L. Mohapatra, J.
1. This appeal is directed against the judgment and order of conviction and sentence dated 20.11.1996 passed by the learned 1st Addl. Sessions Judge, Puri in S.T. Case No. 79/39C of 1993 convicting the appellants for commission of offence under Section 302/34 of the Indian Penal Code read with Sections 120B of the said Code. All the appellants have been sentenced to imprisonment for life for their conviction under Section 302/34 of the I.P.C. but no separate sentence has been passed for conviction under Section 120B of the I.P.C.
2. Case of the prosecution is that in the evening of 22.1.1990 while the deceased Raghabananda Amaranth was reading newspaper in the Library of Milaca Sava Pakistan the appellants along with the absconding accused persons namely Bidyadhar Raisingh, Bhagaban Barisal and Pitabasa Jena (dead) entered into the campus of the library. Out of the accused persons, it is alleged that appellant No. 2 Rabi Jena, appellant No. 1 Arta Bhujabal and the absconding accused persons namely Bidyadhar Raisingh and Bhagaban Barisal entered into the library room and accused Bidyadhar stabbed on the abdomen of the deceased and all of them fled away leaving the Library room. The deceased shouted and soon after the same, informant (P.W.1) entered into the Library room and found the absconding accused persons Bidyadhar and three others escaping from the room. To prevent witnesses from running to the spot soon after the incident, it is further alleged by the prosecution that the accused persons threw bombs and fled away. After the accused persons decamped, the witnesses rushed to the spot and on being asked, the deceased declared that accused Bidyadhar Raisingh stabbed on his abdomen. He was thereafter removed to the Kanas Hospital and then to Puri Hospital where he succumbed to the injuries on 24.1.1990. On the basis of the written report submitted by P.W.1, a case was registered for commission of offences under Sections 448/326/307/34 of the I.P.C. read with Section 9(b) of the Indian Explosives Act. Investigation was taken up and on completion of investigation, charge-sheet was filed for commission of offence under Section 120B and 302/34 of the I.P.C. read with Section 9(b) of the Indian Explosives Act, 1984. It appears from the record that these appellants only faced trial and three of the charge-sheeted accused persons were absconding, out of whom one Pitabas Jena died, accused Bidyadhar Raisingh has not been tried till today and it is stated at the Bar that the other accused (absconding) Bhagaban Barisal is now facing trial.
3. The prosecution examined 18 witnesses to prove the charges, but none was examined on behalf of the appellants. The trial Court, as it appears from the judgment, relying on the dying declaration made by the deceased as well as the evidence of other witnesses who gathered at the spot immediately after the occurrence and some pre-occurrence witnesses held the appellants guilty of the charges as stated earlier.
4. Learned Counsel appearing for the appellants submitted that so far as assault on the deceased is concerned, it is solely attributed to the absconding accused Bidyadhar Raisingh and there is no allegation that any other accused person assaulted the deceased. It was contended by the learned Counsel for the appellants that there is no allegation of any kind of overt act by any of the appellants. Learned Counsel further contended that the dying declaration clearly shows that the absconding accused Bidyadhar Raisingh had alone entered into the room while the deceased was sitting and after the deceased was stabbed by the said absconding accused, the door was closed from inside by the deceased to save his life. If such dying declaration is accepted, it will be clear that none of the appellants had entered inside the room while the deceased was sitting and therefore none of them can be said to have committed murder of the deceased. So far as Sections 34 and 120B of the Indian Penal Code are concerned, it was contended by the learned Counsel appearing for the appellants that there is absolutely no material on record to show that there was a conspiracy or meeting of mind to do away with the life of the deceased prior to the occurrence and therefore the appellants could not have been convicted for commission of the offences under Section 34 or Section 120B of the Indian Penal Code. Learned Counsel for the State with reference to the evidence adduced before the Court submitted that the dying declaration made by the deceased clearly implicates the absconding accused Bidyadhar who is alleged to have assaulted the deceased by means of a knife. So far as the appellants are concerned, there is evidence to show that the appellants 1 and 2 had also accompanied the absconding accused persons into the library with arms though there is no allegation that they have stabbed the deceased. Conduct of the said two appellants clearly shows common intention of all the appellants to do away with the life of the deceased. It was contended by the learned Counsel for the State that all the appellants had gone to the institution together with arms and shared the same common intention as that of those accused persons who entered into the library and assaulted the deceased. In view of the above, the trial Court was justified in convicting the appellants for commission of offences as stated earlier even though there is no allegation that any one of the appellants had assaulted the deceased.
5. Considering the undisputed fact that none of the appellants had assaulted the deceased, we proceed to examine the evidence adduced in course of trial to find out as to whether the appellants can be convicted with the aid of either Section 34 or Section 120B of the I.P.C. P.W.1 is the informant. He has stated in Court that on 22.1.1990 at about 5 P.M. he and the deceased Raghab wanted to go to village Gada Balabhadrapur to play Volley Ball as usual. By the time they reached near the river that flows in between the villages Bengaon and Gada Balabhadrapur, they found the appellant Rabi Jena leaving the shore in a boat. They requested the appellant Rabi Jena to get the boat back and an altercation of hot words took place between the appellant Rabi and the deceased Raghaba. Thereafter he and the deceased returned back to the village. Same day evening at about 7 P.M. when the deceased was reading newspaper in the Library of Nilachal Seba Pratisthan, all the appellants and the three absconding accused persons entered into the campus of the library with knife, Gupti and bombs. This witness was standing near the 1st year class of the college situated close to the said library. He has further stated to have seen the appellant Rabi Jena, Arta Bhujabal, Bidyadhar Raisingh and Bhagaban Barisan entering into the library with arms. After he saw the aforesaid four accused persons entering into the library, he immediately proceeded to the library and heard cry of the deceased. He found the appellant Rabi Jena holding a Gupti, Bidyadhar Raisingh holding a knife, Arta Bhujabal and Bhagaban Barsal holding bombs. Knife of Bidyadhar was stained with blood. A little thereafter Bhagaban threw bombs near the library and all the accused persons fled away from the spot. This witness has been cross-examined at length and only some contradictions have been pointed out but there nothing in cross-examination to disbelief the statement of this witness. P.W.2 in his deposition has stated about the altercation between the deceased and appellant Rabi Jena near the river shore. He has further stated that in the evening at about 6.30 P.M. he saw the accused persons entering the premises of Nilachal Seva Pratisthan and suspecting something he did not enter into the premises of the said organization, but a few minutes later he heard cry of the deceased and ran to the library room and found the deceased lying with cut injury on the lower abdomen and on being asked the deceased told him that the absconding accused Bidyadhar stabbed him by means of knife. This witness has further stated that by the time he reached the library room, he found Rabi and two other accused persons namely Bidyadhar and Bhagaban leaving the library. Appellant Rabi was holding a Gupti and Bidyadhar was holding a knife, whereas Bhagaban was holding a bag. Arta was carrying a bag with bomb. He has further stated that soon before his arrival, 3 to 4 bomb were exploded near the library room for which he could not mark the activities of other accused persons meticulously. This witness was not examined by the police as stated by him in cross-examination. This witness has further admitted in cross-examination that at the spot he found 3 to 4 persons running ahead of him and he saw them from their back. He could not recognize them from their back. P.W.3 in his deposition in Court has stated that he was working as a Watchman in the Nilachal Sava Pakistan. This witness has stated that on 22.1.1990 at about 7 P.M. he found the accused persons approaching the Library and they had covered half of their faces with cloths. He asked the purpose of their visit and he recognized them to be the appellants Rabi, Arta Bhujabal and the accused persons Bidyadhar Raisingh and Bhagaban Barisal. Said four accused persons are stated to have told P.W.3 that they have some business in the library and entered into the library where the deceased was sitting. Soon after this witness heard shout of the deceased, 4 to 5 bombs were exploded near the library room. He noticed accused Rabi, Arta, Bidyadhar and Bhagaban running away the north after coming out of the library room. Then he entered inside the library room and found that the deceased with cut bleeding injury on his lower abdomen and on being asked the deceased told that Bidyadhar Raisingh stabbed him with a knife. Nothing is found in cross-examination to disbelieve this witness except the fact that some contradictions have been tried to be brought out in course of cross-examination. P.W.4 is another witness who has stated to have seen all the accused persons entering into the premises of the institution. He has further stated that he heard shout of the deceased and ran into the campus of the institution along with one Agadhu and by the time they reached near the library the appellants Rabi, Arta and the absconding accused persons Bidyadhar and Bhagaban were coming out from the library room. The appellant Rabi was holding Gupti, Bidyadhar knife another accused persons were holding two bags. The deceased was lying injured inside the library room. On being asked the deceased said that he was stabbed with a knife by the absconding accused Bidyadhar. In cross-examination he has confirmed his earlier statement in examination-in-chief that all the accused persons had entered into the campus of the library and two of the appellants namely Rabi and Arta alongwith Bidyadhar and Bhagaban had entered into the library room. The evidence of P.W.5 is similar in nature and nothing has been brought out in cross-examination to disbelieve the statement to the effect that all the appellants had entered into the campus of the institution and four of them had entered into the library. P.W.6 is also another witness present at the spot who has corroborated the testimony of P.Ws. 4 and 5. P.W.7 is a seizure witness. P.W.8 is the Principal of Dayabihar College where the deceased was working and he had gone to see the deceased in the hospital. He is also a witness to the inquest. P.W.9 is a lecturer in History working in Dayabihar College who has stated to have heard the sound of bomb blast and he had seen 10 to 12 persons going out of the library campus through the gate. P.W.10 is also a witness to the inquest. P.W.11 is the constable who accompanied the dead body of the deceased for post mortem examination. P.W. 13 is the doctor who had initially examined the deceased and found a spendible shaped wound with well defined margin on the left side of the abdomen. He was the doctor in the Primary Health Center where the deceased was brought first and he had referred him to the Headquarters Hospital, Puri. P.W.14 is the doctor who conducted autopsy and found one stitched wound on the left lumber region of the anterior abdominal wall 8' below the left nipple. His opinion is that the death resulted due to penetrating injury to the pancreas and all the injuries were found to be in ante mortem in nature and sufficient to cause death. P.W.16 is the O.I.C., Kanas P.S. who had received the report and registered the F.I.R. P.W.17 is a doctor working in the Kanas Community Health Center who has examined Bikash Kumar Dalasingh on police requisition and his evidence is not material for the purpose of prosecution. P.W.18 is the I.O. who conducted the investigation. As is evident from the evidence adduced before the trial Court, all the accused persons including the absconding accused persons had entered into the campus of the institution and four of them namely appellant Rabi, Arta and two absconding accused persons Bidyadhar and Bhagaban entered into the library room. Though there is no eye-witness to the occurrence, the evidence is very clear to the effect that immediately after these four accused persons entered into the library room, the deceased shouted 'BOULA MARIGALI', where after these accused persons came out of the library and decamped along with other accused persons. The deceased also made a dying declaration before some of the witnesses stating that he had been stabbed by the absconding accused Bidyadhar Raisingh. Corresponding injuries have been found by the doctor who had conducted post-mortem examination. It further appears from the record that the dying declaration of the deceased was recorded on 23.1.1990 at about 11.30 P.M. and he had stated in the dying declaration that on 22.1.1990 at about 6 P.M. while he was reading in the library the absconding accused Bidyadhar Raisingh came into the library room and stabbed by means of a sharp cutting weapon on his abdomen and thereafter he closed the door from inside and shouted. Hearing his shout, Halu Mallick, Laxman Behera, Bidyadhar Behera and Babula Mallick (P.W.2) came to the spot and took him to Kanas Primary Health Center. Relying on this dying declaration, it was contended by the learned Counsel appearing for the appellants that it is only the absconding accused Bidyadhar Raisingh who had entered into the room where the deceased was sitting and stabbed him. Thereafter the deceased having closed the door from inside, there was no scope for any other accused person to get into the room where the deceased was sitting and therefore the appellants who had not entered into the library room could not have been convicted for commission of the offence under Section 302 of the Indian Penal Code.
6. There is no evidence to show that any one of the appellants had assaulted the deceased. If the dying declaration of the deceased is taken into consideration, it is only the absconding accused Bidyadhar Raisingh who had assaulted the deceased by means of a knife on his abdomen which caused death. The appellants have been convicted with aid of Sections 34 and 120B of the Indian Penal Code. Learned Sessions Judge in the judgment has observed that so far as the offence under Section 120B of the I.P.C. is concerned, the evidence is not enough though he convicted all the appellants for the said offence. It is also appears from the evidence of the witnesses examined by the prosecution that there is no evidence with regard to conspiracy and no witness has stated to have seen the appellants conspiring with the absconding accused persons for committing murder of the deceased. The only other offence on the basis of which the appellants could be committed for commission of offence under Section 302 of the I.P.C. is Section 34 of the said Code. Learned Counsel appearing for the appellants relied on a decision of the Apex Court in the case of Ramashish Yadav and Ors. v. State of Bihar reported in : 2000CriLJ12 and submitted that in order to bring home the charge under Section 34 of the I.P.C prior concert or meeting of minds is essential. The Apex Court in the judgment held that a prior concert or meeting of minds may be gathered from the conduct of the accused persons in course of commission of the offence and also from the declaration made by the accused before commission of the offence. Even though offence is committed at the spur of the moment, prior concert may be there. Merely because two persons had held the deceased while other two had assaulted the deceased, the accused who did not commit any overt act though was armed cannot be said to have shared the common intention with other two accused persons who assaulted. In the case of Dhanu @ Dhanurdhar Sahu and Anr. v. State of Orissa reported in (2002) 22 OCR 320, a similar view as also taken. In the case of Krupasindhu Bhoi and Anr. v. The State of Orissa reported in Vol. 78 (1994) CLT 62, it was decided by this Court that before a man can be held liable for acts done by another, under Section 34 of the I.P.C., it must be established that there was common intention in the sense of a pre-arranged plan between the two and the person sought to be so held liable had participated in some manner in constituting the offence. Unless common intention and participation are both present, the section cannot apply. It was further held that though common intention may develop in course of the fight, but there must be clear and unimpeachable evidence to justify that inference. Common intention presupposes prior concert and it requires a pre-arranged plan. Keeping in mind the law laid down in the aforesaid decisions, if the present case is examined, it is found that all the accused persons had entered into the campus of the institution and four of them entered into the library room being armed. There is no allegation of any kind of overt act so far as assault of the deceased is concerned by three of the accused persons who had entered into the library except that while going away there was a bomb blast. The allegation of assault on the deceased is only against the absconding accused Bidyadhar Raisingh who has not faced trial till today. There is evidence on record to show that there was prior meeting of minds to commit the offence. It may be so that the three accused persons namely appellant Rabi, Arta and Bhagaban who had entered into the library room along with absconding accused Bidyadhar did not share a common intention to commit murder of the deceased which probably accused Bidyadhar had. Under these circumstances, the appellants cannot also be held liable for commission of offence under Section 34 of the I.P.C. Once this Court comes to a conclusion that the appellants are neither liable for conviction under Section 34 nor under Section 120B of the I.P.C. they cannot be convicted under Section 302 of the I.P.C. unless they have participated in commission of the said offence along with the absconding accused Bidyadhar. Admittedly, it is only Bidyadhar Raishing who stabbed the deceased and none of the appellants had assaulted the deceased. The allegation is that two of the appellants namely Rabi and Arta had entered into the library along with the absconding accused persons Bidyadhar and Bhagaban. but there is no allegation of any kind of overt act against them.
7. We are, therefore, of the view that there being no evidence against the aforesaid two appellants so far as assault on the deceased is concerned, they cannot be convicted under Section 302 of the I.P.C. with aid of either Section 120B or Section 34 of the I.P.C. Rest of the appellants had not even entered inside the library and they were standing outside. There is no allegation against any one of them to have done anything except entering into the premises of the institution. In view of such nature of evidence available against them, they cannot be also convicted under Section 302 of the I.P.C. in absence of any material to convict them either under Section 34 or under Section 120B of the Indian Penal Code.
8. We, therefore, allow the appeal and set aside the judgment and order passed by the trial Court.