accused, Sudama, throttled the victim. Thereafter, Rajaram and other witnesses arrived and as a consequence thereof the accused persons ran away. Furari became unconscious. In her cross-examination she stated that her house was situate at a distance of about 50 paces from the house of Achhaiber. On the day of the incident the Investigating Officer had reached the village at about 2:00 p.m. She has further stated that the top end of lathi of accused, Onkarnath, had struck the left side of the chest of the deceased, Furari as a result of which he fell down on the ground having his face upward. The occurrence took place on the chak road at a distance of about 10 paces towards the west of the field of Achnaiber (P. W.1).
11. P.W.-3, Smt. Malti Devi, daughter of informant Achhaiber (P.W.1) stated that on the day of the occurrence at about 9:00 a.m. She and Tara, daughter of Ram Kumar, were grazing their buffalloes near the place of occurrence. The buffaloes of Tara went into the wheat field of deceased, Furari. Furari was her uncle. She complained to Tara about it and Tara started abusing her. Furari was there in the field. He forbade Tara from abusing. The accused persons, Onkamath and Sudama, having lathis arrived at that place and accused, Onkarnath, struck by the top end of his lathi in the chest of the victim as a result of which Furari fell down on the ground and thereafter accused, Sudama, sat over the chest of the victim and throttled him. The incident was witnessed by so many witnesses. Furari was unconscious and he was taken on a cot for medical treatment. In her cross-examination she stated that her house is about 100 paces away from the place of the occurrence. She denied the suggestion of the defence that her house is actually at a distance of about three furlons from that place. She further stated in her cross-examination that she is illiterate. She stated that Darogaji had come to the place of the occurrence at about 10 or 10.30 a.m. and when he sent the dead body of the victim in a sealed condition it was about 12 O' clock in the day.
12. Therefore, the investigation was started by S.I. P.D. Verma (P.W.4). S.I. P.D.Verma stated that on 24.3.1983 he was posted as Sub-Inspector of Police at Police Station Rampur. On that day at 12.30 p.m. in the day this case was registered at the Police Station in his presence. The Station Officer was not present at the Police Station and, therefore, he started the investigation of the case. He recorded the statement of the informant Achhaiber (P.W.1) at the Police Station and thereafter proceeded along with other police personnel to the place of the occurrence. He found the dead body of the deceased, Furari, at the Chak road towards the west of the wheat field of the informant. He conducted inquest on the dead body and prepared the inquest report Ex. Ka-2; photolash Ex.Ka-3; sample of seal Ex. Ka-4, the letter for post mortem examination Ex.Ka-5 and the Challan lash Ex.K?-?. Thereafter, he sent the dead body in a sealed condition to the mortuary for post mortem. He also prepared the site plan of the place of the occurrence Ex.Ka-7 at the instance of the witnesses. On 25.3.1983 Station Officer S.I. Qazi Anwarul Aziz took the investigation of the case in his hand.
13. P.W.-5, Constable Parasram stated that on 24.3.1983 he was posted as Constable Moharrir at Police Station Rampur. On that day the informant, Achhaiber Pathak, handed over the written report Ex. Ka-l at the Police Station at 12:30 p.m. in the day on the basis of which he prepared the chick F.I.R. Ex.Ka-8 and the G.D. report copy of which is Ex.Ka-9 whereby a case was registered against the accused persons.
14. P.W.-6, Constable Rameshwar deposed that on 24.3.1983 he was posted as a Constable at the Police Station Rampur. On that day he had gone to village Sarwanpur Gaura Patti where the occurrence had taken place with the Sub-Inspector of Police. The dead body of the deceased, Furari in a sealed condition was given to witness and Constable Keshava Prasad Misra to carry it to the mortuary. He also identified the dead body at the time of the post mortem. He has stated that so long the dead body was in his custody, its seal remained intact.
15. P.W.-7, Dr. C.K. Gupta, has stated that on 25.3.1983 he was posted as Medical Officer, District Hospital, Jaunpur. On that day at 12:00 p.m. in the day he conducted the post mortem examination on the dead body of deceased, Furari, son of Ramnaresh Pathak, resident of Swaranpur, Police Station Rampur, district Jaunpur. He has stated that the probable age of the deceased was 60 years and one day had elapsed since his death, at the time of the post mortem examination. Rigor mortis was present in the upper as well as in the lower limbs of the body. The body was slightly swollen and decomposition had started.
16. The doctor, PW-7, found the following ante mortem injuries on the dead body :-
i. Contusion, 3 cm x 1 cm over the back of right forearm middle.
ii. Contusion 3 cm x 1.5 cm over the right side chest, 5 cm below and outer right nipple.
iii. Abrasion 1.5 cm x 1 cm over the outer aspect of the left elbow joint.
iv. Abrasion 2 cm x 1 cm over the upper part of right buttock.
v. Abrasion 1.5 cm x 1 cm over the middle back at the level of thorasic twelve spine.
vi. Abrasion, 3 cm x 2.5 cm over the top of head, 13 cm above the right ear cartilage.
vii. Contusion 3.5 cm x 1.5 cm over the right upper chest including the right supra clavicular region.
17. On internal examination the doctor found that there being no ligature mark on the neck and upper part of the chest, there was swelling over these parts and the sub-cutanious tissues were full of blood and the muscles of the neck were lacerated. Under injury No.7 there was a fracture of right third, fourth and fifth ribs. The larynxs and trachea were found congested and contained frothy mucus. The thyroid cavity was found loose. Right side chest was full of dark fluid blood. The doctor further found the pancreas, spleen and kidneys congested. In the opinion of the doctor the death was due to asphyxia as a result of pressure over neck and upper chest. The doctor has proved the post mortem report Ex. Ka10.
18. P.W.8 S.O. Qazi Anwarul Aziz deposed that in 1983 he was posted as Station Officer Rampur. On 25.3.1983 he took the investigation of this case from S.I., D.P. Verma (P.W.4). He went to the place of the occurrence and recorded the statements of Prabhawati (P.W.2); Smt.Malti (P.W.3) and other witnesses. On 26.3.1983 he received the result of the post mortem and on 31.3.1983 he arrested the accused Onkarnath and Sudama and interrogated them. After completing the investigation he submitted the charge-sheet Ex.Ka-11 under section 304 I.P.C. against the accused persons.
19. The accused persons have been examined under section 313 Cr.P.C. They stated that they did not commit any offence and have been falsely implicated in this case. The defence case as appears from the statement of the accused persons made under section 313 Cr.P.C. and also from the trend of cross-examination appears to be of total denial of the prosecution case.
20. The defence has examined three witnesses. D.W. 1, Constable Pursottam Singh, has proved Ex. Kha-l, carbon copy of the F.I.R. under sections 504 and 506 I.P.C. lodged by Ram Prasad (father of accused, Sudama) against Radhey Shyam and others on 9.5.82 which is in the handwriting of one Ravindra Verma, the then Head Constable. D. -W.-2, Sri Suresh Prasad, Record-Keeper of the Police Office, Jaunpur, has deposed that an application dated 9.5.82 of Ram Prasad to the Superintendent of Police was requisitioned, but the weeding period of such applications is two years and, therefore, there was no trace of such application. In his cross-examination he stated that he cannot say whether any such application was moved or not. D.W.3, Ram Prasad (father of accused Sudama) deposed that the accused, Onkarnath, is his nephew. On 9.5.82 he had lodged a report Ex. Kha-l with the Police at Police Station Rampur. On 11.5.82 he had given an application to the Superintendent of Police, Jaunpur, regarding the threats of Radhey Shyam and others. The carbon copy of that application is Ex.Kha-2. In his cross-examination he stated that he had sent that application to the Superintendent of Police through registered post, but the postal receipt was traceless. He further stated that he got the application Ex. Kha-2 typed with the consultation of a lawyer at Tahsil Mariahu, but the name of that lawyer is not known to him.
21. Learned counsel for the appellant has submitted that both the appellants, namely, Omkar Nath and Sudama (deceased) are cousins. Both the appellants are residents of the village of deceased, Furari and informant, Achhaiber Pathak. The deceased, Furari and informant, Achhaiber, are real brothers. Two girls, who quarreled regarding grazing of buffaloes, are Tara and Malti. Tara is the sister of appellant no.1, Omkar Nath and Malti is the daughter of informant, PW-1, Achhaiber. PW-1 has admitted that father of the deceased, appellant no.2, Sudama, had registered a case under Sections 147, 148, 323, 336 IPC against his sons, namely, Radheyshyam and Harish Chandra and sons of PW-2, namely, Girjashankar and Ramashankar. Hence because of aforesaid enmity, the appellants were falsely implicated in this case. PW-1 admitted that deceased, Furari, was his real brother and his wife died before Gauna. Thereafter, he never re-married and PW-1 got a sale deed executed regarding half share of the property of Furari in favour of his wife. The deceased, Furari, wanted to give his remaining land to his other brothers and nephews, which was not liked by PW-1 because he wanted to grab his whole share of the property. There was dispute between the deceased and PW-1 regarding property and PW-1 throttled Furari to death, so that, he may get his remaining half share of property by way of inheritance. P.W.-1 admitted in his cross-examination that it is correct that dispute regarding inheritance of property is pending between him and the deceased, Furari and there is dispute of PW-1 with his brothers and nephews. Even otherwise appellant no.1, Omkar Nath, has been assigned the role of causing injury to the deceased by lathi, when the cause of death of the deceased was asphyxia as a result of pressure over neck and upper chest, which role was assigned to the deceased, appellant no.2, Sudama. No lathi allegedly used in the crime was recovered by the police. The three ribs of the deceased could not have been broken by lathi. PW-7, Autopsy doctor, has stated in his cross-examination that the ribs of the deceased could have been broken after keeping heavy wooden plank or stone over the chest of the deceased. All the prosecution witnesses are highly interested witnesses. PW-2, Prabhawati Devi, is daughter-in-law of the family of PW-1 and Malti Devi is daughter of Rajaram. There is difference in the statements of PW-2 and PW-3 as to when the inspector came on the place of occurrence while PW-2 stated that he came at 2:00 p.m. and PW-3 stated that he came at 10-10:30 a.m.
22. Learned counsel for the appellant has submitted that when the dispute took place between Malti and Tara, it was 9:00 a.m. and he came to the place of incident and PW-1 also came to the place of incident and his brother, Furari, followed him. PW-3, Malti, stated that her uncle, Furari was already present in the field and he forbaded Tara from abusing Malti. This raises doubt about the prosecution case. PW-2 was questioned by the Court as to why he brought the dead body back to his house after the doctor at Sadhiranganj declared Furari dead. He replied that how he could have taken the dead body to the police station alone and hence he came back. When PW-1 has stated in the FIR that he took Furari in unconscious position with the help of Nanhkoo, Rajaram, Kalu and Mithai on a cot to Sadhiranganj and he was examined by doctor, Nandlal, who declared him dead and thereafter leaving the dead body on the cot in the wheat crop field on the chak road under the care of aforesaid persons, he went to lodge the FIR.
23. Learned counsel for the appellant has submitted that if the deceased could have been taken to the Sadhiranganj by four persons on cot, he could have been taken to the police station in the same position on cot and there was no occasion for leaving the dead body in the field. This raised doubt about the prosecution case. It has further been submitted by learned counsel for the appellant that PW-1 stated in his statement that the accused persons after assaulting the deceased waited and only after he died they vanished from the scene while PW-2 has stated that accused ran away after assaulting the deceased and Rajaram and others came thereafter. After the accused ran away, he saw that Furari was unconscious. PW-1 stated that after hearing the noise, Prabhawati, Rajaram, Mithai, Laxmi Narayan, Kalu, etc., and all his nephews came, but two accused did not leave the place of incident. Only after his brother, Furari, died they ran away.
24. Learned counsel for the appellant has laid much stress on the fact that when PW-1, Achhaiber, Nanhkoo, PW-2, Prabhawati, Rajaram and PW-3 were present on the spot why they did not intervened and tried to catch hold of the accused, who were only armed with lathi. They could have catch hold of the accused and taken them to the police station. PW-1 was having sickle in his hand, where from harvesting his wheat crops, but he did not tried to save his brother by even threatening them of causing injury by sickle.
25. Learned AGA has opposed the submissions made by learned counsel for the appellant. He has submitted that the appellant is raising hyper technical issues before this Court. The trial court has considered the entire evidence on record and has found prosecution case to be reliable and has thus directed conviction of the appellants. Findings of facts recorded by the trial court are based on evidence on record. The judgment and order passed by the trial court is well merited and may not be interfered with.
26. After hearing the rival submissions and going through the material on record and judgment and order passed by the trial court, this Court finds that as per the statement of Autopsy Doctor, PW-7, throttling of the deceased was caused by appellant no.2, Sudama, who has already died. Appellant no.1, Omkar Nath, was assigned the role of causing injury to the deceased by poking the lathi in his stomach, but the doctor has not found any fatal injury caused by lathi in the stomach of the deceased. Fracture of three ribs, as per the opinion of doctor, could have been caused by putting heavy wooden plank over his chest or causing injury by stone. Prosecution has neither furnished any such explanation nor explained how the three ribs of the deceased were fractured. This Court finds that deceased was aged about 60 years and there is allegation against the deceased, appellant no.2, Sudama that after the deceased fell down, he pounced upon him and sat on his chest and pressed his neck. The prosecution has not given any explanation regarding the fracture of three ribs of the deceased. However, considering that the deceased was about 60 years old and may have been of frail health, it is possible that the fractures were caused when Appellant No. 2 forcefully pounced on the chest of deceased. The arguments of learned counsel for appellant no.1 have also pointed out to the number of infirmities in the statements of prosecution witnesses regarding the manner and time of commission of offence and also about the conduct of PW-1 of not taking the dead body of the deceased to the police station after doctor declared the deceased dead. The prior enmity between the parties is double-edged sword and could be interpreted in both ways. The appellants are real brothers and were having dispute regarding property. PW-1 has admitted that there was dispute regarding half share of deceased, Sudama, between his brothers and nephews, including PW-1. PW-1 had already got half share of the sale deed of property of deceased executed in favour of his wife and wanted to get remaining half share of the property of deceased, Sudama, when his other brothers and nephews were also the claimants of the same. Learned counsel for the appellant has laid much stress on the fact that this was the reason of murder of Furari. This Court further finds that petty dispute between two girls regarding grazing of buffaloes and murder of one person on that account is not a very convincing motive when there was no evidence that there was prior enmity between the family members of both the girls nor there is any such allegation in the FIR.
27. So far as motive is concerned, there is not much need to prove motive in cases of direct evidence. In this case the issue is whether the direct evidence inspires confidence of the Court regarding the role assigned to the surviving appellant no.1.
28. We find that the appellant no.1 has been attributed role of causing injury by the pointed side of lathi to the deceased. It is stated by the prosecution witnesses that he poked his lathi in the stomach of the deceased but no such injury was found in the stomach of deceased by PW-7, the Autopsy Doctor.
29. The appellant no.1 has been implicated and convicted for committing the offence of murder of deceased in accordance with Section 34 IPC. It is held by the trial court that he committed the offence with co-accused in furtherance of common intention of both.
30. In the case of Mahboob Shah V. Emperor (1945) the Privy Council laid down the following principles relating to the application of Section 34 I.P.C. :-
i. The essence of liability under Section 34 is to be found in the existence of a common intention leading the accused to commit an offense in furtherance of such intention.
ii. To connect several accused together under Section 34, it must be shown that one of the accused committed an offense in furtherance of the common intention and only then liability for the crime may be imposed on any one of the persons in the same manner as if the acts were done by him alone.
Iii. Common intention pre-arranged plan and to convict the accused of an offense applying the section it should be proved that criminal act was done in concert according to the pre-arranged plan.
iv. In most cases it is very difficult, if not impossible, to procure direct evidence to prove the intention of the person and it has to infer from the conduct of the person and other relevant circumstances of the case.
v. The inference of a common intention as provided under Section 34 of the Indian Penal Code should never be reached unless there exist such compelling circumstances and such common intention is a necessary inference deductible from the circumstances of the case.
vi. Care must be taken not to confuse same intention with common intention, even though the line separating the two is very thin, but yet they are two different concepts and for attaching liability under Section 34 of the Indian Penal Code, the common intention is a necessary pre-requisite along with committing an offense in furtherance of such common intention.
31. In the case of Krishnamurthy @ Gunodu and Others Vs. State of Karnataka 2022 0 Supreme(SC) 268 it was observed by the Apex Court in Para Nos. 18 and 19:-
?18. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or pre-arranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator.
32. In this case, although appellant no.1 is assigned with the role of causing fatal injury to deceased in his stomach but we find that there is no such injury found on the body of deceased by PW-7, the autopsy doctor. The manner of incident shows that due to sudden dispute between two girls regarding grazing of buffaloes, the incident started all of a sudden and after the deceased, Furari, intervened, he was assaulted by appellant no.1 by lathi and appellant no.2 by pressing his neck. Therefore, the appellants came to the place of incident with same intention of repelling Furari, but it was not proved that they had any pre-arranged plan to commit the offence. Some intention is not the same as common intention as considered herein above in the case of Mahboob Shah (Supra).
33. Hence the conviction of the appellant for committing the offence of murder of deceased in furtherance of common intention with deceased, appellant no.2, does not seems justified.
34. Considering the role of appellant no.1, Omkar Nath, loopholes in the prosecution case, unreliable motive set up before the trial court and the role of the witnesses, who gathered on the spot and did not tried to save the deceased, despite possession of sickle by PW-1, lack of proof of common intention of appellant no.1 to commit offence, this Court finds that prosecution has failed to prove its case beyond reasonable doubt. Appellant no.1 is given benefit of doubt and acquitted of all the charges. Hence judgment and order passed by the trial court is set aside.
35. The appellant no.1 is on bail. His bail bonds are cancelled and sureties are discharged. He need not to surrender.
36. The above noted criminal appeal is allowed qua appellant no.1, since appellant no.2, Sudama, has already died and appeal has been dismissed as abated against him by the order dated 8.9.2025.
37. Office is directed to send back trial court record and notify this judgment to the trial court within two weeks.
(Jai Krishna Upadhyay,J.) (Siddharth,J.) March 10, 2026 Ruchi Agrahari