JULIA ALIAS ABDUR RAHMAN Vs. STATE

JUDGEMENT

(1.) THIS appeal is on behalf of Julia alias Abdur Rahman against his conviction under Section 302 read with Section 34, Penal Code, and sentence to transportation for life. The accused was tried with the help of a jury by the learned Additional Sessions Judge, L. A. D., and agreeing with the unanimous verdict of the jury, the learned Judge found the accused guilty and sentenced him as aforesaid.

(2.) THE case for the prosecution was that on the date of occurrence, Rajab Ali of Madarguri was proceeding on a bicycle from the house of his brother Asori Moral who lived in the village Chitalmari and before he had covered about half a mile, he was waylaid by some persons including the present accused, Julia. Two of Asori Moral's sons, Mofizuddin and Ramjan Ali, also proceeded to the same destination as Rajab Ali but by a slightly different route - Rajab Ali having proceeded by a path which was convenient for the purpose of biking and his companions had gone by a short -cut none too distant from this path, - by the side of the river known as Latori. The two persons who accompanied Rajab Ali heard a 'halla' near the house of Asan Fakir which was situated in village Chitalmari on the northern bank of the stream Latori and they could see that Asan Fakir attacked Rajab Ali with a prong (kocha) on his back, accused Julia alias Abdur Rahman gave several blows on his head with a dao when he fell down and then other persons including Sadat Ali dealt several blows on Rajab Ali who lay prostrate and after the man was thus murdered, his body was removed to the southern bank of the stream by accused Julia and another person by the name of Momruz.

(3.) THE only point of law pressed by the learned Advocate for the appellant is that Section 34, I. P. C., was not properly explained to the Jury and his contention was that the learned Judge was obviously wrong in explaining that Section 34, I. P. C.,' would be applicable even if the persons attacking the injured had the common intention only at the time of the commission of the crime. The learned Advocate urged that it ought to have been definitely pointed out to the jury that there should be something to indicate that the common intention was formed before the offence was actually committed, and in support of this contention, he relied on a decision of this Court reported in - Muklesur Rahman v. The King AIR 1950 Assam 98 (A). The learned Advocate drew our attention to the following passage occurring in the judgment delivered by Thadani C. J. -