A.S. Naidu, J.
1. Two appellants assail the judgment and order dated May. 29, 1996 passed by the 2nd Addl. Sessions Judge. Berhampur in Sessions Case No. 17 of 1995 (Sessions Case No. 78 of 1995) (GDC) convicting them under Section 302 read with Section 34 of the Indian Penal Code and sentencing to undergo rigorous imprisonment for life for committing the murder of Bhallu Dakua (hereinafter referred to as 'the deceased').
2. Bereft of all unnecessary details, the short facts narrated in the F.I.R. are as follows :
Village Mundula and village Chandanpur in the district of Ganjam are adjacent to each other. A dispute cropped up between the villagers centering round a water reservoir, locally caiFed as 'Champai Ghai' which is situated within the boundary of village Mundula. Taking advantage of the geographical situation, the villagers of Mundula demanded exclusive fishing right in the reservoir. At the other hand, the villagers of Chandanpur insisted that the fishing right should be put to auction and settled in favour of the highest bidder. The relationship amongst the villagers of both the villages became strained leading to seVeral untoward incidents and lodging of complaints before the local police. A criminal case was also registered against some of the villagers of Chandanpur on the allegation that they assaulted one markanda Behera of Mundula. Spuradic outburst of emotion of villagers also disturbed the law and order situation of the vicinity and tension prevailed in the locality. It is alleged in the F..I.R. that on May 24, 1994 around 7 P.M. while deceased Bhallu Dakua, a resident of village Mundula was returning home with his cattle, the two appellants, who are residents of village Chandanpur. all of a sudden appeared from behind a Tamarind tree and appellant No. 2 Rabi Mallu caught hold of the deceased and the other appellant Dhanu Sahu stabbed on the chest of the deceased by means of knife and thereafter both the appellants fled away from the place of occurrence. This incident was witnessed by one Sudarsan Parida (P.W.I) of village Mundula who rushed to the deceased on hearing his screams and shouted for help from other villagers. On hearing hullah balloo, Gopabandhu Sahu (P.W.3) arrived at the spot and saw both the accused persons fleeing. Both, Sudassan and Gopabandhu carried the dead body of the deceased to the Kanjimal road of the village Mundula. On hearing their shouts, Bijaya Sahu (P.W.2) and other villagers rushed to the spot. Thereafter, said Bijaya Sahu lodged the F.I.R. before the Officer-in-charge of Kodala Police Station.
In course of investigation, in accordance with a confession said to have been made by accused Dhanu Sahu while he was in police custody, a knife which was concealed in a bush on the ridge of the village pond was seized. The police also searched the house of appellants and seized a Check Lungi and a blue shirt having blood stains. After completion of investigation, charge sheet was submitted under Section 302/34, I.P.C. and the case was committed to the Court of Session.
3. The defence plea is one of the total denial. Accused- appellant No. 1 Dhanu Sahu, in his examination under Section 313, Cr.P.C. pleaded innocence and declined to have made any confession before the police regarding recovery of the weapon of offence. He further claimed that on the date of occurrence, the villagers of Mundula assaulted him while he was returning home and he could save himself only on intervention of police. It is further stated that to wriggle out of the consequence of the said assault, the villagers of Mundula have falsely implicated him.
4. To prove its case, prosecution has examined 8 witnesses. P.W.2 is the informant who lodged the F.I.R.. P.W.I is the eye- witness who also claims that before death the deceased made a declaration before him and specifically named the assailants. P.W.6 is the doctor who conducted the post mortem examination. P.W.8 is the Investigation Officer. P.W.3 is a post-occurrence witness and P.W. 4 is the doctor who examined appellant Dhanu Sahu on police requisition, and found some injuries. P.W.5 is a witness to the confession made by appellant-Dhanu Sahu leading to discovery of the knife which is said to be the weapon of offence. P.W.7 is also a post-occurrence witness and claims to have seen the accused persons running away from the spot. The defence has examined the Grama Rakhi as the sole witness (D.W.I) in support of the defence plea.
5. The evidence of P.W.6.the doctor who conducted the post mortem examination as well as the post mortem report (Ext-9), reveals following injuries :
(i) One penetrating wound on the left side of chest in the second inter coastal place 1' lateral to parasternal line.
(ii) Another wound abrasion on the forehead on left half. After dissection of the dead body, the doctor found the following internal injuries :
(a) The ascending arota is cut on sides and front. Posterior wall of arota is in fact. The overlying muscles were cut.
The doctor opined that the death was caused due to profuse bleeding resulting from the sharp cut wound/injury.
6. The learned Addl. Sessions Judge, on the basis of the evidence of P.W.6 arrived at a conclusion that the deceased died a homicidal death. We do not find any compelling reason to differ from the aforesaid conclusion and accordingly we uphold the said finding.
7. Admittedly, enmity existed between the two neighbouring villagers i.e., Chandanpur and Mundula. Accused persons belong to village Chandanpur and the deceased belonged to village Mundula. Tension was prevailing in the locality due to sporadic assaults of villagers of either side. Police was also stationed at the village to maintain peace and tranquillity and to defuse the tension.
8. P.W. 1 who claimed to be the sole eye-witness and was present near the place of occurrence, states that all of a sudden he heard the shriek of deceased Bhallu Dakua and rushed to the spot. He saw the deceased lying on the field in a pool of blood and both the accused persons fleeing away from the spot towards village Chandanpur. P.W. 1 also asserts that the deceased told him that accused Rabi Mallu caught hold of him and accused Dhanu Sahu stabbed him on his chest by means of a knife. Within a few minutes thereafter, the deceased succumbed to the injuries. It is asserted that he called for help and Gopabandhu Sahu (P.W.3) reached at the spot. It is further stated that P.W.3 and P.W. 1 carried the body and placed it in front of the house of Dandia Behera. The said witness was cross-examined at length, but except some minor discrepancies, he withstood the cross- examination successfully. P.W.3 who, according to P.W. 1, arrived at the spot soon after the occurrence, has corroborated the evidence of P.W. 1 and deposed that he saw both the accused persons running towards village Chandanpur. He also stated that on being questioned, P.W.I informed him that accused Rabi Mallu caught hold of Bhallu Dakua (deceased) and accused Dhanu Sahu stabbed him. He also testified that on hearing shouts for help from P.W.I, he rushed to the place of occurrence. P.W.7, another villager, claimed to be a post-occurrence witness has also testified that he has seen the deceased lying on the field with a bleeding injury on the left side of the chest and both the accused persons running away from the spot. Though there are certain discrepancies in his evidence, as to how the dead body was removed, but nothing much could be elicited from his evidence to disbelieve the statement that he saw both the accused persons running away from the spot.
9. The statement made by P.W. 1 that the deceased was stabbed only once by the appellant Dhanu Sahu, gets corroboration from the post mortem report. The presence of P.W. 1 near the scene of occurrence at 7 P.M. when, according to him, he went for easing himself under a tamarind tree, is not open to doubt. Coupled with the statement of P.W. 1, the dying declaration said to have been made by the deceased soon before his death, is sufficient to hold the accused persons guilty.
10. It is true, dying declaration is not the deposition made in a Court and it is neither made on oath nor in presence of the accused. It is, therefore, not tested by cross-examination on behalf of thfe accused, but a dying declaration is admitted to evidence by way of an exception to general Rule against admissibility of hear-say evidence on the principle of necessity. Section 32 of the Indian Evidence Act is an exception to the rule of hear-say. It makes the statement of a person, who dies, admissible in evidence, whether the death is homicidal or suicidal, provided the statement relates to the cause of death or exhibits circumstances leading to death. The question of acceptance of the dying declaration, however, is to be considered in each case relying upon the facts and circumstances established therein. For being satisfied with regard to the veracity of the dying declaration, the Court should subject the declaration to a close scrutiny.
11. In the present case as the evidence would reveal, P.W. 1 was Very much present in the vicinity of occurrence and he has also seen both the accused persons running away from the spot. This fact gets corroboration from the statement made by P.W.7, who also arrives soon after the occurrence. P.W. 1 immediately rushed to the spot where the deceased was stabbed. The statement made by the deceased soon before his death to P.W. 1 is also reproduced by him before P.W.7 and others on the very first opportunity, soon after the occurrence. Thus, there is no reason to disbelieve the same. Much has been argued with regard to non-mention of material particulars in the F.I.R. Admittedly, the F.I.R. was lodged by Bijay Kumar Sahu, P.W.2. He was neither present at the time of occurrence nor was a post-occurrence witness. He heard about the occurrence from P.W. 1 and reported the fact at the police station.
12. Law is well settled that the object of First Information Report from the point of view of the informant is to set criminal law into motion. From the point of view of the investigating authorities it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence. (SeeNasib v. State of Bihar, AIR 1072 SC 283). It is no more res integrathat F.I.R. is not the encyclopaedia, and it need not contain names of the witnesses, offenders and circumstances of commission of the offence in great detail. Thus, rejection of prosecution story and discarding the testimonies of the witnesses on the sole ground of absence of detail narration or meticulous particulars in the F.I.R. is improper. In the case of State of U.P. v. Nahar Singh and others, AIR 1998 SC 1328, the Apex Court held as follows :
'The purpose of recording FIR under Section 154 of the Criminal Procedure Code is to set the investigating agency in motion for prosecuting the persons responsible for the cognisable offence mentioned in the F.I.R. Though the FIR should not be too sketchy or vague, yet non mentioning of the details and meticulous particulars is no ground to reject the case of the prosecution. Therefore, omission to assign weapon or role to accused in FIR is not fatal to case of prosecution.'
13. In the present case, P.Ws. 2, 3 and 7 in their evidence have testified that immediately after the occurrence, P.W. 1 disclosed before them that the deceased made a statement soon before his death that accused Rabi Mallu caught hold of the deceased and accused Dhanu Sahu stabbed on his chest. All the three witnesses have seen the appellants running away from the spot. Thus, P.W.I, who was the first person to arrive just after the assault and before the injured succumbed to the injuries, is competent to depose about the dying declaration.
14. Further, according to the prosecution, appellant Dhanu while in police custody, made confessional statement to the effect that he had kept concealed the weapon of offence inside a bush on the ridge of the village tank. P.W.5 is a-witness to the said confession. P.W.5 in his deposition before the Court has also stated that Dhanu Sahu led the police and witnesses to the ridge of the tank and he himself brought out the knife from inside the bush and produced before the police. Though the defence cross- examined this witness at length the tried to discredit his testimony as the evidence reveals, they thoroughly failed to do so. P.W.5 is a High School teacher and P.W.8 is the Investigating Officer, who have not axe to grind against the accused persons. We do not find any reason to disbelieve the statements of P.W.5. The seizure of blood-stained Lungi and wearing apparels of accused- appellants are also circumstances which goes against the appellants.
15. Admittedly there was village enmity and tension was prevailing in the locality. Both the villagers were waiting for opportunity to assault each other. Even according to the prosecution case, appellant Dhanu Sahu sustained some injuries, which is corroborated by the evidence of P.W.4. the doctor who examined Dhanu Sahu on police requisition and found a Haematoma of the size 3' x 2' on right side of the back against the 8th and 9th ribs. In support of their case, the defence has examined the Grama Rakhi (D.W. 1) who stated in his evidence that there was dispute between both the villages and he along with one Havildar went to the village Mundula the day preceding the incident.
16. In course of hearing, the learned counsel for the appellants, strenuously tried to convince us that taking advantage of party faction, the two appellants have been falsely named. He has relied upon a number of decisions in support of his case that the dying declaration should not be accepted as there is no evidence to show that the deceased was in a fit state of mind to make the dying declaration. In support of his contentions he relied upon the decisions reported in AIR 1972 SC 1 776, AIR 1976 SC 1994, AIR 1983 SC 554, AIR 1997 SC 3569, AIR 1999 SC 3455 and J 987 (II) OLR 363.
17. We have carefully gone through the decisions and while not disputing the legal proposition, we once again reiterate that the evidence in each case, has to be considered on the basis of human probabilities and the appreciation should vary from case to case depending upon the facts and circumstances of each case.
18. It is further submitted by the learned counsel for the appellants that, assuming for the sake of argument though not conceding, the two appellants were seen running away from the place of occurrence, it could be at best the evidence of suspicion. specially in view of the fact that there is no evidence that the appellants were holding the weapon of offence and that a mere suspicion, howsoever strong may be, cannot take the place of proof. In support of his argument, he relied upon the decisions reported in AIR 1996 SC 2868 Mulak Raj v. State of Haryana and 2001 (I) OLR 699 (Dhananjay Reddy and Ors. v. State of Karnataka).
19. At the other hand, the learned counsel for the State submitted that the clear and unambiguous oral evidence, coupled with the dying declaration, leaves no iota of doubt that appellant No. 1 gave one knife blow which became fatal. When guilt is proved to the hilt against, the accused-appellants, there is no question of suspicion.
20. We have carefully heard learned counsel for the parties. analysed the evidence and other materials on record and confirm the finding arrived at by the learned trial Judge that the prosecution has successfully established its case. But then, there is absolutely no direct evidence to reveal that there was any personal rivalry existing between the deceased and the appellants. Further, admittedly the villagers of both the villagers were in inimical terms and were waiting for chances to take revenge against any of the villagers of other side as and when opportunity arrived. Dhanu Sahu. one of the appellants is said to have been assaulted by the villagers of Mundula on the previous day. The police were deployed at the village to lessen the tension. In view of the aforesaid pertinent circumstances, we are persuaded to arrive at a conclusion that though the appellant No. 1 is the author of the single stab injury, which caused death of a rival villager, he had no intention or premeditated plan to kill the deceased. The single injury was inflicted in the heat of passion as a part of spuridical assaults which were continuing for some time inter se between the villagers of both the villages.
21. In view of the over-all picture of the case, it must necessarily be accepted that accused No. 1 Dhanu alias Dhanurdhar had no intention to cause death of the deceased. Further the act of Inflicting a single injury can only be construed to be an offence of culpable homicide not amounting to murder. Though he had no intention to kill the deceased, yet he must, however, be imputed with the knowledge that the single stroke with knife might cause death, but not must, in all probability, if accidentally hit the vital part of the deceased, as in fact it did, and caused the death. But as appellant No. 1 had no intention to cause the death, we are, therefore, of the opinion that the offence committed by appellant No. 1 amounts to culpable homicide not amounting to murder and is punishable under Section 304, Part-II of the Indian Penal Code. As a consequence, while acquitting the appellant No. 1 from the charge under Section 302, I.P.C., we hold him guilty of the offence under Section 304, Part-II, I.P.C. and convict him thereunder.
22. So far as appellant No. 2,Rabindra Kumar Malu is concerned, scrutiny of the entire evidence reveals that he has not assaulted the deceased nor he was carrying any weapon. He was simply accompanying appellant No. 1, Dhanu and caught hold of the deceased. The prosecution has totally failed to establish any common intention between the two appellants to commit murder of the deceased. Section 34, I.P.C. pre-supposes a prior concert, a pre-arranged plan i.e. prior meeting of mind to commit1 the crime. To attract the provisions of Section 34, I.P.C, a mere participation in the action is not the only requirement, but what is required is, there must be sharing of common intention and meeting of minds. The prosecution has to establish that the criminal act was committed pursuant to a pre-arranged plan.
23. The distinction between common intention and similar intention should be borne in mind, although the dividing line is rather thin as has been held in the case of State v. Dharanidhar, AIR 1976 Orissa 79, which is quoted herein below :
'It is the settled position of law that to invoke Section 34, Indian Penal Code the prosecution must establish common intention and prove that the criminal act was done in concert pursuant to a pre-arranged plan. In inferring common intention from the evidence on record one must keep in the forefront of his mind the distinction between the common intention and the same or similar intention, though the dividing line between them is often very thin. If this distinction is overlooked, miscarriage of justice is likely to occur. It is equally well settled that inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.'
24. In the case at hand, admittedly both the accused by chance saw the deceased. There was no pre-plan to commit the offence. There is also no evidence to reveal that appellant No. 2 - Rabi Malu had any prior knowledge that appellant No. 1-Dhanu carried a knife with him. Admittedly, he has not assaulted the deceased and the single stab injury was inflicted by appellant No. 1. Thus, the basic ingredients of Section 34, I.P.C. are not satisfied so far as appellant Rabi Malu is concerned and we have no hesitation to acquit him of the charges. -
25. In the result, the appeal is partly allowed. The conviction and sentence of appellant Dhanu alias Dhanurdhar is modified to Section 304, Part-II, I.P.C. and he is directed to suffer imprisonment for the period already undergone (i.e. seven years and seven months). He be released from custody unless his detention is required in any other case. The appellant No. 2-Rabi Malu is acquitted of all the charges and he be set at liberty unless of course his detention is required in connection with any other case. The bail bond furnished stands cancelled.
Pradipta Ray, J.
I agree.